Zadvydas v. Davis
| Zadvydas v. Davis | |
|---|---|
 | |
| Argued February 21, 2001 Decided June 28, 2001 | |
| Full case name | Kestutis Zadvydas v. Christine G. Davis and Immigration and Naturalization Service, John D. Ashcroft, Attorney General, et al. |
| Citations | 533 U.S. 678 (more) 121 S. Ct. 2491; 150 L. Ed. 2d 653 |
| Argument | Oral argument |
| Case history | |
| Prior |
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| Subsequent |
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| Holding | |
| Detention of unremoveable admitted immigrants cannot exceed six months unless removal is in the foreseeable future or if there are other special circumstances. | |
| Court membership | |
| |
| Case opinions | |
| Majority | Breyer, joined by Stevens, O'Connor, Souter, Ginsburg |
| Dissent | Scalia, joined by Thomas |
| Dissent | Kennedy, joined by Rehnquist; Scalia, Thomas (Part I) |
| Laws applied | |
| U.S. Const. amend. V Illegal Immigration Reform and Immigrant Responsibility Act, , | |
Zadvydas v. Davis, 533 U.S. 678 (2001), was a case decided by the Supreme Court of the United States. The court ruled that the plenary power doctrine does not authorize the indefinite detention of immigrants under order of deportation whom no other country will accept. To justify detention of immigrants for a period longer than six months, the government was required to show removal in the foreseeable future or special circumstances.
Background
[edit]Controversy over indefinite detention of "excludable" aliens was ongoing for twenty years prior to the Zadvydas case. Cubans who committed crimes after being paroled into the United States challenged their detention in the courts after the Mariel boatlift in 1981. Circuit court decisions were divided. At least one circuit court ruled that the indefinite detention of excludable aliens violated due process. The Tenth Circuit ruled against indefinite detention on statutory grounds.[1] Other courts upheld the detentions, interpreting Shaughnessy v. Mezei to apply to "excludable aliens" who were inadmissible.[2]
Statutes
[edit]Under federal law, once a person has been ordered to be deported, the U.S. Attorney General is required to detain them and complete the deportation within 90 days.[3] The Immigration and Nationality Act (INA) made detention mandatory for aliens convicted of an aggravated felony until 1996 when the duration of detention was limited to a 90-day removal period by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). That same year the Antiterrorism and Effective Death Penalty Act (AEDPA) changed the existing law to remove the aggravated felony limitation. IIRIRA allowed detention beyond the removal period for this broader group of removable aliens even though it was no longer mandatory.[1]
Lower courts
[edit]The Fifth Circuit ruled that Zadvydas' detention did not violate the Constitution as long as good faith efforts to remove him continued. In a separate case, the Ninth Circuit ruled that Kim Ho Ma could not be detained beyond the 90-day removal period. The court granted certiorari in both cases and consolidated the cases for the hearing.[4]
Fifth Circuit case
[edit]Kestutis Zadvydas was a lawful permanent resident in the United States who was ordered to be deported in 1994 based on his criminal record. Zadvydas was admitted to the United States in 1956 when he was 8 years old. He was born in a displaced persons camp in Germany after World War II to parents originally from Lithuania. In 1966 he was convicted in Queens, New York of attempted robbery and in 1974 he was convicted for attempted burglary. He failed to appear before the immigration judge for a deportation hearing. In 1992 he was convicted in Virginia for possession of 474 grams of cocaine with intent to distribute. Upon release from prison, he was taken into INS custody and was ordered deported to Germany.[4] In September 1995 after Lithuania and Germany had refused to accept Zadvydas, he filed a petition for a writ of habeas corpus in U.S. District Court. In October 1997 the District Court granted the writ and ordered him released under supervision.[4]
The district court opinion was one of the first after IIRIRA to consider a habeas challenge from an alien who could not not be removed because no country agreed to accept him. The district court decided that mandatory detention of potentially indefinite duration (under the earlier version of Title 8 and IIRIRA's Transitional custody rules) violated the detainee's rights because "Congress did not contemplate permanent detention as a means of punishment for aliens convicted of aggravated felonies who have already served their sentence".[5][6]
The government appealed and the Fifth Circuit Court of Appeals overturned the district court.[7]
Ninth Circuit case
[edit]Kim Ho Ma was a Cambodian, also a resident alien in the United States. At age 17, Kim was convicted of manslaughter and was ordered deported. Cambodia did not have a treaty with the United States and would not accept Kim.[4] In 1999, Kim filed a petition for a writ of habeas corpus in U.S. District Court. A five-judge panel of that court considered Kim's case in connection with about 100 other cases and ordered him released.[8] The government appealed and the Ninth Circuit Court of Appeals upheld the district court.[9]
Supreme Court
[edit]Oral argument
[edit]Robert F. Barnard argued the case for Zadvydas. Jay W. Stansell argued the case for Kim. Representing the United States was Deputy Solicitor General Edwin Kneedler. Amicus curiae briefs were filed by the Washington Legal Foundation on behalf of the government in the Zadvydas case and by the Legal Immigration Network, Inc., the American Association of Jews from the former USSR, the Lawyers Committee for Human Rights, the American Civil Liberties Union, Human Rights Watch, and Carolyn Patty Blum, et al., on behalf of Kim.[4]
Majority opinion
[edit]
Justice Stephen Breyer delivered the opinion of the court. The statute was challenged for granting the Attorney General authority to detain a deportee past the term of the 90-day removal period, without judicial or administrative review. Breyer indicated that an indefinite, potentially permanent detention was unconstitutional. Breyer explained that the Supreme Court interprets statutes narrowly to avoid striking down a statute on constitutional grounds; this principle of statutory construction is sometimes called constitutional avoidance: ""[T]he statute, read in light of the Constitution's demands...does not permit indefinite detention".[10][11]
The government asserted two regulatory interests. The government's interest in "ensuring the appearance of aliens at future immigration proceedings" was "weak", the Court said, when "removal seens a remote possibility". The second interest, to protect the public from a dangerous or violent detainee, required "strong procedural protections" for case-by-case review. In both cases the Circuit Courts made note of INS determinations that the detained aliens were considered dangerous. Zadvydas and Ma did not challenge the finding of dangerousness. They only argued that they could not be detained indefinitely simply because no country would agree to accept them.[11] The Court held that detention for up to six months after entry of a removal order is "presumptively reasonable".[1]
In cases where detention is "preventative" and "potentially indefinite" earlier cases "demanded that the dangerousness rationale be accompanied by some other special circumstances, such as mental illness, that helps create the danger". Unreviewable procedures that placed the burden on mentally ill detainees to show they are not dangerous were struck down in Foucha v. Louisiana. Breyer noted that allowing an administrative agency to conduct an unreviewable hearing on such a fundamental right had already been ruled against by the court.[citation needed]
The Court dismissed the government's "plenary power" argument, holding that aliens present in the United States (including unlawfully present aliens) received due process protection that was not available to aliens seeking entry at the border. (This is sometimes called the "entry fiction doctrine"). The Court distinguished Shaughnessy v. United States ex rel. Mezei because the alien in that case was detained at Ellis Island after he was formally denied entry. They said the distinction between excludable and deportable aliens "runs throughout immigration law".[11] Without carving out an exception, the Court acknowledged in dicta that the case does not decide "special circumstances" arguments "for heightened deference to the judgments of the political branches with respect to national security."[12]
The court ruled that a hearing must be held after a six-month detention.[4]
Dissenting opinions
[edit]
Justice Antonin Scalia dissented from the majority. Scalia stated that an alien who has no legal right to be in the United States has no right to release into the country that is trying to expel him or her. Scalia quoted Justice Robert H. Jackson in his dissent, asserting that "Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will." [italics in original][4]
Justice Anthony Kennedy's dissent was joined by Thomas, Scalia and Chief Justice William Rehnquist. Kennedy said Mezei presented a "line-drawing problem"; unlawful (removable) aliens like Zadvydas "who face a final order to removal" may be in a different class than aliens seeking entry, however, the dissenters said the plenary "power to admit or exclude aliens is a sovereign prerogative" that applies anyhow.[13] Kennedy said the majority misapplied the principle of constitutional avoidance[14] by circumventing congressional intent and imposing a six-month limit on detention that was not found in the statute.[11]
Reaction
[edit]Thomas A. Aleinikoff commented on inadmissability and the "terrorist exception" being placed beyond the reach of the Zadvydas decision:[12]
The problem here is not so much the Court's opinion; it is the damage the plenary power doctrine has done to immigration law for more than a century. Constitutional norms have not been able to evolve over time, reflecting and influencing developments in other areas of constitutional law. So we have awkward, surprising, interventions from time to time — decisions that bring even further incoherence to the field. Thus, in Zadvydas we are given no satisfactory grounds for the continuing validity of Mezei or for the "terrorist exception".
Subsequent developments
[edit]Legislative proposals
[edit]There have been several legislative proposals to clarify how long an alien may be detained while awaiting removal. The Dignity for Detained Immigrants Act would have required a hearing after 60 days for individualized consideration where the government explains why the alien should remain in detention. Other proposals like the Empowering Law Enforcement Act (S. 1582, H.R. 4796) and Keep Our Communities Safe Act (S. 4370) would not require any individualized consideration for aliens detained beyond the removal period.[15]
Impact
[edit]A January 2012 Miami Herald report revealed that Kesler Dufrene murdered three people, including a 15-year old, after he was released from federal detention while awaiting removal because the White House suspended deportations to his native country of Haiti for several months after the 2010 Haiti earthquake.[16][17][18] This case also allowed deportee Binh Thai Luc to be released from immigration detention after his native Vietnam declined to offer the U.S. government travel documents. Luc was arrested in March 2012 for the murder of five people in San Francisco.[19]
Repatriation of Kim Ho Ma
[edit]Following the 2002 signing of a repatriation agreement between Cambodia and the United States, Kim Ho Ma was deported. As of 2007, he lived in a rural area of Cambodia with his wife.[20]
Circuit courts
[edit]Zadvydas was cited by the 9th Circuit three-judge appeals panel on February 9, 2017, in Washington v. Trump, with regard to an executive order concerning the restriction of immigration from certain stipulated countries. In that case, the 9th Circuit panel referred to the Zadvydas opinion "emphasizing that the power of the political branches over immigration 'is subject to important constitutional limitations'."[21]
Clark v. Martinez
[edit]Over 1000 inadmissible aliens (including the Mariel boatlift Cubans) remained in detention beyond the six-month time frame set by the Court in Zadvydas and unlikely to be repatriated.[22][23] Justice Scalia, despite his dissent in Zadvydas, authored the 7–2 decision in Clark v. Martinez rejecting the Bush Administration's argument that inadmissible aliens who entered the United States unlawfully could be detained indefinitely under §1231(a)(6).The Supreme Court decided Clark v. Martinez on statutory grounds similar to Zadvydas.[24]
See also
[edit]References
[edit]- ^ a b c Taylor, Margaret H. (2002). "Behind the Scenes of St. Cyr and Zadvyvas: Making Policy in the Midst of Litigation". Georgetown Immigration Law Journal. 16 (2).
- ^ "Cuba:Migration". United States Department of State Archive. March 16, 2000.
In 1984, the United States and Cuba negotiated an agreement to resume normal immigration, interrupted in the wake of the Mariel boatlift who were "excludable" under U.S. law.
- ^ 8 U.S.C. § 1231 Title 8 §1231(a)(6): "An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a) (4) of this title or who has been determined by the [Secretary] to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph."
- ^ a b c d e f g Zadvydas v. Davis, 533 U.S. 678 (2001).
- ^ Zadvydas v. Caplinger, 986 F.Supp. 1101 (E.D. La. 1997).
- ^ Zadvydas v. Caplinger, 986 F. Supp. 1011 (1997): "Detention is intended for the sole purpose of effecting deportation, and once it becomes evident that deportation is not realizable in the future, the continued detention of the alien loses its raison d'etre."
- ^ Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999).
- ^ Binh Phan v. Reno, 56 F. Supp. 2d 1149 (W.D. Wash. 1999).
- ^ Ma v. Reno, 208 F.3d 815 (9th Cir. 2000).
- ^ 533 U.S. 678, 689 (2001)
- ^ a b c d David Cole, In Aid of Removal: Due Process Limits on Immigration Detention, 51 Emory L.J. 1003 (2002).
- ^ a b T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Georgetown Imm. L. J. 365 (2002).
- ^ 533 U.S. 678, 720 (2001)
- ^ If there were two or more interpretations, then the court is bound to accept the one that does not create a constitutional issue.
- ^ "High Court Limits Ability of Aliens Ordered Removed to Challenge Prolonged Detention". July 20, 2022.
- ^ Ovalle, David (January 22, 2012). "Immigration authorities released man who went on to kill 3 in North Miami". Miami Herald. Retrieved March 27, 2012.
- ^ Metcalf, Mark. "Immigration court evasions reveal weak authority and weak enforcement". Center for Immigration Studies.
- ^ "Smith: Dangerous Criminal Immigrants Deserve No Favors from U.S." House Judiciary Committee. January 23, 2012.
- ^ Fagan, Kevin (March 27, 2012). "S.F. suspect not alone in dodging deportation". San Francisco Chronicle. Retrieved March 27, 2012.
- ^ "Sentenced Home". PBS. Retrieved September 20, 2017.
- ^ "Read the 9th Circuit's opinion on the travel ban". Washington Post. Archived from the original on November 29, 2017. Retrieved February 10, 2017.
- ^ Clark v. Martinez,543 U.S. 371 (2005)
- ^ Jose Javier Rodriguez, Clark v. Martinez: Limited Statutory Construction Required by Constitutional Avoidance Offers Fragile Protection for Inadmissible Immigrants from Indefinite Detention, 40 Harvard Civ. Rts.-Civ. Lib. L. R. 505 (2005).
- ^ Greenhouse, Linda (January 13, 2005). "Supreme Court Rejects Mariel Cubans' Detention". New York Times. Retrieved July 30, 2012.
External links
[edit]- Text of Zadvydas v. Davis, 533 U.S. 678 (2001) is available from: Justia Library of Congress Oyez (oral argument audio)