U.S. Supreme Court decides (1) that its previous holding in Zadvydas v. Davis applies to removable aliens like Cuban habeas corpus petitioners who are deemed inadmissible to United States, (2) that government cannot confine them indefinitely and (3) that it must release them
An immigration official has a duty to inspect every alien who arrives in the United States. Unless the official concludes that the alien is "clearly and beyond a doubt entitled to be admitted," he or she generally has to undergo removal proceedings to determine admissibility. Meanwhile, the U.S. may detain the alien, subject to the Secretary of Home Security's (Secretary's) discretionary authority to parole him into the country.
If, at the end of removal proceedings, the tribunal finds the alien inadmissible and to be removed, the law provides that the Secretary "shall remove the alien from the United States within a period of 90 days," 8 U.S.C. Section 1231(a)(1)(A). The instant cases deal with the extent, if any, of the Secretary's authority to continue to detain an inadmissible alien subject to a removal order after the statutory 90 day removal period is over.
Respondent, Sergio Suarez Martinez, and petitioner, Daniel Benitez, arrived in the U.S. from Cuba in June 1980 as part of the Mariel boatlift (Cuban exiles assembled fleet of fishing and pleasure vessels in Cuban port of Mariel and succeeded in bringing more than 120,000 Cubans to the U.S.), see Palma v. Verdeyen, 676 F.2d 100, 101 (C.A.4 1982) (describing circumstances of Mariel boatlift), and the Attorney General (AG) paroled them into the U.S. pursuant to his statutory authority.
By the time they had applied for an adjustment of their status, both men had become inadmissible because of prior criminal convictions while on parole. When Martinez sought adjustment in 1991, for example, Rhode Island had already convicted him of assault with a deadly weapon and California had found him guilty of burglary. By the time Benitez had sought the same relief in 1985, Florida had convicted him of grand theft.
Moreover, both men committed additional felonies after the denial of their adjustment applications. Martinez's convictions included petty theft with a prior conviction in 1996, assault with a deadly weapon in 1998, and attempted oral copulation by force in 1999. Benitez's rap sheet listed two counts of armed robbery, armed burglary of a conveyance, armed burglary of a structure, aggravated battery, carrying a concealed firearm, unlawful possession of a firearm while engaged in a criminal offense, and unlawful possession, sale, or delivery of a firearm with an altered serial number.
The AG revoked Martinez's parole in December 2000. The Immigration and Naturalization Service (INS) then took Martinez into custody and filed removal proceedings against him. An Immigration Judge found him inadmissible because of his prior convictions, and lack of sufficient documentation; accordingly, he ordered him sent back to Cuba. Martinez did not appeal. Since his physical return to Cuba was not reasonably foreseeable, the INS kept him in custody beyond the 90 day removal period where he stayed until the habeas court ordered his release.
Benitez's parole was revoked by the AG in 1993 and the INS straightaway started removal proceedings. In December 1994, an Immigration Judge ordered him deported. Benitez did not seek further review. When his state prison term was over, the INS took him into custody looking toward removal to Cuba. Since that was not reasonably foreseeable, he remained confined after the 90 day removal period had run out.
Both men filed federal habeas corpus petitions in different federal courts to contest the lawfulness of their ongoing detention. In Martinez's case, the court ruled that removal was not reasonably foreseeable and ordered him set free under appropriate conditions. The Ninth Circuit later affirmed. Although another court also found that Benitez's removal could not take place in the foreseeable future, it denied his habeas petition. The Eleventh Circuit affirmed. The Supreme Court granted certiorari in both cases and, in a 7 to 2 vote, affirms the Ninth Circuit, reverses the Eleventh Circuit and remands both cases.
Justice Antonin Scalia, author of the majority opinion, preliminarily explains that 8 U.S.C. Section 1231(a)(6) provides, in relevant part, as follows: "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 (3)."
This provision applies to three classes of aliens: (1) those ordered removed who are inadmissible under Section 1182, (2) those ordered removed who are removable under Section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4), and (3) those ordered removed whom the Secretary determines to be either a risk to the community or a flight risk.
"In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court interpreted this provision to authorize the Attorney General (now the Secretary) to detain aliens in the second category only as long as "reasonably necessary' to remove them from the country. The statute's use of "may,' the Court said, "suggests discretion,' but "not necessarily ... unlimited discretion. In that respect, the word "may' is ambiguous.' Id., at 697."
"In light of that perceived ambiguity and the "serious constitutional threat' the Court believed to be posed by indefinite detention of aliens who had been admitted to the country, the Court interpreted the statute to permit only detention that is related to the statute's "basic purpose [of] effectuating an alien's removal. ... [O]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized.' The Court further held that the presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months; after that, the alien is eligible for conditional release if he can demonstrate that there is "no significant likelihood of removal in the reasonably foreseeable future.' Id., at 701."
"The question presented by these cases, ... is whether this construction of Section 1231(a)(6) that we applied to the second category of aliens covered by the statute applies as well to the first that is, to the category of aliens "ordered removed who are inadmissible under [Section ]1182.' We think the answer must be yes."
"The operative language of Section 1231(a)(6), "may be detained beyond the removal period,' applies without differentiation to all three categories of aliens that are its subject. To give these same words a different meaning for each category would be to invent a statute rather than interpret one. As the Court in Zadvydas recognized, the statute can be construed "literally' to authorize indefinite detention, id., at 689, or (as the Court ultimately held) it can be read to "suggest [less than] unlimited discretion' to detain, id., at 697. It cannot, however, be interpreted to do both at the same time." [722-23]
The Government, joined by the dissent, maintained that the statutory purpose and the constitutional concerns that swayed our statutory construction in Zadvydas are not present for aliens, such as Martinez and Benitez, who have not been admitted to the United States. "Be that as it may, it cannot justify giving the same detention provision a different meaning when such aliens are involved. It is not at all unusual to give a statute's ambiguous language a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern. [Cites]." [723-24]
"In other words, when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail whether or not those constitutional problems pertain to the particular litigant before the Court."
"The dissent takes issue with this maxim of statutory construction on the ground that it allows litigants to "attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances' and thereby to effect an "end run around black letter constitutional doctrine governing facial and as applied constitutional challenges.'"
"This accusation misconceives and fundamentally so the role played by the canon of constitutional avoidance in statutory interpretation. The canon is not a method of adjudicating constitutional questions by other means. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) (...) ; see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1960 1961 (1997) (providing examples of cases where the Court construed a statute narrowly to avoid a constitutional question ultimately resolved in favor of the broader reading)."
"Indeed, one of the canon's chief justifications is that it allows courts to avoid the decision of constitutional questions. It is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts. [Cites]. The canon is thus a means of giving effect to congressional intent, not of subverting it."
"And when a litigant invokes the canon of avoidance, he is not attempting to vindicate the constitutional rights of others, as the dissent believes; he seeks to vindicate his own statutory rights. We find little to recommend the novel interpretive approach advocated by the dissent, which would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case. Cf. Harris v. United States, 536 U.S. 545, 556 (2002) (rejecting "a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution later changed')." [724-25]
Citation: Clark v. Martinez, 125 S.Ct. 716 (S. Ct. 2005).
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