Zadvydas v. Davis

Facts

When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory 'removal period,' during which time the alien normally is held in custody. A special statute authorizes further detention if the Government fails to remove the alien during those 90 days. As the post-removal-period statute provides, the Government 'may' continue to detain an alien who still remains here or release that alien under supervision. § 1231(a)(6). Zadvydas (P), a resident alien who was born, apparently to Lithuanian parents, in a displaced person camp in Germany in 1948. When he was eight years old, Zadvydas (P) immigrated to the United States with his parents and other family members, and he has lived here ever since. Zadvydas (P) has a long criminal record, involving drug crimes, attempted robbery, attempted burglary, and theft. He has a history of flight, from both criminal and deportation proceedings. He was convicted of possessing, with intent to distribute, cocaine; sentenced to 16 years' imprisonment; released on parole after two years; taken into INS custody; and, in 1994, ordered deported to Germany. In 1994, Germany and Lithuania refused to accept Zadvydas (P). In 1996, the INS asked the Dominican Republic (Zadvydas' (P) wife's country) to accept him, but this effort proved unsuccessful. In 1998, Lithuania rejected, as inadequately documented, Zadvydas' (P) effort to obtain Lithuanian citizenship based on his parents' citizenship. Zadvydas' (P) reapplication is still pending. The INS kept Zadvydas (P) in custody after the expiration of the removal period. Zadvydas (P) filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. The District Court granted that writ and ordered him released under supervision. The Fifth Circuit reversed. The detention did not violate the Constitution because eventual deportation was not 'impossible.'

Kim Ho Ma. Ma (P) was born in Cambodia in 1977. When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven. In 1995, at age 17, Ma (P) was involved in a gang-related shooting, convicted of manslaughter, and sentenced to 38 months' imprisonment. He served two years, after which he was released into INS custody. Ma (P) was ordered removed. The 90-day removal period expired but the INS continued to keep Ma (P) in custody, because, in light of his former gang membership, the nature of his crime, and his planned participation in a prison hunger strike, it was 'unable to conclude that Ma (P) would remain nonviolent and not violate the conditions of release.' In 1999 Ma (P) filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. A panel issued a joint order holding that the Constitution forbids post-removal-period detention unless there is 'a realistic chance that [the] alien will be deported.' The District Court then held that there was no 'realistic chance' that Cambodia (which has no repatriation treaty with the United States) would accept Ma (P), and ordered Ma (P) released. The Ninth Circuit affirmed.

This consolidated appeal was taken. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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