# Zadvydas v. Davis

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

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. Other courts upheld the detentions, interpreting Shaughnessy v. Mezei to apply to "excludable aliens" who were inadmissible.

## Statutes

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. 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.

## Lower courts

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.

### Fifth Circuit case

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. 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.
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".
The government appealed and the Fifth Circuit Court of Appeals overturned the district court.

### Ninth Circuit case

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. 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. The government appealed and the Ninth Circuit Court of Appeals upheld the district court.

## Supreme Court
### Oral argument

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.

### Majority opinion

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".
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. The Court held that detention for up to six months after entry of a removal order is "presumptively reasonable".
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".
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. The court ruled that a hearing must be held after a six-month detention.

### Dissenting opinions

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]
Justice Anthony Kennedy's dissent was joined by Thomas, Scalia and Chief Justice William Rehnquist. Kennedy said Mezeipresented 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. Kennedy said the majority misapplied the principle of constitutional avoidance by circumventing congressional intent and imposing a six-month limit on detention that was not found in the statute.

## Subsequent developments
### Legislative proposals

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.

### Impact

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. 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.

### Repatriation of Kim Ho Ma

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.

### Circuit courts

Zadvydas was ited 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'."

### Clark v. Martinez

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. 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.