Cite as: 563 U. S. ____ (2011) 1 

Statement of BREYER, J. 

SUPREME COURT OF THE UNITED STATES 

JAMAL KIYEMBA, ET AL., PETITIONERS v.

BARACK H. OBAMA, PRESIDENT OF 

THE UNITED STATES, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF 

COLUMBIA CIRCUIT

No. 10–775. Decided April 18, 2011 

The motion of petitioners for leave to file a supplemental 

brief under seal is granted. The petition for a writ of 

certiorari is denied. JUSTICE KAGAN took no part in the 

consideration or decision of this motion and this petition. 

 Statement of JUSTICE BREYER, with whom JUSTICE 

KENNEDY, JUSTICE GINSBURG, and JUSTICE SOTOMAYOR 

join, respecting the denial of the petition for writ of 

certiorari. 

Petitioners have been held for several years in custody 

at Guantanamo Bay, Cuba—a detention that the Government agrees was without lawful cause. Brief in Opposition 2. They seek a judicial order that would require their 

release from custody into the United States. The District 

Court concluded that the law entitled petitioners to such

an order. In re Guantanamo Bay Detainee Litigation, 581 

F. Supp. 2d 33 (DC 2008). The Court of Appeals held to

the contrary. Kiyemba v. Obama, 555 F. 3d 1022 (CADC 

2009). And this Court initially granted certiorari to resolve the important question whether a district court 

may order the release of an unlawfully held prisoner into

the United States where no other remedy is available. 

Kiyemba v. Obama, 558 U. S. ___ (2009). 

The Court subsequently learned that each of the remaining petitioners had received and rejected at least two

offers of resettlement. In light of these changed circumstances, the Court vacated the Court of Appeals’ decision 
2 KIYEMBA v. OBAMA 

Statement of BREYER, J. 

and remanded the case to the lower courts to “determine, 

in the first instance, what further proceedings in that

court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light 

of the new developments.” Kiyemba v. Obama, 559 U. S. 

___, ___–___ (2010) (per curiam) (slip op., at 1–2). The 

Court of Appeals found that no further proceedings were

necessary and reinstated its prior opinion as modified. 

605 F. 3d 1046 (CADC 2010) (per curiam). Petitioners 

have asked this Court to review the Court of Appeals’ 

decision. 

Judge Rogers, separately concurring in the Court of

Appeals’ judgment on remand, pointed out that petitioners

have “received two offers of resettlement in countries 

[including Palau, which] the United States determined

‘appropriate.’” Id., at 1050, n. 3. She added that petitioners have “neither allege[d] nor proffer[ed]” any evidence 

that accepting these offers would have threatened them

with a risk of “torture” or any “other harm,” the need to 

avoid which might provide reason to believe the offers are 

not appropriate. Id., at 1050. At the same time, the Government tells us that “if petitioners were to express interest, the United States would again discuss the matter with 

the government of Palau [and that it] continues to work to

find other options for resettlement.” Brief in Opposition 

13, n. 7. 

In my view, these offers, the lack of any meaningful 

challenge as to their appropriateness, and the Government’s uncontested commitment to continue to work to 

resettle petitioners transform petitioners’ claim. Under 

present circumstances, I see no Government-imposed

obstacle to petitioners’ timely release and appropriate 

resettlement. Accordingly, I join in the Court’s denial of 

certiorari. Should circumstances materially change, however, petitioners may of course raise their original issue (or 

related issues) again in the lower courts and in this Court.