b'Limitations on the Detention Authority of the\nImmigration and Naturalization Service\nThe Immigration and Nationality Act by its terms grants the Attorney General a full 90 days to effect\nan alien\xe2\x80\x99s removal after the alien is ordered removed under section 241(a) of the Act, and it imposes\nno duty on the Attorney General to act as quickly as possible, or with any particular degree of\ndispatch, within the 90-day period. This reading of the Act raises no constitutional infirmity.\nIt is permissible for the Attorney General to take more than the 90-day removal period to remove an\nalien even when it would be within the Attorney General\xe2\x80\x99s power to effect the removal within 90\ndays. The Attorney General can take such action, however, only when the delay in removal is related\nto effectuating the immigration laws and the nation\xe2\x80\x99s immigration policies. Among other things,\ndelays in removal that are attributable to investigating whether and to what extent an alien has\nterrorist connections satisfy this standard. An obligation to act with \xe2\x80\x9creasonable dispatch\xe2\x80\x9d will attach\nat some point after the expiration of the 90-day removal period.\n\nFebruary 20, 2003\n\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nYour Office has asked us to address two questions concerning the timing of\nremoval of an alien subject to a final order of removal under section 241(a) of the\nImmigration and Nationality Act (\xe2\x80\x9cINA\xe2\x80\x9d), 8 U.S.C. \xc2\xa7 1231(a) (2000). First, your\nOffice has asked us to determine whether the Attorney General is under an\nobligation to act with reasonable dispatch in effecting an alien\xe2\x80\x99s removal within\nthe 90-day removal period established by section 241(a)(1)(A), 8 U.S.C.\n\xc2\xa7 1231(a)(1)(A). We conclude that the INA by its terms grants the Attorney\nGeneral a full 90 days to effect an alien\xe2\x80\x99s removal after the alien is ordered\nremoved and imposes no duty on the Attorney General to act as quickly as\npossible, or with any particular degree of dispatch, within the 90-day period. We\nalso conclude that this reading of the Act raises no constitutional infirmity. In\nparticular, even under the Supreme Court\xe2\x80\x99s recent decisions, such as Zadvydas v.\nDavis, 533 U.S. 678 (2001), the \xe2\x80\x9csubstantive\xe2\x80\x9d component of the Due Process\nClause does not impose a requirement that the Attorney General act with particular\ndispatch within the 90-day removal period. To the extent that the INS General\nCounsel\xe2\x80\x99s Office has issued advice to the contrary, suggesting that there is such a\nconstitutionally-based timing obligation, we disagree with that analysis. While the\nAttorney General\xe2\x80\x99s ability to delay removal of an alien within the 90-day period is\nnot constrained by a particular timing requirement (i.e., an obligation to act with\ndispatch), it is also not entirely unconstrained. We conclude that an express\ndecision to postpone removal of an alien until later in the 90-day period likely\nmust be supported by purposes related to the proper implementation of the\nimmigration laws. We need not definitively resolve that question here because the\ndelays in the particular case your Office inquired about were clearly supported by\npurposes related to proper implementation of the immigration laws.\n\n58\n\n\x0cLimitations on the Detention Authority of the INS\n\nSecond, your Office has asked\xe2\x80\x94in a situation where it would be logistically\npossible to remove an alien within the 90-day removal period\xe2\x80\x94whether and for\nwhat purposes the Attorney General may nonetheless refrain from removing the\nalien within the removal period and instead detain him beyond the 90-day period\nwith a view to removing him at a later time. We conclude, under each of two\nalternative readings of the statute, that it is permissible for the Attorney General to\ntake more than the 90-day removal period to remove an alien even when it would\nbe within the Attorney General\xe2\x80\x99s power to effect the removal within 90 days. The\nAttorney General can take such action, however, only when the delay in removal\nbeyond the 90-day period is related to effectuating the immigration laws and the\nnation\xe2\x80\x99s immigration policies.\nI.\nThese issues arose in the context of the case of a particular alien who received a\nfinal order of removal on October 1, 2002, and whose 90-day removal period thus\nexpired on December 30, 2002. This alien has significant connections to a known\nal Qaeda operative who was seized in Afghanistan and who is now held at the\nnaval base at Guantanamo Bay, Cuba. It was deemed a substantial possibility that\nthe alien himself was a sleeper agent for al Qaeda. Insufficient information existed\nat first, however, to press criminal charges or to transfer the alien to military\ncustody as an enemy combatant. When it became apparent that it would be\nlogistically possible to remove the alien very early within the 90-day removal\nperiod to the country that had been specified at the removal hearing (i.e., travel\ndocuments were obtained), the question arose whether his removal could be\ndelayed to permit investigations concerning his al Qaeda connections to continue.\nSeveral avenues remained for developing further information about the alien, and\nsuch information would have been relevant for several purposes. For example, at\nfirst, your Office had been informed by the INS that the alien had designated a\nparticular country of removal under section 241(b)(2)(A) of the INA, 8 U.S.C.\n\xc2\xa7 1231(b)(2)(A). In that case, the Attorney General would have had statutory\nauthority to disregard that designation if he determined that removing the alien to\nthat country would have been \xe2\x80\x9cprejudicial to the United States.\xe2\x80\x9d Id.\n\xc2\xa7 1231(b)(2)(C)(iv). Obviously, in order for him to make that determination, it\nwould have been important for the Attorney General to have the fullest information possible about the alien\xe2\x80\x99s terrorist connections, the extent of the threat he\nposed, and the ability (and willingness) of the law enforcement or security services\nof the destination country to deal appropriately with the alien. On further examination of the record, the INS later informed your Office that the alien had not, in fact,\ndesignated any country of removal. That situation raised unresolved questions of\nstatutory interpretation concerning the Attorney General\xe2\x80\x99s authority under the\nstatute to determine the country of removal\xe2\x80\x94a decision that, again, depending\nupon the scope, if any, of the Attorney General\xe2\x80\x99s discretion, could obviously\n\n59\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nbenefit from the fullest information possible about the alien\xe2\x80\x99s terrorist connections.\nIn addition, even apart from the question of the country to which the alien would\nbe removed, full information about the alien\xe2\x80\x99s terrorist connections was critical for\nensuring coordination with the law enforcement and security services in the\ncountry of removal before removing the alien. Ensuring such coordination based\nupon the fullest information about the threat posed by the alien would have\npromoted both the national security interests of the United States (by perhaps\nproviding a basis for law enforcement officials in the destination country to detain\nthe alien) and the foreign policy interests of the United States in maintaining good\nrelations with the country. Other countries ordinarily would prefer not to have\npotential terrorists sent to their shores without adequate warning. Finally, if\nenough further information had been developed concerning the alien, a different\ncourse of action might have been taken with respect to him, such as criminal\nprosecution or detention as an enemy combatant.\nThese circumstances also raised the possibility that significant information\nmight be developed concerning the alien at or near the end of the 90-day period.\nAs a result, if it were lawful to do so, the Attorney General might have wanted to\ntake more than 90 days to execute the removal order and thus to detain the alien\nbeyond the 90-day removal period.\nII.\nWhether the Attorney General is required to effect an alien\xe2\x80\x99s removal as quickly\nas possible within the 90-day removal period established by section 241(a)(1)(A), 8\nU.S.C. \xc2\xa7 1231(a)(1)(A), is a question of statutory interpretation. In determining the\nmeaning of a statute, we begin by examining its text. TVA v. Hill, 437 U.S. 153, 184\nn.29 (1978). \xe2\x80\x9c[W]e begin with the understanding that Congress \xe2\x80\x98says in a statute\nwhat it means and means in a statute what it says there.\xe2\x80\x99\xe2\x80\x9d Hartford Underwriters Ins.\nCo. v. Union Planters Bank, 530 U.S. 1, 6 (2000) (quoting Conn. Nat\xe2\x80\x99l Bank v.\nGermain, 503 U.S. 249, 254 (1992)). Section 241(a)(1)(A) of the INA states that\n\xe2\x80\x9c[e]xcept as otherwise provided in this section, when an alien is ordered removed,\nthe Attorney General shall remove the alien from the United States within a period\nof 90 days (in this section referred to as the \xe2\x80\x98removal period\xe2\x80\x99).\xe2\x80\x9d Section 241(a)(2)\nprovides that \xe2\x80\x9c[d]uring the removal period, the Attorney General shall detain the\nalien.\xe2\x80\x9d The meaning of the statute is plain on its face: the Attorney General is\ngranted a full 90 days after an alien has been ordered removed to effect the alien\xe2\x80\x99s\nremoval. During that period, the Attorney General is to detain the alien. The statute\ndoes not impose a duty on the Attorney General to remove aliens as quickly as\npossible within the 90-day removal period, nor does it purport to prescribe the\nreasons for which the Attorney General might decide to act more quickly or more\nslowly in effectuating a particular removal within the 90-day period.\nWhere, as here, the language of a statute is clear, there is no need to resort to\nlegislative history to elucidate the meaning of the text. See, e.g., Hill, 437 U.S. at\n\n60\n\n\x0cLimitations on the Detention Authority of the INS\n\n184 n.29. Nevertheless, we note that the legislative history here is consistent with\nthe reading of the plain text given above\xe2\x80\x94it confirms that Congress intended to\ngive the Attorney General a full 90 days as a reasonable period of time within\nwhich to effect an alien\xe2\x80\x99s removal. The predecessor provision to the current\nsection 241(a)(1) appeared at 8 U.S.C. \xc2\xa7 1252(c) (1994), and provided that:\nWhen a final order of deportation under administrative processes is\nmade against any alien, the Attorney General shall have a period of\nsix months from the date of such order, or, if judicial review is had,\nthen from the date of the final order of the court, within which to effect the alien\xe2\x80\x99s departure from the United States . . . . Any court of\ncompetent jurisdiction shall have authority to review or revise any\ndetermination of the Attorney General concerning detention, release\non bond, or other release during such six-month period upon a conclusive showing in habeas corpus proceedings that the Attorney\nGeneral is not proceeding with such reasonable dispatch as may be\nwarranted by the particular facts and circumstances in the case of any\nalien to effect such alien\xe2\x80\x99s departure from the United States within\nsuch six-month period.\nWhen Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\xe2\x80\x9cIIRIRA\xe2\x80\x9d), Pub. L. No. 104-208, 110 Stat. 3009-546, it shortened the removal period from six months to 90 days and eliminated any reference\nfrom the INA to a requirement that the Attorney General proceed with \xe2\x80\x9creasonable\ndispatch\xe2\x80\x9d in effecting an alien\xe2\x80\x99s deportation. Congress seems to have viewed its\nnewly-established 90-day time frame as a per se reasonable period of time in\nwhich to effect an alien\xe2\x80\x99s deportation, rendering judicial inquiry into the dispatch\nwith which the Attorney General performed the duty unnecessary. Neither the text\nof the statute nor its legislative history provides any reason to believe that\nCongress intended to impose on the Attorney General an implicit requirement that\nhe remove aliens from the country as quickly as possible within the 90-day\nremoval period.\nIt might be argued that the plain-text reading outlined above raises constitutional issues that require a narrowing construction of the statute to limit the Attorney\nGeneral\xe2\x80\x99s authority to use the full 90-day period for effecting removal. It is settled,\nof course, that where there are two or more plausible constructions of a statute, a\nconstruction that raises serious constitutional concerns should be avoided. See,\ne.g., Crowell v. Benson, 285 U.S. 22, 62 (1932). There are two arguments that\nmight be raised for a constitutional narrowing construction here.\nFirst, in light of the Supreme Court\xe2\x80\x99s decision in Zadvydas, it might be claimed\nthat the government is under an obligation, even within the 90-day statutory\nperiod, to act with reasonable dispatch to remove the alien as quickly as possible.\nThe claim would be, in other words, that it would be unconstitutional for Congress\n\n61\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nto grant the Attorney General 90 days in which to effect an alien\xe2\x80\x99s removal\nwithout any obligation that he act quickly within those 90 days. We reject this\nview and conclude that the Constitution imposes no obstacle to such a grant of\nauthority.\nSecond, also in light of the decision in Zadvydas, it might be argued that, if it\nbecomes clear at a point during the removal period that an alien can be removed,\nthe Constitution imposes some constraints on the purposes for which removal may\nnevertheless be delayed (and detention continued) until later in the 90-day period.\nThe Zadvydas Court explained that detention under the INA must be related to the\npurpose for which detention is authorized\xe2\x80\x94securing the alien\xe2\x80\x99s removal. It thus\nmight be argued that an express decision to delay an alien\xe2\x80\x99s removal until the end\nof the 90-day period must be based upon some purpose related to the proper\nexecution of the immigration laws. As explained below, we conclude that the\nConstitution may require that the statute be read to include such a limitation. We\nneed not definitively resolve the hypothetical question whether removal could be\ndelayed for a reason wholly unrelated to executing the immigration laws, however,\nbecause in the instant case multiple bases existed for delaying the removal of the\nalien in question that were directly related to the broad considerations the Attorney\nGeneral is charged with taking into account in enforcing the immigration laws.1\nA.\nIt is doubtful that the terms of section 241(a)(1)(A) could plausibly be construed to include a reasonable-dispatch requirement, particularly in light of\nCongress\xe2\x80\x99s explicit deletion of any such requirement from the statute when it\nenacted the IIRIRA in 1996. Cf. Salinas v. United States, 522 U.S. 52, 60 (1997)\n(principle of constitutional avoidance does not permit pressing statutory construction \xe2\x80\x9cto the point of disingenuous evasion\xe2\x80\x9d). We need not resolve that particular\nissue, however, because reading the statute not to include a reasonable-dispatch\nrequirement\xe2\x80\x94which, as we have outlined above, is the best reading of the text\xe2\x80\x94\ndoes not raise any serious constitutional questions.\nIn Zadvydas, the Supreme Court held that the Constitution required reading an\nimplicit limitation into section 241(a)(6) of the INA, 8 U.S.C. \xc2\xa7 1231(a)(6),\nrestricting the detention of an alien beyond the 90-day removal period \xe2\x80\x9cto a period\nreasonably necessary to bring about that alien\xe2\x80\x99s removal from the United States.\xe2\x80\x9d\n533 U.S. at 689. The Court read this limitation into the statute because, in its view,\n\xe2\x80\x9c[a] serious constitutional problem [would arise] out of a statute that . . . permits\nan indefinite, perhaps permanent, deprivation of human liberty without any\n\n1\nOf course, it is also implicit in the granting of any authority to an executive officer that it may not\nbe exercised in a manner that is expressly constitutionally proscribed. Thus, the Attorney General could\nnot, for example, delay the removal of an alien solely as a mechanism for imposing punishment on the\nalien. See, e.g., Wong Wing v. United States, 163 U.S. 228, 238 (1896).\n\n62\n\n\x0cLimitations on the Detention Authority of the INS\n\n[procedural] protection.\xe2\x80\x9d Id. at 692. Thus, the Court ruled that if a habeas court\ndetermines that \xe2\x80\x9cremoval is not reasonably foreseeable [during post-removalperiod detention], the court should hold continued detention unreasonable and no\nlonger authorized by statute.\xe2\x80\x9d Id. at 699\xe2\x80\x93700.\nIt could be argued that a constitutional limitation restricting the government\xe2\x80\x99s\nauthority to detain an alien to a period \xe2\x80\x9creasonably necessary to bring about that\nalien\xe2\x80\x99s removal\xe2\x80\x9d necessarily entails an obligation that the government proceed\nwith reasonable dispatch in effecting removal and remove the alien as soon as\nreasonably practicable to do so. Even if that were a valid interpretation of the\nlimitation imposed by Zadvydas on post-removal-period detention under section\n241(a)(6)\xe2\x80\x94an issue that we need not definitively decide in this portion of our\nanalysis\xe2\x80\x94that limitation is inapplicable to detention within the 90-day removal\nperiod established by section 241(a)(1)(A). The constitutional concerns that\nmotivated the Zadvydas Court simply do not arise in the context of detention\nwithin the removal period.\nIn Zadvydas, the Court made clear that the central concern informing its constitutional analysis was that the detention it was addressing was \xe2\x80\x9cnot limited, but\npotentially permanent.\xe2\x80\x9d 533 U.S. at 691. See also id. at 692 (stressing the \xe2\x80\x9cindefinite, perhaps permanent deprivation of human liberty\xe2\x80\x9d at stake). The 90-day\nremoval period, by contrast, is of a fixed and relatively short duration. Indeed, the\nZadvydas Court expressly distinguished detention during the 90-day removal\nperiod from the detention it was addressing on precisely this ground, stating that\n\xe2\x80\x9cimportantly, post-removal-period detention, unlike detention pending a determination of removability or during the subsequent 90-day removal period, has no\nobvious termination point.\xe2\x80\x9d Id. at 697. At least one lower court has ruled that\nZadvydas is inapplicable to the 90-day removal period on precisely these grounds.\nShehata v. Ashcroft, No. 02 CIV. 2490 (LMM), 2002 WL 538845, at *2 (S.D.N.Y.\nApr. 11) (\xe2\x80\x9cHere, on the other hand, the 90 day period is quite limited in time, and\nserves a rational purpose, to allow INS to effect removal of a person already\ndetermined to be removable.\xe2\x80\x9d); see also Badio v. United States, 172 F. Supp. 2d\n1200, 1205 (D. Minn. 2001) (\xe2\x80\x9cZadvydas does not apply to petitioner\xe2\x80\x99s claim\nbecause pre-removal-order proceedings do have a termination point.\xe2\x80\x9d).\nThe relatively short detention period under section 241(a)(1)(A) makes a critical difference because the holding in Zadvydas rests upon considerations of\nsubstantive due process. Although the Court did not expressly label its decision as\none based on \xe2\x80\x9csubstantive due process,\xe2\x80\x9d it made it clear that this was the foundation of its reasoning as it explicitly invoked the Fifth Amendment\xe2\x80\x99s Due Process\nClause, see Zadvydas, 533 U.S. at 690, and at the same time disavowed any\nconcern with procedural deficiencies:\n[W]e believe that an alien\xe2\x80\x99s liberty interest is, at the least, strong\nenough to raise a serious question as to whether, irrespective of the\n\n63\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nprocedures used, the Constitution permits detention that is indefinite\nand potentially permanent.\nId. at 696 (citation omitted) (emphasis added). The grounding of the decision in\nsubstantive due process is important because, as a general rule, government\nconduct violates substantive due process constraints only when it is so extreme\nand intrusive that it can be said to \xe2\x80\x9cshock the conscience.\xe2\x80\x9d Rochin v. California,\n342 U.S. 165, 172 (1952). The prospect of \xe2\x80\x9cindefinite and potentially permanent\xe2\x80\x9d\ndetention may shock the conscience of the courts, Zadvydas, 533 U.S. at 696, but\ndetention for a limited period of 90 days clearly does not. In fact, several courts\ncalled upon to review early immigration statutes that did not specify a fixed period\nfor the government\xe2\x80\x99s detention authority settled upon similar time frames in\nspecifying the permissible length of a \xe2\x80\x9creasonable\xe2\x80\x9d detention. See, e.g., United\nStates ex rel. Janavaris v. Nicolls, 47 F. Supp. 201, 202 (D. Mass. 1942) (\xe2\x80\x9cThe\nperiod of time which judges have found to be appropriate in peace-time varies\nfrom one month . . . to four months.\xe2\x80\x9d); United States ex rel. Ross v. Wallis, 279 F.\n401, 404 (2d Cir. 1922) (holding that four months is a reasonable time); Caranica\nv. Nagle, 28 F.2d 955, 957 (9th Cir. 1928) (holding that two months is a reasonable time); Saksagansky v. Weedin, 53 F.2d 13, 16 (9th Cir. 1931) (authorizing the\ndetention of an alien already held for five months for an additional 30 days).\nMore important, the Zadvydas Court expressly held that the detention of an\nalien for a period of up to six months is presumptively constitutionally reasonable\nand does not violate substantive due process constraints. See Zadvydas, 533 U.S.\nat 701. If detention for a period of six months to effect removal is presumptively\nreasonable and does not violate an alien\xe2\x80\x99s substantive due process rights, it follows\na fortiori that detention during the shorter 90-day removal period cannot be\nconstitutionally problematic. See Borrero v. Aljets, 178 F. Supp. 2d 1034, 1039 (D.\nMinn. 2001) (\xe2\x80\x9cZadvydas confirms that a legally admitted alien can always be\ndetained during the 90-day \xe2\x80\x98removal period\xe2\x80\x99 contemplated by the statute. But after\nthat, the Court held, the alien can be held for only a \xe2\x80\x98reasonable period,\xe2\x80\x99 which is\npresumed to be six months\xe2\x80\x9d), rev\xe2\x80\x99d on other grounds, 325 F.3d 1003 (8th Cir.\n2003). Where conduct that \xe2\x80\x9cshocks the conscience\xe2\x80\x9d is the ultimate touchstone for\nconstitutional analysis, if six months\xe2\x80\x99 detention is reasonable, detention for 90\ndays is simply below the threshold for substantive due process constitutional\nconcerns. Indeed, Zadvydas makes the constitutionality of detention during the 90day removal period even clearer than this, because the six-month \xe2\x80\x9cpresumptively\nreasonable\xe2\x80\x9d period established by that decision may very well not begin to run\nuntil after an alien has already been detained for the 90-day removal period.2\n2\n\nZadvydas does not make it clear whether the six-month \xe2\x80\x9cpresumptively reasonable\xe2\x80\x9d period begins\nat the end of, or encompasses, the 90-day removal period. Zadvydas, 533 U.S. at 700\xe2\x80\x9301. The lower\ncourts appear to be split on the issue. Compare Borrero v. Aljets, 178 F. Supp. 2d 1034, 1040\xe2\x80\x9341 (D.\nMinn. 2001) (\xe2\x80\x9cAs interpreted by the Supreme Court in Zadvydas, \xc2\xa7 1231(a)(6) authorizes the INS to\ndetain aliens for six months after the expiration of the 90-day removal period.\xe2\x80\x9d) (emphasis added), with\n\n64\n\n\x0cLimitations on the Detention Authority of the INS\n\nSubstantive due process constraints thus do not afford any basis for reading a\n\xe2\x80\x9creasonable dispatch\xe2\x80\x9d requirement into section 241(a)(1)(A).\nIn addition, because this particular case involves removal of an alien with\ndemonstrated ties to members of a terrorist organization with which the United\nStates is currently at war, it is even plainer that detention for 90 days without any\nobligation on the government to act quickly cannot be a concern of constitutional\ndimensions under the reasoning in Zadvydas. In outlining the constitutional\nproblems with potentially indefinite detention, the Supreme Court made it express\nthat the principles it was applying might very well not apply to the government\xe2\x80\x99s\nactions dealing with aliens suspected of involvement in terrorism. The Court\ndistinguished that context, saying that \xe2\x80\x9cwe [do not] consider terrorism or other\nspecial circumstances where special arguments might be made for forms of\npreventive detention and for heightened deference to the judgments of the political\nbranches with respect to matters of national security.\xe2\x80\x9d 533 U.S. at 696. Indeed, the\nCourt implied that the government\xe2\x80\x99s interest in preventing terrorism is sufficiently\ngreat that detention measures specifically targeting \xe2\x80\x9csuspected terrorists\xe2\x80\x9d are\ndeserving of heightened judicial deference. See id. at 691. Thus, the Court\nsuggested that, in the context of an alien suspected of involvement in terrorism,\ndetention might well be justified beyond the six-month period of detention that the\nCourt deemed presumptively constitutionally reasonable for any case. As a result,\nwhereas here, investigation to determine whether an alien is connected to a\nterrorist organization is part of the justification for prolonging detention and the\ndetention remains confined within the 90-day removal period, there can be no\nbasis for concluding that substantive due process constraints are implicated.\nAlthough we conclude, based on the reasoning of Zadvydas, that the Constitution does not require that a \xe2\x80\x9creasonable dispatch\xe2\x80\x9d obligation be read into section\n241(a)(1)(A), one line of lower court decisions regarding the substantive due\nprocess implications of prolonged detention should be briefly distinguished.\nCertain lower courts addressing pretrial detention in the criminal justice system\nhave held that lengthy detention may violate substantive due process constraints\nunder certain circumstances and that evaluating a claimed violation \xe2\x80\x9crequires\nassessment on a case-by-case basis, since due process does not necessarily set a\nbright line limit for length of pretrial confinement.\xe2\x80\x9d United States v. Gonzales\nClaudio, 806 F.2d 334, 340 (2d Cir. 1986). See also United States v. Accetturo,\n783 F.2d 382, 388 (3d Cir. 1986). It might be thought that those cases call into\nquestion our blanket conclusion that detaining aliens for a period of 90 days does\nMalainak v. INS, No. 3-01-CV-1989-P, 2002 WL 220061, at *2 (N.D. Tex. Feb. 11, 2002) (\xe2\x80\x9cthe Court\nopined that a presumptively reasonable period of detention was between the ninety days provided for\nby the IIRIRA and six months\xe2\x80\x9d) (emphasis added). In November 2001, the Department issued\nregulations reflecting an assumption that the presumptively reasonable six-month period from\nZadvydas includes the 90-day removal period. 8 C.F.R. \xc2\xa7 241.13(b)(2)(ii) (2002). The choice to treat\nthe six-month period in that fashion in the regulation, of course, is not definitive on constitutional\nrequirements for measuring the six-month period.\n\n65\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nnot violate substantive due process guarantees, even where the Attorney General\nfails to act with reasonable dispatch. The purpose for the case-by-case inquiry\nengaged in by the courts in those cases, however, is to examine factors other than\nlength of confinement that the courts deemed relevant to the substantive due\nprocess inquiry\xe2\x80\x94such as which party is primarily responsible for any delays. See,\ne.g., Gonzales Claudio, 806 F.2d at 340 (\xe2\x80\x9cwe also consider the extent to which the\nprosecution bears responsibility for the delay that has ensued\xe2\x80\x9d). If the factor of\nlength of confinement is viewed in isolation, applicable case law makes it crystal\nclear that a 90-day detention period is not constitutionally objectionable, and that\nno case-by-case inquiry into the length of confinement is therefore required. As we\nhave already mentioned, Zadvydas explicitly states that civil detention for a period\nof six months in the context of deportation is presumptively constitutionally\nreasonable, see 533 U.S. at 701, and even cases examining the constitutionality of\nprolonged pretrial detention have typically begun their analysis by presuming that\nthe 90-day period established by the Speedy Trial Act is a reasonable detention\nperiod. See, e.g., Gonzales Claudio, 806 F.2d at 340\xe2\x80\x9341 (citing 18 U.S.C.\n\xc2\xa7 3164(b)).\nMoreover, precedents relating to preventive pretrial detention in criminal cases\nare not directly applicable to the context of detention incident to removal. In\ndistinguishing its own pretrial detention precedent from the context of immigration\nproceedings, the Second Circuit noted that \xe2\x80\x9ca deportation proceeding is not a\ncriminal proceeding . . . and the full trappings of legal protections that are\naccorded to criminal defendants are not necessarily constitutionally required in\ndeportation proceedings.\xe2\x80\x9d Dor v. INS, 891 F.2d 997, 1003 (2d Cir. 1989). In a later\ndecision, the Second Circuit elaborated on this distinction:\nIt is axiomatic, however, that an alien\xe2\x80\x99s right to be at liberty during\nthe course of deportation proceedings is circumscribed by considerations of the national interest. Control over matters of immigration\nand naturalization is the \xe2\x80\x9cinherent and inalienable right of every sovereign and independent nation.\xe2\x80\x9d Fong Yue Ting v. United States, 149\nU.S. 698, 711, 13 S.Ct. 1016, 1021, 37 L.Ed. 905 (1893). . . . In exercising its broad power over immigration and naturalization, \xe2\x80\x9cCongress regularly makes rules that would be unacceptable if applied to\ncitizens.\xe2\x80\x9d Mathews, 426 U.S. at 80, 96 S.Ct. at 1891. Governmental\nconduct that may be considered \xe2\x80\x9cshocking\xe2\x80\x9d when it serves to deprive\nthe life, liberty or property of a citizen may not be unconstitutional\nwhen directed at an alien.\nDoherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991) (citations omitted), cert.\ndismissed, 503 U.S. 901 (1992). Thus, the Second Circuit considers the detention\nof an alien prior to removal to be constitutionally permissible unless the alien can\nshow that \xe2\x80\x9chis continuing detention was the result of an \xe2\x80\x98invidious purpose, bad\n\n66\n\n\x0cLimitations on the Detention Authority of the INS\n\nfaith or arbitrariness.\xe2\x80\x99\xe2\x80\x9d Ncube v. INS Dist. Dirs. & Agents, No. 98 Civ. 0282 HB\nAJP, 1998 WL 842349, at *16 (S.D.N.Y. Dec. 2), citing Doherty, 943 F.2d at 212.\nEspecially where the Supreme Court has already established that detention of an\nalien for a period of six months is presumptively constitutionally reasonable,\ndetention for a period of 90 days in itself cannot possibly satisfy that exacting\nstandard for establishing a violation. Thus, lower court decisions that have\nexamined the substantive due process implications of pretrial detention do not call\ninto question our conclusion that the Constitution does not require that the\nAttorney General act with reasonable dispatch during the 90-day removal period.\nFinally, we note that in January 2002, the INS General Counsel\xe2\x80\x99s Office issued\nan opinion in which it advised that, during the 90-day removal period, the INS is\nconstitutionally required to \xe2\x80\x9cproceed[] with reasonable dispatch to arrange\nremoval.\xe2\x80\x9d Memorandum for Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, from Dea Carpenter, Deputy General Counsel,\nRe: Authority to Detain During the 90-Day Removal Period at 1 (Jan. 28, 2002)\n(\xe2\x80\x9cINS Memorandum\xe2\x80\x9d). Based on the analysis outlined above, we disagree with the\nINS\xe2\x80\x99s conclusion.\nThe INS derived the reasonable-dispatch requirement from language in\nZadvydas construing section 241(a)(6) and stating that \xe2\x80\x9cthe statute, read in light of\nthe Constitution\xe2\x80\x99s demands, limits an alien\xe2\x80\x99s post-removal-period detention to a\nperiod reasonably necessary to bring about that alien\xe2\x80\x99s removal from the United\nStates.\xe2\x80\x9d INS Memorandum at 2, citing Zadvydas, 533 U.S. at 689. The INS\nreasoned that, \xe2\x80\x9cwhile the Zadvydas opinion is technically limited to post-removal\nperiod detention, and while the statute provides authority to detain an alien with a\nfinal order of removal for up to the 90-day removal period, the INS should not\ncontinue to detain an alien during the removal period beyond the point at which\nthe alien could be removed except to the extent that the INS is taking necessary\nactions to process the alien for removal.\xe2\x80\x9d INS Memorandum at 3. In our view, this\nconclusion was in error because it mistakenly applies the limitations on postremoval period detention under section 241(a)(6) to removal-period detention\nunder section 241(a)(1)(A). As explained above, neither the plain language of\nsection 241(a)(1)(A) nor its legislative history allows any inference that Congress\nintended to impose a reasonable-dispatch obligation on the INS during the 90-day\nremoval period. Moreover, the constitutional concerns that impelled the Supreme\nCourt to read such an obligation into section 241(a)(6) simply are not applicable to\ndetention during the 90-day removal period. In Zadvydas, the Supreme Court\nreasoned that because indefinite civil detention of lawfully admitted aliens would\nraise serious constitutional questions, detention must be limited to a period\nreasonably necessary to effect removal. The Zadvydas Court expressly distinguished the 90-day removal period, however, on the ground that it has a defined\ntermination point. 533 U.S. at 697. Lower courts, accordingly, have held that\nZadvydas\xe2\x80\x99s constitutional reasoning is inapplicable to detention during the\nremoval period. See Shehata, 2002 WL 538845, at *2. In short, we disagree with\n\n67\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nthe INS\xe2\x80\x99s reading of Zadvydas, and reaffirm our conclusion that the Constitution\ndoes not impose a reasonable-dispatch obligation during the 90-day removal\nperiod.3\nB.\nThe second argument that might be raised for a constitutionally based narrowing construction of section 241(a)(1)(A) would rest on the theory that, once all of\nthe mechanical steps that are necessary to effectuate an alien\xe2\x80\x99s removal have been\ntaken, the Constitution imposes some limitations on the purposes for which it is\npermissible to further delay the alien\xe2\x80\x99s removal while keeping the alien in\ndetention. In Zadvydas, the Supreme Court explained that the reasonableness of an\nalien\xe2\x80\x99s detention must be measured \xe2\x80\x9cprimarily in terms of the statute\xe2\x80\x99s basic\npurpose,\xe2\x80\x9d which the Court identified as securing the alien\xe2\x80\x99s removal. Zadvydas,\n533 U.S. at 699. Similarly, in the wake of Zadvydas, the Third Circuit has stated\nthat \xe2\x80\x9c[t]he requirements of substantive due process are not met unless there is a\nclose nexus between the government\xe2\x80\x99s goals and the deprivation of the interest in\nquestion.\xe2\x80\x9d Patel v. Zemski, 275 F.3d 299, 311 (3d Cir. 2001). Thus, the INS has\ntaken the position, both in the INS Memorandum and in some instances of prior\nlitigation, that it does not have the power to detain aliens for any purpose other\n\n3\nThe INS Memorandum also cites at length several decisions addressing the impact of INS detention on triggering the Speedy Trial Act where it appears that the INS has held an alien solely for the\npurpose of allowing a criminal investigation (into the same conduct that forms the basis for deportation) to proceed. See INS Memorandum at 3\xe2\x80\x934. It is unclear to what extent, if at all, the INS intends to\nrely on these cases for the proposition that the INS must act with reasonable dispatch. Instead, the INS\nrelies on them primarily for the proposition that the INS can detain an alien solely for purposes of\neffecting removal, an issue we address below. See infra Part II.B. In any event, the Speedy Trial Act\ncases provide no support for any general obligation on the INS to act with dispatch. Rather, they\nestablish solely that, when an alien is prosecuted for the same conduct that formed the basis for the\nimmigration violation on which he was held and when the INS has delayed deportation (and prolonged\ndetention) solely to permit the criminal investigation to proceed, the INS detention may trigger the\ndeadlines of the Speedy Trial Act. That, in turn, may lead to a Speedy Trial Act violation that may be\nraised in the criminal trial to seek dismissal of the indictment. See, e.g., United States v. GarciaMartinez, 254 F.3d 16 (1st Cir. 2001); see also United States v. De La Pena-Juarez, 214 F.3d 594,\n598\xe2\x80\x9399 (5th Cir.), cert. denied, 531 U.S. 983 (2000), and cert. denied, 531 U.S. 1026 (2000). That\nconsequence for the criminal trial does not mean by any stretch that the INS lacks power to detain the\nalien for the full 90 days prior to removal or that the INS has a general obligation to act with dispatch\nduring that time. It is true that, in explaining how INS detention solely for purposes of criminal\ninvestigation may trigger the Speedy Trial Act, one district court stated in dicta that \xe2\x80\x9c[i]n essence, the\nINS has an obligation to act with all deliberate speed to remove from the United States a detained alien\nwho has been finally determined to be deportable.\xe2\x80\x9d United States v. Restrepo, 59 F. Supp. 2d 133, 138\n(D. Mass. 1999). In context, it is clear that all the court was indicating was that, when the sole purpose\nof detention is providing time for criminal investigation, there may be consequences under the Speedy\nTrial Act for the prosecution. To the extent that this dictum might be construed to suggest anything\nfurther concerning a general obligation to act with dispatch, there is no support in the court\xe2\x80\x99s Speedy\nTrial Act analysis for such a conclusion and it is not a correct statement of the law.\n\n68\n\n\x0cLimitations on the Detention Authority of the INS\n\nthan the effectuation of removal.4 See INS Memorandum at 1; United States v.\nRestrepo, 59 F. Supp. 2d 133, 138 (D. Mass. 1999).5 Even before Zadvydas, in\nfact, several district courts had expressed the view that, once it has become\napparent that an alien cannot be deported, his detention can no longer be said to be\nfor purposes of effecting his removal. See United States ex rel. Blankenstein v.\nShaughnessy, 117 F. Supp. 699, 703\xe2\x80\x9304 (S.D.N.Y. 1953) (\xe2\x80\x9ccourts have the power\nto release on habeas corpus an alien held for deportation on a showing . . . that the\ndetention cannot in truth be said to be for deportation\xe2\x80\x9d); United States ex rel.\nKusman v. INS, 117 F. Supp. 541, 544\xe2\x80\x9345 (S.D.N.Y. 1953); Rodriguez v.\nMcElroy, 53 F. Supp. 2d 587, 591 n.6 (S.D.N.Y. 1999) (\xe2\x80\x9c[d]etention is intended\nfor the sole purpose of effecting deportation\xe2\x80\x9d); Fernandez v. Wilkinson, 505 F.\nSupp. 787, 793 (D. Kan. 1980), aff\xe2\x80\x99d, 654 F.2d 1382 (10th Cir. 1981); Williams v.\nINS, No. 01-043 ML, 2001 WL 1136099, at *4 (D.R.I. Aug. 7, 2001).\nThere is support in the cases for the general principle suggested by the INS to\nthis extent: the detention of an alien\xe2\x80\x94perhaps even during the 90-day removal\nperiod\xe2\x80\x94likely must be related to enforcing the immigration laws and properly\neffecting the alien\xe2\x80\x99s removal in accordance with the nation\xe2\x80\x99s immigration laws and\npolicies. Thus, in the abstract, it might raise difficult constitutional questions if the\nAttorney General were expressly to delay the removal of an alien (and thereby\nprolong his detention) solely for a purpose that was\xe2\x80\x94by hypothesis\xe2\x80\x94entirely\nunrelated to any legitimate interest in the enforcement of the immigration laws.6\nWe need not definitively decide whether such a hypothetical scenario would raise\nconstitutional infirmities, however, because in the present case there are reasons\ndirectly related to the enforcement of the immigration laws that justify any delay\nin the alien\xe2\x80\x99s removal.7 Of course, acknowledging (as we do for purposes of\n\n4\n\nIn coming to this conclusion, the INS relies heavily on several cases holding that, when aliens\ndetained by the INS are held solely for the purpose of facilitating a criminal investigation, the detention\ntriggers the provisions of the Speedy Trial Act. See INS Memorandum at 3\xe2\x80\x934. As noted above,\nhowever, those cases merely interpret the Speedy Trial Act and the guarantees it provides a defendant\nin the context of his criminal case. It might well be the case that, if the INS were to hold an alien solely\nfor the purpose of permitting a criminal investigation to proceed, there would be a Speedy Trial Act\nproblem in the criminal prosecution. That does not mean, however, that the INS lacked legal authority\nto detain the alien while the criminal investigation proceeded. We therefore do not view those cases as\nuseful for determining the scope of the INS\xe2\x80\x99s authority under section 241(a)(1) of the INA to delay\nremoval of an alien during the 90-day removal period.\n5\nSee also INS Memorandum at 5 (\xe2\x80\x9cWhile nothing in the language of the statute requires that the\nINS expedite an alien\xe2\x80\x99s removal during the 90-day removal period, or that the INS remove an alien at\nthe very earliest point at which travel arrangements can be made . . . detention beyond that point must\nbe related to removing the alien.\xe2\x80\x9d).\n6\nOf course, as noted above, see supra note 1, it is also clear that the INS could not prolong an\nalien\xe2\x80\x99s detention for a constitutionally impermissible purpose\n7\nEven if other motivations exist in addition to the need to develop information relevant to decisions\nin the deportation process, to our knowledge it has never been suggested that the existence of additional\ngovernmental motivations can undermine or invalidate a detention that is supported by a lawful\npurpose. See, e.g., United States ex rel. Zapp v. INS, 120 F.2d 762, 764 (2d Cir. 1941) (ongoing\n\n69\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nanalysis here) that the reason for an alien\xe2\x80\x99s detention must be related to legitimate\ninterests in enforcing the immigration laws does not in itself provide much\nconcrete guidance for determining precisely what activities meet that test. Rather,\nit merely frames the next step of the inquiry. Here, we cannot purport by any\nmeans to provide a comprehensive assessment of all the tasks or all the inquiries\nthat may meet that standard in the myriad scenarios that may arise. Given the\nnumerous broad objectives that underlie the nation\xe2\x80\x99s regulation of immigration\xe2\x80\x94\nmany of which relate to protecting our citizens from harm at the hands of aliens\xe2\x80\x94\nthere are potentially a vast array of interests legitimately related to policing\nimmigration that may have a bearing on the Attorney General\xe2\x80\x99s decision (effected\nthrough the INS) concerning exactly when during the removal period an alien\nshould be removed.8 For present purposes, we limit our discussion to the interests\nrelevant in this case.\nAt a bare minimum, of course, administrative tasks such as making transportation arrangements, securing travel documents, communicating with domestic and\nforeign law enforcement agencies, and making internal administrative arrangements for escorts and security are all legitimately related to removal. Accord INS\nMemorandum at 4.\nIn our view, moreover, there is a substantially broader range of immigrationrelated considerations that the Attorney General is permitted to take into account\nin effecting the removal of an alien, and thus deciding whether and exactly when\nto remove an alien. For example, as the Supreme Court acknowledged in\nZadvydas, the immigration policy of the United States is inextricably intertwined\nwith complex and important issues of foreign policy. Zadvydas, 533 U.S. at 700.\nSee also Harisiades v. Shaughnessy, 342 U.S. 580, 588\xe2\x80\x9389 (1952) (\xe2\x80\x9cIt is pertinent\nto observe that any policy toward aliens is vitally and intricately interwoven with\ncontemporaneous policies in regard to the conduct of foreign relations, the war\npower, and the maintenance of a republican form of government.\xe2\x80\x9d). Every removal\nof an alien necessarily involves an act affecting foreign policy because it requires\nsending the alien to another country. In some cases, the foreign policy implications\ncriminal investigations do not affect the INS\xe2\x80\x99s removal authority); cf. Whren v. United States, 517 U.S.\n806, 811\xe2\x80\x9313 (1996) (holding that subjective motive of officers for traffic stop is irrelevant where stop is\nsupported by probable cause and thus rejecting \xe2\x80\x9cany argument that the constitutional reasonableness of\ntraffic stops depends on the actual motivations of the individual officers involved\xe2\x80\x9d); Reno v. Am.-Arab\nAnti-Discrim. Comm., 525 U.S. 471, 491 (1999) (explaining that where an alien\xe2\x80\x99s presence in this\ncountry is a violation of the immigration laws, he may be deported and the possible existence of\nadditional reasons for the government\xe2\x80\x99s focus of enforcement efforts on him is irrelevant; indeed, the\n\xe2\x80\x9cExecutive should not have to disclose its \xe2\x80\x98real\xe2\x80\x99 reasons for deeming nationals of a particular country a\nspecial threat\xe2\x80\x9d).\n8\nFor example, 8 U.S.C. \xc2\xa7 1231(c)(2)(A)(ii) makes it express that the Attorney General may stay the\nremoval of an alien stopped upon arriving at a port of entry (who otherwise would be removed\n\xe2\x80\x9cimmediately,\xe2\x80\x9d id. \xc2\xa7 1231(c)(1)) if the \xe2\x80\x9calien is needed to testify in [a criminal] prosecution.\xe2\x80\x9d A similar\nneed for an alien\xe2\x80\x99s presence in a criminal or civil trial may well be a legitimate concern justifying a\ndelay in removal. We need not decide such questions here.\n\n70\n\n\x0cLimitations on the Detention Authority of the INS\n\nof that act may be significant. As the Supreme Court has recognized, enforcement\npriorities in the immigration context may reflect \xe2\x80\x9cforeign-policy objectives\xe2\x80\x9d and it\nis even possible that the Executive might wish \xe2\x80\x9cto antagonize a particular foreign\ncountry by focusing on that country\xe2\x80\x99s nationals.\xe2\x80\x9d Reno v. Am.-Arab Anti-Discrim.\nComm., 525 U.S. 471, 491 (1999). See also Mathews v. Diaz, 426 U.S. 67, 81\n(1976) (noting that decisions relating to immigration \xe2\x80\x9cmay implicate our relations\nwith foreign powers\xe2\x80\x9d); cf. Fong Yue Ting v. United States, 149 U.S. 698, 705\n(1893) (grounding federal control over ingress and egress of aliens in part in\nfederal government\xe2\x80\x99s \xe2\x80\x9centire control of international relations\xe2\x80\x9d). More importantly\nhere, releasing criminal or terrorist aliens into another country without providing\nadequate warning to the appropriate law enforcement or other officials in the\nreceiving country can have adverse consequences for the security of that country,\nwhich can lead to the souring of diplomatic relationships or other negative results\nfor foreign policy. Similarly, releasing aliens from United States custody who are\nsuspected of involvement with terrorism can have a profound impact on our own\nnational security. National security is also a concern inherently relevant to policing\nthe flow of persons across our borders under the immigration laws. See generally\nCarlson v. Landon, 342 U.S. 524, 534\xe2\x80\x9336 (1952).\nIt is not only common sense that makes clear the inherent relationship between\nenforcing the immigration laws and considerations of both foreign policy and\nnational security; rather, those considerations are embedded in the text of the\nimmigration laws themselves. For example, the fact that an alien\xe2\x80\x99s presence in the\nUnited States could result in \xe2\x80\x9cadverse foreign policy consequences\xe2\x80\x9d is in itself a\ngrounds for removal under the INA. See INA \xc2\xa7 237(a)(4)(C)(i), 8 U.S.C.\n\xc2\xa7 1227(a)(4)(C)(i) (2000). Similarly, in certain circumstances, the Attorney\nGeneral may block the departure of an alien from the United States when it would\nbe deemed prejudicial to national security interests to permit him to depart. See 8\nC.F.R. \xc2\xa7 215.3(b), (c) (2002).\nMore importantly here, the INA expressly gives the Attorney General authority\nin many instances to make discretionary decisions bearing upon the removal of an\nalien based on broad considerations of policy. For example, section\n241(b)(2)(C)(iv) provides that \xe2\x80\x9c[t]he Attorney General may disregard [an alien\xe2\x80\x99s\ndesignation of a country to which he would like to be removed] if the Attorney\nGeneral decides that removing the alien to the country is prejudicial to the United\nStates.\xe2\x80\x9d Similarly, section 241(b)(2)(E)(vii) provides that the Attorney General is\nnot to remove an alien to certain countries, even if they are willing to accept the\nalien, if he determines that it is \xe2\x80\x9cimpracticable\xe2\x80\x9d or \xe2\x80\x9cinadvisable.\xe2\x80\x9d By granting the\nAttorney General authority to make such determinations, Congress made it clear\nthat the broad considerations of foreign policy or national security that might\nunderlie such decisions are directly related to\xe2\x80\x94indeed, are an integral part of\xe2\x80\x94the\nenforcement of the immigration laws. Where more time is needed for the Attorney\nGeneral to receive further information bearing on such decisions, the investigation\n\n71\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nto generate such information is legitimately related to enforcing the immigration\nlaws and can justify delaying the alien\xe2\x80\x99s departure.\nThus, at a minimum, where the Attorney General has a statutorily prescribed\ndecision to make concerning the removal of an alien\xe2\x80\x94such as whether it would be\n\xe2\x80\x9cprejudicial to the United States\xe2\x80\x9d to remove him to a particular country\xe2\x80\x94\ndeveloping the information needed for the Attorney General to make that determination wisely is a task that is related to proper implementation of the immigration\nlaws. It would thus be justifiable to delay an alien\xe2\x80\x99s removal while an investigation\nto develop that information (including information about whether the alien has\nterrorist or criminal connections) is pursued.\nIn addition, even where the Attorney General does not have such an express\nstatutory determination to make, we conclude that efforts to investigate an alien\xe2\x80\x99s\nbackground to determine, for example, ties to terrorist organizations are legitimately related to the process of removal. Full information on such aspects of an\nalien\xe2\x80\x99s background may be critical for a number of purposes. It permits the United\nStates to coordinate appropriately with law enforcement officials in the receiving\ncountry to ensure that they are aware of any threats the alien might pose and might\npotentially benefit the national security interests of both the United States and the\nreceiving country by providing officials in the receiving country a basis for\narresting upon arrival an alien who poses a serious threat. Taking such steps to\ncoordinate with the receiving country is part and parcel of the proper implementation of the immigration laws. Delaying departure of an alien until later in the 90day period in order to continue pursuing such investigations into terrorist ties is\nthus entirely permissible.9 It is true that, as a purely mechanical matter, the\nphysical removal of an alien and his transportation might be arranged without\nthoroughly investigating his background and without taking the time to appropriately inform countries that may be willing to accept him about the results of our\n\n9\nWe note that the INS appears to agree in principle with the understanding we have outlined here\nconcerning the factors that are legitimately considered in effecting an alien\xe2\x80\x99s removal. In discussing\n\xe2\x80\x9ccritical aspects of the removal process,\xe2\x80\x9d the INS has stated as follows:\n\nIt is clearly a legitimate governmental interest that the INS communicate with other\nlaw enforcement agencies, both domestic and foreign, and make sure that a particular\nalien is not wanted for prosecution or needed as part of an investigation, in which case\nthe alien could be transferred into the legal custody of another law enforcement agency. In the context of the investigation into the September 11, 2001 attacks on the Pentagon and the World Trade Center, the United States and the country of removal also\nhave a legitimate interest in ensuring to the extent possible that a particular alien has\nno connection with any terrorist organization or activity.\nINS Memorandum at 4 (emphasis added). The full scope of the conclusions that the INS drew from this\nanalysis is not entirely clear. As the text above explains, we conclude that if investigations into an\nalien\xe2\x80\x99s terrorist connections are ongoing during the 90-day removal period, postponing removal until\nlater in the period in order to permit such investigations to continue is permissible. Such investigations\nare legitimately related to effectuating the removal properly under the immigration laws.\n\n72\n\n\x0cLimitations on the Detention Authority of the INS\n\ninvestigations. But there can be no question that time spent on such efforts is\nnevertheless reasonably related to the enforcement of the immigration laws.\nIII.\nYour Office has also asked us to determine whether (and under what circumstances) the Attorney General may decide to take longer than the 90-day removal\nperiod to remove an alien even where it would be logistically possible to accomplish the removal before the expiration of the 90 days. We conclude, under either\nof two alternative readings of the statute, that at least certain categories of\nremovable aliens may be held by the INS beyond the 90-day removal period, at\nleast where there are reasons for the delay that are related to carrying out the\nimmigration laws. We note, however, that under the Supreme Court\xe2\x80\x99s decision in\nZadvydas, an obligation to act with \xe2\x80\x9creasonable dispatch\xe2\x80\x9d will attach at some point\nafter the expiration of the 90-day removal period.\nA.\nSection 241(a) of the INA directs that the Attorney General \xe2\x80\x9cshall remove\xe2\x80\x9d\naliens within 90 days of the date on which they are ordered removed. INA\n\xc2\xa7 241(a)(1)(A). It also indicates, however, that section 241 elsewhere provides\nexceptions to that general rule. Id.10 Section 241(a)(6) on its face provides such an\nexception. It states that \xe2\x80\x9c[a]n alien ordered removed who is inadmissible under\nsection 212 [1182], removable under section 237(a)(1)(C), 237(a)(2), or 237(a)(4)\n[1227] or who has been determined by the Attorney General to be a risk to the\ncommunity or unlikely to comply with the order of removal, may be detained\nbeyond the removal period.\xe2\x80\x9d\nThe plain text of the provision expressly states, in language indicating a grant\nof authority, that listed classes of aliens \xe2\x80\x9cmay be detained beyond the removal\nperiod.\xe2\x80\x9d By its terms it thus grants the Attorney General the power to refrain from\nremoving an alien\xe2\x80\x94and instead to keep him in detention\xe2\x80\x94after the removal\nperiod has expired. The statute does not provide any preconditions for the exercise\nof this authority, other than that the alien must belong to one of the listed categories. Thus, in the Zadvydas litigation the United States took the position that \xe2\x80\x9cby\nusing the term \xe2\x80\x98may,\xe2\x80\x99 Congress committed to the discretion of the Attorney\nGeneral the ultimate decision whether to continue to detain such an alien and, if\nso, in what circumstances and for how long.\xe2\x80\x9d Brief for the Petitioners, Ashcroft v.\nMa, 533 U.S. 678 (2001) (No. 00-38), 2000 WL 1784982, at *22 (filed Nov. 24,\n2000).\n\n10\n\nThe provision reads: \xe2\x80\x9cExcept as otherwise provided in this section, when an alien is ordered\nremoved, the Attorney General shall remove the alien from the United States within a period of 90\ndays . . . .\xe2\x80\x9d\n\n73\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nNothing in the Supreme Court\xe2\x80\x99s decision in Zadvydas casts any doubt on the\nvalidity of the plain-text reading of section 241(a)(6) as an express authorization\nfor the Attorney General to detain\xe2\x80\x94and thus refrain from removing\xe2\x80\x94the listed\nclasses of aliens beyond the removal period. The Zadvydas Court held that it\nwould raise serious constitutional questions for Congress to authorize the indefinite detention of aliens falling into the listed classes. It thus read into the statute an\nimplicit limitation on the allowable duration of post-removal-period detention.\n533 U.S. at 689 (\xe2\x80\x9cthe statute, read in light of the Constitution\xe2\x80\x99s demands, limits an\nalien\xe2\x80\x99s post-removal-period detention to a period reasonably necessary to bring\nabout that alien\xe2\x80\x99s removal from the United States\xe2\x80\x9d). The Court also implied that\ndetention beyond the 90-day removal period must be in furtherance of removalrelated purposes, as it stated that the reasonableness of a detention should be\nmeasured \xe2\x80\x9cprimarily in terms of the statute\xe2\x80\x99s basic purpose, namely assuring the\nalien\xe2\x80\x99s presence at the moment of removal.\xe2\x80\x9d Id. at 699. Nothing in the Court\xe2\x80\x99s\ndecision, however, calls into question the central point that section 241(a)(6)\nconstitutes an express source of authority to detain aliens in the listed classes\nbeyond the removal period, albeit subject to the above limitations.\nThis plain-text reading, moreover, does not lead to an absurd or an unconstitutional result. The statute limits the authority to prolong detention beyond the\nremoval period to particular classes of aliens designated by Congress. The aliens\nlisted in the statute include aliens who were never legally admitted to the country,\nINA \xc2\xa7 212, aliens who violate their nonimmigrant status or their conditions of\nentry, id. \xc2\xa7 237(a)(1)(C), criminal aliens, id. \xc2\xa7 237(a)(2), aliens who are a potential\nthreat to national security, id. \xc2\xa7 237(a)(4), and aliens deemed by the Attorney\nGeneral to constitute a flight risk or a danger to the community, id. \xc2\xa7 241(a)(6).\nCongress could reasonably have anticipated that in many instances additional time\nbeyond the 90-day removal period would be required to remove these classes of\naliens, perhaps because of heightened security concerns, the need to conduct\nespecially thorough background investigations, or the difficulty that might be\nencountered in finding foreign countries willing to accept such aliens. Zadvydas\nconfirms the constitutionality of holding such aliens beyond the 90-day removal\nperiod, and establishes that it is constitutionally permissible to hold aliens in\nconfinement \xe2\x80\x9cuntil it has been determined that there is no significant likelihood of\nremoval in the reasonably foreseeable future.\xe2\x80\x9d 533 U.S. at 701. Our plain text\nreading of section 241(a)(6) is thus constitutionally unproblematic.\nIt might be argued that section 241(a)(6) does not itself constitute an exception\nto the 90-day rule, but rather merely empowers the Attorney General to detain,\nrather than release, aliens who happen, for some other reason, to still be in the\ncountry at the expiration of the 90-day removal period (for example, because no\ncountry would accept them or because their removal was delayed based upon\nsome other source of authority that provides an exception to the command to\nremove aliens within 90 days). Under this view, section 241(a)(6) would be\nunderstood as a parallel provision to section 241(a)(3). Section 241(a)(3) gives\n\n74\n\n\x0cLimitations on the Detention Authority of the INS\n\nauthority to impose supervised release when it happens that an alien has not been\nremoved within the 90-day period. Section 241(a)(6), the argument would go,\nshould be understood as simply a parallel authority to detain the alien in the same\ncircumstance. The difficulty with that approach to the statute is that the two\nsections are not drafted in parallel terms. Congress demonstrated in enacting\nsection 241(a)(3) that it knows how to phrase language that does not grant an\nauthority to delay removal of an alien beyond the 90-day period, but at the same\ntime does give a power that can be exercised when it happens (for some other\nreason) that an alien has not been removed by the deadline. Section 241(a)(3)\nempowers the Attorney General to impose terms of supervised release on an alien\n\xe2\x80\x9c[i]f the alien does not leave or is not removed within the removal period.\xe2\x80\x9d The\nquoted language makes it clear that section 241(a)(3) does not itself constitute\nauthorization to delay removal beyond the removal period, but rather merely\nestablishes an authority to impose supervised release in a certain situation\xe2\x80\x94the\nsituation where it happens that alien has not been removed within the 90 days. The\nreasons why the alien has not been removed are not specified, and presumably\ncould include the impossibility of removal or the exercise of some other authority\nto delay removal. The absence of similar conditional language triggering the\napplication of section 241(a)(6)\xe2\x80\x94just three paragraphs later in the same subsection\xe2\x80\x94is a strong textual indication that section 241(a)(6) is not similarly limited.\nInstead, it was intended to serve as a general authorization for the Attorney\nGeneral to refrain from removing the listed classes of aliens and to detain them\nbeyond the removal period. It is well settled, after all, that \xe2\x80\x9c[w]here Congress\nincludes particular language in one section of a statute but omits it in another\nsection of the same Act, it is generally presumed that Congress acts intentionally\nand purposely in the disparate inclusion and exclusion.\xe2\x80\x9d Russello v. United States,\n464 U.S. 16, 23 (1983).\nFinally, we note that there is further textual support for the conclusion that\nsection 241(a)(6) cannot properly be read as applying solely to a situation where it\nhas proven impossible to remove an alien within the 90-day removal period. Here\nagain, Congress knows how to express such a limitation when it wants to impose\none, and it did so in the very next subsection of the statute. Section 241(a)(7)\nallows the Attorney General to authorize employment for those aliens who,\nalthough ordered removed, \xe2\x80\x9ccannot be removed due to the refusal of all countries\ndesignated by the alien or under this section to receive the alien.\xe2\x80\x9d That provision\nexplicitly limits a grant of employment authorization to situations where it is\nimpossible to remove an alien because no country is willing to accept him. The\nabsence of similar language from section 241(a)(6) demonstrates that Congress did\nnot intend similarly to limit the Attorney General\xe2\x80\x99s discretion in determining when\nand under what circumstances to detain aliens falling within the listed classes\nbeyond the 90-day removal period.\n\n75\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nB.\nEven if section 241(a)(6) did not authorize the Attorney General to delay removal of an alien beyond the removal period and instead provided solely authority\nto detain aliens who happen, for some other reasons, to still be in the country after\nthe removal period, we would still conclude that the Attorney General has\nstatutory authority to delay removal of at least some aliens until beyond the 90-day\ndeadline.\nWe start with the observation that the text of section 241 makes it clear that\nCongress did not intend to obligate the Attorney General to remove aliens within\nthe removal period in all instances. Despite the mandatory language directing that\nthe Attorney General \xe2\x80\x9cshall remove\xe2\x80\x9d aliens within the removal period, numerous\nprovisions in section 241 expressly contemplate that aliens who have been ordered\nremoved will still be in the country after the expiration of the removal period. For\nexample, as noted above, section 241(a)(3) establishes standards for supervised\nrelease of aliens that apply \xe2\x80\x9c[i]f the alien does not leave or is not removed within\nthe removal period.\xe2\x80\x9d Similarly, under the reading of section 241(a)(6) that we are\nassuming for this portion of our analysis, that provision provides authority for the\nAttorney General to detain an alien who has not been removed within the removal\nperiod. Both of these provisions assume a situation in which an alien has not been\nremoved by the end of the removal period. They would make no sense if the INA\nimposed an ironclad legal obligation to effect the removal of all aliens before the\nremoval period ended. Similarly, section 241(a)(7) permits the Attorney General\nto grant work authorizations to aliens who have been ordered removed and applies\nonly in limited circumstances (such as where no country will accept the alien) that\nsuggest the alien will be in the country well beyond the 90 days.\nOther provisions in section 241 reinforce the conclusion that Congress understood that, in at least some instances, aliens would not be removed within the\nremoval period. Section 241(b) establishes a detailed decision tree that the\nAttorney General must follow in determining to which country an alien should be\nremoved. In some instances, the statute contemplates that the Attorney General\nmay have to negotiate sequentially with as many as nine or more separate\ncountries to secure permission to remove an alien, with each round of negotiations\ntaking as many as 30 days.11 See INA \xc2\xa7 241(b)(2). It might simply be impossible to\n11\nFor example, an alien who is to be removed under section 241(b)(2) first has the opportunity to\ndesignate the country to which he would like to be removed. See INA \xc2\xa7 241(b)(2)(A). Once the alien\nhas designated a country, that country is accorded a minimum of 30 days to decide whether to accept\nthe alien. See INA \xc2\xa7 241(b)(2)(C)(ii). The Attorney General may also override the alien\xe2\x80\x99s designation if\nhe determines that removing the alien to the designated country would be \xe2\x80\x9cprejudicial to the United\nStates.\xe2\x80\x9d See INA \xc2\xa7 241(b)(2)(C)(iv). If the designated country declines to accept the alien, or if the\nAttorney General overrides the designation, the Attorney General is instructed by the statute to attempt\nto remove the alien to the country of his nationality or citizenship. See INA \xc2\xa7 241(b)(2)(D). That\ncountry is then accorded a presumptive 30 days by the statute to decide whether to accept the alien, but\nhere the Attorney General is further vested with discretion to alter that time period, raising the\n\n76\n\n\x0cLimitations on the Detention Authority of the INS\n\ncomplete this entire process within the 90-day removal period, even without taking\ninto account the time that the Attorney General and his agents must devote to such\nadministrative tasks as securing necessary travel documents and making appropriate security arrangements. Thus, as the Supreme Court acknowledged in Zadvydas,\n\xe2\x80\x9cwe doubt that when Congress shortened the removal period to 90 days in 1996 it\nbelieved that all reasonably foreseeable removals could be accomplished in that\ntime.\xe2\x80\x9d 533 U.S. at 701.\nWhile the text of section 241 thus makes it clear that there may be instances in\nwhich an alien is not removed within the removal period, that in itself does not\nexplain the circumstances that would make it permissible for the Attorney General\nto fail to accomplish removal within the allotted time. The discussion above does\nsuggest one such circumstance\xe2\x80\x94namely, the situation where it is simply not\npossible to remove an alien within 90 days because a country has not yet been\nfound that will accept him. As explained above, the detailed decision tree established in section 241(b) sets out a process for finding a country of removal that has\nvarious timing provisions built in and that may very well take more than 90 days\nto complete in some cases. And section 241(a)(7), in permitting the Attorney\nGeneral to grant employment authorization in some circumstances, acknowledges\nthat there may be instances in which \xe2\x80\x9cthe alien cannot be removed due to the\nrefusal of all countries\xe2\x80\x9d to accept him. It is significant, however, that the statute\nnowhere provides an express exception to the command to remove aliens within\n90 days for such cases of impossibility. Instead, that exception must be implied\nbased on the explicit textual references acknowledging that aliens may, in fact, be\nin the country past the 90-day period, the nature of the process Congress established for choosing the country of removal (a process that, on its face, may take\nlonger than 90 days), and the assumption that Congress would not extend its\ncommand about timing to require the Attorney General to do the impossible.\nThe question here is whether a similar exception may also be implied under the\nstatute that would permit the Attorney General under certain conditions to choose\nto delay removal of an alien even where it would be possible to remove him by the\ndeadline. It could be argued that impossibility of removal\xe2\x80\x94a circumstance beyond\npossibility that this step could take even longer. See INA \xc2\xa7 241(b)(2)(D)(i). If the country of the alien\xe2\x80\x99s\ncitizenship or nationality declines to accept the alien, the Attorney General is instructed to attempt to\nremove the alien to one of six listed countries, including the country in which the alien was born and\nthe country from which the alien was admitted to the United States. See INA \xc2\xa7 241(b)(2)(E)(i)\xe2\x80\x93(vi).\nEach of those countries, of course, would have to be separately negotiated with by the United States,\nand would also have to be given an appropriate amount of time\xe2\x80\x94presumably 30 days\xe2\x80\x94to decide\nwhether to accept or reject the alien. Finally, if none of the six listed countries is willing to accept the\nalien, or if the Attorney General decides that it would be \xe2\x80\x9cinadvisable\xe2\x80\x9d to send the alien to any of the\nlisted countries that is willing to accept him, the Attorney General is instructed to remove the alien to\nany country of the Attorney General\xe2\x80\x99s choice whose government is willing to accept the alien. See INA\n\xc2\xa7 241(b)(2)(E)(vii). Needless to say, following this decision tree through to its very last step\xe2\x80\x94which\nCongress must have contemplated would be necessary in at least some cases\xe2\x80\x94would take considerably\nlonger than the 90 days allotted to the Attorney General by section 241(a)(1)(A).\n\n77\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nthe Attorney General\xe2\x80\x99s control\xe2\x80\x94is the only circumstance that makes it permissible\nfor the Attorney General to fail to accomplish removal by the 90-day mark. Such a\nlimited exception to the 90-day rule, however, would not be consistent with the\nnature of the decisions that are entrusted to the Attorney General under the\nimmigration laws. Rather, a similar exception to the 90-day deadline should be\nunderstood as implicit in the statute where the time deadline would conflict with\nthe Attorney General\xe2\x80\x99s ability properly to enforce the immigration laws, taking\ninto account the full range of considerations he is charged with weighing in\naccomplishing removal of an alien. The Attorney General is charged by different\nprovisions of section 241, for example, with determining whether it would be\n\xe2\x80\x9cprejudicial to the United States\xe2\x80\x9d to remove an alien to the country of his choosing, INA \xc2\xa7 241(b)(2)(C)(iv), and with determining whether it would be \xe2\x80\x9cinadvisable\xe2\x80\x9d to remove aliens to other countries designated by the statutory decision tree,\nid. \xc2\xa7\xc2\xa7 241(b)(1)(C)(iv), 241(b)(2)(E)(vii), 241(b)(2)(F). Cf. INA \xc2\xa7 241(a)(7)(B)\n(noting circumstances in which Attorney General may make a finding that\n\xe2\x80\x9cremoval of the alien is otherwise impracticable or contrary to the public interest\xe2\x80\x9d). As explained above, in making these and other similar determinations an\nessential part of the operation of the immigration laws, Congress has embedded\nconsiderations of foreign policy and national security in the decisions that the\nAttorney General must make in accomplishing the removal of aliens. See\nZadvydas, 533 U.S. at 700\xe2\x80\x9301. And even where a specific statutory determination\nis not required, in any situation involving removal of an alien with terrorist\nconnections, weighty considerations of foreign policy and national security bear\nupon efforts to provide the fullest information possible to the receiving country to\npromote both its security and the security of the United States. At other times, the\nhealth and well-being of an alien, including human rights that are protected by the\nUnited States\xe2\x80\x99 treaty obligations, must be considered. See, e.g., Convention\nAgainst Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1988, S. Treaty Doc. No. 100-20 (1988); INA \xc2\xa7 241(b)(3)(A).\nIn entrusting the Attorney General with the responsibility to make determinations that could have such serious implications, Congress surely did not intend to\nrequire him to make determinations in undue haste and without taking the\nnecessary time to conduct thorough investigations, seriously deliberate, confer\nwith other executive agencies, and make an informed decision. If the 90-day\ndeadline were considered an inexorable command, however, it might require\nprecisely such uninformed decision-making. For example, under the decision tree\nprovided by section 241(b), a country willing to accept a particular alien might not\nbe found until late in the removal period, and the Attorney General might then be\nfaced with deciding whether it would be \xe2\x80\x9cinadvisable\xe2\x80\x9d to remove the alien to that\nparticular country in a matter of days. Where the Attorney General has such a role\nto perform\xe2\x80\x94and particularly where his decision may rest upon grave concerns for\nnational security\xe2\x80\x94there is no reason to understand the 90-day deadline as an\noverriding imperative in the statute that may force a premature decision based on\n\n78\n\n\x0cLimitations on the Detention Authority of the INS\n\nincomplete information or lack of deliberation. Similarly, where the removal of an\nalien with terrorist connections is at stake and the United States is in the process of\ninvestigating information that, if passed along to a receiving country, could have a\nprofound impact on the measures that country could take to ensure both its\nsecurity and the national security of the United States, there is no reason for\nthinking that the 90-day deadline was meant to trump due deliberation on such\nproper considerations under the immigration laws.\nIn short, in our view, Congress did not intend a rigid time deadline to take\nprecedence in situations where the proper administration of the immigration laws\nrequires additional time. The statute gives no indication that Congress attributed\nany less importance to discretionary immigration-related determinations entrusted\nto the Attorney General and his designees than it did to non-discretionary functions such as securing travel documents and finding a country willing to accept an\nalien. Thus, in our view, the Attorney General is not rigidly bound by the 90-day\nrequirement even in situations where it theoretically would be possible to remove\nan alien and a foreign country has already signaled its willingness to accept him.\nOur conclusion that such an implicit exception to the 90-day deadline should be\nunderstood under the statute is also buttressed by the INS\xe2\x80\x99s longstanding conclusion that it has implied authority under the statute to refrain from removing aliens\nwithin the removal period essentially as a matter of prosecutorial discretion. See\nMemorandum to Regional Directors, etc., from Doris Meissner, Commissioner,\nImmigration and Naturalization Service, Re: Exercising Prosecutorial Discretion\nat 1 (Nov. 12, 2000) (\xe2\x80\x9cINS Prosecutorial Discretion Memorandum\xe2\x80\x9d). The INS\nexercises this discretion even with respect to \xe2\x80\x9cexecuting a removal order,\xe2\x80\x9d id. at 2,\ndespite the fact that doing so will often result in non-compliance with the directive\nof section 241(a)(1)(A) requiring the Attorney General to remove all aliens within\n90 days of the time that a removal order becomes final.\nThe INS typically exercises its prosecutorial discretion with respect to the\nexecution of final orders of removal through two means. First, 8 C.F.R. \xc2\xa7 241.6\nprovides that an alien \xe2\x80\x9cunder a final order of deportation or removal\xe2\x80\x9d may apply\nfor a stay of removal by filing form I-246. The regulation further provides that \xe2\x80\x9cin\nhis or her discretion and in consideration of factors listed in 8 CFR 212.5 and\nsection 241(c) of the Act,\xe2\x80\x9d certain INS officials \xe2\x80\x9cmay grant a stay of removal or\ndeportation for such time and under such conditions as he or she may deem\nappropriate.\xe2\x80\x9d Although the statutory factors referenced by the regulation appear in\nprovisions that apply only to aliens \xe2\x80\x9capplying for admission\xe2\x80\x9d and \xe2\x80\x9carriving at a\nport of entry of the United States\xe2\x80\x9d respectively, see INA \xc2\xa7\xc2\xa7 212(d)(5)(A),\n241(c)(2), the INS appears to construe its authority to grant stays to extend more\nbroadly to all aliens under a final order of deportation or removal. The instructions\naccompanying form I-246 state, without limitation, that \xe2\x80\x9c[y]ou may file this\napplication if you have been ordered deported or removed from the United States\nand you wish to obtain a stay of deportation or removal under the provisions of\n8 CFR 241.6.\xe2\x80\x9d Moreover, it is clear that the regulation\xe2\x80\x99s cross-references to\n\n79\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nstatutory provisions are intended only to borrow lists of relevant factors to be\nconsidered, not to limit the scope of the regulation to the scope of the statutory\nprovisions. Thus, broad stay authority exercised by the INS pursuant to 8 C.F.R.\n\xc2\xa7 241.6 cannot be derived from any statutory source, but rather is derived from the\nINS\xe2\x80\x99s extra-statutory prosecutorial discretion authority. See INS Prosecutorial\nDiscretion Memorandum at 6 (referring to \xe2\x80\x9cwhether to stay an order of deportation\xe2\x80\x9d as one potential exercise of prosecutorial discretion).\nSecond, the INS may at times exercise its prosecutorial discretion authority by\ngranting a longer-term \xe2\x80\x9cdeferred action\xe2\x80\x9d with respect to the order of removal. The\npower to grant such deferred action has been \xe2\x80\x9cdeveloped [by the INS] without\nexpress statutory authorization.\xe2\x80\x9d 6 Charles Gordon, Stanley Mailman & Stephen\nYale-Loehr, Immigration Law and Procedure \xc2\xa7 72.03[2][h] (rev. ed. 2002).\nNevertheless, it has been acknowledged by, and appears to have received the\nblessing of, the courts. See Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471,\n483\xe2\x80\x9384 (1999) (noting that \xe2\x80\x9c[a]t each stage the Executive has discretion to\nabandon the endeavor\xe2\x80\x9d of immigration proceedings, at any time up to and\nincluding the execution of removal orders); Johns v. Dep\xe2\x80\x99t of Justice, 653 F.2d\n884, 890 (5th Cir. 1981) (\xe2\x80\x9cThe Attorney General is given discretion by express\nstatutory provisions, in some situations, to ameliorate the rigidity of the deportation laws. In other instances, as the result of implied authority, he exercises\ndiscretion nowhere granted expressly. By express delegation, and by practice, the\nAttorney General has authorized the INS to exercise his discretion. . . . The\nAttorney General also determines whether (1) to refrain from (or, in administrative\nparlance, to defer in) executing an outstanding order of deportation, or (2) to stay\nthe order of deportation. Although such a stay is usually designed to give a\ndeportee a reasonable amount of time to make any necessary business or personal\narrangements, both the length of and reason for the stay lie entirely within the\ndiscretion of the Attorney General or his delegate.\xe2\x80\x9d).\nThe INS thus has long treated the apparent statutory mandate that aliens be\nremoved within the removal period as having implied exceptions and has long\nexercised its prosecutorial discretion in such a manner as to refrain from removing\naliens within the removal period. If that approach is correct (which we need not\ndecide here), and if deferral and stay considerations such as the conservation of\nlimited INS resources, humanitarian concerns, and law-enforcement needs\nconstitute sufficient grounds to refrain from removing an alien within the removal\nperiod as directed by section 241(a)(1)(A), then it would seem to follow a fortiori\nthat the considerations described above (which are directly relevant to the proper\nexecution of the immigration laws) certainly provide a sufficient basis for a similar\nimplicit exception from the 90-day removal deadline.\nThus, we conclude that the statute permits the Attorney General to delay the\nremoval of an alien beyond the removal period when the failure to effect removal\nis directly related to the administration of the immigration laws and policies of the\nUnited States. This does not give the Attorney General carte blanche to delay an\n\n80\n\n\x0cLimitations on the Detention Authority of the INS\n\nalien\xe2\x80\x99s removal excessively. The delay must be based upon reasons related to the\nproper implementation of the immigration laws. And as the Court established in\nZadvydas, where the alien is detained, the Attorney General must complete the\nremoval process within \xe2\x80\x9ca period reasonably necessary to secure removal,\xe2\x80\x9d 533\nU.S. at 699\xe2\x80\x93700 (emphasis added), a period that the Court concluded presumptively runs for 180 days.12 This reading of the statute accords the Attorney General the\ntime that he reasonably requires to carry out his immigration-related duties\nthoroughly and effectively. We could not purport here to define in the abstract a\ncomprehensive list of all the activities that are related to the enforcement of the\nimmigration laws and the completion of which could justify delaying an alien\xe2\x80\x99s\nremoval beyond the 90-day time period. At a minimum, delays in removal that are\nattributable to actions taken by the Attorney General for the purposes discussed\nabove relating to delays within the 90-day period\xe2\x80\x94namely, investigating whether\nand to what extent an alien has terrorist connections\xe2\x80\x94satisfy this standard.\nWhether an alien can be detained after the expiration of the 90-day removal\nperiod is determined by section 241(a)(6). As explained above, under the reading\nof section 241(a)(6) that we have assumed for purposes of this portion of our\nanalysis, that provision authorizes the Attorney General to detain aliens who fall\ninto the listed classes and who, despite an order of removal, are still in the country\nbeyond the removal period. Among the classes of aliens who may be detained are\naliens who pose a threat to national security or the foreign policy of the United\nStates as set forth in section 237(a)(4) and aliens who are otherwise determined by\nthe Attorney General to be a risk to the community or unlikely to comply with an\norder of removal. Again, as noted above, Zadvydas makes clear that if an alien is\ndetained pending removal beyond the removal period, the Attorney General must\nact within a period \xe2\x80\x9creasonably necessary to secure removal.\xe2\x80\x9d Zadvydas, 533 U.S.\nat 699\xe2\x80\x93700 (emphasis added). Presumptively, a reasonable period lasts for six\nmonths, but the Court made clear that in cases involving suspected terrorism, the\nsame limitations would likely not apply. We cannot attempt here to provide brightline guidance in the abstract concerning the permissible duration of detention. That\nmay well depend on facts in a particular case.\nPATRICK F. PHILBIN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n12\nWe address here solely a decision to refrain from removing an alien by the 90-day deadline with\na view to effecting removal at a later date. A decision in the exercise of prosecutorial discretion not to\nexecute an order of removal at all need not be subject to the same limitations and might be subject to\nalmost absolute discretion of the Attorney General. See generally INS Prosecutorial Discretion\nMemorandum; see also Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483 (1999) (\xe2\x80\x9c[a]t each\nstage the Executive has discretion to abandon the endeavor\xe2\x80\x9d of pursuing removal). We express no view\non that issue here.\n\n81\n\n\x0c'


b'Deputization of Members of Congress as\nSpecial Deputy U.S. Marshals\n\nT h e d e p u tiz atio n o f M em b e rs o f C o n g re ss as s p e c ia l D e p u ty U .S . M a rsh a ls is in c o n siste n t w ith s e p a ra \xc2\xad\ntio n o f pow ers p rin c ip le s a n d w ith the sta tu to ry la n g u a g e an d h isto ric a l p ra c tic e g o v e rn in g s p e c ia l\nd e p u ta tio n .\n\nMay 25, 1994\n\nM e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l\nU n it e d S t a t e s M a r s h a l s S e r v ic e\n\nYou have requested our assistance in determining whether the United States\nMarshals Service may deputize Members of Congress as special Deputy U.S. Mar\xc2\xad\nshals. The Director of the Marshals Service is authorized to deputize the following\nindividuals to perform the functions of Deputy Marshals: selected officers or em\xc2\xad\nployees of the Department of Justice; federal, state or local law enforcement offi\xc2\xad\ncers; private security personnel to provide courtroom security for the Federal\njudiciary; and other persons designated by the Associate Attorney General. 28\nC.F.R. \xc2\xa7 0.112; see also 28 U.S.C. \xc2\xa7 561(f) (authorizing Director of Marshals\nService to appoint \xe2\x80\x9csuch employees as are necessary to carry out the powers and\nduties of the Service\xe2\x80\x9d).\nWe believe that deputation of Members of Congress is inconsistent with separa\xc2\xad\ntion of powers principles and with the statutory language and historical practice\ngoverning special deputation.1 First, deputizing Members of Congress violates the\nprinciple recognized in Bowsher v. Synar, 478 U.S. 714 (1986), that Congress may\nnot exceed its constitutionally prescribed authority by playing a direct role in exe\xc2\xad\ncuting the laws. The Marshals Service is clearly a part of the executive branch2\nand the primary duties of Deputy Marshals are the execution and enforcement of\nfederal law. See Steele v. United States, 267 U.S. 505, 508 (1925) (deputy mar\xc2\xad\nshals are \xe2\x80\x9cchiefly charged with the enforcement of the peace of the United States\xe2\x80\x9d);\nUnited States v. Krapf, 285 F.2d 647, 649 (3d Cir. 1960) (duties of marshals in\xc2\xad\nclude the \xe2\x80\x9cenforcement, maintenance and administration of federal authority\xe2\x80\x9d); 28\nU.S.C. \xc2\xa7 566 (describing the duties of the Marshals Service). Permitting Members\nof Congress to execute and enforce the laws encroaches upon the very heart of the\nexecutive authority and violates one of the fundamental tenets of separation of\n\n1 Because we think that (he result is clear un d er a separation o f pow ers analysis, we d o not address the\nargum ent that special deputation o f M em bers o f C ongress is invalid under the Incom patibility C lause\n* T he United States M arshals Service is a bureau w ithin the D epartm ent o f Justice and under the authority\nand direction o f the A ttorney G eneral. 28 U S C !) 561.\n\n125\n\n\x0cOpinions o f th e Office o f L eg a l C ounsel\n\npowers jurisprudence: \xe2\x80\x9cThe structure of the Constitution does not permit Congress\nto execute the laws.\xe2\x80\x9d Bowsher v. Synar, 478 U.S. at 726.\nMembers of Congress presumably request special deputation so that they may\ncarry weapons for personal security and not so that they may actually execute or\nenforce the law. Nonetheless, deputized Members of Congress will have statutory\nauthority to enforce the law. Moreover, the fact that a legislative usurpation of\nexecutive power may prove to be innocuous or inchoate does not mean that it is\nconstitutionally permissible. Legislative intrusions into the executive sphere that\nmay prove harmless in practice nonetheless violate separation of powers principles.\nSee M etropolitan Washington Airports Auth. v. Citizens fo r the Abatement o f Air\xc2\xad\ncraft Noise, Inc. 501 U.S. 252 (1991): Bowsher, 478 U.S. 714. \xe2\x80\x9cThe separated\n\npowers of our Government cannot be permitted to turn on\xe2\x80\x9d speculative assessments\nabout the likelihood of a legislative official actually exercising usurped executive\nauthority; \xe2\x80\x9cin the long term, structural protections against abuse of power [are]\ncritical to preserving liberty.\xe2\x80\x9d Bowsher, 478 U.S. at 730.\nDeputation of Members of Congress, furthermore, is not authorized by the stat\xc2\xad\nute and regulations governing special deputation. 28 U.S.C. \xc2\xa7 561(f) states that the\nDirector of the Marshals Service may appoint \xe2\x80\x9csuch employees as are necessary to\ncarry\xe2\x80\x99 out the pow ers and duties o f the Service.\xe2\x80\x9d (emphasis added). Similarly, 28\nC.F.R. \xc2\xa7 0.112 provides that the Director may deputize certain persons \xe2\x80\x9cto perform\nthe functions of a Deputy U.S. Marshal.\xe2\x80\x9d Both the Marshals Service and this Of\xc2\xad\nfice have repeatedly taken the position that the use of the special deputation\nauthority should be limited to those circumstances where the United States Marshal\nneeds the deputations in order to accomplish his or her specific mission. See Spe\xc2\xad\ncial Deputations o f P rivate Citizens Providing Security to a Former Cabinet\nMember, 1 Op. O.L.C. 67 (1983) (concluding that Marshals Service could not\n\ndeputize Henry Kissinger\xe2\x80\x99s private security service); Memorandum for the Attor\xc2\xad\nney General, from John M. Harmon, Acting Assistant Attorney General, Office of\nLegal Counsel (Mar. 28, 1977) (advising that it would be unlawful for the Mar\xc2\xad\nshals Service to deputize former Vice President Rockefeller\xe2\x80\x99s security detail). The\nMarshals Service does not need Members of Congress to serve as deputy marshals\nin order to perform its assigned functions; indeed, Members of Congress cannot\nperform the functions of the Marshals Service without running afoul of separation\nof powers principles.\nIt is therefore our conclusion that the Marshals Service cannot continue to grant\nrequests from Members of Congress for special deputation.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n126\n\n\x0c'