Zadvydas v. Underdown

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-31345

KESTUTIS ZADVYDAS,

Petitioner-Appellee,

versus

LYNNE UNDERDOWN; U.S. IMMIGRATION
AND NATURALIZATION SERVICE,

Respondents-Appellants.

Appeal from the United States District Court for the
Eastern District of Louisiana

August 11, 1999

Before GARWOOD, DAVIS, and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellee Kestutis Zadvydas (Zadvydas) applied for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He alleged

that since he is a stateless person and there is no possibility of

effectuating his deportation to another country, his continued

detention by respondents-appellants the Immigration and

Naturalization Service (INS) and its district director (whose

successor, Lynne Underdown, has been substituted as a party

respondent-appellee) constitutes punishment without due process of

law and thus violates his due process rights and international law.
The district court granted the writ and ordered Zadvydas released

from custody. Zadvydas v. Caplinger, 986 F.Supp. 1011 (E.D. La.

1997). We reverse.

Facts and Proceedings Below

Zadvydas was born in a displaced persons camp in Germany in

1948. In 1956 he immigrated with his family to America, and became

a resident alien. Despite his long residence in this country, he

never became a citizen.1 Starting as a youth, Zadvydas developed

an extensive criminal history. His FBI records indicate numerous

arrests. In 1966 he was convicted of attempted robbery in New

York. In 1974 he was again convicted in New York, this time of

attempted burglary. The INS began the process of deportation in

1977, based on these two convictions. While those proceedings were

pending, Zadvydas was released into the community. After a lengthy

delay, Zadvydas’ motion for relief from deportation under 8 U.S.C.

§ 1182(c) was denied on February 10, 1982. Facing a hearing before

an immigration judge that year, Zadvydas disappeared. Over the

next decade, the INS failed to locate Zadvydas.

In 1987, authorities in Virginia arrested Zadvydas for

possessing 474 grams of cocaine with intent to distribute.

According to his own testimony, Zadvydas used cocaine at that time.

While on bail awaiting trial in Virginia, Zadvydas fled to Houston,

Texas. After several years in Texas, Zadvydas voluntarily presented

himself to Texas authorities, and he was subsequently tried in

1
The record does not reveal whether Zadvydas ever applied for
citizenship.

2
Virginia on the 1987 distribution charge. In 1992, he was

convicted and sentenced to sixteen years’ imprisonment, with six

years suspended. After serving only two years, Virginia released

him on parole. The INS promptly took him into custody and

reinitiated deportation proceedings. In March 1994 the immigration

judge ordered that Zadvydas should be detained without bond during

the deportation process based on his history of flight from

authorities. Zadvydas appealed that determination, but the Board

of Immigration Appeals (BIA) affirmed the immigration judge.

In 1994 Zadvydas appeared before the immigration judge. He

admitted his past criminal history, conceded deportability, and

seemed to indicate that he was a German citizen. He applied for

relief from deportation under 8 U.S.C. § 1182(c). In May 1994 the

immigration judge denied relief from deportation and ordered

Zadvydas to be deported. Zadvydas did not appeal that decision,

does not challenge it here, and it has become final. The INS

immediately contacted the German government to arrange for

deportation. German officials, however, proved unwilling to accept

Zadvydas. They took the position that under German law the mere

fact Zadvydas was born on German soil did not automatically entitle

him to German citizenship. The INS, while continuing to forward

requests to Germany, contacted Lithuanian authorities in July 1994.

The Lithuanians tersely responded that they could not accept

Zadvydas since he was neither a citizen nor a permanent resident of

Lithuania.

In May 1995, after the INS had forwarded to German authorities

3
all the material they believed was necessary to establish Zadvydas’

citizenship, the German authorities declined to accept Zadvydas.

Referencing extensive research that they assertedly had conducted,

they declared that Zadvydas was not a German citizen and thus could

not be deported to Germany. Subsequent communications with the

German authorities apparently did not generate a response. Based

on the fact that Zadvydas’ wife is a citizen of the Dominican

Republic, the INS apparently wrote Dominican authorities. No

Dominican response is in the record. In October 1996, the INS

again contacted Lithuania to ascertain whether Zadvydas could claim

citizenship. The Lithuanian government has since responded by

stating that Zadvydas, while not one of their citizens, could apply

for citizenship if he could prove that both of his parents were

born in Lithuania prior to 1940. In letters dated October 26,

1998, and March 25, 1999, the Lithuanian government has broadly

outlined the type of documentation it would require, and stated

that Zadvydas should present such materials to it.

In September 1995, Zadvydas filed the instant petition for a

writ of habeas corpus under section 2241, claiming that his

continued detention violated the Eighth Amendment, the due process

clause, and international law. In February 1997 the magistrate

judge recommended denial of Zadvydas’ habeas petition. Zadvydas

filed objections. In November 1997 the district court found that

continued detention of Zadvydas was unconstitutional. The court

rejected all of Zadvydas’ challenges to his deportation and the

4
denial of his request for relief under section 1182(c), and it

further ruled that his continued detention was authorized by 8

U.S.C. former § 1252(a)(2)(B) because he had not shown “that he is

not a threat to the community and that he is likely to appear at

any scheduled hearing.” 986 F.Supp. at 1024.2 However, concluding

that Zadvydas was “stateless” and thus could “never be deported

because there is no place to send him”, the court held that

Zadvydas could not be “permanently incarcerated” without violating

his substantive due process rights. While the INS had procedures to

review continuing detention, and Zadvydas thus could possibly be

released in the future, the court discounted this possibility,

finding that in practice there was “no end in sight” for Zadvydas’

detention. 986 F.Supp. at 1027. The court ordered Zadvydas

released under a list of conditions it generated. The INS timely

appealed.3 While this appeal has been pending, Zadvydas seems to

2
Former section 1252(a)(2)(B) provided:

“The Attorney General may not release from custody any
lawfully admitted alien who has been convicted of an
aggravated felony, either before or after a determination
of deportability, unless the alien demonstrates to the
satisfaction of the Attorney General that such alien is
not a threat to the community and that the alien is
likely to appear before any scheduled hearings.”

The district court further observed in this connection that
the INS had also interviewed Zadvydas and reviewed his file and
determined not to then release him under the similar standards of
the Transition Period Custody Rules pursuant to section
303(b)(3)(B) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. 986 F.Supp. at 1024-5 n.4. The INS
had determined thereunder that Zadvydas was “a threat to security
as well as a flight risk.”
3
Zadvydas has not cross-appealed.

5
have complied with the district court’s release conditions and has

apparently conducted himself as a productive member of society.

Discussion

The district court found that given the uncertainty that any

nation would be found that would accept Zadvydas, his detention was

indefinite. It further found that such indefinite detention

violated his substantive due process rights. The law, at least in

this Circuit, regarding the long-term detention of excludable

aliens pending deportation is clear—such detention is allowable.

See, e.g., Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1448

(5th Cir. 1993). Zadvydas argues, however, that these cases can

have no application to his status since he is a resident alien and

thus can claim enhanced constitutional protection. He maintains

that even if the government may detain an excludable alien

indefinitely, it violates substantive due process to inflict such

detention on a resident alien such as himself.4 The INS argues,

however, that once a resident alien such as Zadvydas is—concededly

in adherence with procedural and substantive due process—ordered

deported and that order becomes final, the resident alien may claim

4
Zadvydas also claims that his continued detention violates
both international treaties and customary international law
proscriptions of arbitrary detention. We do not believe that the
continued detention here could be described as arbitrary. In any
case, we rejected an identical international law claim in Gisbert.
See Gisbert, 988 F.2d at 1448. We are unaware of any presently
relevant distinction in international law between excludable and
resident aliens, so for the purposes of adjudicating the
application of international law Gisbert is directly controlling.
Zadvydas’ claims that his procedural due process and Eighth
Amendment rights are violated by his continued detention were
expressly not reached by the district court (986 F.Supp. at 1027
n.6) and were not argued before us. We do not address them here.

6
no greater rights than an excludable alien in like circumstances.

To the extent that the circumstances of this case require us to

follow their logic, we agree with the INS.

I. Preliminary Matters

As a threshold matter, we must address the question of this

Court’s jurisdiction. Although the INS contested the district

court’s jurisdiction below, it has not done so on appeal. We must

nevertheless examine our own jurisdiction independently before

proceeding. See Arizonans for Official English v. Arizona, 117

S.Ct. 1055, 1072 (1997). Congress has clearly indicated that it

desires minimal judicial intrusion into deportation decisions. The

strictest jurisdictional standard under which Zadvydas’ claims

could be evaluated are provided by the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-

208, 110 Stat. 309-546, which repealed the prior judicial review

schemes governing immigration and substituted new provisions

potentially applicable to Zadvydas. See 8 U.S.C. § 1252(g).5 The

Supreme Court has recently construed the jurisdictional effect of

section 1252(g). See Reno v. American-Arab Anti-Discrimination

5
Section 1252(g) provides:

“(g) Exclusive Jurisdiction

Except as provided in this section and
notwithstanding any other provision of law, no
court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien
arising from the decision or action by the
Attorney General to commence proceedings,
adjudicate cases, or execute removal orders
against any alien under this chapter.”

7
Committee, 119 S.Ct. 936 (1999). In Reno, the Court held that the

enactment was not a general bar, but rather limited judicial review

of a narrow class of discretionary executive actions. By the

statute’s terms, one of the actions immune from review is an action

to “execute removal orders against any alien under this chapter.”

In a recent case, the Seventh Circuit has held that these

provisions do not remove our jurisdiction to hear a section 2241

habeas petition challenging the validity of the statutes

authorizing the detention of aliens. This is because the

detention, while intimately related to efforts to deport, is not

itself a decision to “execute removal orders” and thus does not

implicate section 1252(g) under Reno. See Parra v. Perryman, 172

F.3d 954, 957 (7th Cir. 1999). We agree, and find jurisdiction to

hear this appeal.

We next must address the statutory regime governing Zadvydas’

continued detention. Zadvydas was released into INS custody in

1994. Since that time, a flurry of statutory changes have taken

place. Zadvydas’ detention could be covered by one of four

separate detention regimes, depending on the degree of

retroactivity involved. Two of them, the rule in place when he was

initially detained, see 8 U.S.C. § 1252 (1994), and the Transition

Period Custody Rules authorized in IIRIRA, place the burden on a

detainee awaiting deportation to prove that he is not a danger to

the community or a flight risk before being released on parole

pending deportation. The third, most recent, provision—IIRIRA’s

permanent provision—authorizes detention but makes it discretionary

8
beyond an initial ninety day period. See IIRIRA § 305(c), codified

as 8 U.S.C. § 1231(a)(6), Immigration and Nationality Act (INA) §

241 (a)(6).6 From a constitutional perspective, the choice between

these regimes appears to be of at most marginal import. However,

the rules established by the immigration provisions of the Anti-

Terrorism and Effective Death-Penalty Act (AEDPA) order mandatory

detention of all aliens awaiting deportation, regardless of danger

or flight risk. See AEDPA, Pub. L. 104-132 § 440(c), 110 Stat.

1214, 1277 (amending 8 U.S.C. § 1252(a)(2) to delete provisions

allowing release of nondangerous nonflight-risk detainees).

The parties agree that AEDPA § 440(c) does not apply, and both

maintain that this case is governed by the new section 241

established by the IIRIRA, which they argue applies to all aliens

who are not “in proceedings” at its effective date. It would seem

clear that Zadvydas is not in deportation proceedings—the order

regarding his deportation was issued and became final long before

IIRIRA’s effective date, and only the physical act of deportation

remains undone. Moreover, the rapid passage of IIRIRA in the

immediate wake of AEDPA seems to indicate that Congress repudiated

the harsh mandatory detention regime created by AEDPA for aliens

whose deportation is final. To apply AEDPA to Zadvydas based

solely on the accident of when proceedings against him began would

seem to make little sense—there is no reason to suspect that

Congress determined that aliens in custody prior to the effective

6
Certain classes of aliens, including criminal aliens such as
Zadvydas, “may be detained beyond the [90 day] removal period.” 8
U.S.C. § 1231(a)(6).

9
date of IIRIRA were, as a class, significantly more dangerous than

those subsequently taken and thus merited harsher treatment. While

the statute currently is not a model of clarity7 in respect to its

retroactive application to an alien in Zadvydas’ position, we find

the INS’ construction reasonable. See Chevron U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984). We

conclude that Zadvydas’ detention is governed by the new provisions

of section 241.

Because we agree with the parties that new INA section 241

applies, we will proceed to analyze the constitutional question

presented under the assumption that Zadvydas will be able to obtain

periodic review of his detention. Under INA § 241(a)(1) & (2), 8

7
IIRIRA’s retroactivity clause, section 309(c)(1), bars
application of its provisions “in the case of an alien who is in
exclusion or deportation proceedings before” its effective date.
The statute’s section dealing with retroactivity is generally
phrased in the present tense. The title to the section is, for
example, “Transition for Aliens in Proceedings,” and the clause
applies to an alien who “is in” proceedings at the effective date.
The natural reading of the clause would thus seem to be that it
applies only to proceedings that are pending as of the effective
date. See American-Arab, 119 S.Ct. at 943 (defining transitional
cases under section 309(c)(1) as “cases pending on the effective
date of IIRIRA”). See also id. at 945 (referring to “§ 309(c)(1)’s
general rule” that IIRIRA’s provisions “do not apply to pending
cases”). The problem is created by the statute’s usage of
“before,” which might be read to imply that the statute only
affects those that were free of any involvement in deportation
proceedings prior to the effective date. The confusing “before”
was, however, the product of what was labeled as a “technical”
amendment established by the Hatch-Kennedy amendment to the H-1A
Nursing Bill. See Pub. L. 104-302, 110 Stat. 3657. Nothing
indicates what the goal of this amendment was, and the failure of
the amendment to change the surrounding language makes its intended
purpose unclear. Accordingly, we find the text ambiguous enough to
merit consideration of Chevron, particularly in light of the
seeming absurdity of a contrary result and the constitutional
problems it might possibly create.

10
U.S.C. § 1231(a)(1) & (2), the Attorney General is required to

remove an alien from the United States within the “removal period,”

defined generally as the ninety days beginning when an order of

removal becomes administratively final, when any judicial review

thereof is completed, or when the alien is released from

confinement (other than under an immigration process), whichever is

latest, and is required to detain the alien during the removal

period. If the alien is not removed within the removal period,

“the alien, pending removal, shall be subject to supervision under

regulations prescribed by the Attorney General.” Id. § (a)(3).

INA § 241(a)(6), 8 U.S.C. § 1231(a)(6) provides:

“An alien ordered removed who is inadmissible under
section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2)[8], or 1227(a)(4) of this title
or who has been determined by the Attorney General to be
a risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal
period and, if released, shall be subject to the terms of
supervision in paragraph (3).” (Emphasis added).

INS regulations, see 8 C.F.R. §§ 236.1(d)(2)(ii), 236.1(d)(3)(iii),

241.4 & 241.5, as explained and expounded in the February 3, 1999,

“Memorandum for Regional Directors” from INS Executive Associate

Commissioner Michael A. Pearson concerning “Detention Procedures

for Aliens Whose Immediate Repatriation Is Not Possible or

Practicable,” authorize the release of such aliens when it is

determined that the alien “is not a threat to the community and is

likely to comply with the removal order,” and further provide that

8
8 U.S.C. § 1227(a)(2), INA § 237(a)(2), includes aliens, such
as Zadvydas, convicted of an aggravated felony or a controlled
substance violation.

11
the alien must be given the opportunity to so demonstrate, that

every six months the District Director must “review the status of”

such “aliens . . . to determine whether there has been a change in

circumstances that would support a release decision,” that the

alien’s file must be documented to show “the reasons for the

custody or release decision,” and that “if the alien submits a

written request to have his detention status reviewed by the

District Director . . . the alien may appeal the District

Director’s decision to the Board of Immigration Appeals.”9

9
The Pearson memorandum states in pertinent part:

“. . . 8 C.F.R. § 241.4 gives the District Director the
authority to make release decisions beyond the removal
period based on specific criteria in the regulation as
set forth below. The regulation also provides that the
District Director should provide an alien with the
opportunity to demonstrate by clear and convincing
evidence that he is not a threat to the community and is
likely to comply with the removal order. The alien may
be given this opportunity in writing, orally, or a
combination thereof. The District Director must ensure
that the file is documented with respect to the alien’s
opportunity to present factors in support of his release,
and the reasons for the custody or release decision.

. . .

Every six months, the District Director must review
the status of aliens detained beyond the removal period
to determine whether there has been a change in
circumstances that would support a release decision since
the 90 day review. Further, the District Director should
continue to make every effort to effect the alien’s
removal both before and after the expiration of the
removal period. The file should document these efforts
as well.

. . .

District Directors are advised that a detention
review is subject to the provisions of 8 C.F.R. §
236.1(d)(2)(ii) if the alien submits a written request to

12
 have his detention status reviewed by the District
Director. Under 8 C.F.R. § 236.1(d)(2)(iii), the alien
may appeal the District Director’s decision to the Board
of Immigration Appeals. Where the alien has not made a
written request to have his custody status reviewed,
however, there is no provision for appeal of the District
Director’s decision to the Board of Immigration Appeals.
See 8 C.F.R. § 241.4.”

8 C.F.R. § 241.4(a) provides:

“(a) Continuation of custody for inadmissible or
criminal aliens. The district director may continue in
custody any alien inadmissible under section 212(a) of
the Act or removable under section 237(a)(1)(C),
237(a)(2), or 237(a)(4) of the Act, or who presents a
significant risk of noncompliance with the order of
removal, beyond the removal period, as necessary, until
removal from the United States. If such an alien
demonstrates by clear and convincing evidence that the
release would not pose a danger to the community or a
significant flight risk, the district director may, in
the exercise of discretion, order the alien released from
custody on such conditions as the district director may
prescribe, including bond in an amount sufficient to
ensure the alien’s appearance for removal. The district
may consider, but is not limited to considering, the
following factors:

(1) The nature and seriousness of the alien’s
criminal convictions;
(2) Other criminal history;
(3) Sentence(s) imposed and time actually served;
(4) History of failures to appear for court
(defaults);
(5) Probation history;
(6) Disciplinary problems while incarcerated;
(7) Evidence of rehabilitative effort or recidivism;
(8) Equities in the United States; and
(9) Prior immigration violations and history.”

The release of an alien under section 241.4 shall be under a
supervision order requiring, inter alia, periodic reporting to the
INS, continued efforts to obtain travel documents, advance approval
of travel beyond any therein specified limits, and giving notice of
change of address; a bond may also be required; and, the INS “may
grant employment authorization to an alien” released under section
241.4. See C.F.R. § 241.5.

13
 The district court found that the INS did not err in

determining that Zadvydas posed a danger to the community and a

flight risk. Should Zadvydas no longer do so, he would doubtless

be released.

II. Gisbert and Excludable Aliens

Article 1, section 8, clause 4 of the Constitution vests in

Congress the power to “establish an uniform Rule of

Naturalization.” Moreover, “[t]he exclusion of aliens is a

fundamental act of national sovereignty” that “stems not alone from

legislative power but is inherent in the executive power to control

the foreign affairs of the nation.” See United States ex rel.

Knauff v. Shaughnessy, 70 S.Ct. 309, 312 (1950). See also Chae

Chan Ping v. United States, 9 S.Ct. 623, 630 (1889) (discussing

sovereignty justification). The basic source of this interest is

identical regardless of whether the government seeks to exclude an

alien who has not entered, or to expel an alien who has resided

here. See Fong Yue Ting v. United States, 13 S.Ct. 1016, 1019

(1893) (“The right of a nation to expel or deport foreigners who

have not been naturalized . . . is as absolute and unqualified, as

the right to prohibit and prevent their entrance into the

country.”). When these principles are taken together, it is clear

that “the power to expel or exclude aliens [is] a fundamental

sovereign attribute exercised by the Government’s political

departments largely immune from judicial control.” Fiallo v. Bell,

97 S.Ct. 1473, 1478 (1977) (quoting Shaughnessy v. United States ex

rel. Mezei, 73 S.Ct. 625, 628 (1953)). See also Harisiades v.

14
Shaughnessy, 72 S.Ct. 512, 519 (1951) (“It is pertinent to observe

that any policy toward aliens is vitally and intricately interwoven

with contemporaneous policies in regard to the conduct of foreign

relations, the war power, and the maintenance of a republican form

of government. Such matters are so exclusively entrusted to the

political branches as to be largely immune from judicial inquiry or

interference.”). The power of the national government to act in

the immigration sphere is thus essentially plenary.

Aliens can of course claim some constitutional protections.

The language of the due process clause refers to “persons,” not

“citizens,” and it is well established that aliens within the

territory of the United States may invoke its provisions. See,

e.g., Yick Wo v. Hopkins, 6 S.Ct. 1064, 1070 (1886); Wong Wing v.

United States, 16 S.Ct. 977, 981 (1896) (illegal resident alien

could not be punished by sentence to hard labor without due process

of law). While the cases have drawn a line for some purposes

between excludable aliens who failed to effect entry into the

country unimpeded and resident aliens, in this Circuit it is clear

that the former also can be considered persons entitled to

protection under the 14th Amendment. See Lynch v. Cannatella, 810

F.2d 1363, 1375 (5th Cir. 1987) (“Excludable aliens are not non-

persons.”). We cannot suppose that the result in Wong Wing would

have been different had the alien there been excludable rather than

resident.

However, alien status can affect our analysis of

constitutional rights. Because of their special position, certain

15
classifications and restrictions that would be intolerable if

applied to citizens are allowable when applied to resident aliens.

See, e.g., Cabell v. Chavez-Saldino, 102 S.Ct. 735, 740 (1982)

(state’s exclusion of resident aliens from basic governmental

functions did not violate the constitution).10 See also DeCanas v.

Bica, 96 S.Ct. 933 (1976). More importantly for the issue before

us, courts have long recognized that the governmental power to

exclude or expel aliens may restrict aliens’ constitutional rights

when the two come into direct conflict. See Matthews v. Diaz, 96

S.Ct. 1883, 1891 (1976) (“In the exercise of its broad power over

naturalization and immigration, Congress regularly makes rules that

would be unacceptable if applied to citizens.”). Indeed, the Court

has accepted collateral damage to the constitutional rights of

citizens as an acceptable price to pay in deference to the plenary

power over aliens of the political branches of the national

government. See Kleindienst v. Mandel, 92 S.Ct. 2576, 2582-84

(1972) (recognizing citizen audience had First Amendment interest

in listening to communist agitator, but accepting government’s

exclusion of alien speaker despite this interest). See also United

States v. Williams, 24 S.Ct. 719 (1904).

Zadvydas claims that his detention amounts to punishment

without trial, and thus violates his substantive due process

10
Further, “the Fourteenth Amendment’s limits on state powers
are substantially different from the constitutional provisions
applicable to the federal power over immigration and
naturalization.” Mathews v. Diaz, 96 S.Ct. 1882, 1895 (1976).
Thus, provisions in state laws respecting aliens which would be
invalid under the Fourteenth Amendment are not necessarily invalid
when contained in federal legislation. Id. at 1893-95.

16
liberty interest. It is well established that resident aliens may

not be punished in this manner. See Wong Wing, 16 S.Ct. at 981.

However, the Wong Wing court distinguished between the

unconstitutional act before it—which made illegal presence in the

country summarily punishable by a sentence to being “imprisoned at

hard labor” for not more than a year and provided that the alien

would be “thereafter removed from the United States” (emphasis

added)—and detention pending deportation. “Proceedings to exclude

or expel would be in vain if those accused could not be held in

custody pending the inquiry into their true character, and while

arrangements were being made for their deportation.” Id. at 980.

We have clearly held that excludable aliens may be detained pending

deportation without such detention constituting unconstitutional

punishment, even when the aliens’ country of origin indicates it

will not accept their return. See Gisbert v. U.S. Attorney

General, 988 F.2d 1437, 1448 (5th Cir. 1993). See also Barrera-

Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir. 1995) (en banc)

(accord with Gisbert).

Gisbert dealt with the detention of a group of Cubans who were

part of the Mariel boatlift. After detaining these aliens prior to

entry—thus ensuring that they were excludable aliens—the United

States decided that they should be returned to their country of

origin. Castro refused to accept their return, however, and the

aliens were released on immigration parole. Due to the working of

17
the “entry fiction,”11 the aliens retained their excludable status

despite their freedom on American soil. All of the aliens in

Gisbert then committed, and were convicted of, crimes while on

parole. After their release from the criminal justice system, the

aliens were detained pending deportation to prevent any further

criminal acts. In Gisbert, as under the provisions here, there was

a procedure that allowed the detained alien to be released from

detention while deportation was still impractical. See id. at 1443

n.11 (detailing annual review procedures that allowed release of

aliens found not to present a danger to the community).

The aliens did not challenge the conditions of their

confinement or the procedures used in the initial decision to

deport them. They instead argued that their continued confinement

constituted punishment without a criminal trial and thus violated

their substantive due process rights. They emphasized the fact

that in light of Castro’s refusal to accept their deportation,

their confinement was potentially indefinite. We rejected these

arguments and held that the continued, indefinite detention of the

aliens did not violate their constitutional rights. In reaching

this result, we relied on the Court’s decision in Mezei, in which

it allowed the indefinite detention of an excludable alien who had

been ordered permanently excluded and could find no nation to

receive him. See Mezei, 73 S.Ct. 625. Drawing on the reasoning of

11
The fact that, for humanitarian or administrative reasons,
the government chooses to allow excludable aliens into the country
while their cases are pending does not alter their status if they
were initially properly detained at the border. See, e.g., Ahrens
v. Rojas, 292 F.2d 406, 410 (5th Cir. 1961).

18
Mezei, we found that detention pending deportation does not

constitute punishment, since the detention could rationally be seen

as a necessary byproduct of the need to expel an unwanted alien

rather than a punitive decision. Gisbert, 988 F.2d at 1442. The

continued detention of Mariel Cubans thus did not constitute

punishment without trial in violation of the aliens’ substantive

due process rights, even though there was no guarantee that

deportation could be effectuated in the near future.

Zadvydas attempts to distinguish Gisbert and Mezei on the

ground that he is a resident alien, and thus is entitled to a

greater degree of substantive due process protection than the

excludable aliens in those cases. Zadvydas’ resident alien status

surely entitled him to greater procedural rights in the

determination of whether he was entitled to remain in the United

States than were granted the excludable aliens in those cases.

However, Zadvydas does not challenge here the procedures used by

the government in deciding to deport him, or the final result. His

only complaint is with the detention itself. As explained in part

IV below, we do not believe that the difference between excludable

aliens and resident aliens mandates a radical departure from the

reasoning of Gisbert when, as here, a final decision to deport the

once resident alien has been made and stands unchallenged.

III. Permanent Confinement

The district court held that Zadvydas’ detention violated his

substantive due process rights because it constituted “permanent

confinement” in that he “will never be deported because there is no

19
place to send him.” 986 F.Supp. at 1026, 1027. We conclude that

these reasons considerably overstate the matter.

To begin with, Zadvydas may be released when it is determined

that he is no longer either a threat to the community or a flight

risk, and he is entitled to automatic review of his case for this

purpose every six months, with opportunity to present factors in

support of his release, and, where his written application for

release has been denied by the district director, he may appeal

that decision to the BIA. See note 9, supra, and accompanying

text. In Barrera-Echavarria, the en banc Ninth Circuit concluded

that analogous annual INS administrative review for release under

similar standards precluded characterization of the alien’s

detention as “‘indefinite’ or ‘permanent.’” 44 F.3d at 1450.12

Nor can it now be said with any real assurance that Zadvydas

“will never be deported.” To be sure, it is clear that due to an

unfortunate combination of circumstances, locating a country to

which Zadvydas may be deported has been and will be difficult at

best; but that there is no meaningful possibility of doing so has

not been clearly established. And, precisely because of the

complexities involved, more time than usual will doubtless in any

event be required.

The problem of deporting Zadvydas has its roots in the

tortured twentieth century history of what is now Lithuania. Up

until the German defeat in World War One, portions of Lithuania

12
We also note that at a certain point—which Zadvydas may be
approaching—age alone would likely weigh heavily against an INS
finding of continued danger to the community or flight risk.

20
were located in Germany. Zadvydas’ mother was born in that section

of modern Lithuania—then known as the Memel region, now called

Klaipeda—in 1919. Six years earlier (according to his own account

in an affidavit prepared to secure his post-war immigration to

America), Zadvydas’ father had been born in Mazeikiai, which is

located on the Baltic coast outside of the disputed Memel region

and thus would presumably have been under Russian control at the

time of his birth. As part of the Versailles Treaty, Germany ceded

the Memel region to the Allies. Lithuania, having renewed its

existence as an independent state, successfully laid claim to the

area and occupied it in 1923. At that point, Zadvydas’ mother and

father presumably would both have been Lithuanian citizens, since

they were apparently born within the resurrected nation’s current

borders.

However, in 1939 Germany issued an ultimatum to Lithuania

demanding the return of the Memel region, referencing the alleged

plight of ethnic Germans under Lithuanian rule. The territory was

then handed back to Germany, and (if she was still living in the

region) Zadvydas’ mother then would have become a subject of Nazi

Germany. Unlucky in neighbors, Lithuania then had its independence

extinguished by Stalin’s 1940 invasion, which placed Zadvydas’

father in the Soviet orbit (again, presuming he lived near his

claimed home town at the time). See generally Algimantas Gureckas,

Lithuania’s Boundaries and Territorial Claims Between Lithuania and

Neighboring States, 12 N.Y.L. Sch. J. Int’l & Comp. L. 107 (1991).

Hitler then invaded the Soviet Union in 1941, and Lithuania was

21
under German occupation for most of the Second World War. Late in

that conflict, the Soviet army reoccupied Lithuania. The Soviets

did not reestablish the Lithuanian independence they had earlier

snuffed out, and Lithuania remained a captive to Soviet tyranny

until 1991. In the midst of all this, Zadvydas’ parents were

married in 1943. At some point, the couple moved (or fled) to

Germany, where their first child was born in 1944. The family

spent the immediate post-war years in displaced person camps in

Germany. On Nov. 21, 1948, Zadvydas was born in one of these

camps. In 1956 the family immigrated to America.

Due to these events, Zadvydas may in a sense be stateless.

While born in Germany, he cannot claim German citizenship on that

basis alone, because under German law citizenship hinges on blood

(jus sanguinis) rather than place of birth (jus soli). Lithuania

would seem to be the obvious alternative. Lithuanian sanguinis may

be able to substitute for Zadvydas’ birth outside of Lithuania.

According to the communications from the Lithuanian government,

Zadvydas can apply for Lithuanian citizenship if both his parents

were born in Lithuania prior to the Soviet invasion in 1940.13

13
Lithuania’s citizenship laws are apparently designed to give
preference to ethnic Lithuanians over the large number of
ethnically Russian immigrants who established themselves in the
years of communist occupation. The requirement of proving birth of
one’s ancestors in Lithuanian territory neatly differentiates the
two populations. See Ruta M. Kalvaitis, Citizenship and National
Identity in the Baltic States, 16 Bos. U. Int’l L. J. 231 (1998).
This seems to be merely a variant of the jus sanguinis principal.
It should be noted that the blood citizenship laws that must be
navigated here would appear to administratively function somewhat
differently from American birth citizenship laws. Because birth
alone is not sufficient, it appears that under Lithuanian practice
one (or one’s parents) has to affirmatively apply for citizenship.

22
According to their own accounts, both parents would qualify under

this standard. The difficulty that has so far delayed the process

seems to be the need to document this fact. There is a baptismal

certificate indicating his mother’s birth in the Memel region,

which is now part of Lithuania.14 However, there is no

corresponding documentation demonstrating that Zadvydas’ father was

born in Mazeikiai. The only evidence that has been unearthed up to

this point is his affidavit upon entering the United States, which

claimed birth in Lithuania.

The Lithuanian government, in letters dated October 26, 1998,

and March 25, 1999, indicated that Zadvydas might apply for

citizenship, but would have to personally and formally request it,

and present documentation of his parent’s birth. The INS had

previously presented most of the available documentation—the

The fact that Lithuania is asserting that Zadvydas must apply for
citizenship may thus not be unusual. It does seem to have caused
some confusion in the communications between the INS and Germany
and Lithuania. The INS continually asked for confirmation that
Zadvydas was a citizen, rather than framing the matter as an
application for citizenship. Given the circumstances of Zadvydas’
birth, it would seem unlikely that his parents paused to put him in
the national registry of either country. While perhaps
understandable, this confusion may have slowed the process here.
14
Zadvydas attempts to argue that the fact that at the time
Zadvydas’ mother was born the status of the Memel region was
unsettled indicates that she could not claim Lithuanian
citizenship. Nothing in the record supports this theory, and it
would seem contrary to ordinary practice. See Restatement Third,
Restatement of the Foreign Relations Law of the United States §
208, comment c; id. Reporters’ Note 3 (“Normally, the transfer of
territory from one state to another results in a corresponding
change in nationality for the inhabitants of that territory”).
While there is some evidence that Zadvydas’s mother considered
herself stateless, or German, this may not accurately track
Lithuanian nationality law.

23
baptismal certificate and Zadvydas’ father’s affidavit—in its

communications with Lithuania. It is not clear, however, whether

these materials were examined by the Lithuanians as support for an

application for citizenship, rather than as part of a claim that

Zadvydas already possessed citizenship. Certainly there has been

no definitive denial by Lithuania of any application for

citizenship by Zadvydas. Accordingly, it is premature to assume

that the Lithuanians will reject Zadvydas based on the current

documentation. Even if they were to demand more reliable evidence

of his father’s birthplace, there is no basis on which to conclude

that more cannot be uncovered. After all, it does not seem

disputed that he was born in what became Lithuania. For example,

a search of the public records in Mazeikiai or elsewhere (so far

apparently unperformed anywhere by anyone) might prove fruitful.

To be sure, such efforts may ultimately prove unsuccessful. And

even if unimpeachable evidence of Lithuanian parentage is produced,

there is a hint in the record that Lithuania might be able to

reject Zadvydas’ application based on his criminal record.

However, there is no basis for finding that any ability of Zadvydas

to become a Lithuanian citizen, and hence deportable there, has

been definitively foreclosed.

Also, apart from Lithuania, two other potential options appear

to remain unexplored. The record indicates that the German

government, in a letter dated May 1995, has definitively rejected

the INS’ efforts to deport Zadvydas to Germany and mentioned

“extensive research” establishing that he is not a German citizen.

24
If—as it appears—the only evidence put forth by the INS was

Zadvydas’ birth in Germany, this decision would seem justified

under the jus sanguinis principle. However, it would seem that

another argument, as yet apparently untapped, might properly be

advanced to justify Zadvydas’ German citizenship. Zadvydas may in

fact have German blood, and thus qualify under jus sanguinis.

After World War Two, German law allowed members of ethnic

German communities—some of which, such as the “Volga Germans,” had

been separated from Germany proper for centuries—to claim

citizenship under far more lenient terms than applied to foreigners

generally. See Note, Deutschland ist Doch ein Einwanderungsland

Geworden: Proposals to Address Germany’s Status as a “Land of

Immigration,” 30 Vand. J. Transnat’l L. 905, 916-923 (1997).

Zadvydas’ mother was born in the Memel region in 1919. Prior to

its defeat in World War One, this region was part of Germany. It

would thus seem reasonably possible that Zadvydas’ mother could be

considered an ethnic German—indeed, her birth documentation is in

German, not Lithuanian or Polish. It lists her maiden name as

Steffan, and her mother’s maiden name as Jackshies. It is not

obvious to us that these are non-Germanic names. Perhaps Zadvydas

could apply for German citizenship claiming ethnic German

ancestry.15 Obviously, the success of such an approach is far from

assured—and even if Zadvydas’ ethnic status can be shown, his

15
There is nothing to indicate that the mother’s potential
German ethnicity would in any way affect parallel efforts to obtain
Lithuanian citizenship. Lithuania’s laws appear to be solely
focused on the problem of Russian immigrants.

25
presence in the United States, lack of language skills, or what

seems to be his father’s likely un-Teutonic ethnicity might defeat

such an application. But see id. at 923 (“Judicial interpretation

and administrative application of the statutes governing

naturalization of ethnic Germans have established that the

threshold for proving oneself to be an ethnic German is very

low.”).

A final potential option, apparently completely unexplored, is

to attempt to claim Russian citizenship for Zadvydas. Wherever

Zadvydas’ parents were born, it seems undisputed that their

birthplaces would have been inside the borders of the Soviet Union

at its post-war height. Russia has apparently been liberal in

granting citizenship to former citizens of the Soviet Union now

living outside of Russia’s borders. See Kalvaitis, National

Identity in the Baltic States, 16 Bos. U. Int’l L. J. at 240 n.64.

It is noted in an INS affidavit that Zadvydas’ mother travels to

Russia frequently. Before the immigration judge Zadvydas seemed to

indicate that these visits were to visit family.16 An INS letter

indicates the Zadvydas’s mother has a sister in Russia whom she

visits every year. If Zadvydas does indeed have an aunt living in

Russia, he might perhaps qualify for citizenship there. The record

does not reveal the details of this apparent family relationship,

nor does it contain a discussion of Russian citizenship law.

Again, then, success obviously cannot be presumed. The point is

16
When the immigration judge asked whether Zadvydas was aware
of any relatives he might have in Germany on his mother’s side who
she was in contact with, Zadvydas replied “no, she goes to Russia.”

26
that the record indicates that there may be some slight possibility

of this, and that this possibility is apparently wholly unexplored.

As the preceding discussion indicates, the unfortunate

historical context of Zadvydas’ birth makes untangling his true

nationality highly difficult and time consuming at best. But that

does not mean impossible. Continued efforts might eventually

produce a breakthrough with Lithuania—and, if required, further

proof of his father’s birth may ultimately be unearthed. And

avenues for claiming German and Russian citizenship remain

unexplored. Nor is it clear that the Dominican situation has been

fully explored. While the delay here is long, it appears to be

what one could expect given the tangled circumstances and

inadequate documentation. Given the traditional deference we show

to the other branches in matters of immigration policy, judicial

intrusion should not be considered, particularly where there are

reasonable avenues for parole, until there is a more definitive

showing that deportation is impossible, not merely problematical,

difficult, and distant. However, it is certainly no clearer here

that Zadvydas “will never be deported because there is no place to

send him” than it was respecting the aliens in Gisbert, and here,

as also in Gisbert, 988 F.2d at 1447, the government is continuing

its efforts to effect Zadvydas’ removal.

IV. Substantive Due Process and Detention of a Resident Alien
Validly Ordered Deported

Zadvydas argues that as a resident alien he has greater rights

under these circumstances than an excludable alien would, and thus

that his current detention is a form of punishment unjustified by

27
any criminal conviction despite the result in cases such as Mezei

and Gisbert involving excludable aliens. However, there is little,

if any, room for a distinction between the rights in this respect

of excludable and resident aliens when their circumstances are so

similar. Zadvydas’ detention is currently within the core area of

the government’s plenary immigration power and thus does not

violate substantive due process.

The differences that exist in the rights of excludable and

resident aliens are not the product of some bright line division

that places excludable aliens beyond the pale of constitutional

scrutiny. Excludable aliens are persons, entitled to some due

process, and other, constitutional protections. The fact that they

are entitled to a lesser degree of procedural due process in

proceedings to determine whether they may enter the country stems

ultimately not from their status as such, but rather from the

nature of what is asserted. An attempt to enter this country is a

request for a privilege rather than an assertion of right. See

Landon v. Plasencia, 103 S.Ct. 321, 329 (1982). Denial of entry is

thus not a deprivation of rights subject to procedural due process,

and that, coupled with our deference to the other branches,

mandates that we leave it to Congress to determine the procedures

to be used in adjudicating such claims. See, e.g., Knauff, 70

S.Ct. at 313 (”Whatever the procedure authorized by Congress is, it

is due process as far as an alien denied entry is concerned.”). In

practice, this determination may foreclose most constitutional

challenges on behalf of excludable aliens and create the impression

28
that they have no constitutional rights. They have no procedural

rights with regard to their entry, and most of their substantive

rights will be constrained by the government’s need to control

immigration. See, e.g., Gisbert, 988 F.2d at 1448. Since many

will never enter the country or will do so only briefly, they will

have little opportunity to assert Yick Wo-type rights in matters

unconnected to the plenary power. However, to the extent that

their substantive rights are infringed—either during the

immigration process or while they are on parole subject to the

entry fiction—in a manner that cannot be connected to the

immigration power, they may assert such rights. See Lynch, 810 F.2d

at 1374-75 ( excludable aliens are persons, and thus allowed to

bring suit against allegedly brutal government agents since “we

cannot conceive of any national interests that would justify the

malicious infliction of cruel treatment”).

Resident aliens, by virtue of their presence here, develop an

interest in remaining that, to a certain extent, entitles them to

procedural due process before they may be removed from this

country. See, e.g., Landon, 103 S.Ct. at 329 (in a discussion

limited to procedural due process rights, noting “once an alien

gains admission to our country and begins to develop the ties that

go with permanent residence his constitutional status changes

accordingly. Our cases have frequently suggested that a

continuously present resident alien is entitled to a fair hearing

when threatened with deportation [citations], and, . . . we

developed the rule that a continuously present permanent resident

29
alien has a right to due process in such a situation.”).17

However, the fact that resident alien status entitles one to

due process respecting the decision to deport does not mean that

the plenary power concept is extinguished. On the contrary, the

needs of the government are taken into account in evaluating such

claims and the standard for evaluating procedures is thus lower

than would be expected in analyzing the rights of a citizen with a

like interest. See Landon, 103 S.Ct. at 330 (resident alien who

has not severed her ties to the country is entitled to due process

before being removed, but in evaluating procedures “it must weigh

heavily in the balance that control over matters of immigration is

a sovereign prerogative”); Galvan v. Press, 74 S.Ct. 737, 742

(1954) (noting that while deportation of a long term resident alien

is drastic measure with consequences analogous to those stemming

from a criminal conviction, plenary power precedent mandates

nonapplicability of the ex post facto clause); I.N.S. v. Lopez-

Mendoza, 104 S.Ct. 3479, 3483 (1984) (deportation, despite the

weighty interests involved, is a civil proceeding and not subject

to the same battery of procedural protections as would govern a

criminal trial); United States ex rel. Bilokumsky v. Tod, 44 S.Ct.

54, 56 (1923) (involuntary confession admissible in deportation

hearing).

Nothing in these cases suggests that a resident alien has a

17
Indeed, as Landon reflects, those rights extend to resident
aliens seeking reentry after a brief trip abroad not meaningfully
interruptive of the alien’s continued United States residence. Id.
103 S.Ct. at 329-330.

30
broadly privileged constitutional status relative to excludable

aliens, or is constitutionally entitled to more favorable treatment

when both the right asserted and the governmental interest are

identical to those in the parallel case of an excludable alien.18

The constitutional rights of resident aliens may certainly be

affected by the plenary power. See, e.g., Fong Yue Ting, 13 S.Ct.

at 1026 (in case involving rights of a resident alien,

distinguishing Yick Wo on the grounds that “[t]he question there

was of the power of a state over aliens continuing to reside within

its jurisdiction, not of the power of the United States to put an

end to their residence in the country”); Wong Wing, 16 S.Ct. at

981 (drawing distinction between “the power of congress to protect,

by summary methods, the country from the advent of aliens . . . or

to expel such if they have already found their way into our land,

and unlawfully remain therein” and the decision to imprison aliens

at hard labor for a term notwithstanding the ability to rapidly

remove the alien from the national community). Both excludable and

resident aliens have the right to be free of abuses that—while

tangentially and remotely related to the immigration process—cannot

be justified as in furtherance of immigration goals. See Lynch,

810 F.2d at 1375 (excludables); Wong Wing, 16 S.Ct. at 981

18
In Landon, the court noted that a resident alien had greater
substantive rights under the immigration statutes. See Landon, 103
S.Ct. at 326. In Gisbert, we referenced this discussion of
statutory treatment and concluded that resident aliens “generally
are granted greater substantive rights than are excludable aliens.”
Gisbert, 988 F.2d at 1440. Nothing in this discussion can be read
to imply that there is an across-the-board difference in the
constitutional (as opposed to statutory or regulatory) status of
the two categories of aliens.

31
(resident). But both excludable and resident aliens may come in

conflict with the government’s sovereignty interests, and when this

occurs their rights are constrained accordingly and to the same

extent. As applied to detention pending removal, any here relevant

constitutional distinction between excludable and resident aliens

who have each been properly and finally determined to be removable

would necessarily rest on a conclusion that excludable aliens are

nonpersons wholly unprotected by the Constitution. However, that

conclusion would conflict with our holding in Lynch and would

require us to conclude that aliens in the position of those in

Gisbert could be statutorily subjected to the rack and the screw,

the Eighth Amendment notwithstanding.

In the circumstances presented here, the national interest in

effectuating deportation is identical regardless of whether the

alien was once resident or excludable. When a former resident

alien is—with the adequate and unchallenged procedural due process

to which his assertion of a right to remain in this country

entitles him—finally ordered deported, the decision has irrevocably

been made to expel him from the national community. Nothing

remains but to effectuate this decision. The need to expel such an

alien is identical, from a national sovereignty perspective, to the

need to remove an excludable alien who has been finally and

properly ordered returned to his country of origin. See Fong Yue

Ting, 13 S.Ct. at 1022 (the “power to exclude aliens, and the power

to expel them, rest upon one foundation, are derived from one

source, are supported by the same reasons, and are in truth but

32
parts of one and the same power”). Whether the party to be

deported is an excludable or a former resident, the United States

has properly made its decision and earnestly wishes—if for no other

reason than to save the cost of detention—to deport the detainee.

And deportation itself is not punishment. See INS v. Lopez-

Mendoza, 104 S.Ct. at 3483 (“The purpose of deportation is not to

punish past transgressions, but rather to put an end to a

continuing violation of the immigration laws.”); American-Arab, 119

S.Ct. at 947 (“Even when deportation is sought because of some act

the alien has committed, in principle the alien is not being

punished for that act (criminal charges may be available for that

separate purpose) but is merely being held to the terms under which

he was admitted. And in all cases, deportation is necessary in

order to bring to an end an ongoing violation of United States

law.”).

The fact that deportation cannot be immediately effectuated

would not seem to recreate a distinction in the government’s

interest regarding excludable aliens and resident aliens. When

deportation is somehow blocked, the government must worry about two

things. If the alien is not detained, he may commit crimes against

the general population—crimes he would have been unable to commit

had the decision to deport been effectuated. The whole point of

earmarking criminal aliens for deportation or exclusion is that

while we must tolerate a certain risk of recidivism from our

criminal citizens, we need not be similarly generous when it comes

to those who have not achieved citizenship. Their presence in this

33
country is thus a continuing violation of the immigration laws, and

if the preferred method of ending this violation is unavailable,

detention may be an acceptable alternative mechanism to achieve the

ultimate goal. See Gisbert, 988 F.2d at 1442 (noting protection of

society from potentially dangerous alien was a rational,

nonpunitive purpose for detention). See also Tran v. Caplinger,

847 F.Supp. 469, 476 (W.D. La. 1993) (“This court can find no

logical basis to conclude that the detention of a deportable alien

under these circumstances is ‘punishment’ while the detention of an

excludable alien is not”).19 In addition, when deportation becomes

feasible, the alien may frustrate the process by disappearing

within the country, as so many have done. If the government’s

efforts eventually make deportation feasible, it will be unable to

effectuate its decision to expel if the alien has fled and gone

19
Pre-trial detention of citizens charged with a serious
crime—but presumptively innocent—may be justified by the
government’s interest in protecting the public. See United States
v. Salerno, 107 S.Ct. 2095, 2103 (1987). The Court has allowed
indefinite detention of a citizen as long as there has been a
finding of continued danger and “some additional factor” is
present. See Kansas v. Hendricks, 117 S.Ct. 2072, 2080 (1997). In
Hendricks, the special circumstance or additional factor was a
diagnosis of pedophilia, and the Court upheld a statute that
allowed indefinite detention of such persons as long as periodic
review was available to certify that the detainee remained
dangerous and mentally ill. Cf. Foucha v. Louisiana, 112 S.Ct.
1780, 1788 (1992) (indefinite detention of person acquitted by
reason of insanity after medical diagnosis indicated he was no
longer mentally ill could not be justified by danger alone). See
also Gisbert, 988 F.2d at 1441 n.6 (distinguishing Foucha on the
grounds it involved a citizen and a case where “the basis for
holding him in that facility had ceased to exist”). We note this
only to demonstrate that detention of certain classes of persons to
protect society at large is not wholly alien to our constitutional
order and has been allowed in special situations when, as here,
there are procedures to insure that detention must be periodically
reviewed.

34
underground in the interim. These interests are both equally

potentially present regardless of whether an alien was once

resident or excludable.

Once the decision is made to deport a resident alien, then,

there is little, if any, difference in the government’s interest in

effectuating deportation of a resident alien and expulsion of an

excludable alien. There is thus nothing to adequately distinguish

the plenary interest from the one encountered in Gisbert. To the

extent that Zadvydas had greater rights than the excludable aliens

there, such rights were, so far as here relevant, procedural rights

respecting the deportation decision, and have concededly been

honored. We hold that the government may detain a resident alien

based on either danger to the community or risk of flight while

good faith efforts to effectuate the alien’s deportation continue

and reasonable parole and periodic review procedures are in place.20

Conclusion

For the reasons stated, the judgment of the district court is

REVERSED.

20
We are aware of the recent joint opinion of five district
judges in the Western District of Washington in Binh Phan et al. v.
Reno et al. (Nos. C98-2342, C99-177C, C99-185R, C99-341WD, & C99-
151L, W.D. Wash. July 9, 1999), which reaches a contrary result.
We decline to follow that decision because it rests on a
categorical distinction between the detention pending expulsion of
deportable aliens who have been finally and properly ordered
deported and the detention pending expulsion of excludable aliens
who have been finally and properly ordered removed, a distinction
which for these purposes we have rejected for the reasons stated in
the text.

35