Zadvydas v. Underdown

Revised March 14, 2002

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-31345

KESTUTIS ZADVYDAS,

Petitioner-Appellee,

versus

CHRISTINE G. DAVIS, U. S. IMMIGRATION
AND NATURALIZATION SERVICE,

Respondents-Appellants.

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

ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES

March 12, 2002

Before GARWOOD, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:

This habeas proceeding, in which petitioner–appellee Kestutis

Zadvydas (Zadvydas), a resident alien, attacks his continued

detention by respondent-appellant, Immigration and Naturalization

Service (INS), when his unchallenged deportation could not be
carried out because no country had been found which would accept

him, is again before us on remand from the Supreme Court.

The presently relevant procedural and factual background is

generally stated in the opinion of the Supreme Court, Zadvydas v.

Davis, 121 S.Ct. 2491 (2001), and in our prior opinion herein,

Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999). We summarize

that background as follows.

Zadvydas was born in 1948 in a displaced person camp in

Germany. In 1956 he immigrated with his family to this country and

became a resident alien, but never became a citizen. Based on his

1966 and 1974 New York convictions for attempted robbery and

attempted burglary, the INS in 1977 instituted deportation

proceedings against him. While these were pending Zadvydas was

released into the community. In February 1982 the INS denied his

motion for relief from deportation; a hearing in the deportation

proceedings was set for later that year, but Zadvydas disappeared

and over the next decade the INS failed to locate him. In 1987 he

was arrested and charged in Virginia with possessing 474 grams of

cocaine with intent to distribute. While on bail awaiting trial on

this Virginia charge, Zadvydas fled to Texas. Several years later

he surrendered to the authorities and in 1992 was convicted in

Virginia on the cocaine possession with intent to distribute charge

and sentenced to sixteen years’ imprisonment, with six years

suspended. After serving two years, Zadvydas was released on

2
parole in 1994 and was promptly taken into INS custody. He

admitted his past criminal history, conceded deportability and

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 deported to Germany, of which country Zadvydas had

apparently indicated he was a citizen. He did not appeal that

decision, and remained in INS custody.

Later in 1994 Germany informed the INS that Zadvydas was not

a German citizen and it would not accept him, and Lithuania

likewise refused to accept him because he was neither a citizen nor

a permanent resident of Lithuania.

Zadvydas, still in INS custody, filed the instant habeas

proceeding under 28 U.S.C. § 2241 in September 1995, challenging

his continued INS detention. In October 1997 the district court

held that, since Zadvydas “will never be deported because there is

no place to send him”, his continued “detention is violative of his

constitutional rights to substantive due process.” Zadvydas v.

Caplinger, 986 F.Supp. 1011, 1027 (E.D. La. 1997).1 The court

1
The district court also ruled that 8 U.S.C. former § 1252(a)
provided statutory authority for continued INS detention, that
under that statute detention was mandatory for one such as Zadvydas
who had been convicted of an aggravated felony unless he
established that he was not a threat to the community and was
likely to appear for scheduled hearings, and that Zadvydas “has not
met his burden of proving that he is not a threat to the community
and that he is likely to appear for scheduled hearings.” Id. at
1024. The court also noted that the INS had afforded Zadvydas an
interview and file review to determine whether to release him on
bond pursuant to the Transition Period Custody Rules of the Illegal

3
therefore ordered that Zadvydas be released from INS custody on

conditions to be set by the court following a hearing. Conditions

were subsequently fixed by the court and Zadvydas was released

pursuant thereto.2

Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA, § 303(b)(3)(B)), and had declined to release him because
he had not shown that he is not a threat to the community and that
he is likely to appear for scheduled hearings. Id. at 1024 n.4.
Zadvydas did not appeal that INS determination to the Board of
Immigration Appeals (BIA).
In the district court, Zadvydas also challenged his
deportation order and denial of relief from deportation under 8
U.S.C. § 1182(c) on due process and other grounds, and the district
court rejected all such challenges. Id. at 1020-23. Zadvydas did
not appeal or cross-appeal the district court’s decision and never
sought to renew in this Court any of such challenges.
2
The conditions, which are apparently essentially those
suggested by the INS, are the following:

“1) A cash maintenance and departure bond is set in
this matter in the sum of two thousand dollars.
2) The petitioner Kestutis Zadvydas, or his family
post said bond prior to, and as a condition of, his
release.
3) The petitioner report to the Immigration and
Naturalization Service in Houston, Texas on a
regular basis, at least once a month, and to advise
said service of his whereabouts and address, along
with any change of address. In the event of a
change of address petitioner is to report to the
Immigration and Naturalization Service in the city
in which he has relocated.
4) Petitioner’s brother-in-law, Juan Ferreira, is
named as sponsor of Kestutis Zadvydas and is to
remain as his sponsor until further notice from
this court.
5) That the petitioner is to obtain employment upon
his release and is to advise the Immigration and
Naturalization Service of any change in employment.
6) The petitioner is to reside with his wife, Maria
Ferreira Zadvydas in Houston, Texas and, in
conjunction therewith, provide the Immigration and

4
 The INS appealed to this Court. We reversed. Zadvydas v.

Underdown, 185 F.3d 279 (5th Cir. 1999). We held that the district

court had habeas jurisdiction under section 2241. Id. at 285-86.

We further held that section 241 of the Immigration and Nationality

Act (INA), 8 U.S.C. § 1231, was the governing statute respecting

the complained of INS detention. Section 241(a)(1) and (2), 8

U.S.C. § 1231(a)(1) and (2), provides that the Attorney General

shall remove an alien within the “removal period,” which it

generally defines 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 any non-

immigration confinement, whichever is latest, and shall detain the

alien during the removal period. Section 241(a)(3), 8 U.S.C. §

1231(a)(3), provides that the alien, if not removed during the

removal period, shall, pending removal, be subject to supervision

under regulations prescribed by the Attorney General. Section

Naturalization Service with the address of his
residence.
7) The petitioner is to immediately notify the
Immigration and Naturalization Services of any
changes relative to the above requirements.
8) The petitioner shall provide proof to the
Immigration and Naturalization Service of his
having obtained health insurance coverage for
himself within forty-five days of his release.
9) The petitioner shall be released thirty days from
November 21, 1997, provided the above bond has been
posted with the Immigration and Naturalization
Service.”
At no time subsequent to the fixing of these conditions has
the INS challenged their adequacy or propriety.

5
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), 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).”

We held that section 1231(a)(6) authorized the INS to detain

Zadvydas following the removal period and until his removal could

be effected,3 and that INS regulations provided for his release on

conditions in the interim if it were determined that he was not a

threat to the community and was likely to comply with the removal

order, and for such determinations to be made periodically or on

changed conditions as well as on written request of the alien, with

opportunity for review by the Board of Immigration Appeals in the

latter event. Id., 185 F.3d at 287 & n.9.

Respecting the district court’s conclusion that Zadvydas “will

never be deported because there is no place to send him,” we

reviewed the INS’s efforts to effectuate his deportation both

before and since the filing of the habeas action as well as during

the pendency of the appeal, and we considered various still

unresolved or unexplored apparently potential opportunities in this

respect. Id., 185 F.3d at 284, 291-94. We stated that it could

3
We noted that Zadvydas was “removable under [8 U.S.C.]
section . . . 1227(a)(2)” as having been convicted of an aggravated
felony or a controlled substance violation.

6
not “now be said with any real assurance that Zadvydas ‘will never

be deported’”, and that “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.” Id. at 291. We concluded in this respect by

stating: “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.” Id. at 294.4 We

accordingly rejected Zadvydas’s claim that his continued detention

under section 1231(a)(6) violated his substantive due process

rights, and held that under section 1231(a)(6) “the government may

detain a resident alien based either on 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.” Id., 185 F.3d at 297.5 We therefore

4
We continued by stating “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 [v. U.S. Attorney
General, 988 F.2d 1437 (5th Cir. 1993)].” Id.
5
We relied in large part on Shaughnessy v. United States ex.
Rel. Mezei, 73 S.Ct. 625 (1953), and our decision in Gisbert v.
U.S. Attorney General, 988 F.2d 1437 (5th Cir. 1993), though
recognizing that those cases each involved excludable aliens held
at the border, or only paroled into the country, while Zadvydas was
a resident alien. 185 F.3d at 290, 294-97. We held that that
distinction was not determinative in the present context since
Zadvydas was subject to a lawful and final order of deportation and
his detention was not punitive but rather was in connection with
and in furtherance of the INS’s good faith efforts to carry out

7
reversed the district court’s grant of habeas relief.6

The Supreme Court granted Zadvydas’s petition for writ of

certiorari, Zadvydas v. Underdown, 121 S.Ct. 297 (2000),

consolidated the case with Ashcroft v. Ma, in which review was

granted of the decision in Ma v. Reno, 208 F.3d 815 (9th Cir.

2000), and ultimately “vacate[d] the decisions below and remanded

both cases for further proceedings consistent with this opinion.”

Zadvydas v. Davis, 121 S.Ct. 2491, 2505 (2001).

The Court held that the district court had habeas jurisdiction

under section 2241, id. 121 S.Ct. at 2497-98, and that post-removal

period INS detention was authorized and governed by section

1231(a)(6). Id. at 2495, 2496. The Court described the basic

question before it and its ultimate holding as follows:

“. . . we must decide whether this post-removal-period
statute [§ 1231(a)(6)] authorizes the Attorney General to
detain a removable alien indefinitely beyond the removal
period or only for a period reasonably necessary to
secure the alien’s removal. We deal here with aliens who
were admitted to the United States but subsequently
ordered removed. Aliens who have not yet gained initial
admission to this country would present a very different
question. . . . Based on our conclusion that indefinite
detention of aliens in the former category would raise
serious constitutional concerns, we construe the statute
to contain an implicit ‘reasonable time’ limitation, the
application of which is subject to federal court review.”

that order. Id.
6
We stayed our mandate pending potential Supreme Court review.
Our opinion had noted that “[w]hile this appeal has been pending,
Zadvydas seems to have complied with the district court’s release
conditions and has apparently conducted himself as a productive
member of society.” Id., 185 F.3d at 284.

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 Id. at 2495.

. . .

. . . the statute [§ 1231(a)(6)], read in light of the
Constitution’s demands, limits an alien’s post-removal-
period detention to a period reasonably necessary to
bring about that alien’s removal from the United States.
It does not permit indefinite detention.” Id. at 2498.

. . .

. . . interpreting the statute [§ 1231(a)(6)] to avoid a
serious constitutional threat, we conclude that, once
removal is no longer reasonably foreseeable, continued
detention is no longer authorized by the statute.” Id.
at 2503.

In its discussion of constitutional concerns, the Court noted

that section 1231(a)(6) “does not apply narrowly to ‘a small

segment of particularly dangerous individuals’ [citation omitted],

say suspected terrorists, but broadly to aliens ordered removed for

many and various reasons, including tourist visa violations.” Id.

at 2499. See also id. at 2502 (“Neither do we consider terrorism

or other special circumstances where special arguments might be

made for forms of preventive detention and for heightened deference

to the judgment of the political branches with respect to matters

of national security.”). The Court also noted that “we nowhere

deny the right of Congress to remove aliens, to subject them to

supervision with conditions when released from detention, or to

incarcerate them where appropriate for violation of those

conditions.” Id. at 2501 (citing 8 U.S.C. §§ 1231(a)(3) and 1253).

See also id. at 2502 (“The choice, however, is not between

9
imprisonment and the alien ‘living at large’ [citation omitted].

It is between imprisonment and supervision under release conditions

that may not be violated”).7

The Court then describes the habeas court’s task in a case

such as this, viz:

“The habeas court must ask whether the detention in
question exceeds a period reasonably necessary to secure
removal. It should measure reasonableness primarily in
terms of the statute’s basic purpose, namely assuring the
alien’s presence at the moment of removal. Thus, if
removal is not reasonably foreseeable, the court should
hold continued detention unreasonable and no longer
authorized by statute. In that case, of course, the
alien’s release may and should be conditioned on any of
the various forms of supervised release that are
appropriate in the circumstances, and the alien may no
doubt be returned to custody upon a violation of those
conditions. . . . And if removal is reasonably
foreseeable, the habeas court should consider the risk of
the alien’s committing further crimes as a factor
potentially justifying confinement within that reasonable
removal period.” Id. at 2504.

The Court further noted that “we think it practically

necessary to recognize some presumptively reasonable period of

detention,” id., declined to hold that such presumptively

reasonable period ended with the end of the removal period, id. at

2505, and instead chose a six month period (apparently beginning

with the beginning of the removal period), stating:

“After this 6-month period, once the alien provides good

7
In its discussion of the constitutional concerns, the Court
also observed that Shaughnessy v. United States ex rel. Mezei, 73
S.Ct. 625 (1953), was not controlling because it dealt with aliens
who had been stopped at the border, and had not effected entry into
the United States, 121 S.Ct. at 2500, 2501.

10
 reason to believe that there is no significant likelihood
of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut
that showing. And for detention to remain reasonable, as
the period of prior post-removal confinement grows, what
counts as the ‘reasonably foreseeable future’ conversely
would have to shrink. This 6-month presumption, of
course, does not mean that every alien not removed must
be released after six months. To the contrary, an alien
may be held in confinement until it has been determined
that there is no significant likelihood of removal in the
reasonably foreseeable future.” Id. at 2505.

The Court concluded by turning to our prior opinion and

stating:

“The Fifth Circuit held Zadvydas’ continued detention
lawful as long as ‘good faith efforts to effectuate . .
. deportation continue’ and Zadvydas failed to show that
deportation will prove ‘impossible’. . . . But this
standard would seem to require an alien seeking release
to show the absence of any prospect of removal–no matter
how unlikely or unforeseeable–which demands more than our
reading of the statute can bear.” Id

On our further consideration of this case consistently with

the Supreme Court’s opinion, we note that when Zadvydas filed his

habeas petition he had been in INS custody more than six months

after the expiration of the removal period and when the district

court’s decision was rendered he had been in such custody several

months in excess of three years after the expiration of the removal

period. Considering the record and the matters recited in the

district court’s opinion, in the prior opinion of this court and in

the Supreme Court’s opinion (nothing relevant since then having

been called to our attention), we conclude that Zadvydas has

“provide[d] good reason to believe that there is no significant

11
likelihood of removal in the reasonably foreseeable future” and

that the INS has not “rebut[ted] that showing”, particularly given

that “as the period of prior post-removal confinement grows, what

counts as the ‘reasonably foreseeable future’ conversely would have

to shrink.” Accordingly, we conclude that our prior disposition is

inconsistent with the opinion of the Supreme Court and the district

court’s judgment ordering that Zadvydas be released is not

ultimately in error.8

We therefore now withdraw our prior opinion and affirm the

judgment of the district court with the modification that it shall

not of itself preclude the INS from seeking to return Zadvydas to

INS custody (if that be otherwise shown to be appropriate) upon a

showing that, on the basis of matters transpiring after the

decision of the Supreme Court herein,9 there has then become a

substantial likelihood of removal in the reasonably foreseeable

future (shrunken as above indicated) or from seeking a modification

of the conditions of his release on the same basis (or on the basis

of some other material change in conditions since the decision of

8
The district court’s finding that Zadvydas will never be
deported because there is no place to send him plainly and
necessarily includes a finding that he will not be removed in the
reasonably foreseeable future. We also note that the INS has
never, so far as we are aware, claimed that Zadvydas is or was a
terrorist or part of any threat to the national security or that he
has violated any of his release conditions.
9
For example, the Supreme Court noted that as of the time of
its decision Zadvydas’s Lithuanian citizenship “reapplication is
apparently still pending.” Id., 121 S.Ct. at 2496.

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the Supreme Court).

JUDGEMENT AFFIRMED AS MODIFIED

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