Nadarajah v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AHILAN NADARAJAH, 
Petitioner-Appellant,
v.
No. 05-56759
ALBERTO R. GONZALES, Attorney
General; TOM RIDGE; MICHAEL J.  D.C. No.
CV-04-01939-LAB
GARCIA; RON SMITH; HECTOR
NAJERA; BARBARA WAGNER, OPINION
Warden, in their official
capacities,
Respondents-Appellees.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Argued and Submitted
March 7, 2006—Pasadena, California

Filed March 17, 2006

Before: Sidney R. Thomas and Richard C. Tallman,
Circuit Judges, and James M. Fitzgerald,* District Judge.

Opinion by Judge Thomas

*The Honorable James M. Fitzgerald, Senior United States District
Judge for the District of Alaska, sitting by designation.

3143
 NADARAJAH v. GONZALES 3147

COUNSEL

Ranjana Natrarajan, Ahilan T. Arulanatham, Mark D. Rosen-
baum, ACLU Foundation of Southern California, Los Ange-
les, California, and Jordan C. Budd, ACLU Foundation of San
Diego and Imperial Counties, San Diego, California, for the
appellant.

Christopher C. Fuller, Michael P. Lindemann, and Peter D.
Keisler, United States Department of Justice, Washington,
D.C., for the appellee.

Molly K. Beutz and James J. Silk, Allard K. Lowenstein
International Human Rights Clinic, Yale Law School, New
Haven, Connecticut, for the amicus curiae.

OPINION

THOMAS, Circuit Judge:

Starting at age 17, Ahilan Nadarajah was repeatedly tor-
tured in Sri Lanka. He fled to the United States where he was
detained upon arrival. He applied for asylum, withholding of
removal, and protection under the Convention Against Tor-
ture. Twice, the government’s arguments against the grant of
immigration relief have been rejected and Nadarajah has been
awarded relief by an immigration judge. This decision was
affirmed by the Board of Immigration Appeals. Yet, the gov-
ernment continues to detain Nadarajah, who has now been
imprisoned for almost five years despite having prevailed at
every administrative level of review and who has never been
3148 NADARAJAH v. GONZALES
charged with any crime. We order that a writ of habeas corpus
issue, and that he be released on appropriate conditions during
the pendency of any further proceedings.

I

This is a case about one individual, but as with most immi-
gration cases, it can only be understood in the larger context
of country conflict. The backdrop of this case is the quarter
century-old battle between the government of Sri Lanki and
a group known as the Liberation Tigers of Tamil Eelam
(“LTTE”) that seeks the creation of an independent state in
areas in Sri Lanka inhabited by ethnic Tamils. The Tamils are
an ethnic group who live in southern India and on Sri Lanka,
an island of 19 million people off the southern tip of India.
Tamils comprise about 18 percent of the island’s population,
and most live in its northern and eastern areas. Their Hindu
religion and Tamil language set them apart from the three-
quarters of Sri Lankans who are Sinhalese—members of a
largely Buddhist, Sinhala-speaking ethnic group.

The LTTE separatist group, also known as the Tamil
Tigers, have used conventional, guerrilla, and terror tactics in
the decades-old civil war with the Sri Lankan government that
has claimed more than 60,000 lives and displaced hundreds of
thousands of Sri Lankans. Based on its conflict with the Sri
Lankan government, the United State Department of State has
listed the LTTE as a foreign terrorist organization. After the
terrorist attacks against the United States on September 11,
2001, the LTTE declared a cease-fire against the Sri Lankan
government. In 2002, the LTTE and the Sri Lankan govern-
ment signed a formal cease-fire accord. The cease-fire
remains in effect; however, there have been outbreaks of spo-
radic violence in the area.

Ahilan Nadarajah is a 25 year old native and citizen of Sri
Lanka.1 He is a member of the Tamil ethnic minority. Nadara-
1
Because the Immigration Judge and the BIA found Nadarajah credible,
we assume for purposes of this Opinion that the following facts are true
based on his testimony in the asylum hearings.
 NADARAJAH v. GONZALES 3149
jah lived with his family in the Jaffna peninsula at the north
of Sri Lanka. He finished his schooling at age 17, and was
working as a farmer on land that his family owned. In 1995,
the Sri Lankan army invaded and shelled the area, displacing
his family to the town of Vanni, some 60 kilometers from
Jaffna. While they were leaving Jaffna by bicycle, one of the
shells hit and killed Nadarajah’s older brother. Eighteen
months later, in April of 1997, his family returned to Jaffna,
but because their home was occupied by the Sri Lankan army,
they stayed with an aunt, two kilometers away.

Shortly thereafter, Nadarajah first had problems with the
Sri Lankan army. On May 22, 1997, around 4:30 a.m., six or
seven soldiers came into the home, beat him, blindfolded him,
and took him to their camp. Because he had been in Vanni,
his attackers accused him of membership in the LTTE, which
he denied. For four months, Nadarajah was kept in the army
camp, where he was regularly questioned and tortured. His
questioners asked him to admit LTTE membership; when he
refused, they tortured him, with methods that included beating
him, sometimes with boards and gun handles, hanging him
upside down, pricking his toenails with needles and burning
him with cigarette butts. He still bears the scars from those
torture sessions. He was eventually released when his mother
bribed an army commander.

On October 5, 2000, Nadarajah was again arrested in his
home, this time by agents of the opposition Elam People’s
Democratic Party (“EPDP”). When he denied their accusa-
tions of LTTE membership, he was beaten and taken to an
EPDP camp. Nadarajah testified that the EPDP camp was
funded by and connected to the Sri Lankan government. For
a month, he was beaten and locked inside “a dark, dirty
room,” and forced to do menial labor. After a month of his
mother’s begging, he was permitted to leave the camp in
November of 2000, but required to report every morning for
two months.
3150 NADARAJAH v. GONZALES
Nadarajah was again arrested, by the Sri Lankan army, on
July 10, 2001. A group of 15 to 20 soldiers approached him
and his brother while they were working in a garden and took
them into custody. Although his brother was soon released
because of poor health, Nadarajah was detained for a month,
during which he was again tortured:

Q. In what ways did they abuse you?

A. They hung me upside down and they beat me.
While hanging upside down they brought a bag of
gasoline, put my head inside that bag and tied me. *
* * About 30 to 40 seconds I fainted. When I opened
my eyes I was in my room. * * * They [also] tied my
toes together and one person will pull one side and
the others, the other person will pull it. And the other
person pulled my head. They would fill the plastic
bag with sand and they will beat me with that. * *
* [And t]hey burned me with cigarette butts.

Nadarajah was released when his mother again bribed an
official. He was told it was the last time he would be released
and he ought to leave the country. Accompanied and funded
by an uncle, Nadarajah departed immediately for Colombo,
with plans to go to Canada.

In October of 2001, Nadarajah left Sri Lanka, having
obtained a passport and exit documents through a smuggler.
He traveled through Thailand, South Africa, Brazil and then
Mexico before reaching the United States on October 27,
2001. He was apprehended by U.S. immigration officials at
the border, and has been detained since.

On November 9, 2001, the Immigration and Naturalization
Service granted Nadarajah parole from custody, conditioned,
inter alia, on payment of a $20,000 bond. Unable to pay the
bond, Nadarajah remained in custody. Nadarajah requested
that the bond amount be decreased on at least three occasions,
 NADARAJAH v. GONZALES 3151
but these requests were denied. On August 9, 2004, counsel
for Nadarajah attempted to present $20,000 to secure his
parole under the 2001 terms. However, the United States
Bureau of Immigration and Customs Enforcement (“ICE”)
was “unwilling to accept the bond, stating that the previous
order granting Mr. Nadarajah parole was ‘stale’ and ICE
could not honor it.”

In November of 2001, removal proceedings began against
Nadarajah. He conceded removability and applied for asylum
and other relief, claiming past persecution and fear of future
persecution on account of his ethnicity and imputed political
opinion. The government obtained two continuances; not until
April 21, 2003, was a hearing held at which Nadarajah testi-
fied. The government opposed Nadarajah’s asylum applica-
tion on the grounds that he was affiliated with the LTTE, an
allegation supported by the affidavit of an ICE agent who had
received information from a confidential informant.

Despite the government’s allegations and “some discrepan-
cies” in Nadarajah’s testimony, the immigration judge (“IJ”)
found Nadarajah credible, noting that his testimony was con-
sistent and supportive of his asylum claim. The IJ granted
asylum and relief under the Convention Against Torture.

On April 25, 2003, the government filed a motion to re-
open the removal proceedings to introduce additional evi-
dence, namely, to present the testimony of a Department of
Homeland Security (“DHS”) agent. The IJ denied the motion,
and the government appealed to the Board of Immigration
Appeals (“BIA” or “Board”). The BIA granted the motion to
reopen and remanded to the IJ. In its remand order, the BIA
instructed the IJ to hear evidence in the form of testimony by
the DHS witness, special agent Schultz, even though the IJ
had given the DHS two postponements in order to present its
witness without the witness appearing.

Proceedings were held on June 8 and August 18, 2004.
Agent Schultz testified, as well as Nadarajah’s expert witness.
3152 NADARAJAH v. GONZALES
Schultz testified that his knowledge of the matter came from
research that “involved reviewing public information that was
available on the [LTTE] from State Department reports,
Amnesty International reports[, speaking] to people in the
Canadian government that were considered experts on the
ground, and [speaking to] an ass[e]t of the Royal Canadian
Mounted Police who is an expert regarding the group.” When
asked about the reliability of his Canadian sources, Schultz
replied that he “had no reason to question their reliability. So
[he] assumed that everything they told [him] was true.” His
faith in his sources was buttressed when he received “an
anonymous letter that [he] believe[d] was postmarked in Cali-
fornia[, and a] lot of the information in that anonymous letter
was the same as the information that [he] had received from
the Canadian officials.” According to the informant, the area
of Jaffna where Nadarajah lived was LTTE controlled, and it
would have been impossible for him to exit the area without
the approval and assistance of the LTTE. Therefore, con-
cluded Schultz, Nadarajah must have been at least affiliated
with the LTTE.

Schultz also investigated the 20 Tamils smuggled with
Nadarajah. Schultz read the statements of all of the aliens, and
concluded that, in all 21 cases, “almost the entire declaration
was rehearsed [and coached], because they were so similar”:

I read their declarations, and I read the I-213s, and
they were all very similar, which led me to believe
that they were coached. Also, considering the fact
that they’re from the same general part of the world,
they all entered within a few days of each other, all
in the same general area, and came up with the same
almost exact story as far as their background and
their routes of travel, it appeared to me that they had
been coached.

In addition, since the first hearing, the informant had told
Schultz of a May 2003, telephone call that Nadarajah had
 NADARAJAH v. GONZALES 3153
made, along with a female detainee and LTTE member named
Satchithananthan held at the same facility, to order that some-
one in Canada be killed.

On cross-examination, when asked how Nadarajah and
Satchithananthan could have made the call “together” at the
gender-segregated detention facility, Schultz responded:

I could only say that’s what I wrote. I mean I, I don’t
know. And I didn’t say that I knew. I didn’t say it
was one telephone call. I said both of these individu-
als placed a telephone call to Toronto. * * * So it
could have been on different days, it could have been
at different times.

Schultz had no answer as to why he had not attempted to
monitor the telephones at the facility, or even subpoena the
phone records.

Nadarajah’s expert, Robert Oberst, is a professor of politi-
cal science and specialist in South Asian politics at Nebraska
Wesleyan University. He has served as an advisor to the
United States government in various capacities, has published
at least 75 articles on Sri Lanka, as well as four books (includ-
ing the most widely used textbook on South Asia) and has
spent a total of at least three to four years living in Sri Lanka,
most recently in 2003, when he spent nine months in the
country. Oberst testified that, in his research, he is very skep-
tical of informants’ claimed identities, and often disbelieves
his purported informants. In his opinion, it was unlikely that
the LTTE would smuggle individuals out of Colombo, an area
controlled by the Sri Lankan army. Further, Oberst testified
that the area of Jaffna where Nadarajah lived was under Sri
Lankan army control, and there was a military base near his
aunt’s house. As a result, in Oberst’s opinion, it was highly
unlikely that the LTTE would be in any way involved in
smuggling a Tamil person out of this area.
3154 NADARAJAH v. GONZALES
After assessing the new evidence, the IJ concluded that
“this Court finds nothing of significance which would seri-
ously alter the Court’s original finding.” The IJ therefore rein-
stated his prior order granting Nadarajah asylum.

After the IJ’s second decision granting asylum, Nadarajah’s
counsel submitted letters dated September 3 and 8, 2004,
again requesting parole. These requests were denied by San
Diego ICE Field Office Director Ronald Smith on September
20, 2004, pursuant to an August 13, 2004, determination by
ICE that Nadarajah “no longer m[et] the criteria for a bond.”

After the IJ’s second opinion and after his request for
parole was denied, Nadarajah filed his habeas petition with
the District Court for the Southern District of California.
More than one year after he filed the petition, it was denied
by the district court. This timely appeal followed.

Subsequently, on January 5, 2006, the BIA affirmed the
IJ’s second opinion granting Nadarajah relief. The BIA dis-
missed the appeal and ordered the record remanded to the IJ
“for the purpose of allowing [DHS] the opportunity to com-
plete or update identity, law enforcement, or security investi-
gations or examinations, and further proceedings, if
necessary, and for the entry of an order as provided by 8
C.F.R. § 1003.47(h).” (citing Background and Security Inves-
tigations in Proceedings Before the Immigration Judges and
the Board of Immigration Appeals, 70 Fed. Reg. 4743, 4752-
54 (Jan 31, 2005)). The next day, in an unusual move, the
BIA Chairperson referred the case to the Attorney General for
review, “seek[ing] guidance from the Attorney General on
whether he wishes to exercise his discretion and de novo
review authority in this case of national interest where the
Board applied the standard of review required by 8 C.F.R.
§ 1003.1(d)(3).” The BIA did not provide for Nadarajah’s
release from detention, where he remains without any estab-
lished timeline for a decision on when he may be released
from detention.
 NADARAJAH v. GONZALES 3155
This appeal is confined to the district court’s denial of the
petition for a writ of habeas corpus and the agency’s denial
of parole. We review the district court’s decision to grant or
deny a petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2241 de novo. Singh v. Ashcroft, 351 F.3d 435,
438 (9th Cir. 2003). We review the decision to deny parole
under 8 U.S.C. § 1182(d)(5)(A) for abuse of discretion, and
the agency’s parole decision will be upheld if supported by a
“facially legitimate and bona fide reason.” Jean v. Nelson,
472 U.S. 846, 853 (1985) (quoting Kleindienst v. Mandel, 408
U.S. 753, 770 (1972)).

II

[1] Although neither party has raised the question of juris-
diction, we are obligated to consider it sua sponte. Justices of
Boston Mun. Court v. Lydon, 466 U.S. 294, 300-02 (1984).
The district court asserted habeas corpus jurisdiction pursuant
to 28 U.S.C. § 2241. On May 11, 2005, Congress enacted the
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,
310-11 (amending 8 U.S.C. § 1252). The REAL ID Act
amends the Immigration and Nationality Act, Pub. L. No. 82-
414, 66 Stat. 163 (June 27, 1952), by eliminating federal
habeas corpus jurisdiction over final orders of removal in
favor of petitions for review that raise “constitutional claims
or questions of law.” 8 U.S.C. § 1252(b)(9) (as amended by
REAL ID Act § 106(a)(2)). However, this provision only
applies to federal habeas corpus jurisdiction over “final orders
of removal.” Id. By its terms, the jurisdiction-stripping provi-
sion does not apply to federal habeas corpus petitions that do
not involve final orders of removal. Here, as we have noted,
there is no final order of removal. To the contrary, Nadarajah
has prevailed at every administrative level. Therefore, in cases
that do not involve a final order of removal, federal habeas
corpus jurisdiction remains in the district court, and on appeal
to this Court, pursuant to 28 U.S.C. § 2241.
3156 NADARAJAH v. GONZALES
III

Nadarajah challenges his confinement on statutory and con-
stitutional grounds. “[P]rior to reaching any constitutional
questions, federal courts must consider nonconstitutional
grounds for decision.” Gulf Oil Co v. Bernard, 452 U.S. 89,
99 (1981). Therefore, we must first examine whether the gov-
ernment has the statutory authority to detain Nadarajah indefi-
nitely. See Ma v. Ashcroft, 257 F.3d 1095, 1104 (9th Cir.
2001) (as amended) (“[W]e must first determine whether
Congress provided the INS with the authority to detain [the
alien petitioner] indefinitely, as the Attorney General con-
tends.”).

In construing the applicable statutes, we are governed by
the canon of constitutional avoidance, which requires a statute
to be construed so as to avoid serious doubts as to the consti-
tutionality of an alternate construction. INS v. St. Cyr, 533
U.S. 289, 299-300 (2001) (“[I]f an otherwise acceptable con-
struction of a statute would raise serious constitutional prob-
lems, and where an alternative interpretation of the statute is
‘fairly possible,’ we are obligated to construe the statute to
avoid such problems.”).

In addition, “[i]n ascertaining the plain meaning of the stat-
ute, the court must look to the particular statutory language at
issue, as well as the language and design of the statute as a
whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988) (citations omitted).

A

The DHS claims the authority to detain Nadarajah indefi-
nitely under the general immigration detention statutes: 8
U.S.C. §§ 1225(b)(1)(B)(ii) and (b)(2)(A). The former statute
provides:

If the [asylum] officer determines at the time of the
interview [upon arrival in the United States] that an
 NADARAJAH v. GONZALES 3157
alien has a credible fear of persecution . . . , the alien
shall be detained for further consideration of the
application for asylum.

And the latter:

[I]n the case of an alien who is an applicant for
admission, if the examining immigration officer
determines that an alien seeking admission is not
clearly and beyond a doubt entitled to be admitted,
the alien shall be detained for a proceeding under 8
U.S.C. § 1229a.

[2] These general detention statutes do not authorize
Nadarajah’s indefinite detention. In Zadvydas v. Davis, 533
U.S. 678 (2001), the Supreme Court addressed the legality of
detention of aliens who had been ordered removed under 8
U.S.C. § 1231(a)(6).2 Reasoning that “[a] statute permitting
indefinite detention of an alien would raise a serious constitu-
tional problem,” and that Congress cannot authorize indefinite
detention in the absence of a clear statement, the Court con-
strued the statute to permit detention only while removal
remained reasonably foreseeable. Id. at 690, 699. After a pre-
sumptively reasonable six-month detention, “once the alien
provides good 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.” Zadvydas, 533 U.S. at 701.

[3] Although Zadvydas dealt with the detention of aliens
2
8 U.S.C. §1231(a)(6) provides:
An alien ordered removed who is inadmissible under 8 U.S.C.
§ 1182, removable under 8 U.S.C. § 1227(a)(1)(C), (a)(2), or
(a)(4) 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 . . . terms of supervision.
3158 NADARAJAH v. GONZALES
who had been admitted to the United States, see 533 U.S. at
682, and construed a different statute, that case and its prog-
eny remain instructive. In Clark v. Martinez, 543 U.S. 371
(2005), the Court held that Zadvydas applied to all categories
of aliens whose detention was authorized by 8 U.S.C.
§ 1231(a)(6), including “those ordered removed who are inad-
missible,” because the phrase “may be detained beyond the
removal period” had to be interpreted the same way in each
case encompassed by the statute. Id. At 377, 378.

The Clark Court did not decide that the indefinite detention
of inadmissible aliens presented the same constitutional prob-
lems in the same degree as the detention of admissible aliens.
543 U.S. at 380. To the contrary, the Court relied on the stat-
ute’s applicability to admitted aliens and the necessity of con-
sistent interpretation:

The Government . . . argues that the statutory pur-
pose and the constitutional concerns that influenced
our statutory construction in Zadvydas are not pres-
ent for aliens . . . who have not been admitted to the
United States. Be that as it may, it cannot justify giv-
ing the same detention provision a different meaning
when such aliens are involved. It is not at all unusual
to give a statute’s ambiguous language a limiting
construction called for by one of the statute’s appli-
cations, even though other of the statute’s applica-
tions, standing alone, would not support the same
limitation. * * * [W]hen deciding which of two plau-
sible statutory constructions to adopt, a court must
consider the natural consequences of its choice. If
one of them would raise a multitude of constitutional
problems, the other should prevail—whether or not
those constitutional problems pertain to the particu-
lar litigant before the Court.

Id. at. 380-81.
 NADARAJAH v. GONZALES 3159
The statutes cited by the government, 8 U.S.C.
§§ 1225(b)(1)(B)(ii) and (b)(2)(A), apply to any alien an
immigration officer determines to be inadmissible and to have
a credible fear of persecution, and, in the case of
§ 1225(b)(2)(A), any alien the immigration officer determines
not to be “clearly and beyond a doubt entitled to be admitted.”3
Therefore, although the Zadvydas Court referred to terrorism
as the kind of issue that might permit extended detention, see
533 U.S. at 691 (internal quotation marks omitted) (“The pro-
vision authorizing detention does not apply narrowly to a
small segment of particularly dangerous individuals, say sus-
pected terrorists, but broadly to aliens ordered removed.”); id.
at 696 (“Neither do we consider terrorism or other special cir-
cumstances where special arguments might be made for forms
of preventive detention and for heightened deference to the
judgments of the political branches with respects to matters of
national security.”), because these statutes are not limited to
such applications, they cannot be read to authorize the indefi-
nite detention of supposed terrorists but only the brief deten-
tion of all others. This interpretation would abrogate the
holding and reasoning in Clark by treating some detentions
authorized by the same statute differently, depending on the
identity and status of the detainee.

In addition, the Supreme Court has held that the existence
of statutes authorizing the detention of suspected terrorists
specifically precludes the use of general detention statutes to
authorize the unlimited detention of terrorists. “The Court’s
interpretation of § 1231(a)(6) did not affect the detention of
alien terrorists for the simple reason that sustained detention
of alien terrorists is a ‘special arrangement’ authorized by a
3
Some admissible aliens are likely detained pursuant to these provi-
sions, particularly given § 1225(b)(2)(A)’s requirement that the admissi-
bility be “clear[ ] and beyond [ ] doubt” according to the immigration
officer. This fact only brings the cases even closer to the Clark situation:
if admitted aliens can only be detained for a reasonable period, and admis-
sible aliens may be detained pursuant to this statutory provision, then the
statute can only authorize a limited detention. See Clark, 543 U.S. at 380.
3160 NADARAJAH v. GONZALES
different statutory provision, 8 U.S.C. § 1537(b)(2)(C).”
Clark, 543 U.S. at 379 n.4.

[4] In short, applying the Supreme Court’s statutory analy-
sis to the instant case, we conclude that the general immigra-
tion detention statutes do not authorize the Attorney General
to incarcerate detainees for an indefinite period. Rather, con-
sistent with the Supreme Court’s approach in Zadvydas, we
conclude that the statutes at issue permit detention only while
removal remains reasonably foreseeable. Further, consistent
with Zadvydas, we conclude that after a presumptively rea-
sonable six-month detention, “once the alien provides good
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.”
Zadvydas, 533 U.S. at 701.

B

[5] Our conclusion that the general detention statutes can-
not be read as authorizing indefinite detention is bolstered by
considering the immigration statutes as a whole. In fact, Con-
gress has enacted provisions that allow the Attorney General
to detain certain aliens for lengthy periods, but certain defined
categories of aliens, and only with procedural safeguards.

Specifically, the Patriot Act allows detention of suspected
terrorists or other threats to national security, 8 U.S.C.
§ 1226a and 8 U.S.C. §§ 1531-1537. However, in order to
effect such lengthy detentions, the Attorney General is
required to certify that the statutory criteria has been met, and
the Attorney General must review the certifications every six
months. Section 1226a contains the Patriot Act’s authoriza-
tion of detention of suspected terrorists, providing that “the
Attorney General shall take into custody any alien who is cer-
tified” by the Attorney General where it is known or there are
reasonable grounds to believe:
 NADARAJAH v. GONZALES 3161
• the alien comes to the United States to engage in
espionage or sabotage, § 1182(a)(3)(A)(i)(I);
§ 1227(a)(4)(A)(i);

• the alien comes to the United States to violate
U.S. law relating to the export of goods, technol-
ogy or sensitive information, § 1182(a)(3)(A)
(i)(II); § 1227(a)(4)(A)(i);

• the alien comes to the United States to engage in
any activity with the purpose of opposing or
overthrowing the U.S. government, § 1182(a)(3)
(A)(iii); § 1227(a)(4)(A)(iii);

• the alien has engaged in, is likely to engage
in, or to incite terrorist activity, or is or was a
member of a foreign terrorist organization.
§ 1182(a)(3)(B); § 1127(a)(4)(B); § 1226a(a)(1);
§ 1226a(a)(3).

The Attorney General may delegate the power to certify
only to the Deputy Attorney General, who may not in turn
delegate it. 8 U.S.C. § 1226a(a)(4). An alien detained under
this section “whose removal is unlikely in the reasonably
foreseeable future, may be detained for additional periods of
up to six months only if the release of the alien will threaten
the national security of the United States or the safety of the
community or any person.” 8 U.S.C. § 1226a(a)(6). The
Attorney General is required to review certifications under
this section at six month intervals. 8 U.S.C. § 1226a(a)(7).

Sections 1531-1537, enacted in 1996, establish the Alien
Terrorist Removal Court and the procedures that it must fol-
low. Upon receipt of “classified information that an alien is
an alien terrorist,” the Attorney General can file an applica-
tion with the removal court and take the alien into custody. 8
U.S.C. §§ 1533(a)(1), 1536(a)(1)(A). That application must
contain the Attorney General’s certification that the applica-
3162 NADARAJAH v. GONZALES
tion satisfies the requirements of 8 U.S.C. § 1533, which
include:

a statement of the facts and circumstances relied on
by the Department of Justice to establish probable
cause that (i) the alien is a terrorist; (ii) the alien is
physically present in the United States; and (iii) with
respect to such alien, [standard removal proceedings]
would pose a risk to the national security of the
United States.

8 U.S.C. § 1533(a)(1)(D).

[6] By their own terms, both statutory provisions for the
detention of suspected terrorists require that the Attorney
General “certify” the case before such detention begins. 8
U.S.C. § 1226a; 8 U.S.C. §§ 1531-1537. Nadarajah’s case has
not been so certified. In addition, the other procedural protec-
tions of these statutes, including biannual reviews of certifica-
tion, have not been conducted. 8 U.S.C. § 1226a(a)(7).
Indeed, the government does not claim that the detention pro-
visions for terrorists under the Patriot Act justify Nadarajah’s
detention. However, the existence of these provisions is
important in the statutory construction of the general deten-
tion statutes upon which the government relies. The govern-
ment’s argument ignores a basic principle of statutory
construction, namely that the specific prevails over the gen-
eral. Bonneville Power Admin. v. FERC, 422 F.3d 908, 916
(9th Cir. 2005) (citing Santiago Salgado v. Garcia, 384 F.3d
769, 774 (9th Cir. 2004)). Given that Congress has placed
specific limits on the Attorney General’s authority to detain
suspected terrorists, those statutory provisions must govern
such detentions, instead of the general detention provisions
that apply to all aliens coming into the United States.

Further, the structure of the immigration statutes, with spe-
cific attention given to potential detentions of over six months
in carefully defined categories, indicates that the period of
 NADARAJAH v. GONZALES 3163
detention allowed under the general detention statutes must be
construed as being brief and reasonable, as the Supreme Court
has determined in construing similar provisions.

C

In sum, the government does not possess the authority
under the general detention statutes to hold Nadarajah, or any
other alien who is similarly situated, indefinitely. Rather, con-
sistent with the construction given by the Supreme Court to
similar statutes, the detention must be for a reasonable period,
and only if there is a “significant likelihood of removal in the
reasonably foreseeable future. After a presumptively reason-
able six-month detention, once the alien provides good 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.” Zad-
vydas, 533 U.S. at 701.

IV

Applying the law to the facts of this case, we conclude that
a writ of habeas corpus must issue and Nadarajah must be
released from custody. The length of the detention in this case
has been unreasonable. Nadarajah has established that there is
no significant likelihood of removal in the reasonably foresee-
able future. The government has failed to respond with evi-
dence sufficient to rebut that showing.

A

[7] The nearly five-year detention in this case far exceeds
both any period of confinement found reasonable by the
Court, and the six-month period of presumptive reasonable-
ness.

Zadvydas and Clark used the six-month period as the
touchstone of reasonableness. In addition to its analysis in
3164 NADARAJAH v. GONZALES
Zadvydas and Clark, the Supreme Court has given further
guidance as to what it considers to be a “reasonable” length
of detention for aliens in Demore v. Kim, 538 U.S. 510
(2003). In Demore, the Supreme Court held that the govern-
ment could detain aliens who had been convicted of a crime
for “the brief period necessary for their removal proceedings.”
Id. at 513. In Demore, the Court discussed the data concern-
ing detention length, noting that “[t]he Executive Office for
Immigration Review has calculated that, in 85% of the cases
in which aliens are detained pursuant to § 1226(c), removal
proceedings are completed in an average time of 47 days, and
a median of 30 days.” 538 U.S. at 529. The Court noted that
“[i]n the remaining 15% of cases, in which the alien appeals
the decision of the Immigration Judge to the Board of Immi-
gration Appeals, appeal takes an average of four months, with
a median time that is slightly shorter.” Id. The Court noted
that Kim, the respondent, had been detained for over six
months, which was “somewhat longer than the average.” Id.
at 530-31. However, the Court viewed that “temporary” con-
finement as permissible.

Demore was decided in the context of an alien convicted of
a crime who was detained pending a determination of remov-
ability. Here, the IJ first determined that Nadarajah is entitled
to relief in the forms of asylum and withholding of removal
under the Convention Against Torture, and on remand deter-
mined again that Nadarajah is entitled to relief from removal
in the form of asylum, which was affirmed by the BIA. Thus,
Nadarajah’s detention is more akin to the situation in Zadvy-
das, which was “indefinite” and “potentially permanent.” 533
U.S. at 690-91. Nonetheless, Demore endorses the general
proposition of “brief” detentions, with a specific holding of a
six-month period as presumptively reasonable.

[8] A detention of nearly five years—ten times the amount
of time the Supreme Court has considered acceptable absent
a special showing—is plainly unreasonable under any mea-
sure.
 NADARAJAH v. GONZALES 3165
The government argues, both in its briefing and at oral
argument, that Demore stands for an entirely different propo-
sition: an indefinite period of detention. It reasons that:

[b]y referring to average and median, the Court did
not, as Nadarajah tries to infer, restrict either its
holding or its reasoning to those cases where deten-
tion falls within the average or median length of
time. Of necessity, by referring to average and
median detention times, the Court implicitly
acknowledged that there would be shorter than aver-
age and longer than average detentions, and its
approval of the average and median necessarily cov-
ers the short and long detentions that go into the
mathematical equation to determine average and
median.

In other words, the government is contending that by refer-
encing EOIR’s detention statistics, which described the aver-
age and median lengths of detention, the Court was adopting
a rule that a detention of any length was entirely permissible
because—of mathematical necessity—lengthy detentions
would have to go into the calculation of the average and
median times. This is a patently absurd reading of Demore. In
Demore, the Court grounded its holding by referencing a
“brief period,” id. at 513, 523, of “temporary confinement.”
Id. at 531. There is no indication anywhere in Demore that the
Court would countenance an indefinite detention.4
4
The references to the brevity and limited nature of the confinement are
found throughout Demore. See id. at 513 (“Congress . . . may require that
[criminal aliens] be detained for the brief period necessary for their
removal proceedings.”); id. at 523 (“[R]espondent argued that the Govern-
ment may not . . . detain him for the brief period necessary for his removal
proceedings.”); id. at 526 (noting the “Court’s longstanding view that the
Government may . . . detain deportable aliens during the limited period
necessary for their removal proceedings”); id. at 529 n.12 (noting “[t]he
very limited time of the detention at stake”).
3166 NADARAJAH v. GONZALES
By any analysis, a five-year period of confinement of an
alien who has not been charged with any crime, and who has
won relief at every administrative level, is unreasonable under
the standards set forth by the Supreme Court. Nor are we per-
suaded by the government’s argument that because the Attor-
ney General will someday review Nadarajah’s case, his
detention will at some point end, and so he is not being held
indefinitely. No one can satisfactorily assure us as to when
that day will arrive. Meanwhile, petitioner remains in deten-
tion.

B

[9] Nadarajah has established that there is no significant
likelihood of his removal in the reasonably foreseeable future.
He has been awarded asylum twice, as well as protection
under the Convention Against Torture once. In assessing now
whether it is reasonably foreseeable that he will be ordered
removed, it is useful to place his success before the agency in
a larger context. According to the Executive Office for Immi-
gration Review, during Fiscal Year 2005, only 12% of aliens
who applied for relief from removal were awarded such relief
by an immigration judge. Executive Office for Immigration
Review, FY 2005 Statistical Year Book (2006), D2. Eighty-
four percent (84%) of the total immigration judge decisions
were to order removal of the alien from the United States. Id.
Of asylum cases reviewed on the merits, the rate of denial was
62%. Id. at K2. Immigration judges denied the relief of with-
holding of removal in 87% of the cases heard on the merits.
Id. at K5. Relief under the Convention Against Torture is
awarded even more rarely. During FY 2005, the grant rate by
immigration judges was approximately 2%. Id. at M1. The
fact that Nadarajah has won relief denied 98% of applicants
is a powerful indication of the improbability of his foresee-
able removal, by any objective measure.

Further, although the ultimate decision on whether to grant
asylum is committed to the Attorney General’s discretion,
 NADARAJAH v. GONZALES 3167
relief under withholding of removal is mandatory if the peti-
tioner establishes that his “life or freedom would be threat-
ened” in the country to which he would be removed on
account of one of the five protected grounds. 8 U.S.C.
§ 1231(b)(3)(A); Boer-Sedano v. Gonzales, 418 F.3d 1082,
1092 (9th Cir. 2005). Withholding of removal is also manda-
tory if the applicant meets his burden of proof regarding the
likelihood of future torture on application for relief under the
Convention Against Torture. 8 U.S.C.A. § 1231(b)(3); 8
C.F.R. §§ 1208.16-1208.18.

[10] Thus, at this juncture, the government is not entitled
to remove Nadarajah to Sri Lanka, and no other country has
been identified to which Nadarajah might be removed. There-
fore, examining the circumstances objectively, one cannot say
that his removal is reasonably foreseeable. The government
has not rebutted this showing, although it has had every
opportunity to do so.

C

[11] Given the unreasonable length of Nadarajah’s deten-
tion, the unforeseeability of his removal, and the failure of the
government to rebut his showing that there is no significant
likelihood of removal in the reasonably foreseeable future, the
government’s continued detention violates federal law, as
construed by the Supreme Court. Therefore, he is entitled to
the issuance of a writ of habeas corpus. Given this result, we
need not reach any of the constitutional arguments advanced
by Nadarajah.

V

Nadarajah also contends that ICE abused its discretion in
denying him parole. The statute governing parole, 8 U.S.C.
§ 1182(d)(5)(A), provides in pertinent part:

The Attorney General may . . . in his discretion
parole into the United States temporarily under such
3168 NADARAJAH v. GONZALES
conditions as he may prescribe only on a case-by-
case basis for urgent humanitarian reasons or signifi-
cant public benefit any alien applying for admission
to the United States, but such parole of such alien
shall not be regarded as an admission of the alien.

[12] The Attorney General has delegated this authority to
a number of officials, including ICE “directors of field opera-
tions.” 8 C.F.R. § 212.5(a). While the discretion in making a
parole decision is quite broad, it is not without limits. See
Clark v. Smith, 967 F.2d 1329, 1332 (9th Cir. 1992) (citing
Moret v. Karn, 746 F.2d 989 (3d Cir. 1984)) (“We have no
basis on this appeal to review the exercise of the discretion of
the Attorney General in denying parole [under 8 U.S.C.
§ 1182(d)(5)(A)], although we observe that this discretion,
while large, is not unlimited.”). Indeed, “immigration officials
clearly have the authority to deny parole to unadmitted aliens
if they can advance a facially legitimate and bona fide reason
for doing so.” Jean, 472 U.S. at 853 (quoting Jean II, 727
F.2d 957, 977 (11th Cir. 1984)). If such a reason is advanced,
the denial of parole is essentially unreviewable. Noh v. INS,
248 F.3d 938, 942 (9th Cir. 2001).

Nadarajah was initially granted parole, conditioned on the
payment of a bond. When he tendered the money for the
bond, several years after the order granting parole, parole was
denied because the bond order was “stale.” After he was
awarded relief by the IJ and BIA, he again requested parole.
These requests were denied because he “no longer m[et] the
criteria for a bond.”

[13] The agency abused its discretion in denying parole
because the reasons it provided were not facially legitimate
and bona fide. When the last request was made, the govern-
ment’s position had already been rejected by the IJ and the
BIA. Further, Nadarajah had been granted parole previously.
The apparent conclusion in 2004 that Nadarajah’s continued
detention was in the public interest, or that his release poses
 NADARAJAH v. GONZALES 3169
a risk to national security, is based on facially implausible
evidence, and ignores Nadarajah’s evidence of the detention’s
deleterious effect on his health.

In the two cases in which we have upheld decisions by the
Attorney General under the “facially legitimate and bona
fide” standard, the factual basis for the reason offered by the
Attorney General’s delegate was undisputed. In Noh, 248
F.3d at 942, we upheld a visa revocation on the grounds, con-
ceded by the alien, “that the visa had been obtained illegally.”
Similarly, in Mason v. Brooks, 862 F.2d 190, 193-94 (9th Cir.
1988), the alien sought parole in order to enter the United
States to apply for citizenship. The Attorney General’s dele-
gate denied parole on the “facially legitimate and bona fide”
grounds that a prior and undisputed conviction rendered the
alien excludable. Id. at 195.

[14] Here, the evidence regarding humanitarian release was
undisputed. The government has already received a full hear-
ing on its contention that Nadarajah was a security risk, and
its evidence has been rejected. Given these circumstances, we
conclude that the agency abused its discretion in denying
parole in 2004.

VI

Also pending before the panel is Nadarajah’s renewed
motion for release pending appeal. We have authority to order
such a release pursuant to Fed. R. App. P. 23(b), which pro-
vides:

(b) Detention or Release Pending Review of Deci-
sion Not to Release.

While a decision not to release a prisoner is under
review, the court or judge rendering the decision, or
the court of appeals, or the Supreme Court, or a
3170 NADARAJAH v. GONZALES
judge or justice of either court, may order that the
prisoner be:

(1) detained in the custody from which release is
sought;

(2) detained in other appropriate custody;

(3) released on personal recognizance, with or
without surety.5

Our consideration of this request is governed by Maharaj
v. Ashcroft, 295 F.3d 963 (9th Cir. 2002), in which we deter-
mined that the proper standard for evaluating a similar motion
was “the traditional standard for interim injunctive relief,
[according to which] the moving party ‘must show either (1)
a probability of success on the merits and the possibility of
irreparable harm, or (2) that serious legal questions are raised
and the balance of hardships tips sharply in the moving
party’s favor.’ ” 295 F.3d at 966. As we have explained,
“these two alternatives represent extremes of a single contin-
uum, rather than two separate tests.” Immigrant Assistance
Project of Los Angeles County Fed’n of Labor v. INS, 306
5
Given the text of the rule, the government’s argument that “this Court
should not consider, let alone grant, extraordinary relief by motion where
entitlement vel non to release is the very issue on appeal,” is baffling: such
a release is precisely what the rule contemplates. See also In re Roe, 257
F.3d 1077, 1080 (9th Cir. 2001) (holding, assuming that federal court had
the authority to release a state prisoner on bail pending resolution of
habeas proceedings, that circumstances in inmate’s case did not make such
release appropriate); United States v. Mett, 41 F.3d 1281, 1282 (9th Cir.
1994) (“Fed. R. App. P. 23 governs the issue of the release or detention
of a prisoner, state or federal, who is collaterally attacking his or her crim-
inal conviction.”); Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987)
(“Rule 23 establishes the authority of the federal courts to release both
successful and unsuccessful habeas petitioners pending appeal.”); Mapp v.
Reno, 241 F.3d 221, 224-25 (2d Cir. 2001) (holding that the federal courts
have the inherent authority to admit to bail habeas petitioners being
detained by the INS).
 NADARAJAH v. GONZALES 3171
F.3d 842, 873 (9th Cir. 2002) (internal quotation marks and
citations omitted). Under this analysis, “the greater the rela-
tive hardship to the moving party, the less probability of suc-
cess must be shown.” Id. (internal quotation marks and
citations omitted).

As indicated by the analysis of Nadarajah’s habeas corpus
claims, we conclude that he has shown a probability of suc-
cess on the merits. The balance of hardships also favor releas-
ing Nadarajah. There is undisputed evidence in the record that
his health is deteriorating, a deterioration that is only exacer-
bated by continuing detention. Therefore, we grant the motion
for release, subject to conditions to be set by ICE.

VII

[15] In sum, we conclude that the general detention statutes
relied upon by the government do not authorize indefinite
detention. When examined under the analysis prescribed by
the Supreme Court, Nadarajah’s detention is unreasonable,
unjustified, and in violation of federal law. ICE abused its dis-
cretion in denying parole during the pendency of these pro-
ceedings. Therefore, we reverse the judgment of the district
court denying Nadarajah’s petition for a writ of habeas cor-
pus. We grant his motion for immediate release, subject to
terms and conditions to be set by the appropriate delegate of
the Attorney General.

REVERSED.