concurring in the judgment:
I agree with the majority’s conclusion that 8 U.S.C.A. § 1226(c) (West 1999 & Supp.2001), while facially constitutional, is unconstitutional as applied to Welch. I also agree with the majority’s rejection of a fundamental rights approach. I write separately to further illuminate the extent to which I believe Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), should guide our resolution of this appeal.
I
In Zadvydas, the Supreme Court evaluated the constitutionality of 8 U.S.C.A. § 1231(a)(6) (West 1999 & Supp.2001), which is the statutory provision applicable to “post-removal-period detention.” Zadvydas, 533 U.S. at 683, 121 S.Ct. 2491. While recognizing that Congress has *229“broad power over naturalization and immigration,” Mathews v. Diaz, 426 U.S. 67, 79-80, 96 S.Ct. 1888, 48 L.Ed.2d 478 (1976), the Court reaffirmed the principle that Congress’s authority over aliens is limited by the Due Process Clause. Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491 (“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens.”). Animated by the constitutional implications of a statute authorizing indefinite detention of aliens, the Zadvy-das Court construed § 1231(a)(6) as containing an implicit reasonableness limitation and adopted six months as the threshold period by which habeas courts should evaluate the reasonableness of the post-removal-period detention, holding that after six months, detention would be considered presumptively unreasonable. Id. at 701, 121 S.Ct. 2491.
II
Each circuit that has addressed mandatory detention under § 1226(c) following Zadvydas has concluded that the application of the statute violated the petitioner’s due process rights. Hoang v. Comfort, 282 F.3d 1247 (10th Cir.2002), petition for cert. filed, 70 U.S.L.W. 3698 (U.S. May 3, 2002) (No. 01-1616); Kim v. Ziglar, 276 F.3d 523 (9th Cir.2002), petition for cert. filed, 70 U.S.L.W. 3655 (U.S. April 9, 2002) (No. 01-1491); Patel v. Zemski, 275 F.3d 299 (3d Cir.2001). The Seventh Circuit is the only circuit to have concluded that § 1226(c) is constitutional, and it did so prior to the Supreme Court’s opinion in Zadvydas. Parra v. Perryman, 172 F.3d 954 (7th Cir.1999). I agree with the Third, Ninth, and Tenth Circuits that the Seventh Circuit’s approach is no'longer viable for two reasons. First, to the extent that Parra relied on the plenary powers doctrine, Zadvydas has undercut its reasoning. Second, to the extent that Parra relied on the argument that deportation is inevitable for aliens who have committed aggravated offenses, the Supreme Court in INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), has undercut this reasoning by rendering discretionary cancellation of removal available for a large class of aliens who have committed aggravated offenses. Indeed, the Government in this case joined Welch’s motion to set aside his most recent removal order on the ground that he is eligible for discretionary cancellation. It would thus appear that Welch has a real likelihood of avoiding deportation, further distinguishing this case from Parra.
Although the circuits that have addressed the constitutionality of § 1226(c) post-Zadvydas have agreed that it was unconstitutional as applied, they have utilized somewhat different analytical frameworks, with the Tenth and Third Circuits relying upon a fundamental rights approach, and the Ninth Circuit eschewing a fundamental rights approach in favor of the “special justification” standard set forth in Zadvydas. Kim, 276 F.3d at 530 (“Following Zadvydas, we thus must analyze § 1226(c) to determine whether the government has provided a sufficiently strong ‘special justification’ to justify civil detention of a lawful permanent resident alien.”).
For the reasons stated in Section III C. of the majority opinion, ante at 221-22, I agree that an alien’s right to be free from detention pendente lite is not a “fundamental” right, which would require strict scrutiny of § 1226(c). Significantly, the Zadvydas Court did not adopt a fundamental rights approach to evaluate the constitutionality of post-removal-period detention. It suggested instead that the due process inquiry for civil detention is flexible, depending upon the alien’s status and the justifications for the restraint. The *230Court noted that it has upheld civil, or “non-punitive,” detention only in those limited circumstances where the government has provided a “special justification” outweighing the individual’s liberty interest:
[Government detention violates [the Due Process] Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow non-punitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.
Id. at 691, 121 S.Ct. 2491 (quotation marks and internal citations omitted). Thus, following the approach of Kim, I evaluate the mandatory civil detention authorized by § 1226(c) as applied to Welch to determine whether it is warranted by a “special justification” that outweighs Welch’s constitutionally protected 'interest in avoiding physical restraint.
Ill
Before turning to the application of this standard, I think it is important to closely examine the manner in which the reasoning of the Zadvydas Court affects our resolution of this case. After conducting this examination, it becomes clear that the due process principles upon which the Court relied compel a conclusion that § 1226(c) is unconstitutional as applied Welch.
A.
At the outset, I note that the majority in Zadvydas rested its constitutional doubt holding in part on the stated ambiguity in the text of § 1231(a)(6). Zadvy-
das, 533 U.S. at 697, 121 S.Ct. 2491 (stating that the text and legislative history of § 1231(a)(6) did not provide “any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed”). In § 1226(c), by contrast, Congress has unambiguously required mandatory detention pending removal proceedings. See 8 U.S.C.A. § 1226(c)(2) (“The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18” that the alien is a government witness or is assisting a government investigation (emphasis added)). Moreover, unlike the detention authorized by § 1231(a)(6), the detention mandated in § 1226(c) has an “obvious termination point” — the entry of a final order of removal.1 Zadvydas, 533 U.S. at 697, 121 S.Ct. 2491.
While Zadvydas arguably is distinguishable on these grounds, we can glean some important constitutional principles from the reasoning of both the majority and dissenting opinions that bear on the resolution of Welch’s constitutional challenge to § 1226(c). First, each separate opinion emphasized that the alien’s legal status controls the extent of due process protections afforded the alien. See Zadvydas, 533 U.S. at 693-94, 121 S.Ct. 2491 (holding that the alien’s status is critical to the constitutional inquiry and distinguishing between an “excluded” alien and a removable alien for purposes of the Fifth Amendment); id. at 703, 121 S.Ct. 2491 (Scalia, J., dissenting) (equating removable aliens with excluded aliens and stating that neither has a constitutional “right to release into this country”); id. at 720, 121 S.Ct. *2312491 (Kennedy, J., dissenting) (“[I]t must be made clear these aliens are in a position far different from aliens with a lawful right to remain here. They are removable, and their rights must be defined in accordance with that status.”). Additionally, in light of the Zadvydas majority’s emphasis on the length of post removal-period detention in framing its constitutional doubt inquiry, the majority’s reasoning indicates that due process does not preclude some reasonable period of detention, but rather due process enters the equation as detention becomes unreasonably protracted. Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491 (“[Ijnterpreting the statute to avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.”); cf. Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (holding that, absent an individualized determination of “lack of control,” indefinite civil commitment of a sex offender violates substantive due pro: cess); United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (upholding pretrial detention, but stressing “stringent time limitations” derived from the Speedy Trial Act and the presence of judicial safeguards); Carlson v. Landon, 342 U.S. 524, 545-46, 72 S.Ct. 525, 96 L.Ed. 547 (1952) (upholding temporary detention of alien during deportation proceeding while noting that “problem of habeas corpus after unusual delay in deportation proceedings” was not present).
With these background principles in mind, it is important to note that Welch is a lawful permanent resident, and “[ljawful permanent residents are the most favored category of aliens admitted to the United States.” Kim, 276 F.3d at 528. Welch and other lawful permanent residents retain their status until they are finally adjudged deportable. See 8 C.F.R. § l.l(p) (2002) (providing that an alien’s lawful permanent resident status terminates only upon entry of a final administrative order of deportation); Nwolise v. INS, 4 F.3d 306, 311 (4th Cir.1993) (same). Thus, pursuant to each of the Zadvydas opinions, one must conclude that lawful permanent residents detained pursuant to § 1226(c), such as Welch, are entitled to equal, if not greater, constitutional protections than the aliens detained pursuant to § 1231(a)(6).
With respect to the Zadvydas majority’s reliance on the potentially indefinite duration of detention under § 1231(a)(6), the detention authorized by § 1226(c) suffers from similarly lengthy delays, a danger that stems not from lack of an identifiable termination point for the detention, but from the unclear deadline for the occurrence of that termination point.2 For example, Welch has been incarcerated for one year and two months pending his removal proceedings, and the Government concedes that there is no likelihood that a final order of deportation will be entered in the reasonably foreseeable future. Cf. Frank Trejo, Man wins lengthy deportation battle: INS may appeal ruling on longtime resident with drug conviction, Dallas Morning News, Dec. 6, 2001, at 33A (documenting an “eight-year deportation battle” involving a longtime lawful permanent resident). Moreover, as with protracted post removal-period detention, the *232longer an alien is detained pursuant to § 1226(c) without being subject to a final order of removal in the reasonably foreseeable future, the less likely it is that the purpose of the detention is to aid deportation, as opposed to constituting arbitrary, capricious, or otherwise unlawful detention. See, e.g., Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 (quoting Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), for the proposition that where detention’s goal is no longer practically attainable, detention no longer “bear[s] [a] reasonable relation to the purpose for which the individual [was] committed.”).
Significantly, there are extensive procedural safeguards attendant to post-removal-period detention, but the Zadvydas majority found these safeguards insufficient to save § 1231(a)(6) from constitutional doubt.3 For example, before the expiration of the 90-day removal period, the INS provides for a review of the alien’s record to determine whether the alien can present sufficient evidence in support of release. 8 C.F.R. § 241.4 (2001); 8 C.F.R. § 241.4(h). After the 90-day removal period has expired, the INS conducts a custody review where it considers whether the alien should remain in detention, § 241.4(k)(2)(ii); § 241.4(i)(l)-(3), considering factors such as “the detainee’s criminal conduct and criminal convictions,” and “[t]he likelihood that the alien is a significant flight risk,” § 241.4(f). Mandatory evaluations of continued detention are then given each year, and the INS has the discretion to review the alien’s detention more frequently if requested.4 § 241.4(k)(2).
No such procedural safeguards exist in § 1226(c). The categorical bar against bail in § 1226(c) does not provide a time period for review of detention or for conducting a deportation hearing, it does not contemplate any individualized inquiry, and it does not allow for the exercise of any discretion whatsoever in determining whether continued detention is reasonable. Thus, § 1226(c) presents at least as strong a threat as § 1231(a)(6), in the form of detention lacking adequate procedural safeguards, to the liberty interest in question.
Despite the constitutional status of a lawful permanent resident, the indeter-minancy of detention pending removal proceedings, and the absence of any pro*233cedural safeguards to monitor the reasonableness of continued detention, the Government argues that we must give effect to clearly-stated Congressional intent authorizing mandatory detention under § 1226(c). Although we are required to give effect to Congress’s clear intent, we also are obligated to enforce the constitutional limitations on indeterminate detention recognized in Zadvydas. To this end, Zadvydas requires us to determine whether the Government has set forth a sufficiently strong “special justification” for indeterminate mandatory detention of lawful permanent residents pursuant to § 1226(c).
The Government asserts that mandatory detention is justified, regardless of its length or the status of the alien, due to the risks of flight and dangerousness to the community posed by criminal aliens facing deportation proceedings. As noted in Kim, the factual and legal bases underlying the Government’s presumption that criminal aliens subject to deportation are overwhelmingly likely to flee are questionable, and such a presumption is even less reasonable when applied to a lawful permanent resident with significant ties to the community.5 Kim, 276 F.3d at 532 (detailing flaws in report upon which the INS relies to argue that 89% of “nondetained” aliens flee and noting that removal is not “virtually certain” once removal proceedings have begun). Moreover, in light of the range of offenses subjecting an alien to deportation, the Government is unable to demonstrate that every person who has been convicted of one of the offenses subjecting him to deportation poses a particularly severe, ongoing danger to the public sufficient to justify indeterminate detention.6 See, e.g., Zadvydas, 533 U.S. at 692, 121 S.Ct. 2491 (“[T]he alien’s removable status itself ... bears no relation to a detainee’s dangerousness.”); Kim, 276 F.3d at 534 (“Given the range of crimes qualifying as aggravated felonies, the government simply cannot show that § 1226(c) covers only aliens who pose an especially serious danger to the public.”); compare Kansas v. Hendricks, 521 U.S. 346, 368, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (upholding scheme that imposes detention upon “a small segment of particularly dangerous individuals” and provides “strict procedural safeguards”); Carlson, 342 U.S. at 538, 72 S.Ct. 525 (noting that members of Communist party were believed to be involved in' ongoing activities that threatened the country’s national security), with Foucha v. Louisiana, 504 U.S. 71, 81-83, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (striking down insanity-related detention system that placed burden on detainee to prove nondangerousness).
The rigidity of § 1226(c)’s detention scheme, as compared with the scheme rejected by the Zadvydas Court on the basis of constitutional doubt, combined with the *234constitutional status of a lawful permanent resident, compels me to conclude that § 1226(c) is unconstitutional to the extent that it authorizes, without special justification, indeterminate or unreasonably protracted detention of lawful permanent residents, such as Welch, pending removal proceedings. In the interest of giving effect to clearly-stated congressional intent to the maximum extent permitted by the Due Process Clause and to aid habeas courts in evaluating the constitutionality of continued detention of lawful permanent resident aliens, I believe that the appropriate course is to recognize a presumptively reasonable period of preremoval period detention for lawful permanent resident aliens, as the majority did in Zadvydas with respect to post-removal-period detention. Because the Zadvydas majority concluded that detention beyond a six-month period is presumptively unreasonable after a final order of removal is entered, I believe that the same presumption, which was predicated upon due process,7 should apply to evaluate the reasonableness of detention for lawful permanent residents who have not yet been deemed removable. See Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491 (“The basic federal habeas corpus statute grants the federal courts authority to answer th[e] question” of whether the detention exceeds “a period reasonably necessary to secure removal.”); id. (“In doing so the courts carry out what this Court has described as the “historic purpose of the writ,” namely “to relieve detention by executive authorities without judicial trial.” ”).
B.
To provide guidance, and cognizant of the need for a uniform rule in this circuit, cf. Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491 (adopting the six-month presumption and detailing its operation “for the sake of uniform administration in the federal courts”), I briefly outline what I perceive to be the appropriate role of habeas courts in the administration of the six-month presumption recognized in Zadvydas. In so doing, I note that it is impossible in this case to address all of the diverse procedural contexts in which habeas courts may be called upon to make a determination as to whether the Government has established that continued detention is supported by a constitutionally adequate special justification. I, like the majority and some habeas courts, find the issuance of a conditional writ of habeas corpus to be an appropriate *235means of conducting the inquiry regarding the alien’s ultimate entitlement to bail. See 28 U.S.C.A. § 2243 (authorizing federal courts to “dispose of [habeas corpus matters] as law and justice require”); Patel, 275 F.3d at 315 (“We will reverse the denial of Patel’s petition for habeas corpus and remand with directions that Patel be released from custody unless the government makes a prompt individualized determination whether the continued detention of Patel is necessary to prevent risk of flight or danger to the community.”); see also Kim, 276 F.3d at 539 (affirming the order of the district court requiring the INS to conduct a bail hearing for Kim). Thus, I believe the best approach is for the habeas court to evaluate whether the lawful permanent resident has met his burden of establishing in the habeas petition that he has been detained for at least six months and “that there is no significant likelihood” of being subject to a final order of removal “in the reasonably foreseeable future.” Absent a response from the Government establishing on its face that the Government has a special justification for the alien’s continued detention, the Government would then have the opportunity at a bail hearing before an immigration judge to introduce evidence demonstrating that the alien’s continued detention is warranted and is neither arbitrary nor capricious.8 Accordingly, upon finding that an alien has been held for more than six months, that the alien is not likely to be subject to a final order of deportation in the reasonably foreseeable future, and that additional facts are needed to determino whether the special justification standard has been met, the habeas court should grant a conditional writ of habeas corpus releasing the alien unless the INS provides the alien with a bail hearing before an immigration judge to determine whether continued detention is necessary.9
Although the exact parameters of the Zadvydas holding are unclear, the approach that I have suggested gives effect to clearly-stated congressional intent to the extent permissible under the Due Process Clause by ensuring that a criminal alien’s detention is incident to deportation, *236as opposed to arbitrary or capricious, while recognizing that habeas review must “take appropriate account of the greater immigration-related expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation’s need to ‘speak with one voice’ in immigration matters.” Zadvydas, 533 U.S. at 700, 121 S.Ct. 2491. In the end, “courts must take appropriate account of such concerns without abdicating their legal responsibility to review the lawfulness of an alien’s continued detention.” Zadvydas, 533 U.S. at 700, 121 S.Ct. 2491.
IV
Turning to an evaluation of the constitutionality of Welch’s continued detention pursuant to this framework, Welch established that he was detained for over a year pending his removal proceedings. Additionally, Welch was successful in having the aggravated felony for which he originally was subject to deportation stricken from his record,10 and at least one immigration judge in this case has found it likely that Welch will successfully achieve naturalization, meaning that Welch has demonstrated that there is “no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491. Indeed, as the majority notes, ante at 225, the Government concedes that Welch’s removal is unlikely to occur because naturalization probably will succeed. Further, it is undisputed that Welch, as a longtime, lawful permanent resident and Navy veteran, is not a flight risk and is not a danger to society.11 Accordingly, Welch has established that his continued confinement is presumptively unreasonable, and the Government has not responded with evidence sufficient to rebut this presumption. Given the unusually strong equities in Welch’s favor, I have no difficulty concluding that his mandatory, unreasonably lengthy detention pending the entry of a final order of removal violates due process and, therefore, that the district court acted properly by granting Welch a writ of habeas corpus.
V
In sum, although I agree with the result reached by my esteemed colleagues, my separate opinion is written in an attempt to define with greater precision the extent to which the constitutional principles underlying the Supreme Court’s decision in Zadvydas compel the conclusion that § 1226(c)’s mandatory detention scheme is unconstitutional as applied to Welch. Accordingly, for the reasons set forth above, I respectfully concur in the judgment.
. As is discussed further below, infra at 231, this distinction between § 1226(c) and § 1231(a)(6) may be more theoretical than actual, in that § 1231(a)(6) also contains a clearly-defined termination point actual removal. Neither statute, however, contains any safeguards to ensure that the "obvious termination point” will ever occur.
. Recent inquiries by Congress and the Justice Department have highlighted the myriad problems currently facing the INS, including unreasonably lengthy delays in providing services to immigrants and in enforcing immigration laws. See Juliet Eilperin & Cheryl W. Thompson, House is Emphatic on INS: Goodbye, Wash. Post, April 27, 2002, at A27. In part because of these problems, the House of Representatives recently voted overwhelmingly to restructure the INS, dividing it into two bureaus that would separately handle services for immigrants and law enforcement. Id.
. Justice Kennedy's dissent relied upon these safeguards, which are absent in § 1226(c), to conclude that the detention authorized by § 1231(a)(6) was undoubtedly constitutional and, therefore, that there was no reason for the majority to refuse to give effect to Congress's clearly-stated intent. Zadvydas, 533 U.S. at 721, 121 S.Ct. 2491 (Kennedy, X, dissenting) ("Whether a due process right is denied when removable aliens who are flight risks or dangers to the community are detained turns, then, not on the substantive right to be free, but on whether there are adequate procedures to review their cases....").
. Similarly, in Carlson v. London, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952), the Supreme Court upheld a due process challenge to a pre-IIRIRA provision governing detention of members of the Communist party pending removal proceedings, see Internal Security Act of 1950, § 23, formerly codified at 8 U.S.C.A. §§ 137 et seq. (the Act or the Internal Security Act), relying heavily on the individualized nature of the inquiry, as well as the discretion vested in the Attorney General, as central to its conclusion that the denial of bail was not violative of the Fifth Amendment. Id. at 539, 72 S.Ct. 525 ("Of coursef] purpose to injure could not be imputed generally to all aliens subject to deportation, so discretion was placed by the 1950 Act in the Attorney Genera] to detain aliens without bail.”); id. at 541-42, 72 S.Ct. 525 ("There is no evidence or contention that all persons arrested as de-portable ... for Communist membership are denied bail.”).
. Indeed, the INS itself “has questioned the wisdom and efficacy of [mandatory detention under] § 1226(c), and has brought to Congress’ attention the need for alternative means of ensuring that aliens appear for their removal proceedings.” Kim, 276 F.3d at 534-35 (citing Immigration and Naturalization Oversight Hearings on INS Reform: Detention Issues, Before the Subcomm. On Immigration of the Senate Judiciary Comm., Testimony of INS Commissioner Doris Meissner, available at 1998 WL 767401 (F.D.C.H.) (Sept. 16, 1998)).
. For instance, a lawful permanent resident is rendered deportable by committing the crime of attempting to evade federal taxes, where "the revenue loss to the Government exceeds $10,000.” See 8 U.S.C.A. § 1101(a)(43)(M)(ii). While I do not question the gravity of this offense, I question whether one convicted of such an offense invariably poses an ongoing danger to the public.
. As noted above, supra at 230, whereás section 1231(a)(6) was determined to be ambiguous with respect to the Attorney .General’s "power to hold indefinitely in confinement an alien ordered removed,” Zadvydas, 533 U.S. at 697, 121 S.Ct. 2491, the text of section 1226(c) plainly mandates detention pending entry of a final order of removal. Nevertheless, as Justice Kennedy noted in his dissent, the six-month presumptive period that was read into § 1231(a)(6) by the Court "bears no relation to the text” of § 1231(a)(6). Zadvydas, 533 U.S. at 707, 121 S.Ct. 2491 (Kennedy, J., dissenting). In adopting the six-month presumptive period, the majority did not demonstrate any "ambiguity in the delegation of the detention power to the Attorney General.” Id. (Kennedy, J., dissenting). Thus, the Court’s adoption of the six-month presump-Uve period cannot be explained simply by reference to the stated ambiguity of § 1231(a)(6), but rather reflects serious doubts regarding the constitutionality of detention beyond the specified time period of six months. To the extent the presumption lacked textual grounding and was crafted to comply with due process, one would assume that due process similarly requires the application of such a presumption when analyzing a constitutional challenge to § 1226(c)'s mandatory detention provision. Cf. County of Riverside v. McLaughlin, 500 U.S. 44, 56-58, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (adopting presumption, based on lower court estimate of time needed to process arrestee, that 48 hour delay in probable cause hearing after arrest is reasonable, hence constitutionally permissible).
. For example, where the Government has set forth in its response a supported allegation of participation in terrorism, other dangers to domestic security, or situations involving sensitive matters of foreign policy, the habeas court may determine that a bail hearing is unnecessary. These examples are not meant to be exhaustive; there might be other situations where, despite the fact that the alien has been detained longer than six months, legitimate concerns arguably justify continued detention without a bail hearing, as when a statute authorizing mandatory detention is directed at a particular subset of aliens for whom it would be reasonable to presume flight risk or dangerousness, or when a bail hearing would involve the disclosure of classified or sensitive information. Although classified or sensitive information presumably could be kept confidential by sealing documents and closing immigration hearings to the public, as the Government continues to seek increased secrecy in immigration proceedings involving immigrants detained pursuant lo the September 11 attack investigation, a debate has ensued as to whether, and under what circumstances, such secrecy is warranted. See, e.g., Detroit Free Press v. Ashcroft, 195 F.Supp.2d 937 (E.D.Mich.2002) (holding that immigration hearings may not be closed to the press or the public); Steve Fainaru, U.S. Bans the Release of Detainees’ Names, Wash. Post, April 9, 2002, at A10 (detailing the Justice Department's “resolve to keep secret information about the detainees despite a growing number of legal challenges from civil liberties groups.”).
. I do not suggest that the district court, which did not have the benefit of Zadvydas's reasoning at the time it considered Welch's habeas petition, acted improperly when it directed the immigration judge to conduct a bail hearing for Welch without first evaluating the competing burdens of proof set forth in Zadvydas. Rather, I simply set forth my view of the more appropriate framework in light of the Supreme Court’s approach in Zadvydas.
. The Government now takes the position that Welch’s firearms-related misdemeanor conviction renders Welch deportable, but the Government agrees that the fact that the aggravated felony was stricken from Welch’s record renders him eligible for cancellation of removal proceedings by the Attorney General. See 8 U.S.C.A. § 1229b(3).
. To the extent the majority suggests that flight risk is not enough, standing alone, to justify detention pending removal proceedings, ante at 226, I respectfully disagree. See, e.g., Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 95 L.Ed.2d 697 ("[Rjespondents concede and the Court of Appeals noted that an arrestee may be incarcerated until trial if he presents a risk of flight.”); Zadvydas, 533 U.S. at 722, 121 S.Ct. 2491 (Kennedy, J., dissenting) ("It is neither arbitraiy nor capricious to detain the aliens when necessary to avoid the risk of flight or danger to the community.”); Kim, 276 F.3d at 535 (stating that an individualized determination of flight risk would be sufficient to justify detention pending removal proceedings).