Hernandez-Carrera v. Carlson

FILED
United States Court of Appeals
Tenth Circuit

November 12, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SANTOS HERNANDEZ-CARRERA;
PABLO SANTIAGO HERNANDEZ-
ARENADO,

Petitioners-Appellees,
v. No. 08-3097
KEN CARLSON, Field Office
Director, Immigration and Customs
Enforcement, Department of
Homeland Security; E.J. GALLEGOS,
Warden, USP-Leavenworth,

Respondents-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 05-CV-3051-RDR)

Thomas H. Dupree, Jr., Deputy Assistant Attorney General (Gregory G. Katsas,
Acting Assistant Attorney General; David J. Kline, Director, District Court
Section; Christopher J. Walker, Attorney, Appellate Staff; Samuel P. Go, Trial
Attorney, with him on the briefs), United States Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Respondents-Appellants.

Melissa Harrison, Assistant Public Defender for the District of Kansas (David J.
Phillips, Federal Public Defender, with her on the brief), Kansas City, Kansas, for
Petitioners-Appellees.

Before KELLY, McCONNELL and TYMKOVICH, Circuit Judges.
McCONNELL, Circuit Judge.

This case requires us to determine whether an agency interpretation

ordinarily owed deference under the framework established in Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is

foreclosed by a prior Supreme Court construction of the statute applying the

canon of constitutional avoidance. We conclude that under the principles outlined

in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545

U.S. 967, 982–83 (2005), a subsequent, reasonable agency interpretation of an

ambiguous statute, which avoids raising serious constitutional doubts, is due

deference notwithstanding the Supreme Court’s earlier contrary interpretation of

the statute.

I. BACKGROUND

Santos Hernandez-Carrera and Pablo Santiago Hernandez-Arenado are

natives and citizens of Cuba. They entered the United States illegally in 1980,

during the Mariel boatlift. Although both were classified as “inadmissible

aliens,” they were granted immigration parole in the United States. The

government revoked both aliens’ parole, however, in part because of their

criminal convictions while on parole. Mr. Hernandez-Carrera and Mr.

Hernandez-Arenado were both issued exclusion and deportation orders, based on

their lack of entry documents and their convictions for crimes of moral turpitude.

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 Under the Immigration and Nationality Act, once a final order of removal

has been entered against an alien, the government typically must remove the alien

from the United States within ninety days. 8 U.S.C. § 1231(a)(1)(A). However, 8

U.S.C. § 1231(a)(6) authorizes the Attorney General to detain certain classes of

aliens beyond the ninety day removal period. It provides, in relevant part, that:

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 . . . .

In February 2006, immigration judges separately ordered the continued

detention of Mr. Hernandez-Carrera and Mr. Hernandez-Arenado, pursuant to 8

C.F.R. § 241.14, a regulation promulgated by the Attorney General under 8

U.S.C. § 1231(a)(6). This regulation allows United States Immigration and

Customs Enforcement (“ICE”) to “continue detention of particular removable

aliens on account of special circumstances even though there is no significant

likelihood that the alien will be removed in the reasonably foreseeable future.” 8

C.F.R. § 241.14(a). The regulation recognizes four categories of aliens whose

special circumstances warrant continued detention: (1) aliens with a highly

contagious disease that is a threat to public safety; (2) aliens detained on account

of serious adverse foreign policy consequences of release; (3) aliens detained on

account of security or terrorism concerns; and (4) aliens determined to pose a

special danger to the public. 8 C.F.R. § 241.14(b–d), (f).

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 Both Mr. Hernandez-Carrera and Mr. Hernandez-Arenado were found to

“pose a special danger to the public” under 8 C.F.R. § 241.14(f). Under §

241.14(f), in order to justify an alien’s continued detention, the government must

prove by clear and convincing evidence that the alien has: (1) previously

committed one or more crimes of violence as defined in 18 U.S.C. § 16; that (2)

due to a mental condition or personality disorder and behavior associated with

that condition or disorder, the alien is likely to engage in acts of violence in the

future; and (3) no conditions of release can reasonably be expected to ensure the

safety of the public. On the basis of Mr. Hernandez-Carrera’s and Mr.

Hernandez-Arenado’s criminal records and mental health evaluations,

immigration judges found these elements to be satisfied in both cases.

Mr. Hernandez-Carrera was convicted of rape with force and bodily injury

in 1988. He was again convicted of battery and indecent exposure in 1990 and

sentenced to additional jail time. Upon his release from prison in 1993, Mr.

Hernandez-Carrera was detained by the Immigration and Naturalization Service

(“INS”). While in INS custody, Mr. Hernandez-Carrera was diagnosed with

schizophrenia and examined several times by Bureau of Prisons personnel. A

mental health evaluation concluded that, if released, Mr. Hernandez-Carrera

“would need a high level of structure and security and continued 24-hour

supervision for the rest of his life.” Even then, the report concluded that “it is

most probabl[e] that Mr. Hernandez-Carrera would be a direct danger to the

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public;” another report determined that it was “quite likely” that he would engage

in future violence if released. The immigration judge (“IJ”) concluded that the

evidence “establishes that [Mr. Hernandez-Carrera’s] refusal to take medication,

along with [his] mental condition, makes relapse, escape, and decomposition,

highly likely if [he] is released from prison.” The IJ therefore determined that

“no reasonable conditions of release would ensure public safety” and ordered Mr.

Hernandez-Carrera’s continued detention.

Mr. Hernandez-Arenado was convicted of sexually assaulting a seven year-

old boy in 1984. He has admitted to involvement in “several hundred” pedophilic

contacts with children in Cuba and in the United States. App. 98. Upon

completing his sentence in 1987, he was released into INS custody. While in

custody, he was diagnosed with pedophilia. Several mental health evaluations

concluded that Mr. Hernandez-Arenado could not be released without exposing

the public to danger, noting that he was unlikely to change his behavior or to

“accept constraints upon his acting on his impulses and feelings.” Indeed, Mr.

Hernandez-Arenado has stated on several occasions that he does not believe sex

with children is wrong. The IJ agreed with the government’s mental health expert

that if he was released, “nothing [would] stop [Mr. Hernandez-Arenado] from

grabbing a child off the street and molesting the child just as he has done in the

past.” He therefore concluded that “there are no reasonable conditions of release

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that can reasonably be expected to ensure the safety of the public” and ordered

Mr. Hernandez-Arenado’s continued detention.

Both aliens filed petitions for a writ of habeas corpus under 28 U.S.C. §

2241, challenging the constitutionality of their continued detention under 8 U.S.C.

§ 1231(a)(6) and 8 C.F.R. § 241.14. The district court believed itself to be

governed by the Supreme Court’s interpretation of 8 U.S.C. § 1231(a)(6) in

Zadvydas v. Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371

(2005), rather than the agency’s construction of the statute pursuant to notice-and-

comment rulemaking. See Hernandez-Carrera v. Carlson, 546 F. Supp.2d 1185,

1186–89 (D. Kan. 2008). It concluded that the Supreme Court had definitively

interpreted 8 U.S.C. § 1231(a)(6) to permit detention only for a period

“reasonably necessary to remove an alien from the United States,” presumptively

six months. Id. at 1187. Finding that 8 C.F.R. § 241.14 permitted continued

detention for a period longer than six months, the district court reasoned that the

regulation was not authorized by 8 U.S.C. § 1231(a)(6) and instead was

“manifestly contrary to its authorizing statute as interpreted by the Supreme

Court.” Id. at 1189. Therefore, it determined that Mr. Hernandez-Carrera’s and

Mr. Hernandez-Arenado’s continued detention under 8 C.F.R. § 241.14 was

impermissible, and granted their writs of habeas corpus.

Mr. Hernandez-Carrera has been released pending this appeal. Mr.

Hernandez-Arenado was ordered released, but the government has separately

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sought to detain him under the Adam Walsh Act, 18 U.S.C. § 4248. On June 9,

2008, the United States District Court for the Southern District of Illinois

dismissed the government’s attempt to civilly commit Mr. Hernandez-Arenado.

United States v. Hernandez-Arenado, 2008 WL 2373747 (S.D. Ill. June 9, 2008).

It concluded that the government had no authority to detain Mr. Hernandez-

Arenado, because he was not legally “in custody” within the meaning of the

Adam Walsh Act. Id. at *5. The district court in that case has stayed its decision

pending review by the Seventh Circuit. United States v. Hernandez-Arenado,

2008 WL 2568146 (S.D. Ill. June 23, 2008).

II. ANALYSIS

It is well established that an agency’s construction of a statute that it

administers may be owed deference by courts when “the statute is silent or

ambiguous” on the issue in question and the agency’s reading represents a

“permissible construction of the statute.” Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Recently, the

Supreme Court has also made clear that a “prior judicial construction of a statute

trumps [a subsequent] agency construction otherwise entitled to Chevron

deference only if the prior court decision holds that its construction follows from

the unambiguous terms of the statute and thus leaves no room for agency

discretion.” National Cable & Telecommunications Ass’n v. Brand X Internet

Services, 545 U.S. 967, 982 (2005).

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 Therefore, in order to determine whether the Attorney General’s

construction of 8 U.S.C. § 1231(a)(6) warrants deference, notwithstanding the

Supreme Court’s contrary construction of the statute in Zadvydas and Martinez,

we must ask: 1) whether “the statute is silent or ambiguous” as to the Attorney

General’s authority to detain certain categories of aliens beyond the ninety day

removal period; and 2) whether the agency’s construction of the statute represents

a “permissible reading of the statute.” It is to these questions we now turn.

A. Whether 8 U.S.C. § 1231(a)(6) is “Silent or Ambiguous”

We need not wrestle long with whether 8 U.S.C. § 1231(a)(6) is ambiguous.

The Supreme Court has twice explicitly found the statute to be ambiguous as to

whether and under what circumstances Congress authorized the Attorney General

to detain aliens indefinitely. In Zadvydas, the government argued that the statute,

by its clear terms, did not place a “limit on the length of time beyond the removal

period that an alien who falls within one of the § 1231(a)(6) categories may be

detained.” Zadvydas, 533 U.S. at 689. The Court explained, however, that it

could not find “any clear indication of congressional intent to grant the Attorney

General the power to hold indefinitely in confinement an alien ordered removed.”

Id. at 697 (emphasis added). Therefore, it concluded that the scope of authority

granted to the Attorney General by Congress to detain aliens beyond the ordinary

ninety day removal period was “ambiguous.” Id. See also Martinez, 543 U.S. at

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378 (finding that the Zadvydas Court “rel[ied] on ambiguities in the statutory

text” of § 1231(a)(6) when construing the statute).

That § 1231(a)(6) is ambiguous is further shown by the Court’s invocation

of the canon of constitutional avoidance in both Zadvydas and Martinez. “The

canon of constitutional avoidance comes into play only when, after the

application of ordinary textual analysis, the statute is found to be susceptible of

more than one construction . . . .” Martinez, 543 U.S. at 385. Where, however,

Congress’ intent is clear, the canon is inapplicable. See Zadvydas, 533 U.S. at

696. Thus, the Supreme Court’s use of the canon demonstrates that it regarded

the statute as genuinely susceptible of more than one reasonable interpretation.

B. Whether the Agency’s Construction is “Permissible”

A more serious question is presented as to whether the agency’s

construction of § 1231(a)(6), as implemented in 8 C.F.R. § 241.14, is a

“permissible” one. The Attorney General promulgated 8 C.F.R. § 241.14 in

response to the Supreme Court’s holding in Zadvydas, in order to provide for the

continued detention of limited classes of aliens in a manner comporting with

constitutional requirements. See Continued Detention of Aliens Subject to Final

Orders of Removal, 66 Fed. Reg. 56,968–69 (Nov. 14, 2001). The regulation

interpreted § 1231(a)(6) to authorize an alien’s long-term non-punitive detention

only where limited special circumstances are present and particular procedural

requirements are satisfied.

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 Mr. Hernandez-Carrera and Mr. Hernandez-Arenado, however, argue that 8

C.F.R. § 241.14 is an unreasonable construction of § 1231(a)(6) for three reasons.

First, they argue that the Attorney General is no longer free to construe §

1231(a)(6), on the theory that the Supreme Court’s holdings in Zadvydas and

Martinez conclusively established the meaning of the statute. Second, they argue

that “the canon of constitutional avoidance used in Zadvydas and [Martinez] to

interpret the statute trumps Chevron deference.” Aple. Br. 21, and that this

precludes us from deferring to the agency in this case. Finally, they argue that

even if deference is permissible as a general matter, the agency’s construction of

§ 1231(a)(6) is unreasonable, because it raises serious questions as to the statute’s

constitutionality under the Due Process Clause. We consider each argument in

turn.

1. Does the Principle of Brand X Apply When the Prior Judicial
Interpretation Was By the Supreme Court?

Mr. Hernandez-Carrera and Mr. Hernandez-Arenado first contend that the

Supreme Court’s construction of § 1231(a)(6) in Zadvydas and Martinez

forecloses any subsequent, contrary interpretation by the Attorney General.

Similarly, the district court concluded that “Zadvydas and Martinez decide the

constitutional extent of the Attorney General’s authority under 8 U.S.C. §

1231(a)(6).” Hernandez-Carrera, 546 F. Supp.2d at 1190. This misapprehends,

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however, the relative roles of courts and agencies when interpreting ambiguities

in statutory delegations of power to agencies.

The Supreme Court held in Chevron that “ambiguities in statutes within an

agency’s jurisdiction to administer are delegations of authority to the agency to

fill the statutory gap in reasonable fashion.” Brand X, 545 U.S. at 980

(describing Chevron’s holding). Judicial deference to administrative

interpretations in these cases is not a policy choice, but rather a means of giving

effect to congressional intent. When Congress leaves a gap within a statute

administered by an agency, Congress impliedly entrusts the agency with authority

to explain and fill in the interstices. Where, as here, Congress has expressly

authorized an agency to engage in rulemaking, we will infer that Congress has

delegated authority to the agency to address statutory ambiguities. See United

States v. Mead Corp., 533 U.S. 218, 229 (2001). In such cases, we recognize that

“Congress would expect the agency to be able to speak with the force of law

when it addresses ambiguity in the statute or fills a space in the enacted law, even

one about which Congress did not actually have an intent as to a particular

result.” Id.

In Chevron, the Supreme Court deferred to an agency’s resolution of a

statutory ambiguity, finalized through notice-and-comment rulemaking, before the

Court had an opportunity to construe the statute. Here, the aliens urge us not to

defer to an agency construction because it was developed only after the Supreme

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Court had construed the statute in a contrary manner. As the Supreme Court

noted in Brand X, however, “whether Congress has delegated to an agency the

authority to interpret a statute does not depend on the order in which the judicial

and administrative constructions occur.” Brand X, 545 U.S. at 983. Were we to

favor a judicial construction over a reasonable administrative agency construction

in this case, we would be ignoring Congress’ choice to empower an agency, rather

than the courts, to resolve this kind of statutory ambiguity.

When a court tentatively resolves an ambiguity in a statute that an agency

is empowered to administer, such a resolution carries the force of law until an

agency issues a definitive interpretation of the kind that would ordinarily warrant

Chevron deference. This does not make judicial decisions subject to reversal by

executive officers. Brand X, 545 U.S. at 982. The court’s “precedent has not

been ‘reversed’ by the agency, any more than a federal court’s interpretation of a

State’s law can be said to have been ‘reversed’ by a state court that adopts a

conflicting (yet authoritative) interpretation of state law.” Id. at 983–84.

Mr. Hernandez-Carrera and Mr. Hernandez-Arenado argue that Brand X

“only applies to lower court decisions.” Aple Br. 22. We disagree. It is true, of

course, that Brand X itself involved the question of whether the Ninth

Circuit’s—rather than the Supreme Court’s—prior judicial construction of the

Communications Act foreclosed a subsequent agency interpretation. See Brand X,

545 U.S. 967, 982 (2005). But we see no reason why the holding in Brand X

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would not be equally applicable to agency constructions that displace tentative

Supreme Court interpretations. In both cases, a court is merely giving due weight

to Congress’ intent to vest an agency with the power to fill in the gaps within its

own statute. The aliens contend that “[a] different rule for Supreme Court

precedents can be justified on the grounds that these opinion[s] have uniformity,

publicity, and finality that are lacking in the lower courts.” Aple Br. 22. But

even if we assumed that there existed policy reasons to treat Supreme Court and

lower court precedents differently in the face of contrary agency interpretations,

we would not be free to do so. Chevron deference is not a policy choice subject

to balancing against other policy considerations; it is a means of giving effect to

congressional intent.

The aliens also rely on Justice Stevens’ concurrence in Brand X. While

agreeing that an agency’s interpretation is not foreclosed by a lower court’s prior

construction, Justice Stevens suggested that the majority’s reasoning “would not

necessarily be applicable to a decision by [the Supreme Court] that would

presumably remove any pre-existing ambiguity.” Brand X, 545 U.S. at 1003

(Stevens, J., concurring). The government suggests that Justice Stevens’

concurrence should be understood only to affirm the basic point that “a Supreme

Court determination that a statute is unambiguous binds the lower courts.” Aplt.

Reply Br. 7 n.1. That said, some commentators have understood Justice Stevens

to have reserved judgment on the question of whether Brand X’s core holding

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would apply to an agency interpretation that conflicted with an existing Supreme

Court construction of a statutory ambiguity. See, e.g., Kathryn A. Watts,

Adapting to Administrative Law’s Erie Doctrine, 101 N W . U. L. R EV . 997, 1000

n.19 (2007).

Even if we understood Justice Stevens’ concurrence to suggest that this

question remains open, we would find unpersuasive the argument that Brand X

applies to lower courts, but not to the Supreme Court. All of the “anomalous

results” that would have followed from a contrary holding in Brand X would

follow equally from a contrary holding in this case. See Brand X, 545 U.S. at

983–84. For instance, whether an agency’s construction would be entitled to

Chevron deference could turn on the happenstance of whether the Supreme Court

construed the statute before the agency completed notice-and-comment

rulemaking proceedings. This would produce a detrimental race between agency

and courthouse. Entities that stood to lose from an agency’s resolution of

statutory ambiguities might pursue a definitive, favorable construction in the

Supreme Court, while working to delay the agency from issuing a contrary,

unfavorable interpretation entitled to Chevron deference. In addition, the rule

advanced by Mr. Hernandez-Carrera and Mr. Hernandez-Arenado would “lead to

the ossification of large portions of our statutory law,” by precluding agencies

from revising unwise judicial constructions of ambiguous statutes. See id. at 983

(quoting Mead, 533 U.S. at 247 (Scalia, J., dissenting)). Finally, the aliens’ rule

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would disregard the central premise of both Chevron and Brand X: that consistent

with congressional intent in these cases, “it is for agencies, not courts, to fill

statutory gaps.” Id. at 983.

For all these reasons, we conclude that the holding of Brand X applies

whether the judicial precedent at issue is that of a lower court or the Supreme

Court. In sum, a court’s—even the Supreme Court’s—prior interpretation of a

statute that an agency is empowered to administer forecloses an agency’s

reasonable construction only if the relevant judicial decision held the statute to be

unambiguous. See id. at 984. Because the Supreme Court explicitly found 8

U.S.C. § 1231(a)(6) to be ambiguous, a contrary reasonable agency interpretation

is not foreclosed in this case.

We recognize that this holding leads us to conflict with the results reached

by the two other circuits to consider the Attorney General’s revised construction

of § 1231(a)(6). See Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008); Thai v.

Ashcroft, 366 F.3d 790 (9th Cir. 2004). In those cases, the Fifth Circuit and

Ninth Circuit reached a conclusion similar to that reached by the district court in

this case: that the Attorney General’s interpretation of § 1231(a)(6), as construed

through 8 C.F.R. § 241.14, is unreasonable. See Tran, 515 F.3d at 485; Thai, 366

F.3d at 798–99. Both courts based their conclusions on the premise that the

Supreme Court’s decision in Zadvydas represented a final, definitive

interpretation of 8 U.S.C. § 1231(a)(6). See Tran, 515 F.3d at 484 (“While it is

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true that Zadvydas found that § 1231(a)(6) was ambiguous. . ., the Government

ignores the fact that the Zadvydas court resolved this ambiguity by imposing a

requirement that the detention last no longer than reasonably necessary to

effectuate removal.”); Thai, 366 F.3d at 798 (“[B]ecause Zadvydas construed §

1231(a)(6) to forbid the post-removal-period detention of an alien once removal is

no longer reasonably foreseeable. . ., we hold that Thai’s continued detention is

not authorized under § 1231(a)(6).”) (emphasis added).

We believe that the Fifth and Ninth Circuits erred by concluding that the

Supreme Court could authoritatively and finally interpret § 1231(a)(6). Brand X

makes clear that even after a court construes an agency’s statute, “the agency

may, consistent with the court’s holding, choose a different construction, since

the agency remains the authoritative interpreter (within the limits of reason) of

such statutes.” Brand X, 545 U.S. at 983. We therefore think Tran and Thai

mistakenly focused on whether the Supreme Court’s construction of 8 U.S.C. §

1231(a)(6) in Zadvydas authorized the kind of detention at issue here. Rather, the

proper inquiry is whether the Attorney General’s revised construction of §

1231(a)(6) is reasonable.

We are reassured in disagreeing with the Fifth and Ninth Circuit by the fact

that neither court considered the Supreme Court’s Brand X decision. 1 In contrast,

1
The Ninth Circuit’s decision in Thai predated Brand X. However, the
court did not even address Chevron itself.

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Judge Kozinski, dissenting from denial of rehearing en banc in Thai, anticipated

Brand X to reach a conclusion similar to that which we reach today.

The Supreme Court [in Zadvydas], confronted with a very broad
statute, narrowed its scope to avoid unconstitutionality, but the
Court’s method of narrowing is not the only permissible one. The
AG, pursuant to his statutory delegation of regulatory authority, has
selected a different method of conforming the statute to the
requirements of the Constitution . . . . See Thai v. Ashcroft, 389 F.3d
967, 971 (9th Cir. 2004) (Kozinski, J., dissenting from denial of en
banc).

We conclude that Tran and Thai misconstrued the nature of the Supreme

Court’s decisions in Zadvydas and Martinez. In Zadvydas, the Supreme Court did

not purport to “resolve” the statutory ambiguity in § 1231(a)(6) once and for all.

Rather, the Court merely (properly, as we shall explain) declined to defer to an

agency interpretation that raised serious constitutional doubts, and was therefore

an unreasonable construction of Congress’ intent. Because it owed the agency no

deference, it was free to conclude that detention was authorized only for a six-

month period. In no way, however, did the Court signal that its interpretation was

the only reasonable construction of § 1231(a)(6). To the contrary, the Court

specifically found the statute to be ambiguous. See Zadvydas, 533 U.S. at 697.

Moreover, the Court explicitly recognized that its construction of the statute was

not the only reasonable one possible. See id, 533 U.S. at 701 (“While an

argument can be made for confining any presumption to 90 days . . . we recognize

[a six month] period.”)

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 Thus, notwithstanding the contrary results reached by the Fifth and Ninth

Circuits, we conclude that the agency’s construction of § 1231(a)(6) is owed

Chevron deference to the extent that it is reasonable. To be sure, this

reasonableness inquiry requires us to address whether, and in what manner, an

agency’s interpretive discretion is constrained by the canon of constitutional

avoidance—questions we consider next.

2. Does the Constitutional Avoidance Canon Preclude Deference to the
Agency Interpretation?

Mr. Hernandez-Carrera and Mr. Hernandez-Arenado contend that the canon

of constitutional avoidance requires that we eschew deference to the agency’s

interpretation of § 1231(a)(6). The avoidance canon provides that “where an

otherwise acceptable construction of a statute would raise serious constitutional

problems, the Court will construe the statute to avoid such problems unless such

construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo

Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988). The aliens contend both that this principle “trumps Chevron” and

operates to preclude the agency's interpretation of § 1231(a)(6) in this case.

The government argues the opposite: that constitutional avoidance never

precludes an agency’s interpretation of a statute when Chevron deference is

otherwise appropriate, and that regardless, constitutional avoidance does not

preclude the agency’s interpretation in this case. Aplt. Reply Br. 9. We think the

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answer is in between. Although constitutional avoidance can operate to preclude

agency interpretations which raise substantial constitutional doubts, the Attorney

General’s construction of 8 U.S.C. § 1231(a)(6) in 8 C.F.R. § 241.14 does not

raise such doubts. Therefore, constitutional avoidance does not preclude the

agency’s interpretation of § 1231(a)(6) in this case.

It is well established that the canon of constitutional avoidance does

constrain an agency’s discretion to interpret statutory ambiguities, even when

Chevron deference would otherwise be due. In Edward J. DeBartolo Corp. v.

Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568

(1988), the Supreme Court applied the canon of constitutional avoidance to reject

the National Labor Relations Board’s (“NLRB”) interpretation of an ambiguous

statute that it was empowered to administer. See id. at 574–77. Although the

Court recognized that the NLRB’s interpretation “would normally be entitled to

deference” under Chevron, it found that “the Board’s construction of the statute,

as applied in [that] case, pose[d] serious questions of the validity of [the statute]

under the First Amendment.” Id. at 575. As a result, the Court concluded that

“[e]ven if [the NLRB’s] construction of the Act were thought to be a permissible

one” under Chevron, id. at 577, the Court was required to inquire as to whether

there existed another permissible interpretation that did not raise substantial

constitutional doubts. See id. at 575–77.

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 “Where an administrative interpretation of a statute invokes the outer limits

of Congress’ power, we expect a clear indication that Congress intended that

result.” Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs,

531 U.S. 159, 172 (2001). Although the government claims that this principle

does “serious violence to the separation of powers,” it is, in fact, separation of

powers that dictates the principle in the first place. Like Chevron, the canon of

constitutional avoidance is “a means of giving effect to congressional intent, not

of subverting it.” Clark v. Martinez, 543 U.S. 371, 382 (2005). The canon

follows not only from courts’ prudential desire not to decide constitutional issues

unnecessarily, but from the “assumption that Congress does not casually authorize

administrative agencies to interpret a statute to push the limit of congressional

authority.” Solid Waste Agency of N. Cook County, 531 U.S. at 172–73. Just as

Chevron reflects a judgment that Congress generally intends to empower an

agency to resolve certain statutory ambiguities, the avoidance canon reflects a

judgment that Congress does not typically intend to authorize agencies to fill in

statutory gaps in a manner raising substantial constitutional doubts.

We think it would be helpful here to add a word about the interplay

between the canon of constitutional avoidance and the framework of

administrative deference codified in Brand X. It may well be that some

ambiguous statutes are susceptible of only one interpretation that avoids

constitutional doubts. In such a case, both agencies and courts are obligated to

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interpret the statute in the one manner that does not raise a serious constitutional

question. To the extent that a court unequivocally concludes that constitutional

avoidance compels one, and only one, reading of a statute, such a holding would

constitute “a judicial precedent holding that the statute unambiguously forecloses

[a contrary agency interpretation], and therefore [would] contain[] no gap for the

agency to fill.” Brand X, 545 U.S. 967, 983 (2005). Indeed, this may be

precisely the kind of possibility that Justice Stevens envisioned his Brand X

concurrence—“a decision by [the Supreme Court] that would presumably

‘remove’ any pre-existing ambiguity” in a statute. See id. at 1003 (Stevens, J.,

concurring).

It will frequently be the case, however, that an ambiguous statute

susceptible of one interpretation raising serious constitutional doubts will be open

to other readings that raise no such doubts. When this is the case, a court’s initial

application of the avoidance canon to construe an ambiguous statute would not

foreclose the agency from adopting a different reasonable interpretation, if that

interpretation also avoided the constitutional concerns. Likewise, if an agency

initially construed a statute in a manner raising constitutional doubts—an

interpretation that Zadvydas makes clear that a court would be right to

reject—this would not foreclose the agency from later construing the statute in a

different manner that avoids those doubts. In such a case, the later agency

interpretation is due deference to the extent that would otherwise be appropriate

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under the Chevron framework, even if it conflicts with an intermediate judicial

construction of the statute that applied the canon of constitutional avoidance.

We therefore conclude that even after a court has construed a statute to

avoid constitutional doubts, an agency remains free to interpret the same statute

in a different manner so long as its subsequent interpretation is reasonable and

avoids serious constitutional questions. A court’s prior judicial construction of a

statute, applying the avoidance canon, precludes an alternative agency

construction only when no alternative, reasonable construction would avoid

constitutional doubts. In that case the only “permissible” construction is the

reading which does not provoke a serious constitutional question. In the ordinary

case, however, courts should review a new agency interpretation afresh to

determine whether the agency’s reading sufficiently avoids raising constitutional

doubts, such that it ought to be entitled to deference.

3. Does the Agency’s Interpretation of § 1231(a)(6) Raise Serious
Constitutional Doubts?

We thus come finally to the question of whether the agency’s construction

of 8 U.S.C. § 1231(a)(6), as codified in 8 C.F.R. § 241.14, avoids raising serious

constitutional doubts. In the context of this case, this demands an inquiry into

whether the Attorney General’s revised construction of the scope and nature of his

authority to detain aliens under § 1231(a)(6) comports with due process. Because

we find that the substantive limitations built into the Attorney General’s power to

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detain aliens beyond the removal period, as well as the procedural protections

provided in such cases, are sufficient to satisfy due process, we conclude that the

agency’s construction of § 1231(a)(6) no longer raises serious constitutional

doubts.

Although freedom from detention “‘has always been at the core of the

liberty protected by the Due Process Clause from arbitrary government action,’

that liberty interest is not absolute.” Kansas v. Hendricks, 521 U.S. 346, 356

(1997) (internal citation omitted). Even in the civil context, a person’s

“constitutionally protected interest in avoiding physical restraint may be

overridden,” whether that person is an alien or a citizen. Id. at 356. Although

there is no one formulation that signals when a civil detention scheme is

permissible, those schemes which comport with due process typically apply

narrowly to a small segment of particularly dangerous individuals and include

meaningful procedural protections. See generally Zadvydas, 533 U.S. at 690–92.

To be sure, “a finding of dangerousness, standing alone, is ordinarily not a

sufficient ground upon which to justify indefinite involuntary commitment.”

Hendricks, 521 U.S. at 358. In cases in which preventative detention is of

potentially indefinite duration, and where an individual is being detained because

he is dangerous to himself or his community, due process demands the presence of

“some other special circumstance, such as mental illness, that helps to create the

danger.” Zadvydas, 533 U.S. at 691. But where such “special and narrow

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circumstances” are present, the government’s interest in preventing harm

“outweighs the ‘individual’s constitutionally protected interest in avoiding

physical restraint’” Id. at 690 (quoting Hendricks, 521 U.S. at 346.)

Bearing this framework in mind, we consider the agency interpretation

reviewed by the Supreme Court in Zadvydas and Martinez, as well as the agency’s

revised construction of § 1231(a)(6) before us today. In Zadvydas, the government

argued that by the clear terms of § 1231(a)(6), Congress did not place a “limit on

the length of time beyond the removal period that an alien who falls within one of

the § 1231(a)(6) categories may be detained.” Zadvydas, 533 U.S. at 689. Far

from limiting the Attorney General’s detention authority to “a small segment of

particularly dangerous individuals,” see Hendricks, 521 U.S. at 368, this reading

would have authorized the detention of any removable alien under § 1231(a)(6),

without regard to an alien’s dangerousness or special characteristics. See

Zadvydas, 533 U.S. at 691. As the Supreme Court pointed out, this construction

suggested, at its limits, that Congress had authorized the Attorney General to

permanently detain an alien guilty only of a tourist visa violation. Id.

Moreover, under the government’s reading of § 1231(a)(6) in Zadvydas,

aliens would have been entitled only to minimal procedural protections. In

particular, an alien would have borne the burden of proving that he was not

dangerous; if the alien failed to establish his non-dangerousness, indefinite

detention would follow. See id. at 691. The government proposed to justify the

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scope of its detention power and the lack of procedural protections it would afford

on the grounds that “alien status itself can justify indefinite detention” and that

Congress had “plenary power” to create immigration law. Id. at 692, 695. The

Court rejected both arguments. It made clear that at least some aliens—those who

had already been admitted to the territory of the United States—are entitled to

certain constitutional protections. See id. at 693. Moreover, it concluded that

Congress’ plenary power to create immigration law was subject to constitutional

limits. See id. at 695. As a result, the Attorney General’s construction of §

1231(a)(6) to authorize indefinite detention in the ordinary case was

constitutionally suspect.

In Clark v. Martinez, the government relied on the same construction of

1231(a)(6) that had been rejected in Zadvydas. 2 The government attempted to

distinguish Zadvydas by arguing that the constitutional problems with interpreting

§ 1231(a)(6) to authorize indefinite detention for admitted aliens were not present

in the case of aliens who have never been admitted. Although the Court

acknowledged that this might have been correct, it held that its earlier construction

2
Although 8 C.F.R. § 241.14 had been promulgated by the time of Martinez,
it was not at issue in that case. Both aliens before the Supreme Court in Martinez
were detained by the INS before 2000 pursuant to governing regulations at that
time. See Zadvydas, 533 U.S. at 685–86. They were detained well before the
Attorney General’s adoption of 8 C.F.R. § 241.14 and even before Zadvydas
itself. The only question before the Court in Martinez was whether the Court’s
holding in Zadvydas as to one class of aliens in § 1231(a)(6) (previously admitted
aliens subsequently ordered removed) applied equally to the other classes in
1231(a)(6) (inadmissible or criminal aliens).

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of § 1231(a)(6)’s ambiguous language applied to each class of alien governed by

the statute. Martinez, 543 U.S. at 380.

In both Zadvydas and Martinez, the only agency interpretation to which the

Court was asked to defer was one authorizing indefinite detention for every

removable alien covered by § 1231(a)(6) and providing minimal procedural

protection. Applying the canon of constitutional avoidance, the Court concluded

that Congress had not vested the Attorney General with such a constitutionally

problematic detention authority. The Attorney General’s revised reading of §

1231(a)(6) before us today, finalized through notice-and-comment rulemaking,

avoids those constitutional concerns. Bearing the Court’s guidance in Zadvydas in

mind, the Attorney General now interprets § 1231(a)(6) to authorize detention

beyond the removal period only in limited special circumstances. See 8 C.F.R. §

241.14(a) (“The Service may invoke the procedures of this section in order to

continue detention of particular aliens on account of special circumstances . . . .”)

(emphasis added). Detention beyond the removal period is authorized only in

situations where the government’s interest in an alien’s continued detention is

particularly strong: in the cases of (1) aliens with a highly contagious disease that

is a threat to public safety; (2) aliens detained on account of serious adverse

foreign policy consequences of release; (3) aliens detained on account of security

or terrorism concerns; and (4) aliens determined to pose a special danger to the

public. 8 C.F.R. § 241.14(b–d), (f). Therefore, in contrast to the expansive scope

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of ICE’s detention authority advanced by the government in Zadvydas, the

Attorney General has now interpreted § 1231(a)(6) only to authorize continued

detention for a “small segment of. . .individuals” whose release would particularly

endanger the public’s health or safety, 8 C.F.R. § 241.14(b), (d), (f), or the

nation’s foreign relations. 8 C.F.R. § 241.14(c). See Hendricks, 521 U.S. at 368.

Moreover, the Attorney General has substantially enhanced the evidentiary

requirements imposed on the agency and the procedural protections available to an

alien before he can be detained because he poses a special danger under 8 C.F.R. §

241.14(f). First, an alien can be detained under this subsection only upon the

finding that he has: (1) previously committed one or more crimes of violence as

defined in 18 U.S.C. § 16; that (2) due to a mental condition or personality

disorder and behavior associated with that condition or disorder, the alien is likely

to engage in acts of violence in the future; and (3) no conditions of release can

reasonably be expected to ensure the safety of the public. This directly responds

to the Zadvydas Court’s guidance that “[i]n cases in which preventive detention is

of potentially indefinite duration, we have also demanded that the dangerousness

rationale be accompanied by some other special circumstance, such as mental

illness, that helps to create the danger.” Zadvydas, 533 U.S. at 691.

Equally importantly, the burden of proof is now on the agency to prove

dangerousness, rather than on the alien to show non-dangerousness. In order to

continue detention beyond the removal period because an alien poses a special

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danger to the public, the government must first demonstrate that there is

“reasonable cause to go forward with a merits hearing.” 8 C.F.R. § 241.14(h).

The alien is provided with written notice of the hearing and his rights, as well as a

statement summarizing the agency’s factual basis for continuing detention. 8

C.F.R. § 241.14(g)(1-3). The alien is also provided with a list of free legal

services providers, and may be represented by an attorney or other representative

of his or her choice in accordance with 8 C.F.R. § 292. 8 C.F.R § 241.14(g)(3)(i).

At the hearing, the alien has the opportunity to examine evidence against him,

present evidence in his behalf, and cross-examine witnesses or any authors of

medical or mental health reports used as a basis for his continued detention. 8

C.F.R. § 241.14(g)(3)(i-iv). If ICE can show reasonable cause, a merits hearing is

scheduled. 8 C.F.R. § 241.14(h)(3).

At the merits hearing, the agency has the burden of proving “special danger”

by clear and convincing evidence. 8 C.F.R. § 241.14(i)(1). If the IJ determines

that continued detention is warranted, ICE is responsible for providing an

“ongoing, periodic review of the alien’s continued detention,” to determine

whether changed circumstances warrant his immediate release. 8 C.F.R. §

241.14(k)(1). At the alien’s request, the government will undertake a review of

his case as frequently as once every six months. 8 C.F.R. § 241.14(k)(2–3).

Mr. Hernandez-Carrera and Mr. Hernandez-Arenado raise both substantive

and procedural due process challenges to the regulations authorizing their

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continued detention. We are confident, however, that due process is satisfied here.

As an initial matter, we note that it is not at all clear that removable aliens benefit

from precisely the same advantages of due process as do citizens or lawful

permanent resident aliens. To be sure, “the Due Process Clause applies to all

‘persons’ within the United States, including aliens, whether their presence here is

lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693.

However, the nature of the protection an alien is due “may vary depending upon

status and circumstance.” Id. at 694. “The fact that all persons, aliens and

citizens alike, are protected by the Due Process Clause does not lead to the further

conclusion that all aliens are entitled to enjoy all the advantages of citizenship, or,

indeed, to the conclusion that all aliens must be placed in a single homogeneous

legal classification.” Matthews v. Diaz, 426 U.S. 67, 78 (1976).

Regardless of the precise nature of the protections that removable aliens are

entitled to, we find Mr. Hernandez-Carrera’s and Mr. Hernandez-Arenado’s due

process arguments unconvincing. The aliens first argue that the agency should be

required to prove dangerousness beyond a reasonable doubt, rather than by clear

and convincing evidence. However, even in a case involving citizens, a

unanimous Supreme Court has upheld the use of a clear and convincing evidence

standard in an indefinite civil commitment proceeding. Addington v. Texas, 441

U.S. 418, 432 (1979). The Court noted that given the uncertainties of

psychological diagnosis, a reasonable doubt standard might “impose a burden that

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the state cannot meet,” and that a clear and convincing evidence standard was

sufficient to satisfy due process. Id. at 432-33. We cannot think a higher standard

is constitutionally compelled in the context of aliens subject to exclusion and

deportation orders.

Next, the aliens contend that the regulations are constitutionally deficient

because they do not, on their face, require the government to offer psychiatric

treatment. However, Mr. Hernandez-Carrera and Mr. Hernandez-Arenado point to

no evidence that aliens detained pursuant to 8 C.F.R. § 241.14 do not receive

treatment. In fact, the record shows that the government attempted to provide

treatment to both appellees. The IJ concluded, in agreement with mental expert

testimony, that Mr. Hernandez-Carrera “refused to take his medication,” even

when “in the highly structured environment of the medical ward in the prison.”

App. 118. Indeed, this finding was central to the IJ’s conclusion that no

conditions of release could reasonably be expected to ensure the public’s safety.

See App. 118-119. Likewise, the IJ in Mr. Hernandez-Arenado’s case noted that

Mr. Hernandez-Arenado had refused to take part in group therapy and continued to

reject treatment because of his “deep seated belief that his [pedophilic] actions are

not inappropriate.” App. 131. In addition, the Department of Health Services

expert testified on cross-examination before the IJ that there was no cure for

pedophilia, App. 131; due process surely does not require the provision of

treatment for an untreatable mental condition. See Hendricks, 521 U.S. at 365–66

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(noting that due process would present no barrier to the civil detention of

pedophiles, assuming pedophilia was not amenable to treatment). In the absence

of any evidence that suggests the government would withhold treatment from an

alien amenable to it, we decline Mr. Hernandez-Carrera’s and Mr. Hernandez-

Arenado’s invitation to read 8 C.F.R. § 241.14 as rejecting the possibility of

treatment for detained aliens. 3

Next, Mr. Hernandez-Arenado and Mr. Hernandez-Carrera contend that 8

C.F.R. § 241.14(f) does not allow for the oversight of an Article III judge.

However, as this case illustrates, aliens who believe that their continued detention

is unlawful may challenge ICE’s determination by seeking a writ of habeas corpus

in federal court. This is sufficient to satisfy the requirements of the Due Process

Clause. “The writ of habeas corpus has always been available to review the

legality of Executive detention,” and both “[b]efore and after the enactment in

1875 of the first statute regulating immigration, the jurisdiction [of federal courts

to grant the writ] was “regularly invoked on behalf of noncitizens, particularly in

the immigration context.” I.N.S. v. St. Cyr, 533 U.S. 289, 305 (2001). Thus, it has

long been the case that “when the record shows that a commissioner of

immigration is exceeding his power, [an] alien may demand his release upon

3
Our conclusion makes it unnecessary to determine whether the government
would be required to offer treatment as a matter of due process in a situation
where effective treatment was available and an alien was amenable to treatment.

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habeas corpus.” Id. at 306 (quoting Gegiow v. Uhl, 239 U.S. 3, 9 (1915)). Due

process requires no more.

Finally, Mr. Hernandez-Carrera and Mr. Hernandez-Arenado argue that due

process is violated because the regulations provide “no right to a jury, no court-

appointed counsel at government expense, no court-funded experts for the

defense.” Aple. Br. 26. First, we note that this case does not require us to decide

whether the government must provide counsel to aliens detained under §

1231(a)(6). “A plaintiff may challenge a statute or regulation on an as-applied

basis ‘only insofar as it has an adverse impact on his own rights.’” United States

v. Friday, 525 F.3d 938, 951 (10th Cir. 2008) (quoting County Court of Ulster

County v. Allen, 442 U.S. 140, 155 (1979). Here, because both Mr. Hernandez-

Carrera and Mr. Hernandez-Arenado have been represented by counsel throughout

detention proceedings before the IJ as well as in federal court, they do not have

standing to claim an “adverse impact” from any alleged deficiency in the access to

counsel provided under the statute.

Likewise, Mr. Hernandez-Carrera and Mr. Hernandez-Arenado cannot

prevail on a facial constitutional challenge on this score. While we have left

undecided whether a plaintiff making a facial challenge must “establish that no set

of circumstances exists under which the Act would be valid,” Doctor John’s, Inc.

v. City of Roy, 465 F.3d 1150, 1157 n.5 (10th Cir. 2006) (quoting United States v.

Salerno, 481 U.S. 739, 745 (1987) (emphasis added)), it is clear a litigant cannot

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prevail in a facial challenge to a regulation or statute unless he at least can show

that it is invalid “in the vast majority of its applications.” Friday, 525 F.3d at 950

n.6. Here, the aliens have not done so. Under 8 C.F.R. § 241.14(g)(3)(i), an alien

“shall be provided with a list of free legal services providers, and may be

represented by an attorney or other representative of his or her choice.” This

alone suggests that many aliens will have access to legal counsel. Even assuming

counsel was required—something we do not here decide—Mr. Hernandez-Carrera

and Mr. Hernandez-Arenado have not shown that the government has failed to

provide it in “the vast majority” of cases. Thus, they cannot sustain a facial

challenge on this ground.

We likewise reject the aliens’ claims of right to juries and experts. In a

civil commitment proceeding, “state power is not exercised in a punitive sense.”

Addington, 441 U.S. at 428. Accordingly, both the standards of proof and the

constitutional rights applicable in the case of civil commitment are distinct from

those available in a criminal proceeding. See, e.g., Allen v. Illinois, 478 U.S. 364

(1986) (finding that the Fifth Amendment guarantee against self-incrimination in

criminal cases is inapplicable to civil commitment proceedings). The Sixth

Amendment right to jury trial, limited to “criminal prosecutions,” does not extend

to civil commitment proceedings. See United States v. Salahar, 917 F.2d 1197,

1205–06 (9th Cir. 1990). Finally, the aliens provide no support for the claim that

ICE is obligated to provide aliens with their own court-funded experts. We note,

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however, that both aliens had access to experts in this case, as both submitted

psychiatric expert reports before the IJ.

We therefore conclude both that the Attorney General’s interpretation of 8

U.S.C. § 1231(a)(6) satisfies due process. Because the Attorney General’s

statutory interpretation raises no serious constitutional question, and therefore

represents a “reasonable” interpretation of the statute, it is entitled to Chevron

deference.

III. CONCLUSION

For the foregoing reasons, we find that the agency’s revised interpretation of

§ 1231(a)(6) is reasonable, and therefore owed Chevron deference. The Attorney

General’s construction of 8 U.S.C. § 1231(a)(6), as interpreted in 8 C.F.R. §

241.14 avoids the constitutional and interpretive problems recognized in Zadvydas

and Martinez. Unlike in Zadvydas, the Attorney General is no longer advancing a

construction of § 1231(a)(6) raising serious constitutional doubts. Nor is he

arguing that the Court’s opinion in Zadvydas itself can be read to authorize

indefinite detention for some § 1231(a)(6) aliens while simultaneously only

permitting limited detention for others. See Martinez, 543 U.S. 380–81. Rather,

the Attorney General’s new construction applies equally to each class of alien

listed in § 1231(a)(6). He has therefore avoided all of the deficiencies with his

early interpretation. Whether or not we think the Attorney General’s interpretation

is the “best” one is immaterial. See Chevron, 467 U.S. at 843 n.11. Separation of

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powers principles dictate that we defer to the Attorney General’s construction of

the statute so long as it is reasonable.

The Attorney General’s interpretation of 8 U.S.C. § 1231(a)(6) reads

Congress to have authorized the detention beyond ninety days of limited classes of

aliens—including those who are particularly dangerous, mentally ill, and cannot be

released without jeopardizing the public’s safety—so that they need not be

released into the general population only because no other country will accept

them. Because his interpretation is eminently reasonable, it is one to which we

owe deference.

We therefore VACATE the district court’s order granting the writ of habeas

corpus to Mr. Hernandez-Carrera and Mr. Hernandez-Arenado, and REMAND the

case to the district court for further proceedings not inconsistent with this opinion.

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