IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2008
No. 06-30361 Charles R. Fulbruge III
Clerk
HA TRAN,
Petitioner-Appellee,
v.
MICHAEL B MUKASEY, US ATTORNEY GENERAL; JAMES W ZIGLAR;
CRAIG ROBINSON; UNITED STATES IMMIGRATION AND CUSTOMS
ENFORCEMENT; UNITED STATES DEPARTMENT OF HOMELAND
SECURITY,
Respondents-Appellants
Appeal from the United States District Court
for the Western District of Louisiana
Before JONES, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Respondents-Appellants United States Attorney General Michael
Mukasey, the Department of Homeland Security/Bureau of Immigration
Customs Enforcement (“BICE”), BICE Commissioner James W. Ziglar, and
BICE Louisiana Field Officer Craig Robinson (hereinafter “the Government”)
challenge the district court’s grant of habeas relief to Ha Tran. To resolve this
issue, we must determine whether 8 U.S.C. § 1231(a)(6), as construed by the
Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), authorizes the
continued and potentially indefinite detention of a removable alien based on a
No. 06-30361
determination by the government that the alien’s mental illness renders him a
dangerous risk to the community. In light of Zadvydas and its progeny, we
conclude that it does not.
I. Factual and Procedural Background
The facts underlying this appeal are undisputed. Ha Tran, a native and
citizen of Vietnam, was admitted to the United States as a refugee on August 12,
1975. On September 20, 1978, Tran became a lawful permanent resident. Tran
was convicted of firearm possession and assault and battery against his wife on
October 24, 1984. As a result, Tran was confined to a mental hospital for two
years where he was diagnosed with a mental illness. Thereafter, he was
transferred to a halfway house for six months. One day after his release from
the halfway house, Tran murdered his wife in the presence of their seven-year-
old daughter. Tran pled guilty to manslaughter and was sentenced to eighteen
to twenty years in prison on May 22, 1989.
Before Tran completed his sentence, the Department of Homeland
Security (“DHS”) took him into custody and initiated deportation proceedings.
On February 2, 1998, based on his conviction for a crime of violence, the
immigration judge found Tran removable to France, and in the alternative,
Vietnam. Tran did not appeal; thus his order of removal became final thirty
days later. Both France and Vietnam, however, refused to accept him. Because
DHS was unable to deport Tran, it continued to detain him.
On December 7, 2001, Tran sought release from DHS custody following the
Supreme Court’s decision in Zadvydas, which held that “once removal is no
longer reasonably foreseeable, continued detention is not authorized by [8 U.S.C.
§ 1231(a)(6)].” 533 U.S. at 689. In response, the Government initiated
proceedings pursuant to 8 C.F.R. § 241.14(f), which provides for the continued
detention of an alien who “due to a mental condition . . . is likely to engage in
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No. 06-30361
acts of violence in the future[.]”1 Tran was evaluated by a number of mental
health professionals with the purpose of determining whether he would pose a
threat to the public if released. Based on a finding that Tran’s alleged mental
illness would cause him to commit acts of violence in the future, the DHS issued
a Decision to Continue Custody, acknowledging that although Tran was not
likely to be removed in the foreseeable future, the DHS would continue to detain
him under 8 C.F.R. § 241.14(f).
Pursuant to 8 C.F.R. 241.41(f)(4), the immigration judge (“IJ”) reviewed
DHS’s decision and recommended that Tran be released.2 The IJ pointed to a
number of flaws in Tran’s psychiatric evaluations in finding that the
Government had failed to demonstrate that Tran’s mental condition made him
a special danger to the public. On appeal, the BIA vacated the IJ’s ruling,
finding that the Government had established by clear and convincing evidence
that Tran had met the criteria for continued detention under § 241.14(f).
1
In the wake of Zadvydas, the government promulgated a new regulatory scheme,
which established procedures for the continued detention of certain removable aliens who were
not likely to be removed in the reasonably foreseeable future. See 8 C.F.R. § 241.14(a); see also
66 Fed. Reg. 56967. These regulations provide in relevant part that DHS may continue to
detain an alien determined to be "specially dangerous" if the following requirements are met:
(i) The alien has previously committed one or more crimes of
violence as defined in 18 U.S.C. 16;
(ii) 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
(iii) No conditions of release can reasonably be expected to ensure
the safety of the public.
8 C.F.R. § 241.14(j). The Government must satisfy each of these requirements by clear and
convincing evidence. 8 C.F.R. § 241.14(i)(1). Before invoking the regulation, the alien must
undergo a full medical and psychiatric evaluation. 8 C.F.R. 241.41(f)(3).
2
Under 8 C.F.R. 241.41(f)(4), once the DHS has determined that continued detention
is justified, this decision is reviewable by an immigration judge ("IJ") and the Board of
Immigration Appeals ("BIA")
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On October 22, 2004, Tran filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 in the district court. In his petition, Tran argued
that his detention under 8 C.F.R. § 241.14(f) violated 8 U.S.C. § 1231(a)(6) as
construed by the Supreme Court in Zadvydas because his removal was not
reasonably foreseeable. Before the district court, the Government did not argue
that Tran’s detention was reasonably foreseeable, nor did they dispute the fact
that Tran had been held beyond the presumptively reasonable six-month period
established in Zadvydas. Rather, the Government argued that Tran’s detention
was authorized by Zadvydas’s “express pronouncement that the Government
may detain individuals for extended periods of time–even indefinitely–in special
circumstances such as when the individuals are mentally ill and dangerous.”
The petition was transferred to a magistrate judge who concluded that 8 U.S.C.
§ 1231(a)(6) did not provide DHS with the authority to detain Tran indefinitely
and recommended that Tran’s petition be granted. The district court adopted
the findings of the magistrate judge, ordering that Tran’s habeas petition be
granted and that he be released from federal immigration detention under an
order of supervision imposing conditions set by the Government. The
Government did not seek a stay of the district court’s order.3
On appeal, the Government challenges the district court’s grant of habeas
relief to Tran on three grounds. First, the Government asserts that the district
court ignored Supreme Court precedent, allowing continued detention in special
circumstances. Second, pursuant to Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), the Government argues that the
district court should have deferred to the Government’s reasonable
interpretation of 8 U.S.C. § 1231(a)(6). Finally, the Government contends that
3
At oral argument, the panel was advised that Tran was being housed in a mental
health facility in Massachusetts at that time.
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No. 06-30361
the district court failed to uphold Congress’s statutory intent to protect the
public. We will address each of the Government’s arguments in turn.
II. Discussion
In a habeas appeal, we review the district court's findings of fact for clear
error and review its conclusions of law de novo. Gochicoa v. Johnson, 238 F.3d
278, 284 (5th Cir. 2000).
A.
The Immigration and Naturalization Act provides that when a final order
of removal has been entered against an alien, the government must facilitate
that alien’s removal from the United States within ninety days, a period
generally referred to as the removal period. 8 U.S.C. § 1231(a)(1)(A). Detention
beyond the removal period is authorized under 8 U.S.C. § 1231(a)(6), which
provides:
An alien ordered removed who is inadmissible under
section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or
who has been determined by the Attorney General to be
a risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal
period and, if released, shall be subject to the terms of
supervision in paragraph (3).
Thus, this statute is applicable to three categories of aliens: (1) those ordered
removed who are inadmissable under § 1182; (2) those ordered removed who are
removable as a result of violations of status requirements or entry conditions,
violations of criminal law, or reasons of security or foreign policy; or (3) those
ordered removed who are determined by the Attorney General to be a risk to the
community or a flight risk.
In Zadvydas, the Supreme Court considered habeas petitions of two
individuals, Kestutis Zadvydas and Kim Ho Ma, being held pursuant to the
second category of § 1231(a)(6). 533 U.S. at 682-85. Although both men were
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No. 06-30361
found removable, no country would accept them; as a result, the government
continued to detain them for years beyond the expiration of the 90-day removal
period. In support of the continued detention of these men, the government
argued that they “may be detained beyond the removal period” language of
§1231(a)(6) authorized indefinite detention of a removable alien. The Court,
however, concluded that it did not, reasoning that continued detention would
present serious constitutional problems under the Fifth Amendment’s Due
Process Clause. Id. at 690. Applying the doctrine of constitutional avoidance,
the court held that “once removal is no longer reasonably foreseeable, continued
detention is not authorized by the statute.” Id. at 699. Zadvydas then concluded
that six months was a presumptively reasonable period of detention, beyond the
removal period, in which to effectuate deportation. Id. at 702.
In Clark v. Martinez, 543 U.S. 371 (2005), the Supreme Court was called
upon to consider whether its decision in Zadvydas was also applicable to aliens
in the first category of § 1231(a)(6). Writing for the majority, Justice Scalia
explained that “[t]he operative language of § 1231(a)(6), ‘may be detained beyond
the removal period,’ applies without differentiation to all three categories of
aliens that are its subject” and that “[t]o give these same words a different
meaning for each category would be to invent a statute rather than interpret
one.” Id. at 378. While the specific question before the Clark court related to the
first category of aliens covered by § 1231(a)(6), the decision makes clear that the
holding of Zadvydas, and consequently the presumptive six-month reasonable
removal period, applies uniformly to all categories of aliens covered by the
statute.
B.
Turning our attention to the present case, the Government first contends
that the district court ignored Supreme Court precedent that allows for the
continued detention of removable aliens in special circumstances. In particular,
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the Government argues that Zadvydas permits an exception for the continued
and potentially indefinite detention of an alien deemed specially dangerous due
to a “harm-threatening mental illness.” The Government argues that such a
holding is justified in light of the following passage in Zadvydas:
But we have upheld preventive detention based on
dangerousness only when limited to specially dangerous
individuals and subject to strong procedural
protections. (citations omitted) In 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. (citation omitted)
Id. at 691-92.
In Tuan Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004), the Ninth Circuit
rejected the same argument made by the Government here–that Zadvydas
acknowledged an exception for the indefinite detention of an alien deemed
specially dangerous due to an alleged mental illness. In so finding, the Ninth
Circuit posited that the language cited by the Government as creating a
“harm-threatening mental illness” exception was not a description of the scope
of the Government's authority under § 1231(a)(6). The court explained that
“Zadvydas was merely re-stating settled constitutional principles and explaining
that the Government’s ability to detain individuals is generally subject to the
limitations imposed by the Due Process Clause.” Id. The court went on to
explain that:
The statement in Zadvydas that noncriminal detention
by the Government is permissible only in narrow
nonpunitive circumstances was intended to illustrate
what the Government is generally prohibited from
doing, and what it may in some circumstances be
permitted to do. It did not state what the Government
is authorized to do under § 1231(a)(6).
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Id. We agree. As pointed out by the Thai court, the Government’s reliance on
this passage is misplaced as it takes the passage out of context. The Court in
Zadvydas was not attempting to create an exception with the language quoted
by the Government, indeed the court was noting that in contrast to the
potentially broad reach of § 1231(a)(6), other statutes which the Court had
upheld limited their reach to specific and narrowly defined groups and provided
procedural protections consistent with due process requirements. 533 U.S. 690-
93.
Rather than attempt to distinguish Thai, the Government contends that
the decision was wrongly decided and urges this court to adopt the reasoning of
Judge Kozinki’s dissent to the denial of rehearing en banc in Thai. See Thai v.
Ashcroft, 389 F.3d 967 (9th Cir. 2004). Judge Kozinski rested his dissent on the
argument that the regulatory scheme introduced in response to Zadvydas, 8
C.F.R. 241.14, narrowed the scope of the Attorney General’s authority granted
by 8 U.S.C. § 1231(a)(6) so as to bring it into conformity with Due Process
requirements. Id. at 968-69. Judge Kozinski explained that the Attorney
General “has accepted the six-month limitation as to most aliens and has
provided stringent procedural protections for a narrow class of alien who are
believed to be a danger to the community.” In sum, the Government argues that
although § 1231(a)(6) would generally limit detention to a six-month period, it
authorizes indefinite detention of certain aliens– those determined by the
Government to suffer from a harm-threatening mental illness.
This argument fails for two reasons. First, it rests on the faulty premise
that the Zadvydas Court created an exception to its general rule for aliens with
“harm threatening mental illness.” As we noted above, we find no basis for this
conclusion in the Zadvydas decision. Further, no Supreme Court or court of
appeals opinions support this special exception contention.
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Second, the Government’s argument would require § 1231(a)(6) to be
applied disparately, a possibility directly rejected by the Supreme Court in
Clark. In Clark, the Court considered the precise question of whether the
statutory construction of § 1231(a)(6) put forward in Zadvydas applies
categorically to all classes of aliens covered by the statute whether or not the
circumstances raise the same constitutional concerns. 543 U.S. at 723. The
Clark court held that because the text of § 1231(a)(6), on its face, provides no
distinction between the classes of aliens it covers, even in light of varying
constitutional concerns, there was no justification for giving the same detention
provision a different meaning. Id. at 724. The Court was unequivocal that
based on the statutory text, § 1231(a)(6) must be interpreted consistently,
without exception. Id. Thus, based on the clear language of Clark, this Court
must conclude that the presumptive six-month period established in Zadvydas
is applicable to all categories of aliens covered by the statute. Id. at 386.4
C.
The Government also contends that the district court erred in failing to
defer to the Department of Homeland Security’s (“DHS”) interpretation of § 1231
(a)(6) as required under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). According to the Government, Zadvydas held
that the statute was ambiguous as to the length of time an alien could be
detained beyond the removal period and 8 C.F.R. § 241.14 is a reasonable
interpretation of this ambiguity. While it is true that Zadvydas found that §
4
The Government also contends that the presumptive six-month period identified by
the Zadvydas court is merely a presumption that may be rebutted with a showing that special
circumstances exist, i.e., a showing that the alien is mentally ill and dangerous. We find no
support for this contention in the either the Zadvydas or Clark opinions. The Zadvydas court
makes clear that there is but one method for overcoming the six-month presumption: the
government must furnish evidence which shows that there is significant likelihood of removal
in the foreseeable future. To the extent that this argument is also premised on the proposition
that there exists an exception for aliens with harm-threatening mental illnesses, it necessarily
fails for the same reasons discussed above.
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No. 06-30361
1231 (a)(6) was ambiguous as to this issue, 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. Thus,
the question before this Court is whether 8 C.F.R. § 241.14 is based on a
permissible interpretation of § 1231 (a)(6). See Chevron, 467 U.S. at 843 (stating
that “if the statute is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based on a permissible
construction of the statute.”); see also Thai, 366 F.3d at 798 (holding that a
regulation may not authorize the Government to do what a federal statute
prohibits).
The Supreme Court has twice held that § 1231(a)(6) does not authorize
indefinite detention for any class of aliens covered by the statute. We are bound
by the statutory construction put forward in Zadvydas and Clark. See Rivers v.
Roadway Express, Inc., 511 U.S. 298 (1994) (“It is [the Supreme Court's]
responsibility to say what a statute means, and once the Court has spoken, it is
the duty of other courts to respect that understanding of the governing rule of
law.”). Accordingly, 8 C.F.R. § 241.14, which was enacted under the authority
of § 1231(a)(6), cannot authorize Tran’s indefinite detention.
D.
As a final point of error, the Government contends that in order to uphold
Congress’s goal of protecting the public from violent, mentally ill criminals, this
Court should find that § 1231(a)(6) authorizes detention for “a reasonable
period.”5 However, in light of the unqualified holdings of both Zadvydas and
Clark that § 1231(a)(6) does not permit continued detention where removal is not
reasonably foreseeable, this Court cannot establish an exception where none
exists. See French’s Lessee v. Spencer, 62 U.S. (21 How.) 228, 238 (1858)
5
The Government defines "a reasonable period" to be as long as an alien meets the
three requirement enumerated in 8 C.F.R. § 241.14(f). See supra, at 3, n. 1.
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(citations omitted) (“[W]here the Legislature makes a plain provision, without
making any exception, the courts can make none.”); see also Clark, 543 U.S. at
386 (“[F]or this Court to sanction indefinite detention in the face of Zadvydas
would establish within our jurisprudence, beyond the power of Congress to
remedy, the dangerous principle that judges can give the statutory text different
meaning in different cases.”).
While this Court is sympathetic to the Government’s concern for public
safety, we are without power to authorize Tran’s continued detention under §
1231(a)(6). We note however that in a similar circumstance where public safety
was also of great concern, Congress took prompt action to address the issue. In
particular, in the field of national security, Congress enacted the Patriot Act
which authorizes detention beyond the removal period of any alien whose
removal is not foreseeable for additional periods of up to six months if the alien
presents a national security threat.6 8 U.S.C. § 1226a. Thus, not only are the
Government’s concerns properly directed to Congress, but importantly Congress
has shown that it has the authority and willingness to address these concerns.
III. Conclusion
The Government does not dispute that Tran was detained well beyond the
six-month presumptive detention period established in Zadvydas, nor does the
Government dispute that Tran’s removal is not reasonably foreseeable. Thus,
based on the Supreme Court's categorical interpretation of § 1231(a)(6), we
conclude that the district court was correct in holding that this statute does not
authorize Tran’s continued detention. Accordingly, we AFFIRM.
6
Under the Patriot Act, the Attorney General’s authority to detain non-removable
aliens rests on the requirement that certain statutory criteria have been met; these criteria
must be reviewed every six months. See 8 U.S.C. § 1226a.
11