Carlos Tineo v. JOHN ASHCROFT, Attorney General, U.S.A.

PRECEDENTIAL
Filed December 4, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3636
CARLOS TINEO,
Appellee,
v.
JOHN ASHCROFT, Attorney General, U.S.A.; JAMES W.
ZIGLAR, Commissioner of the I.N.S.; ANDREA
QUARANTILLO, District Director I.N.S. Newark; I.N.S.;
LORELI VALVERDE, Assistant Director for Deportation
I.N.S.; JOHN DUFFY, Warden, Bergen County Jail,
Appellants.
On Appeal from the United States District Court
for the District of New Jersey
District Court Judge: The Honorable Joel A. Pisano
(02-CV-2883)
Argued April 7, 2003
BEFORE: ALITO, FUENTES and GREENBERG,
Circuit Judges
(Opinion Filed: December 4, 2003)

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Linda S. Wernery (argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Colette R. Buchnan
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Appellants
Regis Fernandez (argued)
Suite 1807
744 Broad Street
Newark, NJ 07102
Attorney for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge:
The Attorney General and officials of the United States
Immigration and Naturalization Service (collectively, the
“INS”)1 appeal the District Court’s partial grant of a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. The
petitioner, Carlos Tineo, is a lawful permanent resident of
the United States who briefly left the country to visit the
Dominican Republic, his country of citizenship. Upon his
return, the INS classified Tineo as an alien “seeking an
admission,” detained him, and charged him with being
“inadmissible” for having been convicted of various offenses
1. The INS is now formally known as the Department of Homeland
Security, Bureau of Citizenship and Immigration Services. See
Department of Homeland Security Act of 2002, Pub. L. No. 107-296,
§ 451, 116 Stat. 2135, 2195 (2002) (codified at 6 U.S.C.A. § 271 (Supp.
2003)). All prior court filings, however, reflect that the operative events
in this case occurred before the official change in title of the INS,
prompted by the broad multi-agency reorganization. Therefore, we
continue to refer to appellants collectively as the INS.
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in the United States. See 8 U.S.C. §§ 1101(a)(13)(C),
1182(a)(2), and 1229a. Pending the removal proceedings
against him, Tineo requested a bail hearing. He contended
that he was not an alien seeking admission, but rather a
returning lawful permanent resident because his trip
abroad was “innocent, casual, and brief ” and not
meaningfully or intentionally interruptive of his residence in
the United States. Rosenberg v. Fleuti, 374 U.S. 449, 461
(1963). According to Tineo, the nature of his trip and his
legal status upon return to the United States made him
eligible for release on bail. The District Court concluded
that the doctrine of an innocent, casual, and brief
departure as set forth in Fleuti still applied and that,
therefore, Tineo was entitled to a bail hearing.
Under a prior statute governing the classification of
returning lawful permanent residents, Tineo may indeed
have been entitled to such a classification. The principal
issue before us, however, is whether the specific provision
of the prior statute and the common law doctrine of Fleuti
survived the comprehensive amendments to the
immigration laws enacted in the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (the “IIRIRA”),
Pub. L. No. 104-208, 110 Stat. 3009-546 (codified as
amended at 8 U.S.C. § 1101 et seq.). Although there are
meritorious arguments on both sides of the issue, we hold
that the doctrine of an “innocent, casual, and brief ”
departure, as Tineo seeks to assert here, is inconsistent
with the wholesale amendments to the relevant statutory
scheme enacted in the IIRIRA. In addition, we hold that the
decision of the Board of Immigration Appeals in In re
Collado-Munoz, 21 I. & N. Dec. 1061, 1064 (BIA 1998) (as
amended), finding that Fleuti did not survive the passage of
the IIRIRA, should be accorded the proper degree of
administrative deference. See Chevron, U.S.A., Inc. v.
Natural Resources Def. Council, Inc., 467 U.S. 837, 844
(1984). Accordingly, we will reverse the judgment of the
District Court.
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I.
A.
Because this appeal involves difficult issues of statutory
interpretation and the effect of legislative amendments, we
find it useful to review briefly the evolution of the legal
framework.
Prior to the enactment of the IIRIRA, the classification of
returning lawful permanent residents was governed by
§ 101(a)(13) of the Immigration and Nationality Act of 1952
(“INA”), 66 Stat. 167 (codified as amended at 8 U.S.C.
§ 1101(a)(13) (2000)). See also Fleuti, 374 U.S. at 452.
Section 101(a)(13) provided:
The term “entry” means any coming of an alien into the
United States, from a foreign port or place or from an
outlying possession, whether voluntarily or otherwise,
except that an alien having a lawful permanent
residence in the United States shall not be regarded as
making an entry into the United States for the
purposes of the immigration laws if the alien proves to
the satisfaction of the Attorney General that his
departure to a foreign port or place or to an outlying
possession was not intended or reasonably to be
expected by him or his presence in a foreign port or
place or in an outlying possession was not voluntary:
Provided, That no person whose departure from the
United States was occasioned by deportation
proceedings, extradition, or other legal process shall be
held to be entitled to such exception.
INA, § 101(a)(13) (emphasis added)). This version of
§ 101(a)(13) and the intent exception contained therein were
enacted in response to the harsh results that attained from
earlier restrictive interpretations of the term “entry.” See
Fleuti, 374 U.S. at 453; Landon v. Plasencia, 459 U.S. 21,
29 n.6 (1982). For example, in DiPasquale v. Karnuth, the
INS sought to deport an alien on account of a departure
and “entry” which occurred because the alien took an
overnight train from Buffalo to Detroit, which passed
through Canada. 158 F.2d 878, 878 (2d Cir. 1947). The
court refused to deport the alien, and the judicial
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clarifications of the entry doctrine that developed over time
became embedded in § 101(a)(13). Id. at 879; see also
Delgadillo v. Carmichael, 332 U.S. 388, 390-91 (1947);
Fleuti, 374 U.S. at 457-58.
There are a few notable features of § 101(a)(13) which are
relevant to our analysis. The statute presumed that all
aliens arriving in the United States were making an “entry,”
without regard to prior residence here. In order for a lawful
permanent resident to retain that status upon reentry, he
was obliged to prove that he was entitled to the exception.
The principal feature of the exception was intent: a
returning lawful permanent resident had the burden of
showing that “his departure . . . was not intended.” INA,
§ 101(a)(13).
The issue before the Supreme Court in Fleuti was the
meaning and scope of the phrase “not intended.” Fleuti was
a lawful permanent resident of the United States and a
Swiss national. Fleuti, 374 U.S. at 450. Sometime in August
1956, he stepped across the border for a visit to Ensenada,
Mexico that lasted only a few hours. Id. In subsequent
deportation proceedings, the INS sought to deport Fleuti as
an alien “afflicted with psychopathic personality,” by reason
of his homosexuality. Id. at 450-51 (internal quotation
marks and citations omitted). Turning its attention to the
statute, the Court held that if a departure from the United
States is “innocent, casual, and brief, it is consistent with
all the discernible signs of congressional purpose to hold
that the ‘departure . . . was not intended’ within the
meaning and ameliorative intent of the exception of [§]
101(a)(13).” Id. at 461. Therefore, under the prior statutory
regime of § 101(a)(13) and Fleuti, a lawful permanent
resident whose departure was “innocent, casual, and brief ”
was not making an “entry” for purposes of the immigration
laws. In effect, a returning alien could retain his status as
a lawful permanent resident of the United States under
these circumstances.
Despite this lengthy evolution of statutory interpretation
and over three decades of practice based on the Fleuti
doctrine, § 101(a)(13) no longer governs the status of lawful
permanent residents who depart and reenter the country.
On September 30, 1996, Congress enacted the IIRIRA,
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which made sweeping changes to the immigration laws. The
provisions of the Act went into effect on April 1, 1997. See
IIRIRA, Pub. L. No. 104-208, § 309(a), 110 Stat. 3009-546,
3009-625 (1996); see also I.N.S. v. St. Cyr, 533 U.S. 289,
315 (2001); Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471, 502 (Souter, J., dissenting). In
particular, § 301(a)(13) of the IIRIRA replaced § 101(a)(13) of
the INA, and the governing statute bears little resemblance
to its predecessor. In pertinent part, § 301(a) now provides:
(13)(A) The terms “admission” and “admitted” mean,
with respect to an alien, the lawful entry of the alien
into the United States after inspection and
authorization by an immigration officer.
* * *
(C) An alien lawfully admitted for permanent
residence in the United States shall not be regarded as
seeking an admission into the United States for
purposes of the immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a
continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having
departed the United States,
(iv) has departed from the United States while
under legal process seeking removal of the alien from
the United States, including removal proceedings
under this chapter and extradition proceedings,
(v) has committed an offense identified in section
1182(a)(2) of this title, unless since such offense the
alien has been granted relief under section 1182(h)
or 1229b(a) of this title, or
(vi) is attempting to enter at a time or place other
than as designated by immigration officers or has
not been admitted to the United States after
inspection and authorization by an immigration
officer.
IIRIRA, § 301(a)(13) (codified at 8 U.S.C. § 1101(a)(13)
(2000)).
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The new statute differs from § 101(a)(13) of the INA in
material respects. First, the doctrine of entry is replaced by
the distinct concepts of “admission” and “admitted.” IIRIRA,
§ 301(a)(13)(A). Second, the presumption of entry which was
a central feature of the prior statute is now reversed in
favor of the lawful permanent resident who “shall not be
regarded as seeking an admission.” IIRIRA, § 301 (a)(13)(C).
Returning lawful permanent residents are thus
presumptively entitled to retain that status upon reentry.
Third, the statute establishes six scenarios under which the
returning resident would lose the benefit of that
presumption: a lawful permanent resident “shall not be
regarded as seeking an admission . . . unless” he falls into
one of the six enumerated subsections. IIRIRA, § 301(a)(13)
(C)(i)-(vi) (emphasis added). If a lawful permanent resident
falls into one of the six subsections, the clear import of
§ 301(a)(13) is that he is stripped of his lawful permanent
residence. That is, he becomes an alien seeking admission
as if he were entering for the first time. Finally, § 301(a)(13)
eliminates entirely the language relating to the intent of the
alien’s departure. To the extent that the “not intended”
inquiry in § 101(a)(13) of the INA operated as a means of
preserving one’s lawful permanent resident status, no such
statutory vehicle appears on the face of the new provision.
The remaining statutes relevant to this appeal relate to
the detention of aliens, such as Tineo, who have lost their
status as lawful permanent residents upon reentry and are
deemed to be seeking admission. The detention statute at
issue provides:
(A) In general
Subject to subparagraphs (B) and (C), in the case of an
alien who is an applicant for admission, if the
examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt
entitled to be admitted, the alien shall be detained for
a [removal] proceeding under section 1229a of this
title.
IIRIRA, § 235(b)(2) (codified as amended at 8 U.S.C.
§ 1225(b)(2) (2000)) (emphasis added).
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Although § 235(b)(2) carves out certain exceptions, none
of them apply here. The grounds for release pending
conclusion of the removal proceedings are extremely
narrow:
The Attorney General may . . . in his discretion parole
into the United States temporarily under such
conditions as he may prescribe only on a case-by-case
basis for urgent humanitarian reasons or significant
public benefit any alien applying for admission to the
United States, but such parole of such alien shall not
be regarded as an admission of the alien and when the
purposes of such parole shall, in the opinion of the
Attorney General, have been served the alien shall
forthwith return or be returned to the custody from
which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that
of any other applicant for admission to the United
States.
IIRIRA, § 212(d)(5)(A) (codified as amended at 8 U.S.C.
§ 1182(d)(5)(A) (2000)). Because § 235(b)(2) requires the INS
to detain aliens “not clearly and beyond a doubt entitled to
be admitted” and because of the limited grounds for parole
in § 212(d)(5)(A), in practice, these provisions often result in
the mandatory detention of returning lawful permanent
residents at places of inspection. See Ferreras v. Ashcroft,
160 F. Supp. 2d 617, 625 (S.D.N.Y. 2001) (“The statute
clearly limits to a narrow class of circumstances the
availability of parole pending removal proceedings. . . . With
limited exceptions, the statute applies to all detained aliens
applying for admission to the United States.”).
B.
Carlos Tineo is a citizen of the Dominican Republic. In or
about August 1975, at the age of twelve, he immigrated to
the United States. Tineo has been a lawful permanent
resident of the United States ever since. As the District
Court noted, Tineo has substantial ties to this country,
which have developed over twenty-eight years of continuous
residence. Most of Tineo’s family members reside in the
United States, including his mother, grandmother, and
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several siblings. All of his family members residing in the
United States are either citizens or lawful permanent
residents of the United States. Tineo also has a thirteen-
year-old son, who is a citizen of the United States.
Prior to the events at issue, Tineo lived with his
grandmother in Brooklyn, New York and helped to support
her, as well as his son. For the past two years, Tineo
worked as a limousine driver in New York City. The
Immigration Judge (“IJ”) assigned to Tineo’s case observed
that “the members of this family unit maintain a very tight
network and are very interested in the respondent’s well-
being and are very concerned about his future and that of
his son Carlos Jr.” App., Vol. II, at 48.
It is also undisputed that Tineo has a significant criminal
history record that includes five convictions between 1980
and 1997. Tineo v. Ashcroft, No. 02 Civ. 2883, slip op. at 2
(D.N.J. July 24, 2002). Two of those convictions relate to
drug offenses. Id. Specifically, Tineo’s criminal history
includes:
1) A robbery in Connecticut which took place in or
about August 1980, less than five years after he
was admitted to the United States. App., Vol. II, at
18, 40;
2) Possession of a controlled substance while in
Maryland on November 19, 1987. Id. at 20, 41;
3) Criminal sale of a controlled substance, stemming
from his arrest on April 23, 1991 in New York. Id.
at 41;
4) Petit larceny in New York for which he was arrested
on December 9, 1996. Id. at 31, 41; and
5) Petit larceny in New York for which he was again
arrested on January 23, 1997. Id.
All of the offenses above resulted in convictions, and
Tineo was sentenced accordingly. After serving his final
sentence, Tineo successfully completed a drug
rehabilitation program. Since then, he has not had any
relapses with drug use or with criminal activity.
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In February 2002, Tineo took a trip to the Dominican
Republic. After a few weeks, he returned to the United
States, entering John F. Kennedy International Airport in
New York on March 5, 2002.
C.
Upon his return, the INS detained Tineo. He was served
with a Notice to Appear, which described him as an alien
seeking admission pursuant to § 301(a)(13)(C)(v) of the
IIRIRA. See 8 U.S.C. § 1101(a)(13)(C)(v). The INS claimed
that he was inadmissible because of his prior drug
convictions.2 Accordingly, the INS commenced removal
proceedings pursuant to 8 U.S.C. § 1229a.3
On May 28, 2002, the IJ held a hearing on the merits of
the INS’s charges of inadmissibility. At the hearing, Tineo
conceded that he was removable on the grounds stated by
the INS. Nevertheless, he asserted that he was eligible for
both a waiver of inadmissibility and cancellation of removal
pursuant to 8 U.S.C. § 1229b. The IJ agreed and ordered
that Tineo be released from prison and admitted to the
United States as a returning lawful permanent resident.
The INS appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”).4
2. The specific grounds on which the INS supported its claim of
inadmissibility were: (1) 8 U.S.C. § 1182(a)(2)(A)(i)(I), crime of moral
turpitude; (2) 8 U.S.C. § 1182(a)(2)(A)(i)(II), controlled substance offenses;
and (3) 8 U.S.C. § 1182(a)(2)(C)(i), illicit trafficking in controlled
substances.
3. Whereas the pre-IIRIRA framework recognized a distinction between
“exclusion” and “deportation” proceedings, the new statutory regime
collapsed this distinction and both are now encompassed in “removal”
proceedings pursuant to 8 U.S.C. § 1229a. See Demore v. Kim, 123 S. Ct.
1708, 1727 n.2 (2003) (Souter, J., concurring in part, dissenting in part);
Ferreras, 160 F. Supp. 2d at 622 n.1. In removal proceedings, the INS
is authorized to initiate charges of inadmissibility or deportability. See 8
U.S.C. § 1229a(a)(1).
4. The BIA sustained the appeal ruling that Tineo was not eligible to
obtain a waiver of inadmissibility for his criminal convictions under
section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c),
and that he was ineligible for cancellation of removal under section
240(a) of the Act, 8 U.S.C. § 1229b(a). Accordingly, the BIA vacated the
Immigration Judge’s order and directed Tineo’s removal from the United
States to the Dominican Republic.
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In the same proceeding, Tineo sought his release pending
the conclusion of the removal proceedings. Although the IJ
held that Tineo retained the right to continued residency in
the United States, he also found that Tineo was ineligible
for bail during the pendency of the IJ proceeding and
subsequent appeal. Pursuant to § 301(a)(13)(C)(v) of the
IIRIRA, Tineo was an alien seeking admission, and therefore
“not eligible to apply for a bond.” App., Vol. II, at 38. Tineo
argued that his departure from the United States was
innocent, casual, and brief, but the IJ found the BIA’s
decision in In re Collado-Munoz controlling. 21 I. & N. Dec.
1061 (BIA 1998) (as amended). In Collado-Munoz, the BIA
held that “the Fleuti doctrine, with its origins in the no
longer existent definition of ‘entry’ in the Act, does not
survive the enactment of the IIRIRA as a judicial doctrine.”
Id. at 1065. As a result, Tineo was detained at the Bergen
County Jail in Hackensack, New Jersey, for over five
months.
Tineo did not appeal the IJ’s denial of a hearing to the
BIA. Instead, he filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 in the District Court. The
District Court granted the petition in part and remanded
for an individualized hearing to determine whether Tineo’s
departure was innocent, casual, and brief within the
meaning of Fleuti. The District Court found that the
language of § 301(a)(13) does not necessarily overrule the
Fleuti doctrine and rejected “the inflexible, artificial
statutory construction that the INS urges here.” Tineo, slip
op. at 9. The INS’s appeal followed.5
II.
The District Court had jurisdiction over Tineo’s petition
pursuant to 28 U.S.C. § 2241(a). See I.N.S. v. St. Cyr, 533
U.S. 289, 314 (2001); Sandoval v. Reno, 166 F.3d 225, 237-
5. Because of the procedural posture of this case, our review is limited
to the District Court’s decision granting in part Tineo’s petition for a writ
of habeas corpus, as it relates to his detention pending the conclusion
of the removal proceedings. The merits of Tineo’s claims of waiver of
inadmissibility and cancellation of removal are not before us.
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38 (3d Cir. 1999). We have jurisdiction to review the final
order of the District Court pursuant to 28 U.S.C. § 1291.
Our review over a grant of habeas corpus, the
interpretation of statutes, and any constitutional issues is
plenary. However, to the extent that we encounter an
ambiguous statute and a reasonable statutory
interpretation by an agency charged with administering
that statute, we apply the principles of “deference to
administrative interpretations.” Chevron U.S.A., Inc. v.
Natural Resources Def. Council, Inc., 467 U.S. 837, 844
(1984). In those instances, our inquiry narrows to
“determining whether the statute is silent or ambiguous . . .
and, if so, whether the agency’s answer is based on a
permissible construction of the statute.” Abdulai v.
Ashcroft, 239 F.3d 542, 551-52 (3d Cir. 2001) (internal
quotation marks and citations omitted).
III.
In its decision, the District Court found that the doctrine
of an innocent, casual, and brief departure survived the
passage of § 301(a)(13) of the IIRIRA. We believe the District
Court erred in this finding. In addition, we find that the
District Court did not give the proper measure of deference
to the BIA’s statutory interpretation of § 301, as amended,
in Collado-Munoz. Finally, although Tineo has raised
constitutional objections to his detention, none of them are
availing.
A. Statutory Interpretation
The District Court appropriately commenced its inquiry
by comparing the plain language of the new statute with
that of the old one. See I.N.S. v. Phinpathya, 464 U.S. 183,
189 (1984). Specifically, the Court focused on the
grammatical construction of § 301(a)(13) of the IIRIRA. The
Court correctly noted that a returning lawful permanent
resident “shall not be regarded as seeking an admission . . .
unless” he falls into one of the six enumerated subsections.
IIRIRA, § 301(a)(13)(C) (emphasis added). According to the
District Court, even if a returning lawful permanent
resident falls into one of the six enumerated subsections,
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the “shall not . . . unless” construction does not mean that
the alien must be regarded as seeking admission. It found
that “the statute does not provide a statutory bright line for
determining which returning lawful permanent residents
shall be considered to be seeking admission.” Tineo, slip op.
at 8 (quoting Made v. Ashcroft, No. 01 Civ. 1039, slip op. at
11 (D.N.J. May 31, 2001)) (internal quotations marks
omitted); see also Collado-Munoz, 21 I. & N. Dec. 1061,
1072 (Rosenberg, Board Member, dissenting).
There is some force to this argument. It is certainly
possible that in a “shall not . . . unless” construction, if one
of the conditions following “unless” is met, the
circumstance following “shall not” is not mandatory, but
permissive. See Collado-Munoz, 21 I. & N. Dec. at 1072
(Rosenberg, Board Member, dissenting).
Examples of this interpretation of the “shall not . . .
unless” construction abound in the law. A writ of habeas
corpus “shall not be granted unless . . . the applicant has
exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1); see also Collado-Munoz, 21 I.
& N. Dec. at 1072 (Rosenberg, Board Member, dissenting).
Clearly, the mere satisfaction of exhaustion does not
necessarily compel the granting of the writ. Our
Constitution states that the “Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public safety may require it.” U.S.
Const. Art. I, § 9, cl. 2; see also Collado-Munoz, 21 I. & N.
Dec. at 1072 (Rosenberg, Board Member, dissenting). That,
however, does not mean that in all cases of rebellion or
invasion, the writ must be suspended.
In light of the common usage of the “shall not . . . unless”
construction, the District Court found that if Congress had
intended to strip all returning lawful permanent residents
falling into one of the six enumerated subsections of their
favored status, it could have done so by stating its intention
clearly. For example, Congress could have said:
an alien lawfully admitted for permanent resident
status in the United States shall not be regarded as
seeking admission into the United States for purposes
of the immigration laws; but if the alien has committed
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an offense in section 212(a) such alien shall be
regarded as seeking admission.
Tineo, slip op. at 8 (quotations and citations omitted).
Because Congress did not state this intent in sufficiently
explicit terms, the District Court held that even if a
returning lawful permanent resident falls into one of the six
exceptions, he is not automatically an alien seeking
admission and, furthermore, he is entitled to an
individualized determination of whether his departure was
innocent, casual, and brief.
If our statutory interpretation analysis were limited to the
one above, we would tend to agree that the “shall not . . .
unless” construction is sufficiently ambiguous to permit the
consideration of other factors even if a returning alien falls
into one of the six enumerated exceptions. Our inquiry,
however, cannot end here. Congress not only altered the
grammatical structure by enacting § 301(a)(13), it also
eliminated the key terms “entry” and “intended” from
§ 101(a)(13) and replaced the former statute with a
comprehensive scheme for determining the classification of
returning aliens. We must, therefore, examine the complete
package of alterations, including language eliminated,
language preserved, structure, subject matter, and
legislative intent. See United States Nat’l Bank of Or. v.
Indep. Ins. Agents of America, Inc., 508 U.S. 439, 455
(1993) (“Statutory construction ‘is a holistic endeavor’ . . .
and, at a minimum, must account for a statute’s full text,
language as well as punctuation, structure, and subject
matter.”) (internal citation omitted); Posadas v. Nat’l City
Bank of N.Y., 296 U.S. 497, 504 (1936).
We turn first to the question of whether the intent
exception of § 101(a)(13) of the INA and, by logical
extension, the doctrine of an innocent, casual, and brief
departure has been repealed by implication. See 1A NORMAN
A. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 23.2, at 437
(6th ed. 2002) (“STATUTORY CONSTRUCTION”) (Courts have
“recognized that frequently an act purporting to be an
amendment has the same qualitative effect as a repeal—the
abrogation of an existing statutory provision—and have
therefore applied the term ‘implied repeal’ and the rules of
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construction applicable to repeals to such amendments.”).
With some important qualifications, there is a strong
presumption against repeal by implication, even where the
subsequent statute is not entirely consistent with the
former. See Posadas, 296 U.S. at 503; Government of Virgin
Islands v. Mills, 935 F.2d 591, 596 (3d Cir. 1991); STATUTORY
CONSTRUCTION § 23.9, at 462-66. Whenever possible, the two
statutes should be read in order to give effect to both. See
Posadas, 296 U.S. at 503; Mills, 935 F.2d at 596. In
addition, we also recognize the general principle that, in the
immigration context, courts should construe “any lingering
ambiguities in deportation statutes in favor of the alien.”6
St. Cyr, 533 U.S. at 320.
Despite these well-settled principles, courts have also
recognized that the presumption against implied repeal is
by no means absolute. In Posadas, the Supreme Court
stated that “[t]here are two well-settled categories of repeals
by implication: (1) Where provisions in the two acts are in
irreconcilable conflict, the later act to the extent of the
conflict constitutes an implied repeal of the earlier one; and
(2) if the later act covers the whole subject of the earlier one
and is clearly intended as a substitute, it will operate
similarly as a repeal of the earlier act. But, in either case,
the intention of the legislature to repeal must be clear and
manifest.” 296 U.S. at 503; see also Mills, 935 F.2d at 596
(citing Kremer v. Chemical Construction Corp., 456 U.S. 461,
468 (1982)). We find that a combination of both of these
categories is present here.
As to the first category, courts recognize an implied
repeal of a prior statute when a subsequent statute creates
an “irreconcilable conflict” between the two. Posadas, 296
U.S. at 503. A conflict that is merely cosmetic or that
relates to anything less than the operative legal concepts is
not enough; there must be a clear “repugnancy” between
the two provisions. Id. As noted above, Congress replaced
the term “entry” in § 101(a)(13) of the INA with the terms
6. Although we confront here the situation of detention pending removal
proceedings, as distinguished from deportation, we note that the
classification of returning aliens in § 301(a)(13) is critical to the inquiry
of removability generally.
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“admission” and “admitted,” and more importantly, it
eliminated entirely the phrase “not intended” from the
subsequent statute. We are not persuaded that these
changes were of “ ‘no moment.’ ” Tineo, slip op. at 8-9
(quoting Made, slip op. at 13). The intent exception in
§ 101(a)(13) was the very foundation for the Supreme
Court’s doctrine of an innocent, casual, and brief
departure. See Fleuti, 374 U.S. at 461 (holding that a
departure that is innocent, casual, and brief is consistent
with the phrase “not intended”). That Congress chose to
eliminate the language upon which Fleuti was based is
critical to the statutory interpretation analysis. In effect, the
elimination of the phrase “not intended” sets up a
substantial conflict between the subsequent and former
statutes. The former expressly permitted an inquiry into the
nature and intent of an alien’s trip abroad, while
§ 301(a)(13) of the IIRIRA does not provide for such an
inquiry at all and, moreover, eliminates the language upon
which the prior inquiry was based. See United States v.
Tynen, 78 U.S. (11 Wall.) 88, 93 (1870). This is a conflict
that we believe cannot be reconciled simply by pointing to
an ambiguity in the “shall not . . . unless” construction.
In its opinion, the District Court noted that Congress
should be presumed to have been aware of Fleuti and chose
not to “expressly reverse or repeal the decision when it
enacted the IIRIRA.” Tineo, slip op. at 8 (citation omitted).
However, there are strong indications that Congress was in
fact aware of the Supreme Court’s decision in Fleuti, and in
fact intended to overturn certain interpretations of it. Just
six months before the enactment of the IIRIRA, the House
Judiciary Committee published a report commenting on a
prior version of § 301(a)(13). There, the Committee stated:
Finally, this section preserves a portion of the Fleuti
doctrine by stating that a returning lawful permanent
resident shall not be regarded as seeking admission
unless the alien has relinquished lawful permanent
resident status . . . or has been convicted of an
aggravated felony, unless since such conviction the
alien has been granted relief under new section 240A(a)
(cancellation of removal for certain aliens lawfully
admitted for permanent residence). However, this
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section intends to overturn certain interpretations of
Fleuti by stating that a returning lawful permanent
resident alien is seeking admission if the alien is
attempting to enter or has entered the United States
without inspection and authorization by an
immigration officer.
H.R. REP. NO. 104-469, at 225-26 (1996). Furthermore,
notwithstanding the wholesale amendments in the IIRIRA,
some existing provisions of the immigration laws retain the
language of Fleuti. In certain “adjustment of status” cases,
“[a]n alien shall not be considered to have failed to
maintain continuous physical presence in the United States
for purposes of subparagraph (A) by virtue of brief, casual,
and innocent absences from the United States.” 8 U.S.C.
§ 1255a(a)(3)(B) (emphasis added); see also 8 U.S.C.
§ 1255a(b)(3)(A) (“The Attorney General shall, in accordance
with regulations, permit the alien to return to the United
States after such brief and casual trips abroad as reflect an
intention on the part of the alien to adjust to lawful
permanent resident status under paragraph (1) and after
brief temporary trips abroad occasioned by a family
obligation involving an occurrence such as the illness or
death of a close relative or other family need.”) (emphases
added).
In light of Congress’s apparent awareness of Fleuti and
its retention of the innocent, casual, and brief departure
doctrine in other immigration statutes, the deliberate non-
inclusion of that doctrine in § 301(a)(13) is telling. See I.N.S.
v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (“[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”) (internal
quotation marks and citations omitted).7 It is evident that
7. See also Assa’ad v. Attorney Gen., 332 F.3d 1321, 1331 (11th Cir.
2003) (“Thus, we believe that the exception for ‘brief, casual, and
innocent absences’ in § 245A(a)(3)(B) is expressly limited to the
continuous physical presence eligibility requirement. It does not affect
the generally applicable definition of what constitutes an ‘entry’ into the
United States under former INA § 101(a)(13).”).
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Congress knew exactly how to incorporate and retain the
Fleuti doctrine in immigration statutes, but elected not to
do so in § 301(a)(13). Therefore, our inquiry should not
focus on the absence of an explicit repeal or overruling of
Fleuti, but rather on the strong indication of Congressional
intent that stems from the absence of any mention of the
operative terms intent, innocent, casual, or brief.
Despite these unmistakable expressions of Congressional
intent and the substantial conflict between § 101(a)(13) of
the INA and § 301(a)(13) of the IIRIRA, Tineo suggests that
there is no clear repugnancy between the statutes. His
argument seems to be that, although § 301(a)(13)
eliminated the language relating to intent, Congress did not
expressly prohibit a Fleuti inquiry. Any lingering doubts as
to the implied repeal of the intent exception, however, are
erased by application of the second category set forth in
Posadas, 296 U.S. at 503. It is of critical importance that
§ 301(a)(13) of the IIRIRA represented a new and
comprehensive statutory regime intended to replace
§ 101(a)(13) of the INA. Section 301(a)(13) now covers the
field of “admission” of all aliens. See id. This is evident in
the sweeping changes that we have discussed above: (1) the
replacement of the term “entry” with “admission” and
“admitted”; (2) the elimination of the phrase “not intended”;
and (3) the non-inclusion of the innocent, casual, and brief
departure doctrine. See 8 U.S.C. § 1101(a)(13). In addition,
the structure of the comprehensive amendments is critical
here. Because the presumption is reversed in favor of lawful
Of course, we have no occasion today to review the scope and meaning
of any aspects of the Fleuti doctrine that may appear in any other
provision not presented here. Our review is limited to determining the
meaning of § 301(a)(13) of the IIRIRA, as it relates to Tineo’s petition for
release on bail pending the conclusion of his removal proceedings.
For these reasons, Tineo’s reliance on Aguilera-Medina v. I.N.S., 137
F.3d 1401 (9th Cir. 1998), is misplaced. There, the court confronted the
issue of whether the Fleuti doctrine applied to aliens admitted as lawful
temporary residents pursuant to the Special Agricultural Workers
Program. Id. at 1402. Further, that case concerned a departure and
reentry that allegedly occurred in 1990, seven years before the provisions
of the IIRIRA took effect.
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permanent residents retaining that status, Congress
assumed the task of delineating six specific scenarios under
which a returning alien would be considered an alien
seeking admission. See 8 U.S.C. § 1101(a)(13)(C)(i)-(vi).
These changes amount to a complete makeover of
§ 101(a)(13) of the INA, specifically intended to supplant the
subjective intent inquiry that was a feature of the old law.
In that regard, this case is distinguishable from cases
such as Posadas, 296 U.S. at 506, or Mills, 935 F.2d at
596, where the subsequent statutes were held to be
complementary and, thus, able to co-exist in harmony.
Rather, the circumstances present here more closely
resemble those in Tynen, 78 U.S. (11 Wall.) at 93-95, and
King v. Cornell, 106 U.S. 395, 398 (1882). See also Rainey
v. W.R. Grace & Co., 231 U.S. 703, 709 (1914). In Tynen,
certain criminal provisions of an 1813 Act regulating
“seamen on board the public and private vessels of the
United States” were comprehensively altered by a statute
enacted in 1870, which covered the same offenses, set forth
an entirely new set of sentences, and granted judges
considerable discretion in imposing punishment. 78 U.S.
(11 Wall.) at 90-91. In Cornell, the Court found that the
rules relating to removal of cases to federal court enacted in
1875 covered the whole subject of prior provisions. 106
U.S. at 398. In both cases, the Court found that the
subsequent enactments had repealed by implication the
former ones. See Tynen, 78 U.S. (11 Wall.) at 92 (“[E]ven
where two acts are not in express terms repugnant, yet if
the latter act covers the whole subject of the first, and
embraces new provisions, plainly showing that it was
intended as a substitute for the first act, it will operate as
a repeal of that act.”), cited in Cornell, 106 U.S. at 396.
Similarly, given the comprehensive changes made to
§ 101(a)(13) of the INA, it is difficult to see how the doctrine
of an innocent, casual, and brief departure survived the
enactment of § 301(a)(13) of the IIRIRA.
Our conclusion is not altered by Congress’s observation,
in connection with a prior draft version of the IIRIRA, that
the amendment “preserves a portion of the Fleuti doctrine
. . . [while intending] to overturn certain interpretations of
Fleuti.” H.R. REP. NO. 104-469, at 225-26 ( 1996). In fact,
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we believe our reading of § 301(a)(13) of the IIRIRA is
consistent with the statement above. The final version of
§ 301(a)(13) ultimately enacted indeed pays homage to
Fleuti by presumptively treating all trips abroad lasting 180
days or fewer as inconsequential to permanent resident
status. See 8 U.S.C. § 1101(a)(13)(C)(ii). This provision fully
recognizes the increase in cross-border travel and the
notion that innocent, casual, and brief trips abroad should
not interrupt an alien’s permanent residency. Thus, an
aspect of Fleuti is preserved. But Congress has also set
forth six scenarios under which a returning lawful
permanent resident may not retain that status. In those
scenarios, where Congress has deemed the Fleuti doctrine
irrelevant, § 301(a)(13) cannot be read to permit an inquiry
into the alien’s intent. To the extent that the “shall not . . .
unless” construction permits the consideration of other
factors, those others factors are clearly limited to those that
follow from the six exceptions themselves. For instance, in
the context of § 301(a)(13)(C)(v), it may be necessary to
consider not only offenses that would render an alien
inadmissible, but also the applicability of cancellation of
removal before treating a returning lawful permanent
resident as an alien seeking admission. See 8 U.S.C.
§ 1101(a)(13)(C)(v). We believe this reading of the “shall not
. . . unless” construction more appropriately fits with the
overall structure of the amendments.
As a final matter, the District Court observed that the
INS’s interpretation of the amended statute would result in
harsh consequences.8 The Court added that if it were “to
accept the INS’ rigid interpretation, all lawful permanent
residents who leave the United States and attempt to
8. We express no view on whether the effect of § 301(a)(13) of the IIRIRA
and the detention of Tineo during his removal proceedings are unduly
harsh. While it may be said that a final order of deportation could
deprive him of a relationship with his family, and especially his son, this
appeal concerns his detention prior to the ultimate determination of
Tineo’s eligibility to stay in the United States. Thus, the harshness of his
temporary detention should be weighed against a number of other
factors, including Tineo’s substantial criminal history record. We
recognize, however, that there may be unique circumstances that make
§ 235(b)(2) detention harsh.
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reenter are treated identically, regardless of the attendant
circumstances. Simply put, Congress could not have
reasonably intended this nonsensical result.” Tineo, slip op.
at 9. We disagree. No reasonable reading of § 301(a)(13)
results in all lawful permanent residents being treated
identically. The statute presumes that all returning lawful
permanent residents are able to retain that status. See 8
U.S.C. § 1101(a)(13)(C). It merely specifies those situations
in which returning residents will lose their favored status.
See 8 U.S.C. § 1101(a)(13)(C)(i)-(vi). It may be true that all
returning lawful permanent residents who fall into one of
the six exceptions are treated identically, regardless of the
circumstances of their trips abroad, but this observation is
also unhelpful.
It is important to be clear about what Congress has
actually accomplished in the amendment. Section
301(a)(13) is a definitional provision. It defines the new
scheme of “admission,” and it sets forth those
circumstances under which lawful permanent residents
may not retain their status upon reentry, thereby triggering
removal proceedings. At its core, § 301(a)(13) represents
Congress’s attempt to define who may stay and who must
depart. There are no suggestions from any of the parties
here that Congress was without authority to make these
value judgments, and none would be availing. See Demore
v. Kim, 123 S. Ct. 1708, 1716 (2003) (“ ‘In the exercise of its
broad power over naturalization and immigration, Congress
regularly makes rules that would be unacceptable if applied
to citizens.’ ” (quoting Matthews v. Diaz, 426 U.S. 67, 79-80
(1976))); Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“[O]ver no
conceivable subject is the legislative power of Congress
more complete than it is over the admission of aliens. . . .
[T]he power to expel or exclude aliens [is] a fundamental
sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.”)
(internal quotation marks and citations omitted); Fleuti, 374
U.S. at 461 (“Congress unquestionably has the power to
exclude all classes of undesirable aliens from this country,
and the courts are charged with enforcing such exclusion
when Congress has directed it . . . .”). Our power to change
the categories of excludable aliens is limited by the
legislature’s prerogative in these matters.
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Thus, while we recognize that there may be
circumstances in which the application of § 301(a)(13) and
§ 235(b)(2) may be harsh, we are obliged to interpret the
statute, giving due regard to legislative intent. As our
statutory analysis above demonstrates, all the verifiable
signs of Congressional intent point to the elimination of the
innocent, casual, and brief departure doctrine from
§ 301(a)(13). To reincorporate that doctrine into the new
statute, would require a feat of judicial legislation.
In sum, we acknowledge the possible ambiguity in the
“shall not . . . unless” construction in § 301(a)(13) of the
IIRIRA. Upon closer examination, we discern a substantial
conflict between § 101(a)(13) of the INA and § 301(a)(13) of
the IIRIRA, in that the former statute expressly endorsed an
inquiry into the nature and intent of an alien’s departure,
while the subsequent enactment completely eliminates that
inquiry. The specific and comprehensive amendments in
§ 301(a)(13) provide a new statutory regime governing the
admission of aliens, a fact which supports the obsolescence
of the innocent, casual, and brief departure doctrine. We
decline to write that doctrine back into the statute. For the
reasons set forth above, we hold that § 301(a)(13) of the
IIRIRA repealed by implication that aspect of § 101(a)(13) of
the INA which permitted an inquiry into the intent of a
lawful permanent resident’s departure from the United
States and, specifically, into the innocent, casual, and brief
nature of his departure. Because the provisions of the
IIRIRA took effect on April 1, 1997, we hold that
§ 301(a)(13) applies to all departures and attempts to
reenter the United States that occurred on or after that
date.
B. Deference to the BIA’s Statutory Interpretation
In light of our statutory interpretation analysis above, we
believe that Congress intended to repeal the Fleuti doctrine
by enacting § 301(a)(13) of the IIRIRA. Nevertheless, we
recognize, as did the District Court, that the grammatical
construction of § 301(a)(13) is not entirely free from
ambiguity. Under the circumstances, the District Court
should have deferred to the reasonable interpretation of the
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BIA as set forth in In re Collado-Munoz, 21 I. & N. Dec.
1061 (BIA 1998).
In Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., the Supreme Court held that if a “statute is
silent or ambiguous with respect to the specific issue,” then
“a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by
the administrator of an agency” charged with administering
that statute. 467 U.S. 837, 843-44 (1984). As noted above,
the first precondition is present here: § 301(a)(13) is literally
silent as to the propriety of an inquiry into the innocent,
casual, and brief nature of an alien’s departure, and
perhaps also ambiguous as far as the grammatical
construction is concerned.
There is also no longer any question that the BIA should
be accorded Chevron deference for its interpretations of the
immigration laws. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,
424 (1999). The INA charges the Attorney General “with the
administration and enforcement” of the immigration laws
and provides that “determination and ruling by the
Attorney General with respect to all questions of law shall
be controlling.” 8 U.S.C. § 1103(a)(1); see also Aguirre-
Aguirre, 526 U.S. at 424. The Court also noted that
“judicial deference to the Executive Branch is especially
appropriate in the immigration context where officials
‘exercise especially sensitive political functions that
implicate questions of foreign relations.’ ” Aguirre-Aguirre,
526 U.S. at 425 (quoting I.N.S. v. Abudu, 485 U.S. 94, 110
(1988)). The BIA, in turn, may exercise the “discretion and
authority conferred upon the Attorney General by law” in
the course of “considering and determining cases before it.”
8 C.F.R. § 3.1(d)(1) (1998); Aguirre-Aguirre, 526 U.S. at 425.
If the BIA has spoken on the meaning of a silent or
ambiguous statute, then our inquiry is limited to
determining whether the BIA’s statutory interpretation is
based on a reasonable, permissible construction of that
statute. See Abdulai, 239 F.3d at 551-52.
In the present case, the BIA has spoken on the meaning
and scope of § 301(a)(13) of the IIRIRA. In Collado-Munoz,
21 I. & N. Dec. at 1065-66, the BIA held that “Congress has
directed that a returning lawful permanent resident who is
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described in sections 101(a)(13)(C)(i)-(vi) of the Act shall be
regarded as ‘seeking an admission’ into the United States,
without regard to whether the alien’s departure from the
United States might previously have been regarded as ‘brief,
casual, and innocent’ under the Fleuti doctrine.” The BIA’s
statutory interpretation applied many of the same
analytical tools that we applied above. It noted, as we also
observed, that the elimination of the term “intended”
“formed the central basis for the Supreme Court’s
reasoning in Rosenberg v. Fleuti.” Id. at 1065. Furthermore,
the BIA recognized the perils of judicial legislation: “it
would be inconsistent with the definitional nature of this
provision to read it, as does the dissent, to create either a
third category or an undefined second category of lawful
permanent residents who may or may not be regarded as
seeking an admission, depending on a wholly unspecified
set of criteria . . . .” Id. at 1064. On balance, we find that
the BIA’s interpretation was reasonable, and the District
Court erred in failing to accord the BIA an appropriate
measure of deference.9
C. Alleged Constitutional Infirmities
As a final matter, Tineo argues that § 301(a)(13) is
unconstitutional on its face. Although a serious charge,
Tineo’s contentions suffer from a troubling lack of
precision. Tineo makes broad, sweeping claims of
unconstitutionality, but intersperses his arguments with
discussions of statutory interpretation. See Appellee’s Brief,
at 19. Distilled to its essence, Tineo contends that depriving
him of the right to an individualized determination of
whether his departure from the United States was innocent,
casual, and brief pursuant to Fleuti violates his right to due
process.10
9. Tineo objects to according the BIA any deference on the additional
ground that the BIA has no expertise in constitutional matters. While we
agree with the general proposition, as set forth in the following section,
we believe that Tineo’s constitutional objections fail to carry the day.
Therefore, his unsustainable constitutional arguments alone are not
sufficient to withhold deference to the BIA’s statutory interpretation.
10. See Appellee’s Brief, at 26 (“Without the possibility of an
individualized Fleuti hearing to determine his status, Mr. Tineo has
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Stated as such, Tineo’s purported constitutional right
simply does not exist. As self-evident in our statutory
analysis section above, the Supreme Court’s decision in
Fleuti had no basis in constitutional principles; the
innocent, casual, and brief departure doctrine was
grounded entirely on the meaning of a phrase in the
relevant statutory provision in effect at that time.
Tineo’s attempt to characterize Fleuti as a constitutional
avoidance decision is completely beside the point. In Fleuti,
the Court initially granted certiorari on the issue of whether
the statute that permitted the deportation of an alien
“afflicted with psychopathic personality” by reason of his
homosexuality was unconstitutionally vague and
ambiguous. 374 U.S. at 451. The Court found it
unnecessary to reach this issue—that is, it avoided the
constitutional issue—because of the “threshold issue of
statutory interpretation.” Id. Thus, the issue avoided in
Fleuti bears no resemblance to the constitutional right that
Tineo seeks to assert here. We have searched in vain, and
Tineo has failed to point us to any authority supporting the
proposition that the due process clause of the Constitution
compels a Fleuti hearing.
Another of Tineo’s arguments warrants some attention,
though it hardly supports his alleged constitutional
deprivation. Tineo argues that “[t]he INS claims that surely
because the statute’s wording is now different, that this
Court should abandon thirty years of the Supreme Court-
mandated Fleuti principle. . . . This is significant because
revocation of constitutional rights by implication is not
permitted.” Appellee’s Brief, at 20 (citations omitted). We
agree that Supreme Court statutory interpretation
decisions, reinforced by decades of practice, contribute
substantially to the rule of law. Litigants grow accustomed
to these seemingly settled rules. Tineo may be one of many
lawful permanent residents who understood, from decades
of practice based on Fleuti, that he had a right to an
already been erroneously deprived of his liberty and constitutional
protection pursuant to the INS strict reading of the statute.”); Appellee’s
Brief, at 25 (claiming that depriving Tineo of a Fleuti hearing before an
impartial adjudicator would violate due process).
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innocent, casual, and brief trip abroad that would not
jeopardize his continued residency here. Those who
question the wisdom of discarding these rules of law are
not alone.11 Nevertheless, Tineo’s observation has the
paradoxical effect of supporting our view above: as a
statutory interpretation decision, Fleuti did not create any
constitutional rights. It is worth repeating that, no matter
how settled the practice, Congress has largely unfettered
authority in matters of admission and excludability of
aliens. In addition, under our system of government, the
authority to repeal statutes resides, with few exceptions,
with the legislature pursuant to its powers under Article I
of the Constitution. See Raines v. Byrd, 521 U.S. 811, 830
(1997) (Souter, J., concurring).
Perhaps the more compelling due process issue focuses
not exclusively on the Fleuti doctrine and § 301(a)(13), but
on a combination of those principles and the de facto
mandatory detention regime in § 235(b)(2) of the IIRIRA. In
other words, does the divesting of a lawful permanent
resident of his favored status on one of the grounds in
§ 301(a)(13)(C), together with the mandatory detention of
that alien pending removal without any right to an
individualized hearing, violate due process? The Supreme
Court has repeatedly recognized that “if an alien is a lawful
permanent resident of the United States and remains
physically present here, he is a person within the protection
of the Fifth Amendment. . . . Although Congress may
prescribe conditions for his expulsion and deportation, not
even Congress may expel him without allowing him a fair
opportunity to be heard.” Kwong Hai Chew v. Colding, 344
U.S. 590, 596-98 (1953); see also Landon v. Plasencia, 459
U.S. 21, 33 (1982) (stating that “a continuously present
permanent resident alien has a right to due process in such
a situation”); Zadvydas v. Davis, 533 U.S. 678, 690 (2001)
(“And this Court has said that government detention
violates [the Due Process] Clause unless the detention is
11. See generally Sonia Chen, The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996: Another Congressional Hurdle for
the Courts, 8 IND. J. GLOBAL LEGAL STUD. 169 (2000); Michelle Slayton,
Interim Decision No. 3333: The Brief, Casual, and Innocent Conundrum,
33 NEW ENG. L. REV. 1029 (1999).
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ordered in a criminal proceeding with adequate procedural
protections . . . or, in certain special and narrow
nonpunitive circumstances . . . where a special
justification, such as harm threatening mental illness,
outweighs the individual’s constitutionally protected
interest in avoiding physical restraint.”) (internal quotation
marks and citations omitted) (emphasis in original).
Detention under § 235(b)(2) also takes place without regard
to the factors that traditionally guide our bail inquiry, such
as risk of flight and danger to the community. See Denmore
v. Kim, 123 S. Ct. 1708, 1736 (2003) (Souter, J., concurring
in part, dissenting in part).
Although the question raises substantial issues, there are
several reasons why we feel it is inappropriate to address
them here. First, Tineo has not raised due process
objections with regard to § 235(b)(2) detention with any
degree of specificity. For example, none of the particular
aspects of the right to due process at issue in Zadvydas
and Plasencia—the potential permanence of detention, the
government’s stated justifications for the detention, notice,
and right to counsel—were even discussed by Tineo. He
focused primarily on his right to an individualized Fleuti
determination. Consequently, the District Court had no
occasion to address the constitutionality of the detention
provisions, and we decline to do so here on a bare record
of these issues.12
12. In passing, we note that many of these arguments were addressed in
the Supreme Court’s recent decision in Demore v. Kim, 123 S. Ct. 1708
(2003). In Kim, the Court addressed the constitutionality of a similar
provision that provides for the mandatory detention of lawful permanent
residents, charged with being deportable, regardless of whether they
were present in the United States or returning residents. Id. at 1712; 8
U.S.C. § 1226(c). The lawful permanent resident in Kim never left the
United States, and § 1226(c) would apply to both resident aliens and
returning aliens such as Tineo. Notwithstanding its prior decisions in
Zadvydas and Kwong, the Court held that in the case of “deportable
aliens, the Due Process Clause does not require it to employ the least
burdensome means to accomplish its goal.” Kim, 123 S. Ct. at 1720.
Citing the important governmental objectives of preventing flight during
removal proceedings and of ensuring removal if so ordered, the Court
held that mandatory detention without a bail hearing during removal
proceedings is “a constitutionally permissible part” of the removal
process. Id. at 1721-22. Kim casts substantial doubt on the viability of
a due process challenge to the statute under which Tineo was detained.
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IV.
For the reasons set forth above, we will reverse the
judgment of the District Court and remand for entry of
judgment consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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