Hoang Minh Ly v. MARK B. HANSEN, JAMES ZIGLAR, and JOHN ASHCROFT

*The Honorable William J. Haynes, United States District Judge for
the Middle District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0418P (6th Cir.)
File Name: 03a0418p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
HOANG MINH LY,
Petitioner-Appellee,
v.
MARK B. HANSEN, JAMES
ZIGLAR, and JOHN ASHCROFT,
Respondents-Appellants.
X
-
-
-
->
,
-
-
-
-
N
No. 01-3016
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 99-01871—Solomon Oliver, Jr., District Judge.
Argued: July 31, 2002
Decided and Filed: November 26, 2003
Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and
HAYNES, District Judge.*
2 Ly v. Hansen, et al. No. 01-3016
_________________
COUNSEL
ARGUED: Michelle E. Gorden, U.S. DEPARTMENT OF
JUSTICE, CIVIL DIVISION, Washington, D.C., for
Appellants. Judy Rabinovitz, ACLU IMMIGRATION
RIGHTS PROJECT, New York, New York, for Appellee.
ON BRIEF: Michelle E. Gorden, Emily A. Radford, U.S.
DEPARTMENT OF JUSTICE, CIVIL DIVISION,
Washington, D.C., Lisa H. Johnson, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellants.
Richard T. Herman, RICHARD T. HERMAN &
ASSOCIATES, Cleveland, Ohio, for Appellee.
BOGGS, C. J., delivered the opinion of the court, in which
RYAN, J., joined. HAYNES, D. J. (pp. 18-26), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
BOGGS, Chief Judge. Mark Hansen, district director of the
Immigration and Naturalization Service (INS), appeals the
grant of habeas corpus to Hoang Minh Ly, a deportable
criminal alien. Ly, a citizen of Vietnam, challenged the
constitutionality of § 236(c) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
which requires the Attorney General to detain immigrants
who have committed certain crimes, pending removal
proceedings. 8 U.S.C. § 1226(c) (West 1999). Ly alleges
that the section violates substantive and procedural due
process under the Fifth Amendment because it does not allow
criminal aliens individual bond hearings to determine their
suitability for release pending removal proceedings. Because
the Supreme Court, in Zadvydas v. Davis, 533 U.S. 678
(2001), determined that IIRIRA should be interpreted to avoid

-- 1 of 13 --

No. 01-3016 Ly v. Hansen, et al. 3
1Actual removal of Ly from the United States was never a possibility
during this process. Vietnam has not and does not accept deportees
because there is no repatriation agreement between the United States and
Vietnam.
the constitutional questions raised by indefinite detention of
aliens awaiting removal from the United States, we affirm the
result below for reasons different than those relied on by the
district court. Brown v. Tidwell, 169 F.3d 330, 332 (6th Cir.
1999).
I
Hoang Minh Ly entered the United States as a refugee in
1986. In 1993, Ly was convicted of credit card fraud, and
sentenced to four months in prison, with two years of
supervised release. In 1998, Ly was involved in a check-
kiting scheme, wherein he deposited counterfeit cashier’s
checks into a bank account, knowing that someone else would
withdraw the money and split the proceeds. He was
convicted of bank fraud. Ly has fully served his criminal
sentences on both convictions.
The INS issued Ly a Notice to Appear on May 10, 1999.
The INS took Ly into custody, under the mandatory detention
provisions of IIRIRA § 236(c), on May 11, 1999. Overall, Ly
was kept in detention for 500 days, before his release at the
order of the district court. The INS asserted that Ly was
subject to removal1 from the United States because he was an
alien convicted of two crimes involving moral turpitude, and
he was an alien convicted of an aggravated felony. On
August 5, 1999, Ly filed a habeas corpus petition in federal
district court, challenging his detention. The INS
supplemented the charges against Ly on August 13, 1999,
with another charge that Ly was an alien convicted of an
aggravated felony. At an August 19, 1999 hearing, Ly
requested a continuance to permit his counsel additional time
to review the supplemental charges. The hearing was
rescheduled for September 21, 1999. At the September 21,
4 Ly v. Hansen, et al. No. 01-3016
1999 hearing, the immigration judge found that Ly was
removable. Ly then filed applications for relief from
deportation on various grounds, including asylum, admission,
withholding of removal, deferral of removal, and permanent
resident status. On January 27, 2000, the INS issued a Notice
of Decision denying Ly’s application for permanent resident
status. The immigration judge set a merits hearing for Ly’s
other applications for relief for March 16, 2000, but the
hearing was continued to April 28, 2000. In September 2000,
the magistrate judge recommended that habeas relief be
granted. The district court adopted this recommendation,
granting habeas relief unless a bond hearing was held. The
INS timely appealed the district court’s decision. One month
later, on October 19, 2000, the immigration judge entered a
written decision, ordering Ly’s removal to Vietnam and
denying his remaining applications for relief. On April 30,
2001, the Board of Immigration Appeals issued a final
decision, and affirmed the immigration judge’s order. Based
on the final administrative removal order, the Government
filed a motion with us to remand the case to district court.
The INS, in accordance with the district court’s order,
conducted a bond hearing. At that hearing, on November 21,
2000, the immigration judge determined that he did not have
the statutory authority to release Ly from detention.
Nevertheless, on November 24, 2000, the INS released Ly on
his own recognizance and subject to specified conditions.
II
A. Substantive Due Process and Zadvydas
1. Standard of Review and Jurisdiction
We review the grant of habeas corpus, and the
constitutional questions inherent in such a grant, de novo.
Staley v. Jones, 239 F.3d 769, 775 (6th Cir. 2001). We have
jurisdiction to consider both substantive and procedural due
process challenges to § 236(c), despite the jurisdictional

-- 2 of 13 --

No. 01-3016 Ly v. Hansen, et al. 5
limitations set out in IIRIRA. IIRIRA states: “[N]o court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases,
or execute removal orders against any alien . . . .” 8 U.S.C.
§ 1252(g) (West 1999). In Pak v. Reno, 196 F.3d 666, 671-72
(6th Cir. 1999), we held that this jurisdictional limitation did
not extend to the habeas power of federal courts, in order to
avoid the constitutional issue of whether or not such a
limitation would violate the Suspension Clause of the
Constitution, which 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. The Supreme Court has also upheld
the jurisdiction of courts to consider habeas claims arising out
of immigration detention. See Zadvydas v. Davis, 533 U.S.
678, 688 (2001) (courts have jurisdiction to hear habeas
claims arising out of IIRIRA’s post-removal detention
provisions).
2. Zadvydas
The parties here ask whether Ly may be indefinitely
incarcerated, under IIRIRA’s mandatory pre-removal
detention statute, § 236(c), pending his removal to Vietnam,
given that such removal is not currently foreseeable due to the
lack of a repatriation treaty between the United States and
Vietnam. Section 236 of IIRIRA requires the attorney
general to detain, among others, aliens convicted of either an
aggravated felony or two crimes involving moral turpitude
(such as fraud), pending removal proceedings. 8 U.S.C.
§ 1226(c). The INS asserts that because aliens detained under
§ 236 are prima facie deportable, they have no liberty interest
and may be detained indefinitely, without a bond hearing,
until an order of removal is entered. Ly contends that the
constitution requires an immediate bond hearing for all
criminal aliens awaiting removal.
6 Ly v. Hansen, et al. No. 01-3016
While the appeal in the case was pending, the Supreme
Court held in Zadvydas v. Davis, 533 U.S. 678 (2001), that
indefinite detention of a removable criminal alien after a
removal proceeding would violate a due process right to
liberty under the Fifth Amendment. Id. at 682. Zadvydas
therefore construed IIRIRA as not requiring indefinite
incarceration, by imposing a reasonable time limit (six
months), supervised by the federal courts in habeas
proceedings, on the amount of time that a deportable criminal
alien may be detained after a determination as to removability
has been made, unless the government asserts a “strong
special justification” for the detention. Id. at 690.
Zadvydas addressed the prospect of indefinite incarceration
of deportable aliens created by the IIRIRA post-removal
detention statute. The question remaining before us is
whether the holding of Zadvydas extends to the mandatory
pre-removal detention statute, § 236. Most aliens may be
released on bond or paroled until their removal hearing.
8 U.S.C. § 1226(a) (West 1999). However, because certain
types of criminal aliens pose extraordinarily high flight risks,
Congress has ordered that aliens who have been convicted of
an aggravated felony or two crimes involving moral turpitude
(including fraud) must be detained pending removal
proceedings, based on a prima facie determination of
removability by the government. 8 U.S.C. § 1226(c). If an
order of removal is not entered (or not entered promptly), the
result is mandatory indefinite detention for criminal aliens,
which is prohibited by Zadvydas.
3. Circuit Decisions
The question of indefinite detention under § 236 is one of
first impression in this circuit. Our sister circuits have split
on the issue. The Ninth and Tenth Circuits have adopted a
bright-line approach, holding that § 236 is unconstitutional as
applied to lawful permanent residents, no matter the length of
actual detention. Hoang v. Comfort, 282 F.3d 1247 (10th Cir.
2002), rev’d, 123 S. Ct. 1963 (2003); Kim v. Ziglar, 276 F.3d

-- 3 of 13 --

No. 01-3016 Ly v. Hansen, et al. 7
523, rev’d, 123 S. Ct. 1708 (2003) (9th Cir. 2002). The Third
Circuit has held that § 236 mandatory detention is
unconstitutional if the detained alien seeks to avoid removal
via administrative remedies. Patel v. Zemski, 275 F.3d 299
(3rd Cir. 2001). The Fourth Circuit adopted a case-by-case
approach, requiring an individualized determination of
dangerousness, Welch v. Ashcroft, 293 F.3d 213 (4th Cir.
2002), and the Seventh Circuit has held that indefinite
detention under § 236 is entirely constitutional. Parra v.
Perryman, 172 F.3d 954 (7th Cir. 1999).
We adopt none of these approaches. Our logic is simple.
Zadvydas prohibits only one thing: permanent civil detention
without a showing of a “strong special justification” that
consists of more than the government’s generalized interest
in protecting the community from danger. Zadvydas, 533
U.S. at 690. Zadvydas establishes a specific rule: “[A] habeas
court must ask whether the detention in question exceeds a
period reasonably necessary to secure removal.” Id. at 699.
Since permanent detention of Permanent Resident Aliens
under § 236 would be unconstitutional, we construe the
statute to avoid that result, as did the Court in Zadvydas.
Zadvydas also made clear that limited civil detention, without
bond, is constitutional as applied to deportable aliens. Id. at
701. Therefore, we hold that the INS may detain prima facie
removable aliens for a time reasonably required to complete
removal proceedings in a timely manner. If the process takes
an unreasonably long time, the detainee may seek relief in
habeas proceedings. With this standard in mind, we turn to
the decisions of the magistrate judge and the district court.
4. Level of Scrutiny
The magistrate judge’s opinion recommending the grant of
habeas relief, as adopted by the district court, found that
deportable aliens have a fundamental liberty interest under the
Fifth Amendment, the protection of which requires an
individualized bond hearing. Instead of characterizing the
issue as one of reasonable limitation on the period of
8 Ly v. Hansen, et al. No. 01-3016
incarceration, as did Zadvydas, the magistrate judge stated:
“The issue thus presented is whether § 236 violates
Petitioner’s Fifth Amendment right to due process by
removing discretion on the part of the Attorney General to
provide individualized bond hearings for those aliens against
whom deportation proceedings are ongoing.”
The level of scrutiny to be applied in determining whether
or not a restriction on a substantive due process right should
be upheld varies with the nature of the right. The magistrate
judge’s opinion noted that courts are to apply strict scrutiny
(the law must be narrowly tailored to a compelling state
interest) to governmental conduct that interferes with rights
“implicit in the concept of ordered liberty.” United States v.
Salerno, 481 U.S. 739, 746 (1987) (quoting Palko v. Conn.,
302 U.S. 319, 325-26 (1937)). The INS argued there, as here,
that immigration decisions should be subject to the more
deferential rational basis test, since deportable aliens have no
liberty interest in being at large in the United States.
The magistrate judge applied neither the strict scrutiny or
rational basis tests in pure form; rather, he likened the pre-
removal detention of criminal aliens to the pre-trial detention
of criminals, and adopted the “excessive to its purpose” test
of Salerno for regulatory legislation not designed for
punishment. In weighing the competing interests, courts
consider “the length of detention to which the petitioner has
already been subjected, the likelihood of deportation, the
potential length of the detention into the future, the likelihood
that release will frustrate the petitioner’s actual deportation,
and the danger to the community posed by the petitioner if
released.” Hermanowski v. Farquharson, 39 F. Supp. 2d 148,
159 (D.R.I. 1999). On balancing these factors, the magistrate
judge determined that Ly’s extended incarceration was not
justified in light of the minimal danger he posed to the public.
Zadvydas used a different analytical approach. Although
the opinion quoted Salerno with approval, Zadvydas noted
that removal proceedings were civil, not criminal, and held

-- 4 of 13 --

No. 01-3016 Ly v. Hansen, et al. 9
that if the government wished to indefinitely detain a
removable alien, it must show a “strong special justification”
for such detention. Zadvydas, 533 U.S. at 690. A general
goal of preventing danger to the community is insufficient to
support indefinite civil detention: “[W]e have upheld
preventive detention based on dangerousness only when
limited to specially dangerous individuals and subject to
strong procedural protections.” Id. at 690-91. “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.” Id. at
691, citing Kansas v. Hendricks, 521 U.S. 346, 368 (1997)
(emphasis in original). Furthermore, Zadvydas noted that
“where detention’s goal is no longer practically attainable,
detention no longer ‘bear[s] [a] reasonable relation to the
purpose for which the individual [was] committed.’”
Zadvydas, 533 U.S. at 690, quoting Jackson v. Indiana, 406
U.S. 715, 738 (1972).
The INS argues that because Ly is prima facie removable,
he has no liberty interest at all, and cannot therefore complain
that he is not at liberty within the United States. While it is
true that a removable alien has no right to be in the country,
it does not mean that he has no right to be at liberty.
Zadvydas established that deportable aliens, even those who
had already been ordered removed, possess a substantive Fifth
Amendment liberty interest, and that the interest was violated
by indefinite detention. The INS relies on the Seventh
Circuit’s decision in Parra v. Perryman, 172 F.3d 954 (7th
Cir. 1999). In that case, the Seventh Circuit found that § 236
violated neither procedural or substantive due process, on the
logic the INS asserts here: “A criminal alien who insists on
postponing the inevitable has no constitutional right to remain
at large during the ensuing delay, and the United States has a
powerful interest in maintaining the detention in order to
ensure that removal actually occurs.” Parra, 172 F.3d at 958.
To the extent that Parra holds that a criminal alien does not
possess a Fifth Amendment liberty interest impacted by
10 Ly v. Hansen, et al. No. 01-3016
indefinite civil detention, it has been overruled by Zadvydas.
533 U.S. at 690.
The INS’s final argument is that Congress exercises plenary
control over immigration, and that we should therefore not
question the judgment of Congress by ourselves placing
limits on mandatory detention. One point of difference
between this case and Zadvydas is that the post-removal
statute is permissive, whereas the pre-removal statute, as
applied to specified criminal aliens, is mandatory. Compare
8 U.S.C. §1226(c)(1) (The Attorney General shall take into
custody . . . ) with 8 U.S.C. § 1231(a)(6) (An alien ordered
removed . . . may be detained beyond the removal period)
(emphasis added). The INS argues that the mandatory nature
of pre-removal detention reveals a clear congressional intent
to keep criminal aliens detained for as long as it takes to
deport them, even if such detention is effectively perpetual.
There are two reasons to reject this argument. First,
although criminal aliens may be incarcerated pending
removal, the time of incarceration is limited by constitutional
considerations, and must bear a reasonable relation to
removal. As the Zadvydas court stated: “detention pending a
determination of removability . . . has [an] obvious
termination point.” Zadvydas, 533 U.S. at 697. The
mandatory nature of the detention does not alter the
constitutional limitations to which it is subject. Congress’s
plenary control must still be exercised within the bounds of
the Constitution. INS v. Chadha, 462 U.S. 919, 941 (1983).
Second, while Congress did express a desire to have certain
criminal aliens incarcerated during removal proceedings, it
also made clear that such proceedings were to proceed
quickly. 8 U.S.C. § 1229(d)(1) (West 1999) (“In the case of
an alien who is convicted of an offense which makes the alien
deportable, the Attorney General shall begin any removal
proceeding as expeditiously as possible after the date of the
conviction.”). In short, imposing a reasonable time limitation
on the pre-detention period both saves the statute from

-- 5 of 13 --

No. 01-3016 Ly v. Hansen, et al. 11
constitutional challenge, and is consistent with Congress’s
directions as to how the statute should be applied.
We must also assess the constitutional impact of the
presence or absence of hearings. In Zadvydas, the Court
found it significant that the detainees were afforded
administrative, rather than judicial, proceedings, at which the
alien bore the burden of proof. Zadvydas, 533 U.S. at 692.
Such process, the Court determined, would be insufficient to
permit indefinite detention. Similarly, in this case, the
magistrate judge noted: “[i]t is highly significant that the
statutory scheme affords petitioner no opportunity to
convince an Immigration Judge that he is not a danger to the
community, but, rather, is irrebutably presumed to be so.” In
both cases, procedural protections (rights to a hearing at
which the alien could argue that he did not pose a danger to
the community) were too limited to justify an indefinite
detention. However, Zadvydas did not mandate extra
procedural protection in order to constitutionalize the
imposition of indefinite civil detention; rather, it held that
indefinite deprivation of liberty would require extensive
procedural protection – and therefore construed the post-
removal detention statute to avoid the specter of permanent
detention. Zadvydas, 533 U.S. at 689.
We do the same: by construing the pre-removal detention
statute to include an implicit requirement that removal
proceedings be concluded within a reasonable time, we avoid
the need to mandate the procedural protections that would be
required to detain deportable aliens indefinitely. Although
we affirm the grant of habeas corpus and the district court’s
finding that incarceration for 18 months pending removal
proceedings is unreasonable, we do not require the United
States to hold bond hearings for every criminal alien detained
under § 236. Ly’s case is not the norm, in that he is not
actually removable. In the majority of cases, where an order
of removal is promptly entered and removal is effected within
the time allotted under Zadvydas, bond hearings are not
required. As Zadvydas made clear, the liberty interest of
12 Ly v. Hansen, et al. No. 01-3016
2Zadvydas does suggest that in extraordinarily limited circumstances,
e.g., dangero us mental illness, civil detention for an indefinite period or
without possibility of removal might be warranted. H owever, those
circumstances are sufficiently rare that requiring individualized bond
hearings is unnecessary. Rather, the INS can argue such extreme
circum stances in opposition to a detainee’s pe tition for ha beas relief.
deportable criminal aliens is adequately served by the
reasonableness limitation on the period of incarceration.2
5. Intervening Decisions
Our consideration of the question of Ly’s liberty interest is
complicated by two decisions that have come down since this
case was briefed and argued. In Demore v. Kim, 123 S. Ct.
1708 (2003) the Supreme Court held that §1226(c) was not
unconstitutional in requiring the detention of deportable
aliens pending their deportation. It specifically indicated that
such detentions were usually relatively brief, see id. at 1720-
21, but it did not specifically hold that any particular length
of time in a specific case would be unreasonable or
unconstitutional. The case is distinguishable to the extent that
Kim was a deportable alien for whom deportation, to South
Korea, was a real possibility, and he could avail himself of
such liberty at any time. That is not the case with Ly.
In Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir.
2003)(en banc), decided shortly before Kim, our circuit held
that even an excludable alien (presumptively a person with
less rights than Ly) could not be held beyond six months
without an individual hearing, by extension of the holding in
Zadvydas, in the case of an excludable alien who could not be
removed to Cuba. The cross currents of the two decisions are
somewhat complex. If Rosales-Garcia stands for the
proposition that any alien facing the process of deportation is
entitled to a specific hearing within six months absent special
justification, the decision is inconsistent with Kim, which
specifically authorized such detention in the circumstances
there. To the extent that Kim would appear to authorize

-- 6 of 13 --

No. 01-3016 Ly v. Hansen, et al. 13
indefinite detention for persons in pre-removal proceedings,
it could compel a conclusion contrary to Rosales-Garcia in
this case. However, the Court’s discussion in Kim is
undergirded by reasoning relying on the fact that Kim, and
persons like him, will normally have their proceedings
completed within in a short period of time and will actually
be deported, or will be released. That is not the case here.
Because of the differences between Ly’s case and these
opinions, we hold that neither of them affirmatively compels
a different decision here.
Finally, we note that the government has not offered a
strong and special justification, exceeding a mere desire to
protect the community, that would justify indefinite detention.
If, as is not the case here, the government were to attempt to
justify indefinite detention by means of a showing of a
“strong and special justification” under Zadvydas, then due
process would require a hearing on that issue.
6. Reasonable Time Limitation
We must next define a reasonable time limitation for pre-
removal detention, and finally determine whether or not the
INS acted reasonably in this case. A bright-line time
limitation, as imposed in Zadvydas, would not be appropriate
for the pre-removal period; hearing schedules and other
proceedings must have leeway for expansion or contraction as
the necessities of the case and the immigration judge’s
caseload warrant. In the absence of a set period of time,
courts must examine the facts of each case, to determine
whether there has been unreasonable delay in concluding
removal proceedings.
In this case, the district court determined that incarceration
for one and one-half years as part of a civil, nonpunitive
proceeding when there was no chance of actual, final
removal, was unreasonable. We agree. As of the
September 21, 2000 opinion and recommendation of the
14 Ly v. Hansen, et al. No. 01-3016
magistrate judge, Ly had been imprisoned for a year and a
half with no final decision as to removability in the case.
That decision as to removability was not made until nearly a
month later, after the magistrate judge recommended granting
the writ of habeas corpus. Ly served criminal sentences for
his two convictions of a total of 12 months; he spent
considerably more time than that in INS custody awaiting a
determination on removal.
Further, any detention under IIRIRA must be reasonably
related to the goal of the statute. Zadvydas, 533 U.S. at 699-
700. The goal of pre-removal incarceration must be to ensure
the ability of the government to make a final deportation. The
danger is that a criminal alien, upon receiving notice of
deportation proceedings, will flee. The actual removability of
a criminal alien therefore has bearing on the reasonableness
of his detention prior to removal proceedings. Zadvydas, 533
U.S. at 690. Because Ly was not removable, a year-and-a-
half imprisonment awaiting removal proceedings was
especially unreasonable.
The INS incorrectly asserts that it has an interest in
“ensuring that a final removal order is actually entered against
an individual who is prima facie removable because of
multiple criminal convictions.” The INS does not need the
alien to be physically present in order to enter a final removal
order. IIRIRA penalizes aliens who fail to appear at a
removal proceeding with both an automatic entry of an order
of removal in absentia, 8 U.S.C. § 1229a(b)(5), and prevents
such aliens from applying for cancellation of removal or
adjustment of status, remedies normally available to an alien
who has been ordered removed. 8 U.S.C. § 1229a(b)(7)
(West 1999).
As the INS points out, Ly is at least partially responsible
for the length of the proceedings. Ly applied for cancellation
of removal and for change of status, and was responsible for
at least one rescheduled hearing, due to the late filing of briefs
by Ly’s counsel with the immigration judge. We are not

-- 7 of 13 --

No. 01-3016 Ly v. Hansen, et al. 15
unsympathetic to this argument; however, we conclude that
the INS must still act promptly in advancing its interests. In
this case, the magistrate judge found that the time taken
without a decision was exceptional; indeed, the immigration
judge only rendered a decision after the magistrate judge
acted, and an additional month had passed, even though the
hearing before the immigration judge had been months
earlier.
Under the rule we adopt today, courts must be sensitive to
the possibility that dilatory tactics by the removable alien may
serve not only to put off the final day of deportation, but also
to compel a determination that the alien must be released
because of the length of his incarceration. Without
consideration of the role of the alien in the delay, we would
encourage deportable criminal aliens to raise frivolous
objections and string out the proceedings in the hopes that a
federal court will find the delay “unreasonable” and order
their release.
However, appeals and petitions for relief are to be expected
as a natural part of the process. An alien who would not
normally be subject to indefinite detention cannot be so
detained merely because he seeks to explore avenues of relief
that the law makes available to him. Further, although an
alien may be responsible for seeking relief, he is not
responsible for the amount of time that such determinations
may take. The mere fact that an alien has sought relief from
deportation does not authorize the INS to drag its heels
indefinitely in making a decision. The entire process, not
merely the original deportation hearing, is subject to the
constitutional requirement of reasonability.
Finally, there is a question of institutional competence. By
not requiring individualized bond hearings, federal courts
undertake to supervise the reasonability of detention only via
the habeas process. This is the approach recommended by
Zadvydas; of course, there the Court was able to establish a
six-month rule that is easily administrable by courts.
16 Ly v. Hansen, et al. No. 01-3016
Certainly the INS is best situated to know which criminal
aliens should be released, and federal courts are obviously
less well situated to know how much time is required to bring
a removal proceeding to conclusion. However, three factors
tip the balance in favor of court supervision. First, Zadvydas
requires it. Second, those aliens not granted bond hearings
would still file habeas petitions; since habeas review of
detention is not foreclosed by IIRIRA, federal courts will still
be asked to review detention. Third, although an easily
administrable bright-line rule cannot be based on time, given
the inevitable elasticity of the pre-removal period, courts are
familiar with and regularly assess reasonableness as a legal
standard. Our rule requires the INS to act reasonably: when
actual removal is not reasonably foreseeable, criminal aliens
may not be detained beyond a reasonable period required to
conclude removability proceedings without a government
showing of a “strong special justification,” constituting more
than a threat to the community, that overbalances the alien’s
liberty interest. Zadvydas, 533 U.S. at 690. Although it lacks
a bright line, this rule is administrable by courts hearing
habeas petitions arising from mandatory detention under
§ 236.
B. Procedural Due Process
Ly also asserts that he has received insufficient process to
protect his Fifth Amendment liberty interest. Were we to
construe the statute as permitting indefinite detention,
additional process would be required. Zadvydas, 533 U.S. at
692. If the INS were to assert a “strong special justification,”
consisting of more than convenience in removal or general
community protection, to support indefinite detention, then a
hearing would be required. Id. at 690. However, the INS
makes no such showing here. Because we construe the statute
to include a reasonable time limitation in bringing a removal
proceeding to conclusion, additional process to protect that
liberty interest is not required.

-- 8 of 13 --

No. 01-3016 Ly v. Hansen, et al. 17
III
We hold that the INS may detain prima facie removable
criminal aliens, without bond, for a reasonable period of time
required to initiate and conclude removal proceedings
promptly. When actual removal is not reasonably
foreseeable, deportable aliens may not be indefinitely
detained without a government showing of a “strong special
justification,” constituting more than a threat to the
community, that overbalances the alien’s liberty interest. The
reasonableness of the length of detention is subject to review
by federal courts in habeas proceedings, as stated by
Zadvydas. Because there is no strong special justification in
this case, because the period of time required to conclude the
proceedings was unreasonable, and because actual removal
was not foreseeable, we AFFIRM the grant of the writ of
habeas corpus.
18 Ly v. Hansen, et al. No. 01-3016
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
HAYNES, District Judge, concurring in part and dissenting
in part. I concur in the majority’s holding that Ly’s
incarceration for almost a year and a half was unreasonable
and justifies issuance of the writ of habeas corpus. Yet, for
several reasons, I respectfully dissent from the majority’s
reasonableness standard, due to its lack of any numerical time
limitations for the detention of those lawful permanent
resident aliens who object to their removal under 8 U.S.C.
§ 1226(c). In sum, Supreme Court and Sixth Circuit
precedents have set time limits on the detention of aliens who
have been ordered to be deported or aliens who have been
declared excludable. Time constraints, consistent with the
Supreme Court and this Circuit’s decisions, should be set for
the detention of lawful permanent resident aliens who are
object to their removal proceedings. The majority’s
substantial reliance upon Zadvydas v Davis, 533 U.S. 678
(2001) is misplaced because Demore v. Kim 123 S. Ct. 1708
(2003) is the controlling decision for the detention of lawful
permanent resident aliens, such as Ly.
Ly was born on April 16, 1968 in Saigon, Vietnam. His
family members include soldiers in the South Vietnamese
Army who fought with United States military forces during
the Vietnam war. Refusing to serve in the communist army
in Cambodia and avoiding persecution, Ly fled to Thailand
where he remained in a refugee camp for approximately two
years. The United States Attorney General granted Ly
refugee status when he entered the United States. Ly became
a permanent United States resident on December 21, 1987,
and has since lived in the United States with other family
members who are also permanent residents.
On May 11, 1999, the Immigration and Naturalization
Services (“INS”) initiated removal proceedings against Ly

-- 9 of 13 --

No. 01-3016 Ly v. Hansen, et al. 19
based upon a 1993 conviction for use of a counterfeit credit
card to purchase in excess of $2,000 of goods and services.
Ly pled guilty and the district court sentenced him to four
months incarceration and two years supervised release. The
district court also approved the prosecution’s
recommendation to reduce Ly’s sentence for his minor role in
the criminal transaction, his cooperation, and his immediate
confession. Ly successfully completed his supervised release
on April 27, 1995.
In 1999, Ly had another conviction for bank fraud because
he passed a fraudulent bank check in a check-kiting scheme.
In the pretrial proceeding of his second conviction, the district
court determined that Ly was neither a serious flight risk nor
a threat to the community and released Ly on a personal bond.
For this conviction, Ly was sentenced to eight months and
ordered to make restitution to the victim. Ly fully completed
that criminal sentence.
These two convictions provide the basis for his removal for
crimes of moral turpitude under § 237(a)(2)(A)(ii) of IIRIRA.
Ly asserts that he would have been eligible for cancellation of
removal under the former 212(c) waiver because prior to
1996, Ly’s conviction was not considered an “aggravated
felony” under the Immigration and Naturalization Act
(“INA”). At the time of his 1993 plea, an “aggravated
felony” was defined under § 101(a)(43)(M) of the INA, as a
crime causing a $200,000 loss to the victim for a crime of
fraud or deceit. In 1996, three years after Ly’s plea, Congress
retroactively expanded the definition of “aggravated felony”
under § 101(a)(43)(M) of the INA by requiring only a
$10,000 loss to the victim, thereby retroactively classifying
Ly as an aggravated felon and thus, rendering him ineligible
for cancellation of his removal. The immigration court found
Ly removable as an aggravated felon under section
101(a)(48)(U) of the INA.
Vietnam, Ly’s native country, does not have an repatriation
treaty with the United States and Ly has not been removed.
20 Ly v. Hansen, et al. No. 01-3016
As a result of his removal proceeding, Ly had been detained
for over 500 days prior to the district court’s order granting
the writ. With the lack of a repatriation treaty with Vietnam,
Ly’s removal is unlikely for the reasonably foreseeable future.
In Kim, the Supreme Court held that mandatory detention
of lawful permanent aliens residents who are subject to
removal under 236(c) the Illegal Immigration and Immigrant
Responsibility Act of 1996 (“IIRIRA”) is constitutionally
permissible for the brief period of time necessary for their
removal proceedings. The Supreme Court’s core conclusions
were two-fold. First, the Court held that “Congress,
justifiably concerned that deportable criminal aliens who are
not detained continue to engage in crime and fail to appear for
their removal hearings in large numbers, may require that
persons such as [Kim] be detained for the brief period
necessary for their removal proceedings” 123 S. Ct. at 1712.
(Emphasis added). With this limitation, “[d]etention during
removal proceedings is a constitutionally permissible part of
that process.” Id at 1721-22. Thus, “a criminal alien who
has conceded that he is deportable, for the limited period of
his removal proceedings, is governed by these cases.” Id. at
1722.(citations omitted). In other parts of its opinion, the
majority in Kim emphasized that the detention was under
Section 236(c) for a “limited period” id. at 1722 and “very
limited time of ... detention,” Id at 1721 n.12.
Kim’s holding clearly was premised , in significant part,
upon its finding that the initial detention under Section 236(c)
was for “a brief period necessary for their removal
proceeding” Id. at 1712. The majority in Kim specifically
cited the average length of time of a Section 236(c) detention
prior to a disposition of the removal issue :
In the majority of cases it lasts for less than the 90 days we
considered presumptively valid in Zadvydas. The Executive
Office for Immigration Review has calculated that, in 85% of
the cases in which aliens are detained pursuant to Section
1226(c), removal proceedings are completed in an average

-- 10 of 13 --

No. 01-3016 Ly v. Hansen, et al. 21
time of 47 days and median of 30 days. Brief for Petitioners
39-40. In the remaining 15% of cases, in which that alien
appeals the decision of the Immigration Judge to average of
four months, with a median time that is slightly shorter. Id.,
at 40.
Kim, at 1720-21 (emphasis added).
To be sure, Kim addressed only the constitutionality of
Section 236(c) mandating detention of lawful permanent
aliens where the alien did not contest his detention. Kim did
not address any outside time limits on that detention. Here,
Ly contests his deportation to Vietnam that lacks a
repatriation treaty with this country. The majority’s holding
here sets a limitation of detention, but only by a
reasonableness standard, without any numerical time limits.
In my view, to set the constitutional standard for the length
of detention for those lawful resident aliens who contest their
deportation, we should borrow the time limits in Kim that the
Supreme Court cited in upholding Section 236(c) for
detention of lawful permanent resident aliens. These
limitations would be presumptive time limits for detention of
lawful resident aliens who object to their deportation and such
limits are supported by Supreme Court and Sixth Circuit
decisions in other alien deportation decisions. In a word, any
time periods that exceed the time limits cited in Kim would be
presumptively unconstitutional.
Implicit in Kim is that a detention of a lawful permanent
resident subject to removal under Section 236 (c) for up to 47
days is permissible. Borrowing Kim’s time limits, we should
hold that any contested detention of a lawful permanent
resident under Section 236(c) for more than forty seven (47)
days is presumptively unreasonable and therefore,
unconstitutional, absent an individualized assessment of flight
and dangerousness. If the lawful permanent alien appeals an
adverse decision, the presumptive time limit would be 120
days. These time limitations that are cited in Kim, reflect
22 Ly v. Hansen, et al. No. 01-3016
actual administrative experiences for conducting these
removal hearings. If there were justifiable cause for
detentions beyond these limits, then the agency must provide
the alien with a statement of reasons for the delay and the
opportunity for a due process hearing. The alien could then
assess whether he can successfully challenge the agency’s
stated reasons for continued detention at the due process
hearing before the agency or later in court.
The Supreme Court set a presumptive standard of 90 days
and an outside limit of six months detention for aliens who
have been ordered removed absent a showing of a “strong
special justification” for detention. 533 U.S. At 690, 701.
In Rosales-Garcia v. Holland, 322 F.3d 386, 415 (6th Cir.
2003) (en banc) this Court imposed, as a matter of law, a six
months limitation for detention of excludable aliens. Surely,
as a matter of law, the initial detention of aliens who are
lawfully permanent residents and who challenge their
deportation, should be less than six months, the constitution
limitation for detained aliens who are unlawfully in this
country. Lawful permanent resident aliens who contest their
continued detention should have greater due process rights
than aliens who have been found to be removable or
excludable.
Consistent with Zadvydas and Rosales-Garcia, for those
aliens who do not contest their removal, “if removal is not
reasonably foreseeable, the court should hold continued
detention” beyond six months “unreasonable”. Zadvydas
533 U.S. at 699, 701. “After the 6 month period, once the
alien proves good reason to believe that there is not
significant likelihood of removal in the reasonably
foreseeable future, the Government must respond to rebut that
showing... This 6-month presumption of course does not
mean that every alien not removed must be released after six
months. To the contrary, an alien may be held in confinement
until it has determined that there is no significant likelihood
of removal in the foreseeable future.” Id at 701.

-- 11 of 13 --

No. 01-3016 Ly v. Hansen, et al. 23
As the circumstances of this appeal reveal, without a
judicial time limit, detention of lawful permanent residents
could exceed six months. Here, Ly was detained for 500
days. Despite Kim, the Appellant agency insists that “Ly’s
detention pending the completion of his removal proceedings
is statutorily authorized under 8 U.S.C. 1226(c)(1)(B) and
fully comports with due process under the Supreme Court’s
decision in Kim”. (Appellant’s motion to vacate at p.4). This
expression of the agency’s viewpoint of reasonableness
counsels the need for numerical time limitations.
Second, in Kim, the Supreme Court made it clear that where
removal “was not practically attainable,” “detention’s goal no
longer bears a reasonable relation to the purpose for which the
individual was committed.” Id 1719, 1720 citing Zadvydas.
Thus, for the lawful permanent residents who object to
removal to countries to which actual deportation or removal
is impractical, as here, the detention hearing should be held
promptly or as soon as practicable prior to the expiration of
the 47 days of the initial detention.
Third, in Kim, the five justices required an individual
determination to justify extended detention albeit in different
contexts. In his concurring opinion in Kim, Justice Kennedy
recognized the necessity of a due process hearing after an
unreasonable period of detention, stating that:
“As a consequence, due process requires
individualized procedures to ensure there is at least some
merit to the Immigration and Naturalization Service’s
(INS) charge and, therefore, sufficient justification to
detain a lawful permanent resident alien pending a more
formal hearing...”
* * *
For similar reasons, since the Due Process Clause
prohibits arbitrary deprivations of liberty a lawful
permanent resident alien such as respondent could be
24 Ly v. Hansen, et al. No. 01-3016
entitled to an individualized determination as to his risk
of flight and dangerousness if the continued detention
became unreasonable or unjustified.
([A]liens are entitled to be free form detention that is
arbitrary or capricious”). Were there to be an
unreasonable delay by the INS in pursuing and
completing deportation proceedings, it could become
necessary then to inquire whether the detention is not
to facilitate deportation or to protect against risk of
flight or dangerousness, but to incarcerate for other
reasons.
123 S. Ct. at 1722 (Kennedy, J., concurring). (emphasis
added). Although in an unpublished decision, the Second
Circuit described Justice Kennedy’s concurring opinion as
“explicating his understanding that the majority opinion may
allow a challenge to detention when, for example, there has
been unreasonable delay by the INS.” Zgombic v
Farquharson, 68 Fed. Appx. 2, 2003WL212443248 * 1 (2nd
Cir. 2003).
Four other Justices in Kim, likewise would require an
individualized due process hearing even before the initial
detention period. “Due process calls for an individual
determination before someone is locked away.” 123 S. Ct at
1733 (Souter, Stevens and Ginsburg, JJ. concurring in part,
dissenting in part). “The statute would require the
Government to permit a detained alien to seek an
individualized assessment of flight risk and dangerousness as
long as the alien’s claim that he is not reportable is (1) not
interposed solely for purposes of delay and (2) raises a
question of “law or fact” that is not insubstantial” 123 S. Ct.
at 1747, (Breyer, J. concurring in part, dissenting in part).
Here, Ly asserts an express claim that he was entitled to a
due process hearing and an individual assessment of his risk
of flight and his perceived dangerousness to justify his
continued detention. For a lawful permanent alien resident

-- 12 of 13 --

No. 01-3016 Ly v. Hansen, et al. 25
who has been detained more than forty seven (47) days
without a determination of his or her removeability and who
objects to his deportation, I would hold such an alien resident
is entitled to a due process hearing and an individual
assessment of his risk of flight and /or dangerous to justify
his or her continued detention.
Fourth, the majority opinion places substantial reliance on
Zadvydas that involved aliens who had been ordered to be
deported and whose detention was “potentially permanent.”
Kim expressly distinguished Zadvydas as applicable to aliens
who have been ordered to be deported and whose detention
is a potentially permanent and indefinite.
Zadvydas is materially different from the present case in two
respects.
First, the aliens there challenging their detention
following final deportation orders were ones for who
removal was “no longer practically attainable,” such that
their detention did not serve its purported immigration
purpose. In contrast, because the statutory provision at
issue in this case governs detention of deportable
criminal aliens pending their removal proceedings, the
detention necessarily serves the purpose of preventing
the aliens from fleeing prior to or during such
proceedings. Second, while the period of detention at
issue in Zadvydas was “indefinite” and “potentially
permanent,” the record shows that 1226(c) detention not
only has a definite termination point, but lasts, in the
majority of cases, for less that the 90 days the Court
considered presumptively valid in Zadvydas.
123 S. Ct. at 1719.
In my view, Kim is the more relevant and controlling
authority here because Ly is a lawful permanent resident alien
who objects to his removal and his continued detention.
Thus, the majority’s substantial reliance on Zadvydas is
26 Ly v. Hansen, et al. No. 01-3016
misplaced in that the majority overlooks Ly’s status and his
opposition to his removal. Kim is the controlling authority
here for removal of lawful permanent residents who object to
their removal. Kim imposes a constitutional limitation that
any detention must be “brief” and “limited” as well as
reasonable.
For these reasons, I respectfully dissent.

-- 13 of 13 --