ZADVYDAS v. DAVIS et al.

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ZADVYDAS v. DAVIS et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 99–7791. Argued February 21, 2001—Decided June 28, 2001*
After a final removal order is entered, an alien ordered removed is held
in custody during a 90-day removal period. If the alien is not removed
in those 90 days, the post-removal-period detention statute authorizes
further detention or supervised release, subject to administrative re-
view. Kestutis Zadvydas, petitioner in No. 99–7791—a resident alien
born, apparently of Lithuanian parents, in a German displaced persons
camp—was ordered deported based on his criminal record. Germany
and Lithuania refused to accept him because he was not a citizen of
their countries; efforts to send him to his wife’s native country also
failed. When he remained in custody after the removal period expired,
he filed a habeas action under 28 U. S. C. § 2241. The District Court
granted the writ, reasoning that, because the Government would never
remove him, his confinement would be permanent, in violation of the
Constitution. In reversing, the Fifth Circuit concluded that Zadvydas’
detention did not violate the Constitution because eventual deportation
was not impossible, good-faith efforts to remove him continued, and his
detention was subject to administrative review. Kim Ho Ma, respond-
ent in No. 00–38, is a resident alien born in Cambodia who was ordered
removed based on his aggravated felony conviction. When he remained
in custody after the removal period expired, he filed a § 2241 habeas
petition. In ordering his release, the District Court held that the Con-
stitution forbids post-removal-period detention unless there is a realistic
chance that an alien will be removed, and that no such chance existed
here because Cambodia has no repatriation treaty with the United
States. The Ninth Circuit affirmed, concluding that detention was not
authorized for more than a reasonable time beyond the 90-day period,
and that, given the lack of a repatriation agreement, that time had
expired.
Held:
1. Section 2241 habeas proceedings are available as a forum for statu-
tory and constitutional challenges to post-removal-period detention.
Statutory changes in the immigration law left habeas untouched as the
*Together with No. 00–38, Ashcroft, Attorney General, et al. v. Kim Ho
Ma, on certiorari to the United States Court of Appeals for the Ninth
Circuit.

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basic method for obtaining review of continued custody after a deporta-
tion order becomes final, and none of the statutory provisions limiting
judicial review of removal decisions applies here. Pp. 687–688.
2. The post-removal-period detention statute, read in light of the Con-
stitution’s demands, implicitly limits an alien’s detention to a period rea-
sonably necessary to bring about that alien’s removal from the United
States, and does not permit indefinite detention. Pp. 688–699.
(a) A statute permitting indefinite detention would raise serious
constitutional questions. Freedom from imprisonment lies at the heart
of the liberty protected by the Due Process Clause. Government de-
tention violates the Clause unless it is ordered in a criminal proceeding
with adequate procedural safeguards or a special justification outweighs
the individual’s liberty interest. The instant proceedings are civil and
assumed to be nonpunitive, and the Government proffers no sufficiently
strong justification for indefinite civil detention under this statute. The
first justification—preventing flight—is weak or nonexistent where re-
moval seems a remote possibility. Preventive detention based on the
second justification—protecting the community—has been upheld only
when limited to specially dangerous individuals and subject to strong
procedural protections. When preventive detention is potentially in-
definite, this dangerousness rationale must also be accompanied by some
other special circumstance, such as mental illness, that helps to create
the danger. The civil confinement here is potentially permanent, and
once the flight risk justification evaporates, the only special circum-
stance is the alien’s removable status, which bears no relation to danger-
ousness. Moreover, the sole procedural protections here are found in
administrative proceedings, where the alien bears the burden of proving
he is not dangerous, without (according to the Government) significant
later judicial review. The Constitution may well preclude granting an
administrative body unreviewable authority to make determinations im-
plicating fundamental rights. Pp. 690–692.
(b) Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206—in
which an alien was indefinitely detained as he attempted to reenter the
country—does not support the Government’s argument that alien status
itself can justify indefinite detention. Once an alien enters the country,
the legal circumstance changes, for the Due Process Clause applies to
all persons within the United States, including aliens, whether their
presence is lawful, unlawful, temporary, or permanent. Nor do cases
holding that, because Congress has plenary power to create immigration
law, the Judicial Branch must defer to Executive and Legislative Branch
decisionmaking in that area help the Government, because that power
is subject to constitutional limits. Finally, the aliens’ liberty interest is
not diminished by their lack of a legal right to live at large, for the
choice at issue here is between imprisonment and supervision under

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680 ZADVYDAS v. DAVIS
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release conditions that may not be violated and their liberty interest is
strong enough to raise a serious constitutional problem with indefinite
detention. Pp. 692–696.
(c) Despite the constitutional problem here, if this Court were to
find a clear congressional intent to grant the Attorney General the
power to indefinitely detain an alien ordered removed, the Court would
be required to give it effect. But this Court finds no clear indication
of such intent. The statute’s use of “may” is ambiguous and does not
necessarily suggest unlimited discretion. Similar related statutes re-
quiring detention of criminal aliens during removal proceedings and the
removal period do not show that Congress authorized indefinite deten-
tion here. Finally, nothing in the statute’s legislative history clearly
demonstrates a congressional intent to authorize indefinite, perhaps per-
manent, detention. Pp. 696–699.
3. The application of the “reasonable time” limitation is subject to
federal-court review. The basic federal habeas statute grants the fed-
eral courts authority to determine whether post-removal-period deten-
tion is pursuant to statutory authority. In answering that question,
the court must ask whether the detention exceeds a period reasonably
necessary to secure removal. It should measure reasonableness pri-
marily in terms of the statute’s purpose of assuring the alien’s presence
at the moment of removal. Thus, if removal is not reasonably foresee-
able, the court should hold continued detention unreasonable and no
longer authorized. If it is foreseeable, the court should consider the
risk of the alien’s committing further crimes as a factor potentially justi-
fying continued confinement. Without abdicating their responsibility
to review the detention’s lawfulness, the courts can take appropriate
account of such matters as the Executive Branch’s greater immigration-
related expertise, the Immigration and Naturalization Service’s admin-
istrative needs and concerns, and the Nation’s need to speak with one
voice on immigration. In order to limit the occasions when courts will
need to make the difficult judgments called for by the recognition of
this necessary Executive leeway, it is practically necessary to recognize
a presumptively reasonable period of detention. It is unlikely that Con-
gress believed that all reasonably foreseeable removals could be accom-
plished in 90 days, but there is reason to believe that it doubted the
constitutionality of more than six months’ detention. Thus, for the sake
of uniform administration in the federal courts, six months is the appro-
priate period. After the 6-month period, once an alien provides good
reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future, the Government must furnish evidence
sufficient to rebut that showing. Pp. 699–701.

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4. The standard that the Fifth Circuit applied in holding Zadvydas’
continued detention lawful seems to require an alien seeking release to
show the absence of any prospect of removal—no matter how unlikely
or unforeseeable—and thus demands more than the statute can bear.
The Ninth Circuit’s conclusion that Ma should be released may have
rested solely upon the absence of a repatriation agreement without
giving due weight to the likelihood of successful future negotiations.
P. 702.
185 F. 3d 279 and 208 F. 3d 815, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed a dis-
senting opinion, in which Thomas, J., joined, post, p. 702. Kennedy, J.,
filed a dissenting opinion, in which Rehnquist, C. J., joined, and in which
Scalia and Thomas, JJ., joined as to Part I, post, p. 705.
Jay W. Stansell argued the cause for respondent in
No. 00–38. With him on the brief were Thomas W. Hillier
II and Jennifer E. Wellman.
Robert F. Barnard argued the cause for petitioner in
No. 99–7791. With him on the briefs was Virginia Laugh-
lin Schlueter.
Deputy Solicitor General Kneedler argued the cause for
respondents in No. 99–7791 and petitioners in No. 00–38.
With him on the briefs were Acting Solicitor General Un-
derwood, former Solicitor General Waxman, Assistant At-
torney General Ogden, Beth S. Brinkmann, Donald Keener,
and Quynh Vu.*
*Daniel J. Popeo and Richard A. Samp filed a brief for the Washington
Legal Foundation et al. as amici curiae urging affirmance in No. 99–7791.
Briefs of amici curiae urging affirmance in No. 00–38 were filed for the
Catholic Legal Immigration Network, Inc., et al. by Laurie Joyce and Josh
Dratel; for the American Association of Jews from the Former USSR et al.
by Nancy Morawetz; for the Lawyers Committee for Human Rights by
Seth M. M. Stodder; for the American Civil Liberties Union et al. by Judy
Rabinovitz, Lucas Guttentag, Steven R. Shapiro, Wanyong Lai Austin,
Jayashri Srikantiah, and Aaron H. Caplan; for Human Rights Watch
et al. by William J. Aceves and Paul L. Hoffman; and for Carolyn Patty
Blum et al. by George A. Cumming, Jr., and Charles D. Weisselberg.

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682 ZADVYDAS v. DAVIS
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
When an alien has been found to be unlawfully present
in the United States and a final order of removal has been
entered, the Government ordinarily secures the alien’s
removal during a subsequent 90-day statutory “removal
period,” during which time the alien normally is held in
custody.
A special statute authorizes further detention if the Gov-
ernment fails to remove the alien during those 90 days. It
says:
“An alien ordered removed [1] who is inadmissible . . .
[2] [or] removable [as a result of violations of status re-
quirements or entry conditions, violations of criminal
law, or reasons of security or foreign policy] or [3] who
has been determined by the Attorney General to be a
risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal
period and, if released, shall be subject to [certain] terms
of supervision . . . .” 8 U. S. C. § 1231(a)(6) (1994 ed.,
Supp. V).
In these cases, we must decide whether this post-
removal-period statute authorizes the Attorney General to
detain a removable alien indefinitely beyond the removal
period or only for a period reasonably necessary to secure
the alien’s removal. We deal here with aliens who were
admitted to the United States but subsequently ordered
removed. Aliens who have not yet gained initial admission
to this country would present a very different question.
See infra, at 693–694. Based on our conclusion that indefi-
nite detention of aliens in the former category would raise
serious constitutional concerns, we construe the statute to
contain an implicit “reasonable time” limitation, the applica-
tion of which is subject to federal-court review.

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I
A
The post-removal-period detention statute is one of a re-
lated set of statutes and regulations that govern detention
during and after removal proceedings. While removal pro-
ceedings are in progress, most aliens may be released on
bond or paroled. 66 Stat. 204, as added and amended, 110
Stat. 3009–585, 8 U. S. C. §§ 1226(a)(2), (c) (1994 ed., Supp. V).
After entry of a final removal order and during the 90-day
removal period, however, aliens must be held in custody.
§ 1231(a)(2). Subsequently, as the post-removal-period stat-
ute provides, the Government “may” continue to detain an
alien who still remains here or release that alien under su-
pervision. § 1231(a)(6).
Related Immigration and Naturalization Service (INS)
regulations add that the INS District Director will initially
review the alien’s records to decide whether further de-
tention or release under supervision is warranted after the
90-day removal period expires. 8 CFR §§ 241.4(c)(1), (h),
(k)(1)(i) (2001). If the decision is to detain, then an INS
panel will review the matter further, at the expiration of a
3-month period or soon thereafter. § 241.4(k)(2)(ii). And
the panel will decide, on the basis of records and a possible
personal interview, between still further detention or release
under supervision. § 241.4(i). In making this decision, the
panel will consider, for example, the alien’s disciplinary rec-
ord, criminal record, mental health reports, evidence of reha-
bilitation, history of flight, prior immigration history, and fa-
vorable factors such as family ties. § 241.4(f). To authorize
release, the panel must find that the alien is not likely to be
violent, to pose a threat to the community, to flee if released,
or to violate the conditions of release. § 241.4(e). And the
alien must demonstrate “to the satisfaction of the Attor-
ney General” that he will pose no danger or risk of flight.

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§ 241.4(d)(1). If the panel decides against release, it must
review the matter again within a year, and can review it
earlier if conditions change. §§ 241.4(k)(2)(iii), (v).
B
1
We consider two separate instances of detention. The
first concerns Kestutis Zadvydas, a resident alien who was
born, apparently of Lithuanian parents, in a displaced per-
sons camp in Germany in 1948. When he was eight years
old, Zadvydas immigrated to the United States with his par-
ents and other family members, and he has lived here ever
since.
Zadvydas has a long criminal record, involving drug
crimes, attempted robbery, attempted burglary, and theft.
He has a history of flight, from both criminal and deportation
proceedings. Most recently, he was convicted of possessing,
with intent to distribute, cocaine; sentenced to 16 years’ im-
prisonment; released on parole after two years; taken into
INS custody; and, in 1994, ordered deported to Germany.
See 8 U. S. C. § 1251(a)(2) (1988 ed., Supp. V) (delineating
crimes that make alien deportable).
In 1994, Germany told the INS that it would not accept
Zadvydas because he was not a German citizen. Shortly
thereafter, Lithuania refused to accept Zadvydas because he
was neither a Lithuanian citizen nor a permanent resident.
In 1996, the INS asked the Dominican Republic (Zadvydas’
wife’s country) to accept him, but this effort proved unsuc-
cessful. In 1998, Lithuania rejected, as inadequately docu-
mented, Zadvydas’ effort to obtain Lithuanian citizenship
based on his parents’ citizenship; Zadvydas’ reapplication is
apparently still pending.
The INS kept Zadvydas in custody after expiration of the
removal period. In September 1995, Zadvydas filed a peti-
tion for a writ of habeas corpus under 28 U. S. C. § 2241 chal-

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lenging his continued detention. In October 1997, a Federal
District Court granted that writ and ordered him released
under supervision. Zadvydas v. Caplinger, 986 F. Supp.
1011, 1027–1028 (ED La.). In its view, the Government
would never succeed in its efforts to remove Zadvydas from
the United States, leading to his permanent confinement,
contrary to the Constitution. Id., at 1027.
The Fifth Circuit reversed this decision. Zadvydas v.
Underdown, 185 F. 3d 279 (1999). It concluded that
Zadvydas’ detention did not violate the Constitution because
eventual deportation was not “impossible,” good-faith efforts
to remove him from the United States continued, and his
detention was subject to periodic administrative review.
Id., at 294, 297. The Fifth Circuit stayed its mandate pend-
ing potential review in this Court.
2
The second case is that of Kim Ho Ma. Ma was born in
Cambodia in 1977. When he was two, his family fled, taking
him to refugee camps in Thailand and the Philippines and
eventually to the United States, where he has lived as a resi-
dent alien since the age of seven. In 1995, at age 17, Ma
was involved in a gang-related shooting, convicted of man-
slaughter, and sentenced to 38 months’ imprisonment. He
served two years, after which he was released into INS
custody.
In light of his conviction of an “aggravated felony,”
Ma was ordered removed. See 8 U. S. C. §§ 1101(a)(43)(F)
(defining certain violent crimes as aggravated felonies),
1227(a)(2)(A)(iii) (1994 ed., Supp. IV) (aliens convicted of ag-
gravated felonies are deportable). The 90-day removal pe-
riod expired in early 1999, but the INS continued to keep
Ma in custody, because, in light of his former gang member-
ship, the nature of his crime, and his planned participation
in a prison hunger strike, it was “unable to conclude that

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Mr. Ma would remain nonviolent and not violate the condi-
tions of release.” App. to Pet. for Cert. in No. 00–38, p. 87a.
In 1999, Ma filed a petition for a writ of habeas corpus
under 28 U. S. C. § 2241. A panel of five judges in the Fed-
eral District Court for the Western District of Washington,
considering Ma’s and about 100 similar cases together, issued
a joint order holding that the Constitution forbids post-
removal-period detention unless there is “a realistic chance
that [the] alien will be deported” (thereby permitting classi-
fication of the detention as “in aid of deportation”). Binh
Phan v. Reno, 56 F. Supp. 2d 1149, 1156 (1999). The District
Court then held an evidentiary hearing, decided that there
was no “realistic chance” that Cambodia (which has no repa-
triation treaty with the United States) would accept Ma, and
ordered Ma released. App. to Pet. for Cert. in No. 00–38,
at 60a–61a.
The Ninth Circuit affirmed Ma’s release. Kim Ho Ma v.
Reno, 208 F. 3d 815 (2000). It concluded, based in part on
constitutional concerns, that the statute did not authorize
detention for more than a “reasonable time” beyond the
90-day period authorized for removal. Id., at 818. And,
given the lack of a repatriation agreement with Cambodia,
that time had expired upon passage of the 90 days. Id., at
830–831.
3
Zadvydas asked us to review the decision of the Fifth Cir-
cuit authorizing his continued detention. The Government
asked us to review the decision of the Ninth Circuit forbid-
ding Ma’s continued detention. We granted writs in both
cases, agreeing to consider both statutory and related consti-
tutional questions. See also Duy Dac Ho v. Greene, 204
F. 3d 1045, 1060 (CA10 2000) (upholding Attorney General’s
statutory and constitutional authority to detain alien indefi-
nitely). We consolidated the two cases for argument; and
we now decide them together.

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II
We note at the outset that the primary federal habeas cor-
pus statute, 28 U. S. C. § 2241, confers jurisdiction upon
the federal courts to hear these cases. See § 2241(c)(3)
(authorizing any person to claim in federal court that he
or she is being held “in custody in violation of the Con-
stitution or laws . . . of the United States”). Before 1952,
the federal courts considered challenges to the lawfulness
of immigration-related detention, including challenges to
the validity of a deportation order, in habeas proceedings.
See Heikkila v. Barber, 345 U. S. 229, 230, 235–236 (1953).
Beginning in 1952, an alternative method for review of de-
portation orders, namely, actions brought in federal district
court under the Administrative Procedure Act (APA), be-
came available. See Shaughnessy v. Pedreiro, 349 U. S. 48,
51–52 (1955). And in 1961 Congress replaced district court
APA review with initial deportation order review in courts
of appeals. See Act of Sept. 26, 1961, § 5, 75 Stat. 651 (for-
merly codified at 8 U. S. C. § 1105a(a)) (repealed 1996). The
1961 Act specified that federal habeas courts were also avail-
able to hear statutory and constitutional challenges to depor-
tation (and exclusion) orders. See 8 U. S. C. §§ 1105a(a)(10),
(b) (repealed 1996). These statutory changes left habeas un-
touched as the basic method for obtaining review of contin-
ued custody after a deportation order had become final. See
Cheng Fan Kwok v. INS, 392 U. S. 206, 212, 215–216 (1968)
(holding that § 1105a(a) applied only to challenges to determi-
nations made during deportation proceedings and motions to
reopen those proceedings).
More recently, Congress has enacted several statutory
provisions that limit the circumstances in which judicial re-
view of deportation decisions is available. But none applies
here. One provision, 8 U. S. C. § 1231(h) (1994 ed., Supp. V),
simply forbids courts to construe that section “to create
any . . . procedural right or benefit that is legally enforce-

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able”; it does not deprive an alien of the right to rely on 28
U. S. C. § 2241 to challenge detention that is without statu-
tory authority.
Another provision, 8 U. S. C. § 1252(a)(2)(B)(ii) (1994 ed.,
Supp. V), says that “no court shall have jurisdiction to re-
view” decisions “specified . . . to be in the discretion of the
Attorney General.” The aliens here, however, do not seek
review of the Attorney General’s exercise of discretion;
rather, they challenge the extent of the Attorney General’s
authority under the post-removal-period detention statute.
And the extent of that authority is not a matter of discretion.
See also, e. g., § 1226(e) (applicable to certain detention-
related decisions in period preceding entry of final removal
order); § 1231(a)(4)(D) (applicable to assertion of causes or
claims under § 1231(a)(4), which is not at issue here);
§§ 1252(a)(1), (a)(2)(C) (applicable to judicial review of “final
order[s] of removal”); § 1252(g) (applicable to decisions “to
commence proceedings, adjudicate cases, or execute re-
moval orders”).
We conclude that § 2241 habeas corpus proceedings remain
available as a forum for statutory and constitutional chal-
lenges to post-removal-period detention. And we turn to
the merits of the aliens’ claims.
III
The post-removal-period detention statute applies to cer-
tain categories of aliens who have been ordered removed,
namely, inadmissible aliens, criminal aliens, aliens who have
violated their nonimmigrant status conditions, and aliens re-
movable for certain national security or foreign relations
reasons, as well as any alien “who has been determined by
the Attorney General to be a risk to the community or
unlikely to comply with the order of removal.” 8 U. S. C.
§ 1231(a)(6) (1994 ed., Supp. V); see also 8 CFR § 241.4(a)
(2001). It says that an alien who falls into one of these cate-

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gories “may be detained beyond the removal period and, if
released, shall be subject to [certain] terms of supervision.”
8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V).
The Government argues that the statute means what it
literally says. It sets no “limit on the length of time beyond
the removal period that an alien who falls within one of the
Section 1231(a)(6) categories may be detained.” Brief for
Petitioners in No. 00–38, p. 22. Hence, “whether to continue
to detain such an alien and, if so, in what circumstances and
for how long” is up to the Attorney General, not up to the
courts. Ibid.
“[I]t is a cardinal principle” of statutory interpretation,
however, that when an Act of Congress raises “a serious
doubt” as to its constitutionality, “this Court will first ascer-
tain whether a construction of the statute is fairly possible
by which the question may be avoided.” Crowell v. Benson,
285 U. S. 22, 62 (1932); see also United States v. X-Citement
Video, Inc., 513 U. S. 64, 78 (1994); United States v. Jin Fuey
Moy, 241 U. S. 394, 401 (1916); cf. Almendarez-Torres v.
United States, 523 U. S. 224, 238 (1998) (construction of stat-
ute that avoids invalidation best reflects congressional will).
We have read significant limitations into other immigration
statutes in order to avoid their constitutional invalidation.
See United States v. Witkovich, 353 U. S. 194, 195, 202 (1957)
(construing a grant of authority to the Attorney General to
ask aliens whatever questions he “deem[s] fit and proper”
as limited to questions “reasonably calculated to keep the
Attorney General advised regarding the continued availabil-
ity for departure of aliens whose deportation is overdue”).
For similar reasons, we read an implicit limitation into the
statute before us. In our view, the statute, read in light of
the Constitution’s demands, limits an alien’s post-removal-
period detention to a period reasonably necessary to bring
about that alien’s removal from the United States. It does
not permit indefinite detention.

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A
A statute permitting indefinite detention of an alien would
raise a serious constitutional problem. The Fifth Amend-
ment’s Due Process Clause forbids the Government to “de-
priv[e]” any “person . . . of . . . liberty . . . without due process
of law.” Freedom from imprisonment—from government
custody, detention, or other forms of physical restraint—lies
at the heart of the liberty that Clause protects. See Foucha
v. Louisiana, 504 U. S. 71, 80 (1992). And this Court has
said that government detention violates that Clause unless
the detention is ordered in a criminal proceeding with ade-
quate procedural protections, see United States v. Salerno,
481 U. S. 739, 746 (1987), or, in certain special and “narrow”
nonpunitive “circumstances,” Foucha, supra, at 80, where a
special justification, such as harm-threatening mental illness,
outweighs the “individual’s constitutionally protected inter-
est in avoiding physical restraint.” Kansas v. Hendricks,
521 U. S. 346, 356 (1997).
The proceedings at issue here are civil, not criminal, and
we assume that they are nonpunitive in purpose and effect.
There is no sufficiently strong special justification here for
indefinite civil detention—at least as administered under this
statute. The statute, says the Government, has two regula-
tory goals: “ensuring the appearance of aliens at future im-
migration proceedings” and “[p]reventing danger to the com-
munity.” Brief for Respondents in No. 99–7791, p. 24. But
by definition the first justification—preventing flight—is
weak or nonexistent where removal seems a remote possibil-
ity at best. As this Court said in Jackson v. Indiana, 406
U. S. 715 (1972), where detention’s goal is no longer practi-
cally attainable, detention no longer “bear[s] [a] reasonable
relation to the purpose for which the individual [was] com-
mitted.” Id., at 738.
The second justification—protecting the community—does
not necessarily diminish in force over time. But we have

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upheld preventive detention based on dangerousness only
when limited to specially dangerous individuals and subject
to strong procedural protections. Compare Hendricks,
supra, at 368 (upholding scheme that imposes detention upon
“a small segment of particularly dangerous individuals” and
provides “strict procedural safeguards”), and Salerno, supra,
at 747, 750–752 (in upholding pretrial detention, stressing
“stringent time limitations,” the fact that detention is re-
served for the “most serious of crimes,” the requirement of
proof of dangerousness by clear and convincing evidence, and
the presence of judicial safeguards), with Foucha, supra, at
81–83 (striking down insanity-related detention system that
placed burden on detainee to prove nondangerousness). In
cases in which preventive detention is of potentially indefi-
nite duration, we have also demanded that the dangerous-
ness rationale be accompanied by some other special cir-
cumstance, such as mental illness, that helps to create the
danger. See Hendricks, supra, at 358, 368.
The civil confinement here at issue is not limited, but po-
tentially permanent. Cf. Salerno, supra, at 747 (noting that
“maximum length of pretrial detention is limited” by “strin-
gent” requirements); Carlson v. Landon, 342 U. S. 524, 545–
546 (1952) (upholding temporary detention of alien during
deportation proceeding while noting that “problem of . . .
unusual delay” was not present). The provision authorizing
detention does not apply narrowly to “a small segment of
particularly dangerous individuals,” Hendricks, supra, at
368, say, suspected terrorists, but broadly to aliens ordered
removed for many and various reasons, including tourist visa
violations. See 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V)
(referencing § 1227(a)(1)(C)); cf. Hendricks, 521 U. S., at 357–
358 (only individuals with “past sexually violent behavior
and a present mental condition that creates a likelihood of
such conduct in the future” may be detained). And, once
the flight risk justification evaporates, the only special cir-

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cumstance present is the alien’s removable status itself,
which bears no relation to a detainee’s dangerousness. Cf.
id., at 358; Foucha, supra, at 82.
Moreover, the sole procedural protections available to the
alien are found in administrative proceedings, where the
alien bears the burden of proving he is not dangerous, with-
out (in the Government’s view) significant later judicial re-
view. Compare 8 CFR § 241.4(d)(1) (2001) (imposing burden
of proving nondangerousness upon alien) with Foucha,
supra, at 82 (striking down insanity-related detention for
that very reason). This Court has suggested, however, that
the Constitution may well preclude granting “an adminis-
trative body the unreviewable authority to make determi-
nations implicating fundamental rights.” Superintendent,
Mass. Correctional Institution at Walpole v. Hill, 472 U. S.
445, 450 (1985) (O’Connor, J.); see also Crowell, 285 U. S., at
87 (Brandeis, J., dissenting) (“[U]nder certain circumstances,
the constitutional requirement of due process is a require-
ment of judicial process”). The Constitution demands
greater procedural protection even for property. See South
Carolina v. Regan, 465 U. S. 367, 393 (1984) (O’Connor, J.,
concurring in judgment); Phillips v. Commissioner, 283 U. S.
589, 595–597 (1931) (Brandeis, J.). The serious constitu-
tional problem arising out of a statute that, in these circum-
stances, permits an indefinite, perhaps permanent, depriva-
tion of human liberty without any such protection is obvious.
The Government argues that, from a constitutional per-
spective, alien status itself can justify indefinite detention,
and points to Shaughnessy v. United States ex rel. Mezei,
345 U. S. 206 (1953), as support. That case involved a once
lawfully admitted alien who left the United States, returned
after a trip abroad, was refused admission, and was left on
Ellis Island, indefinitely detained there because the Govern-
ment could not find another country to accept him. The
Court held that Mezei’s detention did not violate the Consti-
tution. Id., at 215–216.

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Although Mezei, like the present cases, involves indefinite
detention, it differs from the present cases in a critical re-
spect. As the Court emphasized, the alien’s extended de-
parture from the United States required him to seek entry
into this country once again. His presence on Ellis Island
did not count as entry into the United States. Hence, he
was “treated,” for constitutional purposes, “as if stopped
at the border.” Id., at 213, 215. And that made all the
difference.
The distinction between an alien who has effected an entry
into the United States and one who has never entered runs
throughout immigration law. See Kaplan v. Tod, 267 U. S.
228, 230 (1925) (despite nine years’ presence in the United
States, an “excluded” alien “was still in theory of law at the
boundary line and had gained no foothold in the United
States”); Leng May Ma v. Barber, 357 U. S. 185, 188–190
(1958) (alien “paroled” into the United States pending admis-
sibility had not effected an “entry”). It is well established
that certain constitutional protections available to persons
inside the United States are unavailable to aliens outside of
our geographic borders. See United States v. Verdugo-
Urquidez, 494 U. S. 259, 269 (1990) (Fifth Amendment’s pro-
tections do not extend to aliens outside the territorial bound-
aries); Johnson v. Eisentrager, 339 U. S. 763, 784 (1950)
(same). But once an alien enters the country, the legal
circumstance changes, for the Due Process Clause applies
to all “persons” within the United States, including aliens,
whether their presence here is lawful, unlawful, temporary,
or permanent. See Plyler v. Doe, 457 U. S. 202, 210 (1982);
Mathews v. Diaz, 426 U. S. 67, 77 (1976); Kwong Hai Chew
v. Colding, 344 U. S. 590, 596–598, and n. 5 (1953); Yick Wo
v. Hopkins, 118 U. S. 356, 369 (1886); cf. Mezei, supra, at 212
(“[A]liens who have once passed through our gates, even ille-
gally, may be expelled only after proceedings conforming to
traditional standards of fairness encompassed in due process
of law”). Indeed, this Court has held that the Due Process

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Clause protects an alien subject to a final order of deporta-
tion, see Wong Wing v. United States, 163 U. S. 228, 238
(1896), though the nature of that protection may vary de-
pending upon status and circumstance, see Landon v. Pla-
sencia, 459 U. S. 21, 32–34 (1982); Johnson, supra, at 770.
In Wong Wing, supra, the Court held unconstitutional a
statute that imposed a year of hard labor upon aliens subject
to a final deportation order. That case concerned substan-
tive protections for aliens who had been ordered removed,
not procedural protections for aliens whose removability was
being determined. Cf. post, at 704 (Scalia, J., dissenting).
The Court held that punitive measures could not be imposed
upon aliens ordered removed because “all persons within the
territory of the United States are entitled to the protection”
of the Constitution. 163 U. S., at 238 (citing Yick Wo, supra,
at 369 (holding that equal protection guarantee applies to
Chinese aliens)); see also Witkovich, 353 U. S., at 199, 201
(construing statute which applied to aliens ordered deported
in order to avoid substantive constitutional problems). And
contrary to Justice Scalia’s characterization, see post, at
703–705, in Mezei itself, both this Court’s rejection of Mezei’s
challenge to the procedures by which he was deemed exclud-
able and its rejection of his challenge to continued detention
rested upon a basic territorial distinction. See Mezei,
supra, at 215 (holding that Mezei’s presence on Ellis Island
was not “considered a landing” and did “not affec[t]” his legal
or constitutional status (internal quotation marks omitted)).
In light of this critical distinction between Mezei and the
present cases, Mezei does not offer the Government signifi-
cant support, and we need not consider the aliens’ claim that
subsequent developments have undermined Mezei’s legal
authority. See Brief for Petitioner in No. 99–7791, p. 23;
Brief for Respondent in No. 00–38, pp. 16–17; Brief for
Lawyers’ Committee for Human Rights as Amicus Curiae
in No. 00–38, pp. 15–20. Nor are we aware of any other au-
thority that would support Justice Kennedy’s limitation of

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due process protection for removable aliens to freedom from
detention that is arbitrary or capricious. See post, at 717–
722 (dissenting opinion).
The Government also looks for support to cases holding
that Congress has “plenary power” to create immigration
law, and that the Judicial Branch must defer to Executive
and Legislative Branch decisionmaking in that area. Brief
for Respondents in No. 99–7791, at 17, 20 (citing Harisiades
v. Shaughnessy, 342 U. S. 580, 588–589 (1952)). But that
power is subject to important constitutional limitations.
See INS v. Chadha, 462 U. S. 919, 941–942 (1983) (Congress
must choose “a constitutionally permissible means of imple-
menting” that power); The Chinese Exclusion Case, 130
U. S. 581, 604 (1889) (congressional authority limited “by the
Constitution itself and considerations of public policy and
justice which control, more or less, the conduct of all civilized
nations”). In these cases, we focus upon those limitations.
In doing so, we nowhere deny the right of Congress to re-
move aliens, to subject them to supervision with conditions
when released from detention, or to incarcerate them where
appropriate for violations of those conditions. See 8 U. S. C.
§ 1231(a)(3) (1994 ed., Supp. V) (granting authority to Attor-
ney General to prescribe regulations governing supervi-
sion of aliens not removed within 90 days); § 1253 (imposing
penalties for failure to comply with release conditions).
The question before us is not one of “ ‘confer[ring] on those
admitted the right to remain against the national will’ ”
or “ ‘sufferance of aliens’ ” who should be removed. Post,
at 703 (Scalia, J., dissenting) (emphasis deleted) (quot-
ing Mezei, 345 U. S., at 222–223 (Jackson, J., dissenting)).
Rather, the issue we address is whether aliens that the Gov-
ernment finds itself unable to remove are to be condemned to
an indefinite term of imprisonment within the United States.
Nor do the cases before us require us to consider the politi-
cal branches’ authority to control entry into the United
States. Hence we leave no “unprotected spot in the Na-

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tion’s armor.” Kwong Hai Chew, 344 U. S., at 602. Neither
do we consider terrorism or other special circumstances
where special arguments might be made for forms of preven-
tive detention and for heightened deference to the judg-
ments of the political branches with respect to matters of
national security. The sole foreign policy consideration the
Government mentions here is the concern lest courts inter-
fere with “sensitive” repatriation negotiations. Brief for
Respondents in No. 99–7791, at 21. But neither the Govern-
ment nor the dissents explain how a habeas court’s efforts
to determine the likelihood of repatriation, if handled with
appropriate sensitivity, could make a significant difference in
this respect. See infra, at 699–700.
Finally, the Government argues that, whatever liberty in-
terest the aliens possess, it is “greatly diminished” by their
lack of a legal right to “liv[e] at large in this country.” Brief
for Respondents in No. 99–7791, at 47; see also post, at 703
(Scalia, J., dissenting) (characterizing right at issue as
“right to release into this country”). The choice, however,
is not between imprisonment and the alien “living at large.”
Brief for Respondents in No. 99–7791, at 47. It is between
imprisonment and supervision under release conditions that
may not be violated. See supra, at 695 (citing 8 U. S. C.
§§ 1231(a)(3), 1253 (1994 ed., Supp. V)); 8 CFR § 241.5 (2001)
(establishing conditions of release after removal period).
And, for the reasons we have set forth, we believe that an
alien’s liberty interest is, at the least, strong enough to raise
a serious question as to whether, irrespective of the proce-
dures used, cf. post, at 722–724 (Kennedy, J., dissenting), the
Constitution permits detention that is indefinite and poten-
tially permanent.
B
Despite this constitutional problem, if “Congress has made
its intent” in the statute “clear, ‘we must give effect to that
intent.’ ” Miller v. French, 530 U. S. 327, 336 (2000) (quoting
Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 215 (1962)).

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We cannot find here, however, any clear indication of con-
gressional intent to grant the Attorney General the power
to hold indefinitely in confinement an alien ordered removed.
And that is so whether protecting the community from dan-
gerous aliens is a primary or (as we believe) secondary statu-
tory purpose. Cf. post, at 706, 708–709 (Kennedy, J., dis-
senting). After all, the provision is part of a statute that
has as its basic purpose effectuating an alien’s removal.
Why should we assume that Congress saw the alien’s dan-
gerousness as unrelated to this purpose?
The Government points to the statute’s word “may.” But
while “may” suggests discretion, it does not necessarily sug-
gest unlimited discretion. In that respect the word “may”
is ambiguous. Indeed, if Congress had meant to authorize
long-term detention of unremovable aliens, it certainly could
have spoken in clearer terms. Cf. 8 U. S. C. § 1537(b)(2)(C)
(1994 ed., Supp. V) (“If no country is willing to receive” a
terrorist alien ordered removed, “the Attorney General may,
notwithstanding any other provision of law, retain the alien
in custody” and must review the detention determination
every six months).
The Government points to similar related statutes that re-
quire detention of criminal aliens during removal proceed-
ings and the removal period, and argues that these show that
mandatory detention is the rule while discretionary release
is the narrow exception. See Brief for Petitioners in
No. 00–38, at 26–28 (citing 8 U. S. C. §§ 1226(c), 1231(a)(2)).
But the statute before us applies not only to terrorists and
criminals, but also to ordinary visa violators, see supra, at
691; and, more importantly, post-removal-period detention,
unlike detention pending a determination of removability or
during the subsequent 90-day removal period, has no obvious
termination point.
The Government also points to the statute’s history. That
history catalogs a series of changes, from an initial period
(before 1952) when lower courts had interpreted statutory

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silence, Immigration Act of 1917, ch. 29, §§ 19, 20, 39 Stat.
889, 890, to mean that deportation-related detention must
end within a reasonable time, Spector v. Landon, 209 F. 2d
481, 482 (CA9 1954) (collecting cases); United States ex rel.
Doukas v. Wiley, 160 F. 2d 92, 95 (CA7 1947); United States
ex rel. Ross v. Wallis, 279 F. 401, 403–404 (CA2 1922),
to a period (from the early 1950’s through the late 1980’s)
when the statutes permitted, but did not require, post-
deportation-order detention for up to six months, Immigra-
tion and Nationality Act of 1952, § 242(c), 66 Stat. 210, 8
U. S. C. §§ 1252(c), (d) (1982 ed.); Witkovich, 353 U. S., at 198,
to more recent statutes that have at times mandated and at
other times permitted the post-deportation-order detention
of aliens falling into certain categories such as aggravated
felons, Anti-Drug Abuse Act of 1988, § 7343(a), 102 Stat.
4470, 8 U. S. C. § 1252(a)(2) (mandating detention); Immigra-
tion Act of 1990, § 504(a), 104 Stat. 5049–5050, 8 U. S. C.
§§ 1252(a)(2)(A), (B) (permitting release under certain cir-
cumstances); Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, § 306(a)(4), 105 Stat.
1751, 8 U. S. C. § 1252(a)(2)(B) (same).
In early 1996, Congress explicitly expanded the group of
aliens subject to mandatory detention, eliminating provisions
that permitted release of criminal aliens who had at one time
been lawfully admitted to the United States. Antiterrorism
and Effective Death Penalty Act of 1996, § 439(c), 110 Stat.
1277. And later that year Congress enacted the present
law, which liberalizes pre-existing law by shortening the re-
moval period from six months to 90 days, mandates detention
of certain criminal aliens during the removal proceedings
and for the subsequent 90-day removal period, and adds the
post-removal-period provision here at issue. Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996,
Div. C, §§ 303, 305, 110 Stat. 3009–585, 3009–598 to 3009–599;
8 U. S. C. §§ 1226(c), 1231(a) (1994 ed., Supp. V).

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We have found nothing in the history of these statutes
that clearly demonstrates a congressional intent to author-
ize indefinite, perhaps permanent, detention. Consequently,
interpreting the statute to avoid a serious constitutional
threat, we conclude that, once removal is no longer reason-
ably foreseeable, continued detention is no longer authorized
by statute. See 1 E. Coke, Institutes *70b (“Cessante ra-
tione legis cessat ipse lex”) (the rationale of a legal rule no
longer being applicable, that rule itself no longer applies).
IV
The Government seems to argue that, even under our in-
terpretation of the statute, a federal habeas court would
have to accept the Government’s view about whether the
implicit statutory limitation is satisfied in a particular case,
conducting little or no independent review of the matter. In
our view, that is not so. Whether a set of particular circum-
stances amounts to detention within, or beyond, a period rea-
sonably necessary to secure removal is determinative of
whether the detention is, or is not, pursuant to statutory
authority. The basic federal habeas corpus statute grants
the federal courts authority to answer that question. See 28
U. S. C. § 2241(c)(3) (granting courts authority to determine
whether detention is “in violation of the . . . laws . . . of the
United States”). In doing so the courts carry out what this
Court has described as the “historic purpose of the writ,”
namely, “to relieve detention by executive authorities with-
out judicial trial.” Brown v. Allen, 344 U. S. 443, 533 (1953)
(Jackson, J., concurring in result).
In answering that basic question, the habeas court must
ask whether the detention in question exceeds a period rea-
sonably necessary to secure removal. It should measure
reasonableness primarily in terms of the statute’s basic pur-
pose, namely, assuring the alien’s presence at the moment of
removal. Thus, if removal is not reasonably foreseeable, the
court should hold continued detention unreasonable and no

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longer authorized by statute. In that case, of course, the
alien’s release may and should be conditioned on any of the
various forms of supervised release that are appropriate in
the circumstances, and the alien may no doubt be returned
to custody upon a violation of those conditions. See supra,
at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V);
8 CFR § 241.5 (2001)). And if removal is reasonably foresee-
able, the habeas court should consider the risk of the alien’s
committing further crimes as a factor potentially justifying
confinement within that reasonable removal period. See
supra, at 690–692.
We recognize, as the Government points out, that review
must take appropriate account of the greater immigration-
related expertise of the Executive Branch, of the serious ad-
ministrative needs and concerns inherent in the necessarily
extensive INS efforts to enforce this complex statute, and
the Nation’s need to “speak with one voice” in immigration
matters. Brief for Respondents in No. 99–7791, at 19. But
we believe that courts can take appropriate account of such
matters without abdicating their legal responsibility to re-
view the lawfulness of an alien’s continued detention.
Ordinary principles of judicial review in this area recog-
nize primary Executive Branch responsibility. They counsel
judges to give expert agencies decisionmaking leeway in
matters that invoke their expertise. See Pension Benefit
Guaranty Corporation v. LTV Corp., 496 U. S. 633, 651–652
(1990). They recognize Executive Branch primacy in for-
eign policy matters. See Container Corp. of America v.
Franchise Tax Bd., 463 U. S. 159, 196 (1983). And they con-
sequently require courts to listen with care when the Gov-
ernment’s foreign policy judgments, including, for example,
the status of repatriation negotiations, are at issue, and to
grant the Government appropriate leeway when its judg-
ments rest upon foreign policy expertise.
We realize that recognizing this necessary Executive lee-
way will often call for difficult judgments. In order to limit

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the occasions when courts will need to make them, we think
it practically necessary to recognize some presumptively rea-
sonable period of detention. We have adopted similar pre-
sumptions in other contexts to guide lower court determina-
tions. See Cheff v. Schnackenberg, 384 U. S. 373, 379–380
(1966) (plurality opinion) (adopting rule, based on definition
of “petty offense” in United States Code, that right to jury
trial extends to all cases in which sentence of six months or
greater is imposed); County of Riverside v. McLaughlin, 500
U. S. 44, 56–58 (1991) (O’Connor, J.) (adopting presumption,
based on lower court estimate of time needed to process ar-
restee, that 48-hour delay in probable-cause hearing after
arrest is reasonable, hence constitutionally permissible).
While an argument can be made for confining any pre-
sumption to 90 days, we doubt that when Congress short-
ened the removal period to 90 days in 1996 it believed that
all reasonably foreseeable removals could be accomplished
in that time. We do have reason to believe, however, that
Congress previously doubted the constitutionality of deten-
tion for more than six months. See Juris. Statement in
United States v. Witkovich, O. T. 1956, No. 295, pp. 8–9.
Consequently, for the sake of uniform administration in the
federal courts, we recognize that period. After this 6-
month period, once the alien provides good reason to believe
that there is no significant likelihood of removal in the rea-
sonably foreseeable future, the Government must respond
with evidence sufficient to rebut that showing. And for de-
tention to remain reasonable, as the period of prior post-
removal confinement grows, what counts as the “reasonably
foreseeable future” conversely would have to shrink. 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 been determined that there is no significant likelihood of
removal in the reasonably foreseeable future.

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Scalia, J., dissenting
V
The Fifth Circuit held Zadvydas’ continued detention law-
ful as long as “good faith efforts to effectuate . . . deportation
continue” and Zadvydas failed to show that deportation will
prove “impossible.” 185 F. 3d, at 294, 297. But this stand-
ard would seem to require an alien seeking release to show
the absence of any prospect of removal—no matter how un-
likely or unforeseeable—which demands more than our read-
ing of the statute can bear. The Ninth Circuit held that the
Government was required to release Ma from detention be-
cause there was no reasonable likelihood of his removal in
the foreseeable future. 208 F. 3d, at 831. But its conclusion
may have rested solely upon the “absence” of an “extant or
pending” repatriation agreement without giving due weight
to the likelihood of successful future negotiations. See id.,
at 831, and n. 30. Consequently, we vacate the judgments
below and remand both cases for further proceedings consist-
ent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
dissenting.
I join Part I of Justice Kennedy’s dissent, which estab-
lishes the Attorney General’s clear statutory authority to de-
tain criminal aliens with no specified time limit. I write
separately because I do not believe that, as Justice Ken-
nedy suggests in Part II of his opinion, there may be some
situations in which the courts can order release. I believe
that in both Zadvydas v. Davis, No. 99–7791, and Ashcroft v.
Ma, No. 00–38, a “careful description” of the substantive
right claimed, Reno v. Flores, 507 U. S. 292, 302 (1993), suf-
fices categorically to refute its existence. A criminal alien
under final order of removal who allegedly will not be ac-
cepted by any other country in the reasonably foreseeable
future claims a constitutional right of supervised release into
the United States. This claim can be repackaged as freedom

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Scalia, J., dissenting
from “physical restraint” or freedom from “indefinite deten-
tion,” ante, at 689, 690, but it is at bottom a claimed right of
release into this country by an individual who concededly
has no legal right to be here. There is no such constitutional
right.
Like a criminal alien under final order of removal, an inad-
missible alien at the border has no right to be in the United
States. The Chinese Exclusion Case, 130 U. S. 581, 603
(1889). In Shaughnessy v. United States ex rel. Mezei, 345
U. S. 206 (1953), we upheld potentially indefinite detention of
such an inadmissible alien whom the Government was unable
to return anywhere else. We said that “we [did] not think
that respondent’s continued exclusion deprives him of any
statutory or constitutional right.” Id., at 215. While four
Members of the Court thought that Mezei deserved greater
procedural protections (the Attorney General had refused to
divulge any information as to why Mezei was being detained,
id., at 209), no Justice asserted that Mezei had a substantive
constitutional right to release into this country. And Justice
Jackson’s dissent, joined by Justice Frankfurter, affirma-
tively asserted the opposite, with no contradiction from the
Court: “Due process does not invest any alien with a right
to enter the United States, nor confer on those admitted the
right to remain against the national will. Nothing in the
Constitution requires admission or sufferance of aliens hos-
tile to our scheme of government.” Id., at 222–223 (empha-
sis added). Insofar as a claimed legal right to release into
this country is concerned, an alien under final order of re-
moval stands on an equal footing with an inadmissible alien
at the threshold of entry: He has no such right.
The Court expressly declines to apply or overrule Mezei,
ante, at 694, but attempts to distinguish it—or, I should
rather say, to obscure it in a legal fog. First, the Court
claims that “[t]he distinction between an alien who has ef-
fected an entry into the United States and one who has never
entered runs throughout immigration law.” Ante, at 693.
True enough, but only where that distinction makes perfect

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sense: with regard to the question of what procedures are
necessary to prevent entry, as opposed to what procedures
are necessary to eject a person already in the United States.
See, e. g., Landon v. Plasencia, 459 U. S. 21, 32 (1982) (“Our
cases have frequently suggested that a continuously present
resident alien is entitled to a fair hearing when threatened
with deportation” (emphasis added)). The Court’s citation
of Wong Wing v. United States, 163 U. S. 228 (1896), for the
proposition that we have “held that the Due Process Clause
protects an alien subject to a final order of deportation,”
ante, at 693–694, is arguably relevant. That case at least in-
volved aliens under final order of deportation.* But all it
held is that they could not be subjected to the punishment
of hard labor without a judicial trial. I am sure they cannot
be tortured, as well—but neither prohibition has anything to
do with their right to be released into the United States.
Nor does Wong Wing show that the rights of detained aliens
subject to final order of deportation are different from the
rights of aliens arrested and detained at the border—unless
the Court believes that the detained alien in Mezei could
have been set to hard labor.
Mezei thus stands unexplained and undistinguished by the
Court’s opinion. We are offered no justification why an alien
under a valid and final order of removal—which has totally
extinguished whatever right to presence in this country he
possessed—has any greater due process right to be released
into the country than an alien at the border seeking entry.
*The Court also cites Landon v. Plasencia, 459 U. S. 21 (1982), as
oblique support for the claim that the due process protection afforded
aliens under final order of removal “may vary depending upon status and
circumstance.” Ante, at 694. But that case is entirely inapt because it
did not involve an alien subject to a final order of deportation. The Court
also cites Johnson v. Eisentrager, 339 U. S. 763, 770 (1950), ante, at 694,
but that case is doubly irrelevant: because it dealt not with deportation
but with the military’s detention of enemy aliens outside the territorial
jurisdiction of the United States, and because it rejected habeas corpus
jurisdiction anyway.

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705 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
Congress undoubtedly thought that both groups of aliens—
inadmissible aliens at the threshold and criminal aliens under
final order of removal—could be constitutionally detained on
the same terms, since it provided the authority to detain
both groups in the very same statutory provision, see 8
U. S. C. § 1231(a)(6). Because I believe Mezei controls these
cases, and, like the Court, I also see no reason to reconsider
Mezei, I find no constitutional impediment to the discretion
Congress gave to the Attorney General. Justice Kenne-
dy’s dissent explains the clarity of the detention provision,
and I see no obstacle to following the statute’s plain meaning.
Justice Kennedy, with whom The Chief Justice joins,
and with whom Justice Scalia and Justice Thomas join
as to Part I, dissenting.
The Court says its duty is to avoid a constitutional ques-
tion. It deems the duty performed by interpreting a statute
in obvious disregard of congressional intent; curing the re-
sulting gap by writing a statutory amendment of its own;
committing its own grave constitutional error by arrogating
to the Judicial Branch the power to summon high officers of
the Executive to assess their progress in conducting some of
the Nation’s most sensitive negotiations with foreign powers;
and then likely releasing into our general population at least
hundreds of removable or inadmissible aliens who have been
found by fair procedures to be flight risks, dangers to the
community, or both. Far from avoiding a constitutional
question, the Court’s ruling causes systemic dislocation in
the balance of powers, thus raising serious constitutional
concerns not just for the cases at hand but for the Court’s
own view of its proper authority. Any supposed respect the
Court seeks in not reaching the constitutional question is
outweighed by the intrusive and erroneous exercise of its
own powers. In the guise of judicial restraint the Court
ought not to intrude upon the other branches. The constitu-
tional question the statute presents, it must be acknowl-

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706 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
edged, may be a significant one in some later case; but it
ought not to drive us to an incorrect interpretation of the
statute. The Court having reached the wrong result for the
wrong reason, this respectful dissent is required.
I
The Immigration and Nationality Act (INA), 8 U. S. C.
§ 1101 et seq. (1994 ed. and Supp. V), is straightforward
enough. It provides:
“An alien ordered removed who is inadmissible under
section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who
has been determined by the Attorney General to be a
risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal
period and, if released, shall be subject to the terms of
supervision in paragraph (3).” 8 U. S. C. § 1231(a)(6)
(1994 ed., Supp. V).
By this statute, Congress confers upon the Attorney Gen-
eral discretion to detain an alien ordered removed. It gives
express authorization to detain “beyond the removal pe-
riod.” Ibid. The class of removed aliens detainable under
the section includes aliens who were inadmissible and aliens
subject to final orders of removal, provided they are a risk
to the community or likely to flee. The issue to be deter-
mined is whether the authorization to detain beyond the re-
moval period is subject to the implied, nontextual limitation
that the detention be no longer than reasonably necessary to
effect removal to another country. The majority invokes the
canon of constitutional doubt to read that implied term into
the statute. One can accept the premise that a substantial
constitutional question is presented by the prospect of
lengthy, even unending, detention in some instances; but the
statutory construction the Court adopts should be rejected
in any event. The interpretation has no basis in the lan-

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707 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
guage or structure of the INA and in fact contradicts and
defeats the purpose set forth in the express terms of the
statutory text.
The Court, it is submitted, misunderstands the principle
of constitutional avoidance which it seeks to invoke. The
majority gives a brief bow to the rule that courts must
respect the intention of Congress, ante, at 696, but then
waltzes away from any analysis of the language, structure,
or purpose of the statute. Its analysis is not consistent with
our precedents explaining the limits of the constitutional
doubt rule. The rule allows courts to choose among con-
structions which are “fairly possible,” Crowell v. Benson, 285
U. S. 22, 62 (1932), not to “ ‘press statutory construction to
the point of disingenuous evasion even to avoid a constitu-
tional question,’ ” Salinas v. United States, 522 U. S. 52, 60
(1997) (quoting Seminole Tribe of Fla. v. Florida, 517 U. S.
44, 57, n. 9 (1996)). Were a court to find two interpretations
of equal plausibility, it should choose the construction that
avoids confronting a constitutional question. The majority’s
reading of the statutory authorization to “detai[n] beyond
the removal period,” however, is not plausible. An interpre-
tation which defeats the stated congressional purpose does
not suffice to invoke the constitutional doubt rule, for it is
“plainly contrary to the intent of Congress.” United States
v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994). The ma-
jority announces it will reject the Government’s argument
“that the statute means what it literally says,” ante, at 689,
but then declines to offer any other acceptable textual inter-
pretation. The majority does not demonstrate an ambiguity
in the delegation of the detention power to the Attorney
General. It simply amends the statute to impose a time
limit tied to the progress of negotiations to effect the aliens’
removal. The statute cannot be so construed. The re-
quirement the majority reads into the law simply bears
no relation to the text; and in fact it defeats the statutory
purpose and design.

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708 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
Other provisions in § 1231 itself do link the requirement of
a reasonable time period to the removal process. See, e. g.,
§ 1231(c)(1)(A) (providing that an alien who arrives at a port
of entry “shall be removed immediately on a vessel or air-
craft” unless “it is impracticable” to do so “within a reason-
able time” (emphasis added)); § 1231(c)(3)(A)(ii)(II) (requiring
the “owner of a vessel or aircraft bringing an alien to the
United States [to] pay the costs of detaining and maintaining
the alien . . . for the period of time reasonably necessary
for the owner to arrange for repatriation” (emphasis added)).
That Congress chose to impose the limitation in these sec-
tions and not in § 1231(a)(6) is evidence of its intent to meas-
ure the detention period by other standards. When Con-
gress has made express provisions for the contingency that
repatriation might be difficult or prolonged in other portions
of the statute, it should be presumed that its omission of the
same contingency in the detention section was purposeful.
Indeed, the reasonable time limits in the provisions just
mentioned simply excuse the duty of early removal. They
do not mandate release. An alien within one of these cate-
gories, say, a ship stowaway, would be subject as well to
detention beyond the removal period under § 1231(a)(6), if
the statute is read as written. Under the majority’s view,
however, it appears the alien must be released in six months
even if presenting a real danger to the community.
The 6-month period invented by the Court, even when
modified by its sliding standard of reasonableness for certain
repatriation negotiations, see ante, at 701, makes the statu-
tory purpose to protect the community ineffective. The risk
to the community exists whether or not the repatriation ne-
gotiations have some end in sight; in fact, when the negotia-
tions end, the risk may be greater. The authority to detain
beyond the removal period is to protect the community, not
to negotiate the aliens’ return. The risk to the community
survives repatriation negotiations. To a more limited, but
still significant, extent, so does the concern with flight. It

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709 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
is a fact of international diplomacy that governments and
their policies change; and if repatriation efforts can be re-
vived, the Attorney General has an interest in ensuring the
alien can report so the removal process can begin again.
Congress, moreover, was well aware of the difficulties con-
fronting aliens who are removable but who cannot be repa-
triated. It made special provisions allowing them to be em-
ployed, a privilege denied to other deportable aliens. See
§ 1231(a)(7) (providing an “alien [who] cannot be removed due
to the refusal of all countries designated by the alien or
under this section to receive the alien” still remains eligible
for employment in the United States). Congress’ decision
to ameliorate the condition of aliens subject to a final order
of removal who cannot be repatriated, but who need not be
detained, illustrates a balance in the statutory design. Yet
the Court renders the other side of the balance meaningless.
The risk to the community posed by a removable alien is
a function of a variety of circumstances, circumstances that
do not diminish just because the alien cannot be deported
within some foreseeable time. Those circumstances include
the seriousness of the alien’s past offenses, his or her efforts
at rehabilitation, and some indication from the alien that,
given the real prospect of detention, the alien will conform
his or her conduct. This is the purpose for the periodic re-
view of detention status provided for by the regulations.
See 8 CFR § 241.4 (2001). The Court’s amendment of the
statute reads out of the provision the congressional decision
that dangerousness alone is a sufficient basis for detention,
see ante, at 699 (citing 1 E. Coke, Institutes *70b), and reads
out as well any meaningful structure for supervised release.
The majority is correct to observe that in United States v.
Witkovich, 353 U. S. 194 (1957), the Court “read significant
limitations into” a statute, ante, at 689, but that does not
permit us to avoid the proper reading of the enactment
now before us. In Witkovich, the Court construed former
§ 1252(d), which required an alien under a final order of de-

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710 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
portation “to give information under oath . . . as the Attor-
ney General may deem fit and proper.” 353 U. S., at 195.
The Court held that although the plain language “appears to
confer upon the Attorney General unbounded authority to
require whatever information he deems desirable of aliens
whose deportation has not been effected within six months,”
id., at 199, the constitutional doubt this interpretation would
raise meant the language would be construed as limited to
the provision of information “reasonably calculated to keep
the Attorney General advised regarding the continued avail-
ability for departure of aliens whose deportation is overdue,”
id., at 202. In Witkovich the interpretation of the text was
in aid of the statutory purpose; in the instant cases the inter-
pretation nullifies the statutory purpose. Here the statute
by its own terms permits the Attorney General to consider
factors the Court now makes irrelevant.
The majority’s unanchored interpretation ignores another
indication that the Attorney General’s detention discretion
was not limited to this truncated period. Section 1231(a)(6)
permits continued detention not only of removable aliens but
also of inadmissible aliens, for instance those stopped at the
border before entry. Congress provides for detention of
both categories within the same statutory grant of authority.
Accepting the majority’s interpretation, then, there are two
possibilities, neither of which is sustainable. On the one
hand, it may be that the majority’s rule applies to both cate-
gories of aliens, in which case we are asked to assume that
Congress intended to restrict the discretion it could confer
upon the Attorney General so that all inadmissible aliens
must be allowed into our community within six months. On
the other hand, the majority’s logic might be that inadmissi-
ble and removable aliens can be treated differently. Yet it
is not a plausible construction of § 1231(a)(6) to imply a time
limit as to one class but not to another. The text does
not admit of this possibility. As a result, it is difficult to
see why “[a]liens who have not yet gained initial admission

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711 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
to this country would present a very different question.”
Ante, at 682.
Congress’ power to detain aliens in connection with re-
moval or exclusion, the Court has said, is part of the Legis-
lature’s considerable authority over immigration matters.
See, e. g., Wong Wing v. United States, 163 U. S. 228, 235
(1896) (“Proceedings to exclude or expel would be vain if
those accused could not be held in custody pending the in-
quiry into their true character and while arrangements were
being made for their deportation”). It is reasonable to as-
sume, then, and it is the proper interpretation of the INA
and § 1231(a)(6), that when Congress provided for detention
“beyond the removal period,” it exercised its considerable
power over immigration and delegated to the Attorney Gen-
eral the discretion to detain inadmissible and other remov-
able aliens for as long as they are determined to be either a
flight risk or a danger to the Nation.
The majority’s interpretation, moreover, defeats the very
repatriation goal in which it professes such interest. The
Court rushes to substitute a judicial judgment for the Execu-
tive’s discretion and authority. As the Government repre-
sents to us, judicial orders requiring release of removable
aliens, even on a temporary basis, have the potential to un-
dermine the obvious necessity that the Nation speak with
one voice on immigration and foreign affairs matters. Brief
for Respondents in No. 99–7791, p. 49. The result of the
Court’s rule is that, by refusing to accept repatriation of
their own nationals, other countries can effect the release
of these individuals back into the American community.
Ibid. If their own nationals are now at large in the United
States, the nation of origin may ignore or disclaim responsi-
bility to accept their return. Ibid. The interference with
sensitive foreign relations becomes even more acute where
hostility or tension characterizes the relationship, for other
countries can use the fact of judicially mandated release to
their strategic advantage, refusing the return of their nation-

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712 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
als to force dangerous aliens upon us. One of the more
alarming aspects of the Court’s new venture into foreign
affairs management is the suggestion that the district court
can expand or contract the reasonable period of deten-
tion based on its own assessment of the course of nego-
tiations with foreign powers. The Court says it will allow
the Executive to perform its duties on its own for six months;
after that, foreign relations go into judicially supervised
receivership.
The cases which the Court relies upon to support the im-
position of presumptions are inapposite. The rule an-
nounced in Cheff v. Schnackenberg, 384 U. S. 373 (1966)—
“that sentences exceeding six months for criminal contempt
may not be imposed by federal courts absent a jury trial”—
was based on the definition of a “petty offense” that was still
operable in the United States Code, and was proper “under
the peculiar power of the federal courts to revise sentences
in contempt cases.” Id., at 380. The majority can point to
no similar statutory or judicial source for its authority to
create its own time-based rule in these cases. It cites only
an observation in a brief filed by the Government in United
States v. Witkovich, O. T. 1956, No. 295, pp. 8–9, see ante, at
701, relying, in turn, on doubts expressed in a 1952 Senate
Report concerning detention for longer than six months
under an Act with standards different from, and far less pre-
cise than, those applicable here. In County of Riverside v.
McLaughlin, 500 U. S. 44 (1991), our reasonableness pre-
sumption for delays of less than 48 hours between an arrest
and a probable-cause hearing was, as the majority recog-
nizes, ante, at 701, based on the “Court of Appeals’ determi-
nation of the time required to complete those procedures.”
500 U. S., at 57. Here, as far as we know, the 6-month period
bears no particular relationship to how long it now takes to
deport any group of aliens, or, for that matter, how long it
took in the past to remove. Zadvydas’ case itself demon-
strates that the repatriation process may often take years to

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713 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
negotiate, involving difficult issues of establishing citizenship
and the like. See Brief for Petitioner in No. 99–7791,
pp. 17–20.
It is to be expected that from time to time a foreign power
will adopt a truculent stance with respect to the United
States and other nations. Yet the Court by its time limit,
or presumptive time limit, goes far to undercut the position
of the Executive in repatriation negotiations, thus ill serving
the interest of all foreign nationals of the country concerned.
Law-abiding aliens might wish to return to their home coun-
try, for instance, but the strained relationship caused by the
difficult repatriation talks might prove to be a substantial
obstacle for these aliens as well.
In addition to weakening the hand of our Government,
court ordered release cannot help but encourage dilatory and
obstructive tactics by aliens who, emboldened by the Court’s
new rule, have good reason not to cooperate by making their
own repatriation or transfer seem foreseeable. An alien or-
dered deported also has less incentive to cooperate or to fa-
cilitate expeditious removal when he has been released, even
on a supervised basis, than does an alien held at an Immigra-
tion and Naturalization Service (INS) detention facility.
Neither the alien nor his family would find any urgency in
assisting with a petition to other countries to accept the alien
back if the alien could simply remain in the United States
indefinitely.
The risk to the community posed by the mandatory release
of aliens who are dangerous or a flight risk is far from insub-
stantial; the motivation to protect the citizenry from aliens
determined to be dangerous is central to the immigration
power itself. The Government cites statistical studies show-
ing high recidivism rates for released aliens. One Govern-
ment Accounting Office study cited by Congress in floor de-
bates on the Antiterrorism and Effective Death Penalty Act
of 1996, 110 Stat. 1214, put the figure as high as 77 percent.
142 Cong. Rec. 7972 (1996); Brief for Respondents in

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714 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
No. 99–7791, at 27, n. 13. It seems evident a criminal record
accumulated by an admitted alien during his or her time in
the United States is likely to be a better indicator of risk
than factors relied upon during the INS’s initial decision to
admit or exclude. Aliens ordered deported as the result of
having committed a felony have proved to be dangerous.
Any suggestion that aliens who have completed prison
terms no longer present a danger simply does not accord
with the reality that a significant risk may still exist, as de-
termined by the many factors set forth in the regulations.
See 8 CFR § 241.4(f) (2001). Underworld and terrorist links
are subtle and may be overseas, beyond our jurisdiction to
impose felony charges. Furthermore, the majority’s ration-
ale seems to apply to an alien who flees prosecution or es-
capes from custody in some other country. The fact an alien
can be deemed inadmissible because of fraud at the time of
entry does not necessarily distinguish his or her case from
an alien whose entry was legal. Consider, for example, a
fugitive alien who enters by fraud or stealth and resides here
for five years with significant ties to the community, though
still presenting a danger; contrast him with an alien who
entered lawfully but a month later committed an act making
him removable. Why the Court’s rationale should apply to
the second alien but not the first is not apparent.
The majority cannot come to terms with these distinctions
under its own rationale. The rule the majority creates per-
mits consideration of nothing more than the reasonable fore-
seeability of removal. See ante, at 699–700. That standard
is not only without sound basis in the statutory structure,
but also is not susceptible to customary judicial inquiry.
Cf. INS v. Aguirre-Aguirre, 526 U. S. 415, 425 (1999) (“The
judiciary is not well positioned to shoulder primary respon-
sibility for assessing the likelihood and importance of such
diplomatic repercussions”). The majority does say that the
release of terrorists or other “special circumstances” might
justify “heightened deference to the judgments of the politi-

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715 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
cal branches with respect to matters of national security.”
Ante, at 696. Here the Court appears to rely on an assess-
ment of risk, but this is the very premise it finds inadequate
to sustain the natural reading of the statute. The Court
ought not to reject a rationale in order to deny power to the
Attorney General and then invoke the same rationale to save
its own analysis.
This rule of startling breadth invites potentially perverse
results. Because other nations may refuse to admit aliens
who have committed certain crimes—see, e. g., Brief for Pe-
titioner in No. 99–7791, at 19 (“Lithuanian law precludes
granting of citizenship to persons who, before coming to
Lithuania, have been sentenced in another state to imprison-
ment for a deliberate crime for which criminal liability is
imposed by the laws of the Republic of Lithuania” (citations
and internal quotation marks omitted))—often the aliens
who have committed the most serious crimes will be those
who may be released immediately under the majority’s rule.
An example is presented in the case of Saroeut Ourk, a Cam-
bodian alien determined to be removable and held pending
deportation. See Ourk v. INS, No. 00–35645 (CA9, Sept. 18,
2000), cert. pending, No. 00–987. Ourk was convicted of
rape by use of drugs in conjunction with the kidnaping of a
13-year-old girl; after serving 18 months of his prison term,
he was released on parole but was returned to custody twice
more for parole violations. Pet. for Cert. in No. 00–987,
pp. 4–5. When he was ordered deported and transferred to
the custody of the INS, it is no surprise the INS determined
he was both a flight risk and a danger to the community.
Yet the Court of Appeals for the Ninth Circuit concluded,
based on its earlier decision in Kim Ho Ma v. Reno, 208 F. 3d
815 (2000), that Ourk could no longer be held pending depor-
tation, since removal to Cambodia was not reasonably fore-
seeable. App. to Pet. for Cert. in No. 00–987, pp. 3a–4a.
See also Phetsany v. INS, No. 00–16286 (CA9, Sept. 18, 2000),
cert. pending, No. 00–986 (requiring release of a native and

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716 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
citizen of Laos convicted of attempted, premeditated mur-
der); Mounsaveng v. INS, No. 00–15309 (CA9, Aug. 11, 2000),
cert. pending, No. 00–751* (releasing a citizen of Laos con-
victed of rape of a 15-year-old girl and reckless endanger-
ment for involvement in a fight in which gunshots were
fired); Lim v. Reno, No. 99–36191 (CA9, Aug. 14, 2000), cert.
pending, No. 00–777 (releasing a Cambodian convicted of
rape and robbery); Phuong Phuc Le v. INS, No. 00–16095
(CA9, Sept. 18, 2000), cert. pending, No. 00–1001 (releasing a
Vietnamese citizen convicted of voluntary manslaughter in a
crime involving the attempted murder of two other persons).
Today’s result will ensure these dangerous individuals, and
hundreds more like them, will remain free while the Execu-
tive Branch tries to secure their removal. By contrast,
aliens who violate mere tourist visa requirements, ante, at
691, can in the typical case be held pending deportation on
grounds that a minor offender is more likely to be removed.
There is no reason to suppose Congress intended this odd
result.
The majority’s rule is not limited to aliens once lawfully
admitted. Today’s result may well mandate the release of
those aliens who first gained entry illegally or by fraud,
and, indeed, is broad enough to require even that inadmissi-
ble and excludable aliens detained at the border be set free
in our community. In Rosales-Garcia v. Holland, 238 F. 3d
704, 725 (CA6 2001), for example, Rosales, a Cuban citizen,
arrived in this country during the 1980 Mariel boatlift. Id.,
at 707. Upon arrival in the United States, Rosales was
released into the custody of a relative under the Attorney
General’s authority to parole illegal aliens, see 8 U. S. C.
§ 1182(d)(5)(A), and there he committed multiple crimes for
which he was convicted and imprisoned. 238 F. 3d, at 707–
708. While serving a sentence for burglary and grand lar-
ceny, Rosales escaped from prison, another of the offenses
*[Reporter’s Note: See post, p. 943.]

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717 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
for which he ultimately served time. Id., at 708. The INS
eventually revoked Rosales’ immigration parole, ordered him
deported, and held him pending deportation, subject to peri-
odic consideration for parole under the Cuban Review Plan.
See 8 CFR § 212.12(g)(2) (2001). In reasoning remarkably
similar to the majority’s, the Court of Appeals for the Sixth
Circuit held that the indefinite detention of Rosales violated
Fifth Amendment due process rights, because “the govern-
ment has offered . . . no credible proof that there is any possi-
bility that Cuba may accept Rosales’s return anytime in the
foreseeable future.” 238 F. 3d, at 725. This result—that
Mariel Cubans and other illegal, inadmissible aliens will be
released notwithstanding their criminal history and obvious
flight risk—would seem a necessary consequence of the ma-
jority’s construction of the statute.
The majority’s confidence that the Judiciary will handle
these matters “with appropriate sensitivity,” ante, at 696,
700, allows no meaningful category to confine or explain its
own sweeping rule, provides no justification for wresting this
sovereign power away from the political branches in the first
place, and has no support in judicially manageable standards
for deciding the foreseeability of removal.
It is curious that the majority would approve of continued
detention beyond the 90-day period, or, for that matter, dur-
ing the 90-day period, where deportation is not reasonably
foreseeable. If the INS cannot detain an alien because he
is dangerous, it would seem irrelevant to the Constitution or
to the majority’s presumption that the INS has detained the
alien for only a little while. The reason detention is permit-
ted at all is that a removable alien does not have the same
liberty interest as a citizen does. The Court cannot bring
itself to acknowledge this established proposition. Like-
wise, it is far from evident under the majority’s theory why
the INS can condition and supervise the release of aliens
who are not removable in the reasonably foreseeable future,
or why “the alien may no doubt be returned to custody upon

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718 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
a violation of those conditions.” Ante, at 700. It is true
that threat of revocation of supervised release is necessary
to make the supervised release itself effective, a fact even
counsel for Zadvydas acknowledged. Brief for Petitioner
in No. 99–7791, at 20–21. If that is so, however, the whole
foundation for the Court’s position collapses.
The Court today assumes a role in foreign relations which
is unprecedented, unfortunate, and unwise. Its misstep re-
sults in part from a misunderstanding of the liberty interests
these aliens retain, an issue next to be discussed.
II
The aliens’ claims are substantial; their plight is real.
They face continued detention, perhaps for life, unless it is
shown they no longer present a flight risk or a danger to the
community. In a later case the specific circumstances of a
detention may present a substantial constitutional question.
That is not a reason, however, for framing a rule which
ignores the law governing alien status.
As persons within our jurisdiction, the aliens are entitled
to the protection of the Due Process Clause. Liberty under
the Due Process Clause includes protection against unlawful
or arbitrary personal restraint or detention. The liberty
rights of the aliens before us here are subject to limitations
and conditions not applicable to citizens, however. See, e. g.,
Mathews v. Diaz, 426 U. S. 67, 79–80 (1976) (“In the exercise
of its broad power over naturalization and immigration, Con-
gress regularly makes rules that would be unacceptable if
applied to citizens”). No party to this proceeding contests
the initial premise that the aliens have been determined to
be removable after a fair hearing under lawful and proper
procedures. Section 1229a sets forth the proceedings re-
quired for deciding the inadmissibility or removability of an
alien, including a hearing before an immigration judge, at
which the INS carries “the burden of establishing by clear
and convincing evidence that . . . the alien is deportable.” 8

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719 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
U. S. C. § 1229a(c)(3)(A); see also Berenyi v. District Direc-
tor, INS, 385 U. S. 630, 636 (1967) (“When the Government
seeks to . . . deport a resident alien and send him from our
shores, it carries the heavy burden of proving its case by
clear, unequivocal, and convincing evidence” (internal quo-
tation marks and footnotes omitted)). Aliens ordered re-
moved pursuant to these procedures are given notice of their
right to appeal the decision, 8 U. S. C. § 1229a(c)(4), may
move the immigration judge to reconsider, § 1229a(c)(5), can
seek discretionary cancellation of removal, § 1229b, and can
obtain habeas review of the Attorney General’s decision not
to consider waiver of deportation. See INS v. St. Cyr, ante,
at 314. As a result, aliens like Zadvydas and Ma do not
arrive at their removable status without thorough, substan-
tial procedural safeguards.
The majority likely is correct to say that the distinction
between an alien who entered the United States, as these
aliens did, and one who has not, “runs throughout immigra-
tion law.” Ante, at 693. The distinction is not so clear as
it might seem, however, and I doubt it will suffice to confine
the rationale adopted by the majority. The case which often
comes to mind when one tests the distinction is Shaughnessy
v. United States ex rel. Mezei, 345 U. S. 206 (1953), where
the Court considered the situation of an alien denied entry
and detained on Ellis Island. The detention had no foresee-
able end, for though Mezei was inadmissible to the United
States it seemed no other country would have him. Id., at
209. The case presented a line-drawing problem, asking
whether the alien was in our country; or whether his situa-
tion was the same as if he were still on foreign shores; or
whether he fell in a legal category somewhere in between,
though if this were true, it still would not be clear how to
resolve the case. The Court held the alien had no right to
a hearing to secure his release. Id., at 212–213. (Approxi-
mately 17 months after this Court denied Mezei relief, the
Attorney General released him on parole. It appears Mezei

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720 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
never returned to INS custody, though he was not admitted
to the United States as a citizen or lawful permanent resi-
dent. See Weisselberg, The Exclusion and Detention of
Aliens: Lessons From the Lives of Ellen Knauff and Ignatz
Mezei, 143 U. Pa. L. Rev. 933, 979–984 (1995).)
Here the majority says the earlier presence of these aliens
in the United States distinguishes the cases from Mezei.
For reasons given here it is submitted the majority is incor-
rect in its major conclusions in all events, so even if it were
assumed these aliens are in a class with more rights than
Mezei, it makes no difference. For purposes of this dissent
it is not necessary to rely upon Mezei.
That said, it must be made clear these aliens are in a posi-
tion far different from aliens with a lawful right to remain
here. They are removable, and their rights must be defined
in accordance with that status. The due process analysis
must begin with a “careful description of the asserted right.”
Reno v. Flores, 507 U. S. 292, 302 (1993). We have “long
held that an alien seeking initial admission to the United
States requests a privilege and has no constitutional rights
regarding his application, for the power to admit or exclude
aliens is a sovereign prerogative.” Landon v. Plasencia,
459 U. S. 21, 32 (1982). The same is true for those aliens
like Zadvydas and Ma, who face a final order of removal.
When an alien is removable, he or she has no right under
the basic immigration laws to remain in this country. The
removal orders reflect the determination that the aliens’
ties to this community are insufficient to justify their con-
tinued presence in the United States. An alien’s admis-
sion to this country is conditioned upon compliance with our
laws, and removal is the consequence of a breach of that
understanding.
It is true the Court has accorded more procedural protec-
tions to those aliens admitted to the country than those
stopped at the border, observing that “a continuously pres-
ent alien is entitled to a fair hearing when threatened with

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721 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
deportation.” Ibid.; Mezei, supra, at 212 (“[A]liens who
have once passed through our gates, even illegally, may be
expelled only after proceedings conforming to traditional
standards of fairness encompassed in due process of law. . . .
But an alien on the threshold of initial entry stands on a
different footing: ‘Whatever the procedure authorized by
Congress is, it is due process as far as an alien denied entry
is concerned’ ” (quoting United States ex rel. Knauff v.
Shaughnessy, 338 U. S. 537, 544 (1950))). Removable and
excludable aliens are situated differently before an order of
removal is entered; the removable alien, by virtue of his
continued presence here, possesses an interest in remain-
ing, while the excludable alien seeks only the privilege of
entry.
Still, both removable and inadmissible aliens are entitled
to be free from detention that is arbitrary or capricious.
Where detention is incident to removal, the detention cannot
be justified as punishment nor can the confinement or its con-
ditions be designed in order to punish. See Wong Wing v.
United States, 163 U. S. 228 (1896). This accords with inter-
national views on detention of refugees and asylum seekers.
See Report of the United Nations Working Group on Arbi-
trary Detention, U. N. Doc. E/CN.4/2000/4 (Dec. 28, 1999);
United Nations High Commissioner for Refugees, Guidelines
on Applicable Criteria and Standards Relating to the Deten-
tion on Asylum-Seekers (Feb. 10, 1999). It is neither arbi-
trary nor capricious to detain the aliens when necessary to
avoid the risk of flight or danger to the community.
Whether a due process right is denied when removable
aliens who are flight risks or dangers to the community are
detained turns, then, not on the substantive right to be free,
but on whether there are adequate procedures to review
their cases, allowing persons once subject to detention to
show that through rehabilitation, new appreciation of their
responsibilities, or under other standards, they no longer
present special risks or danger if put at large. The proce-

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722 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
dures to determine and to review the status-required deten-
tion go far toward this objective.
By regulations, promulgated after notice and comment,
the Attorney General has given structure to the discretion
delegated by the INA in order to ensure fairness and regu-
larity in INS detention decisions. First, the INS provides
for an initial postcustody review, before the expiration of the
90-day removal period, at which a district director conducts
a record review. 8 CFR § 241.4 (2001). The alien is entitled
to present any relevant information in support of release,
and the district director has the discretion to interview the
alien for a personal evaluation. § 241.4(h)(1). At the end of
the 90-day period, the alien, if held in custody, is transferred
to a postorder detention unit at INS headquarters, which in
the ordinary course will conduct an initial custody review
within three months of the transfer. § 241.4(k)(2)(ii). If the
INS determines the alien should remain in detention, a two-
member panel of INS officers interviews the alien and makes
a recommendation to INS headquarters. §§ 241.4(i)(1)–(3).
The regulations provide an extensive, nonexhaustive list of
factors that should be considered in the recommendation to
release or further detain. Those include: “[t]he nature and
number of disciplinary infractions”; “the detainee’s criminal
conduct and criminal convictions, including consideration of
the nature and severity of the alien’s convictions, sentences
imposed and time actually served, probation and criminal pa-
role history, evidence of recidivism, and other criminal his-
tory”; “psychiatric and psychological reports pertaining to
the detainee’s mental health”; “[e]vidence of rehabilitation”;
“[f]avorable factors, including ties to the United States such
as the number of close relatives”; “[p]rior immigration viola-
tions and history”; “[t]he likelihood that the alien is a signifi-
cant flight risk or may abscond to avoid removal, including
history of escapes”; and any other probative information.
§ 241.4(f). Another review must occur within one year, with
mandatory evaluations each year thereafter; if the alien re-

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723 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
quests, the INS has the discretion to grant more frequent
reviews. § 241.4(k)(2)(iii). The INS must provide the alien
30-days advance, written notice of custody reviews; and it
must afford the alien an opportunity to submit any relevant
materials for consideration. § 241.4(i)(3)(ii). The alien may
be assisted by a representative of his choice during the re-
view, §§ 241.4(i)(3)(i), (ii), and the INS must provide the alien
with a copy of its decision, including a brief statement of the
reasons for any continued detention, § 241.4(d).
In this context the proper analysis can be informed by our
cases involving parole-eligibility or parole-revocation deter-
minations. In Morrissey v. Brewer, 408 U. S. 471 (1972),
for example, we held some amount of process was due an
individual whose parole was revoked, for “the liberty of a
parolee, although indeterminate, includes many of the core
values of unqualified liberty.” Id., at 482; see also Board
of Pardons v. Allen, 482 U. S. 369 (1987). We rejected in
Morrissey the suggestion that the State could justify parole
revocation “without some informal procedural guarantees,”
408 U. S., at 483, but “[g]iven the previous conviction and
the proper imposition of conditions,” we recognized that “the
State has an overwhelming interest in being able to return
the individual to imprisonment without the burden of a new
adversary criminal trial,” ibid. We held the review process
need not include a judicial officer or formal court proceeding,
but could be conducted by a neutral administrative official.
Id., at 486.
While the majority expresses some concern that the regu-
lations place the burden on the alien to show he is no longer
dangerous, that question could be adjudicated in a later case
raising the issue. It should be noted the procedural protec-
tion here is real, not illusory; and the criteria for obtaining
release are far from insurmountable. Statistics show that
between February 1999 and mid-November 2000 some 6,200
aliens were provided custody reviews before expiration of
the 90-day removal period, and of those aliens about 3,380

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724 ZADVYDAS v. DAVIS
Kennedy, J., dissenting
were released. 65 Fed. Reg. 80285 (2000); Reply Brief for
Petitioners in No. 00–38, p. 15. As a result, although the
alien carries the burden to prove detention is no longer justi-
fied, there is no showing this is an unreasonable burden.
Like the parolee in Morrissey, who was aware of the con-
ditions of his release, the aliens in the instant cases have
notice, constructive or actual, that the INA imposes as a con-
sequence of the commission of certain crimes not only depor-
tation but also the possibility of continued detention in cases
where deportation is not immediately feasible. And like the
prisoner in Board of Pardons v. Allen, who sought federal-
court review of the discretionary decision denying him pa-
role eligibility, removable aliens held pending deportation
have a due process liberty right to have the INS conduct the
review procedures in place. See 482 U. S., at 381. Were
the INS, in an arbitrary or categorical manner, to deny an
alien access to the administrative processes in place to re-
view continued detention, habeas jurisdiction would lie to
redress the due process violation caused by the denial of the
mandated procedures under 8 CFR § 241.4 (2001).
This is not the posture of the instant cases, however. Nei-
ther Zadvydas nor Ma argues that the Attorney General has
applied the procedures in an improper manner; they chal-
lenge only the Attorney General’s authority to detain at all
where removal is no longer foreseeable. The Government
has conceded that habeas jurisdiction is available under 28
U. S. C. § 2241 to review an alien’s challenge to detention fol-
lowing entry of a final order of deportation, Brief for Re-
spondents in No. 99–7791, at 9–10, n. 7; Tr. of Oral Arg. 59,
although it does not detail what the nature of the habeas
review would be. As a result, we need not decide today
whether, and to what extent, a habeas court could review
the Attorney General’s determination that a detained alien
continues to be dangerous or a flight risk. Given the unde-
niable deprivation of liberty caused by the detention, there
might be substantial questions concerning the severity nec-

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725 Cite as: 533 U. S. 678 (2001)
Kennedy, J., dissenting
essary for there to be a community risk; the adequacy of
judicial review in specific cases where it is alleged there is
no justification for concluding an alien is dangerous or a flight
risk; and other issues. These matters are not presented to
us here.
In all events, if judicial review is to be available, the in-
quiry required by the majority focuses on the wrong factors.
Concepts of flight risk or future dangerousness are manage-
able legal categories. See, e. g., Kansas v. Hendricks, 521
U. S. 346 (1997); Foucha v. Louisiana, 504 U. S. 71 (1992).
The majority instead would have the Judiciary review the
status of repatriation negotiations, which, one would have
thought, are the paradigmatic examples of nonjusticiable in-
quiry. See INS v. Aguirre-Aguirre, 526 U. S., at 425. The
inquiry would require the Executive Branch to surrender its
primacy in foreign affairs and submit reports to the courts
respecting its ongoing negotiations in the international
sphere. High officials of the Department of State could be
called on to testify as to the status of these negotiations.
The Court finds this to be a more manageable, more appro-
priate role for the Judiciary than to review a single, discrete
case deciding whether there were fair procedures and ade-
quate judicial safeguards to determine whether an alien is
dangerous to the community so that long-term detention is
justified. The Court’s rule is a serious misconception of the
proper judicial function, and it is not what Congress enacted.
For these reasons, the Court should reverse the judgment
of the Court of Appeals for the Ninth Circuit and affirm the
judgment of the Court of Appeals for the Fifth Circuit. I
dissent.

Job: 533ORD Take: NOT1 Date/Time: 09-24-02 16:36:00
Reporter’s Note
The next page is purposely numbered 901. The numbers between 725
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.