Clark v. Martinez, 2005 U.S. LEXIS 627.

On writ of certiorari to the United States Supreme Court, two cases from the Ninth and Eleventh Circuits came before the Court for review, both concerning the legality of the length of detainment following orders of removal. In both cases, Cuban nationals were found inadmissible under 8 U.S.C. § 1182 and were ordered removed, but were unable to be deported because Cuba was unwilling to receive them. Both were detained pursuant to the 90-day removal period allowed under 8 U.S.C. § 1231(a)(1)(A), and both were then held substantially beyond the 90-day period. Section 1231(a)(1)(A) states that if any alien is found inadmissible and is ordered removed, the Secretary of Homeland Security “shall remove the alien from the United States within a period of 90 days.” Furthermore, the Secretary has the authority to detain an inadmissible alien subject to the removal order for the length of the 90-day removal period.

Both aliens filed habeas corpus petitions challenging the legality of their continued detentions beyond the 90-day period. In one case, the Ninth Circuit affirmed the Oregon District Court in finding that removal was not reasonably foreseeable, and ordering that the alien be released under conditions that the INS felt were appropriate. In the other case, the Eleventh Circuit affirmed the decision of the Florida District Court, which also found that removal would not occur in the foreseeable future, but nonetheless denied the petition and allowed the detainment to continue.

On review of these two contradictory findings, the Supreme Court considered 8 U.S.C. § 1231(a)(6), which provides in relevant part:

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 [Secretary] 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).

The Court stated that § 1231(a)(6) applies to three categories of aliens: (1) those ordered removed who are inadmissible under § 1182; (2) those ordered removed and who are removable under §§ 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4); and (3) those ordered removed whom the Secretary determines to be either a risk to the community or a flight risk. The Court then applied the prior decision of Zadvydas v. Davis, 533 U.S. 678 (2001), where it was determined that § 1231(a)(6) authorized the Secretary to detain aliens in the second category, those ordered removed and who are removable §§ 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4), only for as long as “reasonably necessary” to remove them from the country.

The Supreme Court determined that the same interpretation from Zadvydas should also apply to aliens in the first category, that is, the interpretation would apply to inadmissible aliens as well as removable aliens. The Court then held that the Secretary may detain inadmissible aliens beyond the 90-day removal period, but only for so long as reasonably necessary to achieve removal. Additionally, the Court held that the presumptive period during which the alien’s detention is reasonably necessary to effectuate removal is six months, and the alien must be conditionally released after that time if the alien can demonstrate that there is no significant likelihood of removal in the reasonably foreseeable future.

Here, the two aliens were detained well beyond six months after their removal orders became final. The lower courts in both instances found that the Government brought forward nothing to indicate that a substantial likelihood or removal existed and that removal to Cuba was not reasonably foreseeable. As such, the Supreme Court reversed the Eleventh Circuit and affirmed the Ninth, holding that the Secretary may detain inadmissible aliens beyond the 90-day removal period, but only for so long as reasonably necessary to achieve removal. That period is presumptively six months, but the alien can obtain conditional release upon a showing that there is no significant likelihood of removal in the reasonably foreseeable future.