With public attention greatly heightened in the wake of the September 11, 2001 terrorist attacks, as never before, the nation's eyes are focused upon U.S. immigration laws and policies. (1) However, as lawmakers and federal agencies reevaluate and revise the approaches to the complex questions surrounding immigration, they must also contend with the Supreme Court decision in Zadvydas v. Davis. (2)
Zadvydas deals with the issues concerning the governmental power to detain deportable aliens that no other country will accept. (3) Justice Stephen Breyer, writing for a 5-4 majority, ruled that the government did not have the power to indefinitely hold the aliens because of implicit reasonableness limitations in the controlling statutes. (4) Furthermore, Justice Breyer imposed a presumption that six months of detention is the limit for a reasonable detainment. (5) After six months, if the alien shows that there is "no significant likelihood of removal in the reasonably foreseeable future," the government must offer evidence to rebut that showing to prevent the alien from being released. (6)
This Note contends that the Court's opinion is flawed in three critical respects. The majority's construction of the statute as containing implicit reasonableness limitations is contrary to the statute's plain language, contradicts congressional intent, and results in odd and unintended consequences. (7) The second problem stems from the Court's affirmation of the constitutional significance of territorial distinctions. (8) This differentiation perpetuates an unstable, tiered system of alien rights that grants minimal and unclear rights to aliens stopped at the border, while giving broad constitutional protection to those able to gain entry, legally or illegally. (9) The third problem, the creation of a presumptively reasonable detention period, not only rests upon weak precedential footing, (10) but also, by limiting the Attorney General's ability to detain dangerous aliens, greatly diminishes the capacity of the Immigration and Naturalization Service (INS) to fulfill the statute's goal of community protection. (11)
This Note also discusses judicial, administrative, and legislative reactions to Zadvydas. Aliens have petitioned the courts to extend reasonableness limitations to the detention of inadmissible aliens (12) and to pre-removal detention. (13) Various circuit courts have afforded greater protection to aliens during removal proceedings. (14) For example, relying upon Zadvydas's affirmation of substantial due process rights to removal of aliens, some courts have found that mandatory pre-removal detention is unconstitutional and have attacked the controlling statute. (15) With the invalidation of this federal immigration law in various circuits, (16) the scope of the Zadvydas decision will continue to be contested across the nation, and the Supreme Court may once again need to speak to these issues.
The INS has enacted new rules that amend the custody review process for the detention of aliens ordered removed. (17) Generally, these rules call for the release of aliens as mandated by Zadvydas. (18) However, the INS has mitigated the negative effects of the Court's decision by continuing the detention of certain dangerous aliens, (19) and by requiring parole restrictions for released aliens. (20)
Congress, in enacting the USA Patriot Act, (21) included a provision that mirrors the Court's holding concerning the presumably reasonable period. (22) Congress, however, granted the Attorney General the discretion to consider the danger an alien poses to the community when contemplating the alien's release. (23) While the USA Patriot Act is limited to aliens posing a terrorist or national security threat, (24) these provisions can be viewed as an acceptance of Zadvydas's reasonableness limitations and as a rejection of the Court's position on extended detention for dangerous aliens. …