185 F.3d 279 (5th Cir. 1999), 160;

Docket Nº:160;
Citation:185 F.3d 279
Party Name:Zadvydas v Underdown
Case Date:August 11, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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185 F.3d 279 (5th Cir. 1999)

KESTUTIS ZADVYDAS, Petitioner-Appellee,



No. 97-31345


August 11, 1999

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Appeal from the United States District Court for the Eastern District of Louisiana

Before GARWOOD, DAVIS, and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellee Kestutis Zadvydas (Zadvydas) applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He alleged that since he is a stateless person and there is no possibility of effectuating his deportation to another country, his continued detention by respondents-appellants the Immigration and Naturalization Service (INS) and its district director (whose successor, Lynne Underdown, has been substituted as a party respondent-appellee) constitutes punishment without due process of law and thus violates his due process rights and international law. The district court granted the writ and ordered Zadvydas released from custody. Zadvydas v. Caplinger, 986 F.Supp. 1011 (E.D. La. 1997). We reverse.

Facts and Proceedings Below

Zadvydas was born in a displaced persons camp in Germany in 1948. In 1956 he immigrated with his family to America, and became a resident alien. Despite his long residence in this country, he never became a citizen.1 Starting as a youth, Zadvydas developed an extensive criminal history. His FBI records indicate numerous arrests. In 1966 he was convicted of attempted robbery in New York. In 1974 he was again convicted in New York, this time of attempted burglary. The INS began the process of deportation in 1977, based on these two convictions. While those proceedings were pending, Zadvydas was released into the community. After a lengthy delay, Zadvydas' motion for relief from deportation under 8 U.S.C. § 1182(c) was denied on February 10, 1982. Facing a hearing before an immigration judge that year, Zadvydas disappeared. Over the next decade, the INS failed to locate Zadvydas.

In 1987, authorities in Virginia arrested Zadvydas for possessing 474 grams of cocaine with intent to distribute. According to his own testimony, Zadvydas used cocaine at that time. While on bail awaiting trial in Virginia, Zadvydas fled to Houston, Texas. After several years in Texas, Zadvydas voluntarily presented himself to Texas authorities, and he was subsequently tried in Virginia on the 1987 distribution charge. In 1992, he was convicted and sentenced to sixteen years' imprisonment, with six years suspended. After serving only two years, Virginia released him on parole. The INS promptly took him into custody and reinitiated deportation proceedings. In March 1994 the immigration judge ordered that Zadvydas should be detained without bond during the deportation process based on his history of flight from authorities. Zadvydas appealed that determination, but the Board of Immigration Appeals (BIA) affirmed the immigration judge.

In 1994 Zadvydas appeared before the immigration judge. He admitted his past criminal history, conceded deportability, and seemed to indicate that he was a German citizen. He applied for relief from deportation under 8 U.S.C. § 1182(c). In May 1994 the immigration judge denied relief from deportation and ordered Zadvydas to be deported. Zadvydas did not appeal that decision, does not challenge it here, and it has become final. The INS immediately contacted the German government to arrange for deportation. German officials, however, proved unwilling to accept Zadvydas. They took the position that under German law the mere fact Zadvydas was born on German soil did not automatically entitle him to German citizenship. The INS, while continuing to

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forward requests to Germany, contacted Lithuanian authorities in July 1994. The Lithuanians tersely responded that they could not accept Zadvydas since he was neither a citizen nor a permanent resident of Lithuania.

In May 1995, after the INS had forwarded to German authorities all the material they believed was necessary to establish Zadvydas' citizenship, the German authorities declined to accept Zadvydas. Referencing extensive research that they assertedly had conducted, they declared that Zadvydas was not a German citizen and thus could not be deported to Germany. Subsequent communications with the German authorities apparently did not generate a response. Based on the fact that Zadvydas' wife is a citizen of the Dominican Republic, the INS apparently wrote Dominican authorities. No Dominican response is in the record. In October 1996, the INS again contacted Lithuania to ascertain whether Zadvydas could claim citizenship. The Lithuanian government has since responded by stating that Zadvydas, while not one of their citizens, could apply for citizenship if he could prove that both of his parents were born in Lithuania prior to 1940. In letters dated October 26, 1998, and March 25, 1999, the Lithuanian government has broadly outlined the type of documentation it would require, and stated that Zadvydas should present such materials to it.

In September 1995, Zadvydas filed the instant petition for a writ of habeas corpus under section 2241, claiming that his continued detention violated the Eighth Amendment, the due process clause, and international law. In February 1997 the magistrate judge recommended denial of Zadvydas' habeas petition. Zadvydas filed objections. In November 1997 the district court found that continued detention of Zadvydas was unconstitutional. The court rejected all of Zadvydas' challenges to his deportation and the denial of his request for relief under section 1182(c), and it further ruled that his continued detention was authorized by 8 U.S.C. former § 1252(a)(2)(B) because he had not shown "that he is not a threat to the community and that he is likely to appear at any scheduled hearing." 986 F.Supp. at 1024.2 However, concluding that Zadvydas was "stateless" and thus could "never be deported because there is no place to send him", the court held that Zadvydas could not be "permanently incarcerated" without violating his substantive due process rights. While the INS had procedures to review continuing detention, and Zadvydas thus could possibly be released in the future, the court discounted this possibility, finding that in practice there was "no end in sight" for Zadvydas' detention. 986 F.Supp. at 1027. The court ordered Zadvydas released under a list of conditions it generated. The INS timely appealed.3 While this appeal has been pending, Zadvydas seems to have complied with the district court's release conditions and has apparently conducted himself as a productive member of society.


The district court found that given the uncertainty that any nation would be found that would accept Zadvydas, his

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detention was indefinite. It further found that such indefinite detention violated his substantive due process rights. The law, at least in this Circuit, regarding the long-term detention of excludable aliens pending deportation is clear-such detention is allowable. See, e.g., Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1448 (5th Cir. 1993). Zadvydas argues, however, that these cases can have no application to his status since he is a resident alien and thus can claim enhanced constitutional protection. He maintains that even if the government may detain an excludable alien indefinitely, it violates substantive due process to inflict such detention on a resident alien such as himself.4 The INS argues, however, that once a resident alien such as Zadvydas is-concededly in adherence with procedural and substantive due process-ordered deported and that order becomes final, the resident alien may claim no greater rights than an excludable alien in like circumstances. To the extent that the circumstances of this case require us to follow their logic, we agree with the INS.

I. Preliminary Matters

As a threshold matter, we must address the question of this Court's jurisdiction. Although the INS contested the district court's jurisdiction below, it has not done so on appeal. We must nevertheless examine our own jurisdiction independently before proceeding. See Arizonans for Official English v. Arizona, 117 S.Ct. 1055, 1072 (1997). Congress has clearly indicated that it desires minimal judicial intrusion into deportation decisions. The strictest jurisdictional standard under which Zadvydas' claims could be evaluated are provided by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 309-546, which repealed the prior judicial review schemes governing immigration and substituted new provisions potentially applicable to Zadvydas. See 8 U.S.C. § 1252(g).5 The Supreme Court has recently construed the jurisdictional effect of section 1252(g). See Reno v. American-Arab Anti-Discrimination Committee, 119 S.Ct. 936 (1999). In Reno, the Court held that the enactment was not a general bar, but rather limited judicial review of a narrow class of discretionary executive actions. By the statute's terms, one of the actions immune from review is an action to "execute removal orders against any alien under this chapter." In a recent case, the Seventh Circuit has held that these provisions do not remove our jurisdiction to hear a section 2241 habeas petition challenging the validity of the statutes authorizing the detention of aliens. This is because the detention, while intimately related to efforts to deport, is not itself a decision to "execute removal orders" and thus does not implicate section 1252(g) under Reno. See Parra v. Perryman, 172 F.3d 954, 957 (7th

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Cir. 1999). We agree, and find jurisdiction to hear this appeal.


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