Homa v. Ashcroft

• Decision Date: 27 July 2001
• Docket Number: PETITIONER-APPELLEE,RESPONDENTS-APPELLANTS,No. 99-35976,99-35976
• Citation: 257 F.3d 1095
• Parties: (9th Cir. 2001) KIM HO MA,, v. JOHN D. ASHCROFT, ATTORNEY GENERAL; AND ROBERT S. COLEMAN, JR., DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, SEATTLE, WASHINGTON,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1095

257 F.3d 1095 (9th Cir. 2001)

KIM HO MA, PETITIONER-APPELLEE, v. JOHN D. ASHCROFT, ATTORNEY GENERAL; AND ROBERT S. COLEMAN, JR., DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, SEATTLE, WASHINGTON, RESPONDENTS-APPELLANTS.

No. 99-35976

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

July 27, 2001

[Copyrighted Material Omitted] Quynh Vu, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent-appellant.

Jennifer Wellman (argued) Jay Warren Stansell, Federal Public Defender's Office, Seattle, Washington, for the petitioner-appellee.

George A. Cumming, Jr., San Francisco, California, for amicus Law Professors.

Todd Burns, San Diego, California, for amicus National Association of Criminal Defense Lawyers.

William J. Aceves, San Diego, California, for amici Human Rights Watch, Human Rights Advocates, the Jesuit Refugee Service, the World Organization Against Torture Usa, and the Extradition and Human Rights Committee of the American Branch of the International Law Association.

Carolyn M. Wiggin, Sacramento, California, for amicus Federal Public Defender.

Frank Tse, San Francisco, California, for amicus Southeast Asia Resource Action Center.

On Remand from the United States Supreme Court.

Before: Stephen Reinhardt, David R. Thompson, and Thomas G. Nelson, Circuit Judges.

Reinhardt, Circuit Judge

A. Opinion Following Remand

We previously issued an opinion in this case, which is reported at 208 F.3d 815 (9th Cir. 2000).¹ Following the issuance of our opinion, the Supreme Court granted certiorari, consolidated this case with Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999), and issued an opinion in the consolidated cases sub nom. Zadvydas v. Davis, 121 S.Ct. 2491(2001). In Zadvydas, the Court essentially adopted the reasoning set forth in our opinion, and held that 8 U.S.C. §§ 1231(a)(6) does not authorize detention of an alien, pending removal, indefinitely. The Court further held that following issuance of a final order of removal there is a "presumptively reasonable" period of six months during which the INS may continue to detain an alien it is seeking to remove. Id. at 2505. Thereafter detention is lawful only if there is a "significant likelihood of removal in the reasonably foreseeable future." Id. The Court vacated our decision, however, because, it stated:"[our] 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." Id. Immediately preceding its order, the Court set forth the applicable law as follows:

While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened 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 detention for more than six months. See Juris. Statement of United States in United States v. Witkovich, O. T. 1956, No. 295, pp. 89. 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 reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention 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. " Id.

In response to the Court's order of remand, we now reissue our opinion with the following clarification: Our conclusion that there was no likelihood of Ma's removal in the reasonably foreseeable future was based, and is based, not only on the fact that there was no "extant or pending " repatriation agreement but also on the fact that there was an insufficient showing that future negotiations were likely to lead to a repatriation agreement within the reasonably foreseeable future. In reaching our conclusion we carefully reviewed the record, including the findings of the District Court. The District Court, after full briefing by the parties and the State Department, found that the government's efforts to effect some form of repatriation agreement with Cambodia, Ma's native land, were in an embryonic stage, that the efforts had met with no response from the Cambodian government, and that by our government's own admission, the negotiation of a repatriation agreement with Cambodia depended upon the status of similar negotiations with Vietnam. The District Court further found that discussions with Vietnam had been conducted over the past four or five years without any resolution and that two judges in the same district court had recently determined that the Vietnam discussions had no realistic chance of success. The District Court concluded that there was no "realistic chance" that Ma would be removed and that his detention was "indefinite." The District Court's decision was issued on September 29, 1999, well after the six-month presumptively reasonable period established by the Court in Zadvydas v. Davis, and in fact, at a time when Ma had been detained for more than 11 months following his final order of removal. In our prior opinion, we affirmed, and we reaffirm here, the District Court's finding that, under all the circumstances, there was no likelihood of Ma's removal in the foreseeable future.

In light of the above clarification, and to make our earlier holding clear, we amend our opinion by deleting the sentence, 208 F.3d at 831, that reads:

In the absence of a repatriation agreement, extant or pending, we must affirm the district court's finding that there is no reasonable likelihood that the INS will be able to accomplish Ma's removal.

We substitute in its place the following sentence:

Under these circumstances, we affirm the district court's finding that there is no reasonable likelihood that the INS will be able to accomplish Ma's removal in the reasonably foreseeable future.

Immediately after the above sentence, we add the following sentence: "Ma's detention has already lasted well beyond the six-month `presumptively reasonable' period established by the Supreme Court in Zadvydas."

In addition, we amend our opinion to incorporate throughout the 6-month "presumptively reasonable" period adopted by the Supreme Court in Zadvydas by adopting the changes described below. We substitute the phrase "for more than a `reasonable period' beyond the removal period " for the phrase "beyond that statutory removal period" at the end of the sentence, 208 F.3d. at 819, which reads:

More specifically, in cases like Ma's, in which there is no reasonable likelihood that the alien will be removed in the reasonably foreseeable future, we hold that it may not detain the alien beyond that statutory removal period.

We add the following footnote at the end of that sentence, 208 F.3d at 819:

Footnote 5. In our original opinion, we indicated that the determination of a "reasonable period" beyond the 90-day statutory removal period would be unique to the circumstances of each individual case. However, in Zadvydas, 121 S.Ct. at 2505, the Supreme Court read the statute to permit a "presumptively reasonable" detention period of six months after a final order of removal -that is, three months after the statutory removal period has ended. Thereafter, as the Court stated, "for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the reasonably foreseeable future conversely would have to shrink." Id. Accordingly, all references in this opinion to the "reasonable period" or "reasonable time period" beyond the 90-day statutory period shall be understood to incorporate the additional three months, and thereby to refer to a six-month "presumptively reasonable" detention period.

We substitute the phrase "for more than a reasonable period beyond that removal period" for the phrase "beyond the statutory removal period" in the following sentence, 208 F.3d at 822:

In cases in which an alien has already entered the United States and there is no reasonable likelihood that a foreign government will accept the alien's return in the reasonably foreseeable future, we conclude that the statute does not permit the Attorney General to hold the alien beyond the statutory removal period.

We add the following internal cross-reference after that sentence: "See n. 5, supra." We substitute the phrase "that time"for the phrase "that statutory removal period" in the sentence, 208 F.3d at 827, that reads:

We believe the construction of §§ 1231(a)(6) we adopt -that the INS may detain aliens who have entered the country but have been ordered removed only for "a reasonable time" beyond the ninety day statutory removal period, and specifically, that such aliens may not be detained beyond that statutory removal period if there is no reasonable likelihood that their country of origin will permit their return in the reasonably foreseeable future -to be the most plausible reading of the statute.

We substitute the phrase "presumptively reasonable detention period" for the phrase "statutory removal period. 8 U.S.C. §§1231(a)(1)(A)," in the sentence, 208 F.3d 828, which reads:

Because, here, there is no repatriation agreement and no demonstration of a reasonable likelihood that one will be entered into in the near future, we believe it to be not only the prudent but the correct interpretation of the statute to hold that Ma and...