Tuan Thai v. Ashcroft, 03-35626.

• Decision Date: 03 May 2004
• Docket Number: No. 03-35626.,03-35626.
• Parties: TUAN THAI, also known as Anh Tuan Thai, also known as Anh Thai Tuan, Petitioner-Appellee, v. John ASHCROFT, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.3d 790

TUAN THAI, also known as Anh Tuan Thai, also known as Anh Thai Tuan, Petitioner-Appellee, v. John ASHCROFT, Attorney General,^* Respondent-Appellant.

No. 03-35626.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 6, 2004.

Filed May 3, 2004.

Jacqueline R. Dryden, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent-appellant.

Jay W. Stansell, Assistant Federal Public Defender, Seattle, WA, for the petitioner-appellee.

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-02-02543-TSZ.

Before HUG, GRABER, and CLIFTON, Circuit Judges.

CLIFTON, Circuit Judge:

This case requires us to consider whether 8 U.S.C. § 1231(a)(6), as construed by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), authorizes the continued and potentially indefinite detention of an alien based on a determination that the alien's mental illness makes him specially dangerous to the community. We conclude that the statute does not provide such authority.

When a removal order has been entered against an alien, § 1231(a)(6) authorizes the Government to detain that alien beyond the statutory removal period. The Government's ability to detain an alien pursuant to § 1231(a)(6) is not unlimited, however. In Zadvydas, the Supreme Court held that, in order to avoid a "serious constitutional threat," § 1231(a)(6) must be construed as limiting an alien's post-removal-period detention to the period reasonably necessary to remove the alien from the United States. Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491.

The Court further held that the statute did not authorize extended detention of an alien subject to an order of removal if it is not reasonably foreseeable that the removal will be accomplished. Id. In the case at hand, Petitioner Tuan Thai's post-removal-period detention has exceeded sixteen months despite the fact that his removal is not reasonably foreseeable. The Government contends that Thai's continued detention is nonetheless permissible because the Zadvydas ruling recognized an exception that allows for the indefinite detention of an alien under special circumstances, such as the existence of a mental illness which makes the alien a danger to the community. We read Zadvydas differently and hold that the Supreme Court's statutory construction of § 1231(a)(6) does not authorize the continued detention of Thai, and we therefore affirm the District Court's grant of Thai's habeas petition.

I. BACKGROUND

Petitioner Thai is a native and citizen of Vietnam. Thai left Vietnam without a Vietnamese passport or exit visa and entered the United States as a lawful permanent resident pursuant to the Amerasian Immigration Act.¹ Since his entry into the United States in 1996, Thai has established a record as a violent criminal, accumulating convictions for assault, harassment, and third-degree rape. When Thai finished serving his state sentences, the Government took him into custody and initiated removal proceedings.

After a hearing, the Immigration Judge found Thai removable due to his aggravated felony convictions and ordered Thai removed to Vietnam. Thai waived his right to appeal and the order of removal became final on November 1, 2002. The validity of that removal order is not at issue here.

The Government requested travel documents for Thai from the Consulate General of Vietnam. Due to the lack of a repatriation agreement between the United States and Vietnam, however, Vietnamese officials have not responded. The Government does not dispute that Thai's removal is not reasonably foreseeable at this point.

In December 2002, Thai filed a habeas petition in the District Court pursuant to 28 U.S.C. § 2241, challenging his continuing detention under Zadvydas. After hearing oral argument, the District Court granted Thai's habeas petition and ordered his release. In its ruling, the District Court noted that the Government "cannot offer any evidence that the government of Vietnam will issue travel documents in the reasonably foreseeable future." The District Court concluded that because Zadvydas had interpreted § 1231(a)(6) to forbid continued detention once the alien's removal was determined to be unlikely in the reasonably foreseeable future, the detention regulations upon which the Government relied were not valid.²

The Government appealed and this court granted the Government's motion for a stay of the District Court's order pending the appeal's resolution. Meanwhile, the Government initiated continued detention proceedings against Thai pursuant to 8 C.F.R. §§ 241.14(f), et seq., citing its belief that his release might pose a danger to the community.³ The § 241.14(f) proceedings were designed to assess Thai's mental health and future dangerousness, and after a series of hearings, the Immigration Judge concluded that the Government had established by clear and convincing evidence that Thai's release would pose a special danger to the public, and that Thai's continued and potentially indefinite detention was therefore justified.

II. DISCUSSION

This court reviews de novo a district court's decision to grant or deny a petition for writ of habeas corpus. See Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.2002).

A. 8 U.S.C. § 1231(a)(6)

When a final order of removal has been entered against an alien, the Government must facilitate that alien's removal within a 90-day "removal period." See Xi v. INS, 298 F.3d 832, 834-35 (9th Cir.2002) (citing 8 U.S.C. § 1231(a)(1)). During this removal period, the Government must detain that alien until he or she is actually removed. See 8 U.S.C. § 1231(a)(2). In situations where removal cannot be accomplished within 90 days, detention beyond the removal period is authorized by § 1231(a)(6), which provides:

An alien ordered removed who is inadmissible under section 1182 of this title, removable [for violations of nonimmigrant status or conditions of entry, for committing a criminal offense, or for reasons of national security or foreign policy,] 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).

In Zadvydas, the Supreme Court considered the habeas petitions of Kestutis Zadvydas and Kim Ho Ma, two resident aliens who challenged the constitutionality of their § 1231(a)(6) detentions. Although no country was willing to accept either alien once they were ordered removed, the Government continued to detain Zadvydas and Ma for years after the expiration of § 1231(a)(1)'s 90-day removal period. See Zadvydas, 533 U.S. at 684-86, 121 S.Ct. 2491. The Zadvydas Court reasoned that "[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem" under the Fifth Amendment's Due Process Clause. Id. at 690, 121 S.Ct. 2491. Applying the constitutional avoidance doctrine in order to avoid this potential problem, Zadvydas held that § 1231(a)(6), "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" and "does not permit indefinite detention." Id. at 689, 121 S.Ct. 2491. Zadvydas then concluded that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by [§ 1231(a)(6)]." Id. at 699, 121 S.Ct. 2491.

The Government acknowledges that, under Zadvydas, a presumptively reasonable period of post-removal detention is limited to six months, and that after this period expires, an alien must be released if there is no significant likelihood of removal in the reasonably foreseeable future. Thai's period of post-removal-period detention reached six months as of May 2003. Nonetheless, the Government contends that Zadvydas "contains an exception to the presumptive six-month rule for particularly dangerous individuals where there are circumstances, such as mental illness, that help to create the danger." The Government argues that the regulations in 8 C.F.R. §§ 241.14, et seq. — which provide for the detention of aliens deemed "specially dangerous" — were specifically promulgated in light of this alleged exception and, thus, that Thai's continued and potentially indefinite detention is authorized.

B. The Zadvydas decision

The Government's contention that Zadvydas recognized an exception for "special circumstances" applicable to Thai is premised upon the Government's interpretation of two separate passages in the opinion. We will address each passage in turn.

1. "Harm-threatening Mental Illness"

According to the Government, Zadvydas held that continued post-removal-period detention of an alien beyond the presumptively reasonable period of six months was not authorized under § 1231(a)(6) unless there exist certain "special and narrow nonpunitive circumstances" in which a special justification, such as the presence of a "harm-threatening mental illness," outweighs the alien's constitutionally protected interest in avoiding physical restraint.

The passage that the Government quotes, however, immediately followed a statement in the Zadvydas opinion that there was "serious doubt" as to 8 U.S.C. § 1231(a)(6)'s constitutionality, and that the Court had to "`first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.'" Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491 (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)). It was at the outset of this exercise in constitutional avoidance that the Supreme Court stated:

A statute permitting indefinite detention of an alien would raise a serious constitutional problem.... And this Court has said...