Xi v. U.S. I.N.S.

• Citation: 298 F.3d 832
• Decision Date: 01 August 2002
• Docket Number: No. 01-35867.,01-35867.
• Parties: Lin Guo XI, Petitioner-Appellant, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Opinion, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

298 F.3d 832

Lin Guo XI, Petitioner-Appellant, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Opinion, Respondent-Appellee.

No. 01-35867.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 2002.

Filed August 1, 2002.

Jay W. Stansell, Assistant Public Defender and Michelle Sweet, Staff Attorney, Federal Public Defender's Office, Seattle, WA, for the petitioner.

Brian G. Slocum, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for the respondent.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding.

Before RYMER, McKEOWN and GOULD, Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

Just a year ago the Supreme Court held that 8 U.S.C. § 1231(a)(6) "limits an alien's post-removal-period detention" to a reasonable time period and "does not permit indefinite detention" by the Immigration and Naturalization Service ("INS"). Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). We are now presented with the question of whether this statute bears the same meaning for an individual deemed inadmissible to the United States under 8 U.S.C. § 1182. The answer is yes. Our analysis of § 1231(a)(6) begins and ends with Zadvydas. Because the Supreme Court construed the statute, we are bound by that framework and thus are not called upon to address the scope of any constitutional claims of an inadmissible alien. Indeed, like the Supreme Court, we recognize that the result might be different were this a constitutional question. The petitioner here, Lin Guo Xi, falls squarely within the ambit of § 1231(a)(6) and, consequently, within the Supreme Court's holding in Zadvydas. We therefore reverse the district court's dismissal of Lin's habeas petition. This result does not, however, mean that Lin will be released automatically. Instead, on remand Lin will be entitled to supervised release if he can demonstrate that there is no significant likelihood of his removal to China in the reasonably foreseeable future.

BACKGROUND

Lin Guo Xi, a citizen of China, fled his homeland for the Northern Mariana Islands in June 1997. Lin was never legally admitted to the United States. The United States Coast Guard apprehended him off the coast of Guam on a boat that was being used to smuggle aliens in violation of United States immigration laws. Lin pleaded guilty to the smuggling charge. At the conclusion of his six-month sentence, Lin was detained by the INS pending the outcome of removal proceedings. Lin was transferred from the detention facility in Guam to a facility in Seattle, Washington.

Lin applied for asylum based on his opposition to China's family planning laws. An immigration judge denied Lin's claim and issued a removal order which became final in May 1999. It is disputed how many times the INS attempted to secure travel documents for Lin's return trip to China and how many times he refused to cooperate. It is, however, undisputed that in February 2001, Lin agreed to cooperate with the INS in obtaining travel documents. A request for travel documents was accordingly submitted to the Chinese consulate, which has not yet responded. The parties dispute whether China accepts the return of its nationals who have been ordered removed from the United States.

When the INS first reviewed Lin's detention status in February 2001, it found that Lin had a place to stay and an employment prospect in Washington state, but concluded that these facts were of no significance because "[t]he Chinese Consulate regularly issues travel documents to their citizens in I.N.S. custody." The reviewing officer thus recommended that Lin be kept in detention. After the District Director of the INS agreed with this recommendation, Lin filed a habeas petition pursuant to 28 U.S.C. § 2241. Ten days before the Supreme Court's decision in Zadvydas, the district court denied Lin's petition. Lin filed a motion for reconsideration, citing the new decision. The district court issued a minute order denying the motion for reconsideration because Lin was never lawfully admitted to the United States and thus "subject to the entry fiction doctrine." Lin remains in detention pursuant to § 1231(a)(6).

ANALYSIS

Ordinarily, when an alien is ordered removed from the United States, the Attorney General is obliged to facilitate that individual's actual removal within 90 days a period called the "removal period." 8 U.S.C. § 1231(a)(1). During the removal period, the Attorney General is required to detain an individual who has been ordered removed on certain specified grounds. 8 U.S.C. § 1231(a)(2). Congress, however, recognized that securing actual removal within 90 days will not always be possible. Consequently, the statute authorizes detention beyond the removal period:

An alien ordered removed who is inadmissible under section 1182 of this title, removable [for violations of nonimmigrant status or entry conditions, violations of criminal laws, or threatening national security] 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). We must determine whether this statute permits the indefinite detention of an individual in the first enumerated category who, like Lin, has been deemed inadmissible to the United States.

I.

In Zadvydas, the Supreme Court held that § 1231(a)(6) did not permit the indefinite detention of two long-time resident aliens who committed crimes and as a consequence were ordered removed. No country was willing to accept either individual once they were ordered removed. Notwithstanding that circumstance, the Attorney General continued to hold them in detention for years after the removal period. 533 U.S. at 684-86, 121 S.Ct. 2491. The Court reasoned that "indefinite, perhaps permanent, deprivation of human liberty" without judicial review presented an "obvious" constitutional difficulty. Id. at 692, 121 S.Ct. 2491. In "interpreting the statute to avoid a serious constitutional threat," the Court concluded "that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by the statute." Id. at 699, 121 S.Ct. 2491.

In Zadvydas, the "constitutional threat" that concerned the Court was the prospect of the government's indefinite, potentially permanent detention of resident aliens who have been deemed deportable. Id. at 692, 695-96, 121 S.Ct. 2491. Lin is not a resident alien. Indeed, he was not even within the United States when he was apprehended. Accordingly, the removal order entered against him was premised upon his inadmissibility to the United States. Compare 8 U.S.C. § 1182("Inadmissible aliens") with 8 U.S.C. § 1227 ("Deportable aliens").

Section 1231(a)(6), however, does not draw any distinction between individuals who are removable on grounds of inadmissibility and those removable on grounds of deportability. On its face, the statute applies symmetrically to three classes of aliens: (1) those who are "inadmissible under section 1182;" (2) those who are deportable under sections 1227(a)(1)(C) (violation of nonimmigrant status or condition of entry), 1227(a)(2) (criminal offenses), or 1227(a)(4) (security and related grounds); or (3) those who are a risk to the community or unlikely to comply with the removal order.

Although Zadvydas concerned the second prong of the statute—relating to deportable aliens—the Court's ultimate holding addresses the statute as a whole: "we construe the statute to contain an implicit `reasonable time' limitation, the application of which is subject to federal court review." 533 U.S. at 682, 121 S.Ct. 2491. In assessing the applicability of the statute, the Court spoke broadly, noting that it "applies to certain categories of aliens who have been ordered removed, namely inadimissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons...." Id. at 688, 121 S.Ct. 2491 (emphasis added). Concluding that the statute "does not permit indefinite detention," the Court pointedly used the term "aliens" as opposed to "deportable aliens:"

[W]e read an implicit limitation into the statute before us. In our view, the statute, 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 from the United States. It does not permit indefinite detention.

Id. at 689, 121 S.Ct. 2491.

The clear text of the statute, coupled with the Supreme Court's categorical interpretation, leaves us little choice but to onclude that Zadvydas applies to inadmissible individuals like Lin. The statute, on its face, makes no exceptions for inadmissible aliens. The Supreme Court's unqualified holding provides that the statute "does not permit indefinite detention." Id. It is a venerable principle of statutory interpretation "that where the Legislature makes a plain provision, without making any exception, the courts can make none." French's Lessee v. Spencer, 62 U.S. (21 How.) 228, 238, 16 L.Ed. 97 (1858) (citations omitted). We can only assume that the Supreme Court intended to maintain fidelity to this principle when it interpreted § 1231(a)(6) in Zadvydas.¹

We thus abide by the Supreme Court's interpretation of § 1231(a)(6) and hold that Lin may not be subjected to indefinite detention. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) ("It is [the Supreme Court's] responsibility to say what a statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law. A judicial construction of a statute...