Metropolitan News-Enterprise


Friday, November 26, 2004


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Ninth Circuit Denies En Banc Review of Ruling on Immigrant

Kozinski, Dissenting, Chides Panel for Allowing Release of Mentally Ill Convict Who Cannot Be Deported


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals, over a dissent by five of its judges, Wednesday denied en banc review of a ruling that requires immigration authorities to release a mentally ill alien from their custody.

A three-judge panel ruled in May that Tuan Thai, a native of Vietnam who was ordered deported after several convictions for violent crimes, cannot remain in detention because there is no foreseeable possibility of his actually being removed from the United States.

Thai came to the United States in 1996 and was granted permanent resident status under the Amerasian Immigration Act. The act permits a person born in Korea, Vietnam, Laos, Cambodia or Thailand between 1951 and 1982 to petition for such status upon a showing that his or her father was a U.S. citizen, along with the securing of a sponsor.

After serving prison time for assault, harassment, and rape, Thai was taken into government custody pending removal. An immigration judge found that Thai was removable as an aggravated felon, and the removal order became final in 2002.

The government has asked Vietnam to issue travel documents for Thai’s return to his native country. But the Vietnamese, who have no repatriation agreement with the United States, have not responded and the government does not contend that his removal is reasonably foreseeable.

Supreme Court Ruling

In December 2002, Thai petitioned for habeas corpus relief under Zadvydas v. Davis, 533 U.S. 678 (2001), which held that the authority to hold an alien past the normal removal period if he or she is dangerous to the community does not permit indefinite detention of an alien whose removal is not reasonably foreseeable.

In Thai’s case, the government argued that Thai’s history of mental illness made him dangerous to the community and constituted a special circumstance permitting continued detention, even under Zadvydas. U.S. District Judge Thomas S. Zilly of the Western District of Washington disagreed and granted the petition.

Judge Richard Clifton, writing for the Ninth Circuit on May 3, agreed with the district judge.

“The statement in Zadvydas that noncriminal detention by the Government is permissible only in narrow nonpunitive circumstances was intended to illustrate what the Government is generally prohibited from doing, and what it may in some circumstances be permitted to do,” Clifton explained, but does not establish an exception to the limitation on detention.

Statute Construed

Clifton noted that the Supreme Court found in Zadvydas that 8 U.S.C. Sec. 1231(a)(6), the statute permitting continued detention of dangerous aliens, would be of  questionable constitutionality if it were construed as allowing such detention to be limitless.

Language in Zadvydas suggesting that a broader construction of the government’s authority might be warranted when dealing with “terrorism or other special circumstances,” Clifton went on to say, cannot be applied in Thai’s case. “A careful reading of Zadvydas reveals that the Court’s mention of heightened deference in situations of ‘terrorism or other special circumstances’ was strictly limited to the context of ‘matters of national security,.’ ” the judge wrote.

Clifton’s opinion was joined by Judge Susan P. Graber and Senior Judge Procter Hug Jr.

The court reported yesterday that the panel opposed en banc review, and that a majority of the active judges did not vote to take the case en banc.

Judge Alex Kozinski, joined by Judges Richard Tallman, Jay Bybee, Consuelo Callahan, and Carlos Bea, argued that the case was “of exceptional importance” and should have been reconsidered.

“In rejecting the Attorney General’s sincere effort to bring 8 U.S.C. §1231(a)(6) into compliance with Zadvydas v. Davis, 533 U.S. 678 (2001), the panel seriously undermines the power of the executive branch as to immigration, an area within its peculiar authority,” Kozinski wrote. “In so doing, the panel releases into the population of our circuit an individual who has been found, by clear and convincing evidence, to be mentally disturbed and dangerous. We should not let this happen.”

‘Peculiar Risks’

The judge explained that under post-Zadvydas regulations, a detained alien whose removal is unforeseeable will be released from custody after six months unless they pose, as Kozinski put it, “peculiar risks to the public or security of the United States.”

One category of such risks, the judge noted, consists of aliens who have committed crimes of violence and are likely to do so again due to a mental condition or personality disorder, and who cannot be rendered harmless through conditions of release.

The regulations require a full evaluation by the Public Health Service, a written determination by an immigration official that the alien meets the conditions for continued detention, and a probable cause hearing before an immigration judge. If the IJ finds probable cause, the immigrant is bound over for a merits hearing at which the government must prove dangerousness by clear and convincing evidence.

The panel, Kozinski argued, should have upheld the regulations and overturned the district judge’s order. The regulations are not inconsistent with the statute as interpreted by the Supreme Court, he wrote, because Zadvydas is limited to the situation that was before the high court—one in which aliens were threatened with continued detention even though there was neither a reasonable possibility of removal nor proof of dangerousness to the community. 

Kozinski went on to write:

“There can be no doubt that, had the regulations been promulgated before Zadvydas, they would have been upheld. In adopting the regulations, the AG drew upon a broad grant of regulatory authority, and the statute itself—as written by Congress—clearly authorizes detention of aliens beyond six months. Because the regulations obviate the constitutional doubts expressed in Zadvydas, the reasons given by the Court in that opinion would not have provided a basis for striking down the regulations. There is no legitimate reason the result should be different just because the AG promulgated the regulations after Zadvydas.”

The case is Thai v. Ashcroft, 03-35626


Copyright 2004, Metropolitan News Company