Ninth Circuit decides that INS lacks authority to indefinitely detain criminal aliens whose home countries refuse repatriation

May 8, 2016

Ninth Circuit decides that INS lacks authority to indefinitely detain criminal aliens whose home countries refuse repatriation


The following case addresses the problem of criminal aliens (including "permanent residents" of the U.S.) who have been detained by the Immigration and Naturalization Service (INS) but cannot be repatriated, thus resulting in their perpetual detention.

Petitioner Kim Ho Ma came from his native Cambodia to the U.S. as a refugee at the age of two. He became a permanent resident (that is, he received a "green card") at age six. Unfortunately, he had bad company, got involved in a gang shooting, and was convicted of manslaughter at age 17.


After completing his prison sentence, the INS ordered him removed (previously called "deported") from the U.S. and took him into custody. Cambodia does not have a repatriation agreement with the U.S. and refused to take him back.

Ma filed a petition for habeas corpus. More than 100 similarly situated petitioners filed in the same court. Similar cases have arisen in Nevada and other California districts.


The district court held that Ma's continued detention violates his substantive due process rights under the Fifth Amendment. The INS appeals the court's decision to grant habeas corpus and release Ma from custody.

The issue in this case is whether, in light of the absence of such a repatriation agreement, the Attorney General has the authority to hold Ma in detention indefinitely.

The U.S. Court of Appeals for the Ninth Circuit affirms the district court, but on a different basis. The Court finds that the INS lacks authority under the immigration laws, and particularly 8 U.S.C. Section 1231(a)(6), to detain an alien who has entered the U.S. for more than a reasonable time beyond the normal 90 day statutory period authorized for removal.


Section 1231(a)(6) allows the INS to detain aliens with criminal convictions "beyond" 90 days but is silent as to how long such detention is authorized.


"[W]e construe the statute as providing the INS with authority to detain aliens only for a reasonable time beyond the statutory removal period. In cases in which the 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. Rather, the alien must be released subject to the supervisory authority provided in the statute.


We adopt our construction of the statute for several reasons. First, and most important, the result we reach allows us to avoid deciding whether or not INS's indefinite detention policy violates the due process guarantees of the Fifth Amendment. Second, our reading is the most reasonable one - it better comports with the language of the statute and permits us to avoid assuming that Congress intended a result as harsh as indefinite detention in the absence of any clear statement to that effect. Third, reading an implicit 'reasonable time' limitation into the statute is consistent with our case law interpreting a similar provision in a prior immigration statute. Finally, the interpretation we adopt is more consonant with international law." [Slip op. 15-16].


Specifically, in cases such as this one where there is no reasonable likelihood that the alien will be removed anytime soon, the Court holds that the INS may not detain the alien beyond that statutory removal period. The Court therefore does not decide the constitutional questions raised in this case.


As for international law, the Court has accepted that "a clear international prohibition" exists against prolonged and arbitrary detention. The Court's construction of the statute renders it consistent with the "Charming Betsy" rule of statutory construction, which requires courts to construe congressional legislation in a way to avoid violations of international law.

Citation: Ma v. Reno, No. 99-35976 (9th Cir. April 10, 2000).




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