           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Ly v. Hansen, et al.                       No. 01-3016
        ELECTRONIC CITATION: 2003 FED App. 0418P (6th Cir.)
                    File Name: 03a0418p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: Michelle E. Gorden, U.S. DEPARTMENT OF
                  FOR THE SIXTH CIRCUIT                                  JUSTICE, CIVIL DIVISION, Washington, D.C., for
                    _________________                                    Appellants. Judy Rabinovitz, ACLU IMMIGRATION
                                                                         RIGHTS PROJECT, New York, New York, for Appellee.
 HOANG MINH LY ,                  X                                      ON BRIEF: Michelle E. Gorden, Emily A. Radford, U.S.
           Petitioner-Appellee, -                                        DEPARTMENT OF JUSTICE, CIVIL DIVISION,
                                   -                                     Washington, D.C., Lisa H. Johnson, ASSISTANT UNITED
                                   -  No. 01-3016                        STATES ATTORNEY, Cleveland, Ohio, for Appellants.
            v.                     -                                     Richard T. Herman, RICHARD T. HERMAN &
                                    >                                    ASSOCIATES, Cleveland, Ohio, for Appellee.
                                   ,
 MARK B. HANSEN , JAMES            -
 ZIGLAR, and JOHN ASHCROFT , -                                             BOGGS, C. J., delivered the opinion of the court, in which
                                                                         RYAN, J., joined. HAYNES, D. J. (pp. 18-26), delivered a
      Respondents-Appellants. -                                          separate opinion concurring in part and dissenting in part.
                                   -
                                  N                                                         _________________
      Appeal from the United States District Court
     for the Northern District of Ohio at Cleveland.                                            OPINION
   No. 99-01871—Solomon Oliver, Jr., District Judge.                                        _________________

                     Argued: July 31, 2002                                 BOGGS, Chief Judge. Mark Hansen, district director of the
                                                                         Immigration and Naturalization Service (INS), appeals the
            Decided and Filed: November 26, 2003                         grant of habeas corpus to Hoang Minh Ly, a deportable
                                                                         criminal alien. Ly, a citizen of Vietnam, challenged the
Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and                     constitutionality of § 236(c) of the Illegal Immigration
            HAYNES, District Judge.*                                     Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
                                                                         which requires the Attorney General to detain immigrants
                                                                         who have committed certain crimes, pending removal
                                                                         proceedings. 8 U.S.C. § 1226(c) (West 1999). Ly alleges
                                                                         that the section violates substantive and procedural due
                                                                         process under the Fifth Amendment because it does not allow
                                                                         criminal aliens individual bond hearings to determine their
                                                                         suitability for release pending removal proceedings. Because
                                                                         the Supreme Court, in Zadvydas v. Davis, 533 U.S. 678
    *
     The Honorable William J. Haynes, United States District Judge for   (2001), determined that IIRIRA should be interpreted to avoid
the Middle District of Tennessee, sitting by designation.

                                  1
No. 01-3016                               Ly v. Hansen, et al.        3    4     Ly v. Hansen, et al.                      No. 01-3016

the constitutional questions raised by indefinite detention of             1999 hearing, the immigration judge found that Ly was
aliens awaiting removal from the United States, we affirm the              removable. Ly then filed applications for relief from
result below for reasons different than those relied on by the             deportation on various grounds, including asylum, admission,
district court. Brown v. Tidwell, 169 F.3d 330, 332 (6th Cir.              withholding of removal, deferral of removal, and permanent
1999).                                                                     resident status. On January 27, 2000, the INS issued a Notice
                                                                           of Decision denying Ly’s application for permanent resident
                                   I                                       status. The immigration judge set a merits hearing for Ly’s
                                                                           other applications for relief for March 16, 2000, but the
  Hoang Minh Ly entered the United States as a refugee in                  hearing was continued to April 28, 2000. In September 2000,
1986. In 1993, Ly was convicted of credit card fraud, and                  the magistrate judge recommended that habeas relief be
sentenced to four months in prison, with two years of                      granted. The district court adopted this recommendation,
supervised release. In 1998, Ly was involved in a check-                   granting habeas relief unless a bond hearing was held. The
kiting scheme, wherein he deposited counterfeit cashier’s                  INS timely appealed the district court’s decision. One month
checks into a bank account, knowing that someone else would                later, on October 19, 2000, the immigration judge entered a
withdraw the money and split the proceeds. He was                          written decision, ordering Ly’s removal to Vietnam and
convicted of bank fraud. Ly has fully served his criminal                  denying his remaining applications for relief. On April 30,
sentences on both convictions.                                             2001, the Board of Immigration Appeals issued a final
                                                                           decision, and affirmed the immigration judge’s order. Based
   The INS issued Ly a Notice to Appear on May 10, 1999.                   on the final administrative removal order, the Government
The INS took Ly into custody, under the mandatory detention                filed a motion with us to remand the case to district court.
provisions of IIRIRA § 236(c), on May 11, 1999. Overall, Ly
was kept in detention for 500 days, before his release at the                 The INS, in accordance with the district court’s order,
order of the district court. The INS asserted that Ly was                  conducted a bond hearing. At that hearing, on November 21,
subject to removal1 from the United States because he was an               2000, the immigration judge determined that he did not have
alien convicted of two crimes involving moral turpitude, and               the statutory authority to release Ly from detention.
he was an alien convicted of an aggravated felony. On                      Nevertheless, on November 24, 2000, the INS released Ly on
August 5, 1999, Ly filed a habeas corpus petition in federal               his own recognizance and subject to specified conditions.
district court, challenging his detention.         The INS
supplemented the charges against Ly on August 13, 1999,                                                 II
with another charge that Ly was an alien convicted of an
aggravated felony. At an August 19, 1999 hearing, Ly                       A. Substantive Due Process and Zadvydas
requested a continuance to permit his counsel additional time
to review the supplemental charges. The hearing was                        1.   Standard of Review and Jurisdiction
rescheduled for September 21, 1999. At the September 21,
                                                                             We review the grant of habeas corpus, and the
                                                                           constitutional questions inherent in such a grant, de novo.
    1                                                                      Staley v. Jones, 239 F.3d 769, 775 (6th Cir. 2001). We have
     Actual removal of Ly from the United States was never a possibility
during this process. Vietnam has not and does not accept deportees         jurisdiction to consider both substantive and procedural due
because there is no repatriation agreement between the United States and   process challenges to § 236(c), despite the jurisdictional
Vietnam.
No. 01-3016                          Ly v. Hansen, et al.     5    6     Ly v. Hansen, et al.                        No. 01-3016

limitations set out in IIRIRA. IIRIRA states: “[N]o court             While the appeal in the case was pending, the Supreme
shall have jurisdiction to hear any cause or claim by or on        Court held in Zadvydas v. Davis, 533 U.S. 678 (2001), that
behalf of any alien arising from the decision or action by the     indefinite detention of a removable criminal alien after a
Attorney General to commence proceedings, adjudicate cases,        removal proceeding would violate a due process right to
or execute removal orders against any alien . . . .” 8 U.S.C.      liberty under the Fifth Amendment. Id. at 682. Zadvydas
§ 1252(g) (West 1999). In Pak v. Reno, 196 F.3d 666, 671-72        therefore construed IIRIRA as not requiring indefinite
(6th Cir. 1999), we held that this jurisdictional limitation did   incarceration, by imposing a reasonable time limit (six
not extend to the habeas power of federal courts, in order to      months), supervised by the federal courts in habeas
avoid the constitutional issue of whether or not such a            proceedings, on the amount of time that a deportable criminal
limitation would violate the Suspension Clause of the              alien may be detained after a determination as to removability
Constitution, which states that the “privilege of the writ of      has been made, unless the government asserts a “strong
habeas corpus shall not be suspended, unless when in cases of      special justification” for the detention. Id. at 690.
rebellion or invasion the public safety may require it.” U.S.
Const. Art. I § 9 cl. 2. The Supreme Court has also upheld            Zadvydas addressed the prospect of indefinite incarceration
the jurisdiction of courts to consider habeas claims arising out   of deportable aliens created by the IIRIRA post-removal
of immigration detention. See Zadvydas v. Davis, 533 U.S.          detention statute. The question remaining before us is
678, 688 (2001) (courts have jurisdiction to hear habeas           whether the holding of Zadvydas extends to the mandatory
claims arising out of IIRIRA’s post-removal detention              pre-removal detention statute, § 236. Most aliens may be
provisions).                                                       released on bond or paroled until their removal hearing.
                                                                   8 U.S.C. § 1226(a) (West 1999). However, because certain
2.   Zadvydas                                                      types of criminal aliens pose extraordinarily high flight risks,
                                                                   Congress has ordered that aliens who have been convicted of
  The parties here ask whether Ly may be indefinitely              an aggravated felony or two crimes involving moral turpitude
incarcerated, under IIRIRA’s mandatory pre-removal                 (including fraud) must be detained pending removal
detention statute, § 236(c), pending his removal to Vietnam,       proceedings, based on a prima facie determination of
given that such removal is not currently foreseeable due to the    removability by the government. 8 U.S.C. § 1226(c). If an
lack of a repatriation treaty between the United States and        order of removal is not entered (or not entered promptly), the
Vietnam. Section 236 of IIRIRA requires the attorney               result is mandatory indefinite detention for criminal aliens,
general to detain, among others, aliens convicted of either an     which is prohibited by Zadvydas.
aggravated felony or two crimes involving moral turpitude
(such as fraud), pending removal proceedings. 8 U.S.C.             3.   Circuit Decisions
§ 1226(c). The INS asserts that because aliens detained under
§ 236 are prima facie deportable, they have no liberty interest       The question of indefinite detention under § 236 is one of
and may be detained indefinitely, without a bond hearing,          first impression in this circuit. Our sister circuits have split
until an order of removal is entered. Ly contends that the         on the issue. The Ninth and Tenth Circuits have adopted a
constitution requires an immediate bond hearing for all            bright-line approach, holding that § 236 is unconstitutional as
criminal aliens awaiting removal.                                  applied to lawful permanent residents, no matter the length of
                                                                   actual detention. Hoang v. Comfort, 282 F.3d 1247 (10th Cir.
                                                                   2002), rev’d, 123 S. Ct. 1963 (2003); Kim v. Ziglar, 276 F.3d
No. 01-3016                         Ly v. Hansen, et al.     7    8     Ly v. Hansen, et al.                         No. 01-3016

523, rev’d, 123 S. Ct. 1708 (2003) (9th Cir. 2002). The Third     incarceration, as did Zadvydas, the magistrate judge stated:
Circuit has held that § 236 mandatory detention is                “The issue thus presented is whether § 236 violates
unconstitutional if the detained alien seeks to avoid removal     Petitioner’s Fifth Amendment right to due process by
via administrative remedies. Patel v. Zemski, 275 F.3d 299        removing discretion on the part of the Attorney General to
(3rd Cir. 2001). The Fourth Circuit adopted a case-by-case        provide individualized bond hearings for those aliens against
approach, requiring an individualized determination of            whom deportation proceedings are ongoing.”
dangerousness, Welch v. Ashcroft, 293 F.3d 213 (4th Cir.
2002), and the Seventh Circuit has held that indefinite              The level of scrutiny to be applied in determining whether
detention under § 236 is entirely constitutional. Parra v.        or not a restriction on a substantive due process right should
Perryman, 172 F.3d 954 (7th Cir. 1999).                           be upheld varies with the nature of the right. The magistrate
                                                                  judge’s opinion noted that courts are to apply strict scrutiny
  We adopt none of these approaches. Our logic is simple.         (the law must be narrowly tailored to a compelling state
Zadvydas prohibits only one thing: permanent civil detention      interest) to governmental conduct that interferes with rights
without a showing of a “strong special justification” that        “implicit in the concept of ordered liberty.” United States v.
consists of more than the government’s generalized interest       Salerno, 481 U.S. 739, 746 (1987) (quoting Palko v. Conn.,
in protecting the community from danger. Zadvydas, 533            302 U.S. 319, 325-26 (1937)). The INS argued there, as here,
U.S. at 690. Zadvydas establishes a specific rule: “[A] habeas    that immigration decisions should be subject to the more
court must ask whether the detention in question exceeds a        deferential rational basis test, since deportable aliens have no
period reasonably necessary to secure removal.” Id. at 699.       liberty interest in being at large in the United States.
Since permanent detention of Permanent Resident Aliens
under § 236 would be unconstitutional, we construe the               The magistrate judge applied neither the strict scrutiny or
statute to avoid that result, as did the Court in Zadvydas.       rational basis tests in pure form; rather, he likened the pre-
Zadvydas also made clear that limited civil detention, without    removal detention of criminal aliens to the pre-trial detention
bond, is constitutional as applied to deportable aliens. Id. at   of criminals, and adopted the “excessive to its purpose” test
701. Therefore, we hold that the INS may detain prima facie       of Salerno for regulatory legislation not designed for
removable aliens for a time reasonably required to complete       punishment. In weighing the competing interests, courts
removal proceedings in a timely manner. If the process takes      consider “the length of detention to which the petitioner has
an unreasonably long time, the detainee may seek relief in        already been subjected, the likelihood of deportation, the
habeas proceedings. With this standard in mind, we turn to        potential length of the detention into the future, the likelihood
the decisions of the magistrate judge and the district court.     that release will frustrate the petitioner’s actual deportation,
                                                                  and the danger to the community posed by the petitioner if
4.   Level of Scrutiny                                            released.” Hermanowski v. Farquharson, 39 F. Supp. 2d 148,
                                                                  159 (D.R.I. 1999). On balancing these factors, the magistrate
   The magistrate judge’s opinion recommending the grant of       judge determined that Ly’s extended incarceration was not
habeas relief, as adopted by the district court, found that       justified in light of the minimal danger he posed to the public.
deportable aliens have a fundamental liberty interest under the
Fifth Amendment, the protection of which requires an                Zadvydas used a different analytical approach. Although
individualized bond hearing. Instead of characterizing the        the opinion quoted Salerno with approval, Zadvydas noted
issue as one of reasonable limitation on the period of            that removal proceedings were civil, not criminal, and held
No. 01-3016                          Ly v. Hansen, et al.     9    10   Ly v. Hansen, et al.                        No. 01-3016

that if the government wished to indefinitely detain a             indefinite civil detention, it has been overruled by Zadvydas.
removable alien, it must show a “strong special justification”     533 U.S. at 690.
for such detention. Zadvydas, 533 U.S. at 690. A general
goal of preventing danger to the community is insufficient to        The INS’s final argument is that Congress exercises plenary
support indefinite civil detention: “[W]e have upheld              control over immigration, and that we should therefore not
preventive detention based on dangerousness only when              question the judgment of Congress by ourselves placing
limited to specially dangerous individuals and subject to          limits on mandatory detention. One point of difference
strong procedural protections.” Id. at 690-91. “In cases in        between this case and Zadvydas is that the post-removal
which preventive detention is of potentially indefinite            statute is permissive, whereas the pre-removal statute, as
duration, we have also demanded that the dangerousness             applied to specified criminal aliens, is mandatory. Compare
rationale be accompanied by some other special circumstance,       8 U.S.C. §1226(c)(1) (The Attorney General shall take into
such as mental illness, that helps to create the danger.” Id. at   custody . . . ) with 8 U.S.C. § 1231(a)(6) (An alien ordered
691, citing Kansas v. Hendricks, 521 U.S. 346, 368 (1997)          removed . . . may be detained beyond the removal period)
(emphasis in original). Furthermore, Zadvydas noted that           (emphasis added). The INS argues that the mandatory nature
“where detention’s goal is no longer practically attainable,       of pre-removal detention reveals a clear congressional intent
detention no longer ‘bear[s] [a] reasonable relation to the        to keep criminal aliens detained for as long as it takes to
purpose for which the individual [was] committed.’”                deport them, even if such detention is effectively perpetual.
Zadvydas, 533 U.S. at 690, quoting Jackson v. Indiana, 406
U.S. 715, 738 (1972).                                                 There are two reasons to reject this argument. First,
                                                                   although criminal aliens may be incarcerated pending
   The INS argues that because Ly is prima facie removable,        removal, the time of incarceration is limited by constitutional
he has no liberty interest at all, and cannot therefore complain   considerations, and must bear a reasonable relation to
that he is not at liberty within the United States. While it is    removal. As the Zadvydas court stated: “detention pending a
true that a removable alien has no right to be in the country,     determination of removability . . . has [an] obvious
it does not mean that he has no right to be at liberty.            termination point.” Zadvydas, 533 U.S. at 697. The
Zadvydas established that deportable aliens, even those who        mandatory nature of the detention does not alter the
had already been ordered removed, possess a substantive Fifth      constitutional limitations to which it is subject. Congress’s
Amendment liberty interest, and that the interest was violated     plenary control must still be exercised within the bounds of
by indefinite detention. The INS relies on the Seventh             the Constitution. INS v. Chadha, 462 U.S. 919, 941 (1983).
Circuit’s decision in Parra v. Perryman, 172 F.3d 954 (7th         Second, while Congress did express a desire to have certain
Cir. 1999). In that case, the Seventh Circuit found that § 236     criminal aliens incarcerated during removal proceedings, it
violated neither procedural or substantive due process, on the     also made clear that such proceedings were to proceed
logic the INS asserts here: “A criminal alien who insists on       quickly. 8 U.S.C. § 1229(d)(1) (West 1999) (“In the case of
postponing the inevitable has no constitutional right to remain    an alien who is convicted of an offense which makes the alien
at large during the ensuing delay, and the United States has a     deportable, the Attorney General shall begin any removal
powerful interest in maintaining the detention in order to         proceeding as expeditiously as possible after the date of the
ensure that removal actually occurs.” Parra, 172 F.3d at 958.      conviction.”). In short, imposing a reasonable time limitation
To the extent that Parra holds that a criminal alien does not      on the pre-detention period both saves the statute from
possess a Fifth Amendment liberty interest impacted by
No. 01-3016                         Ly v. Hansen, et al.    11    12       Ly v. Hansen, et al.                              No. 01-3016

constitutional challenge, and is consistent with Congress’s       deportable criminal aliens is adequately served by the
directions as to how the statute should be applied.               reasonableness limitation on the period of incarceration.2
   We must also assess the constitutional impact of the           5.   Intervening Decisions
presence or absence of hearings. In Zadvydas, the Court
found it significant that the detainees were afforded                Our consideration of the question of Ly’s liberty interest is
administrative, rather than judicial, proceedings, at which the   complicated by two decisions that have come down since this
alien bore the burden of proof. Zadvydas, 533 U.S. at 692.        case was briefed and argued. In Demore v. Kim, 123 S. Ct.
Such process, the Court determined, would be insufficient to      1708 (2003) the Supreme Court held that §1226(c) was not
permit indefinite detention. Similarly, in this case, the         unconstitutional in requiring the detention of deportable
magistrate judge noted: “[i]t is highly significant that the      aliens pending their deportation. It specifically indicated that
statutory scheme affords petitioner no opportunity to             such detentions were usually relatively brief, see id. at 1720-
convince an Immigration Judge that he is not a danger to the      21, but it did not specifically hold that any particular length
community, but, rather, is irrebutably presumed to be so.” In     of time in a specific case would be unreasonable or
both cases, procedural protections (rights to a hearing at        unconstitutional. The case is distinguishable to the extent that
which the alien could argue that he did not pose a danger to      Kim was a deportable alien for whom deportation, to South
the community) were too limited to justify an indefinite          Korea, was a real possibility, and he could avail himself of
detention. However, Zadvydas did not mandate extra                such liberty at any time. That is not the case with Ly.
procedural protection in order to constitutionalize the
imposition of indefinite civil detention; rather, it held that      In Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir.
indefinite deprivation of liberty would require extensive         2003)(en banc), decided shortly before Kim, our circuit held
procedural protection – and therefore construed the post-         that even an excludable alien (presumptively a person with
removal detention statute to avoid the specter of permanent       less rights than Ly) could not be held beyond six months
detention. Zadvydas, 533 U.S. at 689.                             without an individual hearing, by extension of the holding in
                                                                  Zadvydas, in the case of an excludable alien who could not be
   We do the same: by construing the pre-removal detention        removed to Cuba. The cross currents of the two decisions are
statute to include an implicit requirement that removal           somewhat complex. If Rosales-Garcia stands for the
proceedings be concluded within a reasonable time, we avoid       proposition that any alien facing the process of deportation is
the need to mandate the procedural protections that would be      entitled to a specific hearing within six months absent special
required to detain deportable aliens indefinitely. Although       justification, the decision is inconsistent with Kim, which
we affirm the grant of habeas corpus and the district court’s     specifically authorized such detention in the circumstances
finding that incarceration for 18 months pending removal          there. To the extent that Kim would appear to authorize
proceedings is unreasonable, we do not require the United
States to hold bond hearings for every criminal alien detained
under § 236. Ly’s case is not the norm, in that he is not              2
                                                                         Zadvydas does suggest that in extraordinarily limited circumstances,
actually removable. In the majority of cases, where an order      e.g., dangero us mental illness, civil detention for an indefinite period or
of removal is promptly entered and removal is effected within     without possibility of removal might be warranted. H owever, those
the time allotted under Zadvydas, bond hearings are not           circumstances are sufficiently rare that requiring individualized bond
                                                                  hearings is unnecessary. Rather, the INS can argue such extreme
required. As Zadvydas made clear, the liberty interest of         circum stances in opposition to a detainee’s pe tition for ha beas relief.
No. 01-3016                          Ly v. Hansen, et al.    13    14    Ly v. Hansen, et al.                          No. 01-3016

indefinite detention for persons in pre-removal proceedings,       magistrate judge, Ly had been imprisoned for a year and a
it could compel a conclusion contrary to Rosales-Garcia in         half with no final decision as to removability in the case.
this case. However, the Court’s discussion in Kim is               That decision as to removability was not made until nearly a
undergirded by reasoning relying on the fact that Kim, and         month later, after the magistrate judge recommended granting
persons like him, will normally have their proceedings             the writ of habeas corpus. Ly served criminal sentences for
completed within in a short period of time and will actually       his two convictions of a total of 12 months; he spent
be deported, or will be released. That is not the case here.       considerably more time than that in INS custody awaiting a
                                                                   determination on removal.
  Because of the differences between Ly’s case and these
opinions, we hold that neither of them affirmatively compels         Further, any detention under IIRIRA must be reasonably
a different decision here.                                         related to the goal of the statute. Zadvydas, 533 U.S. at 699-
                                                                   700. The goal of pre-removal incarceration must be to ensure
   Finally, we note that the government has not offered a          the ability of the government to make a final deportation. The
strong and special justification, exceeding a mere desire to       danger is that a criminal alien, upon receiving notice of
protect the community, that would justify indefinite detention.    deportation proceedings, will flee. The actual removability of
If, as is not the case here, the government were to attempt to     a criminal alien therefore has bearing on the reasonableness
justify indefinite detention by means of a showing of a            of his detention prior to removal proceedings. Zadvydas, 533
“strong and special justification” under Zadvydas, then due        U.S. at 690. Because Ly was not removable, a year-and-a-
process would require a hearing on that issue.                     half imprisonment awaiting removal proceedings was
                                                                   especially unreasonable.
6.   Reasonable Time Limitation
                                                                      The INS incorrectly asserts that it has an interest in
  We must next define a reasonable time limitation for pre-        “ensuring that a final removal order is actually entered against
removal detention, and finally determine whether or not the        an individual who is prima facie removable because of
INS acted reasonably in this case. A bright-line time              multiple criminal convictions.” The INS does not need the
limitation, as imposed in Zadvydas, would not be appropriate       alien to be physically present in order to enter a final removal
for the pre-removal period; hearing schedules and other            order. IIRIRA penalizes aliens who fail to appear at a
proceedings must have leeway for expansion or contraction as       removal proceeding with both an automatic entry of an order
the necessities of the case and the immigration judge’s            of removal in absentia, 8 U.S.C. § 1229a(b)(5), and prevents
caseload warrant. In the absence of a set period of time,          such aliens from applying for cancellation of removal or
courts must examine the facts of each case, to determine           adjustment of status, remedies normally available to an alien
whether there has been unreasonable delay in concluding            who has been ordered removed. 8 U.S.C. § 1229a(b)(7)
removal proceedings.                                               (West 1999).
  In this case, the district court determined that incarceration      As the INS points out, Ly is at least partially responsible
for one and one-half years as part of a civil, nonpunitive         for the length of the proceedings. Ly applied for cancellation
proceeding when there was no chance of actual, final               of removal and for change of status, and was responsible for
removal, was unreasonable. We agree. As of the                     at least one rescheduled hearing, due to the late filing of briefs
September 21, 2000 opinion and recommendation of the               by Ly’s counsel with the immigration judge. We are not
No. 01-3016                          Ly v. Hansen, et al.    15    16   Ly v. Hansen, et al.                         No. 01-3016

unsympathetic to this argument; however, we conclude that          Certainly the INS is best situated to know which criminal
the INS must still act promptly in advancing its interests. In     aliens should be released, and federal courts are obviously
this case, the magistrate judge found that the time taken          less well situated to know how much time is required to bring
without a decision was exceptional; indeed, the immigration        a removal proceeding to conclusion. However, three factors
judge only rendered a decision after the magistrate judge          tip the balance in favor of court supervision. First, Zadvydas
acted, and an additional month had passed, even though the         requires it. Second, those aliens not granted bond hearings
hearing before the immigration judge had been months               would still file habeas petitions; since habeas review of
earlier.                                                           detention is not foreclosed by IIRIRA, federal courts will still
                                                                   be asked to review detention. Third, although an easily
  Under the rule we adopt today, courts must be sensitive to       administrable bright-line rule cannot be based on time, given
the possibility that dilatory tactics by the removable alien may   the inevitable elasticity of the pre-removal period, courts are
serve not only to put off the final day of deportation, but also   familiar with and regularly assess reasonableness as a legal
to compel a determination that the alien must be released          standard. Our rule requires the INS to act reasonably: when
because of the length of his incarceration. Without                actual removal is not reasonably foreseeable, criminal aliens
consideration of the role of the alien in the delay, we would      may not be detained beyond a reasonable period required to
encourage deportable criminal aliens to raise frivolous            conclude removability proceedings without a government
objections and string out the proceedings in the hopes that a      showing of a “strong special justification,” constituting more
federal court will find the delay “unreasonable” and order         than a threat to the community, that overbalances the alien’s
their release.                                                     liberty interest. Zadvydas, 533 U.S. at 690. Although it lacks
                                                                   a bright line, this rule is administrable by courts hearing
   However, appeals and petitions for relief are to be expected    habeas petitions arising from mandatory detention under
as a natural part of the process. An alien who would not           § 236.
normally be subject to indefinite detention cannot be so
detained merely because he seeks to explore avenues of relief      B. Procedural Due Process
that the law makes available to him. Further, although an
alien may be responsible for seeking relief, he is not                Ly also asserts that he has received insufficient process to
responsible for the amount of time that such determinations        protect his Fifth Amendment liberty interest. Were we to
may take. The mere fact that an alien has sought relief from       construe the statute as permitting indefinite detention,
deportation does not authorize the INS to drag its heels           additional process would be required. Zadvydas, 533 U.S. at
indefinitely in making a decision. The entire process, not         692. If the INS were to assert a “strong special justification,”
merely the original deportation hearing, is subject to the         consisting of more than convenience in removal or general
constitutional requirement of reasonability.                       community protection, to support indefinite detention, then a
                                                                   hearing would be required. Id. at 690. However, the INS
  Finally, there is a question of institutional competence. By     makes no such showing here. Because we construe the statute
not requiring individualized bond hearings, federal courts         to include a reasonable time limitation in bringing a removal
undertake to supervise the reasonability of detention only via     proceeding to conclusion, additional process to protect that
the habeas process. This is the approach recommended by            liberty interest is not required.
Zadvydas; of course, there the Court was able to establish a
six-month rule that is easily administrable by courts.
No. 01-3016                         Ly v. Hansen, et al.   17    18   Ly v. Hansen, et al.                       No. 01-3016

                             III                                  ______________________________________________
  We hold that the INS may detain prima facie removable            CONCURRING IN PART, DISSENTING IN PART
criminal aliens, without bond, for a reasonable period of time    ______________________________________________
required to initiate and conclude removal proceedings
promptly.      When actual removal is not reasonably               HAYNES, District Judge, concurring in part and dissenting
foreseeable, deportable aliens may not be indefinitely           in part. I concur in the majority’s holding that Ly’s
detained without a government showing of a “strong special       incarceration for almost a year and a half was unreasonable
justification,” constituting more than a threat to the           and justifies issuance of the writ of habeas corpus. Yet, for
community, that overbalances the alien’s liberty interest. The   several reasons, I respectfully dissent from the majority’s
reasonableness of the length of detention is subject to review   reasonableness standard, due to its lack of any numerical time
by federal courts in habeas proceedings, as stated by            limitations for the detention of those lawful permanent
Zadvydas. Because there is no strong special justification in    resident aliens who object to their removal under 8 U.S.C.
this case, because the period of time required to conclude the   § 1226(c). In sum, Supreme Court and Sixth Circuit
proceedings was unreasonable, and because actual removal         precedents have set time limits on the detention of aliens who
was not foreseeable, we AFFIRM the grant of the writ of          have been ordered to be deported or aliens who have been
habeas corpus.                                                   declared excludable. Time constraints, consistent with the
                                                                 Supreme Court and this Circuit’s decisions, should be set for
                                                                 the detention of lawful permanent resident aliens who are
                                                                 object to their removal proceedings. The majority’s
                                                                 substantial reliance upon Zadvydas v Davis, 533 U.S. 678
                                                                 (2001) is misplaced because Demore v. Kim 123 S. Ct. 1708
                                                                 (2003) is the controlling decision for the detention of lawful
                                                                 permanent resident aliens, such as Ly.
                                                                   Ly was born on April 16, 1968 in Saigon, Vietnam. His
                                                                 family members include soldiers in the South Vietnamese
                                                                 Army who fought with United States military forces during
                                                                 the Vietnam war. Refusing to serve in the communist army
                                                                 in Cambodia and avoiding persecution, Ly fled to Thailand
                                                                 where he remained in a refugee camp for approximately two
                                                                 years. The United States Attorney General granted Ly
                                                                 refugee status when he entered the United States. Ly became
                                                                 a permanent United States resident on December 21, 1987,
                                                                 and has since lived in the United States with other family
                                                                 members who are also permanent residents.
                                                                   On May 11, 1999, the Immigration and Naturalization
                                                                 Services (“INS”) initiated removal proceedings against Ly
No. 01-3016                          Ly v. Hansen, et al.     19    20   Ly v. Hansen, et al.                         No. 01-3016

based upon a 1993 conviction for use of a counterfeit credit        As a result of his removal proceeding, Ly had been detained
card to purchase in excess of $2,000 of goods and services.         for over 500 days prior to the district court’s order granting
Ly pled guilty and the district court sentenced him to four         the writ. With the lack of a repatriation treaty with Vietnam,
months incarceration and two years supervised release. The          Ly’s removal is unlikely for the reasonably foreseeable future.
district court also approved the prosecution’s
recommendation to reduce Ly’s sentence for his minor role in          In Kim, the Supreme Court held that mandatory detention
the criminal transaction, his cooperation, and his immediate        of lawful permanent aliens residents who are subject to
confession. Ly successfully completed his supervised release        removal under 236(c) the Illegal Immigration and Immigrant
on April 27, 1995.                                                  Responsibility Act of 1996 (“IIRIRA”) is constitutionally
                                                                    permissible for the brief period of time necessary for their
   In 1999, Ly had another conviction for bank fraud because        removal proceedings. The Supreme Court’s core conclusions
he passed a fraudulent bank check in a check-kiting scheme.         were two-fold. First, the Court held that “Congress,
In the pretrial proceeding of his second conviction, the district   justifiably concerned that deportable criminal aliens who are
court determined that Ly was neither a serious flight risk nor      not detained continue to engage in crime and fail to appear for
a threat to the community and released Ly on a personal bond.       their removal hearings in large numbers, may require that
For this conviction, Ly was sentenced to eight months and           persons such as [Kim] be detained for the brief period
ordered to make restitution to the victim. Ly fully completed       necessary for their removal proceedings” 123 S. Ct. at 1712.
that criminal sentence.                                             (Emphasis added). With this limitation, “[d]etention during
                                                                    removal proceedings is a constitutionally permissible part of
   These two convictions provide the basis for his removal for      that process.” Id at 1721-22. Thus, “a criminal alien who
crimes of moral turpitude under § 237(a)(2)(A)(ii) of IIRIRA.       has conceded that he is deportable, for the limited period of
Ly asserts that he would have been eligible for cancellation of     his removal proceedings, is governed by these cases.” Id. at
removal under the former 212(c) waiver because prior to             1722.(citations omitted). In other parts of its opinion, the
1996, Ly’s conviction was not considered an “aggravated             majority in Kim emphasized that the detention was under
felony” under the Immigration and Naturalization Act                Section 236(c) for a “limited period” id. at 1722 and “very
(“INA”). At the time of his 1993 plea, an “aggravated               limited time of ... detention,” Id at 1721 n.12.
felony” was defined under § 101(a)(43)(M) of the INA, as a
crime causing a $200,000 loss to the victim for a crime of             Kim’s holding clearly was premised , in significant part,
fraud or deceit. In 1996, three years after Ly’s plea, Congress     upon its finding that the initial detention under Section 236(c)
retroactively expanded the definition of “aggravated felony”        was for “a brief period necessary for their removal
under § 101(a)(43)(M) of the INA by requiring only a                proceeding” Id. at 1712. The majority in Kim specifically
$10,000 loss to the victim, thereby retroactively classifying       cited the average length of time of a Section 236(c) detention
Ly as an aggravated felon and thus, rendering him ineligible        prior to a disposition of the removal issue :
for cancellation of his removal. The immigration court found
Ly removable as an aggravated felon under section                     In the majority of cases it lasts for less than the 90 days we
101(a)(48)(U) of the INA.                                           considered presumptively valid in Zadvydas. The Executive
                                                                    Office for Immigration Review has calculated that, in 85% of
   Vietnam, Ly’s native country, does not have an repatriation      the cases in which aliens are detained pursuant to Section
treaty with the United States and Ly has not been removed.          1226(c), removal proceedings are completed in an average
No. 01-3016                         Ly v. Hansen, et al.    21    22   Ly v. Hansen, et al.                        No. 01-3016

time of 47 days and median of 30 days. Brief for Petitioners      actual administrative experiences for conducting these
39-40. In the remaining 15% of cases, in which that alien         removal hearings. If there were justifiable cause for
appeals the decision of the Immigration Judge to average of       detentions beyond these limits, then the agency must provide
four months, with a median time that is slightly shorter. Id.,    the alien with a statement of reasons for the delay and the
at 40.                                                            opportunity for a due process hearing. The alien could then
                                                                  assess whether he can successfully challenge the agency’s
Kim, at 1720-21 (emphasis added).                                 stated reasons for continued detention at the due process
                                                                  hearing before the agency or later in court.
   To be sure, Kim addressed only the constitutionality of
Section 236(c) mandating detention of lawful permanent              The Supreme Court set a presumptive standard of 90 days
aliens where the alien did not contest his detention. Kim did     and an outside limit of six months detention for aliens who
not address any outside time limits on that detention. Here,      have been ordered removed absent a showing of a “strong
Ly contests his deportation to Vietnam that lacks a               special justification” for detention. 533 U.S. At 690, 701.
repatriation treaty with this country. The majority’s holding     In Rosales-Garcia v. Holland, 322 F.3d 386, 415 (6th Cir.
here sets a limitation of detention, but only by a                2003) (en banc) this Court imposed, as a matter of law, a six
reasonableness standard, without any numerical time limits.       months limitation for detention of excludable aliens. Surely,
                                                                  as a matter of law, the initial detention of aliens who are
  In my view, to set the constitutional standard for the length   lawfully permanent residents and who challenge their
of detention for those lawful resident aliens who contest their   deportation, should be less than six months, the constitution
deportation, we should borrow the time limits in Kim that the     limitation for detained aliens who are unlawfully in this
Supreme Court cited in upholding Section 236(c) for               country. Lawful permanent resident aliens who contest their
detention of lawful permanent resident aliens. These              continued detention should have greater due process rights
limitations would be presumptive time limits for detention of     than aliens who have been found to be removable or
lawful resident aliens who object to their deportation and such   excludable.
limits are supported by Supreme Court and Sixth Circuit
decisions in other alien deportation decisions. In a word, any       Consistent with Zadvydas and Rosales-Garcia, for those
time periods that exceed the time limits cited in Kim would be    aliens who do not contest their removal, “if removal is not
presumptively unconstitutional.                                   reasonably foreseeable, the court should hold continued
                                                                  detention” beyond six months “unreasonable”. Zadvydas
  Implicit in Kim is that a detention of a lawful permanent       533 U.S. at 699, 701. “After the 6 month period, once the
resident subject to removal under Section 236 (c) for up to 47    alien proves good reason to believe that there is not
days is permissible. Borrowing Kim’s time limits, we should       significant likelihood of removal in the reasonably
hold that any contested detention of a lawful permanent           foreseeable future, the Government must respond to rebut that
resident under Section 236(c) for more than forty seven (47)      showing... This 6-month presumption of course does not
days is presumptively unreasonable and therefore,                 mean that every alien not removed must be released after six
unconstitutional, absent an individualized assessment of flight   months. To the contrary, an alien may be held in confinement
and dangerousness. If the lawful permanent alien appeals an       until it has determined that there is no significant likelihood
adverse decision, the presumptive time limit would be 120         of removal in the foreseeable future.” Id at 701.
days. These time limitations that are cited in Kim, reflect
No. 01-3016                         Ly v. Hansen, et al.    23    24   Ly v. Hansen, et al.                        No. 01-3016

   As the circumstances of this appeal reveal, without a            entitled to an individualized determination as to his risk
judicial time limit, detention of lawful permanent residents        of flight and dangerousness if the continued detention
could exceed six months. Here, Ly was detained for 500              became unreasonable or unjustified.
days. Despite Kim, the Appellant agency insists that “Ly’s
detention pending the completion of his removal proceedings            ([A]liens are entitled to be free form detention that is
is statutorily authorized under 8 U.S.C. 1226(c)(1)(B) and          arbitrary or capricious”). Were there to be an
fully comports with due process under the Supreme Court’s           unreasonable delay by the INS in pursuing and
decision in Kim”. (Appellant’s motion to vacate at p.4). This       completing deportation proceedings, it could become
expression of the agency’s viewpoint of reasonableness              necessary then to inquire whether the detention is not
counsels the need for numerical time limitations.                   to facilitate deportation or to protect against risk of
                                                                    flight or dangerousness, but to incarcerate for other
   Second, in Kim, the Supreme Court made it clear that where       reasons.
removal “was not practically attainable,” “detention’s goal no
longer bears a reasonable relation to the purpose for which the   123 S. Ct. at 1722 (Kennedy, J., concurring). (emphasis
individual was committed.” Id 1719, 1720 citing Zadvydas.         added). Although in an unpublished decision, the Second
Thus, for the lawful permanent residents who object to            Circuit described Justice Kennedy’s concurring opinion as
removal to countries to which actual deportation or removal       “explicating his understanding that the majority opinion may
is impractical, as here, the detention hearing should be held     allow a challenge to detention when, for example, there has
promptly or as soon as practicable prior to the expiration of     been unreasonable delay by the INS.”             Zgombic v
the 47 days of the initial detention.                             Farquharson, 68 Fed. Appx. 2, 2003WL212443248 * 1 (2nd
                                                                  Cir. 2003).
  Third, in Kim, the five justices required an individual
determination to justify extended detention albeit in different      Four other Justices in Kim, likewise would require an
contexts. In his concurring opinion in Kim, Justice Kennedy       individualized due process hearing even before the initial
recognized the necessity of a due process hearing after an        detention period. “Due process calls for an individual
unreasonable period of detention, stating that:                   determination before someone is locked away.” 123 S. Ct at
                                                                  1733 (Souter, Stevens and Ginsburg, JJ. concurring in part,
    “As a consequence, due process requires                       dissenting in part). “The statute would require the
  individualized procedures to ensure there is at least some      Government to permit a detained alien to seek an
  merit to the Immigration and Naturalization Service’s           individualized assessment of flight risk and dangerousness as
  (INS) charge and, therefore, sufficient justification to        long as the alien’s claim that he is not reportable is (1) not
  detain a lawful permanent resident alien pending a more         interposed solely for purposes of delay and (2) raises a
  formal hearing...”                                              question of “law or fact” that is not insubstantial” 123 S. Ct.
                                                                  at 1747, (Breyer, J. concurring in part, dissenting in part).
                            ***
                                                                    Here, Ly asserts an express claim that he was entitled to a
    For similar reasons, since the Due Process Clause             due process hearing and an individual assessment of his risk
  prohibits arbitrary deprivations of liberty a lawful            of flight and his perceived dangerousness to justify his
  permanent resident alien such as respondent could be            continued detention. For a lawful permanent alien resident
No. 01-3016                         Ly v. Hansen, et al.    25    26   Ly v. Hansen, et al.                      No. 01-3016

who has been detained more than forty seven (47) days             misplaced in that the majority overlooks Ly’s status and his
without a determination of his or her removeability and who       opposition to his removal. Kim is the controlling authority
objects to his deportation, I would hold such an alien resident   here for removal of lawful permanent residents who object to
is entitled to a due process hearing and an individual            their removal. Kim imposes a constitutional limitation that
assessment of his risk of flight and /or dangerous to justify     any detention must be “brief” and “limited” as well as
his or her continued detention.                                   reasonable.
   Fourth, the majority opinion places substantial reliance on      For these reasons, I respectfully dissent.
Zadvydas that involved aliens who had been ordered to be
deported and whose detention was “potentially permanent.”
Kim expressly distinguished Zadvydas as applicable to aliens
who have been ordered to be deported and whose detention
is a potentially permanent and indefinite.
Zadvydas is materially different from the present case in two
respects.
  First, the aliens there challenging their detention
  following final deportation orders were ones for who
  removal was “no longer practically attainable,” such that
  their detention did not serve its purported immigration
  purpose. In contrast, because the statutory provision at
  issue in this case governs detention of deportable
  criminal aliens pending their removal proceedings, the
  detention necessarily serves the purpose of preventing
  the aliens from fleeing prior to or during such
  proceedings. Second, while the period of detention at
  issue in Zadvydas was “indefinite” and “potentially
  permanent,” the record shows that 1226(c) detention not
  only has a definite termination point, but lasts, in the
  majority of cases, for less that the 90 days the Court
  considered presumptively valid in Zadvydas.
123 S. Ct. at 1719.
  In my view, Kim is the more relevant and controlling
authority here because Ly is a lawful permanent resident alien
who objects to his removal and his continued detention.
Thus, the majority’s substantial reliance on Zadvydas is
