                Limitations on the Detention Authority of the
                  Immigration and Naturalization Service
The Immigration and Nationality Act by its terms grants the Attorney General a full 90 days to effect
  an alien’s removal after the alien is ordered removed under section 241(a) of the Act, and it imposes
  no duty on the Attorney General to act as quickly as possible, or with any particular degree of
  dispatch, within the 90-day period. This reading of the Act raises no constitutional infirmity.
It is permissible for the Attorney General to take more than the 90-day removal period to remove an
    alien even when it would be within the Attorney General’s power to effect the removal within 90
    days. The Attorney General can take such action, however, only when the delay in removal is related
    to effectuating the immigration laws and the nation’s immigration policies. Among other things,
    delays in removal that are attributable to investigating whether and to what extent an alien has
    terrorist connections satisfy this standard. An obligation to act with “reasonable dispatch” will attach
    at some point after the expiration of the 90-day removal period.

                                                                                      February 20, 2003

            MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL

   Your Office has asked us to address two questions concerning the timing of
removal of an alien subject to a final order of removal under section 241(a) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a) (2000). First, your
Office has asked us to determine whether the Attorney General is under an
obligation to act with reasonable dispatch in effecting an alien’s removal within
the 90-day removal period established by section 241(a)(1)(A), 8 U.S.C.
§ 1231(a)(1)(A). We conclude that the INA by its terms grants the Attorney
General a full 90 days to effect an alien’s removal after the alien is ordered
removed and imposes no duty on the Attorney General to act as quickly as
possible, or with any particular degree of dispatch, within the 90-day period. We
also conclude that this reading of the Act raises no constitutional infirmity. In
particular, even under the Supreme Court’s recent decisions, such as Zadvydas v.
Davis, 533 U.S. 678 (2001), the “substantive” component of the Due Process
Clause does not impose a requirement that the Attorney General act with particular
dispatch within the 90-day removal period. To the extent that the INS General
Counsel’s Office has issued advice to the contrary, suggesting that there is such a
constitutionally-based timing obligation, we disagree with that analysis. While the
Attorney General’s ability to delay removal of an alien within the 90-day period is
not constrained by a particular timing requirement (i.e., an obligation to act with
dispatch), it is also not entirely unconstrained. We conclude that an express
decision to postpone removal of an alien until later in the 90-day period likely
must be supported by purposes related to the proper implementation of the
immigration laws. We need not definitively resolve that question here because the
delays in the particular case your Office inquired about were clearly supported by
purposes related to proper implementation of the immigration laws.




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                    Limitations on the Detention Authority of the INS


    Second, your Office has asked—in a situation where it would be logistically
possible to remove an alien within the 90-day removal period—whether and for
what purposes the Attorney General may nonetheless refrain from removing the
alien within the removal period and instead detain him beyond the 90-day period
with a view to removing him at a later time. We conclude, under each of two
alternative readings of the statute, that it is permissible for the Attorney General to
take more than the 90-day removal period to remove an alien even when it would
be within the Attorney General’s power to effect the removal within 90 days. The
Attorney General can take such action, however, only when the delay in removal
beyond the 90-day period is related to effectuating the immigration laws and the
nation’s immigration policies.

                                           I.

    These issues arose in the context of the case of a particular alien who received a
final order of removal on October 1, 2002, and whose 90-day removal period thus
expired on December 30, 2002. This alien has significant connections to a known
al Qaeda operative who was seized in Afghanistan and who is now held at the
naval base at Guantanamo Bay, Cuba. It was deemed a substantial possibility that
the alien himself was a sleeper agent for al Qaeda. Insufficient information existed
at first, however, to press criminal charges or to transfer the alien to military
custody as an enemy combatant. When it became apparent that it would be
logistically possible to remove the alien very early within the 90-day removal
period to the country that had been specified at the removal hearing (i.e., travel
documents were obtained), the question arose whether his removal could be
delayed to permit investigations concerning his al Qaeda connections to continue.
Several avenues remained for developing further information about the alien, and
such information would have been relevant for several purposes. For example, at
first, your Office had been informed by the INS that the alien had designated a
particular country of removal under section 241(b)(2)(A) of the INA, 8 U.S.C.
§ 1231(b)(2)(A). In that case, the Attorney General would have had statutory
authority to disregard that designation if he determined that removing the alien to
that country would have been “prejudicial to the United States.” Id.
§ 1231(b)(2)(C)(iv). Obviously, in order for him to make that determination, it
would have been important for the Attorney General to have the fullest infor-
mation possible about the alien’s terrorist connections, the extent of the threat he
posed, and the ability (and willingness) of the law enforcement or security services
of the destination country to deal appropriately with the alien. On further examina-
tion of the record, the INS later informed your Office that the alien had not, in fact,
designated any country of removal. That situation raised unresolved questions of
statutory interpretation concerning the Attorney General’s authority under the
statute to determine the country of removal—a decision that, again, depending
upon the scope, if any, of the Attorney General’s discretion, could obviously



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                 Opinions of the Office of Legal Counsel in Volume 27


benefit from the fullest information possible about the alien’s terrorist connections.
In addition, even apart from the question of the country to which the alien would
be removed, full information about the alien’s terrorist connections was critical for
ensuring coordination with the law enforcement and security services in the
country of removal before removing the alien. Ensuring such coordination based
upon the fullest information about the threat posed by the alien would have
promoted both the national security interests of the United States (by perhaps
providing a basis for law enforcement officials in the destination country to detain
the alien) and the foreign policy interests of the United States in maintaining good
relations with the country. Other countries ordinarily would prefer not to have
potential terrorists sent to their shores without adequate warning. Finally, if
enough further information had been developed concerning the alien, a different
course of action might have been taken with respect to him, such as criminal
prosecution or detention as an enemy combatant.
   These circumstances also raised the possibility that significant information
might be developed concerning the alien at or near the end of the 90-day period.
As a result, if it were lawful to do so, the Attorney General might have wanted to
take more than 90 days to execute the removal order and thus to detain the alien
beyond the 90-day removal period.

                                         II.

    Whether the Attorney General is required to effect an alien’s removal as quickly
as possible within the 90-day removal period established by section 241(a)(1)(A), 8
U.S.C. § 1231(a)(1)(A), is a question of statutory interpretation. In determining the
meaning of a statute, we begin by examining its text. TVA v. Hill, 437 U.S. 153, 184
n.29 (1978). “[W]e begin with the understanding that Congress ‘says in a statute
what it means and means in a statute what it says there.’” Hartford Underwriters Ins.
Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000) (quoting Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 254 (1992)). Section 241(a)(1)(A) of the INA states that
“[e]xcept as otherwise provided in this section, when an alien is ordered removed,
the Attorney General shall remove the alien from the United States within a period
of 90 days (in this section referred to as the ‘removal period’).” Section 241(a)(2)
provides that “[d]uring the removal period, the Attorney General shall detain the
alien.” The meaning of the statute is plain on its face: the Attorney General is
granted a full 90 days after an alien has been ordered removed to effect the alien’s
removal. During that period, the Attorney General is to detain the alien. The statute
does not impose a duty on the Attorney General to remove aliens as quickly as
possible within the 90-day removal period, nor does it purport to prescribe the
reasons for which the Attorney General might decide to act more quickly or more
slowly in effectuating a particular removal within the 90-day period.
    Where, as here, the language of a statute is clear, there is no need to resort to
legislative history to elucidate the meaning of the text. See, e.g., Hill, 437 U.S. at



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                    Limitations on the Detention Authority of the INS


184 n.29. Nevertheless, we note that the legislative history here is consistent with
the reading of the plain text given above—it confirms that Congress intended to
give the Attorney General a full 90 days as a reasonable period of time within
which to effect an alien’s removal. The predecessor provision to the current
section 241(a)(1) appeared at 8 U.S.C. § 1252(c) (1994), and provided that:

       When a final order of deportation under administrative processes is
       made against any alien, the Attorney General shall have a period of
       six months from the date of such order, or, if judicial review is had,
       then from the date of the final order of the court, within which to ef-
       fect the alien’s departure from the United States . . . . Any court of
       competent jurisdiction shall have authority to review or revise any
       determination of the Attorney General concerning detention, release
       on bond, or other release during such six-month period upon a con-
       clusive showing in habeas corpus proceedings that the Attorney
       General is not proceeding with such reasonable dispatch as may be
       warranted by the particular facts and circumstances in the case of any
       alien to effect such alien’s departure from the United States within
       such six-month period.

When Congress passed the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546, it short-
ened the removal period from six months to 90 days and eliminated any reference
from the INA to a requirement that the Attorney General proceed with “reasonable
dispatch” in effecting an alien’s deportation. Congress seems to have viewed its
newly-established 90-day time frame as a per se reasonable period of time in
which to effect an alien’s deportation, rendering judicial inquiry into the dispatch
with which the Attorney General performed the duty unnecessary. Neither the text
of the statute nor its legislative history provides any reason to believe that
Congress intended to impose on the Attorney General an implicit requirement that
he remove aliens from the country as quickly as possible within the 90-day
removal period.
    It might be argued that the plain-text reading outlined above raises constitution-
al issues that require a narrowing construction of the statute to limit the Attorney
General’s authority to use the full 90-day period for effecting removal. It is settled,
of course, that where there are two or more plausible constructions of a statute, a
construction that raises serious constitutional concerns should be avoided. See,
e.g., Crowell v. Benson, 285 U.S. 22, 62 (1932). There are two arguments that
might be raised for a constitutional narrowing construction here.
    First, in light of the Supreme Court’s decision in Zadvydas, it might be claimed
that the government is under an obligation, even within the 90-day statutory
period, to act with reasonable dispatch to remove the alien as quickly as possible.
The claim would be, in other words, that it would be unconstitutional for Congress




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                      Opinions of the Office of Legal Counsel in Volume 27


to grant the Attorney General 90 days in which to effect an alien’s removal
without any obligation that he act quickly within those 90 days. We reject this
view and conclude that the Constitution imposes no obstacle to such a grant of
authority.
    Second, also in light of the decision in Zadvydas, it might be argued that, if it
becomes clear at a point during the removal period that an alien can be removed,
the Constitution imposes some constraints on the purposes for which removal may
nevertheless be delayed (and detention continued) until later in the 90-day period.
The Zadvydas Court explained that detention under the INA must be related to the
purpose for which detention is authorized—securing the alien’s removal. It thus
might be argued that an express decision to delay an alien’s removal until the end
of the 90-day period must be based upon some purpose related to the proper
execution of the immigration laws. As explained below, we conclude that the
Constitution may require that the statute be read to include such a limitation. We
need not definitively resolve the hypothetical question whether removal could be
delayed for a reason wholly unrelated to executing the immigration laws, however,
because in the instant case multiple bases existed for delaying the removal of the
alien in question that were directly related to the broad considerations the Attorney
General is charged with taking into account in enforcing the immigration laws.1

                                                    A.

   It is doubtful that the terms of section 241(a)(1)(A) could plausibly be con-
strued to include a reasonable-dispatch requirement, particularly in light of
Congress’s explicit deletion of any such requirement from the statute when it
enacted the IIRIRA in 1996. Cf. Salinas v. United States, 522 U.S. 52, 60 (1997)
(principle of constitutional avoidance does not permit pressing statutory construc-
tion “to the point of disingenuous evasion”). We need not resolve that particular
issue, however, because reading the statute not to include a reasonable-dispatch
requirement—which, as we have outlined above, is the best reading of the text—
does not raise any serious constitutional questions.
   In Zadvydas, the Supreme Court held that the Constitution required reading an
implicit limitation into section 241(a)(6) of the INA, 8 U.S.C. § 1231(a)(6),
restricting the detention of an alien beyond the 90-day removal period “to a period
reasonably necessary to bring about that alien’s removal from the United States.”
533 U.S. at 689. The Court read this limitation into the statute because, in its view,
“[a] serious constitutional problem [would arise] out of a statute that . . . permits
an indefinite, perhaps permanent, deprivation of human liberty without any


    1
      Of course, it is also implicit in the granting of any authority to an executive officer that it may not
be exercised in a manner that is expressly constitutionally proscribed. Thus, the Attorney General could
not, for example, delay the removal of an alien solely as a mechanism for imposing punishment on the
alien. See, e.g., Wong Wing v. United States, 163 U.S. 228, 238 (1896).




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                   Limitations on the Detention Authority of the INS


[procedural] protection.” Id. at 692. Thus, the Court ruled that if a habeas court
determines that “removal is not reasonably foreseeable [during post-removal-
period detention], the court should hold continued detention unreasonable and no
longer authorized by statute.” Id. at 699–700.
    It could be argued that a constitutional limitation restricting the government’s
authority to detain an alien to a period “reasonably necessary to bring about that
alien’s removal” necessarily entails an obligation that the government proceed
with reasonable dispatch in effecting removal and remove the alien as soon as
reasonably practicable to do so. Even if that were a valid interpretation of the
limitation imposed by Zadvydas on post-removal-period detention under section
241(a)(6)—an issue that we need not definitively decide in this portion of our
analysis—that limitation is inapplicable to detention within the 90-day removal
period established by section 241(a)(1)(A). The constitutional concerns that
motivated the Zadvydas Court simply do not arise in the context of detention
within the removal period.
    In Zadvydas, the Court made clear that the central concern informing its consti-
tutional analysis was that the detention it was addressing was “not limited, but
potentially permanent.” 533 U.S. at 691. See also id. at 692 (stressing the “indefi-
nite, perhaps permanent deprivation of human liberty” at stake). The 90-day
removal period, by contrast, is of a fixed and relatively short duration. Indeed, the
Zadvydas Court expressly distinguished detention during the 90-day removal
period from the detention it was addressing on precisely this ground, stating that
“importantly, post-removal-period detention, unlike detention pending a determi-
nation of removability or during the subsequent 90-day removal period, has no
obvious termination point.” Id. at 697. At least one lower court has ruled that
Zadvydas is inapplicable to the 90-day removal period on precisely these grounds.
Shehata v. Ashcroft, No. 02 CIV. 2490 (LMM), 2002 WL 538845, at *2 (S.D.N.Y.
Apr. 11) (“Here, on the other hand, the 90 day period is quite limited in time, and
serves a rational purpose, to allow INS to effect removal of a person already
determined to be removable.”); see also Badio v. United States, 172 F. Supp. 2d
1200, 1205 (D. Minn. 2001) (“Zadvydas does not apply to petitioner’s claim
because pre-removal-order proceedings do have a termination point.”).
    The relatively short detention period under section 241(a)(1)(A) makes a criti-
cal difference because the holding in Zadvydas rests upon considerations of
substantive due process. Although the Court did not expressly label its decision as
one based on “substantive due process,” it made it clear that this was the founda-
tion of its reasoning as it explicitly invoked the Fifth Amendment’s Due Process
Clause, see Zadvydas, 533 U.S. at 690, and at the same time disavowed any
concern with procedural deficiencies:

      [W]e believe that an alien’s liberty interest is, at the least, strong
      enough to raise a serious question as to whether, irrespective of the




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                     Opinions of the Office of Legal Counsel in Volume 27


        procedures used, the Constitution permits detention that is indefinite
        and potentially permanent.

Id. at 696 (citation omitted) (emphasis added). The grounding of the decision in
substantive due process is important because, as a general rule, government
conduct violates substantive due process constraints only when it is so extreme
and intrusive that it can be said to “shock the conscience.” Rochin v. California,
342 U.S. 165, 172 (1952). The prospect of “indefinite and potentially permanent”
detention may shock the conscience of the courts, Zadvydas, 533 U.S. at 696, but
detention for a limited period of 90 days clearly does not. In fact, several courts
called upon to review early immigration statutes that did not specify a fixed period
for the government’s detention authority settled upon similar time frames in
specifying the permissible length of a “reasonable” detention. See, e.g., United
States ex rel. Janavaris v. Nicolls, 47 F. Supp. 201, 202 (D. Mass. 1942) (“The
period of time which judges have found to be appropriate in peace-time varies
from one month . . . to four months.”); United States ex rel. Ross v. Wallis, 279 F.
401, 404 (2d Cir. 1922) (holding that four months is a reasonable time); Caranica
v. Nagle, 28 F.2d 955, 957 (9th Cir. 1928) (holding that two months is a reasona-
ble time); Saksagansky v. Weedin, 53 F.2d 13, 16 (9th Cir. 1931) (authorizing the
detention of an alien already held for five months for an additional 30 days).
    More important, the Zadvydas Court expressly held that the detention of an
alien for a period of up to six months is presumptively constitutionally reasonable
and does not violate substantive due process constraints. See Zadvydas, 533 U.S.
at 701. If detention for a period of six months to effect removal is presumptively
reasonable and does not violate an alien’s substantive due process rights, it follows
a fortiori that detention during the shorter 90-day removal period cannot be
constitutionally problematic. See Borrero v. Aljets, 178 F. Supp. 2d 1034, 1039 (D.
Minn. 2001) (“Zadvydas confirms that a legally admitted alien can always be
detained during the 90-day ‘removal period’ contemplated by the statute. But after
that, the Court held, the alien can be held for only a ‘reasonable period,’ which is
presumed to be six months”), rev’d on other grounds, 325 F.3d 1003 (8th Cir.
2003). Where conduct that “shocks the conscience” is the ultimate touchstone for
constitutional analysis, if six months’ detention is reasonable, detention for 90
days is simply below the threshold for substantive due process constitutional
concerns. Indeed, Zadvydas makes the constitutionality of detention during the 90-
day removal period even clearer than this, because the six-month “presumptively
reasonable” period established by that decision may very well not begin to run
until after an alien has already been detained for the 90-day removal period.2

   2
      Zadvydas does not make it clear whether the six-month “presumptively reasonable” period begins
at the end of, or encompasses, the 90-day removal period. Zadvydas, 533 U.S. at 700–01. The lower
courts appear to be split on the issue. Compare Borrero v. Aljets, 178 F. Supp. 2d 1034, 1040–41 (D.
Minn. 2001) (“As interpreted by the Supreme Court in Zadvydas, § 1231(a)(6) authorizes the INS to
detain aliens for six months after the expiration of the 90-day removal period.”) (emphasis added), with




                                                  64
                       Limitations on the Detention Authority of the INS


Substantive due process constraints thus do not afford any basis for reading a
“reasonable dispatch” requirement into section 241(a)(1)(A).
    In addition, because this particular case involves removal of an alien with
demonstrated ties to members of a terrorist organization with which the United
States is currently at war, it is even plainer that detention for 90 days without any
obligation on the government to act quickly cannot be a concern of constitutional
dimensions under the reasoning in Zadvydas. In outlining the constitutional
problems with potentially indefinite detention, the Supreme Court made it express
that the principles it was applying might very well not apply to the government’s
actions dealing with aliens suspected of involvement in terrorism. The Court
distinguished that context, saying that “we [do not] consider terrorism or other
special circumstances where special arguments might be made for forms of
preventive detention and for heightened deference to the judgments of the political
branches with respect to matters of national security.” 533 U.S. at 696. Indeed, the
Court implied that the government’s interest in preventing terrorism is sufficiently
great that detention measures specifically targeting “suspected terrorists” are
deserving of heightened judicial deference. See id. at 691. Thus, the Court
suggested that, in the context of an alien suspected of involvement in terrorism,
detention might well be justified beyond the six-month period of detention that the
Court deemed presumptively constitutionally reasonable for any case. As a result,
whereas here, investigation to determine whether an alien is connected to a
terrorist organization is part of the justification for prolonging detention and the
detention remains confined within the 90-day removal period, there can be no
basis for concluding that substantive due process constraints are implicated.
    Although we conclude, based on the reasoning of Zadvydas, that the Constitu-
tion does not require that a “reasonable dispatch” obligation be read into section
241(a)(1)(A), one line of lower court decisions regarding the substantive due
process implications of prolonged detention should be briefly distinguished.
Certain lower courts addressing pretrial detention in the criminal justice system
have held that lengthy detention may violate substantive due process constraints
under certain circumstances and that evaluating a claimed violation “requires
assessment on a case-by-case basis, since due process does not necessarily set a
bright line limit for length of pretrial confinement.” United States v. Gonzales
Claudio, 806 F.2d 334, 340 (2d Cir. 1986). See also United States v. Accetturo,
783 F.2d 382, 388 (3d Cir. 1986). It might be thought that those cases call into
question our blanket conclusion that detaining aliens for a period of 90 days does

Malainak v. INS, No. 3-01-CV-1989-P, 2002 WL 220061, at *2 (N.D. Tex. Feb. 11, 2002) (“the Court
opined that a presumptively reasonable period of detention was between the ninety days provided for
by the IIRIRA and six months”) (emphasis added). In November 2001, the Department issued
regulations reflecting an assumption that the presumptively reasonable six-month period from
Zadvydas includes the 90-day removal period. 8 C.F.R. § 241.13(b)(2)(ii) (2002). The choice to treat
the six-month period in that fashion in the regulation, of course, is not definitive on constitutional
requirements for measuring the six-month period.




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                 Opinions of the Office of Legal Counsel in Volume 27


not violate substantive due process guarantees, even where the Attorney General
fails to act with reasonable dispatch. The purpose for the case-by-case inquiry
engaged in by the courts in those cases, however, is to examine factors other than
length of confinement that the courts deemed relevant to the substantive due
process inquiry—such as which party is primarily responsible for any delays. See,
e.g., Gonzales Claudio, 806 F.2d at 340 (“we also consider the extent to which the
prosecution bears responsibility for the delay that has ensued”). If the factor of
length of confinement is viewed in isolation, applicable case law makes it crystal
clear that a 90-day detention period is not constitutionally objectionable, and that
no case-by-case inquiry into the length of confinement is therefore required. As we
have already mentioned, Zadvydas explicitly states that civil detention for a period
of six months in the context of deportation is presumptively constitutionally
reasonable, see 533 U.S. at 701, and even cases examining the constitutionality of
prolonged pretrial detention have typically begun their analysis by presuming that
the 90-day period established by the Speedy Trial Act is a reasonable detention
period. See, e.g., Gonzales Claudio, 806 F.2d at 340–41 (citing 18 U.S.C.
§ 3164(b)).
    Moreover, precedents relating to preventive pretrial detention in criminal cases
are not directly applicable to the context of detention incident to removal. In
distinguishing its own pretrial detention precedent from the context of immigration
proceedings, the Second Circuit noted that “a deportation proceeding is not a
criminal proceeding . . . and the full trappings of legal protections that are
accorded to criminal defendants are not necessarily constitutionally required in
deportation proceedings.” Dor v. INS, 891 F.2d 997, 1003 (2d Cir. 1989). In a later
decision, the Second Circuit elaborated on this distinction:

      It is axiomatic, however, that an alien’s right to be at liberty during
      the course of deportation proceedings is circumscribed by considera-
      tions of the national interest. Control over matters of immigration
      and naturalization is the “inherent and inalienable right of every sov-
      ereign and independent nation.” Fong Yue Ting v. United States, 149
      U.S. 698, 711, 13 S.Ct. 1016, 1021, 37 L.Ed. 905 (1893). . . . In ex-
      ercising its broad power over immigration and naturalization, “Con-
      gress regularly makes rules that would be unacceptable if applied to
      citizens.” Mathews, 426 U.S. at 80, 96 S.Ct. at 1891. Governmental
      conduct that may be considered “shocking” when it serves to deprive
      the life, liberty or property of a citizen may not be unconstitutional
      when directed at an alien.

Doherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991) (citations omitted), cert.
dismissed, 503 U.S. 901 (1992). Thus, the Second Circuit considers the detention
of an alien prior to removal to be constitutionally permissible unless the alien can
show that “his continuing detention was the result of an ‘invidious purpose, bad




                                         66
                   Limitations on the Detention Authority of the INS


faith or arbitrariness.’” Ncube v. INS Dist. Dirs. & Agents, No. 98 Civ. 0282 HB
AJP, 1998 WL 842349, at *16 (S.D.N.Y. Dec. 2), citing Doherty, 943 F.2d at 212.
Especially where the Supreme Court has already established that detention of an
alien for a period of six months is presumptively constitutionally reasonable,
detention for a period of 90 days in itself cannot possibly satisfy that exacting
standard for establishing a violation. Thus, lower court decisions that have
examined the substantive due process implications of pretrial detention do not call
into question our conclusion that the Constitution does not require that the
Attorney General act with reasonable dispatch during the 90-day removal period.
    Finally, we note that in January 2002, the INS General Counsel’s Office issued
an opinion in which it advised that, during the 90-day removal period, the INS is
constitutionally required to “proceed[] with reasonable dispatch to arrange
removal.” Memorandum for Michael A. Pearson, Executive Associate Commis-
sioner, Office of Field Operations, from Dea Carpenter, Deputy General Counsel,
Re: Authority to Detain During the 90-Day Removal Period at 1 (Jan. 28, 2002)
(“INS Memorandum”). Based on the analysis outlined above, we disagree with the
INS’s conclusion.
    The INS derived the reasonable-dispatch requirement from language in
Zadvydas construing section 241(a)(6) and stating that “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.” INS Memorandum at 2, citing Zadvydas, 533 U.S. at 689. The INS
reasoned that, “while the Zadvydas opinion is technically limited to post-removal
period detention, and while the statute provides authority to detain an alien with a
final order of removal for up to the 90-day removal period, the INS should not
continue to detain an alien during the removal period beyond the point at which
the alien could be removed except to the extent that the INS is taking necessary
actions to process the alien for removal.” INS Memorandum at 3. In our view, this
conclusion was in error because it mistakenly applies the limitations on post-
removal period detention under section 241(a)(6) to removal-period detention
under section 241(a)(1)(A). As explained above, neither the plain language of
section 241(a)(1)(A) nor its legislative history allows any inference that Congress
intended to impose a reasonable-dispatch obligation on the INS during the 90-day
removal period. Moreover, the constitutional concerns that impelled the Supreme
Court to read such an obligation into section 241(a)(6) simply are not applicable to
detention during the 90-day removal period. In Zadvydas, the Supreme Court
reasoned that because indefinite civil detention of lawfully admitted aliens would
raise serious constitutional questions, detention must be limited to a period
reasonably necessary to effect removal. The Zadvydas Court expressly distin-
guished the 90-day removal period, however, on the ground that it has a defined
termination point. 533 U.S. at 697. Lower courts, accordingly, have held that
Zadvydas’s constitutional reasoning is inapplicable to detention during the
removal period. See Shehata, 2002 WL 538845, at *2. In short, we disagree with



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                      Opinions of the Office of Legal Counsel in Volume 27


the INS’s reading of Zadvydas, and reaffirm our conclusion that the Constitution
does not impose a reasonable-dispatch obligation during the 90-day removal
period.3

                                                   B.

    The second argument that might be raised for a constitutionally based narrow-
ing construction of section 241(a)(1)(A) would rest on the theory that, once all of
the mechanical steps that are necessary to effectuate an alien’s removal have been
taken, the Constitution imposes some limitations on the purposes for which it is
permissible to further delay the alien’s removal while keeping the alien in
detention. In Zadvydas, the Supreme Court explained that the reasonableness of an
alien’s detention must be measured “primarily in terms of the statute’s basic
purpose,” which the Court identified as securing the alien’s removal. Zadvydas,
533 U.S. at 699. Similarly, in the wake of Zadvydas, the Third Circuit has stated
that “[t]he requirements of substantive due process are not met unless there is a
close nexus between the government’s goals and the deprivation of the interest in
question.” Patel v. Zemski, 275 F.3d 299, 311 (3d Cir. 2001). Thus, the INS has
taken the position, both in the INS Memorandum and in some instances of prior
litigation, that it does not have the power to detain aliens for any purpose other



    3
      The INS Memorandum also cites at length several decisions addressing the impact of INS deten-
tion on triggering the Speedy Trial Act where it appears that the INS has held an alien solely for the
purpose of allowing a criminal investigation (into the same conduct that forms the basis for deporta-
tion) to proceed. See INS Memorandum at 3–4. It is unclear to what extent, if at all, the INS intends to
rely on these cases for the proposition that the INS must act with reasonable dispatch. Instead, the INS
relies on them primarily for the proposition that the INS can detain an alien solely for purposes of
effecting removal, an issue we address below. See infra Part II.B. In any event, the Speedy Trial Act
cases provide no support for any general obligation on the INS to act with dispatch. Rather, they
establish solely that, when an alien is prosecuted for the same conduct that formed the basis for the
immigration violation on which he was held and when the INS has delayed deportation (and prolonged
detention) solely to permit the criminal investigation to proceed, the INS detention may trigger the
deadlines of the Speedy Trial Act. That, in turn, may lead to a Speedy Trial Act violation that may be
raised in the criminal trial to seek dismissal of the indictment. See, e.g., United States v. Garcia-
Martinez, 254 F.3d 16 (1st Cir. 2001); see also United States v. De La Pena-Juarez, 214 F.3d 594,
598–99 (5th Cir.), cert. denied, 531 U.S. 983 (2000), and cert. denied, 531 U.S. 1026 (2000). That
consequence for the criminal trial does not mean by any stretch that the INS lacks power to detain the
alien for the full 90 days prior to removal or that the INS has a general obligation to act with dispatch
during that time. It is true that, in explaining how INS detention solely for purposes of criminal
investigation may trigger the Speedy Trial Act, one district court stated in dicta that “[i]n essence, the
INS has an obligation to act with all deliberate speed to remove from the United States a detained alien
who has been finally determined to be deportable.” United States v. Restrepo, 59 F. Supp. 2d 133, 138
(D. Mass. 1999). In context, it is clear that all the court was indicating was that, when the sole purpose
of detention is providing time for criminal investigation, there may be consequences under the Speedy
Trial Act for the prosecution. To the extent that this dictum might be construed to suggest anything
further concerning a general obligation to act with dispatch, there is no support in the court’s Speedy
Trial Act analysis for such a conclusion and it is not a correct statement of the law.




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                         Limitations on the Detention Authority of the INS


than the effectuation of removal.4 See INS Memorandum at 1; United States v.
Restrepo, 59 F. Supp. 2d 133, 138 (D. Mass. 1999).5 Even before Zadvydas, in
fact, several district courts had expressed the view that, once it has become
apparent that an alien cannot be deported, his detention can no longer be said to be
for purposes of effecting his removal. See United States ex rel. Blankenstein v.
Shaughnessy, 117 F. Supp. 699, 703–04 (S.D.N.Y. 1953) (“courts have the power
to release on habeas corpus an alien held for deportation on a showing . . . that the
detention cannot in truth be said to be for deportation”); United States ex rel.
Kusman v. INS, 117 F. Supp. 541, 544–45 (S.D.N.Y. 1953); Rodriguez v.
McElroy, 53 F. Supp. 2d 587, 591 n.6 (S.D.N.Y. 1999) (“[d]etention is intended
for the sole purpose of effecting deportation”); Fernandez v. Wilkinson, 505 F.
Supp. 787, 793 (D. Kan. 1980), aff’d, 654 F.2d 1382 (10th Cir. 1981); Williams v.
INS, No. 01-043 ML, 2001 WL 1136099, at *4 (D.R.I. Aug. 7, 2001).
   There is support in the cases for the general principle suggested by the INS to
this extent: the detention of an alien—perhaps even during the 90-day removal
period—likely must be related to enforcing the immigration laws and properly
effecting the alien’s removal in accordance with the nation’s immigration laws and
policies. Thus, in the abstract, it might raise difficult constitutional questions if the
Attorney General were expressly to delay the removal of an alien (and thereby
prolong his detention) solely for a purpose that was—by hypothesis—entirely
unrelated to any legitimate interest in the enforcement of the immigration laws.6
We need not definitively decide whether such a hypothetical scenario would raise
constitutional infirmities, however, because in the present case there are reasons
directly related to the enforcement of the immigration laws that justify any delay
in the alien’s removal.7 Of course, acknowledging (as we do for purposes of


   4
      In coming to this conclusion, the INS relies heavily on several cases holding that, when aliens
detained by the INS are held solely for the purpose of facilitating a criminal investigation, the detention
triggers the provisions of the Speedy Trial Act. See INS Memorandum at 3–4. As noted above,
however, those cases merely interpret the Speedy Trial Act and the guarantees it provides a defendant
in the context of his criminal case. It might well be the case that, if the INS were to hold an alien solely
for the purpose of permitting a criminal investigation to proceed, there would be a Speedy Trial Act
problem in the criminal prosecution. That does not mean, however, that the INS lacked legal authority
to detain the alien while the criminal investigation proceeded. We therefore do not view those cases as
useful for determining the scope of the INS’s authority under section 241(a)(1) of the INA to delay
removal of an alien during the 90-day removal period.
    5
      See also INS Memorandum at 5 (“While nothing in the language of the statute requires that the
INS expedite an alien’s removal during the 90-day removal period, or that the INS remove an alien at
the very earliest point at which travel arrangements can be made . . . detention beyond that point must
be related to removing the alien.”).
    6
      Of course, as noted above, see supra note 1, it is also clear that the INS could not prolong an
alien’s detention for a constitutionally impermissible purpose
    7
      Even if other motivations exist in addition to the need to develop information relevant to decisions
in the deportation process, to our knowledge it has never been suggested that the existence of additional
governmental motivations can undermine or invalidate a detention that is supported by a lawful
purpose. See, e.g., United States ex rel. Zapp v. INS, 120 F.2d 762, 764 (2d Cir. 1941) (ongoing




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                      Opinions of the Office of Legal Counsel in Volume 27


analysis here) that the reason for an alien’s detention must be related to legitimate
interests in enforcing the immigration laws does not in itself provide much
concrete guidance for determining precisely what activities meet that test. Rather,
it merely frames the next step of the inquiry. Here, we cannot purport by any
means to provide a comprehensive assessment of all the tasks or all the inquiries
that may meet that standard in the myriad scenarios that may arise. Given the
numerous broad objectives that underlie the nation’s regulation of immigration—
many of which relate to protecting our citizens from harm at the hands of aliens—
there are potentially a vast array of interests legitimately related to policing
immigration that may have a bearing on the Attorney General’s decision (effected
through the INS) concerning exactly when during the removal period an alien
should be removed.8 For present purposes, we limit our discussion to the interests
relevant in this case.
   At a bare minimum, of course, administrative tasks such as making transporta-
tion arrangements, securing travel documents, communicating with domestic and
foreign law enforcement agencies, and making internal administrative arrange-
ments for escorts and security are all legitimately related to removal. Accord INS
Memorandum at 4.
   In our view, moreover, there is a substantially broader range of immigration-
related considerations that the Attorney General is permitted to take into account
in effecting the removal of an alien, and thus deciding whether and exactly when
to remove an alien. For example, as the Supreme Court acknowledged in
Zadvydas, the immigration policy of the United States is inextricably intertwined
with complex and important issues of foreign policy. Zadvydas, 533 U.S. at 700.
See also Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952) (“It is pertinent
to observe that any policy toward aliens is vitally and intricately interwoven with
contemporaneous policies in regard to the conduct of foreign relations, the war
power, and the maintenance of a republican form of government.”). Every removal
of an alien necessarily involves an act affecting foreign policy because it requires
sending the alien to another country. In some cases, the foreign policy implications


criminal investigations do not affect the INS’s removal authority); cf. Whren v. United States, 517 U.S.
806, 811–13 (1996) (holding that subjective motive of officers for traffic stop is irrelevant where stop is
supported by probable cause and thus rejecting “any argument that the constitutional reasonableness of
traffic stops depends on the actual motivations of the individual officers involved”); Reno v. Am.-Arab
Anti-Discrim. Comm., 525 U.S. 471, 491 (1999) (explaining that where an alien’s presence in this
country is a violation of the immigration laws, he may be deported and the possible existence of
additional reasons for the government’s focus of enforcement efforts on him is irrelevant; indeed, the
“Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a
special threat”).
    8
      For example, 8 U.S.C. § 1231(c)(2)(A)(ii) makes it express that the Attorney General may stay the
removal of an alien stopped upon arriving at a port of entry (who otherwise would be removed
“immediately,” id. § 1231(c)(1)) if the “alien is needed to testify in [a criminal] prosecution.” A similar
need for an alien’s presence in a criminal or civil trial may well be a legitimate concern justifying a
delay in removal. We need not decide such questions here.




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                    Limitations on the Detention Authority of the INS


of that act may be significant. As the Supreme Court has recognized, enforcement
priorities in the immigration context may reflect “foreign-policy objectives” and it
is even possible that the Executive might wish “to antagonize a particular foreign
country by focusing on that country’s nationals.” Reno v. Am.-Arab Anti-Discrim.
Comm., 525 U.S. 471, 491 (1999). See also Mathews v. Diaz, 426 U.S. 67, 81
(1976) (noting that decisions relating to immigration “may implicate our relations
with foreign powers”); cf. Fong Yue Ting v. United States, 149 U.S. 698, 705
(1893) (grounding federal control over ingress and egress of aliens in part in
federal government’s “entire control of international relations”). More importantly
here, releasing criminal or terrorist aliens into another country without providing
adequate warning to the appropriate law enforcement or other officials in the
receiving country can have adverse consequences for the security of that country,
which can lead to the souring of diplomatic relationships or other negative results
for foreign policy. Similarly, releasing aliens from United States custody who are
suspected of involvement with terrorism can have a profound impact on our own
national security. National security is also a concern inherently relevant to policing
the flow of persons across our borders under the immigration laws. See generally
Carlson v. Landon, 342 U.S. 524, 534–36 (1952).
    It is not only common sense that makes clear the inherent relationship between
enforcing the immigration laws and considerations of both foreign policy and
national security; rather, those considerations are embedded in the text of the
immigration laws themselves. For example, the fact that an alien’s presence in the
United States could result in “adverse foreign policy consequences” is in itself a
grounds for removal under the INA. See INA § 237(a)(4)(C)(i), 8 U.S.C.
§ 1227(a)(4)(C)(i) (2000). Similarly, in certain circumstances, the Attorney
General may block the departure of an alien from the United States when it would
be deemed prejudicial to national security interests to permit him to depart. See 8
C.F.R. § 215.3(b), (c) (2002).
    More importantly here, the INA expressly gives the Attorney General authority
in many instances to make discretionary decisions bearing upon the removal of an
alien based on broad considerations of policy. For example, section
241(b)(2)(C)(iv) provides that “[t]he Attorney General may disregard [an alien’s
designation of a country to which he would like to be removed] if the Attorney
General decides that removing the alien to the country is prejudicial to the United
States.” Similarly, section 241(b)(2)(E)(vii) provides that the Attorney General is
not to remove an alien to certain countries, even if they are willing to accept the
alien, if he determines that it is “impracticable” or “inadvisable.” By granting the
Attorney General authority to make such determinations, Congress made it clear
that the broad considerations of foreign policy or national security that might
underlie such decisions are directly related to—indeed, are an integral part of—the
enforcement of the immigration laws. Where more time is needed for the Attorney
General to receive further information bearing on such decisions, the investigation




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                      Opinions of the Office of Legal Counsel in Volume 27


to generate such information is legitimately related to enforcing the immigration
laws and can justify delaying the alien’s departure.
    Thus, at a minimum, where the Attorney General has a statutorily prescribed
decision to make concerning the removal of an alien—such as whether it would be
“prejudicial to the United States” to remove him to a particular country—
developing the information needed for the Attorney General to make that determi-
nation wisely is a task that is related to proper implementation of the immigration
laws. It would thus be justifiable to delay an alien’s removal while an investigation
to develop that information (including information about whether the alien has
terrorist or criminal connections) is pursued.
    In addition, even where the Attorney General does not have such an express
statutory determination to make, we conclude that efforts to investigate an alien’s
background to determine, for example, ties to terrorist organizations are legiti-
mately related to the process of removal. Full information on such aspects of an
alien’s background may be critical for a number of purposes. It permits the United
States to coordinate appropriately with law enforcement officials in the receiving
country to ensure that they are aware of any threats the alien might pose and might
potentially benefit the national security interests of both the United States and the
receiving country by providing officials in the receiving country a basis for
arresting upon arrival an alien who poses a serious threat. Taking such steps to
coordinate with the receiving country is part and parcel of the proper implementa-
tion of the immigration laws. Delaying departure of an alien until later in the 90-
day period in order to continue pursuing such investigations into terrorist ties is
thus entirely permissible.9 It is true that, as a purely mechanical matter, the
physical removal of an alien and his transportation might be arranged without
thoroughly investigating his background and without taking the time to appropri-
ately inform countries that may be willing to accept him about the results of our



    9
      We note that the INS appears to agree in principle with the understanding we have outlined here
concerning the factors that are legitimately considered in effecting an alien’s removal. In discussing
“critical aspects of the removal process,” the INS has stated as follows:
        It is clearly a legitimate governmental interest that the INS communicate with other
        law enforcement agencies, both domestic and foreign, and make sure that a particular
        alien is not wanted for prosecution or needed as part of an investigation, in which case
        the alien could be transferred into the legal custody of another law enforcement agen-
        cy. In the context of the investigation into the September 11, 2001 attacks on the Pen-
        tagon and the World Trade Center, the United States and the country of removal also
        have a legitimate interest in ensuring to the extent possible that a particular alien has
        no connection with any terrorist organization or activity.
INS Memorandum at 4 (emphasis added). The full scope of the conclusions that the INS drew from this
analysis is not entirely clear. As the text above explains, we conclude that if investigations into an
alien’s terrorist connections are ongoing during the 90-day removal period, postponing removal until
later in the period in order to permit such investigations to continue is permissible. Such investigations
are legitimately related to effectuating the removal properly under the immigration laws.




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                      Limitations on the Detention Authority of the INS


investigations. But there can be no question that time spent on such efforts is
nevertheless reasonably related to the enforcement of the immigration laws.

                                              III.

   Your Office has also asked us to determine whether (and under what circum-
stances) the Attorney General may decide to take longer than the 90-day removal
period to remove an alien even where it would be logistically possible to accom-
plish the removal before the expiration of the 90 days. We conclude, under either
of two alternative readings of the statute, that at least certain categories of
removable aliens may be held by the INS beyond the 90-day removal period, at
least where there are reasons for the delay that are related to carrying out the
immigration laws. We note, however, that under the Supreme Court’s decision in
Zadvydas, an obligation to act with “reasonable dispatch” will attach at some point
after the expiration of the 90-day removal period.

                                               A.

    Section 241(a) of the INA directs that the Attorney General “shall remove”
aliens within 90 days of the date on which they are ordered removed. INA
§ 241(a)(1)(A). It also indicates, however, that section 241 elsewhere provides
exceptions to that general rule. Id.10 Section 241(a)(6) on its face provides such an
exception. It states that “[a]n alien ordered removed who is inadmissible under
section 212 [1182], removable under section 237(a)(1)(C), 237(a)(2), or 237(a)(4)
[1227] 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.”
    The plain text of the provision expressly states, in language indicating a grant
of authority, that listed classes of aliens “may be detained beyond the removal
period.” By its terms it thus grants the Attorney General the power to refrain from
removing an alien—and instead to keep him in detention—after the removal
period has expired. The statute does not provide any preconditions for the exercise
of this authority, other than that the alien must belong to one of the listed catego-
ries. Thus, in the Zadvydas litigation the United States took the position that “by
using the term ‘may,’ Congress committed to the discretion of the Attorney
General the ultimate decision whether to continue to detain such an alien and, if
so, in what circumstances and for how long.” Brief for the Petitioners, Ashcroft v.
Ma, 533 U.S. 678 (2001) (No. 00-38), 2000 WL 1784982, at *22 (filed Nov. 24,
2000).


   10
      The provision reads: “Except as otherwise provided in this section, when an alien is ordered
removed, the Attorney General shall remove the alien from the United States within a period of 90
days . . . .”




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    Nothing in the Supreme Court’s decision in Zadvydas casts any doubt on the
validity of the plain-text reading of section 241(a)(6) as an express authorization
for the Attorney General to detain—and thus refrain from removing—the listed
classes of aliens beyond the removal period. The Zadvydas Court held that it
would raise serious constitutional questions for Congress to authorize the indefi-
nite detention of aliens falling into the listed classes. It thus read into the statute an
implicit limitation on the allowable duration of post-removal-period detention.
533 U.S. at 689 (“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”). The Court also implied that
detention beyond the 90-day removal period must be in furtherance of removal-
related purposes, as it stated that the reasonableness of a detention should be
measured “primarily in terms of the statute’s basic purpose, namely assuring the
alien’s presence at the moment of removal.” Id. at 699. Nothing in the Court’s
decision, however, calls into question the central point that section 241(a)(6)
constitutes an express source of authority to detain aliens in the listed classes
beyond the removal period, albeit subject to the above limitations.
    This plain-text reading, moreover, does not lead to an absurd or an unconstitu-
tional result. The statute limits the authority to prolong detention beyond the
removal period to particular classes of aliens designated by Congress. The aliens
listed in the statute include aliens who were never legally admitted to the country,
INA § 212, aliens who violate their nonimmigrant status or their conditions of
entry, id. § 237(a)(1)(C), criminal aliens, id. § 237(a)(2), aliens who are a potential
threat to national security, id. § 237(a)(4), and aliens deemed by the Attorney
General to constitute a flight risk or a danger to the community, id. § 241(a)(6).
Congress could reasonably have anticipated that in many instances additional time
beyond the 90-day removal period would be required to remove these classes of
aliens, perhaps because of heightened security concerns, the need to conduct
especially thorough background investigations, or the difficulty that might be
encountered in finding foreign countries willing to accept such aliens. Zadvydas
confirms the constitutionality of holding such aliens beyond the 90-day removal
period, and establishes that it is constitutionally permissible to hold aliens in
confinement “until it has been determined that there is no significant likelihood of
removal in the reasonably foreseeable future.” 533 U.S. at 701. Our plain text
reading of section 241(a)(6) is thus constitutionally unproblematic.
    It might be argued that section 241(a)(6) does not itself constitute an exception
to the 90-day rule, but rather merely empowers the Attorney General to detain,
rather than release, aliens who happen, for some other reason, to still be in the
country at the expiration of the 90-day removal period (for example, because no
country would accept them or because their removal was delayed based upon
some other source of authority that provides an exception to the command to
remove aliens within 90 days). Under this view, section 241(a)(6) would be
understood as a parallel provision to section 241(a)(3). Section 241(a)(3) gives



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                   Limitations on the Detention Authority of the INS


authority to impose supervised release when it happens that an alien has not been
removed within the 90-day period. Section 241(a)(6), the argument would go,
should be understood as simply a parallel authority to detain the alien in the same
circumstance. The difficulty with that approach to the statute is that the two
sections are not drafted in parallel terms. Congress demonstrated in enacting
section 241(a)(3) that it knows how to phrase language that does not grant an
authority to delay removal of an alien beyond the 90-day period, but at the same
time does give a power that can be exercised when it happens (for some other
reason) that an alien has not been removed by the deadline. Section 241(a)(3)
empowers the Attorney General to impose terms of supervised release on an alien
“[i]f the alien does not leave or is not removed within the removal period.” The
quoted language makes it clear that section 241(a)(3) does not itself constitute
authorization to delay removal beyond the removal period, but rather merely
establishes an authority to impose supervised release in a certain situation—the
situation where it happens that alien has not been removed within the 90 days. The
reasons why the alien has not been removed are not specified, and presumably
could include the impossibility of removal or the exercise of some other authority
to delay removal. The absence of similar conditional language triggering the
application of section 241(a)(6)—just three paragraphs later in the same subsec-
tion—is a strong textual indication that section 241(a)(6) is not similarly limited.
Instead, it was intended to serve as a general authorization for the Attorney
General to refrain from removing the listed classes of aliens and to detain them
beyond the removal period. It is well settled, after all, that “[w]here Congress
includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion and exclusion.” Russello v. United States,
464 U.S. 16, 23 (1983).
    Finally, we note that there is further textual support for the conclusion that
section 241(a)(6) cannot properly be read as applying solely to a situation where it
has proven impossible to remove an alien within the 90-day removal period. Here
again, Congress knows how to express such a limitation when it wants to impose
one, and it did so in the very next subsection of the statute. Section 241(a)(7)
allows the Attorney General to authorize employment for those aliens who,
although ordered removed, “cannot be removed due to the refusal of all countries
designated by the alien or under this section to receive the alien.” That provision
explicitly limits a grant of employment authorization to situations where it is
impossible to remove an alien because no country is willing to accept him. The
absence of similar language from section 241(a)(6) demonstrates that Congress did
not intend similarly to limit the Attorney General’s discretion in determining when
and under what circumstances to detain aliens falling within the listed classes
beyond the 90-day removal period.




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                     Opinions of the Office of Legal Counsel in Volume 27


                                                  B.

   Even if section 241(a)(6) did not authorize the Attorney General to delay re-
moval of an alien beyond the removal period and instead provided solely authority
to detain aliens who happen, for some other reasons, to still be in the country after
the removal period, we would still conclude that the Attorney General has
statutory authority to delay removal of at least some aliens until beyond the 90-day
deadline.
   We start with the observation that the text of section 241 makes it clear that
Congress did not intend to obligate the Attorney General to remove aliens within
the removal period in all instances. Despite the mandatory language directing that
the Attorney General “shall remove” aliens within the removal period, numerous
provisions in section 241 expressly contemplate that aliens who have been ordered
removed will still be in the country after the expiration of the removal period. For
example, as noted above, section 241(a)(3) establishes standards for supervised
release of aliens that apply “[i]f the alien does not leave or is not removed within
the removal period.” Similarly, under the reading of section 241(a)(6) that we are
assuming for this portion of our analysis, that provision provides authority for the
Attorney General to detain an alien who has not been removed within the removal
period. Both of these provisions assume a situation in which an alien has not been
removed by the end of the removal period. They would make no sense if the INA
imposed an ironclad legal obligation to effect the removal of all aliens before the
removal period ended. Similarly, section 241(a)(7) permits the Attorney General
to grant work authorizations to aliens who have been ordered removed and applies
only in limited circumstances (such as where no country will accept the alien) that
suggest the alien will be in the country well beyond the 90 days.
   Other provisions in section 241 reinforce the conclusion that Congress under-
stood that, in at least some instances, aliens would not be removed within the
removal period. Section 241(b) establishes a detailed decision tree that the
Attorney General must follow in determining to which country an alien should be
removed. In some instances, the statute contemplates that the Attorney General
may have to negotiate sequentially with as many as nine or more separate
countries to secure permission to remove an alien, with each round of negotiations
taking as many as 30 days.11 See INA § 241(b)(2). It might simply be impossible to

    11
       For example, an alien who is to be removed under section 241(b)(2) first has the opportunity to
designate the country to which he would like to be removed. See INA § 241(b)(2)(A). Once the alien
has designated a country, that country is accorded a minimum of 30 days to decide whether to accept
the alien. See INA § 241(b)(2)(C)(ii). The Attorney General may also override the alien’s designation if
he determines that removing the alien to the designated country would be “prejudicial to the United
States.” See INA § 241(b)(2)(C)(iv). If the designated country declines to accept the alien, or if the
Attorney General overrides the designation, the Attorney General is instructed by the statute to attempt
to remove the alien to the country of his nationality or citizenship. See INA § 241(b)(2)(D). That
country is then accorded a presumptive 30 days by the statute to decide whether to accept the alien, but
here the Attorney General is further vested with discretion to alter that time period, raising the




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                         Limitations on the Detention Authority of the INS


complete this entire process within the 90-day removal period, even without taking
into account the time that the Attorney General and his agents must devote to such
administrative tasks as securing necessary travel documents and making appropri-
ate security arrangements. Thus, as the Supreme Court acknowledged in Zadvydas,
“we doubt that when Congress shortened the removal period to 90 days in 1996 it
believed that all reasonably foreseeable removals could be accomplished in that
time.” 533 U.S. at 701.
    While the text of section 241 thus makes it clear that there may be instances in
which an alien is not removed within the removal period, that in itself does not
explain the circumstances that would make it permissible for the Attorney General
to fail to accomplish removal within the allotted time. The discussion above does
suggest one such circumstance—namely, the situation where it is simply not
possible to remove an alien within 90 days because a country has not yet been
found that will accept him. As explained above, the detailed decision tree estab-
lished in section 241(b) sets out a process for finding a country of removal that has
various timing provisions built in and that may very well take more than 90 days
to complete in some cases. And section 241(a)(7), in permitting the Attorney
General to grant employment authorization in some circumstances, acknowledges
that there may be instances in which “the alien cannot be removed due to the
refusal of all countries” to accept him. It is significant, however, that the statute
nowhere provides an express exception to the command to remove aliens within
90 days for such cases of impossibility. Instead, that exception must be implied
based on the explicit textual references acknowledging that aliens may, in fact, be
in the country past the 90-day period, the nature of the process Congress estab-
lished for choosing the country of removal (a process that, on its face, may take
longer than 90 days), and the assumption that Congress would not extend its
command about timing to require the Attorney General to do the impossible.
    The question here is whether a similar exception may also be implied under the
statute that would permit the Attorney General under certain conditions to choose
to delay removal of an alien even where it would be possible to remove him by the
deadline. It could be argued that impossibility of removal—a circumstance beyond


possibility that this step could take even longer. See INA § 241(b)(2)(D)(i). If the country of the alien’s
citizenship or nationality declines to accept the alien, the Attorney General is instructed to attempt to
remove the alien to one of six listed countries, including the country in which the alien was born and
the country from which the alien was admitted to the United States. See INA § 241(b)(2)(E)(i)–(vi).
Each of those countries, of course, would have to be separately negotiated with by the United States,
and would also have to be given an appropriate amount of time—presumably 30 days—to decide
whether to accept or reject the alien. Finally, if none of the six listed countries is willing to accept the
alien, or if the Attorney General decides that it would be “inadvisable” to send the alien to any of the
listed countries that is willing to accept him, the Attorney General is instructed to remove the alien to
any country of the Attorney General’s choice whose government is willing to accept the alien. See INA
§ 241(b)(2)(E)(vii). Needless to say, following this decision tree through to its very last step—which
Congress must have contemplated would be necessary in at least some cases—would take considerably
longer than the 90 days allotted to the Attorney General by section 241(a)(1)(A).




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the Attorney General’s control—is the only circumstance that makes it permissible
for the Attorney General to fail to accomplish removal by the 90-day mark. Such a
limited exception to the 90-day rule, however, would not be consistent with the
nature of the decisions that are entrusted to the Attorney General under the
immigration laws. Rather, a similar exception to the 90-day deadline should be
understood as implicit in the statute where the time deadline would conflict with
the Attorney General’s ability properly to enforce the immigration laws, taking
into account the full range of considerations he is charged with weighing in
accomplishing removal of an alien. The Attorney General is charged by different
provisions of section 241, for example, with determining whether it would be
“prejudicial to the United States” to remove an alien to the country of his choos-
ing, INA § 241(b)(2)(C)(iv), and with determining whether it would be “inadvisa-
ble” to remove aliens to other countries designated by the statutory decision tree,
id. §§ 241(b)(1)(C)(iv), 241(b)(2)(E)(vii), 241(b)(2)(F). Cf. INA § 241(a)(7)(B)
(noting circumstances in which Attorney General may make a finding that
“removal of the alien is otherwise impracticable or contrary to the public inter-
est”). As explained above, in making these and other similar determinations an
essential part of the operation of the immigration laws, Congress has embedded
considerations of foreign policy and national security in the decisions that the
Attorney General must make in accomplishing the removal of aliens. See
Zadvydas, 533 U.S. at 700–01. And even where a specific statutory determination
is not required, in any situation involving removal of an alien with terrorist
connections, weighty considerations of foreign policy and national security bear
upon efforts to provide the fullest information possible to the receiving country to
promote both its security and the security of the United States. At other times, the
health and well-being of an alien, including human rights that are protected by the
United States’ treaty obligations, must be considered. See, e.g., Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punish-
ment, Apr. 18, 1988, S. Treaty Doc. No. 100-20 (1988); INA § 241(b)(3)(A).
   In entrusting the Attorney General with the responsibility to make determina-
tions that could have such serious implications, Congress surely did not intend to
require him to make determinations in undue haste and without taking the
necessary time to conduct thorough investigations, seriously deliberate, confer
with other executive agencies, and make an informed decision. If the 90-day
deadline were considered an inexorable command, however, it might require
precisely such uninformed decision-making. For example, under the decision tree
provided by section 241(b), a country willing to accept a particular alien might not
be found until late in the removal period, and the Attorney General might then be
faced with deciding whether it would be “inadvisable” to remove the alien to that
particular country in a matter of days. Where the Attorney General has such a role
to perform—and particularly where his decision may rest upon grave concerns for
national security—there is no reason to understand the 90-day deadline as an
overriding imperative in the statute that may force a premature decision based on



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incomplete information or lack of deliberation. Similarly, where the removal of an
alien with terrorist connections is at stake and the United States is in the process of
investigating information that, if passed along to a receiving country, could have a
profound impact on the measures that country could take to ensure both its
security and the national security of the United States, there is no reason for
thinking that the 90-day deadline was meant to trump due deliberation on such
proper considerations under the immigration laws.
    In short, in our view, Congress did not intend a rigid time deadline to take
precedence in situations where the proper administration of the immigration laws
requires additional time. The statute gives no indication that Congress attributed
any less importance to discretionary immigration-related determinations entrusted
to the Attorney General and his designees than it did to non-discretionary func-
tions such as securing travel documents and finding a country willing to accept an
alien. Thus, in our view, the Attorney General is not rigidly bound by the 90-day
requirement even in situations where it theoretically would be possible to remove
an alien and a foreign country has already signaled its willingness to accept him.
    Our conclusion that such an implicit exception to the 90-day deadline should be
understood under the statute is also buttressed by the INS’s longstanding conclu-
sion that it has implied authority under the statute to refrain from removing aliens
within the removal period essentially as a matter of prosecutorial discretion. See
Memorandum to Regional Directors, etc., from Doris Meissner, Commissioner,
Immigration and Naturalization Service, Re: Exercising Prosecutorial Discretion
at 1 (Nov. 12, 2000) (“INS Prosecutorial Discretion Memorandum”). The INS
exercises this discretion even with respect to “executing a removal order,” id. at 2,
despite the fact that doing so will often result in non-compliance with the directive
of section 241(a)(1)(A) requiring the Attorney General to remove all aliens within
90 days of the time that a removal order becomes final.
    The INS typically exercises its prosecutorial discretion with respect to the
execution of final orders of removal through two means. First, 8 C.F.R. § 241.6
provides that an alien “under a final order of deportation or removal” may apply
for a stay of removal by filing form I-246. The regulation further provides that “in
his or her discretion and in consideration of factors listed in 8 CFR 212.5 and
section 241(c) of the Act,” certain INS officials “may grant a stay of removal or
deportation for such time and under such conditions as he or she may deem
appropriate.” Although the statutory factors referenced by the regulation appear in
provisions that apply only to aliens “applying for admission” and “arriving at a
port of entry of the United States” respectively, see INA §§ 212(d)(5)(A),
241(c)(2), the INS appears to construe its authority to grant stays to extend more
broadly to all aliens under a final order of deportation or removal. The instructions
accompanying form I-246 state, without limitation, that “[y]ou may file this
application if you have been ordered deported or removed from the United States
and you wish to obtain a stay of deportation or removal under the provisions of
8 CFR 241.6.” Moreover, it is clear that the regulation’s cross-references to



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statutory provisions are intended only to borrow lists of relevant factors to be
considered, not to limit the scope of the regulation to the scope of the statutory
provisions. Thus, broad stay authority exercised by the INS pursuant to 8 C.F.R.
§ 241.6 cannot be derived from any statutory source, but rather is derived from the
INS’s extra-statutory prosecutorial discretion authority. See INS Prosecutorial
Discretion Memorandum at 6 (referring to “whether to stay an order of deporta-
tion” as one potential exercise of prosecutorial discretion).
    Second, the INS may at times exercise its prosecutorial discretion authority by
granting a longer-term “deferred action” with respect to the order of removal. The
power to grant such deferred action has been “developed [by the INS] without
express statutory authorization.” 6 Charles Gordon, Stanley Mailman & Stephen
Yale-Loehr, Immigration Law and Procedure § 72.03[2][h] (rev. ed. 2002).
Nevertheless, it has been acknowledged by, and appears to have received the
blessing of, the courts. See Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471,
483–84 (1999) (noting that “[a]t each stage the Executive has discretion to
abandon the endeavor” of immigration proceedings, at any time up to and
including the execution of removal orders); Johns v. Dep’t of Justice, 653 F.2d
884, 890 (5th Cir. 1981) (“The Attorney General is given discretion by express
statutory provisions, in some situations, to ameliorate the rigidity of the deporta-
tion laws. In other instances, as the result of implied authority, he exercises
discretion nowhere granted expressly. By express delegation, and by practice, the
Attorney General has authorized the INS to exercise his discretion. . . . The
Attorney General also determines whether (1) to refrain from (or, in administrative
parlance, to defer in) executing an outstanding order of deportation, or (2) to stay
the order of deportation. Although such a stay is usually designed to give a
deportee a reasonable amount of time to make any necessary business or personal
arrangements, both the length of and reason for the stay lie entirely within the
discretion of the Attorney General or his delegate.”).
    The INS thus has long treated the apparent statutory mandate that aliens be
removed within the removal period as having implied exceptions and has long
exercised its prosecutorial discretion in such a manner as to refrain from removing
aliens within the removal period. If that approach is correct (which we need not
decide here), and if deferral and stay considerations such as the conservation of
limited INS resources, humanitarian concerns, and law-enforcement needs
constitute sufficient grounds to refrain from removing an alien within the removal
period as directed by section 241(a)(1)(A), then it would seem to follow a fortiori
that the considerations described above (which are directly relevant to the proper
execution of the immigration laws) certainly provide a sufficient basis for a similar
implicit exception from the 90-day removal deadline.
    Thus, we conclude that the statute permits the Attorney General to delay the
removal of an alien beyond the removal period when the failure to effect removal
is directly related to the administration of the immigration laws and policies of the
United States. This does not give the Attorney General carte blanche to delay an



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alien’s removal excessively. The delay must be based upon reasons related to the
proper implementation of the immigration laws. And as the Court established in
Zadvydas, where the alien is detained, the Attorney General must complete the
removal process within “a period reasonably necessary to secure removal,” 533
U.S. at 699–700 (emphasis added), a period that the Court concluded presumptive-
ly runs for 180 days.12 This reading of the statute accords the Attorney General the
time that he reasonably requires to carry out his immigration-related duties
thoroughly and effectively. We could not purport here to define in the abstract a
comprehensive list of all the activities that are related to the enforcement of the
immigration laws and the completion of which could justify delaying an alien’s
removal beyond the 90-day time period. At a minimum, delays in removal that are
attributable to actions taken by the Attorney General for the purposes discussed
above relating to delays within the 90-day period—namely, investigating whether
and to what extent an alien has terrorist connections—satisfy this standard.
    Whether an alien can be detained after the expiration of the 90-day removal
period is determined by section 241(a)(6). As explained above, under the reading
of section 241(a)(6) that we have assumed for purposes of this portion of our
analysis, that provision authorizes the Attorney General to detain aliens who fall
into the listed classes and who, despite an order of removal, are still in the country
beyond the removal period. Among the classes of aliens who may be detained are
aliens who pose a threat to national security or the foreign policy of the United
States as set forth in section 237(a)(4) and aliens who are otherwise determined by
the Attorney General to be a risk to the community or unlikely to comply with an
order of removal. Again, as noted above, Zadvydas makes clear that if an alien is
detained pending removal beyond the removal period, the Attorney General must
act within a period “reasonably necessary to secure removal.” Zadvydas, 533 U.S.
at 699–700 (emphasis added). Presumptively, a reasonable period lasts for six
months, but the Court made clear that in cases involving suspected terrorism, the
same limitations would likely not apply. We cannot attempt here to provide bright-
line guidance in the abstract concerning the permissible duration of detention. That
may well depend on facts in a particular case.

                                                        PATRICK F. PHILBIN
                                                    Deputy Assistant Attorney General
                                                        Office of Legal Counsel


    12
       We address here solely a decision to refrain from removing an alien by the 90-day deadline with
a view to effecting removal at a later date. A decision in the exercise of prosecutorial discretion not to
execute an order of removal at all need not be subject to the same limitations and might be subject to
almost absolute discretion of the Attorney General. See generally INS Prosecutorial Discretion
Memorandum; see also Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483 (1999) (“[a]t each
stage the Executive has discretion to abandon the endeavor” of pursuing removal). We express no view
on that issue here.




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