Clark v. Martinez - Opinion Announcement

Argument of Justice Scalia

Mr. Scalia: The second case I have to announce equally, it is two cases actually, No. 03-878, Clark versus Martinez and No. 03-7434, Benitez versus Russels.

These cases come to us on writs of certiorari to the United States Courts of Appeals for the Ninth and the Eleventh Circuits respectively.

Sergio Suarez Martinez, the respondent in 03-878, and Daniel Benitez the petitioner in 03-7434, each arrived in the United States from Cuba in June 1980 in what is come to be known as the Mariel boatlift.

Both of them were paroled by the Attorney General in to the country.

And then the years that follow both were convicted of a series of criminal offenses.

In light of these convictions the Attorney General revoked their parole and instituted removal proceedings.

Benitez was held to be excludible and ordered deported in 1994.

Martinez was held to be in admissible and ordered removed in 2000.

Both aliens were taken into custody by the INS in late 2000 at the conclusion of their prison terms.

Neither could be removed however, because of Cuba’s refusal to accept them.

As a result they continued in the custody of the Federal Government.

Each alien filed a petition for habeas corpus under 28 U.S.C. Section 2241 arguing that because his removal from the country was not reasonably foreseeable the government lacks statutory authority to continue to detain him.

Although the District Court in each case agreed with the petitioner that removal was not likely to occur in the foreseeable future.

The District Courts disagreed on the significance to this fact.

In Martinez’s case the District Court granted the writ and ordered his release.

The Ninth Circuit affirmed.

In Benitez’s case the District Court denied relief and the Eleventh Circuit affirmed.

We granted certiorari in both cases and now affirm the judgment of the Ninth Circuit and reverse that of the Eleventh.

When an alien is ordered removed, the Secretary of Homeland Security must typically remove him from the country within 90 days.

During which times the Secretary may hold the alien in custody.

As these cases demonstrate however removal within 90 days will not always be possible.

The Secretary’s authority to detain aliens beyond the 90 day period is governed by Title 8 U.S.C. Section 1231(a)(6).

This section applies to three classes of aliens subject to removal orders:

One, aliens like those before us today held to be inadmissible under Section 1182; two, aliens who have been admitted but have been held to be removable under Sections 1227(a)(1)(C), (a)(2), or (a)(4); and lastly aliens whom the Secretary determines to be a danger to the community or a flight risk.

As to each of these three classes however the statute provides simply that aliens “maybe detained beyond the removal period”.

In a case called Zadvydas versus Davis decided in 2001 we interpreted that language as it applies to the second class that is to aliens who have previously gained admission, to permit detention only for so long as reasonably necessary to effect removal.

We said, “once removal is no longer reasonably foreseeable continued detention is no longer authorized.”

The question presented by these cases is whether 1231(a)(6) must be read to place the same limitation upon the Secretary’s authority to detain aliens who have not been admitted.

We concluded it must.

The operative statutory language “maybe detained beyond the removal period applies equally to all aliens that are in the subject of the verb".

It allows for no distinction between aliens who have been admitted and the aliens who have not.”

To give these same words a different meaning for each category would be in our view to invent a statute rather than interpret one.

As we have recognized in Zadvydas, the statute can be construed literally to authorize indefinite detention or as Zadvydas held, it can be read to suggest “less than unlimited discretion to detain”, it can not however be interpreted to do both at the same time.

We recognize that this principle of construction may allow non admitted aliens to benefit from constitutional concerns unique to admitted aliens, which were prominent in the Court's opinion in the Zadvydas.

But we do not find this troubling.

It is not all unusual to give a statute's ambiguous language of limiting construction called for by one of the statute's applications even though other of the statute applications standing alone would not require the limitation.

The lowest common denominator, sort of speak, must govern.

If one plausible construction of a statute would raise a multitude of constitutional problems the other construction should prevail, whether or not those constitutional problems pertain to the particular litigant before the court.

For reasons set forth in our opinion we reject the government's recharacterization of the Zadvydas as having held simply the 1231(a)(6) “authorizes detention until it approaches constitutional limits”, and the governments suggestion that is detention of the aliens in these cases was authorized not by 1231(a)(6) but by 1182(d)(5).

In sum, 1231(a)(6) authorizes the detentions of non admitted aliens for as long as reasonably necessary to affect their removal.

Since the government has suggested no reason why the period of time reasonably necessary to affect removal of such an alien is any longer than that required for an admitted alien was the petitioner in the Zadvydas.

The 6-month presumptive detention period set forth in the Zadvydas applies here as well.

The aliens in these cases were detained for more than six months beyond the date they were ordered removed and it is uncontested that their removal is not expected in the foreseeable future.

Therefore the petitions for habeas corpus should have been granted.

The government fears that this result will compromise the security of our boarders by forcing the release into society of inadmissible aliens who can not be removed.

The extent of that risk should not be exaggerated.

Shortly after our decision in Zadvydas, Congress enacted a statute authorizing continuing detention, specifically authorizing continuing detention of aliens who present a national security threat or who have been involved in terrorist activities.

But to the extent a risk of releasing undesirables into the society remains Congress can attend to it.

For this Court however to sanction indefinite detention in the phases of Zadvydas would establish within our jurisprudence beyond the power of Congress to remedy the dangerous principle that judges can give the same statutory text, different meaning in different cases.

This we decline to do.

The judgment of the Ninth Circuit is affirmed and that of the Eleventh reversed.

Justice O’Connor has filed a concurring opinion; Justice Thomas has filed a dissenting opinion in which the Chief Justice has joined as to part 1A.