Revisiting 'Zadvydas v. Davis' 25 Years Later

We are approaching the 25^th anniversary of a Supreme Court immigration decision that was wrongly decided on constitutional and statutory grounds. The 5-to-4 majority opinion by Justice Stephen Breyer in 2001 in Zadvydas v. Davis misconstrued federal immigration law to create, as Justice Antonin Scalia pointed out in his dissent, “a claimed right of release into this country by an individual who concededly has no legal right to be here.” “There is no such constitutional right,” said Scalia with his usual clarity. 

It is time for the Court to overturn this erroneous decision that has forced the government to release aliens, many with extensive criminal records, into our communities, and, as Justice Anthony Kennedy said in his dissent, has pushed the Supreme Court into “assum[ing] a role in foreign relations which is unprecedented, unfortunate, and unwise.”  

Kestutis Zadvydas was an alien with an extensive criminal record of drug dealing, robbery, burglary, and theft, and a history of flight from both criminal and immigration proceedings. After a final order of removal was issued in 1994, the government tried to deport him to Germany (where he was born in a displaced persons camp), Lithuania (where his parents were from), and the Dominican Republic, all of which refused to accept him. 

His case was combined with a second case by an alien born in Cambodia, Kim Ho Ma, who was convicted in the U.S. of manslaughter in a gang-related shooting. Both aliens filed writs of habeas corpus. The Fifth Circuit held that Zadvydas could be detained by the government pending deportation, while the Ninth Circuit reached the opposite conclusion based on its assumption that Cambodia would never accept Ma back because there is no repatriation agreement between the U.S. and Cambodia. 

A provision (8 U.S.C. § 1231) in the Immigration and Nationality Act (INA) directs the government to deport an alien with a removal order within 90 days and states that the government “shall” detain the alien during that 90-day period. The statute also provides that an alien “may be detained” beyond that 90-day period if he “has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.” The Attorney General concluded that both Zadvydas and Ma met this standard and should be detained. 

In his majority opinion, which was joined by John Paul Stevens, Sandra Day O’Connor, David Souter, and Ruth Bader Ginsburg, Breyer wrote — with hardly any attempt at a justification — that the Court “construes the statute to contain an implicit ‘reasonable time’ limitation, the application of which is subject to a federal-court review,” in order to avoid “the serious constitutional concerns” that “indefinite detention of aliens” would raise. This has since been applied to mean that if the government can’t remove an alien within a “reasonable time,” according to the “judgment” of members of the federal judiciary, that alien must be released, no matter how dangerous he is to the community, no matter how big a flight risk, and no matter how such action might affect our relations with particular nations. 

The scorching dissents by Scalia (joined by Clarence Thomas) and Kennedy (joined in full by Chief Justice William Rehnquist and in part by Scalia and Thomas) pointed out the majority’s failure to follow prior precedents. The Court had previously held that an alien encountered at the border seeking entry into the U.S. has no constitutional right to be admitted and no due process right to contest the denial of entry. According to Scalia, “Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right.” 

Yet the majority refused to “apply or overrule” the relevant prior precedent that saw nothing wrong with the “possible indefinite detention of such an inadmissible alien whom the Government was unable to return anywhere else.” That detention, upheld in Shaughnessy v. U.S. ex rel. Mezei (1953)  did not deprive the alien “of any statutory or constitutional rights.” 

Instead, said Scalia, the majority “attempts to distinguish it — or, I should rather say, to obscure it in a legal fog.” He reiterated: “There is no constitutional impediment to the discretion Congress gave to the Attorney General” to detain an alien, and there is “no obstacle to following the statute’s plain meaning.” 

Kennedy was even harsher in condemning the majority’s decision to insert a “reasonable time” requirement that isn’t in the statute, an interpretation that he said “has no basis in the language or structure of the INA and in fact contradicts and defeats the purpose set forth in the express terms of the statutory text”: 

The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation’s most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court’s ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court’s own view of its proper authority. 

The majority’s opinion also made no sense from a practical standpoint, according to Kennedy. The risks to the community posed by a removable criminal alien “do not diminish just because the alien cannot be deported within some foreseeable time.” The “Court’s amendment of the statute,” said Kennedy, “reads out of the provision the congressional decision that dangerousness alone is a sufficient basis for detention.” 

Relevant to that danger, Kennedy cited a 1996 GAO study showing the recidivism rate for released alien criminals, which “put the figure as high as 77 percent.” Yet the majority’s rule “invites potentially perverse results.” Who are the criminal aliens most likely to be refused repatriation by their native countries? It will be, said Kennedy, “the aliens who have committed the most serious crimes” who will be “released immediately under the majority’s rule.” 

Moreover, the “reasonable time” amendment makes it harder for the government to use its power over foreign policy and diplomatic relations to persuade other countries to return their citizens. “The result of the Court’s rule,” declared Kennedy: 

is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nationals to force dangerous aliens upon us. 

Not only does the ill-conceived and ill-reasoned majority opinion weaken the “hand of our Government,” warned Kennedy, it also “cannot help but encourage dilatory and obstructive tactics by aliens who, emboldened by the Court’s new rule, have good reason not to cooperate by making their own repatriation or transfer seem foreseeable.” 

Kennedy also pointed out that the standard set for determining whether the government can continue to detain an alien “permits consideration of nothing more than the reasonable foreseeability of removal. That standard is not only without sound basis in the statutory structure but also is not susceptible to customary judicial inquiry.” Federal judges are not in a position to assess “the likelihood and importance” of diplomatic negotiations and repercussions. 

For all the reasons outlined by the dissenters 25 years ago, this was a terrible decision. It created a non-existent right for inadmissible aliens who have no right to be in this country to roam freely within our neighborhoods, leaving behind a horrendous trail of crime in communities throughout the nation, knowing they will receive a get-out-of-jail-free card from federal judges if they are detained for anything other than a relatively brief amount of time. 

Of course, all five of the justices who issued this ruling, which Kennedy called “a serious misconception of the proper judicial function” and “not what Congress enacted,” are no longer on the Court. Given the current makeup of the Court, it seems likely that if this issue were raised again, a majority of the justices would agree with the dissenters in Zadvydas and overturn its mistaken holding. 

In 2018, for example, in an opinion written by Justice Samuel Alito (with dissents by Breyer, Ginsburg, and Sonia Sotomayor), the Court upheld the lengthy detention of aliens without a bond hearing under another provision of the immigration code that has a similar danger or flight risk standard. In Jennings v. Rodriguez, the government detained a Mexican citizen and permanent resident alien under 8 U.S.C. § 1226 after he was convicted in 2004 of a drug-related charge and auto theft.   

In 2007, he filed a habeas corpus petition claiming he was entitled to a bond hearing and that the law does not authorize “prolonged detention. Using the same “constitutional avoidance” theory as in the Zadvydas case, the Ninth Circuit affirmed an injunction issued by the district court imposing a six-month limit on detention. The court held that the government could not detain an alien longer than six months unless it proved by “clear and convincing” evidence that further detention was justified — even though there was no such time limit in the statute. 

Instead, Section 1226 provides that aliens subject to removal proceedings for committing a crime shall be detained by the government. At the time of this case, Section 1226 provided that the government “may” release the aliens on bond but “only” if the attorney general determined that an alien “will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceedings” (This was amended by the Laken Riley Act to bar the release of any alien inadmissible and deportable on criminal grounds regardless of safety or flight risk).  

The Supreme Court reversed the Ninth Circuit, saying that the “canon of constitutional avoidance” didn’t apply: it “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible to more than one [plausible] construction.” According to the Court, the Ninth Circuit applied the canon because its reading of the statute was “implausible.”  Nothing in the clear text of the statute required a bond hearing, created a six-month deadline, or imposed a limit on the amount of time an alien could be detained while his immigration case was proceeding. In fact, the text of the statute clearly specified that detained aliens were not entitled to be released under any circumstances other than those expressly recognized by the statute. 

The Court in Jennings had no reason to overrule Zadvydas because the cases involved different provisions of the INA. But, as Justice Alito stated in his majority opinion in Jennings, “Zadvydas represents a notably generous application of the constitutional-avoidance canon.” That skeptical view of Zadvydas provides hope that the Court might revisit this wrongly decided precedent if the government brings a new Section 1231 case, urging the Court to overturn it. 

That is what ought to happen. 

Hans von Spakovsky is a senior legal fellow at the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom Foundation.