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Keywords

statuteappealhabeas corpusleasedue processliens

Related Cases

Khotesouvan v. Morones

Facts

The petitioners in this consolidated appeal are five aliens from Vietnam or Laos who were ordered removed from the United States in late February and early March of 2004. According to the government, all five had been previously convicted of aggravated felonies. Vietnam and Laos refused to repatriate the aliens, and the government concedes that repatriation is not likely to occur in the foreseeable future. Between May 5 and May 7, 2004, the aliens filed petitions for writs of habeas corpus pursuant to 28 U.S.C. 2241. On May 12, 2004, the district court denied the petitions. The aliens filed notices of appeal that same day.

Issue

Whether the government may continue to detain an alien ordered removed who has been held in custody for fewer than 90 days, but whose removal is not reasonably foreseeable.

This appeal presents the question whether the government may continue to detain an alien ordered removed who has been held in custody for fewer than 90 days, but whose removal is not reasonably foreseeable.

Rule

An alien ordered removed whose removal is not reasonably foreseeable cannot raise a colorable claim for release under the Due Process Clause of the Fifth Amendment until at least 90 days of detention have passed.

We hold that an alien ordered removed whose removal is not reasonably foreseeable cannot raise a colorable claim for release under the Due Process Clause of the Fifth Amendment until at least 90 days of detention have passed.

Analysis

The petitioners contended that they were deprived of due process of law when they were detained even though there was no likelihood that they would be removed in the foreseeable future. However, the court noted that the petitioners filed their habeas petitions before the 90-day statutory removal period had expired, and Congress mandated the detention of an alien ordered removed for 90 days to allow the government time to secure the alien's removal. The court found that the due process analysis did not apply as the danger of indefinite detention did not exist under the statute governing their detention.

Petitioners contend that they were deprived of due process of law when they were detained even though there was no likelihood that they would be removed in the foreseeable future. Because repatriation was futile, the petitioners contend, their continued detention served no purpose other than punishment. They rely upon the Supreme Court's statement in Zadvydas v. Davis, 533 U.S. 678, 699, 150 L. Ed. 2d 653, 121 S. Ct. 2491 (2001), that 'once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.'

Conclusion

The court affirmed the district court's judgments dismissing the habeas petitions.

Who won?

The government prevailed in the case because the court upheld the district court's dismissal of the habeas petitions, stating that the aliens could not claim a due process violation until after the 90-day detention period.

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