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Kim Ho Ma v. Ashcroft

Facts

Petitioner Kim Ho Ma is an alien who left his native land, Cambodia, as a refugee at the age of two and has resided in the United States as a legal permanent resident since he was six. At the age of seventeen he was involved in a gang-related shooting, and was convicted of manslaughter. After completing his prison sentence some two years later, he was taken into INS custody and ordered removed because of that conviction. However, the INS has been unable to remove him, and hundreds of others like him, because Cambodia does not have a repatriation agreement with the United States and therefore will not permit Ma's return.

Petitioner Kim Ho Ma is an alien who left his native land, Cambodia, as a refugee at the age of two and has resided in the United States as a legal permanent resident since he was six. At the age of seventeen he was involved in a gang-related shooting, and was convicted of manslaughter. After completing his prison sentence some two years later, he was taken into INS custody and ordered removed because of that conviction. However, the INS has been unable to remove him, and hundreds of others like him, because Cambodia does not have a repatriation agreement with the United States and therefore will not permit Ma's return.

Issue

The question before us is whether, in light of the absence of such an agreement, the Attorney General has the legal authority to hold Ma, who is now twenty two, in detention indefinitely, perhaps for the remainder of his life.

The question before us is whether, in light of the absence of such an agreement, the Attorney General has the legal authority to hold Ma, who is now twenty two, in detention indefinitely, perhaps for the remainder of his life.

Rule

The Supreme Court has now held that there shall be a presumptively reasonable period of six months during which an alien may be detained pending removal. After this six-month period, the alien can no longer be held if removal is not likely to occur in the reasonably foreseeable future.

The Supreme Court has now held that there shall be a presumptively reasonable period of six months during which an alien may be detained pending removal. After this six-month period, the alien can no longer be held if removal is not likely to occur in the reasonably foreseeable future.

Analysis

In light of the above clarification, and to make our earlier holding clear, we amend our opinion by deleting the sentence, 208 F.3d at 831, that reads: In the absence of a repatriation agreement, extant or pending, we must affirm the district court's finding that there is no reasonable likelihood that the INS will be able to accomplish Ma's removal. Under these circumstances, we affirm the district court's finding that there is no reasonable likelihood that the INS will be able to accomplish Ma's removal in the reasonably foreseeable future.

In light of the above clarification, and to make our earlier holding clear, we amend our opinion by deleting the sentence, 208 F.3d at 831, that reads: In the absence of a repatriation agreement, extant or pending, we must affirm the district court's finding that there is no reasonable likelihood that the INS will be able to accomplish Ma's removal. Under these circumstances, we affirm the district court's finding that there is no reasonable likelihood that the INS will be able to accomplish Ma's removal in the reasonably foreseeable future.

Conclusion

The court reissued its opinion affirming the judgment of the district court.

The court reissued its opinion affirming the judgment of the district court.

Who won?

Ma prevailed in the case because the court found that there was no reasonable likelihood of his removal in the foreseeable future, thus his continued detention was not justified.

Ma prevailed in the case because the court found that there was no reasonable likelihood of his removal in the foreseeable future, thus his continued detention was not justified.

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