Ma v. Reno (9 Cir. 2000), U.S. Immigration, Detention, Law Offices of Carl Shusterman

U.S. Court of Appeals for the Ninth Circuit

Case Name:
MA V RENO

Case Number: Date Filed:

99-35976 04/10/00

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIM HO MA, Petitioner-Appellee,

v. No. 99-35976

JANET RENO, Attorney General; and D.C. No. ROBERT C. SMITH, District Director CV-99-00151-RSL of the Immigration and OPINION Naturalization Service, Seattle, Washington, Respondents-Appellants.

Appeal from the United States District Court for the Western District of Washington, Robert S. Lasnik, District Judge, Presiding

Argued and Submitted February 14, 2000--Seattle, Washington

Filed April 10, 2000

Before: Stephen Reinhardt, David R. Thompson, and Thomas G. Nelson, Circuit Judges.

Opinion by Judge Reinhardt

_________________________________________________________________

COUNSEL

Quynh Vu, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent-appellant.

Jay Warren Stansell, Federal Public Defender's Office, Seat- tle, Washington, for the petitioner-appellee.

George A. Cumming, Jr., Brobeck, Phleger & Harrison, San Francisco, California, for amicus Law Professors.

Todd Burns, Federal Public Defenders of San Diego, San Diego, California, for amicus National Association of Crimi- nal Defense Lawyers.

William J. Aceves, California Western School of Law, San Diego, California, for amici Human Rights Watch, Human Rights Advocates, the Jesuit Refugee Service, the World Organization Against Torture USA, and the Extradition and Human Rights Committee of the American Branch of the International Law Association.

Carolyn M. Wiggin, Assistant Federal Public Defender, Sac- ramento, California, for amicus Federal Public Defender.

Frank Tse, San Francisco, California, for amicus Southeast Asia Resource Action Center.

_________________________________________________________________

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OPINION

REINHARDT, Circuit Judge:

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 complet- ing his prison sentence some two years later, he was taken into INS custody and ordered removed because of that con- viction. 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.1 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.

Ma challenged his detention by filing a petition for habeas corpus, under 28 U.S.C. S 2241, in the District Court for the Western District of Washington. That court ruled that Ma's continued detention violates his substantive due process rights under the Fifth Amendment.2 Respondents, the Immigration _________________________________________________________________ 1 There are also many aliens from Laos and Vietnam who cannot be removed because our government has no repatriation agreement with those countries. 2 In the district court in which Ma sought relief, over one hundred habeas corpus petitioners challenged their ongoing detention by the INS in cases similar to his. The district court designated five lead cases that presented issues common to all petitioners and directed the parties to brief and argue those issues before five district court judges. The five district court judges issued a joint order establishing a legal framework to apply in each individual case. A single judge then applied this ruling to Ma and
held that he should be released. Similar cases involving a large number of habeas petitioners have arisen in Nevada, and the Central, Eastern, and Southern Districts of California.

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and Naturalization Service, Janet Reno (as Attorney General), and Robert Coleman (as INS Acting District Director in Seat- tle) (hereinafter collectively referred to as "INS") appeal the district court's decision releasing Ma from INS custody. We have jurisdiction3 and affirm, but on a different basis.

We hold that the INS lacks authority under the immigration laws, and in particular under 8 U.S.C. S 1231(a)(6), to detain an alien who has entered the United States for more than a reasonable time beyond the normal ninety day statutory period authorized for removal. More specifically, in cases like Ma's, in which there is no reasonable likelihood that the alien will be removed in the reasonably foreseeable future, we hold that it may not detain the alien beyond that statutory removal period. Because we construe the statute as not permitting the indefinite detention of aliens like Ma, we need not decide the substantial constitutional questions raised by the INS's indefi- nite detention policy. _________________________________________________________________ 3 Although neither party has argued either that the district court lacked jurisdiction over Ma's constitutional claims or that this court lacks juris- diction to hear this appeal, the INS argued at one point in its brief that the general federal habeas statute, 28 U.S.C. S 2241, does not provide jurisdic-
tion to hear any claim of statutory error or abuse of discretion. However, our recent decision in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999), makes clear that the scope of review under the general federal habeas statute, 28 U.S.C. S 2241, has not been limited by 8 U.S.C. S 1252, because that section does not mention habeas corpus explicitly. Id. at 609 (citing Felker v. Turpin, 518 U.S. 651 (1996)). Claims of statutory error and abuse of discretion in the application of the immigration laws have long been cognizable on habeas corpus. See Magana-Pizano, 200 F.3d at 609 (holding that general habeas statute allows review of statutory ques- tions); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (reviewing denial of discretionary relief (suspension of deportation) on the merits, and reversing on ground that discretion was not exercised consis- tent with the statute). Thus, we hold that 8 U.S.C.S 1252 does not pre- clude us from considering Ma's non-constitutional arguments on habeas corpus.

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I.

Petitioner Kim Ho Ma's family fled Cambodia in 1979 and took Ma, who was then two years old, with them. After spending over five years in refugee camps, Ma's family law- fully entered the United States in 1985 as refugees. Ma's sta- tus was adjusted to that of a lawful permanent resident in 1987. In 1996, he was convicted, by a jury, of first degree manslaughter following a gang-related shooting. He was sen- tenced to 38 months in prison, but eventually served only 26 after receiving credit for good behavior. He was tried as an adult, although he was only seventeen years of age at the time of the crime. Although the INS repeatedly refers to Ma's criminal record, this was his only criminal conviction.

Ma's conviction made him removable as an alien convicted of certain crimes under 8 U.S.C. S 1227(a)(2). Because he was released by the state authorities after April 1, 1997, the INS's authority to take him into custody was governed by the permanent custody rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (codified at 8 U.S.C. S 1231). The INS took Ma into custody following his release from prison and initiated removal proceedings against him. An immigration judge found Ma removable, and furthermore found him ineligible for asylum or withholding of deportation because of his conviction. Ma appealed this ruling to the Board of Immigration Appeals (BIA). The BIA affirmed the immigration judge's decision. Although Ma's order of removal became final on October 26, 1998, the INS could not remove him within the ninety day period during which it is authorized to do so because the United States had, and still has, no repatriation agreement with Cambodia. As a result, Ma remained in detention until he filed this petition for
a writ of habeas corpus, which was granted by the district court on September 29, 1999. He is now twenty-two and has been in custody (and, but for the district court's decision, would have been incarcerated) for nearly five years, although

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his sentence accounts for only a little over two years of that period.

In addition to filing the habeas petition we now review, Ma made several other attempts to secure his release. During the pendency of the proceedings before the immigration judge and the BIA, Ma filed two motions to be released on bond -- in October and December 1997. In both instances an immigra- tion judge denied Ma's requests, finding, based solely on the offense he committed at the age of seventeen, that although he was not a flight risk, he was a danger to the community.

In May 1999, over six months after Ma's final removal order (and after his habeas petition was filed), the INS, by let- ter, requested travel documents for Ma from the Cambodian government.4 The next day, the INS conducted the "ninety day" custody review, as provided for in its regulations, to determine if Ma should be released on bond.5 An INS officer prepared a report after interviewing Ma and reviewing letters and other materials submitted by his family and friends. The officer's report stated that Ma's family was "very supportive," and that if Ma was released he would be able to assist his handicapped 71 year old father in everyday activities. The report also stated that Ma constantly communicates with his younger brother to assure that his brother "does not follow in his footsteps." In addition, the report noted that Ma's older brother runs his own business and would employ Ma if he were released from custody. A deputy district director then reviewed the INS officer's report and issued a decision deny- ing Ma's release. The decision was sent to Ma by means of
a form letter that stated that the deputy director made his deci- _________________________________________________________________ 4 The Cambodian government denied the request, as it does all such requests, because of the absence of a repatriation agreement. 5 Internal INS regulations (known as the "Pearson I" regulations) required that Ma's case be reviewed before the end of the ninety day period. However, Ma received his custody review approximately 100 days after that period had run (190 days after his removal order became final).

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sion after considering a set of factors set out in INS regulations;6 however the letter neither stated reasons nor discussed which factors were relied upon in reaching the decision to deny Ma's release. The letter added that "there is no appeal from this deci- sion."7

On September 30, 1999, pursuant to additional internal reg- ulations, the INS again reviewed its decision to continue detaining Ma.8 Once again, INS officials found that Ma should remain in detention, based on the seriousness of his conviction and also on the ground of his threatened participa- tion in a hunger strike while in custody. The reviewers stated that they were unable to conclude that Ma would "remain non-violent" and abide by the terms of his release. These decisions were made despite abundant information in the administrative record about Ma's relationships with his par- ents and siblings, employment prospects, and plans to avoid gang relations and criminal behavior. Upon reviewing Ma's habeas petition, the district court ruled that Ma's detention was unconstitutional on "substantive due process " grounds and ordered him released pending the outcome of this appeal. This court and the Supreme Court denied the INS's requests for a stay of the district court's release order. 9 The INS now _________________________________________________________________
6 8 C.F.R. S 241.4. 7 The letter also stated that Ma's case would be reviewed again six months from the date of the letter, on December 2, 1999. It also stated that Ma had the right to submit a request for redetermination of his custody status at any time. 8 After Ma and the other four lead petitioners prevailed in district court, the INS implemented additional regulations, known as the "Pearson II" regulations, which provided for additional review of custody decisions. These regulations provide for review of the decisions of district directors by INS Headquarters, which was then done in this case. 9 The INS sought to stay the district court's release order. The district court denied the order but granted the INS a temporary stay so that it might attempt to secure an emergency stay from this court. We denied the stay. The INS filed a second emergency stay request, pending appeal to the Supreme Court. We again denied the stay and ordered Ma released. He

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appeals the district court's decision granting Ma's habeas cor- pus petition.

II.

Although the bulk of the parties' arguments, as well as the district court's ruling, address the constitutionality of the INS's detention policy, we must first determine whether Con- gress provided the INS with the authority to detain Ma indefi- nitely, as the Attorney General contends.

[1] In general, after an alien is found removable, the Attor- ney General is required to remove that alien within ninety days after the removal order becomes administratively final.10 Many aliens, however, cannot be removed within the ninety day period for various reasons. First, some individual cases may simply require more time for processing. Second, there are cases involving aliens who have been ordered removed to countries with whom the United States does not have a repa- triation agreement, such as Cambodia, Laos, and Vietnam. Finally, there may be those aliens whose countries refuse to take them for other reasons, and yet others who may be effec- tively "stateless" because of their race and/or place of birth.11 Ma falls in the second category. _________________________________________________________________ was released that evening. The INS then sought a stay from the Supreme Court. Justice O'Connor ordered a temporary stay pending a review by the whole Court. Ma surrendered to INS custody pending the Court's deci-
sion. The Court denied the INS's stay request, and Ma was again ordered released. 10 See 8 U.S.C. S 1231(a)(1)(A)-(B). If the removal order is stayed pend- ing judicial review, the ninety day period begins running after the review- ing court's final order. 8 U.S.C. S 1231(a)(1)(B)(ii). 11 See, e.g., Caranica v. Nagle, 28 F.2d 955 (9th Cir. 1928) (involving deportation order to Greece of alien born in Macedonia, which was then a Turkish province that was later partitioned among several countries, including Greece, where Greece would not recognize alien as a citizen).

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[2] Under the statute, aliens who cannot be removed at the end of ninety days fall into two groups. Those in the first group must be released subject to supervisory regulations that require them, among other things, to appear regularly before an immigration officer, provide information to that official, notify INS of any change in their employment or residence within 48 hours, submit to medical and psychiatric testing, and comply with substantial restrictions on their travel. 8 U.S.C. S 1231(a)(3). Those in the second group "may be detained beyond the removal period" and, if released, shall be subject to the same supervisory provisions applicable to aliens in the first group. 8 U.S.C. S 1231(a)(6). 12 Aliens in the sec- ond group include, among others, persons removable because of criminal convictions (such as drug offenses, certain crimes of moral turpitude, "aggravated felonies," firearms offenses, and various other crimes). 8 U.S.C. S 1227(a)(2). Ma's crimi- nal conviction places him in the second group.

INS argues that its authority to "detain beyond the removal period" gives it the authority to detain indefinitely aliens who fall in the second group and who cannot be removed in the reasonably foreseeable future.13 Ma argues the opposite -- _________________________________________________________________ 12 The sub-section provides in full that

[a]n alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title 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 and, if released, shall be subject to the terms of supervision in paragraph (3).

48 U.S.C. S 1231(a)(6). 13 Although we recognize that, in general, the Attorney General's inter- pretation of the immigration laws is entitled to substantial deference, INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999), we have held that Chevron principles (Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)) are not applicable where a substantial constitutional question is raised by an agency's interpretation of a statute it is authorized

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that the INS's authority to detain aliens beyond the removal period does not extend to cases in which removal is not likely in the reasonably foreseeable future. On its face, the statute's text compels neither interpretation: while S 1231(a)(6) allows for the detention of group two aliens "beyond" ninety days, it is silent about how long beyond the ninety day period such detention is authorized. Thus, any construction of the statute must read in some provision concerning the length of time beyond the removal period detention may continue, whether it be "indefinitely," "for a reasonable time," or some other temporal measure.

[3] We hold that Congress did not grant the INS authority to detain indefinitely aliens who, like Ma, have entered the United States and cannot be removed to their native land pur- suant to a repatriation agreement. To the contrary, we con- strue the statute as providing the INS with authority to detain aliens only for a reasonable time beyond the statutory removal period. In cases in which an alien has already entered the United States and there is no reasonable likelihood that a for- eign government will accept the alien's return in the reason- ably foreseeable future, we conclude that the statute does not permit the Attorney General to hold the alien beyond the stat- utory removal period. Rather, the alien must be released sub- ject to the supervisory authority provided in the statute.

We adopt our construction of the statute for several rea- sons. First, and most important, the result we reach allows us _________________________________________________________________ to construe. Williams v. Babbitt, 115 F.3d 657, 661-63 (9th Cir. 1997) (analyzing DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988) and Rust v. Sullivan, 500 U.S. 173 (1991), noting the agency's lack of constitutional expertise, and concluding that "just as we will not infer from an ambiguous statute that Congress meant to encroach on constitutional boundaries, we will not presume from ambiguous language that Congress intended to authorize an agency to do so"). As we explain infra, the agency's interpretation raises just such a substantial question.

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to avoid deciding whether or not INS's indefinite detention policy violates the due process guarantees of the Fifth Amendment. Second, our reading is the most reasonable one -- it better comports with the language of the statute and per- mits us to avoid assuming that Congress intended a result as harsh as indefinite detention in the absence of any clear state- ment to that effect. Third, reading an implicit "reasonable time" limitation into the statute is consistent with our case law interpreting a similar provision in a prior immigration statute. Finally, the interpretation we adopt is more consonant with international law.14

III.

[4] The Supreme Court has long held that courts should interpret statutes in a manner that avoids deciding substantial constitutional questions. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916); see also United States v. Bulacan, 156 F.3d 963, 974 (9th Cir. 1998). We have referred to this rule as a "paramount principle of judicial restraint." United States v. Restrepo, 946 F.2d 654, 673 (9th Cir. 1991).

[5] In the immigration context, courts have often read limi- tations into statutes that appeared to confer broad power on immigration officials in order to avoid constitutional prob- lems. For example, in United States v. Witkovich, 353 U.S. 194, 199 (1957), the Court read a limitation into a statute authorizing the INS to ask questions and receive information from deportable aliens within the United States. Because con- stitutional problems would have arisen if the statute were read as penalizing aliens who refused to answer questions that were irrelevant to any legitimate governmental purpose, the _________________________________________________________________ 14 Petitioner also contests the procedures used by INS when considering his requests for release, asserting that they violate procedural due process. Given our holding, we need not reach that constitutional question either.

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Court chose to read a limitation into the statute. Witkovich, 353 U.S. at 199.

We followed Witkovich in Romero v. INS, 39 F.3d 977 (9th Cir. 1994), which involved an alien who had lied to an INS official, thereby rendering her deportable because she violated a condition of her immigration status. The condition required that she answer truthfully all questions put to her by INS offi- cials. However, the questions she did not answer truthfully were irrelevant to her visa status. Although the provision at issue stated that aliens who failed to comply with the condi- tions of their status were deportable, without defining those conditions in any way, we read into the statute a limitation on the kinds of conditions that the Attorney General could place on aliens. Id. at 979-80. Invoking the canon of constitutional avoidance, we concluded that the alien could not be required to answer questions having nothing to do with her visa status. Id. at 981; cf. Jean v. Nelson, 472 U.S. 846, 854-56 (1985) (holding that immigration parole regulation does not permit race discrimination in order to avoid reaching constitutional
question); Tashima v. Administrative Office of the U.S. Courts, 967 F.2d 1264, 1271 (9th Cir. 1992) (interpreting stat- ute stating that Office "may" provide representation to judges as requiring interpretation based upon criteria not listed in the statute, in order to avoid constitutional problems).

Of course, as the Supreme Court has noted repeatedly when formulating the canon of constitutional avoidance, the rule applies when the constitutional issue at hand is a substantial one.15 The INS contends that the answer to Ma's constitu- _________________________________________________________________ 15 The Court has also described the canon as applying to "difficult," "se- rious," or "grave" constitutional issues. See, e.g., United States v. Winstar Corp., 518 U.S. 839, 875 (1996); Allentown Mack Sales v. NLRB, 522 U.S. 359, 387 (1998) (Rehnquist, CJ, concurring in part and dissenting in part); Jones v. United States, 526 U.S. 227, 239 (1999). Regardless of the terminology used, the point seems to be the same: a party cannot force us to ignore the usual canons of statutory construction by raising a frivolous, insubstantial, or patently incorrect constitutional argument. Nor, as the Court put it in United States v. Locke, 471 U.S. 84, 96 (1985), may we resort to "disingenuous evasion" in our interpretation of the statute to
avoid a constitutional question.

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tional challenge is dictated by a straightforward application of our en banc decision in Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc), and the Supreme Court's deci- sion in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953).16 If this were correct, we would not need to invoke the canon of constitutional avoidance. However, those cases deal with a significantly different problem from the one we avoid here. Both Mezei and Barrera-Echavarria involved excludable aliens rather than aliens who have already entered the United States. As a result, the constitutional analysis in both cases rests on a doctrine known as the "entry fiction," which authorizes the courts to treat an alien in exclusion pro- ceedings as one standing on the threshold of entry, and there- fore not entitled to the constitutional protections provided to those within the territorial jurisdiction of the United States. Both decisions were entirely explicit in their reasoning on this point. In Mezei, the Court relied on the entry fiction (that an
excludable alien has not entered the United States) in holding that an excludable alien is not entitled to procedural due pro- cess:

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a dif- ferent footing: Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned . . . . _________________________________________________________________ 16 The INS also makes repeated reference to Carlson v. Landon, 342 U.S. 524 (1952). However, Carlson upheld the constitutionality of deten- tion pending the INS's decision whether to deport an alien, and expressly noted that the problem of "unusual delay" was not before it, and refer- enced a case involving a Russian petitioner who alleged that his country would not accept his return. Id. at 546 (citing United States ex rel. Potash v. District Director, 169 F.2d 747, 748 (2d Cir. 1948)).

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Neither respondent's harborage on Ellis Island nor his prior residence here transforms this into some- thing other than an exclusion proceeding.

Id. at 212-13 (internal citations omitted). While the Court held that Mezei could be detained indefinitely on Ellis Island, because no country would take him back, it rested its holding on the fact that Mezei's exclusion did not violate the immigra- tion statute, and that as an alien who had not yet entered the country he had no other rights.17

We followed Mezei in Barrera-Echavarria, which involved a Mariel Cuban who was detained while excluded from the U.S.18 After describing the petitioner's argument and noting our disagreement, we began our analysis by relying on the historic distinction between excludable and resident aliens:

The Supreme Court has consistently recognized that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legal- ity. In the latter instance, the Court has recognized _________________________________________________________________ 17 Although the INS notes that the plaintiff in Mezei was previously a lawful resident of the U.S. for twenty-five years, the Court made clear that he was to be treated as an excludable alien because of his long departure from the U.S., and could not have his status "assimilated" to that of a per- manent resident. In doing so, the Court distinguished, on its facts, its then- recent decision in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), which authorized such assimilation of status under some circumstances. Mezei, 345 U.S. at 213-14. There is no doubt that Mezei was considered by the Court to be an excludable alien who had not entered the U.S.,
despite what the Court referred to as his "prior residence here." See Mezei at 212-13. 18 Barrera-Echavarria was paroled while excluded, committed numerous crimes, and thereafter was taken back into custody. Barrera-Echavarria, 44 F.3d at 1444. His parole did not constitute an entry. Leng May Ma v. Barber, 357 U.S. 185, 188 (1958).

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additional rights and privileges not extended to those in the former category.

Barrera-Echavarria, 44 F.3d at 1448 (quotations omitted, alteration in original). We also quoted a passage from Landon v. Plasencia, 459 U.S. 21, 32 (1982), stating that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." Barrera-Echavarria, 44 F.3d at 1449.19 Shortly after this quotation, we noted that

Noncitizens who are outside United States territories enjoy very limited protections under the United States Constitution. [citing United States v. Verdugo- Urquidez and Johnson v. Eisentrager] Because excludable aliens are deemed under the entry doc- trine not to be present on United States territory, a holding that they have no substantive right to be free from immigration detention reasonably follows.

Barrera-Echavarria, 44 F.3d at 1450.

Thus, it is not surprising that Barrera-Echavarria upheld as constitutional the long-term detention of aliens who had not entered the United States, legally or illegally (although they had been paroled into this country). As we stated in that case, it is "not settled" that excludable aliens have any constitu- tional rights at all, id. at 1449, so it is clear that they cannot prevail where the government refuses to admit them. 20 In con- _________________________________________________________________ 19 Amici Law Professors note in their brief that in its petition for rehear- ing en banc which led to the Barrera-Echavarria decision the INS relied on the fact that the petitioner was an alien seeking admission (rather than one who had entered). 20 In Barrera-Echavarria, we concluded that the statutes there at issue, which applied only to the detention of excludable aliens, allowed for the long-term detention of such aliens, id. at 1445, and went on to hold that such detention is constitutional. There is no inconsistency between our

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trast to Mezei and Barrera-Echavarria, numerous cases estab- lish that once an alien has "entered" U.S. territory, legally or illegally, he or she has constitutional rights, including Fifth Amendment rights. See, e.g., Mathews v. Diaz, 426 U.S. 67, 77 (1976) (stating that "[t]here are literally millions of aliens within the jurisdiction of the United States. The Fifth Amend- ment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or prop- erty without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection." (citations omitted)); Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (stating that "our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not
extended to those in the former category who are merely `on the threshold of initial entry' "); cf. Plyler v. Doe, 457 U.S. 202 (1982) (holding that illegal alien children have constitu- _________________________________________________________________ statutory holding in Barrera-Echavarria and our statutory holding here. We found the statutory authority to hold Barrera-Echavarria for a pro- longed period implicit in the history and structure of several provisions granting broad discretion to the Attorney General to parole excludable aliens into the country under certain circumstances. Id. at 1445-48. We noted that the parole of excludable aliens had always been the exception rather than the rule, and that releasing such aliens into the country pending deportation would run contrary to the basic statutory scheme precluding such entry. Id. at 1447. In the case before us, we consider the entirely dif- ferent question of aliens who have already entered the country. Thus, unlike in Barrera-Echavarria, there is no long-standing statutory scheme
that would be "upset" by barring prolonged detention here. Id. at 1446. Most important, because in Barrera-Echavarria the various statutory pro- visions at issue did not apply to the detention of aliens who had already entered the United States, there was no need to invoke the canon of consti- tutional avoidance. The constitutional result in Barrera-Echavarria was dictated by the Supreme Court's holding in Mezei regarding excludable aliens.

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tional right to education).21 Unlike the petitioners in Mezei and Barrera-Echavarria, Ma was admitted to and entered the United States as a refugee when he was a child, and has lived here ever since. He does not seek to "force us to admit him." Mezei, 345 U.S. at 210. The cases involving indefinite deten- tion of excludable aliens simply do not support the constitu- tionality of indefinite detention of aliens who have entered the United States. To the contrary, our case law makes clear that, as a general matter, aliens who have entered the United States, legally or illegally, are entitled to the protections of the Fifth Amendment.22

The INS also argues that Barrera-Echavarria and Mezei control the result here because, for constitutional purposes, an alien ordered removed has no further right to be here and therefore stands on essentially the same footing as an exclud- able alien.23 While this novel theory would dispose of the con- _________________________________________________________________ 21 The cases extending Fifth Amendment protection to aliens are fully consistent with our general jurisprudence granting significant constitu- tional protections to aliens within the territory of the United States. The Supreme Court has held that the Equal Protection Clause applies to aliens, Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886), that the Fourth Amend- ment applies to aliens (within U.S. territory), Almeida-Sanchez v. United States, 413 U.S. 266, 274 (1973), and that the First Amendment applies to aliens. Bridges v. Wixon, 326 U.S. 145, 148 (1945) (holding that "free- dom of speech and of press is accorded aliens residing in this country");
Bridges v. California, 314 U.S. 252 (1941) (same). 22 The INS cites Fong Yue Ting v. United States, 149 U.S. 698, 711-13 (1893), for the proposition that "[t]he power to exclude aliens, and the power to expel them, rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power." Id. at 713. However, that proposition as applied to the distinction between the constitutional rights of deportable and exclud- able aliens is no longer good law. The Court in Fong Yue Ting went on to hold that aliens may be deported using processes exercised "entirely through executive officers." Id. at 714. That part of Fong Yue Ting's hold- ing was overruled ten years later, when the Supreme Court held that deportation proceedings for aliens within the U.S. must conform to due process. Yamataya v. Fisher, 189 U.S. 86, 101 (1903). 23 We note that the Fifth Circuit relied on the INS's argument in resolv- ing the constitutional question we avoid today, holding that long-term

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stitutional question raised by indefinite detention of such resident aliens, we cannot easily reconcile it with controlling case law. In particular, the INS's position appears to be clearly inconsistent with the Supreme Court's holding in Wong Wing that illegal aliens within the territorial jurisdiction of the U.S. who had been ordered deported could not be put to hard labor prior to their deportation. Wong Wing v. United States, 163 U.S. 228, 238 (1896). Although the INS argues that Wong Wing establishes only the proposition that irrational abuses against aliens who have been ordered deported are unjustified, Wong Wing makes clear that Congress deliber- ately created the hard labor policy "to promote its policy in respect to Chinese persons" (presumably by creating deter- rence and encouraging voluntary departure). Wong Wing, 163 U.S. at 235, 237. The Court said nothing about "irrationality," only unconstitutionality. In short, it unanimously struck down, on Fifth Amendment grounds, Congress' policy with respect to aliens who had been ordered deported even though
that policy was passed in furtherance of legitimate immigra- tion goals. See also Landon v. Plasencia, 459 U.S. 21, 32-34 (1982) (holding that resident alien has due process rights in exclusion proceedings because her "constitutional status" is _________________________________________________________________ detention of removable aliens who have been ordered deported does not violate substantive due process. Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999). Although we seriously question the Fifth Circuit's conclu- sion in that case, and in particular its reading of Wong Wing v. United States, 163 U.S. 228, 238 (1896), and Landon v. Plasencia, 459 U.S. 21, 32-34 (1982), we need not reach the constitutional question here. At the very least, it is clear from reading Zadvydas that a substantial constitu- tional question exists regarding the construction ofS 1231(a)(6).

Following oral argument, the Tenth Circuit considered the constitu- tional question in Ho v. Greene, 2000 WL 228755 (10th Cir. Feb. 29, 2000), and, by a 2-1 vote, accepted the Fifth Circuit's view. Moreover, the Tenth Circuit concluded that because S 1231(a)(6) was silent as to any time duration, "Congress intended to and expressly did authorize the Attorney General to indefinitely detain certain removable aliens." Id. at *9. For the reasons stated below, we do not find the Tenth Circuit's rea- soning persuasive.

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greater than that of a first-time entrant); Johnson v. Eisen- trager, 339 U.S. 763, 771 (1950) (holding that the Fifth Amendment grants rights to aliens within the territorial juris- diction of the U.S., but not to those outside the territory). In order to adopt the INS's approach here, we would have to rec- oncile Wong Wing, which affords constitutional protection to aliens who have been ordered deported, with the INS's sug- gested rule -- which would (by extending the constitutional jurisprudence governing excludable aliens to such aliens) strip them of such protection. That would be a daunting, if not impossible, task.24

It is clear that the INS's effort to extend exclusion law to aliens who have entered the United States but have been ordered removed raises a substantial constitutional question, _________________________________________________________________ 24 The INS also argues that all immigration-related decisions are entitled to substantial deference under the plenary power, citing Reno v. Flores, 507 U.S. 292 (1993). However, it is not clear what role the plenary power played in Flores. In that case, the Court found that rational basis review applied, noted that the plenary power was applicable, but then stated that "[o]f course, the INS regulation must still meet the (unexacting) standard of rationally advancing some legitimate governmental purpose." Flores, 507 U.S. at 306. Ma argues that the plenary power's general deference rule does not apply in every case, citing INS v. Chadha, 462 U.S. 919, 940-41 (1983) (striking down law governing suspension of deportation, stating that "what is challenged here is whether Congress has chosen a
constitutionally permissible means of implementing[the plenary] power. . . . Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, so long as the exercise of that authority does not offend some other constitutional restriction." (internal citation omitted)) and Hampton v. Mow Sun Wong, 426 U.S. 88, 99-101 (1976) (striking down Civil Service Commission's blanket ban on employing non-citizens and rejecting contention that "the federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resi- dent aliens to different substantive rules from those applied to citizens"). It is not clear why the plenary power's deference rule should apply here given that such deference was not afforded in Chadha or in Hampton. In any event, the Supreme Court's cases make clear that the plenary power doctrine does not apply in the same way to each case to which it is rele- vant, and that its exercise is subject to constitutional restraints.

3979

at the very least. Even if we were to agree with the Fifth Cir- cuit's constitutional holding -- and we do not by any means suggest that we do -- we would first be required to answer that question. As we may avoid doing so by giving the statute a construction that does not require us to undertake any con- stitutional inquiry, we follow that course here.

[6] We believe the construction ofS 1231(a)(6) we adopt -- that the INS may detain aliens who have entered the coun- try but have been ordered removed only for "a reasonable time" beyond the ninety day statutory removal period, and specifically, that such aliens may not be detained beyond that statutory removal period if there is no reasonable likelihood that their country of origin will permit their return in the rea- sonably foreseeable future -- to be the most plausible reading of the statute. However, we note that, in order to avoid the substantial constitutional concerns presented by the INS's interpretation, we could adopt a strained construction of the statute, one that would not otherwise constitute sound statu- tory construction. As one of our learned colleagues recently explained,

[S]tatutory construction and constitutional narrowing . . . are, in fact, very different animals . . . . Constitu- tional narrowing seeks to add a constraint to the stat- ute that its drafters plainly had not meant to put there; it is akin to partial invalidation of the statute. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 652-654 (1984). In performing the former task we may not add anything to the statute that is not already there . . . in performing the latter function, we must do precisely that . . . . In performing our constitutional narrowing function, we may come up with any inter- pretation we have reason to believe Congress would not have rejected.

United States v. X-Citement Video, Inc., 982 F.2d 1285, 1295 n.6 (9th Cir.) (Kozinski, J., dissenting), rev'd 513 U.S. 64

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(1994). In reversing the majority, the Supreme Court endorsed our dissenting colleague's approach, holding that a statute should be construed to avoid constitutional problems so long as the saving construction is not "plainly contrary to the intent of Congress." 513 U.S. at 78. The discussion which follows will make clear that the construction we adopt is by no means plainly contrary to Congress's intent, but is instead the most reasonable interpretation of the statute.

IV.

The interpretation we give section 1231(a)(6) is clearly the most reasonable one. The provision that the INS may hold individuals "beyond" a specified time demonstrates Con- gress's intent that the otherwise applicable time limit not be deemed absolute in all cases, and that the agency have some flexibility in instances in which additional time may be useful. It does not demonstrate an intent to give the INS any greater authority than that -- and certainly not an intent to permit the agency to hold people in detention for the remainder of their lives. Such is surely the case with respect to aliens who have entered the country and are generally entitled to the protec- tions of our Constitution. It would indeed be surprising were Congress to attempt to authorize permanent or indefinite detention of such persons simply by providing that they may be held beyond a ninety day period. Some greater degree of specificity or demonstration of Congressional intent would be necessary before we would conclude that a statute had granted
the INS so sweeping a power with regard to persons who are generally subject to the protections of the Constitution. We cannot presume that Congress would authorize so drastic a limitation on the rights of such aliens by so indirect a means, particularly when it could have easily included express lan- guage to that effect in the statute.25 _________________________________________________________________ 25 In the prior statute, Congress used language prohibiting release (sub- ject to some exceptions) rather than the language authorizing detention used here. See 8 U.S.C. S 1252(a)(2)(B) (1995) (stating that the "Attorney

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To sustain the INS' indefinite detention theory we would be required to read far more into the statute than its language implies. In the simplest terms, to say that the INS may hold persons beyond a particular date does not answer the question "for how long?". The proper reading, we conclude, is that Congress intended only that the short statutory period during which detention is ordinarily authorized not serve as an abso- lute barrier to a reasonable extension of time when circum- stances render an additional period necessary in order to accomplish the statutory purpose -- the removal of the alien. Where no removal in the reasonably foreseeable future is pos- sible, however, the statutory language, properly construed, does not authorize indefinite detention of such aliens. Because, here, there is no repatriation agreement and no dem- onstration of a reasonable likelihood that one will be entered into in the near future, we believe it to be not only the prudent but the correct interpretation of the statute to hold that Ma and
others similarly situated aliens must be released, under super- vision, at the end of the statutory removal period. 8 U.S.C. S 1231(a)(1)(A).

V.

Our conclusion that a "reasonable time" limitation is implicit in the statute is supported by a venerable line of _________________________________________________________________ General may not release [deportable aliens convicted of an aggravated fel- ony ] . . . either before or after a determination of deportability [subject to some exceptions].") (emphasis added). The two custody provisions that succeeded the 1995 version of this law (and preceded the current version) did not change this language in any way relevant to our analysis. The same "may not release . . . either before or after " language was in both statutes. See AEDPA S 440(c); IIRIRA S 303(b)(3) (the transitional custody rule). The prohibitory language used there is obviously far stronger than the per- missive language used in the new law. More important, however, Con- gress is familiar with time limitations in the detention and removal context, and could easily have authorized detention "without limitation" or "indefinitely" if it so desired. See, e.g., 8 U.S.C. S 1231(a)(1)(A);
1231(a)(1)(C); 1231(b)(2)(C); 1231(b)(2)(D); 1231(c)(3)(A); 1231(c)(3)(B) (all specifying various time periods in detention and removal context).

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Ninth Circuit cases that held that a predecessor provision must be construed as allowing only for detention "reasonably" beyond the removal period.

Prior to 1952, the detention of aliens pending deportation was governed by the Immigration Act of 1917. That statute set no time limit to accomplish a deportation. The Act pro- vided simply that deportable aliens should be "taken into cus- tody and deported."26 Then, just as now, there were cases involving aliens who could not be deported for various rea- sons -- because the U.S. had no repatriation agreement with their country, because their country would not take them back, or because they were stateless. In several cases, this court held that while the deportation order would remain valid indefinitely, detention was justified only for a reasonable period. For example, in Caranica v. Nagle, 28 F.2d 955 (9th Cir. 1928), the alien challenged an order mandating his depor- tation to Greece on the ground that he was a Macedonian citi- zen, not a Greek citizen. Id. at 956. The court upheld the order, holding that the statute allowed for deportation to Greece. The court held that the Secretary of Labor had broad discretion to find an appropriate country of deportation, but
added that "the utmost the courts can or will do is to discharge the appellant from further imprisonment if the government fails to execute the order of deportation within a reasonable time." Id. at 957; see also Saksagansky v. Weedin, 53 F.2d 13, 16 (9th Cir. 1931) (upholding deportation order to Russia (but not to China) and holding that petitioner must be released if he could not be deported to Russia); Wolck v. Weedin, 58 F.2d 928, 930-31 (9th Cir. 1932) (upholding deportation order, but ruling, consistent with administrative practice, that alien should be released if deportation could not be effected within a reasonable time). See also United States ex rel. Ross v. Wal- _________________________________________________________________ 26 See An Act To Regulate the Immigration of Aliens to, and the Resi- dence of Aliens in, the United States, ch. 29, S 19, 39 Stat. 874, 889 (1917).

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lis, 279 F. 401, 403 (2d Cir. 1922) (requiring release if depor- tation could not be effected within reasonable period).27

We recognized the continuing vitality of this rule in a case applying the 1917 Act that we decided in 1954. Spector v. Landon, 209 F.2d 481 (9th Cir. 1954). In Spector, the peti- tioner was an alien who had been ordered deported in 1930, almost a quarter of a century earlier, and had been out on bond for most of the intervening period, but whose deporta- tion the government had been unable to accomplish for vari- ous diplomatic reasons. Id. at 482. He argued that as a result of the passage of time the deportation order was no longer valid. We rejected this contention, stating that

No cases have been found by counsel holding that a deportation warrant becomes invalid or unenforce- able through mere lapse of time . . . . There are a number of decisions in habeas corpus to the effect that the right to hold the alien in custody under a deportation warrant persists for no more than a rea- sonable period. But such holdings lend no color to the contention made here.

Id. (emphasis added) (citations omitted). Thus, even as we denied Spector's claim, we recognized that the 1917 Act did not authorize indefinite detention pending deportation even though the statute did not, by its terms, place any temporal limit on the government's authority; we read the statute as containing an implicit provision that detention was authorized only for a "reasonable period." _________________________________________________________________ 27 Notably, the "reasonable time" allowed to effectuate deportation in such cases seems to have been quite short by contemporary standards. In Caranica the court held that a two month deadline was not an abuse of discretion, 28 F.2d at 957, while in Wolck the court gave the government thirty days to implement the order, 58 F.2d at 931; in Wallis the Second Circuit required release after four months. 279 F. at 404.

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While these older cases did not interpret a statute exactly like the one we consider today, because the 1917 Act made no distinction between aliens whose release following the removal period was required and aliens who could be detained following that period, both the 1917 statute and the current law provide for custody pending deportation and set forth no specific time limitations as to the period of detention. Although these older cases do not make their reasoning entirely explicit, they appear to rely on the principle that, when faced with the absence of an express time limitation, courts should ordinarily not assume that Congress intended a result as harsh and constitutionally dubious as indefinite detention. That principle seems as valid today as it was under the 1917 Act. We too are faced with a statute that does not contain an express statutory proscription against release. Like the courts interpreting the 1917 Act, we assume that the stat- ute implicitly provides for a reasonable limitation on the length of detention. In doing so, we refuse to presume that
Congress authorized the indefinite detention of resident aliens long after they have finished serving their sentence merely because their country does not have a repatriation agreement with the United States.

VI.

In interpreting the statute to include a reasonable time limi- tation, we are also influenced by amicus curiae Human Rights Watch's argument that we should apply the well-established Charming Betsy rule of statutory construction which requires that we generally construe Congressional legislation to avoid violating international law. Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (citing Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117-118 (1804)). We have reaffirmed this rule on several occasions. In United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990), we explained that we adhere to this principle "out of respect for other nations." Id. at 1069 (citing Chua Han Mow v. United States, 730 F.2d 1308, 1311

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(9th Cir. 1984); see also In re Simon, 153 F.3d 991, 998 (9th Cir. 1998).

We recently recognized that "a clear international prohibi- tion" exists against prolonged and arbitrary detention. Marti- nez v. City of Los Angeles, 141 F.3d 1373, 1384 (9th Cir. 1998).28 Furthermore, Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which the United States has rat- ified, see 138 Cong. Rec. S4781-84 (Apr. 2, 1992), provides that "[n]o one shall be subjected to arbitrary arrest and deten- tion." See International Covenant on Civil and Political Rights, opened for signature, Dec. 19, 1966, 999 U.N.T.S. 171, 21 U.N. GAOR Supp. (No. 16) at 54, entered into force Mar. 23, 1976, at Art. 9(1); see also Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) (hold- ing that ambiguous Congressional action should not be con- strued to abrogate a treaty).

In the present case, construing the statute to authorize the indefinite detention of removable aliens might violate interna- tional law. In Martinez, 141 F.3d 1373, we expressed our approval of a district court decision in this circuit holding that _________________________________________________________________ 28 This court has held that within the domestic legal structure, interna- tional law is displaced by "a properly enacted statute, provided it be con- stitutional, even if that statute violates international law." Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991) (involving prolonged detention of excludable aliens); see also Barrera-Echavarria v. Rison, 44 F.3d 1441, 1451 (9th Cir. 1995). Those rulings, however, do not suggest that courts should refrain from applying the Charming Betsy principle. Rather, they stand for the proposition that when Congress has clearly abrogated inter- national law through legislation, that legislation nonetheless has the full force of law. See Restatement (Third) of International Law S 115(1)(a)
("An Act of Congress supercedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supercede the earlier rule or provision is clear and if the act and the earlier rule or provision cannot be fairly reconciled"). Although Congress may override international law in enacting a statute, we do not presume that Congress had such an intent when the statute can reasonably be reconciled with the law of nations.

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"individuals imprisoned for years without being charged were arbitrarily detained" in violation of international law, id. at 1384 (citing Forti v. Suarez-Mason, 672 F.Supp. 1531, 1541 (N.D. Cal. 1987)). Given the strength of the rule of interna- tional law, our construction of the statute renders it consistent with the Charming Betsy rule.

Conclusion.

In the face of these compelling statutory arguments, we do not read S 1231(a)(6) as authorizing the indefinite detention of removable aliens. Rather, we hold that the statute autho- rizes the Attorney General to detain removable aliens only for a reasonable time beyond the ninety day removal period. While we could reach this construction of the statute simply by invoking the doctrine of constitutional avoidance, it is not necessary to rest our decision on that legal principle. As the above discussion makes clear, ordinary tenets of statutory construction lead us to that same result. What constitutes a reasonable time will depend on the circumstances of the vari- ous cases. Here, we need not address all the conceivable situa- tions that could arise to delay or preclude removal. We need hold only that where it is reasonably likely that an alien who has entered the United States cannot be removed in the rea- sonably foreseeable future, detention beyond the removal period is not justified.29

In Ma's case, the district court did not err in concluding that there is not a reasonable likelihood that the INS will be able to remove Ma to Cambodia. Although the INS offered evidence that the State Department has submitted a proposal for a repatriation agreement to the Cambodian government, both sides agree that the United States has no functioning repatriation agreement with that country, that the Cambodian _________________________________________________________________ 29 We recognize that our reference to aliens who have already entered is, in one sense, too broad. Aliens who entered the United States in the past but have since left for a significant time have no more constitutional rights than first-time would-be entrants. See Landon, 459 U.S. at 30; Mezei, 345 U.S. at 213. They are considered "excludable."

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government does not presently accept the return of its nation- als from the United States, and that it has not announced a willingness to enter into an agreement to do so in the foresee- able future, (or indeed at any time). In the absence of a repa- triation 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.30 Under these circumstances, the INS may not detain Ma any longer.

We stress that our decision does not leave the government without remedies with respect to aliens who may not be detained permanently while awaiting a removal that may never take place. All aliens ordered released must comply with the stringent supervision requirements set out in 8 U.S.C. S 1231(a)(3). Ma will have to appear before an immigration officer periodically, answer certain questions, submit to medi- cal or psychiatric testing as necessary, and accept reasonable restrictions on his conduct and activities, including severe travel limitations. More important, if Ma engages in any crim- inal activity during this time, including violation of his super- visory release conditions, he can be detained and incarcerated as part of the normal criminal process.31

For the foregoing reasons, the district court's decision is

AFFIRMED.

_________________________________________________________________ 30 We note that our construction of the statute does not require us to "second-guess" or otherwise interfere with the foreign policy actions of the United States government. On the contrary, we have taken at face value the evidence submitted by a State Department officer regarding the status of the government's attempts to establish a repatriation agreement with Cambodia. He has candidly stated that he cannot predict when a repa- triation agreement will be established and begin to function. 31 We note that the regulations governing Ma's release state that he can be detained for violating them, and moreover that violations of supervi- sory release conditions are punishable by fine and/or imprisonment under 8 U.S.C. S 1253(b). 3988

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