In Zadvydas v. Davis, the court found that §241(a)(6)of the Immigration and Nationality Act, "read in the light of the
Constitution's demands, limits an alien's post-removal-period detention to a period necessary to bring about that alien's removal from the United States." 

The court reasoned that to construe the statute to allow indefinite detention would cause serious constitutional problems.  It also affirmed the power of federal courts to review whether the detention of any such individual has exceeded a reasonable time frame.

In its second decision this week affirming the rights of immigrants, the Supreme Court ruled that the government may not detain deportable aliens indefinitely simply for lack of a country willing to take them.

The 5-to-4 decision rejected the government's view, as argued by both the Clinton and Bush administrations, that immigration law authorized and the Constitution permitted indefinite, even lifelong detention of immigrants adjudged deportable but unable to be repatriated.

Justice Stephen G. Breyer's majority opinion said that because interpreting the law in that way would present a "serious constitutional threat" under the Fifth Amendment's guarantee of due process, the court would construe the law to permit only "reasonable" detention.  Justice Breyer said that after six months of detention, if deportation did not seem likely in the "reasonably foreseeable future," the government would have to come up with special reasons for keeping someone in custody.

Justice Anthony M. Kennedy dissented saying that the court was unwisely substituting "judicial judgment for the executive's discretion and authority," in effect establishing a rule that after six months, "foreign relations go into judicially supervised receivership."

The court's decision involved two cases. One case involved Kim Ho Ma, a Cambodian, who was admitted to the United States as a refugee when he was a child and was later convicted in a Washington State court of a gang- related killing.  After completing his sentence, he has been held in indefinite detention by INS.

The 9th Circuit Court of Appeals, which sits in San Francisco and covers nine Western states, ruled in Mr. Ma's case in April 2000 that the Immigration and Naturalization Service lacked statutory authority to detain a deportable alien for more than a reasonable time beyond the 90 days required by law.  Mr. Ma was ordered released from immigration detention after two years in custody.

The Supreme Court combined the government's appeal in his case with an appeal brought by Kestutis Zadvydas, who had lost a similar challenge before a different court, the United States Court of Appeals for the Fifth Circuit, in New Orleans.  Mr. Zadvydas was born in 1948 to Lithuanian parents in a displaced persons camp in Germany.  The family was admitted to the United States when he was a child.  He compiled a long criminal record, served prison time and was eventually taken into immigration custody and ordered deported to Germany in 1994.

But Germany refused to accept him, because he is not a German citizen.  Lithuania also disclaimed any responsibility. He remained in custody for three years until a federal district judge in New Orleans granted his petition for a writ of habeas corpus in 1997 and ordered him released.  The Fifth Circuit overturned that decision and, declaring that immigration matters were "largely immune from judicial control," found no constitutional problem with his continued detention.  The appeals court allowed Mr. Zadvydas to remain free while he appealed his case.

The Supreme Court repudiated the kind of deference to immigration policy that the Fifth Circuit invoked and that the government had urged.  Congressional and executive branch power over immigration "is subject to important constitutional limitations," Justice Breyer said.  He also observed that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent."

The statute before the court requires a 90-day period of confinement for immigrants subject to a "final removal order," after which the government "may" continue the detention.

Some 20,000 immigrants are now in I.N.S. detention.  Under current policy and the court's interpretation today, those who are released from detention are not necessarily free of all restraint; they may be placed under various restrictions in the community, similar to probation.  In addition, Justice Breyer said cases of terrorism or other special circumstances might require a form of preventive detention that is not justified in the ordinary case.

The majority opinion was joined by Justices Sandra Day O'Connor, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

Chief Justice Rehnquist joined Justice Kennedy's dissenting opinion, as did Justices Clarence Thomas and Antonin Scalia.  Justice Scalia also wrote in dissent to say that the case came down to "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," he said.