Introduction
A stateless person is someone without a nationality or citizenship. Individuals become stateless persons for various reasons, for example, because of conflict between international laws or because their home countries no longer exist.1 Thousands of Russian Soviet citizens in Estonia and Latvia became statelessness when the Soviet Union was dissolved, and their citizenship was not recognized by any other country.2 Others have become stateless based on their ethnic backgrounds. For example, the Myanmar government refused to grant citizenship to the Rohingya people.3
There is no reliable estimate of the number of stateless persons in the USA; a figure of at least 4,000 has been proposed.4 However, the real number could be considerably higher because stateless persons in the USA live separately, unknown to one another, and there is no means of monitoring the population.5
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Stateless persons attempt to avoid detection by the state authorities over the time because they have no legal protection.6 They cannot vote, travel, or own property. Even worse, stateless persons may be detained indefinitely if they commit a crime. This is because once they have served their criminal sentence, they are transferred for management by an immigration enforcement system.7 During this period, the immigration courts issue reparation orders. Once categorized as a deportable alien, immigration enforcement officers may detain the stateless person under the Immigration and Nationality Act (INA).8 Although the INA requires the Attorney General to remove a stateless person within a reasonable period, which is usually 90 days, this is unlikely to occur because most countries are unwilling to accept stateless persons.9 Since there are no legal grounds for the release of stateless persons, immigration enforcement officers can continue to detain stateless persons.10
Thus, a difficult question arises: For how long should a stateless person be detained if no country is willing to take him or her? The Supreme Court partly answered this question in the case, Zadvydas v. Davis.11 The Supreme Court claimed that a detained alien may challenge his or her continued detention using a habeas corpus petition and should be released if he or she “ha[d] no significant likelihood of removal in the reasonably foreseeable future.”
Zadvydas was born in 1948 in a German displaced persons camp.13 He could not obtain German citizenship because his parents were Lithuanians. Similarly, he was unable to acquire Lithuanian citizenship because he was born in Germany. He moved to the USA with his family in 1959.14 Although he formed a family, he never became a citizen because his wife is a Dominica citizen. In 1992, he was convicted for possessing cocaine and was sentenced to 16 years in prison.15 In 1994, he was released on parole and was taken into Immigration and Naturalization Service (INS) custody.16 An immigration judge ordered his repatriation to either Germany or Lithuania since he was born in the former country and had Lithuanian parents.17 Both Germany and Lithuania refused to accept him because he was neither a citizen nor a permanent resident of either country.18 Over the next two years, the INS tried but failed to deport Zadvydas to the Dominican Republic, his wife’s home country.19 Accordingly, he was detained by the INS until the Supreme Court provided its ruling.
The Court first sought to determine whether he could use habeas corpus to challenge his detention during the post-removal period.20 It ruled that habeas corpus was applicable to detained aliens because changes in the immigration law had left it “untouched,” and there were no statutes to limit a judicial review during this period.21 Thereafter, the Court considered whether or not it was constitutional for the INS to detain a removable alien indefinitely. It concluded that (1) allowing the INS to detain an alien indefinitely would “[constitute] a serious constitutional problem,” and (2) it was unclear if the intention of “Congress [was] to grant the Attorney General the power to hold a removable alien indefinitely.”22
Immigration Detention Prior to Zadvydas v. Davis
In accordance with the Immigration Act of 1917, Congress granted the Secretary of Labor the authority to determine the country to which to repatriate illegal immigrants.23 Although Congress did not impose a time limit on the term of detention, the federal courts applied a “reasonable” time limit, the latter of which was confirmed by Congress in the INA of 1952.24 Congress stated that a deportable alien should be released if, after six months, no countries were willing to take him or her.25
However, Congress modified the INA in 1952, and this amendment granted the Attorney General permission to continue to detain deportable aliens who had “an aggravated felony” conviction.25 Congress did not indicate the duration that deportable aliens should be detained, which implied that it was possible for the Attorney General to indefinitely detain an alien with a felony conviction.26 Also, according to the Antiterrorism and Effective Death Penalty Act of 1996, the Attorney General was authorized, by Congress, to indefinitely detain deportable aliens for numerous other crimes, including the manufacture, possession, or use of controlled substances; firearms offenses; murder; and rape.27 In 1996, rather than specifying crimes, Congress allowed the Attorney General to indefinitely detain a deportable alien who was “a risk to the community or unlikely to comply with the order of removal” in terms of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).28 Under the IIRIRA, Congress also required a deportable alien to be subject to supervision if he or she was released.29
The Reasoning Behind the Zadvydas v. Davis Ruling
The Court explained how the indefinite detention of aliens could cause great constitutional concerns.30 Firstly, it explained that aliens are eligible for constitutional and due process protection, irrespective of whether or not their presence is “lawful, unlawful, temporary, or permanent.”31 Since they are protected by the Constitution, the due process clause “protects an alien subject to a final order of deportation.”32 Permitting indefinite detention would cause serious constitutional concerns because it would be a “deprivation of human liberty,” which “lies at the heart” of the due process.33 For these reasons, the detention of an alien by government would violate the Constitution unless the detention was ordered while waiting for the commencement of a criminal proceeding.34
Secondly, the Court rejected the government’s claim that it would be dangerous to release aliens who had committed serious crimes.35 It found that Congress did not include the danger posed by aliens as a criterion for making decisions about indefinite detention.36 This is because administrative proceedings are available to aliens where they can prove that they do not pose a dangerous threat.37 And since their fundamental rights are protected under the Constitution, only “special and narrow nonpunitive circumstances” (including mental illness) would justify their detention.38
Thirdly, the Court rejected the government’s reliance on the Plenary Power Doctrine. The INS claimed that “Congress [had] ‘plenary power’ to create immigration law, and the judicial branch must defer to executive and legislative branch decision-making in that area.”39 The Court concluded that plenary power was governed by “important Constitution limitations.”40 Since the Court did not rebuke Congress’ right to “remove aliens [and] subject them to supervision with conditions,” the Court’s ruling was appropriate under the separation of powers principle.41
The test created by the Court was whether “there [was] significant likelihood of removal in the reasonably foreseeable future.”42 After being detained for six months, an alien should be released if he or she could prove that this was indeed the case. Once he or she had met the burden of having to prove the same, it was the government’s duty to rebut it.43 If the petitioner could not meet the burden of supplying this evidence, he or she could continue to be held in confinement until this condition was met.44
Dissenting Opinions
Conversely, Justice Scalia framed the rights of aliens as narrowly as possible. He claimed that the issue was whether or not there was “a right of release into this country by an individual who concededly [had] no legal right to be here.”45 He argued that since Zadvydas was an inadmissible alien, he had no right to be released into the USA initially.46
Justice Kennedy claimed that Congress had provided express authorization for the detention of removable aliens “beyond a reasonable time.”47 This was because the statute was straightforward without having to indicate that the person had been found by the Attorney General to pose a risk to the community or was unlikely to comply with the removal order, and, accordingly, could be detained beyond the removal period, and, if released, subject to the terms of supervision.48 Justice Kennedy argued that since the majority opinions had focused on the “likelihood of repatriation,” the danger posed by criminal aliens was being ignored.49
Reactions of the Immigration and Naturalization Service in Response to the Zadvydas v. Davis Decision
Expansion and Contraction of the Applicability of the Decision to Other Situations
The scope of the Zadvydas v. Davis case is unclear and establishing to whom this case applies is one of several unanswered questions.50 Attorney General Ashcroft claimed that the ruling did not apply to aliens who were currently within the USA borders legally or who had been paroled into the country.51 According to Ashcroft’s definition, the Zadvydas v. Davis decision does not apply to Cubans who arrived in the USA during the Mariel Boatlift.51 Since the USA government refused to recognize Mariel Boatlift Cubans as admissible aliens, they were treated as “parolees,” which means that their legal status is highly debatable.52 The legal status of Mariel Boatlift Cubans is equivalent to that of people based at the border seeking admission into the USA.53 Many courts agreed with Ashcroft’s opinion and applied this ruling to certain cases.
The United States Court of Appeals for the Eleventh Circuit refused to extend the Zadvydas v. Davis decision to inadmissible aliens.54 Similarly, the United States Court of Appeals for the Eighth Circuit held that the Zadvydas v. Davis decision did not apply to aliens at the border.55 By contrast, some courts found that it applied to aliens arriving in the USA because the Supreme Court concluded, “the Fifth Amendment’s due process clause applies to all ‘persons’ within the USA, including aliens, whether their presence in the USA is lawful, unlawful, temporary, or permanent.”56 The United States Court of Appeals for the Sixth Circuit also found the scope of the Zadvydas v. Davis ruling was unclear in terms of whether the due process applies to arriving aliens.57 Some scholars have argued that the opinion of the United States Court of Appeals for the Sixth Circuit was misunderstood because the Supreme Court stated: “We deal here with aliens who were admitted to the USA but [were] subsequently ordered removed.”58
To resolve the issue, the Supreme Court expanded the Zadvydas v. Davis ruling to extend to inadmissible aliens in the case of Clark v. Martinez. For this case, the Court held that inadmissible aliens should be released if they were held beyond the 90-day removal period with no hope of being removed.59 However, since the Court expanded the application of the Zadvydas v. Davis ruling through its interpretation of Congress’s statute, “it left the door open” for Congress to change the situation by amending the statute.60
[bookmark: _Hlk25001064]Congress has already narrowed the application of the Zadvydas v. Davis ruling by passing the Real ID Act and the USA Patriot Act. Under the Real ID Act, federal district courts do not have jurisdiction to hear the habeas corpus petition to challenge the Attorney General’s “commence proceedings, adjudicate cases, or execute removal orders.”61 In other words, a stateless person can only use the habeas corpus petition to challenge indefinite detention rather than a removal order.62 A criminal stateless person is removed once this becomes possible. In summary, the federal district courts transferred the applicability of using the habeas corpus petition to the circuit courts by citing the Real ID Act.63
The USA Patriot Act expanded the application of the definition of “terrorist activity” and “engaging in terrorist activity” to facilitate the removal of a greater number of aliens.64 In terms of this act, an alien engages in “terrorist activity” when he or she “affords material support, including a safe house, transportation, communications, funds, [and[ the transfer of funds or other materials … to benefit any individual who the actor knows, or reasonably should know, has committed or plans to commit terrorist activity.”65 In other words, an alien is considered to be involved in terrorist activity through the provision of food or accommodation to a terrorist, regardless of whether or not he or she is aware that that person is a terrorist. According to this definition, it is relatively easy for the government to prove that an alien is dangerous by claiming that he or she is engaging in “terrorist activities” (i.e., through the provision of food or accommodation to a terrorist).
The Reactions of the Attorney General and the Immigration and Naturalization Service
According to Attorney General Ashcroft, the Department of Justice would attempt to invoke other grounds for continuing to hold an alien.66 These attempts include identifying state or local criminal sentences that they have not yet been served and developing procedures to continue to hold aliens who are “terrorists and especially dangerous.”67 Aschcroft claimed that these attempts would “maximize public protection.”68 In addition, as a means of negotiating with the leaders of the aliens’ home countries, the Department of Justice threatened to impose visa sanctions on them and asked them to “live up to their international obligations.” 69
Some scholars have argued that this reaction underscores the importance of a judicial review because the government works hard to protect the liberty of aliens; this was also emphasized by the Supreme Court.70 Although the government tries to detain certain criminal aliens by finding additional criminal charges, it claims that this is “a necessary part of democracy.”71 Conversely, it has been claimed that the government is not applying the Supreme Court dictates to the fullest extent, and, therefore, it is violating jeopardy and equal protection principles.72 To prove that aliens are “dangerous,” the government normally relies on a previous criminal history where sentences have been served.73 Since these sentences have already been served, the government is breaching the jeopardy principle that protects a person from being charged twice for the same offense. Similarly, it is thought that the government violates the equal protection principle by targeting aliens and not citizens.74
Concerns
Several concerns were expressed about the Supreme Court’s ruling in the Zadvydas v. Davis case. A key concern was that the Zadvydas v. Davis decision places an unnecessary burden on detained aliens as the Supreme Court concluded that it was the burden of aliens to prove that it was highly unlikely that they would be being removed in the foreseeable future.75 Another concern was that the Supreme Court placed considerable focus on the likelihood of removal instead of the potential danger posed to the community through the release of criminal aliens.76
The court is able to conclude that an alien has not met the burden of proof if he or she fails to cooperate with the deportation process.77 To cooperate, the alien needs to “exert efforts [for his or her] removal to all countries with which [he or she] has close ties.”78 Close ties also refer to countries in which the alien has had residency.79 If the alien is married to a citizen of a third country, the Immigration and Customs Enforcement (ICE) may require the alien to try and obtain travel documents from this country.80 In addition, an alien can be deemed to have failed to meet the burden of proof if he or she provides conflicting statements regarding [his or her] nationality.81 In the case of Lema v. United States, the United States Court of Appeals for the Ninth Circuit ruled that the alien failed to cooperate by listing his nationality as “Eritrean/Ethiopian” in the travel document application, which led to the application being denied by Ethiopian officials.82
Another concern was that the Supreme Court placed too much emphasis on the “likelihood of removal;” it has been argued that this is only one of many significant factors.83 The potential danger of releasing criminal aliens is also important. Although the Supreme Court concluded that aliens need to provide “clear and convincing” evidence that they are not a danger to society, the Supreme Court only imposed this requirement on aliens who had committed the “most serious crimes.”84 In addition, aliens who are considered to have committed serious crimes need to qualify for other “special circumstances,” such as mental illness, if they are to be detained longer.85 The government argued that the Supreme Court failed to consider “terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of political branches with respect to matters of national security.”
Conclusion
It is believed that the lives of stateless criminal aliens will be significantly influenced by the Zadvydas v. Davis decision. Many stateless persons have been released through the submission of a habeas corpus petition that challenged the validity of their detention. According to Representative Lamar Smith, 10,000 deportees were released from detention from 2009–2011 because no country was willing to take them back.87 However, the ability to submit a habeas corpus petition is difficult for many stateless persons as they need to prove that there is no likelihood of their removal and that releasing them would not constitute a danger to the community. Even when stateless persons are released, they are subject to supervision and can be removed as soon as this becomes possible. Also, based on the Zadvydas v. Davis decision, the government may continue to detain removable stateless persons by bringing additional criminal charges against them, while the Supreme Court’s ruling could be used to challenge jeopardy and equal protection principles. Although the Supreme Court expanded the application of the decision in the Zadvydas v. Davis case to inadmissible aliens, Congress limited this through its interpretation of the Real ID Act and the USA Patriot Act.
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