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Filed December 19, 2001


No. 01-2398




On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 01-cv-00405)
District Judge: Hon. Ronald L. Buckwalter

Argued September 20, 2001

Before: SLOVITER, NYGAARD and McKEE, Circuit  Judges

(Filed: December 19, 2001)

       Michelle S. Walker
       Philip J. Katauskas
       Pepper Hamilton LLP
       Philadelphia, PA 19l03

       Judy Rabinovitz (Argued)
       American Civil Liberties Union
       Immigrants' Rights Project
       New York, N.Y. 10004-2400


       Liliana M. Garces
       ACLU Immigrants' Rights Project
       Oakland, CA 94612

       Robert D. Kolken
       Eric W. Schultz
       Sacks & Kolken
       Buffalo, N.Y. 14202-2993

        Attorneys for Appellant

       Michael L. Levy
       United States Attorney
       James G. Sheehan
       Assistant United States Attorney
        Chief, Civil Division
       Stephen J. Britt (Argued)
       Assistant United States Attorney
       Office of United States Attorney
       Philadelphia, PA 19l06

        Attorney for Appellee

       Jennifer Rochon
       Kramer, Levin, Naftalis & Frankel
       New York, N.Y. 10022

        Attorney for Amicus-Appellant
       The American Immigration
        Lawyers Association
       Citizens and Immigrants for
        Equal Justice


SLOVITER, Circuit Judge.

The issue before us is a limited one. The appellant does
not challenge the power of the Immigration and
Naturalization Service ("INS") to detain him. Indeed,
appellant, a lawful permanent resident, concedes that the
INS has legitimate grounds for detaining some individuals
pending removal. The only issue is whether appellant, and
aliens in his position, can be mandatorily detained pending


a final determination on removal without any opportunity
for an individualized determination of the alien's risk of
flight or danger to the community. Ironically, such a
determination is provided for lawful permanent residents
charged as alien terrorists, an accusation that has never
been leveled against appellant.



Appellant Vinodbhai Bholidas Patel filed a petition for
writ of habeas corpus in the United States District Court
for the Eastern District of Pennsylvania in which he
challenged the constitutionality of his detention during the
pendency of his deportation proceedings, detention
mandated by the Immigration and Nationality Act ("INA")
S 236(c), 8 U.S.C. S 1226(c) (2001). 1 The petition is directed
to Charles W. Zemski, District Director for the Philadelphia
District of the Immigration and Naturalization Service, Mary
Ann Wyrsch, Acting Commissioner for the Immigration and
Naturalization Service, and John Ashcroft, United States
Attorney General, and claims that S 236(c) violates the
alien's substantive and procedural due process rights under
the Fifth Amendment of the Constitution. The District
Court denied the petition and Patel appeals. Citizens and
Immigrants for Equal Justice and the American
Immigration Lawyers Association ("Amici") filed an amicus
brief in support of Appellant.

This court has jurisdiction under 28 U.S.C. S 1291 since
Patel seeks review of the District Court's final order in a
habeas corpus proceeding under 28 U.S.C. S 2241. Section
236(e), which restricts judicial review of INS decisions made
under this section, does not restrict judicial review of its
constitutionality. Parra v. Perryman, 172 F.3d 954, 957 (7th
Cir. 1999) (concluding that the restriction in S 236(e) "deals
with challenges to operational decisions, rather than to the
legislation establishing the framework for those decisions.").

1. To avoid confusion we will, when possible, use the statutory section
number, i.e. S 236(c), rather than the codified section, 8 U.S.C. S 1226(c).


We review de novo the District Court's legal conclusions
regarding the constitutionality of the statute at issue.
Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001);
DeSousa v. Reno, 190 F.3d 175, 180 (3d Cir. 1999).




Patel is a 55-year old native and citizen of India. He has
lived in the United States since 1984 and has been a lawful
permanent resident since 1990. Prior to his detention, Patel
resided in St. Louis, Missouri where he has several
business interests, including Dunkin' Donuts franchises,
bagel shops, and hotels. Patel's wife and four children
reside in the United States, along with several members of
his extended family. In 1996, the INS approved Patel's
application for naturalization. Prior to scheduling the
administration of the oath of allegiance, the INS revoked its
approval of Patel's naturalization request because of Patel's
conviction of the crime that serves as the basis for his
current removal proceedings.

On January 10, 2000, Patel was convicted upon a plea of
guilty in the United States District Court for the Eastern
District of Missouri of the offense of harboring an
undocumented alien in violation of INA S 274(a)(1)(A)(iii), 8
U.S.C. S 1324(a)(1)(A)(iii) (2001). Patel's conviction was
based on his employment of the alien, and apparently his
provision of a place for the alien to live. The undocumented
alien had entered the United States several years prior to
his employment by Patel. Patel had no involvement with the
alien's entry into the country. The court sentenced Patel to
five months of home probation and five months in prison at
the Allenwood Federal Prison in Pennsylvania. App. at 4, 14.2

2. Although the judgment of sentence does not include any reference to
five months home probation, appellant recounted the sentence as such,
both in his brief and in oral argument (without contradiction by the
government) and the government's Response to the Petition for Writ of
Habeas Corpus in the District Court is in agreement. At argument, the
government stated that it believed the home probation followed the
prison sentence but there is some ambiguity in the record.


Although persons who are confined to a penal institution
for 180 days or more cannot establish good moral
character, a prerequisite to naturalization, INAS 101(f)(7), 8
U.S.C. S 1101(f)(7), Patel has not lost his eligibility for
naturalization because his jail sentence was less than 180


On September 18, 2000, while Patel was serving his
sentence, the INS issued a Notice to Appear directed to
Patel charging that his conviction constituted an
"aggravated felony" within the meaning of INA
S 101(a)(43)(N), 8 U.S.C. S 1101(a)(43)(N) (2001) and
rendered him subject to removal under INA
S 237(a)(2)(A)(iii), 8 U.S.C. S 1227(a)(2)(A)(iii) (2001). After
Patel completed serving his sentence in January 2001, the
INS took him into custody and placed him in detention in
the Snyder County Prison in Selinsgrove, Pennsylvania. He
remains there to the present day.

On January 3, 2001, Patel exercised his right to request
a bond hearing before an immigration judge ("IJ") to re-
evaluate his custody status. The hearing was held on
January 11, 2001. However, the statute provides that if the
IJ finds that S 236(c) is applicable, the IJ is precluded from
considering any factors for release. Thus, Patel was heard
only on his argument that the crime of which he was
convicted, harboring an alien, does not "relate to alien
smuggling" and does not constitute an aggravated felony
mandating detention under S 236(c). On January 12, 2000,
the presiding IJ rejected Patel's argument. In so holding,
the IJ followed the precedent of the Board of Immigration
Appeals ("BIA") that a conviction for harboring aliens
constitutes an aggravated felony. App. at 29-31.
Consequently, the IJ found Patel subject to mandatory
detention under S 236(c), precluding an individualized
determination into the necessity of detention. App. at 29-
31. Patel appealed this decision to the BIA and on May 15,
2001, the BIA affirmed the decision upholding mandatory
detention. App. at 32-33.

On April 3, 2001, after a hearing on the merits of


removal, an IJ in York, Pennsylvania issued an oral
decision ordering Patel removed from the United States.
App. at 34. Patel timely filed a Notice of Appeal of this
decision with the BIA and the order of removal has been

Patel filed a petition for writ of habeas corpus in the
United States District Court for the Eastern District of
Pennsylvania contesting his detention under S 236(c). Patel
v. Zemski, No. CIV. A. 01-405, 2001 WL 503431 (E.D. Pa.
May 11, 2001). The District Court denied Patel's petition
and Patel timely appealed.




The current immigration laws reflect part of a growing
effort by Congress to expedite the removal of criminal
aliens. See S. Rep. No. 104-249, at 2 (1996) (describing goal
of "expediting the removal of excludable and deportable
aliens, especially criminal aliens"). Prior to 1988, all
individuals subject to deportation were entitled to a bond
hearing. See Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976)
(discussing the law as it existed at that time, INAS 242(a),
8 U.S.C. S 1252(a) (1977)). Since that time, Congress has
drafted several amendments to the immigration laws,
gradually limiting the availability of discretionary relief for
aggravated felons subject to deportation and increasing the
categories of aggravated felonies,4 culminating in the

3. Ordinarily, once there has been an order of removal, the section
applicable would be INA S 241(a)(6), 8 U.S.C.S 1231(a)(6) (2001), which
governs post-final-order detention. The parties were uncertain whether
the stay affected which provision applied, S 236(c) or S 241(a)(6). Because
Patel remains in detention without any individualized review, we
consider this case under S 236(c) as it was originally presented.

4. In 1988, Congress passed the Anti-Drug Abuse Act of 1988, Pub. L.
100-690, S 7343(a), 102 Stat. 4181 (1998), which amended former INA


passage on September 30, 1996 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"),
Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). Section
236(c), codified at 8 U.S.C. S 1226(c), was added to the INA
by the 1996 amendments, the Anti-Terrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132,
110 Stat. 1214 (1996), and IIRIRA. It provides:

       (c) Detention of criminal aliens

       (1) Custody

       The Attorney General shall take into custody any
       alien who--

        (A) is inadmissible by reason of having commit ted
       any offense covered in section 1182(a)(2) [moral
       turpitude and controlled substance-related offenses
       with maximum penalties of at least one year] of this

        (B) is deportable by reason of having committe d
       any offense covered in section 1227(a)(2)(A)(ii)
       [multiple criminal convictions for crimes of moral
       turpitude], (A)(iii) [aggravated felonies], (B) [controlled

S 242(a)(2) (formerly codified at 8 U.S.C.S 1252(a)(2) (1989)), to provide
"[t]he Attorney General shall take into custody any alien convicted of an
aggravated felony upon completion of the alien's sentence for such
conviction. Notwithstanding subsection (a), the Attorney General shall
not release such felon from custody."

In 1990, Congress amended INA S 242(a)(2) (formerly codified at 8
U.S.C. S 1252(a) (1991)), by the Immigration Act of 1990, Pub. L. No.
101-649, S 504, 104 Stat. 4978 (1990), to permit release of lawful
permanent residents who demonstrated that they were not a threat to
the community or posed a risk of flight.

In 1991, former INA S 242(a)(2) was further amended by the
Miscellaneous Technical Immigration and Naturalization Amendments of
1991, Pub. L. 102-232, S 306(a)(4), 105 Stat. 1751 (1991), to allow
release of "lawfully admitted alien[s] who had been convicted of an
aggravated felony" if the alien "demonstrates to the satisfaction of the
Attorney General that such alien is not a threat to the community and
that the alien is likely to appear before any scheduled hearings." Former
INA S 242(a)(2)(B) (formerly codified at 8 U.S.C. S 1252(a) (1992)).


       substances], (C) [certain firearm offenses], or (D)
       [miscellaneous crimes] of this title,

        (C) is deportable under section 1227(a)(2)(A)(i)
       [moral turpitude] of this title on the basis of an
       offense for which the alien has been sentence [sic] to
       a term of imprisonment of at least 1 year, or

        (D) is inadmissible under section 1182(a)(3)(B )
       [terrorist activities] of this title or deportable under
       section 1227(a)(4)(B) [terrorist activities] of this title,

       when the alien is released, without regard to whether
       the alien is released on parole, supervised release, or
       probation, and without regard to whether the alien may
       be arrested or imprisoned again for the same offense.

INS S 236, 8 U.S.C. S 1226. The language applicable here is
S 236(c)(1)(B), applying mandatory detention to aliens
convicted of aggravated felonies.

The statute gives the Attorney General discretion to
release an alien who falls under S 236(c) only if the alien's
release is necessary to provide protection to, inter alia, a
witness, a potential witness, or a person cooperating with a
criminal investigation, and even then only if the alien will
not pose a danger to the safety of others or flight risk. INA
S 236(c)(2), 8 U.S.C. S 1226(c)(2). No discretion otherwise
remains to consider whether criminal aliens, including
those who were lawfully admitted to this country, pose any
danger or flight risk during the pendency of the

Each detained alien is entitled to request a bond hearing
at which an IJ determines whether S 236(c) applies. If it
does, the hearing ends, as the statute precludes the IJ from
inquiring into grounds for release or ordering release. In the
case of non-criminal aliens, i.e., all other aliens subject to
removal, the Attorney General retains discretion to decide
whether they should be detained, released on bond, or
released on conditional parole. INA S 236(a)-(b), 8 U.S.C.
S 1226(a)-(b).

Patel has been confined under mandatory detention
without an individualized hearing under S 236(c)(1)(B), on
the ground that the offense to which he pled guilty is an


aggravated felony. The term "aggravated felony" is defined
in INA S 101(a)(43), 8 U.S.C. S 1101(a)(43), and includes, in
subsection N,

       an offense described in paragraph (1)(A) or (2) of
       section 1324(a) of this title (relating to alien
       smuggling), except in the case of a first offense for
       which the alien has affirmatively shown that the alien
       committed the offense for the purpose of assisting,
       abetting, or aiding only the alien's spouse, child, or
       parent (and no other individual) to violate a provision
       of this chapter.

INA S 101(a)(43)(N), 8 U.S.C. S 1101(a)(43)(N).

The referenced section, INA S 274(a), 8 U.S.C.S 1324(a)
(2001), which serves as the basis for Patel's conviction,
establishes criminal penalties for any person who brings in,
transports, or harbors an alien. Patel argues that the
words, "relating to alien smuggling" in INAS 101(a)(43)(N),
were meant to be limiting, rather than descriptive, placing
his conviction for alien harboring outside the reach of this
statute. However, the IJ ruled against him on that issue in
his bond redetermination hearing, citing to its earlier
precedent in In re Ruiz-Romero, Interim Decision 3376,
1999 BIA LEXIS 2, at *7-9 (BIA 1999), where the BIA held
that those words are merely descriptive. In Patel's case, the
IJ relied on Ruiz-Romero when he held that the
parenthetical phrase evidences "[c]ongressional intent to
criminalize all activities which enable[ ] aliens to enter or
remain in the United States." App. at 30. Patel appealed
this issue to the BIA and continues to assert that he is not
subject to S 236(c) because alien harboring is not the
equivalent of alien smuggling. This court does not have
jurisdiction to decide the merits of Patel's arguments
against removal, though the fact that he continues to
challenge his removal through authorized channels is
relevant to his constitutional challenge.


Patel claims that his detention without any opportunity
for an individualized determination of his risk of flight or
danger to the community violates both his substantive and


procedural due process rights to be free from restraint of
liberty. Several district courts within this circuit have
addressed this issue. The majority have found S 236(c)
unconstitutional. See Sharma v. Ashcroft, 158 F. Supp. 2d
519 (E.D. Pa. 2001) (holding mandatory detention under
S 236(c) violates petitioners' due process rights and ordering
INS to conduct a bond hearing); Radoncic v. Zemski, 121 F.
Supp. 2d 814 (E.D. Pa 2000) (same); Koita et al. v. Reno,
113 F. Supp. 2d 737 (M.D. Pa. 2000) (holding S 236(c)
violates petitioners' substantive and procedural due process
rights); Juarez-Vasquez v. Holmes, No. 00-CV-4727, 2000
U.S. Dist. LEXIS 16417 (E.D. Pa. Nov. 3, 2000) (holding
S 236(c)'s absolute restriction upon petitioner's liberty
interest violates due process and ordering petitioner
released unless the INS conducts a bond hearing);
Chukwuezi v. Reno, No. 3: CV-99-2020, 2000 U.S. Dist.
LEXIS 15432 (M.D. Pa. May 16, 2000) (same); Bouayad v.
Holmes, 74 F. Supp. 2d 471 (E.D. Pa. 1999) (same); but see
Edwards v. Blackman, 48 F. Supp. 2d 477 (M.D. Pa. 1999)
(relying on Seventh Circuit decision in Parra v. Perryman,
172 F.3d 954 (7th Cir. 1999), to find no due process
violation), vacated as moot, No. 99-3674 (3d Cir. Jan. 11,
2000). And of course, in this case as well the District Court
held the statute constitutional, following Parra .

In order to analyze the merits of Patel's claim, we must
first establish the nature of the right asserted so that we
can determine the standard of substantive due process
scrutiny to be applied. Then we can assess the
constitutionality of S 236(c) under that standard.5 Only if we
find that S 236(c) does not violate Patel's substantive due
process rights do we need to reach the question of
procedural due process.

"It is well established that the Fifth Amendment entitles
aliens to due process of law in deportation proceedings."
Reno v. Flores, 507 U.S. 292, 306 (1993). Although due
process rights can be denied to aliens seeking admission to
the United States, Landon v. Plasencia, 459 U.S. 21, 32
(1982), aliens who have entered the country are entitled to

5. Patel has framed his constitutional challenge as an as-applied
challenge to the statute and we treat his challenge as such.


the protection of the Due Process Clause whether their
presence in this country is lawful or not. See Zadvydas v.
Davis, 121 S.Ct. 2491, 2501 (2001) ("[A]liens 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.") (quoting
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,
212 (1953)); Landon, 459 U.S. at 32 ("[O]nce an alien gains
admission to our country and begins to develop the ties
that go with permanent residence, his constitutional status
changes accordingly."). Thus Patel, a lawful permanent
resident,6 is entitled to due process protection against
unlawful or arbitrary restraint, a legal proposition the
government does not contest. Although the government
accepts that legal proposition, it and Patel do not agree as
to the appropriate level of substantive due process scrutiny.

Patel argues that the statute deprives him of a
fundamental liberty interest, which requires this court to
apply heightened due process scrutiny. Specifically, he
argues that government detention without an individualized
determination infringes on his fundamental right to liberty
and violates substantive due process unless the detention
is ordered in "certain special and `narrow' non-punitive
`circumstances,' " Appellant's Br. at 11 (citing Zadvydas,
121 S.Ct. at 2499), and is not " `excessive in relation to' the
purposes it is intended to serve." Appellant's Br. at 11
(citing United States v. Salerno, 481 U.S. 739, 747 (1987)).

The government argues that the liberty interest of a
criminal alien is not a fundamental right, relying on the
decision in Parra where the court stated that the alien's
chance of success in the removal proceedings is so minimal
as to verge on the nonexistent. 172 F.3d at 958. The
government argues that the alien's interest is the right to
be free of "arbitrary" detention which is"subject to only
limited judicial review" because an alien is entitled to a
lesser due process right than a citizen. Appellee's Br. at 6
(citing Doherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir.

6. The BIA has recognized that an alien maintains his or her status as
a lawful permanent resident pending a final order of removal. See In re
Mendoza-Sandino, Interim Dec. 3426, 2000 BIA LEXIS 3 (BIA 2000).


It is undisputed that Congress has plenary power to
create substantive immigration law to which the judicial
branch generally must defer. See, e.g. , Harisiades v.
Shaughnessy, 342 U.S. 580, 589-90 (1952). As the
Supreme Court has stated, "in the exercise of its broad
power over immigration and naturalization, `Congress
regularly makes rules that would be unacceptable if applied
to citizens.' " Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(quoting Matthews v. Diaz, 426 U.S. 67, 80 (1976)).
However, Congress' power is subject to constitutional
limitations, including due process constraints. Zadvydas,
121 S.Ct. at 2501.

The Supreme Court recently addressed this issue in
Zadvydas and distinguished between the deference that
must be afforded to immigration policies and the more
searching review of the procedures used to implement those
policies. 121 S.Ct. at 2501-502. The issue in the present
case implicates the latter, the means by which Congress
effects its determinations regarding who should be deported
and on what basis, not the actual criteria for deportation.
See INS v. Chadha, 462 U.S. 919, 940-41 (1983) ("The
plenary authority of Congress over aliens . . . is not open to
question, but what is challenged here is whether Congress
has chosen a constitutionally permissible means of
implementing that power."). This distinction was critical in
Zadvydas where the Supreme Court reiterated Congress'
right to remove and detain aliens but made clear that the
Court did not infringe on Congress' plenary authority by
addressing the constitutionality of the detention of aliens
incapable of removal. 121 S.Ct. at 2501-02. We follow that
path in examining whether S 236(c) infringes on a
"fundamental" liberty interest. Flores, 507 U.S. 292, 302
(1993). If the statute infringes on a fundamental liberty
interest, it must be narrowly tailored to serve a compelling
state interest. Id. at 301-02. If not, there need only be a
"reasonable fit" between the government's purpose and the
means chosen to implement that purpose. Id. at 305.

Patel does not contend that his interest is an absolute
right to freedom during the pendency of his proceedings. He
recognizes, as we noted at the outset, that the government
has the right to remove aliens and to detain them during


the pendency of their removal proceedings. Id.  at 302;
Carlson v. Landon, 342 U.S. 524, 543 (1952). Patel asserts
that mandatory detention nevertheless implicates his
fundamental right to be free from physical restraint. The
government, which describes the alien's interest as a
conditional one, notes that this right to be free from
restraint may be restricted to ensure his appearance at
proceedings or to protect the community. Patel responds
that the possibility of such restriction does not mean that
the liberty interest infringed upon is any less fundamental.
See, e.g., Salerno, 481 U.S. 739, 750 (1987) (upholding
pretrial detention under certain circumstances despite
infringing on the "individual's strong interest in liberty").

Several Supreme Court decisions guide our determination
that the right implicated is a fundamental liberty right. In
Flores, the Supreme Court addressed the constitutionality
of detaining juvenile aliens pending deportation hearings
pursuant to a statute that only allowed release to parents,
close relatives, or legal guardians. 507 U.S. at 303. The
Court applied a rational basis standard after finding that
during the pendency of deportation proceedings the juvenile
aliens had no fundamental liberty interest to be released
into the custody of a private custodian rather than a
government child-care institution, when no parent or legal
guardian was available. Id. The Court based its decision to
apply a rational basis test on the fact that children, by
definition, are always in the custody of someone, whether
their parents or the government, and the detention
occurred in child-care institutions, not "barred cells." Id. at

In contrast, the present case deals with a 55-year old
man who has been locked in a prison cell for some eleven
months. "Freedom from bodily restraint has always been at
the core of the liberty protected by the Due Process Clause
from arbitrary governmental action." Foucha v. Louisiana,
504 U.S. 71, 80 (1992) (finding that due process was
violated by a Louisiana statute permitting continued
confinement of insanity acquittee without an adequate
hearing). "In our society liberty is the norm, and detention
prior to trial or without trial is the carefully limited
exception." Salerno, 481 U.S. at 755. In Salerno, the


Supreme Court upheld the Bail Reform Act's authorization
of pretrial detention on the basis of future dangerousness
in criminal cases because several procedural safeguards
were in place to protect the detainee's "fundamental" and
"strong" interest in liberty: the circumstances under which
detention could be sought were limited to the most serious
of crimes, the arrestee was entitled to a prompt detention
hearing, the maximum length of detention was limited, and
detainees were housed apart from convicts. Id.  at 747-50.

Most recently, in Zadvydas the Supreme Court
recognized that immigration detention implicates a
fundamental liberty interest. The Court examined the
constitutionality of the detention of aliens who had received
a final order of deportation but remained in INS custody
pursuant to S 241(a)(6) because the government was unable
to effect their removal to another country. The Court
construed the statute to limit post-removal-order detention
to a period reasonably necessary to bring about the alien's
removal, generally no more than six months. Zadvydas,
121 S.Ct. at 2505. In reaching this decision, the Court
stated that a "statute permitting indefinite detention of an
alien would raise a serious constitutional problem." Id. at
2498. It continued, "[f]reedom from imprisonment--from
government custody, detention, or other forms of physical
restraint--lies at the heart of the liberty that[the Due
Process] Clause protects." Id. The Court further asserted
that "government detention violates that Clause unless the
detention is ordered in . . . certain special and narrow non-
punitive circumstances . . . where a special justification . . .
outweighs the individual's constitutionally protected
interest in avoiding physical restraint." Id.  at 2498-99
(internal quotations and citations omitted).

Although aliens detained under S 236(c) are held for the
finite period of time leading to the issuance of a final
removal order and do not face the possibility of the
unending detention that arises when the likelihood of
executing a removal order is remote, as it was in Zadvydas,
detention pending the issuance of a final order is often
lengthy. Patel has been detained for eleven months, six
months longer than his prison sentence for the underlying
offense, and five months longer than the six-month period


the Supreme Court held presumptively reasonable for post-
order detainees. Thus, while the Zadvydas Court did not
address the constitutionality of pre-removal-order
detention, there is no reason why the distinction between
the statutes would make the Court's reasoning inapplicable
to this case.

This court has previously recognized the critical liberty
interest implicated by immigration detention. In Chi Thon
Ngo v. INS, 192 F.3d 390 (3d Cir. 1999), the alien had
received a final order of exclusion but remained in United
States detention for four years since his native country,
Vietnam, would not accept him. In that case, as in this one,
the power of the government to detain aliens was not
challenged; rather, the case concerned the procedures
necessary to effect that detention. Even though Ngo was an
excludable alien, rather than a deportable alien, and
excludable aliens traditionally have been afforded less
constitutional protection than deportable aliens, see Mezei,
345 U.S. at 212, we stated that "[w]hen detention is
prolonged, special care must be exercised so that the
confinement does not continue beyond the time when the
original justifications for custody are no longer tenable."
Ngo, 192 F.3d at 398. We recognized that "[m]easures must
be taken to assess the risk of flight and danger to the
community on a current basis," id., but noted the need to
protect the alien's right to due process. We stated that the
"stakes are high and we emphasize that grudging and
perfunctory review is not enough to satisfy the due process
right to liberty, even for aliens." Id. The decision of the
Supreme Court in Zadvydas in effect validated our

Significant for our purposes here is our holding in Ngo
that the "process due even to excludable aliens requires an
opportunity for an evaluation of the individual's current
threat to the community and his risk of flight." Id. We
found that the statute satisfied due process because it
provided for "searching periodic reviews" of the basis for
detention but granted the petitioner's writ of habeas corpus
since he had not received the "rigorous review of his
eligibility for parole that due process requires." Id. at 399.
Inasmuch as we insisted on heightened standards for an


alien ordered removed from this country, it follows that no
lesser standard should be applied to a lawful permanent
resident who still has available avenues for relief from


Because we have concluded that S 236(c) implicates
Patel's fundamental right to be free from physical restraint,
we must apply heightened due process scrutiny to
determine if the statute's infringement on that right is
narrowly tailored to serve a compelling state interest.
Flores, 507 U.S. at 301-02. As the Supreme Court held in
Zadvydas, government detention violates substantive due
process unless it is "ordered in . . . special and `narrow'
non-punitive `circumstances' . . . where a special
justification . . . outweighs the `individual's constitutionally
protected interest in avoiding physical restraint.' " 121 S.Ct.
at 2499 (citing Salerno, 481 U.S. at 746; Foucha, 504 U.S.
at 80; Kansas v. Hendricks, 521 U.S. 346, 356 (1997)).

In Salerno, the Supreme Court subjected the Bail Reform
Act's authorization of pretrial detention in criminal cases to
a two-part due process inquiry. 481 U.S. at 746-47. The
test asks first, if the restriction on liberty constitutes
impermissible punishment or permissible regulation, and
second, whether the statute is excessive in relation to
Congress' regulatory goals. Id. Applying the first prong of
the Salerno inquiry to S 236(c), we readily conclude that the
statute constitutes permissible regulation. The power to
deport necessarily encompasses the power to detain. Thus,
the detention mandated in S 236(c) is regulatory and not
punitive. See Carlson, 342 U.S. at 537-38 ("Deportation is
not a criminal proceeding and has never been held to be
punishment . . . . Detention is necessarily a part of this
deportation procedure.").

In order to determine if the statute is excessive, the
second prong of the inquiry, we must examine Congress'
purposes for the statute. According to the Senate Report,
Congress had found that (1) the number of aliens who
commit crimes in this country has grown, (2) unacceptable
delays hindered the INS' ability to detain and deport aliens,


and (3) criminal aliens posed a growing threat to public
safety. S. Rep. No. 104-48, at 1-2 (1995). The statute was
enacted with the goal of ensuring the immediate availability
of criminal aliens for hearings and ultimately deportation,
while protecting the public from the danger posed by
criminal aliens. See, e.g., 142 Cong. Rec. 7349 (1996)
(statement of Sen. Abraham) (mentioning mandatory
detention as one of a system of reforms designed to
expedite deportation of criminal aliens). Patel concedes that
these goals present legitimate government objectives. The
question before this court is whether mandatory detention
absent any individualized inquiry is excessive in relation to
these interests.

Due process requires an adequate and proportionate
justification for detention--a justification that cannot be
established without an individualized inquiry into the
reasons for detention. Ngo, 192 F.3d at 398-99. In Ngo, the
challenge was to the denial of parole to an alien whose
country of origin would not repatriate him. We held that
"[d]ue process is not satisfied . . . by rubber-stamp denials
[of parole] based on temporally distant offenses. The
process due even to excludable aliens requires an
opportunity for an evaluation of the individual's current
threat to the community and his risk of flight." Id. at 398.
We approved a system for evaluating detention that
required the "searching [and] periodic" individualized review
of the alien's eligibility for parole and that did not presume
the need for continued detention based on criminal history.
Id. at 399.

In Flores, where the Supreme Court applied the rational
basis test, the Court found that test was satisfied because
the "detained juvenile aliens [were given] the right to a
hearing before an immigration judge" regarding their
custody. 507 U.S. at 309. In Salerno, where the Court
upheld pretrial detention, such detention could be ordered
only after the government had proved "by clear and
convincing evidence that an arrestee presents an identified
and articulable threat to an individual or the community."
481 U.S. at 751. Even in Carlson, where the Court upheld
the detention of aliens deportable based upon their
membership in the Communist Party, the detention was the


result of a discretionary decision after an individualized
determination that the individual posed a danger to the
community. 342 U.S. at 538 (finding that "purpose to injure
could not be imputed generally to all aliens subject to
deportation" and thus required the exercise of discretion).
In contrast to these statutes, S 236(c) has no provision for
the kind of individualized hearing that was a predicate for
detention in these cases.

The requirements of substantive due process are not met
unless there is a close nexus between the government's
goals and the deprivation of the interest in question. In the
context of S 236(c), there is no basis for us to conclude that
the goals articulated by the government are sufficient to
justify detention without individualized hearings. Section
236(c) creates an irrebutable presumption that all aliens
subject to removal under this statute present a flight risk
or a danger to the community. The government's own
statistics cast doubt on that presumption. The government
cites a study, the conclusions of which Patel and the amici
vigorously contest,7 finding that prior to the enactment of
this statute ninety percent of criminal aliens not detained
during proceedings fled. Appellee's Br. at 12 (citing Parra,
172 F.3d at 956). In fact, a report from the Senate
Committee on Governmental Affairs placed the percentage
of aliens who fail to surrender at twenty percent. S. Rep.
No. 104-48, at 23 (1995) ("over 20 percent of non-detained
criminal aliens do not appear for their deportation
proceedings"). However, even if the ninety percent figure
were correct, S 236(c) requires the imprisonment of the ten
percent of aliens who would dutifully report to proceedings.

7. The study relied upon in Parra concerned the failure of aliens to
surrender for deportation after final orders of deportation had been
issued. Immigration and Naturalization Service, Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct
of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10323
(1997) (citing Office of the Inspector General, United States Dep't of
Justice, Inspection Rep. No. I-96-03, Deportation of Aliens After Final
Orders Have Been Issued 9 (1996) available at
oig/i9603/i9603.htm). While the incentive for aliens facing possible
deportation to abscond is presumably high, we have no empirical data to
provide an actual percentage.


To deprive these individuals of their fundamental right to
freedom furthers no government goal, while generating a
considerable cost to the government, the alien, and the
alien's family. The goals articulated by the government--to
prevent aliens from absconding or endangering the
community--only justify detention of those individuals who
present such a risk.

Obviously, a hearing to evaluate flight risk and danger to
the community presents a less restrictive means for the
government to achieve its goals. It appears that such a
procedure can be implemented with minimal burdens on
the government. The government agreed at argument that
shortly after an alien is placed in custody, the alien is
entitled to a hearing before an immigration judge to
determine if s/he is an "aggravated felon" subject to
S 236(c). There appears to be no insurmountable reason
why this hearing could not be expanded to incorporate an
evaluation of flight risk and danger, an evaluation that
immigration judges already undertake for non criminal
aliens.8 The requirement of an individualized hearing would
infuse the detention process with the accuracy and
precision that it currently lacks.

We do not downplay the risk that some criminal aliens
might pose to the community or the risk that they might
flee before a final order is issued. But an immigration judge
would retain the discretion to detain any alien who poses
such a risk.9

Patel's situation presents an illustration of the injustice

8. The government argued that aliens would interpose delaying tactics
that would complicate such hearings. However, control over the hearing
and the ability to thwart such delays lies firmly in the hands of the
immigration judge.

9. Patel directs our attention to an INS-contracted study by the Vera
Institute finding high success rates in a pilot program allowing for the
supervised release of individuals in removal proceeding, including
criminal aliens. See Eileen Sullivan et al., Testing Community Supervision
for the INS: An Evaluation of the Appearance Assistance Program (2000)
(finding that the vast majority of criminal aliens participating in the
program appeared at all required hearings) at


S 236(c) can present. The government has not suggested
that Patel poses a flight risk or danger to the community.
He is a lawful permanent resident who has resided in this
country for the last seventeen years. He has significant
business ties to his community, and his wife and four
children reside in the United States. He was convicted of
alien harboring, not a violent crime or a crime with
attendant dangers such as drug use, and he was permitted
to remain out of custody during his criminal trial. In fact,
the sentencing judge divided Patel's sentence into five
months of home probation and five months of
imprisonment, further reflecting the absence of any risk of
flight or danger. Despite these facts, under this statute
Patel has been forced to spend the last eleven months in a
prison in a town far from his family and business, with no
opportunity to prove that his detention serves no
government purpose.


The government suggests that we follow the decision in
Parra, the only court of appeals decision to directly address
this issue.10 The District Court here relied exclusively on
Parra in denying Patel's habeas petition. Patel v. Zemski,
No. CIV. A. 01-405, 2001 WL 503431 at *2 (E.D. Pa. May

10. The Eleventh Circuit, in Richardson v. Reno, 162 F.3d 1338 (11th
Cir. 1998), vacated by 526 U.S. 1142, remanded to 180 F.3d 1311 (11th
Cir. 1999), upheld the constitutionality of S 236(c) in an isolated footnote
amidst an examination of the constitutionality of the process
surrounding bond requests for non-criminal aliens."Congress acts well
within its plenary power in mandating detention of a criminal alien with
an aggravated felony conviction facing removal proceedings [citing
S236(c)] . . . This poses no constitutional issue . . . The Supreme Court
has determined that bail need not be provided in all immigration cases."
163 F.3d at 1363 n. 119 (citing Carlson, 342 U.S. at 546 for the last
proposition). On remand from the Supreme Court, Richardson
challenged the constitutionality of S 236(c) but the court found the
statute inapplicable to his case and declined to rule on the matter,
noting only that the sole circuit to address the issue, the Seventh
Circuit, upheld the constitutionality of the statute. Richardson, 180 F.3d
at 1317 n.9. Thus, the discussion in Richardson  does not provide any
helpful analysis.


11, 2001). However, Parra was decided before Zadvydas,
and thus the Seventh Circuit did not have the benefit of the
Supreme Court's analysis of the constitutional concerns
presented by mandatory detention of aliens.

Parra, a citizen of Mexico and lawful permanent resident
of the United States, was convicted of aggravated sexual
assault, a felony that rendered him subject to removal from
the United States. During the pendency of his removal
proceedings, Parra was placed into federal detention
pursuant to S 236(c). 172 F.3d at 955-56. The Seventh
Circuit held that persons subject to S 236(c)"have forfeited
any legal entitlement to remain in the United States and
have little hope of clemency." Id. at 958 (emphasis in
original). The court reasoned that because the possibility of
discretionary relief from deportation under the statute has
been restricted, deportation is "inevitable," and thus the
legal right of the alien to remain in the United States has
ended. Id. The court further held that because the alien
lacks the right to remain and possesses the ability to end
his detention by returning to his native country, the
interest implicated is not substantial. The court found,
under a procedural due process calculus, that the
government interest outweighed the alien's limited private
interest and the minimal probability of error. Id.

We disagree with the holding in Parra. First, the Seventh
Circuit attributed much of its decision to the deference
owed to Congress' plenary power over the treatment of
aliens. Id. at 958 ("Given the sweeping powers Congress
possesses to prescribe the treatment of aliens . . . the
constitutionality of [S 236(c)] is ordained.") (citation
omitted). However, as noted above, the Supreme Court in
Zadvydas made clear that Congress' authority over the
means of implementing its policies is limited by the
Constitution and need not be accorded deference. 121 S.Ct.
at 2501.

Second, the court in Parra assumed that all persons
subject to S 236(c) will ultimately be given a final order of
deportation, and concluded from this assumption that
those persons have no liberty interest in being free from
detention pending that final order. The amici have
presented us with examples of instances where final orders


of deportation did not follow but we agree with the
government that based on the strict requirements for
deportation of criminal aliens and the limited availability of
discretionary relief, a final order of deportation is likely in
the majority of cases.11 However, the merits of the alien's
removal proceedings should not be conflated with the
determination of whether the alien should be detained
pending the outcome of these proceedings. Although the
Parra court did reason from one to the other, our precedent
is to the contrary. In Ngo, we declined to collapse the issues
of removal and detention, evidencing that whether or not
the alien will ultimately be removed does not speak to the
due process that must be afforded to the alien prior to a
final decision on removal. 192 F.3d at 398 (finding that due
process necessitates individualized review of detention for
aliens who had already been ordered removed from the
United States).

In any event, Patel has a significantly more compelling
case for an individualized hearing than the alien in Parra.
Parra had been convicted of a violent sexual offense and
conceded the unavailability of relief from removal. Patel, on
the other hand, was convicted of a non-violent offense,
retains the possibility of relief from deportation, and
contests the classification of his offense as an aggravated
felony, a challenge that could render removal improper. See
supra p.9. Arguably, Parra is even inapplicable to aliens
such as Patel who do not concede their deportability.12

11. The possibility of relief from deportation is provided by statutory
provisions for cancellation of removal, INA S 240A, 8 U.S.C. S 1229b,
withholding of removal, INA S 241(b)(3), 8 U.S.C. S 1231(b)(3), asylum,
INA S 208(a), 8 U.S.C. S 1158, voluntary departure, INA S 240B, 8 U.S.C.
S 1229c, and Article 3 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec.
10, 1984, S. Treaty Doc., No. 100-20 (1988), as well as non-statutory
options such as post-conviction relief or legitimate claims of citizenship.
Aliens who have committed aggravated felonies are not eligible for some
of these forms of relief.

12. "[I]t is easy to imagine cases--for example, claims by persons
detained under [S 236(c)] who say that they are citizens rather than
aliens, who contend that they have not been convicted of one of the
felonies that authorizes removal, or who are detained indefinitely


Nevertheless, we do not base our decision on such a narrow

Instead, we hold that mandatory detention of aliens after
they have been found subject to removal but who have not
yet been ordered removed because they are pursuing their
administrative remedies violates their due process rights
unless they have been afforded the opportunity for an
individualized hearing at which they can show that they do
not pose a flight risk or danger to the community. 13



For the reasons set forth above, we will reverse the denial
of Patel's petition for habeas corpus and remand with
directions that Patel be released from custody unless the
government makes a prompt individualized determination
whether the continued detention of Patel is necessary to
prevent risk of flight or danger to the community.

A True Copy:

       Clerk of the United States Court of Appeals
       for the Third Circuit

because the nations of which they are citizens will not take them back--
in which resort to the Great Writ may be appropriate." Parra, 172 F.3d
at 957 (discussing the availability of the writ of habeas corpus under
U.S. Const. art. I, S 9, cl. 2, but finding that Parra presents none of those
possibilities since he concedes that he is removable because of his
criminal conviction and his home country would accept his return).

13. Patel also alleges that S 236(c) violates his procedural due process
rights. Because we conclude that Patel's substantive due process rights
have been violated, it is unnecessary to determine whether his
procedural due process rights were also violated. Salerno, 481 U.S. at
746 ("When government action depriving a person of life, liberty, or
property survives substantive due process scrutiny, it must still be
implemented in a fair manner) (emphasis added) (citing Matthews v.
Eldridge, 424 U.S. 319, 335 (1976)).