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Supreme Court Decision Orders Release of 920 Mariel Cubans; ICE: Dumps them In the Streets Without Aid

Supreme Court Decision Orders Release of 920 Mariel Cubans;
ICE: Dumps them In the Streets Without Aid

By Mark Wilson

In a 7-to-2 decision, the United States Supreme Court expanded upon its earlier decision in Zadvydas v. Davis, 533 U.S. 678 (2001), holding that aliens who are ordered removed and who are inadmissible under 8 U.S.C. § 1182 may be detained only as long as reasonably necessary' to remove them from the country." It also reaffirmed that the presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months [ ]" beyond the expiration of the 90-day removal period allowed by 8 U.S.C. § 1231(a)(1)(A). The Court's decision requires the release of 747 Cuban Mariel refugees (Marielitos) and 173 non-Cuban detainees, or 920 refugees, nationwide. The case originally arose in Seattle, Washington. The two petitioners in this case were Cubans who emigrated to the United States in 1980 during the Mariel boatlift and who were comvicted of assorted crimes and served their sentences. At no point did they become US citizens.

The Immigration and Customs Enforcement (ICE) agency took them into custody and they were found to be deportable aliens due to their criminal convictions. However, because Cuba does not accept deportees from the United States, ICE was going to hold the men indefintitely as deportable aliens. With this decision the supreme court reafirmed its earlier decision that deportable aliens who cannot be deported to their country of origin within six months must be released.

This is a Supreme Court decision," said Manny VanPelt spokesman for the United States Immigration and Customs Enforcement, or I.C.E., in Washington, D.C. Its something we disagreed with. There were individuals who argued for it, and this is the end result. There are criminal aliens being released into the community." According to VanPelt, this includes murderers and rapists" who the government has long been unwilling to release. We're simply complying with the Supreme Court's decision. Despite their histories, the court has mandated that we release them," complains VanPelt.

Truth be told, immigration officials are unceremoniously dumping these refugees in the street with little more than the clothes on their backs and immigration cards that read simply, paroled for humanitarian reasons.'

In response to criticism that ICE is abandoning these refugees in foreign communities with no money, transition or housing assistance, VanPelt says about U. S. Department of Homeland Security is not running a chauffeur service' or offering rehabilitation to alien criminals,' who in some cases have been incarcerated for two decades." Rather, sounding of sour grapes, VanPelt said it is now up to those who championed the Marielito cause to step up to the plate' and help them.

One of many people who are trying to do just that is Salvador Longoria, a Cuban-American attorney in New Orleans. It's almost like sabotage," says Longoria. They lock up these people for so long, then they just dump them in the street. They're going to get arrested and then ah ha! -- these people should'nt have been released to start off with, they'll say. They're a danger. It's not right." Sue Weishar, director of immigration and refugee services for Catholic Charities at the Archdiocese of New Orleans, agrees, It's very crazy!" See: Clark v. Martinez, 125 S. Ct. 716 (2005).

Additional Sources: The TimesPicayune; Miami Herald

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Related legal case

Clark v. Martinez

[68] I grant that this understanding of Zadvydas could result in different detention periods for different classes of aliens -- indefinite detention for some, limited detention for others. But it does not follow that this reads the meaning of the statute to "change" depending on the alien involved, any more than the meaning of the statute could be said to "change" simply because the time that is "reasonably necessary to effect removal" may differ depending on the type of alien involved, as both the Court's opinion, ante, at 15, and Justice O'Connor's concurring opinion, ante, at 1, concede it may. A statute's sense is the same even if what it requires depends on factual context.

[69] In support of its reading of Zadvydas, the Court relies on a statement in a dissent in Zadvydas that §1231(a)(6) could not be given a different reading for inadmissible aliens. Ante, at 8 (citing 533 U. S., at 710-711, 717 (opinion of Kennedy, J.)). That dissenting view, as the very quotation the majority stresses demonstrates, rested on the dissent's premise that "it is not a plausible construction of §1231(a)(6) to imply a time limit as to one class and not to another." Id., at 710 (opinion of Kennedy, J.). But the Zadvydas majority disagreed with that assumption and adopted a contrary interpretation of §1231(a)(6). For as the dissent recognized, Zadvydas' "logic might be that inadmissible and removable aliens might be treated differently." Ibid. That was Zadvydas' logic precisely, as its repeated statements limiting its decision to inadmissible aliens show. To interpret Zadvydas properly, we must take its logic as given, not the logic of the reductio ad absurdum of Zadvydas that I joined in dissent.

[70] B.

[71] The majority strains to recharacterize Zadvydas because it thinks that "[i]t is not at all unusual to give a statute's ambiguous language a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation." Ante, at 8. In other words, it claims, "[t]he lowest common denominator, as it were, must govern." Ibid. I disagree.

[72] As an initial matter, this principle is inconsistent with Zadvydas itself. As explained above, the limiting construction Zadvydas adopted as to admitted aliens does not necessarily govern the other applications of §1231(a)(6). If the majority is correct that the "lowest common denominator" governs, then the careful distinction Zadvydas drew between admitted aliens and nonadmitted aliens was irrelevant at best and misleading at worst. Under this reading, Zadvydas would have come out the same way even if it had involved inadmissible aliens, for the "lowest common denominator" of the statute remains the same regardless of the identity of the alien before the Court. Again, this understanding of Zadvydas is implausible.

[73] Beyond Zadvydas, the Court offers scant support for the idea that statutes should be stripped down to their "lowest common denominator[s]." It attempts to distinguish Jinks v. Richland County, 538 U. S. 456 (2003), and Raygor v. Regents of Univ. of Minn., 534 U. S. 533 (2002), ante, at 11-12, and n. 6, yet these cases employed exactly the procedure that the majority today says is impermissible. They construed 28 U. S. C. §1367(d),*fn10 a tolling provision, to apply to States and political subdivisions of States only to the extent that doing so would raise a constitutional doubt as applied to either entity. Jinks was explicit on this point:

[74] "Although we held in [Raygor] that §1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise `serious constitutional doubt' in light of our decisions protecting a State's sovereign immunity from congressional abrogation ... . [N]o such constitutional doubt arises from holding that petitioner's claim against respondent -- which is not a State, but a political subdivision of a State -- falls under the definition of `any claim asserted under subsection (a) [of §1367].' " 538 U. S., at 466 (citation omitted; emphasis in original).

[75] This passage reads the meaning of §1367(d) -- which applies to "any claim asserted under subsection (a)" of §1367 -- to hinge on the constitutional context. The Court is correct that Jinks and Raygor "hold that the single and unchanging disposition of §1367(d) ... does not apply to claims against States." Ante, at 12. But as the Court concedes, Jinks reached that holding only after analyzing whether the constitutional doubts at issue in Raygor applied to the county defendant. Ante, at 12, n. 6. The Court's failure to do the same here cannot be reconciled with Jinks and Raygor: the Court should ask whether the constitutional concerns that justified the requirement of a clear statement in Zadvydas apply as well to inadmissible aliens.

[76] The Court's "lowest common denominator" principle is also in tension with Salinas v. United States, 522 U. S. 52 (1997). There, we rejected an argument that the federal bribery statute, 18 U. S. C. §666(a)(1)(B), should be construed to avoid constitutional doubts, in part on the ground that there was "no serious doubt about the constitutionality of §666(a)(1)(B) as applied to the facts of this case." 522 U. S., at 60 (emphasis added). Unlike the Court's approach to avoidance today, we disclaimed examination of the constitutionality of applications not before the Court: "Whatever might be said about §666(a)(1)(B)'s application in other cases, the application of §666(a)(1)(B) did not extend federal power beyond its proper bounds." Id., at 61. The Court is mistaken that this passage in Salinas was a rejection of a constitutional argument on its merits. Ante, at 9, n. 5. Salinas, the petitioner, phrased his question presented solely in terms of the proper statutory interpretation of §666(a)(1)(B), Brief for Petitioner, O. T. 1996, No. 96-738, p. i, and never claimed that the statute was unconstitutional, see generally ibid.

[77] C.

[78] More importantly, however, the Court's "lowest common denominator" principle is inconsistent with the history of the canon of avoidance and is likely to have mischievous consequences. The modern canon of avoidance is a doctrine under which courts construe ambiguous statutes to avoid constitutional doubts, but this doctrine has its origins in a very different form of the canon. Traditionally, the avoidance canon was not a doctrine under which courts read statutes to avoid mere constitutional doubts. Instead, it commanded courts, when faced with two plausible constructions of a statute -- one constitutional and the other unconstitutional -- to choose the constitutional reading.*fn11 The traditional version of the canon thus requires courts to reach the issue whether the doubtful version of the statute is constitutional before adopting the construction that saves the statute from constitutional invalidity. A court faced with an ambiguous statute applies traditional avoidance by asking whether, given two plausible interpretations of that statute, one would be unconstitutional as applied to the plaintiff; and, if that interpretation is actually unconstitutional as applied to the plaintiff, the court picks the other (constitutional) reading. The court does not inquire whether either of the interpretations would be unconstitutional if applied to third parties not before the court, unless the challenge is facial or otherwise implicates third-party rights.

[79] This history suggests that the "lowest common denominator" principle is mistaken. Courts applying the modern version of the canon of avoidance should no more look to the rights of third parties than do courts using the traditional version. Under modern avoidance, in other words, an ambiguous statute should be read to avoid a constitutional doubt only if the statute is constitutionally doubtful as applied to the litigant before the court (again, unless the constitutional challenge involves third-party rights). Yet the Court's lowest common denominator principle allows a limiting construction of an ambiguous statute prompted by constitutional doubts to infect other applications of the statute -- even if the statute raises no constitutional doubt as applied to the specific litigant in a given case and even if the constitutionally unproblematic application of the statute to the litigant is severable from the constitutionally dubious applications. The lowest common denominator principle thus allows an end run around black-letter constitutional doctrine governing facial and as-applied constitutional challenges to statutes: A litigant ordinarily cannot attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances.

[80] The Court misses the point by answering that the canon of constitutional avoidance "is not a method of adjudicating constitutional questions by other means," and that the canon rests on a presumption that "Congress did not intend the alternative which raises serious constitutional doubts." Ante, at 10. That is true, but in deciding whether a plausible interpretation "raises serious constitutional doubts," a court must employ the usual rules of constitutional adjudication. See ante, at 9 (noting that whether an interpretation is constitutionally doubtful turns on whether it raises "a multitude of constitutional problems"); Zadvydas, 533 U. S., at 690-696 (extensively employing constitutional analysis). Those rules include doctrines governing third-party constitutional challenges and the like. Moreover, the reason that courts perform avoidance at all, in any form, is that we assume "Congress intends statutes to have effect to the full extent the Constitution allows." United States v. Booker, ante, at __ (Thomas, J., dissenting in part). Only my approach would extend §1231(a)(6) to its full constitutional bound consistent with modern avoidance, by narrowing the statute on a case-by-case basis only if constitutional concerns are actually present. By contrast, under the majority's lowest common denominator principle, a statute like §1231(a)(6) must be narrowed once and for all based on constitutional concerns that may never materialize. In short, once narrowed in Zadvydas, §1231(a)(6) now limits the Executive's power to detain unadmitted aliens -- even though indefinite detention of unadmitted aliens may be perfectly constitutional.

[81] All of this shows why the sole support the majority offers for its lowest common denominator principle can be squared with my analysis. That support is a plurality opinion of this Court (reaffirmed by footnote dictum in Leocal v. Ashcroft, ante, at ___, n. 8), that stated that the rule of lenity applies to statutes so long as they have some criminal applications. Ante, at 8 (citing United States v. Thompson/Center Arms Co., 504 U. S 505, 517 (1992)). To the extent that the rule of lenity is a constitutionally based clear statement rule, it is like vagueness doctrine, as its purpose is to ensure that those subjected to criminal prosecution have adequate notice of the conduct that the law prohibits. Cf., e.g., McBoyle v. United States, 283 U. S. 25, 27 (1931). Thompson/Center Arms is thus distinguishable, because our rules governing third-party challenges (rightly or wrongly) are more lenient in vagueness cases.*fn12 Zadvydas, by contrast, was a straightforward as-applied constitutional challenge. It concerned a constitutional doubt that arose from §1231(a)(6)'s application to Zadvydas himself, not its hypothetical application to other aliens, as its careful distinction between admitted and inadmissible aliens shows. To the extent that the rule of lenity is a nonconstitutionally based presumption about the interpretation of criminal statutes, the Thompson/Center Arms interpretive principle is fundamentally different from the canon of constitutional avoidance, because the rule of lenity is wholly independent of the rules governing constitutional adjudication. Either way, this case does not support the majority's restatement of modern avoidance principles.

[82] The cases at bar illustrate well the exception to the normal operation of as-applied constitutional adjudication that the Court's approach creates. Congress explicitly provided that unconstitutional applications of §1231(a)(6) should be severed from constitutional applications.*fn13 Congress has thus indicated that courts should examine whether §1231(a)(6) raises a constitutional doubt application by application. After all, under the severability clause, if Zadvydas had held unconstitutional the indefinite detention of Zadvydas and Ho Ma, the constitutionality of the Secretary's indefinite detention of Benitez and Martinez would remain an open question. Although Zadvydas did not formally hold §1231(a)(6) to be unconstitutional as applied to the aliens before it, the same procedure should be followed when analyzing whether §1231(a)(6) raises a constitutional doubt.*fn14 The Court today limits applications of §1231(a)(6) that may well be constitutional solely on the basis of constitutional doubts as to other applications, and despite that the severability clause contemplates application-by-application examination of the statute's constitutionality.

[83] The Court misapprehends my interpretive approach. It suggests that I would "spare [us] the necessity of ever finding a statute unconstitutional as applied," ante, at 13, and "would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case," ante, at 10. My approach does none of this. I simply would read ambiguous statutes to avoid as-applied constitutional doubts only if those doubts are present in the case before the Court. This leaves plenty of room for as-applied invalidation of statutes that are unambiguously unconstitutional. Nor would I permit a court to read every statute's meaning to depend on constitutional concerns. That is permissible, in my view, only if the statute is ambiguous. Granted, I am thereby guilty of leaving courts free to interpret ambiguous statutes "as becoming inoperative when they `approach constitutional limits.' " Ante, at 13. That is hardly an absurd result -- unless one considers the modern canon of constitutional avoidance itself to be absurd. Every application of that canon, by rejecting a plausible interpretation of a statute, reads the statute to be inoperative to the extent it raises a constitutional doubt or "limit."

[84] In truth, the Court's aggressive application of modern constitutional avoidance doctrine poses the greater danger. A disturbing number of this Court's cases have applied the canon of constitutional doubt to statutes that were on their face clear. See, e.g., INS v. St. Cyr, 533 U. S. 289, 327-336 (2001) (Scalia, J., dissenting); Public Citizen v. Department of Justice, 491 U. S. 440, 481-482 (1989) (Kennedy, J., concurring in judgment); Lowe v. SEC, 472 U. S. 181, 212-213 (1985) (White, J., concurring in result). This Court and others may now employ the "lowest common denominator" approach to limit the application of statutes wholesale by searching for hypothetical unconstitutional applications of them -- or, worse yet, hypothetical constitutional doubts -- despite the absence of any facial constitutional problem (at least, so long as those hypothetical doubts pose "a multitude of constitutional problems," ante, at 9). This is so even if Congress has expressed its clear intent that unconstitutional applications should be severed from constitutional applications, regardless of whether the challenger has third-party standing to raise the constitutional issue, and without the need to engage in full-fledged constitutional analysis.

[85] This danger is real. In St. Cyr, this Court held that the Immigration and Nationality Act (INA) did not divest district courts of jurisdiction under 28 U. S. C. §2241 over habeas actions filed by criminal aliens to challenge removal orders, 533 U. S., at 314. The Court did so because it thought that otherwise the statute would preclude any avenue of judicial review of removal orders of criminal aliens, thus raising a serious Suspension Clause question. Id., at 305. This was a construction of (among other provisions) 8 U. S. C. §§1252(a)(1) and 1252(b)(9), and 28 U. S. C. §2241, none of which distinguishes between criminal and non-criminal aliens. 533 U. S., at 308-314. The INA, however, clearly allows non-criminal aliens, unlike criminal aliens, a right to judicial review of removal decisions in the courts of appeals under the review provisions of §1252(a)(1), and St. Cyr involved only criminal aliens. After St. Cyr, therefore, one would have thought that "non-criminal aliens seeking to challenge their removal orders . . . [would] still presumably be required to proceed directly to the court of appeals by way of petition for review, under the restrictive modified Hobbs Act review provisions set forth in §1252(a)(1)," rather than sue directly under the habeas statute. Id., at 335 (Scalia, J., joined by Rehnquist, C. J., and O'Connor and Thomas, JJ., dissenting). Yet lower courts, relying on a version of the Court's "lowest common denominator" principle, have held just the opposite: They have entertained non-criminal aliens' habeas actions challenging removal orders. Chmakov v. Blackman, 266 F. 3d 210, 214-215 (CA3 2001); see also Riley v. INS, 310 F. 3d 1253, 1256 (CA10 2002); Liu v. INS, 293 F. 3d 36, 38-41 (CA2 2002). The logic in allowing non-criminal aliens, who have a right to judicial review of removal decisions, to take advantage of constitutional doubt that arises from precluding any avenue of judicial review for criminal aliens, see St. Cyr, supra, at 305, escapes me.

[86] II.

[87] The Court is also mistaken in affording Zadvydas stare decisis effect. Zadvydas was wrong in both its statutory and its constitutional analysis for the reasons expressed well by the dissents in that case. See 533 U. S., at 705-718 (opinion of Kennedy, J.); id., at 702-705 (opinion of Scalia, J.). I continue to adhere to those views and will not repeat the analysis of my colleagues. I write only to explain why I do not consider Zadvydas to bind us.

[88] Zadvydas cast itself as a statutory case, but that fact should not prevent us from overruling it. It is true that we give stronger stare decisis effect to our holdings in statutory cases than in constitutional cases. See, e.g., Hilton v. South Carolina Public Railways Comm'n, 502 U. S. 197, 205 (1991). This rule, however, is not absolute, and we should not hesitate to allow our precedent to yield to the true meaning of an Act of Congress when our statutory precedent is "unworkable" or "badly reasoned." Holder v. Hall, 512 U. S. 874, 936 (1994) (Thomas, J., concurring in judgment) (quoting Payne v. Tennessee, 501 U. S. 808, 827 (1991) (internal quotation marks omitted)). "[W]e have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes." Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 695 (1978). The mere fact that Congress can overturn our cases by statute is no excuse for failing to overrule a statutory precedent of ours that is clearly wrong, for the realities of the legislative process often preclude readopting the original meaning of a statute that we have upset.

[89] Zadvydas' reading of §1231(a)(6) is untenable. Section 1231(a)(6) provides that aliens whom the Secretary of Homeland Security has ordered removed "may be detained beyond the removal period." There is no qualification to this authorization, and no reference to a "reasonable time" limitation. Just as we exhaust the aid of the "traditional tools of statutory construction," Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9 (1984), before deferring to an agency's interpretation of a statute, so too should we exhaust those tools before deciding that a statute is ambiguous and that an alternative plausible construction of the statute should be adopted.

[90] Application of those traditional tools begins and ends with the text of §1231(a)(6). Zadvydas' observation that "if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms," 533 U. S., at 697, proves nothing. Congress could have spoken more clearly in any statutory case in which the statute does not mention the particular factual scenario before the Court. Congress provided for a "reasonable time" limit to detentions pending removal in other portions of §1231. Id., at 708 (Kennedy, J., dissenting). Its failure to do the same in §1231(a)(6) confirms what is unmistakable from its terms: that there is no time limit on the Secretary's power to detain aliens. There is no textually evident alternative construction that would avoid the constitutional doubts identified by the majority.

[91] Even apart from the Court's incredible reading of §1231(a)(6), the normal reason for affording our statutory holdings strong stare decisis effect --that Congress is free to overrule them if it disagrees -- does not apply to Zadvydas. Zadvydas is a statutory case in name only. Although the Zadvydas majority purported to find indefinite detention only constitutionally doubtful, its lengthy analysis strongly signaled to Congress that indefinite detention of admitted aliens would be unconstitutional. Indeed, far from avoiding that constitutional question in Zadvydas, the Court took it head on, giving it extended treatment. Id., at 690-697; but see ante, at 10 (noting the "fundamenta[l]" tenet that "[t]he canon [of constitutional avoidance] is not a method of adjudicating constitutional questions by other means"). Zadvydas makes clear that the Court thought indefinite detention to be more than constitutionally suspect, and there is evidence that some Members of Congress understood as much.*fn15 This is why the Court's assurance that if "the security of our borders will be compromised if [the United States] must release into the country inadmissible aliens who cannot be removed. . . . Congress can attend to it," ante, at 14, rings hollow. Short of constitutional amendment, it is only within the power of this Court to correct Zadvydas' error.

[92] The Court points to 8 U. S. C. §1226a(a)(6) (2000 ed., Supp. II), a statute that Congress passed shortly after Zadvydas, as evidence that Congress can correct Zadvydas' mistake. Ante, at 14-15, n. 8. This statute only confirms my concern that Zadvydas is legislatively uncorrectable. Section 1226a(a)(6) authorizes detention for a period of six months beyond the removal period of aliens who present a national security threat, but only to the extent that those aliens' removal is not reasonably foreseeable. Ante, at 14-15, n. 8. Yet Zadvydas conceded that indefinite detention might not violate due process in "certain special and narrow non-punitive circumstances ... where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint." 533 U. S., at 690 (internal quotation marks and citations omitted). Moreover, Zadvydas set a 6-month presumptive outer limit on the detention power. Id., at 701. Congress crafted §1226a(a)(6) to operate within the boundaries Zadvydas set. This provision says nothing about whether Congress may authorize detention of aliens for greater lengths of time or for reasons the Court found constitutionally problematic in Zadvydas.

[93] ***

[94] For the foregoing reasons, I would affirm the judgment of the Eleventh Circuit and reverse the judgment of the Ninth Circuit. I therefore respectfully dissent.


Opinion Footnotes


[95] *fn1 Together with No. 03-7434, Benitez v. Rozos, Field Office Director, Miami, Immigration and Customs Enforcement, on certiorari to the United States Court of Appeals for the Eleventh Circuit.

[96] *fn2 The authorities described herein as having been exercised by the Attorney General and the Immigration and Naturalization Service (INS) now reside in the Secretary of Homeland Security (hereinafter Secretary) and divisions of his Department (Bureau of Immigration and Customs Enforcement and Bureau of Citizenship and Immigration Services). See Homeland Security Act of 2002, §§441(2), 442(a)(3), 451(b), 116 Stat. 2192, 6 U. S. C. §§251(2), 252(a)(3), 271(b) (2000 ed., Supp. II).

[97] *fn3 Before the 1996 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009, aliens ineligible to enter the country were denominated "excludable" and ordered "deported." 8 U. S. C. §§1182(a), 1251(a)(1)(A) (1994 ed.); see Landon v. Plasencia, 459 U. S. 21, 25-26 (1982). Post-IIRIRA, such aliens are said to be "inadmissible" and held to be "removable." 8 U. S. C. §§1182(a), 1229a(e)(2) (2000 ed.).

[98] *fn4 Despite Benitez's release on a 1-year parole, this case continues to present a live case or controversy. If Benitez is correct, as his suit contends, that the Government lacks the authority to continue to detain him, he would have to be released, and could not be taken back into custody unless he violated the conditions of release (in which case detention would be authorized by 8 U. S. C. §1253), or his detention became necessary to effectuate his removal (in which case detention would once again be authorized by §1231(a)(6)). His current release, however, is not only limited to one year, but subject to the Secretary's discretionary authority to terminate. See 8 CFR §212.12(h) (2004) (preserving discretion to revoke parole). Thus, Benitez "continue[s] to have a personal stake in the outcome" of his petition. Lewis v. Continental Bank Corp., 494 U. S. 472, 477-478 (1990) (internal quotation marks omitted).

[99] *fn5 The dissent is quite wrong in saying, post, at 4, that the Zadvydas Court's belief that §1231(a)(6) did not apply to all aliens is evidenced by its statement that it did not "consider terrorism or other special circumstances where special arrangements might be made for forms of preventive detention," 533 U. S., at 695. The Court's interpretation of §1231(a)(6) did not affect the detention of alien terrorists for the simple reason that sustained detention of alien terrorists is a "special arrangement" authorized by a different statutory provision, 8 U. S. C. §1537(b)(2)(C). See Zadvydas, 533 U. S., at 697.

[100] *fn6 Contrary to the dissent's contentions, post, at 8, our decision in Salinas v. United States, 522 U. S. 52 (1997), is perfectly consistent with this principle of construction. In Salinas, the Court rejected the petitioner's invocation of the avoidance canon because the text of the statute was "unambiguous on the point under consideration." 522 U. S., at 60. For this reason, the Court squarely addressed and rejected any argument that the statute was unconstitutional as applied to the petitioner. Id., at 61 (holding that, under the construction adopted by the Court, "the statute is constitutional as applied in this case").

[101] *fn7 The dissent concedes this is so but argues, post, at 7-8, that, because the Court reached this conclusion "only after analyzing whether the constitutional doubts in Raygor applied to the county defendant" in Jinks, post, at 8, we must engage in the same quasi-constitutional analysis here before applying the construction adopted in Zadvydas to the aliens in these cases. This overlooks a critical distinction between the question before the Court in Jinks and the one before us today. In Jinks, the county could not claim the aid of Raygor itself because Raygor held only that §1367(d) did not include suits against non-consenting States; instead, the county argued by analogy to Raygor that, absent a clear statement of congressional intent, §1367(d) should be construed not to include suits against political subdivisions of States. And thus the Court in Jinks considered not whether Raygor's interpretation of §1367(d) was directly controlling but whether the constitutional concerns that justified the requirement of a clear statement in Raygor applied as well in the case of counties. In the present cases, by contrast, the aliens ask simply that the interpretation of §1231(a)(6) announced in Zadvydas be applied to them. This question does not compel us to compare analogous constitutional doubts; it simply requires that we determine whether the statute construed by Zadvydas permits any distinction to be drawn between aliens who have been admitted and aliens who have not.

[102] *fn8 Section 1182(d)(5)(A) reads as follows: "The [Secretary] may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the [Secretary], have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States."

[103] *fn9 That Congress has the capacity to do so is demonstrated by its reaction to our decision in Zadvydas. Less than four months after the release of our opinion, Congress enacted a statute which expressly authorized continued detention, for a period of six months beyond the removal period (and renewable indefinitely), of any alien (1) whose removal is not reasonably foreseeable and (2) who presents a national security threat or has been involved in terrorist activities. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), §412(a), 115 Stat. 350 (enacted Oct. 26, 2001) (codified at 8 U. S. C. §1226a(a)(6) (2000 ed., Supp. II)).

[104] *fn10 Section 1367(d) provides that "[t]he period of limitations for any claim asserted under [§1367(a)], and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under [§1367(a)], shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period."

[105] *fn11 See Rust v. Sullivan, 500 U. S. 173, 190-191 (1991) (distinguishing the classic and modern versions of the canon and citing cases); Hooper v. California, 155 U. S. 648, 657 (1895) ("The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality"); Mossman v. Higginson, 4 Dall. 12, 14 (1800) (reasoning that the statute under review "can, and must, receive a construction, consistent with the constitution"); Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833) (Marshall, J.); Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1949 (1997); H. Black, Handbook on the Construction and Interpretation of the Laws 113-114 (2d ed. 1911). The modern version seems to have originated in United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909).

[106] *fn12 See, e.g., Chicago v. Morales, 527 U. S. 41, 55, and n. 22 (1999) (plurality opinion); Kolender v. Lawson, 461 U. S. 352, 358-359, n. 8 (1983); Papachristou v. Jacksonville, 405 U. S. 156 (1972).

[107] *fn13 "If any provision of this division ... or the application of such provision to any person or circumstances is held to be unconstitutional, the remainder of this division and the application of the provisions of this division to any person or circumstance shall not be affected thereby." Note following 8 U. S. C. §1101, p. 840 (Separability).

[108] *fn14 Crowell v. Benson, 285 U. S. 22 (1932), bolsters my approach. Employing the canon of avoidance, the Court construed a statute in that case to allow judicial review of jurisdictional facts but not legislative facts. It did so even though the terms of the statute itself did not distinguish between the two sorts of facts. Id., at 62-63. The presence of a severability provision in the statute gave "assurance that there [was] no violation of the purpose of the Congress in sustaining the determinations of fact of the deputy commissioner where he acts within his authority in passing upon compensation claims while denying finality to his conclusions as to the jurisdictional facts upon which the valid application of the statute depends." Ibid. So too here, the presence of a severability provision should reassure the Court that applying Zadvydas' limiting construction of §1231(a)(6) to some aliens and not others is consistent with the statute.

[109] *fn15 See H. R. Conf. Rep. No. 108-10, p. 600 (2003) ("A recent Supreme Court decision held that criminal aliens cannot be detained indefinitely," no doubt referring to Zadvydas); H. R. Rep. No. 108-724, pt. 5, p. 191 (2004) ("The danger posed by the requirement that these aliens be allowed to remain in the U. S. was increased exponentially by the 2001 Supreme Court decision of Zadvydas v. Davis, in which the Court made clear that it would strike down as unconstitutional the indefinite detention by [the Secretary] of aliens with removal orders whose countries will not take them back, except in the most narrow of circumstances" (footnotes omitted)); 147 Cong. Rec. S11047 (Oct. 25, 2001) ("Indefinite detention of aliens is permitted only in extraordinary circumstances," citing Zadvydas).