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Washington Law Review

Abstract

In Kim Ho Ma v. Reno, the Ninth Circuit rewrote the plain language of § 241(a)(6) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to avoid a constitutional defect in the statute. Section 123 1(a)(6) of Title 8 of the U.S. Code, which codifies § 241(a)(6) of the IIRIRA, authorizes the Attorney General to detain criminal aliens, or removable aliens posing a danger to the community or a danger of flight risk, beyond the statutory removal period if they have not been removed from the country. Under the guise of constitutional avoidance, the Ma court carved out an exception to this detention authority by prohibiting the Attorney General from detaining deportable aliens beyond the statutory removal period if the aliens' removal will not be accomplished in the reasonably foreseeable future. Although courts may use the constitutional-avoidance canon of statutory interpretation to avoid substantial constitutional questions, courts may not rely on the canon when the statutory language and legislative intent are clear. The Ma court's statutory interpretation cannot be squared with either the plain language or the congressional intent of § 1236(a)(6) that the Attorney General's detention authority includes the discretion to determine which criminal aliens may be released back into the community pending removal from the United States.

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