Kim Ho Ma v. Reno: Cloaking judicial activism as constitutional avoidance

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 1231 (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 al iens posing a danger to the community or a danger of flight risk, beyond th e statutory removal period if they have not been removed from. the country. Under the guise of constitutional avoidance, the Ma court carved out an ex ception to this detention authority by prohibiting the Attorney General fro m detaining deportable aliens beyond the statutory removal period if the al iens' removal will not be accomplished in the reasonably foreseeable future . Although courts may use the constitutional-avoidance canon of statutory i nterpretation to avoid substantial constitutional questions, courts may not rely on the canon when the statutory language and legislative intent are c lear. The Ma court's statutory interpretation cannot be squared with either the plain language or the congressional intent of 1236(a)(6) that the Atto rney General's detention authority includes the discretion to determine whi ch criminal aliens may be released back into the community pending removal from the United States.