SOUTER, J., dissenting

ences between provisions that address a similar subject may fairly be read to express differences in congressional intent.

The second reason to reject the Government's position follows from the text of the predecessor statute, which clearly provided that when acceptance was not forthcoming at step two, the Government had to move on to step three. The relevant language of the prior version (a version that consisted of one paragraph instead of the current five subparagraphs) read:

"If the government of [the] country [of citizenship] fails finally to advise the Attorney General or the alien within three months . . . whether that government will or will not accept such alien into its territory, then such deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth [to one of the countries now listed in subparagraph (E)]." Immigration and Nationality Act of 1952, § 243(a), 66 Stat. 212.

Under this statute, the Government obviously lacked the discretion it now claims, of removing an alien at step two without the consent of the country of citizenship. This is significant for our purposes because, as already mentioned, two House Reports on the bill that transformed the old law into the new one indicate that no substantive changes were in

have discussed, of course, the Court's and the Government's application of this reasoning is misguided because the phrasing of subparagraph (E)(vii) expressly (through its use of the word "another") attaches an acceptance requirement to clauses (i)-(vi).

Notably, the Court embraces precisely the opposite reasoning elsewhere in its opinion, stating that the discretion given to the Secretary in subparagraph (E)(vii) "accords with the similar flexibility to pass over inappropriate countries that the statute gives the [Secretary] at the other steps...." Ante, at 344. Why the Court is willing to find an implied grant of flexibility in subparagraph (D) even though "Congress has shown elsewhere in the same statute that it knows how to make such a [grant] manifest," ante, at 341, is something of a mystery.

SOUTER, J., dissenting

tended. See supra, at 358. Given this documented intent, together with the absence of any contrary indication in the text or legislative history, the current version should be read as its predecessor was. See Koons Buick Pontiac GMC, Inc. v. Nigh, ante, at 63 (rejecting an asserted substantive change because of "scant indication" that Congress intended it).

In sum, subparagraph (D) provides no authority to remove at step two without the consent of the country of citizenship. Jama is consequently correct that unless all of the options at step three are read as being subject to the same consent requirement, the requirement at step two will be nullified.

III

At the last ditch, the Court asserts that Jama's position would "abridge th[e] exercise of executive judgment," ante, at 344, and "run counter to our customary policy of deference to the President in matters of foreign affairs," ante, at 348. The Government similarly contends (throughout its brief) that Jama's approach would improperly limit the discretion of the Executive Branch. E. g., Brief for Respondent 13 ("[C]onstruing Section 1231(b)(2)(E)(i)–(vi) not to require acceptance preserves the traditional authority of the Executive Branch to make case-by-case judgments in matters involving foreign relations"). But here Congress itself has significantly limited executive discretion by establishing a detailed scheme that the Executive must follow in removing aliens. This of course is entirely appropriate, since it is to Congress that the Constitution gives authority over aliens. Art. I, §8, cl. 4; see also, e. g., INS v. Chadha, 462 U. S. 919, 940 (1983) ("The plenary authority of Congress over aliens under Art. I, §8, cl. 4, is not open to question"). Talk of judicial deference to the Executive in matters of foreign affairs, then, obscures the nature of our task here, which is to say not how much discretion we think the Executive ought to have, but how much discretion Congress has chosen to give it.

I would reverse the judgment of the Court of Appeals.

APPENDIX TO OPINION OF SOUTER, J. Paragraph (1) of 8 U. S. C. § 1231(b) reads as follows: “(1) Aliens arriving at the United States.

"Subject to paragraph (3)—

"(A) In general

"Except as provided by subparagraphs (B) and (C), an alien who arrives at the United States and with respect to whom proceedings under section [240] were initiated at the time of such alien's arrival shall be removed to the country in which the alien boarded the vessel or aircraft on which the alien arrived in the United States. "(B) Travel from contiguous territory

"If the alien boarded the vessel or aircraft on which the alien arrived in the United States in a foreign territory contiguous to the United States, an island adjacent to the United States, or an island adjacent to a foreign territory contiguous to the United States, and the alien is not a native, citizen, subject, or national of, or does not reside in, the territory or island, removal shall be to the country in which the alien boarded the vessel that transported the alien to the territory or island.

"(C) Alternative countries

"If the government of the country designated in subparagraph (A) or (B) is unwilling to accept the alien into that country's territory, removal shall be to any of the following countries, as directed by the Attorney General:

"(i) The country of which the alien is a citizen, subject, or national.

"(ii) The country in which the alien was born.

"(iii) The country in which the alien has a residence.

Appendix to opinion of SOUTER, J.

“(iv) A country with a government that will accept the alien into the country's territory if removal to each country described in a previous clause of this subparagraph is impracticable, inadvisable, or impossible."

Syllabus

CLARK, FIELD OFFICE DIRECTOR, SEATTLE, IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL. v. MARTINEZ

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 03-878. Argued October 13, 2004-Decided January 12, 2005* If an alien is found inadmissible and ordered removed, the Secretary of Homeland Security (Secretary) ordinarily must remove the alien from the country within 90 days. 8 U. S. C. § 1231(a)(1)(A). Here, Martinez, respondent in No. 03-878, and Benitez, petitioner in No. 03-7434, Cuban nationals who are both inadmissible under §1182, were ordered removed, but were detained beyond the 90-day removal period. Each filed a habeas corpus petition challenging his continued detention. In Martinez's case, the District Court found that removal was not reasonably foreseeable and ordered that Martinez be released under appropriate conditions. The Ninth Circuit affirmed. In Benitez's case, the District Court also accepted that removal would not occur in the foreseeable future, but nonetheless denied the petition. The Eleventh Circuit affirmed.

Held:

1. Under § 1231(a)(6), the Secretary may detain inadmissible aliens beyond the 90-day removal period, but only for so long as is reasonably necessary to achieve removal. Section 1231(a)(6)'s operative language, "may be detained beyond the removal period," applies equally to all aliens that are its subject, whether or not those aliens have been admitted to the country. In Zadvydas v. Davis, 533 U. S. 678, this Court interpreted § 1231(a)(6) to authorize the detention of aliens who have been admitted to the country only as long as "reasonably necessary" to effectuate their removal. Id., at 689, 699. This interpretation must apply to inadmissible aliens as well. Even if the statutory purpose and constitutional concerns influencing the Zadvydas construction are not present for inadmissible aliens, that cannot justify giving the same statutory text a different meaning depending on the characteristics of the aliens involved. Crowell v. Benson, 285 U. S. 22, Raygor v. Regents of Univ. of Minn., 534 U. S. 533, and Jinks v. Richland County, 538 U. S.

*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.