Kim Ho Ma v. Ashcroft

A. Opinion Following Remand

We previously issued an opinion in this case, which is reported at 208 F.3d 815 (9th Cir.2000). 1 Following the issuance of our opinion, the Supreme Court granted certiorari, consolidated this case with Zadvydas v. Underdown, 185 F.3d 279 (5th Cir.1999), and issued an opinion in the consolidated cases sub nom. Zadvydas v. Davis, — U.S. -, 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001). In Zadvydas , the Court essentially adopted the reasoning set forth in our opinion, and held that 8 U.S.C. § 1231 (a)(6) does not authorize detention of an alien, pending removal, indefinitely. The Court further held that following issuance of a final order of removal there is a “presumptively reasonable” period of six months during which the INS may continue to detain an alien it is seeking to remove. Id. at 2505 . Thereafter detention is lawful only if there is a “significant likelihood of removal in the reasonably foreseeable future.” Id. The Court vacated our decision, however, because, it stated: “[our] conclusion may have rested solely upon the ‘absence’ of an ‘extant or pending’ repatriation agreement without giving due weight to the likelihood of successful future…