Tuan Thai, Also Known as Anh Tuan Thai, Also Known as Anh Thai Tuan v. John Ashcroft, Attorney General

This case requires us to consider whether 8 U.S.C. § 1231 (a)(6), as construed by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001), authorizes the continued and potentially indefinite detention of an alien based on a determination that the alien’s mental illness makes him specially dangerous to the community. We conclude that the statute does not provide such authority-

When a removal order has been entered against an alien, § 1231(a)(6) authorizes the Government to detain that alien beyond the statutory removal period. The Government’s ability to detain an alien pursuant to § 1231(a)(6) is not unlimited, however. In Zadvydas , the Supreme Court held that, in order to avoid a “serious constitutional threat,” § 1231(a)(6) must be construed as limiting an alien’s post-removal-period detention to the period reasonably necessary to remove the alien from the United States. Zadvydas, 533 U.S. at 699 , 121 S.Ct. 2491 .

The Court further held that the statute did not authorize extended detention of an alien subject to an order of removal if it is not reasonably foreseeable that the removal will be accomplished. Id. In the case at hand,…