Khotesouvan

This appeal presents the question whether the government may continue to detain an alien ordered removed who has been held in custody for fewer than 90 days, but whose removal is not reasonably foreseeable. We hold that an alien ordered removed whose removal is not reasonably foreseeable cannot raise a col-orable claim for release under the Due Process Clause of the Fifth Amendment until at least 90 days of detention have passed.

I.FACTS

The petitioners in this consolidated appeal are five aliens from Vietnam or Laos who were ordered removed from the United States in late February and early March of 2004.

According to the government, all five had been previously convicted of aggravated felonies. (We have not been provided with their criminal records.) Vietnam and Laos refused to repatriate the aliens, and the government concedes that repatriation is not likely to occur in the foreseeable future.

Between May 5 and May 7, 2004, the aliens filed petitions for -writs of habeas corpus pursuant to 28 U.S.C. § 2241 . On May 12, 2004, the district court denied the petitions. The aliens filed notices of appeal that same day.

The INS released three of the aliens on conditions in the…