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[10-21-02 18:35:10] PAGES PGT: OPIN
ZADVYDAS v. DAVIS
Kennedy, J., dissenting
portation “to give information under oath . . . as the Attorney General may deem fit and proper.” 353 U. S., at 195.
The Court held that although the plain language “appears to
confer upon the Attorney General unbounded authority to
require whatever information he deems desirable of aliens
whose deportation has not been effected within six months,”
id., at 199, the constitutional doubt this interpretation would
raise meant the language would be construed as limited to
the provision of information “reasonably calculated to keep
the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue,”
id., at 202. In Witkovich the interpretation of the text was
in aid of the statutory purpose; in the instant cases the interpretation nullifies the statutory purpose. Here the statute
by its own terms permits the Attorney General to consider
factors the Court now makes irrelevant.
The majority’s unanchored interpretation ignores another
indication that the Attorney General’s detention discretion
was not limited to this truncated period. Section 1231(a)(6)
permits continued detention not only of removable aliens but
also of inadmissible aliens, for instance those stopped at the
border before entry. Congress provides for detention of
both categories within the same statutory grant of authority.
Accepting the majority’s interpretation, then, there are two
possibilities, neither of which is sustainable. On the one
hand, it may be that the majority’s rule applies to both categories of aliens, in which case we are asked to assume that
Congress intended to restrict the discretion it could confer
upon the Attorney General so that all inadmissible aliens
must be allowed into our community within six months. On
the other hand, the majority’s logic might be that inadmissible and removable aliens can be treated differently. Yet it
is not a plausible construction of § 1231(a)(6) to imply a time
limit as to one class but not to another. The text does
not admit of this possibility. As a result, it is difficult to
see why “[a]liens who have not yet gained initial admission