533US2
Unit: $U87
[10-21-02 18:35:10] PAGES PGT: OPIN
Cite as: 533 U. S. 678 (2001)
697
Opinion of the Court
We cannot find here, however, any clear indication of congressional intent to grant the Attorney General the power
to hold indefinitely in confinement an alien ordered removed.
And that is so whether protecting the community from dangerous aliens is a primary or (as we believe) secondary statutory purpose. Cf. post, at 706, 708–709 (Kennedy, J., dissenting). After all, the provision is part of a statute that
has as its basic purpose effectuating an alien’s removal.
Why should we assume that Congress saw the alien’s dangerousness as unrelated to this purpose?
The Government points to the statute’s word “may.” But
while “may” suggests discretion, it does not necessarily suggest unlimited discretion. In that respect the word “may”
is ambiguous. Indeed, if Congress had meant to authorize
long-term detention of unremovable aliens, it certainly could
have spoken in clearer terms. Cf. 8 U. S. C. § 1537(b)(2)(C)
(1994 ed., Supp. V) (“If no country is willing to receive” a
terrorist alien ordered removed, “the Attorney General may,
notwithstanding any other provision of law, retain the alien
in custody” and must review the detention determination
every six months).
The Government points to similar related statutes that require detention of criminal aliens during removal proceedings and the removal period, and argues that these show that
mandatory detention is the rule while discretionary release
is the narrow exception. See Brief for Petitioners in
No. 00–38, at 26–28 (citing 8 U. S. C. §§ 1226(c), 1231(a)(2)).
But the statute before us applies not only to terrorists and
criminals, but also to ordinary visa violators, see supra, at
691; and, more importantly, post-removal-period detention,
unlike detention pending a determination of removability or
during the subsequent 90-day removal period, has no obvious
termination point.
The Government also points to the statute’s history. That
history catalogs a series of changes, from an initial period
(before 1952) when lower courts had interpreted statutory