Reported / Citable
Background
The petitioner, an alien who legally entered the United States through the Visa Waiver Program, was detained by immigration authorities pending removal. The government asserted it could detain him under 8 U.S.C. § 1187(c)(2)(E), which governs repatriation agreements with foreign governments. The petitioner filed a habeas petition challenging the detention on statutory and constitutional grounds, arguing the government lacked proper legal authority to hold him without a bond hearing.
The Court’s Holding
The court found that 8 U.S.C. § 1187(c)(2)(E) does not authorize detention. That provision addresses repatriation obligations of foreign governments—the text states nothing about detaining aliens and contains no language granting detention authority to the government. The court rejected the government’s argument that the statute’s final sentence (disclaiming new rights) created detention authority; that clause merely forecloses novel causes of action and does not grant detention power.
The court also rejected 8 U.S.C. § 1187(b)(2) as a detention basis, since that provision requires visa waiver participants to waive their right to contest removal (except on asylum grounds) but is silent on detention. The court concluded that absent explicit statutory authorization, the government must rely on 8 U.S.C. § 1226(a)—which provides for pre-removal detention with bond hearings—or release the petitioner. The court recommended granting the petition in part and ordering the government to cease relying on § 1187 as detention authority.
Key Takeaways
- The Visa Waiver Program statute does not authorize detention and cannot serve as a basis for mandatory detention.
- Detention authority must be explicitly stated in statute; it cannot be inferred from removal waivers or repatriation provisions.
- All aliens detained pending removal—including visa waiver participants—are entitled to bond hearings under 8 U.S.C. § 1226(a).
Why It Matters
This decision rejects a legal theory the government has attempted to invoke only rarely, but clarifies an important principle: detention authority must be explicit in statute. The ruling aligns with prior district court decisions and applies modern textualist analysis to immigration detention law, rejecting administrative interpretations that lack statutory grounding.
The decision protects procedural due process rights of visa waiver participants and potentially affects detention practices for this category of aliens nationwide. It establishes that participation in the Visa Waiver Program does not strip aliens of entitlement to bond hearings before removal detention.