CLARK, FIELD OFFICE DIRECTOR, SEATTLE, IMMIGRATION AND CUSTOMS ENFORCE- MENT, et al. v. MARTINEZ

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371 OCTOBER TERM, 2004
Syllabus
CLARK, FIELD OFFICE DIRECTOR, SEATTLE,
IMMIGRATION AND CUSTOMS ENFORCE-
MENT, et al. v. MARTINEZ
certiorari to the united states court of appeals for
the ninth circuit
No. 03–878. Argued October 13, 2004—Decided January 12, 2005*
If an alien is found inadmissible and ordered removed, the Secretary of
Homeland Security (Secretary) ordinarily must remove the alien from
the country within 90 days. 8 U. S. C. § 1231(a)(1)(A). Here, Martinez,
respondent in No. 03–878, and Benitez, petitioner in No. 03–7434, Cuban
nationals who are both inadmissible under § 1182, were ordered re-
moved, but were detained beyond the 90-day removal period. Each
filed a habeas corpus petition challenging his continued detention. In
Martinez’s case, the District Court found that removal was not reason-
ably foreseeable and ordered that Martinez be released under appro-
priate conditions. The Ninth Circuit affirmed. In Benitez’s case, the
District Court also accepted that removal would not occur in the fore-
seeable future, but nonetheless denied the petition. The Eleventh Cir-
cuit affirmed.
Held:
1. Under § 1231(a)(6), the Secretary may detain inadmissible aliens
beyond the 90-day removal period, but only for so long as is reasonably
necessary to achieve removal. Section 1231(a)(6)’s operative language,
“may be detained beyond the removal period,” applies equally to all
aliens that are its subject, whether or not those aliens have been ad-
mitted to the country. In Zadvydas v. Davis, 533 U. S. 678, this Court
interpreted § 1231(a)(6) to authorize the detention of aliens who have
been admitted to the country only as long as “reasonably necessary” to
effectuate their removal. Id., at 689, 699. This interpretation must
apply to inadmissible aliens as well. Even if the statutory purpose and
constitutional concerns influencing the Zadvydas construction are not
present for inadmissible aliens, that cannot justify giving the same stat-
utory text a different meaning depending on the characteristics of the
aliens involved. Crowell v. Benson, 285 U. S. 22, Raygor v. Regents of
Univ. of Minn., 534 U. S. 533, and Jinks v. Richland County, 538 U. S.
*Together with No. 03–7434, Benitez v. Rozos, Field Office Director,
Miami, Immigration and Customs Enforcement, on certiorari to the
United States Court of Appeals for the Eleventh Circuit.

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372 CLARK v. MARTINEZ
Syllabus
456, distinguished. Moreover, contrary to the Government’s argument,
nothing in Zadvydas indicates that § 1231(a)(6) authorizes detention
until it approaches constitutional limits. Nor does § 1182(d)(5) inde-
pendently authorize continued detention of these aliens. Pp. 377–386.
2. In Zadvydas, the Court further held that the presumptive period
during which an alien’s detention is reasonably necessary to effectuate
removal is six months, and that he must be conditionally released after
that time if he can demonstrate that there is “no significant likelihood of
removal in the reasonably foreseeable future.” 533 U. S., at 701. The
Government having suggested no reason that the time reasonably nec-
essary for removal is longer for an inadmissible alien, this same 6-month
presumptive detention period applies in these cases. Because both
Martinez and Benitez were detained well beyond six months after their
removal orders became final, the Government has brought forward noth-
ing to indicate that a substantial likelihood of removal subsists, and the
District Court in each case has determined that removal to Cuba is not
reasonably foreseeable, the habeas petitions should have been granted.
Pp. 386–387.
No. 03–878, affirmed; No. 03–7434, 337 F. 3d 1289, reversed; and both
cases remanded.
Scalia, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined.
O’Connor, J., filed a concurring opinion, post, p. 387. Thomas, J., filed
a dissenting opinion, in which Rehnquist, C. J., joined as to Part I–A,
post, p. 388.
Deputy Solicitor General Kneedler argued the cause for
petitioners in No. 03–878 and respondent in No. 03–7434.
With him on the briefs were Acting Solicitor General Clem-
ent, former Solicitor General Olson, Assistant Attorney
General Keisler, Patricia A. Millett, and Donald E. Keener.
Christine Stebbins Dahl, by appointment of the Court, 541
U. S. 986, argued the cause for respondent in No. 03–878.
With her on the brief was Stephen R. Sady.
John S. Mills, by appointment of the Court, 541 U. S. 1084,
argued the cause for petitioner in No. 03–7434. With him
on the briefs were Tracy S. Carlin and Rebecca B. Creed.†
†Briefs of amici curiae urging reversal in No. 03–7434 were filed for
the American Bar Association by Dennis W. Archer, John J. Gibbons, Law-
rence S. Lustberg, Jonathan L. Hafetz, and Philip G. Gallagher; for the

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373 Cite as: 543 U. S. 371 (2005)
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
An alien arriving in the United States must be inspected
by an immigration official, 66 Stat. 198, as amended, 8 U. S. C.
§ 1225(a)(3), and, unless he is found “clearly and beyond a
doubt entitled to be admitted,” must generally undergo
removal proceedings to determine admissibility, § 1225(b)
(2)(A). Meanwhile the alien may be detained, subject to
the Secretary’s discretionary authority to parole him into
the country. See § 1182(d)(5); 8 CFR § 212.5 (2004). If, at
the conclusion of removal proceedings, the alien is deter-
mined to be inadmissible and ordered removed, the law pro-
vides that the Secretary of Homeland Security “shall remove
the alien from the United States within a period of 90 days,”
8 U. S. C. § 1231(a)(1)(A). These cases concern the Secre-
tary’s authority to continue to detain an inadmissible alien
subject to a removal order after the 90-day removal period
has elapsed.
American Civil Liberties Union by Judy Rabinovitz, Lucas Guttentag,
Steven R. Shapiro, Paul A. Engelmayer, and David Sapir Lesser; for the
American Immigration Law Foundation Legal Action Center et al. by
George E. Quillin, G. Michael Halfenger, and Michael D. Leffel; for the
Florida Immigrant Advocacy Center et al. by Stephen F. Hanlon; for the
Lawyers Committee for Human Rights et al. by Steven E. Fineman, Bill
Lann Lee, and Deborah Pearlstein; for Legal and Service Organizations
by Joseph F. Tringali; for the North Carolina Justice and Community
Development Center by James E. Coleman, Jr.; and for Regina Germain
et al. by David J. Bodney.
Daniel J. Popeo and Richard A. Samp filed a brief for the Washington
Legal Foundation et al. as amici curiae urging affirmance in No. 03–7434
and reversal in No. 03–878.
Briefs of amici curiae urging affirmance in No. 03–878 were filed for
the Cuban American Bar Association et al. by Catherine E. Stetson, Wil-
liam H. Johnson, and Gilbert Paul Carrasco; for National Refugee Reset-
tlement and Advocacy Organizations by Peter M. Friedman; for Religious
Organizations by Isabelle M. Carrillo; and for Stuart E. Eizenstat et al.
by David H. Remes.
Jonathan J. Ross and Melford O. Cleveland filed a brief for Law Profes-
sors as amici curiae in No. 03–7434.

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374 CLARK v. MARTINEZ
Opinion of the Court
I
Sergio Suarez Martinez (respondent in No. 03–878) and
Daniel Benitez (petitioner in No. 03–7434) arrived in the
United States from Cuba in June 1980 as part of the Mariel
boatlift, see Palma v. Verdeyen, 676 F. 2d 100, 101 (CA4
1982) (describing circumstances of Mariel boatlift), and were
paroled into the country pursuant to the Attorney General’s
authority under 8 U. S. C. § 1182(d)(5).1 See Pet. for Cert. in
No. 03–878, p. 7; Benitez v. Wallis, 337 F. 3d 1289, 1290 (CA11
2003). Until 1996, federal law permitted Cubans who were
paroled into the United States to adjust their status to that
of lawful permanent resident after one year. See Cuban
Refugee Adjustment Act, 80 Stat. 1161, as amended, notes
following 8 U. S. C. § 1255. Neither Martinez nor Benitez
qualified for this adjustment, however, because, by the time
they applied, both men had become inadmissible because of
prior criminal convictions in the United States. When Mar-
tinez sought adjustment in 1991, he had been convicted of
assault with a deadly weapon in Rhode Island and burglary
in California, Pet. for Cert. in No. 03–878, at 7; when Benitez
sought adjustment in 1985, he had been convicted of grand
theft in Florida, 337 F. 3d, at 1290. Both men were con-
victed of additional felonies after their adjustment applica-
tions were denied: Martinez of petty theft with a prior con-
viction (1996), assault with a deadly weapon (1998), and
attempted oral copulation by force (1999), see Pet. for Cert.
in No. 03–878, at 7–8; Benitez of two counts of armed rob-
bery, armed burglary of a conveyance, armed burglary of a
structure, aggravated battery, carrying a concealed firearm,
1 The authorities described herein as having been exercised by the At-
torney General and the Immigration and Naturalization Service (INS)
now reside in the Secretary of Homeland Security (hereinafter Secretary)
and divisions of his Department (Bureau of Immigration and Customs En-
forcement and Bureau of Citizenship and Immigration Services). See
Homeland Security Act of 2002, §§ 441(2), 442(a)(3), 451(b), 116 Stat. 2192,
2193, 2196, 6 U. S. C. §§ 251(2), 252(a)(3), 271(b) (2000 ed., Supp. II).

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unlawful possession of a firearm while engaged in a criminal
offense, and unlawful possession, sale, or delivery of a fire-
arm with an altered serial number (1993), see 337 F. 3d, at
1290–1291.
The Attorney General revoked Martinez’s parole in De-
cember 2000. Martinez was taken into custody by the INS,
and removal proceedings were commenced against him.
Pet. for Cert. in No. 03–878, at 8. An Immigration Judge
found him inadmissible by reason of his prior convic-
tions, § 1182(a)(2)(B), and lack of sufficient documentation,
§ 1182(a)(7)(A)(i)(I), and ordered him removed to Cuba.
Martinez did not appeal. Pet. for Cert. in No. 03–878, at 8.
The INS continued to detain him after expiration of the 90-
day removal period, and he remained in custody until he was
released pursuant to the District Court order that was af-
firmed by the Court of Appeals’ decision on review here.
Id., at 9.
Benitez’s parole was revoked in 1993 (shortly after he was
imprisoned for his convictions of that year), and the INS im-
mediately initiated removal proceedings against him. In
December 1994, an Immigration Judge determined Beni-
tez to be excludable and ordered him deported under
§§ 1182(a)(2)(B) and 1182(a)(7)(A)(i)(I) (1994 ed. and Supp.
V).2 337 F. 3d, at 1291. Benitez did not seek further re-
view. At the completion of his state prison term, the INS
took him into custody for removal, and he continued in cus-
tody after expiration of the 90-day removal period. Ibid.
In September 2003, Benitez received notification that he was
eligible for parole, contingent on his completion of a drug-
2 Before the enactment of the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, aliens ineli-
gible to enter the country were denominated “excludable” and ordered
“deported.” 8 U. S. C. §§ 1182(a), 1251(a)(1)(A) (1994 ed.); see Landon v.
Plasencia, 459 U. S. 21, 25–26 (1982). Post-IIRIRA, such aliens are said
to be “inadmissible” and held to be “removable.” 8 U. S. C. §§ 1182(a),
1229a(e)(2) (2000 ed.).

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abuse treatment program. Letter from Paul D. Clement,
Acting Solicitor General, to William K. Suter, Clerk of Court,
1 (Nov. 3, 2004). Benitez completed the program while his
case was pending before this Court, and shortly after com-
pletion was paroled for a period of one year. Ibid. On
October 15, 2004, two days after argument in this Court,
Benitez was released from custody to sponsoring family
members.3 Id., at 2.
Both aliens filed a petition for a writ of habeas corpus
under 28 U. S. C. § 2241 to challenge their detention beyond
the 90-day removal period. In Martinez’s case, the District
Court for the District of Oregon accepted that removal was
not reasonably foreseeable, and ordered the INS to release
Martinez under conditions that the INS believed appro-
priate. Martinez v. Smith, No. CV 02–972–PA (Oct. 30,
2002), App. to Pet. for Cert. in No. 03–878, p. 2a. The Court
of Appeals for the Ninth Circuit summarily affirmed, citing
its decision in Xi v. INS, 298 F. 3d 832 (2002). Martinez
v. Ashcroft, No. 03–35053 (Aug. 18, 2003), App. to Pet. for
Cert. in No. 03–878, at 1a. In Benitez’s case, the District
Court for the Northern District of Florida also concluded
that removal would not occur in the “foreseeable future,”
but nonetheless denied the petition. Benitez v. Wallis,
Case No. 5:02cv19 MMP (July 11, 2002), pp. 2, 4, App. in
3 Despite Benitez’s release on a 1-year parole, this case continues to pre-
sent a live case or controversy. If Benitez is correct, as his suit contends,
that the Government lacks the authority to continue to detain him, he
would have to be released, and could not be taken back into custody unless
he violated the conditions of release (in which case detention would be
authorized by § 1253), or his detention became necessary to effectuate his
removal (in which case detention would once again be authorized by
§ 1231(a)(6)). His current release, however, is not only limited to one year,
but subject to the Secretary’s discretionary authority to terminate. See
8 CFR § 212.12(h) (2004) (preserving discretion to revoke parole). Thus,
Benitez “continue[s] to have a personal stake in the outcome” of his peti-
tion. Lewis v. Continental Bank Corp., 494 U. S. 472, 477–478 (1990) (in-
ternal quotation marks omitted).

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No. 03–7434, pp. 45, 48. The Court of Appeals for the Elev-
enth Circuit affirmed, agreeing with the dissent in Xi. 337
F. 3d 1289 (2003). We granted certiorari in both cases.
Benitez v. Mata, 540 U. S. 1147 (2004); Crawford v. Marti-
nez, 540 U. S. 1217 (2004).
II
Title 8 U. S. C. § 1231(a)(6) provides, in relevant part, as
follows:
“An alien ordered removed who is inadmissible under
section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who
has been determined by the [Secretary] to be a risk to
the community or unlikely to comply with the order of
removal, may be detained beyond the removal period
and, if released, shall be subject to the terms of supervi-
sion in paragraph (3).”
By its terms, this provision applies to three categories of
aliens: (1) those ordered removed who are inadmissible under
§ 1182, (2) those ordered removed who are removable under
§ 1227(a)(1)(C), § 1227(a)(2), or § 1227(a)(4), and (3) those or-
dered removed whom the Secretary determines to be either
a risk to the community or a flight risk. In Zadvydas v.
Davis, 533 U. S. 678 (2001), the Court interpreted this provi-
sion to authorize the Attorney General (now the Secretary)
to detain aliens in the second category only as long as “rea-
sonably necessary” to remove them from the country. Id.,
at 689, 699. The statute’s use of “may,” the Court said, “sug-
gests discretion,” but “not necessarily . . . unlimited discre-
tion. In that respect the word ‘may’ is ambiguous.” Id., at
697. In light of that perceived ambiguity and the “serious
constitutional threat” the Court believed to be posed by in-
definite detention of aliens who had been admitted to the
country, id., at 699, the Court interpreted the statute to per-
mit only detention that is related to the statute’s “basic pur-
pose [of] effectuating an alien’s removal,” id., at 696–699.

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“[O]nce removal is no longer reasonably foreseeable, contin-
ued detention is no longer authorized.” Id., at 699. The
Court further held that the presumptive period during which
the detention of an alien is reasonably necessary to effectu-
ate his removal is six months; after that, the alien is eligible
for conditional release if he can demonstrate that there is
“no significant likelihood of removal in the reasonably fore-
seeable future.” Id., at 701.
The question presented by these cases, and the question
that evoked contradictory answers from the Ninth and Elev-
enth Circuits, is whether this construction of § 1231(a)(6) that
we applied to the second category of aliens covered by the
statute applies as well to the first—that is, to the category
of aliens “ordered removed who [are] inadmissible under
[§] 1182.” We think the answer must be yes. The opera-
tive language of § 1231(a)(6), “may be detained beyond the
removal period,” applies without differentiation to all three
categories of aliens that are its subject. To give these same
words a different meaning for each category would be to in-
vent a statute rather than interpret one. As the Court in
Zadvydas recognized, the statute can be construed “liter-
ally” to authorize indefinite detention, id., at 689, or (as the
Court ultimately held) it can be read to “suggest [less than]
unlimited discretion” to detain, id., at 697. It cannot, how-
ever, be interpreted to do both at the same time.
The dissent’s belief that Zadvydas compels this result
rests primarily on that case’s statement that “[a]liens who
have not yet gained initial admission to this country would
present a very different question,” id., at 682. See post, at
390, 393 (opinion of Thomas, J.). This mistakes the reserva-
tion of a question with its answer. Neither the opinion of
the Court nor the dissent in Zadvydas so much as hints that
the Court adopted the novel interpretation of § 1231(a)(6)
proposed by today’s dissent. The opinion in that case con-

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sidered whether § 1231(a)(6) permitted the Government to
detain removable aliens indefinitely; relying on ambiguities
in the statutory text and the canon that statutes should be
interpreted to avoid constitutional doubts, the opinion held
that it did not. Despite the dissent’s repeated claims that
§ 1231(a)(6) could not be given a different reading for inad-
missible aliens, see Zadvydas, supra, at 710, 716–717 (opinion
of Kennedy, J.), the Court refused to decide that question—
the question we answer today. It is indeed different from
the question decided in Zadvydas, but because the statutory
text provides for no distinction between admitted and nonad-
mitted aliens, we find that it results in the same answer.4
The dissent’s contention that our reading of Zadvydas is
“implausible,” post, at 389, is hard to reconcile with the fact
that it is the identical reading espoused by the Zadvydas
dissenters, who included the author of today’s dissent.
Worse still, what the Zadvydas dissent did find “not . . .
plausible” was precisely the reading adopted by today’s
dissent:
“[T]he 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 dif-
ficult to see why ‘[a]liens who have not yet gained initial
admission to this country would present a very differ-
4 The dissent is quite wrong in saying, post, at 390, that the Zadvydas
Court’s belief that § 1231(a)(6) did not apply to all aliens is evidenced by
its statement that it did not “consider terrorism or other special circum-
stances where special arguments might be made for forms of preventive
detention,” 533 U. S., at 696. The Court’s interpretation of § 1231(a)(6)
did not affect the detention of alien terrorists for the simple reason that
sustained detention of alien terrorists is a “special arrangement” author-
ized by a different statutory provision, 8 U. S. C. § 1537(b)(2)(C). See
Zadvydas, supra, at 697.

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ent question.’ ” 533 U. S., at 710–711 (opinion of Ken-
nedy, J.).
The Zadvydas dissent later concluded that the release of
“Mariel Cubans and other illegal, inadmissible aliens . . .
would seem a necessary consequence of the majority’s con-
struction of the statute.” Id., at 717 (emphasis added).
Tellingly, the Zadvydas majority did not negate either
charge.
The Government, joined by the dissent, argues that the
statutory purpose and the constitutional concerns that influ-
enced our statutory construction in Zadvydas are not pres-
ent for aliens, such as Martinez and Benitez, who have not
been admitted to the United States. Be that as it may, it
cannot justify giving the same detention provision a differ-
ent meaning when such aliens are involved. It is not at all
unusual to give a statute’s ambiguous language a limiting
construction called for by one of the statute’s applications,
even though other of the statute’s applications, standing
alone, would not support the same limitation. The lowest
common denominator, as it were, must govern. See, e. g.,
Leocal v. Ashcroft, ante, at 11–12, n. 8 (explaining that, if a
statute has criminal applications, “the rule of lenity applies”
to the Court’s interpretation of the statute even in immigra-
tion cases “[b]ecause we must interpret the statute consist-
ently, whether we encounter its application in a criminal or
noncriminal context”); United States v. Thompson/Center
Arms Co., 504 U. S. 505, 517–518, and n. 10 (1992) (plurality
opinion) (employing the rule of lenity to interpret “a tax
statute . . . in a civil setting” because the statute “has crimi-
nal applications”); id., at 519 (Scalia, J., concurring in judg-
ment) (also invoking the rule of lenity). In other words,
when deciding which of two plausible statutory constructions
to adopt, a court must consider the necessary consequences
of its choice. If one of them would raise a multitude of con-

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stitutional problems, the other should prevail—whether or
not those constitutional problems pertain to the particular
litigant before the Court.5
The dissent takes issue with this maxim of statutory con-
struction on the ground that it allows litigants to “attack
statutes as constitutionally invalid based on constitutional
doubts concerning other litigants or factual circumstances”
and thereby to effect an “end run around black-letter consti-
tutional doctrine governing facial and as-applied constitu-
tional challenges.” Post, at 396. This accusation miscon-
ceives—and fundamentally so—the role played by the canon
of constitutional avoidance in statutory interpretation. The
canon is not a method of adjudicating constitutional ques-
tions by other means. See, e. g., NLRB v. Catholic Bishop
of Chicago, 440 U. S. 490, 502 (1979) (refusing to engage in
extended analysis in the process of applying the avoidance
canon “as we would were we considering the constitutional
issue”); see also Vermeule, Saving Constructions, 85 Geo.
L. J. 1945, 1960–1961 (1997) (providing examples of cases
where the Court construed a statute narrowly to avoid a
constitutional question ultimately resolved in favor of the
broader reading). Indeed, one of the canon’s chief justifica-
tions is that it allows courts to avoid the decision of consti-
tutional questions. It is a tool for choosing between com-
peting plausible interpretations of a statutory text, resting
on the reasonable presumption that Congress did not intend
the alternative which raises serious constitutional doubts.
5 Contrary to the dissent’s contentions, post, at 394, our decision in Sali-
nas v. United States, 522 U. S. 52 (1997), is perfectly consistent with this
principle of construction. In Salinas, the Court rejected the petitioner’s
invocation of the avoidance canon because the text of the statute was “un-
ambiguous on the point under consideration.” Id., at 60. For this rea-
son, the Court squarely addressed and rejected any argument that the
statute was unconstitutional as applied to the petitioner. Id., at 61 (hold-
ing that, under the construction adopted by the Court, “the statute is
constitutional as applied in this case”).

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See Rust v. Sullivan, 500 U. S. 173, 191 (1991); Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr.
Trades Council, 485 U. S. 568, 575 (1988). The canon is thus
a means of giving effect to congressional intent, not of sub-
verting it. And when a litigant invokes the canon of avoid-
ance, he is not attempting to vindicate the constitutional
rights of others, as the dissent believes; he seeks to vindicate
his own statutory rights. We find little to recommend the
novel interpretive approach advocated by the dissent, which
would render every statute a chameleon, its meaning subject
to change depending on the presence or absence of constitu-
tional concerns in each individual case. Cf. Harris v. United
States, 536 U. S. 545, 556 (2002) (rejecting “a dynamic view
of statutory interpretation, under which the text might mean
one thing when enacted yet another if the prevailing view of
the Constitution later changed”).
In support of its contention that we can give § 1231(a)(6) a
different meaning when it is applied to nonadmitted aliens,
the Government relies most prominently upon our decision
in Crowell v. Benson, 285 U. S. 22 (1932). Brief for Petition-
ers in No. 03–878, p. 29; Brief for Respondent in No. 03–7434,
p. 29. That case involved a statutory provision that gave
the Deputy Commissioner of the United States Employees’
Compensation Commission “ ‘full power and authority to
hear and determine all questions in respect of ’ ” claims under
the Longshoremen’s and Harbor Workers’ Compensation
Act. 285 U. S., at 62. The question presented was whether
this provision precluded review of the Deputy Commission-
er’s determination that the claimant was an employee, and
hence covered by the Act. The Court held that, although
the statute could be read to bar judicial review altogether, it
was also susceptible of a narrower reading that permitted
judicial review of the fact of employment, which was an “es-
sential condition precedent to the right to make the claim.”
Ibid. The Court adopted the latter construction in order to
avoid serious constitutional questions that it believed would

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be raised by total preclusion of judicial review. Ibid. This
holding does not produce a statute that bears two different
meanings, depending on the presence or absence of a consti-
tutional question. Always, and as applied to all claimants,
it permits judicial review of the employment finding. What
corresponds to Crowell v. Benson’s holding that the fact of
employment is judicially reviewable is Zadvydas’s holding
that detention cannot be continued once removal is no longer
reasonably foreseeable—and like the one, the other applies
in all cases.
The dissent, on the other hand, relies on our recent cases
interpreting 28 U. S. C. § 1367(d). Raygor v. Regents of
Univ. of Minn., 534 U. S. 533 (2002), held that this provision
does not include, in its tolling of limitations periods, claims
against States that have not waived their immunity from suit
in federal court because the statutory language fails to make
“ ‘ “unmistakably clear,” ’ ” as it must in provisions subjecting
States to suit, that such States were covered. Id., at 543–
546. A subsequent decision, Jinks v. Richland County, 538
U. S. 456 (2003), held that the tolling provision does apply
to claims against political subdivisions of States, since the
requirement of the unmistakably clear statement did not
apply to those entities. Id., at 466. This progression of de-
cisions does not remotely establish that § 1367(d) has two
different meanings, equivalent to the unlimited-detention/
limited-detention meanings of § 1231(a)(6) urged upon us
here. They hold that the single and unchanging disposition
of § 1367(d) (the tolling of limitations periods) does not apply
to claims against States that have not consented to be sued
in federal court. 6
6 The dissent concedes this is so but argues, post, at 393–394, that, be-
cause the Court reached this conclusion “only after analyzing whether the
constitutional doubts at issue in Raygor applied to the county defendant”
in Jinks, post, at 394, we must engage in the same quasi-constitutional
analysis here before applying the construction adopted in Zadvydas v.
Davis, 533 U. S. 678 (2001), to the aliens in these cases. This overlooks a

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384 CLARK v. MARTINEZ
Opinion of the Court
We also reject the Government’s argument that, under
Zadvydas, § 1231(a)(6) “authorizes detention until it ap-
proaches constitutional limits.” Brief for Petitioners in
No. 03–878, at 27–28; Brief for Respondent in No. 03–7434,
at 27–28. The Government provides no citation to support
that description of the case—and none exists. Zadvydas did
not hold that the statute authorizes detention until it ap-
proaches constitutional limits; it held that, since interpreting
the statute to authorize indefinite detention (one plausible
reading) would approach constitutional limits, the statute
should be read (in line with the other plausible reading) to
authorize detention only for a period consistent with the pur-
pose of effectuating removal. 533 U. S., at 697–699. If we
were, as the Government seems to believe, free to “inter-
pret” statutes as becoming inoperative when they “approach
constitutional limits,” we would be able to spare ourselves
the necessity of ever finding a statute unconstitutional as
applied. And the doctrine that statutes should be construed
to contain substantive dispositions that do not raise constitu-
tional difficulty would be a thing of the past; no need for such
caution, since—whatever the substantive dispositions are—
they become inoperative when constitutional limits are “ap-
critical distinction between the question before the Court in Jinks and the
one before us today. In Jinks, the county could not claim the aid of
Raygor itself because Raygor held only that § 1367(d) did not include suits
against nonconsenting States; instead, the county argued by analogy to
Raygor that, absent a clear statement of congressional intent, § 1367(d)
should be construed not to include suits against political subdivisions of
States. And thus the Court in Jinks considered not whether Raygor’s
interpretation of § 1367(d) was directly controlling but whether the consti-
tutional concerns that justified the requirement of a clear statement in
Raygor applied as well in the case of counties. In the present cases, by
contrast, the aliens ask simply that the interpretation of § 1231(a)(6) an-
nounced in Zadvydas be applied to them. This question does not compel
us to compare analogous constitutional doubts; it simply requires that we
determine whether the statute construed by Zadvydas permits any dis-
tinction to be drawn between aliens who have been admitted and aliens
who have not.

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385 Cite as: 543 U. S. 371 (2005)
Opinion of the Court
proached.” That is not the legal world we live in. The
canon of constitutional avoidance comes into play only when,
after the application of ordinary textual analysis, the statute
is found to be susceptible of more than one construction; and
the canon functions as a means of choosing between them.
See, e. g., Almendarez-Torres v. United States, 523 U. S. 224,
237–238 (1998); United States ex rel. Attorney General v.
Delaware & Hudson Co., 213 U. S. 366, 408 (1909). In
Zadvydas, it was the statute’s text read in light of its pur-
pose, not some implicit statutory command to avoid ap-
proaching constitutional limits, which produced the rule that
the Secretary may detain aliens only for the period reason-
ably necessary to bring about their removal. See 533 U. S.,
at 697–699.
In passing in its briefs, but more intensively at oral ar-
gument, the Government sought to justify its continued de-
tention of these aliens on the authority of § 1182(d)(5)(A).7
Even assuming that an alien who is subject to a final order
of removal is an “alien applying for admission” and therefore
eligible for parole under this provision, we find nothing in
this text that affirmatively authorizes detention, much less
indefinite detention. To the contrary, it provides that, when
parole is revoked, “the alien shall . . . be returned to the
custody from which he was paroled and thereafter his case
shall continue to be dealt with in the same manner as that
of any other applicant for admission.” Ibid. (emphasis
7 Section 1182(d)(5)(A) reads as follows:
“The [Secretary] may . . . in his discretion parole into the United States
temporarily under such conditions as he may prescribe only on a case-by-
case basis for urgent humanitarian reasons or significant public benefit
any alien applying for admission to the United States, but such parole of
such alien shall not be regarded as an admission of the alien and when the
purposes of such parole shall, in the opinion of the [Secretary], have been
served the alien shall forthwith return or be returned to the custody from
which he was paroled and thereafter his case shall continue to be dealt
with in the same manner as that of any other applicant for admission to
the United States.”

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386 CLARK v. MARTINEZ
Opinion of the Court
added). The manner in which the case of any other appli-
cant would be “dealt with” beyond the 90-day removal pe-
riod is prescribed by § 1231(a)(6), which we interpreted in
Zadvydas and have interpreted above.
* * *
The Government fears that the security of our borders will
be compromised if it must release into the country inadmissi-
ble aliens who cannot be removed. If that is so, Congress
can attend to it.8 But for this Court to sanction indefinite
detention in the face of Zadvydas would establish within our
jurisprudence, beyond the power of Congress to remedy, the
dangerous principle that judges can give the same statutory
text different meanings in different cases.
Since the Government has suggested no reason why the
period of time reasonably necessary to effect removal is
longer for an inadmissible alien, the 6-month presumptive
detention period we prescribed in Zadvydas applies. See
533 U. S., at 699–701. Both Martinez and Benitez were de-
tained well beyond six months after their removal orders
became final. The Government having brought forward
nothing to indicate that a substantial likelihood of removal
subsists despite the passage of six months (indeed, it con-
cedes that it is no longer even involved in repatriation nego-
tiations with Cuba); and the District Court in each case hav-
ing determined that removal to Cuba is not reasonably
foreseeable; the petitions for habeas corpus should have been
8 That Congress has the capacity to do so is demonstrated by its reaction
to our decision in Zadvydas. Less than four months after the release of
our opinion, Congress enacted a statute which expressly authorized con-
tinued detention, for a period of six months beyond the removal period
(and renewable indefinitely), of any alien (1) whose removal is not reason-
ably foreseeable and (2) who presents a national security threat or has
been involved in terrorist activities. Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Ter-
rorism Act of 2001 (USA PATRIOT ACT), § 412(a), 115 Stat. 350 (enacted
Oct. 26, 2001) (codified at 8 U. S. C. § 1226a(a)(6) (2000 ed., Supp. II)).

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387 Cite as: 543 U. S. 371 (2005)
O’Connor, J., concurring
granted. Accordingly, we affirm the judgment of the Ninth
Circuit, reverse the judgment of the Eleventh Circuit, and
remand both cases for proceedings consistent with this
opinion.
It is so ordered.
Justice O’Connor, concurring.
I join the Court’s opinion. I write separately to empha-
size that, even under the current statutory scheme, it is pos-
sible for the Government to detain inadmissible aliens for
more than six months after they have been ordered removed.
For one thing, the 6-month presumption we described in
Zadvydas v. Davis, 533 U. S. 678 (2001), is just that—a pre-
sumption. The Court notes that the Government has not
suggested here any reason why it takes longer to effect re-
moval of inadmissible aliens than it does to effect removal of
other aliens. It is conceivable, however, that a longer period
is “reasonably necessary,” id., at 689, to effect removal of
inadmissible aliens as a class. If the Government shows
that to be true, then detention beyond six months will
be lawful within the meaning we ascribed to 8 U. S. C.
§ 1231(a)(6) in Zadvydas.
Moreover, the Government has other statutory means for
detaining aliens whose removal is not foreseeable and whose
presence poses security risks. Upon certifying that he has
“reasonable grounds to believe” an alien has engaged in cer-
tain terrorist or other dangerous activity specified by stat-
ute, 8 U. S. C. § 1226a(a)(3) (2000 ed., Supp. II), the Secretary
of Homeland Security may detain that alien for successive
6-month periods “if the release of the alien will threaten the
national security of the United States or the safety of the
community or any person,” § 1226a(a)(6).
Finally, any alien released as a result of today’s holding
remains subject to the conditions of supervised release. See
§ 1231(a)(3); 8 CFR § 241.5 (2004). And, if he fails to comply
with the conditions of release, he will be subject to crim-

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388 CLARK v. MARTINEZ
Thomas, J., dissenting
inal penalties—including further detention. See 8 U. S. C.
§ 1253(b); Zadvydas, supra, at 695 (“[W]e nowhere deny the
right of Congress . . . to subject [aliens] to supervision with
conditions when released from detention, or to incarcerate
them where appropriate for violations of those conditions”).
Justice Thomas, with whom The Chief Justice joins as
to Part I–A, dissenting.
Title 8 U. S. C. § 1231(a)(6) states that aliens whom the
Secretary of Homeland Security has ordered removed “may
be detained beyond the removal period.” Nevertheless, in
Zadvydas v. Davis, 533 U. S. 678 (2001), this Court construed
this provision “to contain an implicit ‘reasonable time’ limita-
tion” on the Secretary’s power to detain admitted aliens
“[b]ased on our conclusion that indefinite detention of ” those
aliens “would raise serious constitutional concerns.” Id., at
682. “Aliens who have not yet gained initial admission to
this country,” the Court assured us, “would present a very
different question.” Ibid.
Today, the Court holds that this constitutional distinc-
tion—which “made all the difference” to the Zadvydas
Court, id., at 693—is actually irrelevant, because “[t]he oper-
ative language of § 1231(a)(6) . . . applies without differentia-
tion to all three categories of aliens that are its subject.”
Ante, at 378. While I wholeheartedly agree with the
Court’s fidelity to the text of § 1231(a)(6), the Court’s analysis
cannot be squared with Zadvydas. And even if it could be
so squared, Zadvydas was wrongly decided and should be
overruled. I respectfully dissent.
I
I begin by addressing the majority’s interpretation of
Zadvydas. The Court’s interpretation is not a fair reading
of that case. It is also not required by any sound principle
of statutory construction of which I am aware. To the con-

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389 Cite as: 543 U. S. 371 (2005)
Thomas, J., dissenting
trary, what drives the majority’s reading is a novel “lowest
common denominator” principle. Ante, at 380.
A
The majority’s reading of Zadvydas is implausible.
Zadvydas held that interpreting § 1231(a)(6) to authorize in-
definite detention of admitted aliens later found removable
would raise serious due process concerns. 533 U. S., at 690–
696. The Court therefore read the statute to permit the
Attorney General (now the Secretary of Homeland Security)
to detain admitted aliens only as long as reasonably neces-
sary to remove them from the country. Id., at 699.
The majority concedes that Zadvydas explicitly reserved
the question whether its statutory holding as to admitted
aliens applied equally to inadmissible aliens. Ante, at 379.
This reservation was front and center in Zadvydas. It ap-
peared in the introduction and is worth repeating in full:
“In these cases, we must decide whether [§ 1231(a)(6)]
authorizes the Attorney General to detain a removable
alien indefinitely beyond the removal period or only for
a period reasonably necessary to secure the alien’s re-
moval. We deal here with aliens who were admitted to
the United States but subsequently ordered removed.
Aliens who have not yet gained initial admission to
this country would present a very different question.
Based on our conclusion that indefinite detention of
aliens in the former category would raise serious consti-
tutional concerns, we construe the statute to contain an
implicit ‘reasonable time’ limitation, the application of
which is subject to federal-court review.” 533 U. S., at
682 (citation omitted; emphasis in original).
The Court reserved this question because the constitutional
questions raised by detaining inadmissible aliens are differ-
ent from those raised by detaining admitted aliens. It
stated that the detention period in § 1231(a)(6) was limited

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390 CLARK v. MARTINEZ
Thomas, J., dissenting
because it “read [the statute] in light of the Constitution’s
demands.” Id., at 689. And it repeatedly emphasized con-
stitutional distinctions among various groups of aliens, for
which § 1231(a)(6) makes no distinctions. See id., at 693–694
(noting the different constitutional considerations applicable
to inadmissible and admissible aliens); id., at 695 (noting that
“the cases before us [do not] require us to consider the politi-
cal branches’ authority to control entry into the United
States”); id., at 696 (noting that the opinion did not “consider
terrorism or other special circumstances where special argu-
ments might be made for forms of preventive detention and
for heightened deference to the judgments of the political
branches with respect to matters of national security”).
The majority’s reading of Zadvydas is inconsistent with
these qualifications. If it were true that Zadvydas’ inter-
pretation of § 1231(a)(6) applied to all aliens regardless of the
constitutional concerns involved in each case, then the ques-
tion of how § 1231(a)(6) applies to them would not be “very
different” depending on the alien before the Court. The
question would be trivial because the text of § 1231(a)(6)
plainly does not distinguish between admitted and nonad-
mitted aliens. There would also have been no need for the
Court to go out of its way to leave aside “terrorism or
other special circumstances,” ibid., or to disavow “consider-
[ation of] the political branches’ authority to control entry
into the United States,” id., at 695, for the construction the
majority extracts from Zadvydas would have applied across
the board, ibid. And the Court’s rationalization that its con-
struction would therefore “leave no unprotected spot in the
Nation’s armor,” id., at 695–696 (internal quotation marks
omitted), would have been incorrect. The constitutional dis-
tinctions that pervade Zadvydas are evidence that the “very
different” statutory question it reserved turned on them.
The Zadvydas Court thus tethered its reading of
§ 1231(a)(6) to the specific class of aliens before it. The term
this Court read into the statute was not simply a presump-

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Thomas, J., dissenting
tive 6-month period, but a presumptive 6-month period for
admitted aliens. Its reading of the statute “in light of the
Constitution’s demands,” id., at 689, that is, depended on the
constitutional considerations at work in “the cases before
[it],” id., at 695 (emphasis added). One would expect the
Court today, then, to follow the same two-step procedure it
employed in Zadvydas. It should first ask whether the stat-
ute is ambiguous and, if so, whether one of the possible inter-
pretations raises constitutional doubts as applied to respond-
ent Martinez and petitioner Benitez. Step one is dictated
by Zadvydas: Section 1231(a)(6) is not clear on whether it
permits indefinite detention. The Court should then move
to the second step and ask whether either of the statute’s
possible interpretations raises constitutional doubts as ap-
plied to Benitez and Martinez. If so, the Court would apply
avoidance to adopt the interpretation free from constitu-
tional doubt (as Zadvydas itself did).
The Court’s reasons for departing from this reading of
Zadvydas are unpersuasive. The Court says that its read-
ing is necessary to avoid “invent[ing] a statute rather than
interpret[ing] one,” ante, at 378; to preclude “giving the
same detention provision a different meaning” depending on
the aliens before the Court, ante, at 380 (emphasis in orig-
inal); and to forestall establishing “the dangerous princi-
ple that judges can give the same statutory text different
meanings in different cases,” ante, at 386. I agree that we
should adopt none of these principles, but this is no warrant
for the reading of Zadvydas that the majority advocates.
Zadvydas established a single and unchanging, if implausi-
ble, meaning of § 1231(a)(6): that the detention period author-
ized by § 1231(a)(6) depends not only on the circumstances
surrounding a removal, but also on the type of alien or-
dered removed.
I grant that this understanding of Zadvydas could result
in different detention periods for different classes of aliens—
indefinite detention for some, limited detention for others.

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392 CLARK v. MARTINEZ
Thomas, J., dissenting
But it does not follow that this reads the meaning of the
statute to “change” depending on the alien involved, any
more than the meaning of the statute could be said to
“change” simply because the time that is “reasonably neces-
sary to effect removal” may differ depending on the type of
alien involved, as both the Court’s opinion, ante, at 386, and
Justice O’Connor’s concurring opinion, ante, at 387, con-
cede it may. A statute’s sense is the same even if what it
requires depends on factual context.
In support of its reading of Zadvydas, the Court relies on
a statement in a dissent in Zadvydas that § 1231(a)(6) could
not be given a different reading for inadmissible aliens.
Ante, at 379–380 (citing 533 U. S., at 710–711, 717 (opinion of
Kennedy, J.)). That dissenting view, as the very quotation
the majority stresses demonstrates, rested on the dissent’s
premise that “it is not a plausible construction of § 1231(a)(6)
to imply a time limit as to one class but not to another.”
Id., at 710. But the Zadvydas majority disagreed with
that assumption and adopted a contrary interpretation of
§ 1231(a)(6). For as the dissent recognized, Zadvydas’ “logic
might be that inadmissible and removable aliens can be
treated differently.” Ibid. That was Zadvydas’ logic pre-
cisely, as its repeated statements limiting its decision to inad-
missible aliens show. To interpret Zadvydas properly, we
must take its logic as given, not the logic of the reductio ad
absurdum of Zadvydas that I joined in dissent.
B
The majority strains to recharacterize Zadvydas because
it thinks that “[i]t is not at all unusual to give a statute’s
ambiguous language a limiting construction called for by one
of the statute’s applications, even though other of the stat-
ute’s applications, standing alone, would not support the
same limitation.” Ante, at 380. In other words, it claims,
“[t]he lowest common denominator, as it were, must govern.”
Ibid. I disagree.

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393 Cite as: 543 U. S. 371 (2005)
Thomas, J., dissenting
As an initial matter, this principle is inconsistent with
Zadvydas itself. As explained above, the limiting construc-
tion Zadvydas adopted as to admitted aliens does not neces-
sarily govern the other applications of § 1231(a)(6). If the
majority is correct that the “lowest common denominator”
governs, then the careful distinction Zadvydas drew be-
tween admitted aliens and nonadmitted aliens was irrele-
vant at best and misleading at worst. Under this reading,
Zadvydas would have come out the same way even if it had
involved inadmissible aliens, for the “lowest common denomi-
nator” of the statute remains the same regardless of the
identity of the alien before the Court. Again, this under-
standing of Zadvydas is implausible.
Beyond Zadvydas, the Court offers scant support for the
idea that statutes should be stripped down to their “lowest
common denominator[s].” It attempts to distinguish Jinks
v. Richland County, 538 U. S. 456 (2003), and Raygor v. Re-
gents of Univ. of Minn., 534 U. S. 533 (2002), ante, at 383,
and n. 6, yet these cases employed exactly the procedure that
the majority today says is impermissible. They construed
28 U. S. C. § 1367(d), 1 a tolling provision, to apply to States
and political subdivisions of States only to the extent that
doing so would raise a constitutional doubt as applied to
either entity. Jinks was explicit on this point:
“Although we held in [Raygor] that § 1367(d) does not
apply to claims filed in federal court against States but
subsequently dismissed on sovereign immunity grounds,
we did so to avoid interpreting the statute in a manner
that would raise ‘serious constitutional doubt’ in light of
our decisions protecting a State’s sovereign immunity
1 Section 1367(d) provides that “[t]he period of limitations for any claim
asserted under [§ 1367(a)], and for any other claim in the same action that
is voluntarily dismissed at the same time as or after the dismissal of the
claim under [§ 1367(a)], shall be tolled while the claim is pending and for a
period of 30 days after it is dismissed unless State law provides for a
longer tolling period.”

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394 CLARK v. MARTINEZ
Thomas, J., dissenting
from congressional abrogation . . . . [N]o such constitu-
tional doubt arises from holding that petitioner’s claim
against respondent—which is not a State, but a political
subdivision of a State—falls under the definition of ‘any
claim asserted under subsection (a) [of § 1367].’ ” 538
U. S., at 466 (emphasis in original).
This passage reads the meaning of § 1367(d)—which applies
to “any claim asserted under subsection (a)” of § 1367—to
hinge on the constitutional context. The Court is correct
that Jinks and Raygor “hold that the single and unchanging
disposition of § 1367(d) . . . does not apply to claims against
States.” Ante, at 383. But as the Court concedes, Jinks
reached that holding only after analyzing whether the consti-
tutional doubts at issue in Raygor applied to the county de-
fendant. Ante, at 383–384, n. 6. The Court’s failure to do
the same here cannot be reconciled with Jinks and Raygor:
the Court should ask whether the constitutional concerns
that justified the requirement of a clear statement in
Zadvydas apply as well to inadmissible aliens.
The Court’s “lowest common denominator” principle is
also in tension with Salinas v. United States, 522 U. S. 52
(1997). There, we rejected an argument that the federal
bribery statute, 18 U. S. C. § 666(a)(1)(B), should be con-
strued to avoid constitutional doubts, in part on the ground
that there was “no serious doubt about the constitutionality
of § 666(a)(1)(B) as applied to the facts of this case.” 522
U. S., at 60 (emphasis added). Unlike the Court’s approach
to avoidance today, we disclaimed examination of the consti-
tutionality of applications not before the Court: “Whatever
might be said about § 666(a)(1)(B)’s application in other cases,
the application of § 666(a)(1)(B) . . . did not extend federal
power beyond its proper bounds.” Id., at 61. The Court is
mistaken that this passage in Salinas was a rejection of a
constitutional argument on its merits. Ante, at 381, n. 5.
Salinas, the petitioner, phrased his question presented
solely in terms of the proper statutory interpretation of

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395 Cite as: 543 U. S. 371 (2005)
Thomas, J., dissenting
§ 666(a)(1)(B), Brief for Petitioner, O. T. 1996, No. 96–738, p. i,
and never claimed that the statute was unconstitutional, see
generally ibid.
C
More importantly, however, the Court’s “lowest common
denominator” principle is inconsistent with the history of the
canon of avoidance and is likely to have mischievous conse-
quences. The modern canon of avoidance is a doctrine
under which courts construe ambiguous statutes to avoid
constitutional doubts, but this doctrine has its origins in a
very different form of the canon. Traditionally, the avoid-
ance canon was not a doctrine under which courts read stat-
utes to avoid mere constitutional doubts. Instead, it com-
manded courts, when faced with two plausible constructions
of a statute—one constitutional and the other unconstitu-
tional—to choose the constitutional reading.2 The tradi-
tional version of the canon thus requires courts to reach the
issue whether the doubtful version of the statute is constitu-
tional before adopting the construction that saves the statute
from constitutional invalidity. A court faced with an ambig-
uous statute applies traditional avoidance by asking whether,
given two plausible interpretations of that statute, one
would be unconstitutional as applied to the plaintiff; and, if
that interpretation is actually unconstitutional as applied to
the plaintiff, the court picks the other (constitutional) read-
2 See Rust v. Sullivan, 500 U. S. 173, 190–191 (1991) (distinguishing the
classic and modern versions of the canon and citing cases); Hooper v. Cali-
fornia, 155 U. S. 648, 657 (1895) (“The elementary rule is that every rea-
sonable construction must be resorted to, in order to save a statute from
unconstitutionality”); Mossman v. Higginson, 4 Dall. 12, 14 (1800) (reason-
ing that the statute under review “can, and must receive a construction,
consistent with the constitution”); Ex parte Randolph, 20 F. Cas. 242, 254
(No. 11,558) (CC Va. 1833) (Marshall, J.); Vermeule, Saving Constructions,
85 Geo. L. J. 1945, 1949 (1997); H. Black, Handbook on the Construction
and Interpretation of the Laws 113–114 (2d ed. 1911). The modern ver-
sion seems to have originated in United States ex rel. Attorney General
v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909).

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396 CLARK v. MARTINEZ
Thomas, J., dissenting
ing. The court does not inquire whether either of the inter-
pretations would be unconstitutional if applied to third par-
ties not before the court, unless the challenge is facial or
otherwise implicates third-party rights.
This history suggests that the “lowest common denomina-
tor” principle is mistaken. Courts applying the modern ver-
sion of the canon of avoidance should no more look to the
rights of third parties than do courts using the traditional
version. Under modern avoidance, in other words, an am-
biguous statute should be read to avoid a constitutional
doubt only if the statute is constitutionally doubtful as ap-
plied to the litigant before the court (again, unless the con-
stitutional challenge involves third-party rights). Yet the
Court’s lowest common denominator principle allows a limit-
ing construction of an ambiguous statute prompted by con-
stitutional doubts to infect other applications of the statute—
even if the statute raises no constitutional doubt as applied
to the specific litigant in a given case and even if the constitu-
tionally unproblematic application of the statute to the liti-
gant is severable from the constitutionally dubious appli-
cations. The lowest common denominator principle thus
allows an end run around black-letter constitutional doctrine
governing facial and as-applied constitutional challenges to
statutes: A litigant ordinarily cannot attack statutes as con-
stitutionally invalid based on constitutional doubts concern-
ing other litigants or factual circumstances.
The Court misses the point by answering that the canon
of constitutional avoidance “is not a method of adjudicat-
ing constitutional questions by other means,” and that the
canon rests on a presumption that “Congress did not intend
the alternative which raises serious constitutional doubts.”
Ante, at 381. That is true, but in deciding whether a plausi-
ble interpretation “raises serious constitutional doubts,” a
court must employ the usual rules of constitutional adju-

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Thomas, J., dissenting
dication. See ante, at 380–381 (noting that whether an in-
terpretation is constitutionally doubtful turns on whether it
raises “a multitude of constitutional problems”); Zadvydas,
533 U. S., at 690–696 (extensively employing constitutional
analysis). Those rules include doctrines governing third-
party constitutional challenges and the like. Moreover, the
reason that courts perform avoidance at all, in any form, is
that we assume “Congress intends statutes to have effect to
the full extent the Constitution allows.” United States v.
Booker, ante, at 320 (Thomas, J., dissenting in part). Only
my approach would extend § 1231(a)(6) to its full constitu-
tional bound consistent with modern avoidance, by narrow-
ing the statute on a case-by-case basis only if constitutional
concerns are actually present. By contrast, under the ma-
jority’s lowest common denominator principle, a statute like
§ 1231(a)(6) must be narrowed once and for all based on con-
stitutional concerns that may never materialize. In short,
once narrowed in Zadvydas, § 1231(a)(6) now limits the Exec-
utive’s power to detain unadmitted aliens—even though in-
definite detention of unadmitted aliens may be perfectly
constitutional.
All of this shows why the sole support the majority offers
for its lowest common denominator principle can be squared
with my analysis. That support is a plurality opinion of this
Court (reaffirmed by footnote dictum in Leocal v. Ashcroft,
ante, at 11–12, n. 8), that stated that the rule of lenity applies
to statutes so long as they have some criminal applications.
Ante, at 380 (citing United States v. Thompson/Center Arms
Co., 504 U. S. 505, 517 (1992)). To the extent that the rule
of lenity is a constitutionally based clear statement rule, it is
like vagueness doctrine, as its purpose is to ensure that those
subjected to criminal prosecution have adequate notice of the
conduct that the law prohibits. Cf., e. g., McBoyle v. United
States, 283 U. S. 25, 27 (1931). Thompson/Center Arms
is thus distinguishable, because our rules governing third-

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398 CLARK v. MARTINEZ
Thomas, J., dissenting
party challenges (rightly or wrongly) are more lenient in
vagueness cases.3 Zadvydas, by contrast, was a straightfor-
ward as-applied constitutional challenge. It concerned a
constitutional doubt that arose from § 1231(a)(6)’s application
to the respondents there, not its hypothetical application to
other aliens, as its careful distinction between admitted and
inadmissible aliens shows. To the extent that the rule of
lenity is a nonconstitutionally based presumption about the
interpretation of criminal statutes, the Thompson/Center
Arms interpretive principle is fundamentally different from
the canon of constitutional avoidance, because the rule of len-
ity is wholly independent of the rules governing constitu-
tional adjudication. Either way, this case does not support
the majority’s restatement of modern avoidance principles.
The cases at bar illustrate well the exception to the normal
operation of as-applied constitutional adjudication that the
Court’s approach creates. Congress explicitly provided that
unconstitutional applications of § 1231(a)(6) should be sev-
ered from constitutional applications.4 Congress has thus
indicated that courts should examine whether § 1231(a)(6)
raises a constitutional doubt application by application.
After all, under the severability clause, if Zadvydas had held
unconstitutional the indefinite detention of respondents
Zadvydas and Ma, the constitutionality of the Secretary’s in-
definite detention of Benitez and Martinez would remain an
open question. Although Zadvydas did not formally hold
§ 1231(a)(6) to be unconstitutional as applied to the aliens be-
fore it, the same procedure should be followed when analyz-
3 See, e. g., Chicago v. Morales, 527 U. S. 41, 55, and n. 22 (1999) (plurality
opinion); Kolender v. Lawson, 461 U. S. 352, 358–359, n. 8 (1983); Papa-
christou v. Jacksonville, 405 U. S. 156 (1972).
4 “If any provision of this division . . . or the application of such provision
to any person or circumstances is held to be unconstitutional, the remain-
der of this division and the application of the provisions of this division to
any person or circumstance shall not be affected thereby.” Note follow-
ing 8 U. S. C. § 1101, p. 840 (separability).

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399 Cite as: 543 U. S. 371 (2005)
Thomas, J., dissenting
ing whether § 1231(a)(6) raises a constitutional doubt.5 The
Court today limits applications of § 1231(a)(6) that may well
be constitutional solely on the basis of constitutional doubts
as to other applications, and despite that the severability
clause contemplates application-by-application examination
of the statute’s constitutionality.
The Court misapprehends my interpretive approach. It
suggests that I would “spare [us] the necessity of ever find-
ing a statute unconstitutional as applied,” ante, at 384, and
“would render every statute a chameleon, its meaning sub-
ject to change depending on the presence or absence of con-
stitutional concerns in each individual case,” ante, at 382.
My approach does none of this. I simply would read ambig-
uous statutes to avoid as-applied constitutional doubts only if
those doubts are present in the case before the Court. This
leaves plenty of room for as-applied invalidation of statutes
that are unambiguously unconstitutional. Nor would I per-
mit a court to read every statute’s meaning to depend on
constitutional concerns. That is permissible, in my view,
only if the statute is ambiguous. Granted, I am thereby
guilty of leaving courts free to interpret ambiguous statutes
“as becoming inoperative when they ‘approach constitutional
limits.’ ” Ante, at 384. That is hardly an absurd result—
unless one considers the modern canon of constitutional
5 Crowell v. Benson, 285 U. S. 22 (1932), bolsters my approach. Employ-
ing the canon of avoidance, the Court construed a statute in that case to
allow judicial review of jurisdictional facts but not legislative facts. It
did so even though the terms of the statute itself did not distinguish be-
tween the two sorts of facts. Id., at 62–63. The presence of a severabil-
ity provision in the statute gave “assurance that there [was] no violation
of the purpose of the Congress in sustaining the determinations of fact of
the deputy commissioner where he acts within his authority in passing
upon compensation claims while denying finality to his conclusions as to
the jurisdictional facts upon which the valid application of the statute de-
pends.” Ibid. So too here, the presence of a severability provision
should reassure the Court that applying Zadvydas’ limiting construction
of § 1231(a)(6) to some aliens and not others is consistent with the statute.

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400 CLARK v. MARTINEZ
Thomas, J., dissenting
avoidance itself to be absurd. Every application of that
canon, by rejecting a plausible interpretation of a statute,
reads the statute to be inoperative to the extent it raises a
constitutional doubt or “limit.”
In truth, the Court’s aggressive application of modern con-
stitutional avoidance doctrine poses the greater danger. A
disturbing number of this Court’s cases have applied the
canon of constitutional doubt to statutes that were on their
face clear. See, e. g., INS v. St. Cyr, 533 U. S. 289, 327–336
(2001) (Scalia, J., dissenting); Public Citizen v. Department
of Justice, 491 U. S. 440, 481–482 (1989) (Kennedy, J., con-
curring in judgment); Lowe v. SEC, 472 U. S. 181, 212–213
(1985) (White, J., concurring in result). This Court and oth-
ers may now employ the “lowest common denominator” ap-
proach to limit the application of statutes wholesale by
searching for hypothetical unconstitutional applications of
them—or, worse yet, hypothetical constitutional doubts—de-
spite the absence of any facial constitutional problem (at
least, so long as those hypothetical doubts pose “a multitude
of constitutional problems,” ante, at 380–381). This is so
even if Congress has expressed its clear intent that unconsti-
tutional applications should be severed from constitutional
applications, regardless of whether the challenger has third-
party standing to raise the constitutional issue, and without
the need to engage in full-fledged constitutional analysis.
This danger is real. In St. Cyr, this Court held that the
Immigration and Nationality Act (INA) did not divest dis-
trict courts of jurisdiction under 28 U. S. C. § 2241 over ha-
beas actions filed by criminal aliens to challenge removal or-
ders, 533 U. S., at 314. The Court did so because it thought
that otherwise the statute would preclude any avenue of ju-
dicial review of removal orders of criminal aliens, thus rais-
ing a serious Suspension Clause question. Id., at 305. This
was a construction of (among other provisions) 8 U. S. C.
§§ 1252(a)(1) and 1252(b)(9), and 28 U. S. C. § 2241, none
of which distinguishes between criminal and noncriminal

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401 Cite as: 543 U. S. 371 (2005)
Thomas, J., dissenting
aliens. 533 U. S., at 308–314. The INA, however, clearly
allows noncriminal aliens, unlike criminal aliens, a right to
judicial review of removal decisions in the courts of appeals
under the review provisions of § 1252(a)(1), and St. Cyr in-
volved only criminal aliens. After St. Cyr, therefore, one
would have thought that “noncriminal aliens seeking to chal-
lenge their removal orders . . . [would] still presumably be
required to proceed directly to the court of appeals by way
of petition for review, under the restrictive modified Hobbs
Act review provisions set forth in § 1252(a)(1),” rather than
sue directly under the habeas statute. Id., at 335 (Scalia,
J., joined by Rehnquist, C. J., and O’Connor and Thomas,
JJ., dissenting). Yet lower courts, relying on a version of
the Court’s “lowest common denominator” principle, have
held just the opposite: They have entertained noncriminal
aliens’ habeas actions challenging removal orders. Chma-
kov v. Blackman, 266 F. 3d 210, 214–215 (CA3 2001); see also
Riley v. INS, 310 F. 3d 1253, 1256 (CA10 2002); Liu v. INS,
293 F. 3d 36, 38–41 (CA2 2002). The logic in allowing non-
criminal aliens, who have a right to judicial review of re-
moval decisions, to take advantage of constitutional doubt
that arises from precluding any avenue of judicial review for
criminal aliens, see St. Cyr, supra, at 305, escapes me.
II
The Court is also mistaken in affording Zadvydas stare
decisis effect. Zadvydas was wrong in both its statutory
and its constitutional analysis for the reasons expressed well
by the dissents in that case. See 533 U. S., at 705–718 (opin-
ion of Kennedy, J.); id., at 702–705 (opinion of Scalia, J.).
I continue to adhere to those views and will not repeat the
analysis of my colleagues. I write only to explain why I do
not consider Zadvydas to bind us.
Zadvydas cast itself as a statutory case, but that fact
should not prevent us from overruling it. It is true that we
give stronger stare decisis effect to our holdings in statutory

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402 CLARK v. MARTINEZ
Thomas, J., dissenting
cases than in constitutional cases. See, e. g., Hilton v. South
Carolina Public Railways Comm’n, 502 U. S. 197, 205
(1991). This rule, however, is not absolute, and we should
not hesitate to allow our precedent to yield to the true mean-
ing of an Act of Congress when our statutory precedent is
“unworkable” or “badly reasoned.” Holder v. Hall, 512
U. S. 874, 936 (1994) (Thomas, J., concurring in judgment)
(quoting Payne v. Tennessee, 501 U. S. 808, 827 (1991); inter-
nal quotation marks omitted). “[W]e have never applied
stare decisis mechanically to prohibit overruling our earlier
decisions determining the meaning of statutes.” Monell v.
New York City Dept. of Social Servs., 436 U. S. 658, 695
(1978). The mere fact that Congress can overturn our cases
by statute is no excuse for failing to overrule a statutory
precedent of ours that is clearly wrong, for the realities of
the legislative process often preclude readopting the original
meaning of a statute that we have upset.
Zadvydas’ reading of § 1231(a)(6) is untenable. Section
1231(a)(6) provides that aliens whom the Secretary of Home-
land Security has ordered removed “may be detained beyond
the removal period.” There is no qualification to this au-
thorization, and no reference to a “reasonable time” limita-
tion. Just as we exhaust the aid of the “traditional tools
of statutory construction,” Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9
(1984), before deferring to an agency’s interpretation of a
statute, so too should we exhaust those tools before deciding
that a statute is ambiguous and that an alternative plausible
construction of the statute should be adopted.
Application of those traditional tools begins and ends with
the text of § 1231(a)(6). Zadvydas’ observation that “if Con-
gress had meant to authorize long-term detention of unre-
movable aliens, it certainly could have spoken in clearer
terms,” 533 U. S., at 697, proves nothing. Congress could
have spoken more clearly in any statutory case in which the
statute does not mention the particular factual scenario be-

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Thomas, J., dissenting
fore the Court. Congress provided for a “reasonable time”
limit to detentions pending removal in other portions of
§ 1231. Id., at 708 (Kennedy, J., dissenting). Its failure to
do the same in § 1231(a)(6) confirms what is unmistakable
from its terms: that there is no time limit on the Secretary’s
power to detain aliens. There is no textually evident al-
ternative construction that would avoid the constitutional
doubts identified by the majority.
Even apart from the Court’s incredible reading of
§ 1231(a)(6), the normal reason for affording our statutory
holdings strong stare decisis effect—that Congress is free to
overrule them if it disagrees—does not apply to Zadvydas.
Zadvydas is a statutory case in name only. Although the
Zadvydas majority purported to find indefinite detention
only constitutionally doubtful, its lengthy analysis strongly
signaled to Congress that indefinite detention of admitted
aliens would be unconstitutional. Indeed, far from avoiding
that constitutional question in Zadvydas, the Court took it
head on, giving it extended treatment. Id., at 690–697; but
see ante, at 381 (noting the “fundamenta[l]” tenet that “[t]he
canon [of constitutional avoidance] is not a method of adjudi-
cating constitutional questions by other means”). Zadvydas
makes clear that the Court thought indefinite detention to
be more than constitutionally suspect, and there is evidence
that some Members of Congress understood as much.6 This
is why the Court’s assurance that if “the security of our bor-
6 See H. R. Conf. Rep. No. 108–10, p. 600 (2003) (“A recent Supreme
Court decision held that criminal aliens cannot be detained indefinitely,”
no doubt referring to Zadvydas); H. R. Rep. No. 108–724, pt. 5, p. 191
(2004) (“The danger posed by the requirement that these aliens be allowed
to remain in the U. S. was increased exponentially by the 2001 Supreme
Court decision of Zadvydas v. Davis, in which the Court made clear that
it would strike down as unconstitutional the indefinite detention by [the
Secretary] of aliens with removal orders whose countries will not take
them back, except in the most narrow of circumstances” (footnote omit-
ted)); 147 Cong. Rec. 20729 (2001) (“Indefinite detention of aliens is permit-
ted only in extraordinary circumstances,” citing Zadvydas).

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404 CLARK v. MARTINEZ
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ders will be compromised if [the United States] must release
into the country inadmissible aliens who cannot be re-
moved[,] Congress can attend to it,” ante, at 386, rings hol-
low. Short of constitutional amendment, it is only within
the power of this Court to correct Zadvydas’ error.
The Court points to 8 U. S. C. § 1226a(a)(6) (2000 ed., Supp.
II), a statute that Congress passed shortly after Zadvydas,
as evidence that Congress can correct Zadvydas’ mistake.
Ante, at 386, n. 8. This statute only confirms my con-
cern that Zadvydas is legislatively uncorrectable. Section
1226a(a)(6) authorizes detention for a period of six months
beyond the removal period of aliens who present a national
security threat, but only to the extent that those aliens’ re-
moval is not reasonably foreseeable. Ante, at 386, n. 8. Yet
Zadvydas conceded that indefinite detention might not vio-
late due process in “certain special and narrow nonpunitive
circumstances . . . where a special justification, such as
harm-threatening mental illness, outweighs the individual’s
constitutionally protected interest in avoiding physical re-
straint.” 533 U. S., at 690 (internal quotation marks omit-
ted). Moreover, Zadvydas set a 6-month presumptive outer
limit on the detention power. Id., at 701. Congress crafted
§ 1226a(a)(6) to operate within the boundaries Zadvydas set.
This provision says nothing about whether Congress may
authorize detention of aliens for greater lengths of time or
for reasons the Court found constitutionally problematic in
Zadvydas.
* * *
For the foregoing reasons, I would affirm the judgment of
the Eleventh Circuit and reverse the judgment of the Ninth
Circuit. I therefore respectfully dissent.