In this case, we are called upon to determine whether the federal courts have inherent authority to grant bail to habeas petitioners who are being detained by the Immigration and Naturalization Service. The INS argues that the "plenary power" enjoyed by Congress and the executive branch over immigration requires the utmost deference to the Attorney General's decisions with respect to detention of aliens. Consequently, while the federal courts have inherent power to release on bail a habeas petitioner who challenges his detention after a criminal conviction, in the government's view, judicial power to do the same with respect to habeas petitioners challenging detention by the INS is sharply constrained.

We hold that the federal courts have the same inherent authority to admit habeas petitioners to bail in the immigration context as they do in criminal habeas cases. We note that this authority may well be subject to appropriate limits imposed by Congress. But, because we find that Congress has not, to date, curtailed this feature of federal judicial power, we affirm the judgment of the district court that it was empowered to consider petitioner's request for bail. Nevertheless, we vacate the district court's decision to release this particular petitioner because that court did not consider all of the standards that must be met with respect to bail determinations during habeas proceedings.

* Petitioner Colin Mapp is a native of Trinidad and Tobago. He entered the United States as a lawful permanent resident in 1970 at the age of eight. On April 8, 1987, Mapp was convicted in the Supreme Court of New York (Queens County) of criminal possession of stolen property in the first degree, a class D felony under New York law. On July 7, 1988, Mapp was convicted of attempted possession of stolen property in the third degree, a class E felony under New York law. Both convictions were pursuant to guilty pleas.

On March 4, 1997, almost nine years after Mapp's second conviction, the INS issued an Order to Show Cause; it claimed that Mapp, as an alien convicted of two crimes involving moral turpitude, see former 8 U.S.C. § 1251(a)(2)(A) (ii)), was deportable under § 241(a)(2)(A)(ii) of the Immigration and Nationality Act.1 Mapp conceded that he was subject to deportation under this statute, but contended that he was eligible for a waiver pursuant to INA § 212(c) (a "§212(c) waiver"). Under this provision, resident aliens who have accrued seven years of lawful permanent residence in the United States may apply for (but are not guaranteed) a waiver of deportation. See 8 U.S.C. §1182(c) (1994) (repealed by Illegal Immigration Reform and Immigrant Responsibility Act, ("IIRIRA"), § 304(b), Pub.L. No. 104 208, 110 Stat. at 3009 597 (1996)).

On October 21, 1997, an Immigration Judge deemed Mapp to be statutorily ineligible for § 212(c) relief and ordered him deported to Trinidad. The Board of Immigration Appeals ("BIA") affirmed. The BIA explained that, in its view, Mapp was ineligible for a § 212(c) waiver due to the enactment of § 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). That provision states that "[§ 212(c)] shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in [INA] section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)." Antiterrorism and Effective Death Penalty Act, § 440(d), Pub. L. No. 104-132, 110 Stat. 1214, 1277 (1996). Both of Mapp's offenses fell into this excluded category.

The BIA conceded that, under this court's precedents, see Henderson v. INS, 157 F.3d 106, 130 (2d Cir. 1998), cert. denied Reno v. Navas, 526 U.S. 1004 (1999), these restrictions on §212(c) waivers do not apply to deportation proceedings commenced before the AEDPA's effective date. Because the proceeding against Mapp was started after that date, however, the BIA determined that §440(d) was applicable to him, and, as a result, deemed him ineligible for a §212(c) waiver.

Mapp filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York challenging this interpretation of §440(d) of the AEDPA. Mapp contended that because he committed the crimes that rendered him deportable before the effective date of that statute, application of §440(d) to him would have a retroactive effect "contrary to the intent of Congress." He asked that the district court deem him eligible for a §212(c) waiver and direct the INS to conduct a hearing on the merits of his waiver claim.

While his habeas proceeding was before the district court, Mapp requested that the INS release him from custody on bond pending disposition of his petition. The INS denied this request, stating first that, because "a final order of removal [has been issued], he is not eligible for a bond," and second, that "Mr. Mapp would not be eligible for a bond, even if he did not have a final order of removal, pursuant to Title 8, USC, Section 1226(c)," which provides for mandatory detention of criminal aliens such as Mapp.

Having been deemed ineligible for bail by the INS, Mapp sought relief from the district court, which held initially that "[f]ederal case law is clear that release on bail may be ordered pending disposition of a petition for habeas corpus," and then proceeded to assess whether Mapp was fit for bail. The court explained that Mapp had a substantial likelihood of success on the merits of his habeas petition,2 and that his situation was "extraordinary when compared to typical habeas proceedings." Finally, the district court found that Mapp was neither a serious flight risk, nor a threat to the community. As a result, the court ordered Mapp released from custody on bond.

This appeal followed.

We review de novo the district court's conclusion that the federal courts have inherent authority to release habeas petitioners on bail. See generally United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) ("Whether the district court applied correct principles of law is a matter of law that we may view de novo.").

The question of whether the federal courts have inherent power to grant bail in any case where they may properly assert jurisdiction (whether it be criminal or involving alien deportation) is by no means a novel one. In fact, it has divided the federal courts for over a century. As one federal court explained:

On the question of inherent power to grant bail in such cases, the courts have divided themselves into two groups. The following cases support the contention that the power to admit to bail is incident to the power to hear and determine the case: United States v. Evans, 6 Cir., 1880, 2 F. 147; In re Gannon, D.C. Pa. 1928, 27 F.2d 362; In re Chow Goo Pooi, 9 Cir., 25 F. 77; In re Ah Kee, 9 Cir., 1884, 21 F. 701; In re Ah Tai, D.C. Mass., 125 F. 795; In re Chin Wah, D.C. Or., 1910, 182 F. 256; United States v. Yee Yet, D.C.N.J. 1911, 192 F. 577; Whitfield v. Hanges, 8 Cir., 222 F. 745; Ewing v. United States, 6 Cir., 1917, 240 F. 241. The following cases support the view that there is no such inherent power in the federal courts and that they cannot admit a person to bail unless such power is expressly conferred by statute: In re Carrier, D.C. Colo. 1893, 57 F. 578; Case of Chinese Wife, C.C. Cal. 1884, 21 F. 808; Chin Wah v. Colwell, 9 Cir., 1911, 187 F. 592; United States v. Curran, 2 Cir., 1924, 297 F. 946, 36 A.L.R. 877; United States v. Pizzarusso, D.C., 28 F. Supp. 158; In re Hanoff, D.C. Cal. 1941, 39 F. Supp. 169; Ex parte Perkov, D.C. Cal. 1942, 45 F. Supp. 864; United States v. Longo, D.C. Conn. 1942, 46 F. Supp. 169; Bongiovanni v. Ward, D.C. Mass. 1943, 50 F. Supp. 3.

Principe v. Ault, 62 F. Supp. 279, 281 (D.Ohio 1945). In addressing this question, therefore, we are not required to break new ground so much as to revisit a place where we have been before and to take stock of how the landscape has changed over the years.

This court first addressed the question of inherent power in United States ex rel. Carapa v. Curran, 297 F. 946 (2d Cir. 1924). In that case, we stated that the passage of a federal statute was required for the federal courts to exercise the power to grant bail. See id. at 952 ("The power to admit to bail is not a mere matter of practice. In the United States, the right to bail is thought to be dependent on statutes."). We acknowledged that traditionally, common law courts were permitted to admit to bail individuals properly within their jurisdiction, see id., 297 F. at 954 (citing Queen v. Spilsbury, 2 Q.B.Div. 615 (1898)), but we emphasized that "the Circuit Courts of Appeals and the District Courts of the United States are not possessed of the jurisdiction of courts of the common law." Id. Unlike common law courts, we noted, the federal courts "have such jurisdiction only as is conferred on them by acts of Congress."3 Id. We concluded that "the power to admit to bail is not a power inherent in the court," id. at 955 (emphasis added), and that "neither this court nor the District Court has authority to admit to bail, Congress having conferred no power to admit to bail in such a deportation proceeding as the one now pending in this court."4 Id. at 959.

Carapa's unequivocal pronouncement, however, was not our last with respect to this issue. In United States ex rel. Paetau v. Watkins, 164 F.2d 457, 460 (2d Cir. 1947), we qualified the Carapa holding by explaining that "[t]he actual decision [in that case] involved only the power of the appellate court on review, although some of the language of the opinion went further." And, more recent cases from this circuit have gone beyond Paetau and have indicated that an express statutory grant of authority is, in fact, not necessary for federal district courts to grant bail in habeas cases. Thus, in Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978), we stated that "[a] district court has inherent power to enter an order affecting the custody of a habeas petitioner who is properly before it contesting the legality of his custody." See also Argro v. United States, 505 F.2d 1374, 1377-78 (2d Cir. 1974).

As early as the 1960s, other circuits embraced this view as well, see, e.g., Baker v. Sard, 420 F.2d 1342, 1343 (D.C.Cir. 1969) (per curiam) ("[r]elease is available in a habeas corpus action"); Boyer v. City of Orlando, 402 F.2d 966, 968 (5th Cir. 1968) (ordering the release of a habeas petitioner on bail pending exhaustion of state and federal remedies); Johnston, 227 F.2d at 531 ("[o]ne of the inherent powers of the judiciary with regard to proceedings before it has been the admission of a prisoner to bail where, in the exercise of his discretion, the judge deems it advisable.").

This position has, moreover, been reflected in the decisions of our court and the district courts in this circuit many times in more recent years. See, e.g., Grune v. Coughlin, 913 F.2d 41, 43-44 (2d Cir. 1990); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981); Starzecpyzel v. Reno, No. 97 Civ. 1349, 1997 WL 289568, at *1 (S.D.N.Y. 1997); Harris v. United States, No. 97 Civ. 1904, 1997 WL 272398, at *1 (S.D.N.Y. 1997). Today we reaffirm these cases and hold, once again, that the federal courts have inherent authority to admit to bail individuals properly within their jurisdiction.

Even as we have acknowledged the authority of the federal courts to grant bail to habeas petitioners, however, we have also, and consistently, emphasized that this power is a limited one, to be exercised in special cases only. As we noted in Ostrer, "a habeas petitioner should be granted bail only in unusual cases, or when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective." Ostrer, 584 F.2d at 596 n.1 (internal quotation marks and citation omitted). And, in Grune, we explained that "[t]he standard for bail pending habeas litigation is a difficult one to meet: The petitioner must demonstrate that the habeas petition raise[s] substantial claims and that extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective."5 Grune, 913 F.2d at 44 (internal quotation marks omitted) (alterations in original).

Not satisfied by the requirement that extraordinary circumstances must exist before bail can be issued by federal courts in habeas cases, the government urges that in cases challenging INS detention (rather than incarceration as a result of a criminal conviction), the power of the federal courts is even more limited. In the government's view, Congress's "plenary power" over immigration matters cannot coexist with the federal courts' exercise of such "inherent authority" to release habeas petitioners.6 Because the recent cases recognizing the courts' inherent power to grant bail involved "criminal" habeas proceedings rather than requests for habeas relief in a "civil" context, the government contends that they are inapposite.7

There can be no doubt that, with respect to immigration and deportation, federal judicial power is singularly constrained. See U.S. Const. art. I, § 8, cl. 4; see also, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) ("This Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. Our cases have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.") (internal quotation marks and citations omitted). The "political departments'" plenary power in this realm, however, is neither self-defining nor self-executing; and the fact that, under the Constitution, Congress and the executive branch may exercise uniquely broad authority over immigration matters does not mean that these bodies need not act at all in order to animate and define the contours of this power.

While it may be that, in some cases, detention without bail is a necessary feature of our deportation procedures, see, e.g., Wong Wing v. United States, 163 U.S. 228, 235 (1896) ("[p]roceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation"), the burden lies on the political branches explicitly to instantiate such a system of detention, and to do so through the law. Absent a clear direction from Congress, federal judicial power is unaltered, and the authority of the federal courts to admit to bail parties properly within their jurisdiction remains unqualified.8 We must, therefore, turn our attention to the question of whether Congress has expressly narrowed or abolished the judicial power to grant bail to habeas petitioners in Mapp's circumstances.

Initially, the INS had contended that Congress had, in fact, expressly limited federal judicial (and, indeed, even executive) power to grant bail to aliens in Mapp's position. In its letter responding to Mapp's request for release, the INS had explained that "pursuant to Title 8, USC, Section 1226(c), the Service has no choice but to detain [you] and is precluded from releasing [you]."

8 U.S.C. § 1226(c) provides, in pertinent part:

The Attorney General shall take into custody any alien who... is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title.... The Attorney General may release [such] an alien... only if the Attorney General decides... that release of the alien from custody is necessary to [the Witness Protection Program] and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.

8 U.S.C. §1226(c)(1), (2) (emphasis added). The INS's letter to Mapp had expressed the view that this statute stripped the executive branch of authority to release him.9 Moreover, because 8 U.S.C. § 1226(e) indicates that "[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review," §§1226(c) and 1226(e), taken together, had appeared to render Mapp's detention mandatory.

The INS, however, has since abandoned the view that §§ 1226(c) and 1226(e) apply to Mapp. In its brief, the INS explains that it has "reinterpreted the scope of Section 1226(c) and concluded that its applicability is limited to the pendency of administrative proceedings." In other words, the INS now concedes that, because Mapp's administrative proceedings are final, the conditions of his detention are governed by 8 U.S.C. § 1231 and "[he] is no longer subject to 'mandatory detention.'"10 Put more broadly, the government has retreated from its contention that any particular statute precludes the federal courts' exercise of their inherent authority to release on bail habeas petitioners situated like Mapp. It now relies exclusively, instead, on the more general notion that the exercise of such power by the judiciary is inconsistent with the political branches' plenary control over immigration matters.

The government attempts to buttress this claim by highlighting the myriad ways in which Congress has, in recent years, contracted the scope of judicial review with respect to immigration custody matters. See, e.g., 8 U.S.C. §§ 1226(e), 1252(a)(2)(B)(ii), 1252(g) (1998). These statutes erect a cavalcade of jurisdictional bars to federal court review of INS detention decisions.11 In the government's view, these laws provide further evidence of a critical distinction between habeas proceedings arising out of criminal as opposed to civil contexts - a distinction that, it suggests, manifests itself, inter alia, in the absence of authority in the district courts to grant bail to petitioners in the latter set of cases on the same terms as in the former.

But, for the reasons stated earlier, we are unprepared to hold that powers that are inherent in the federal courts, like that of granting bail to habeas petitioners, can be limited by general attitudes cobbled together from laws of varying vintage and scope, rather than by specific statutory provisions. As a result, while the government's discussion of recent statutory inroads on judicial review of INS decisions provides evidence of the breadth of congressional power in this arena, it is of little help with respect to the particular question before us.

We conclude, therefore, that the district court acted within its power when it considered whether petitioner was entitled to release on bail.12

As mentioned above, our cases hold that a court considering a habeas petitioner's fitness for bail must inquire into whether "the habeas petition raise[s] substantial claims and [whether] extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective." Iuteri, 662 F.2d at 161; see also Grune, 913 F.2d at 44. The district court found that Mapp had "a substantial claim for relief" on the merits of his petition. This conclusion was predicated on the holdings in Maria v. McElroy, 68 F. Supp. 2d 206 (E.D.N.Y. 1999), and Pottinger v. Reno, 51 F. Supp. 2d 349 (E.D.N.Y. 1999), that §440(d) of the AEDPA could not be applied to aliens whose convictions preceded the effective date of that statute.13 Judge Sifton then asserted that "[p]etitioner's situation is extraordinary when compared to 'typical habeas corpus proceedings'" because "[i]n most habeas petitions challenging criminal convictions, the presumption of innocence is no longer available.... Here, however, Mapp challenges a deportation order, the propriety of which is clearly open to question."

Assuming, as we now must, see St. Cyr 229 F.3d at 418, that the district court was correct with respect to the existence of a substantial claim for relief, and arguendo, that the circumstances of Mapp's habeas petition were, in some respect, "extraordinary," the grant of bail in this case must nevertheless be vacated. This is because the district court neglected to articulate why its grant of bail was "necessary to make the habeas remedy effective" in this case. Ostrer, 584 F.2d at 596 n.1

The relief sought by petitioner guaranteed neither his release from detention nor a vacatur of the INS's order of removal. The most Mapp could (and, as it turns out, did) secure by virtue of being granted habeas was an order from the district court requiring that the INS consider his eligibility for a waiver of deportation under INA §212(c). But, and significantly, the effectiveness of this form of relief is wholly independent of the question of whether Mapp is incarcerated while the §212(c) hearing is pending. Without findings that indicate why Mapp's release is needed to make the required §212(c) hearing "effective," findings that are by no means obvious, we cannot say that a case for bail has been made out.14

We affirm the district court's determination that the federal courts have the same inherent authority to admit to bail habeas petitioners who challenge INS detention pending disposition of the merits of their petitions as they do to release "criminal" habeas petitioners. We also acknowledge that, in cases involving challenges to INS detention, Congress's plenary power over immigration matters renders this authority readily subject to congressional limitation. In the absence of express statutory constraints, however, the mere fact that such plenary control exists is inadequate to effectuate any curtailment of the federal judiciary's power to grant bail to those who are properly before it. And, we cannot identify any existing statute that expressly limits the inherent authority of the federal courts in respect to the bail application before us. Still, because the district court's decision to grant to petitioner a writ of habeas corpus entitles him only to a hearing on his request for a waiver of deportation under INA §212(c), rather than outright release or withdrawal of the order of removal against him, and because the district court has made no finding demonstrating that release is necessary to the effectiveness of that hearing (i.e., to the habeas relief petitioner sought) the grant of bail is VACATED and the case is REMANDED to the district court for proceedings consistent with this opinion.