Ricardo Antonio WELCH, Jr., Petitioner-Appellee, v. John ASHCROFT, as Attorney General, Department of Justice; James W. Ziglar, as Commissioner of the Immigration and Naturalization Service, Department of Justice; Louis D. Crocetti, Jr., as Director, Baltimore District, Immigration and Naturalization Service; Douglas C. Devenyns, as Warden, Wicomico County Detention Center, Respondents-Appellants. Citizens and Immigrants for Equal Justice; American Immigration Lawyers Association; American Civil Liberties Union Foundation, Immigrants' Rights Project, Amici Curiae, 293 F.3d 213

Affirmed by published opinion. Senior Judge BEEZER wrote the opinion. Judge WIDENER wrote an opinion concurring in Judge BEEZER’s opinion except for the first paragraph of

Part III A. 1. and

Part VI. and concurring in the judgment. Judge WILLIAMS wrote an opinion concurring in the judgment. OPINION BEEZER, Senior Circuit Judge. Attorney General John Ashcroft, Commissioner of the Immigration and Naturalization Service James W. Ziglar, Director of the Immigration and Naturalization Service’s Baltimore District Louis D. Crocetti, Jr., and Director of the Wicomico County Detention Center Douglas C. Devenyns (collectively “DOJ”) appeal the district court’s grant of a petition by Ricardo Antonio Welch, Jr. (“Welch”) for a writ of habeas corpus. 101 F.Supp.2d 347 (D.Md.2000).

We have jurisdiction pursuant to 28 U.S.C. §§ 1292(a)(1) & 2253. See INS v. St. Cyr, 533 U.S. 289, 313-15, 121 S.Ct. 2271, 2287, 150 L.Ed.2d 347 (2001). We affirm. I Welch is a citizen of Panama who has been a permanent legal resident in the United States since he was- ten years of age. Welch’s parents, siblings and son are United States citizens. Welch served in the United States Navy and Naval Reserve for six years and was honorably discharged in 1994. . In the same year, Welch pleaded guilty to four State felony counts in Maryland.

While Welch was in State custody, the DOJ instituted deportation proceedings against him and served him with an Order to Show Cause. The DOJ asserted that Welch was deportable pursuant to two subsections of former

section 241 of the Immigration and Naturalization Act based on his State felony convictions. See 8 U.S.C. § 1251 (a)(2)(A)(iii) (1994) (authorizing deportation for conviction for “aggravated felony”); id. § 1251(a)(2)(C) (authorizing deportation for conviction for unlawfully possessing or carrying firearm). Soon after Welch was released from State custody, an immigration judge ordered Welch removed to Panama pursuant to, former

section 241 (a) (2) (A) (iii) of the Immigration and Naturalization Act. Welch appealed the removal order to the Board of Immigration Appeals. The Board rejected Welch’s appeal. The DOJ placed Welch in detention pending removal. Welch’s removal was delayed pending receipt of necessary documents from the government of Panama. A Maryland court vacated Welch’s felony convictions on the ground of ineffective assistance of counsel. Maryland entered into a new plea bargain with Welch and dropped the felony charges against him.

Welch pleaded guilty to six misdemeanor charges of simple assault and one misdemeanor charge of illegally wearing or carrying a handgun. The State court imposed a combined sentence of less than one year and credited Welch with time served for the entire sentence. The DOJ ceased attempts to enforce the prior removal order that had relied upon the vacated felony convictions. The DOJ moved to reopen Welch’s removal proceedings on the ground that Welch’s new firearm misdemeanor conviction rendered him deportable under , former

section 241(a)(2)(C) (now 237(a)(2)(C)) of the Immigration and Naturalization Act, 8 U.S.C. § 1227(a)(2)(C) (2001). The DOJ continued to detain Welch on the ground that § 236(

c) of the Immigration and Naturalization Act, 8 U.S.C. § 1226(c) (2001), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, mandated Welch’s detention pending a final removal determination. The Board of Immigration Appeals granted the DOJ’s motion to reopen. The DOJ served Welch with an amended Order to Show Cause relying on § 237(a)(2)(

C) of the Immigration and Naturalization Act and his misdemeanor firearm conviction. Welch filed a petition for a writ of habe-as corpus with the United States District Court for the District of Maryland. He also applied for naturalization as a United States citizen. An immigration judge terminated Welch’s reopened removal proceedings without prejudice based on the likely success of Welch’s naturalization application and the presence of “exceptionally appealing humanitarian factors.” The DOJ appealed. The Board of Immigration Appeals reversed and remanded.

The district court granted Welch’s habe-as petition. 101 F.Supp.2d at 356. Relying on United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the district court held that § 236(

c) of the Immigration and Naturalization Act “violated Welch’s substantive due process right, while detained pending judicial proceedings, to receive a bail hearing in which a judge would determine his flight risk and threat to the community.” Id. The court ordered the DOJ to “provide Welch with a bail hearing before an immigration judge.” Id. An immigration judge conducted a bail hearing pursuant to the district court’s order. The immigration judge concluded that Welch did not pose a flight risk or community danger so as to preclude his release pendente lite.

The immigration judge ordered Welch enlarged on $1,500 bond. So far as the record reveals, Welch remains free from incarceration. An immigration judge sua sponte ordered Welch removed based on the amended Order to Show Cause. Welch and the DOJ jointly moved in the district court to set aside this second removal order on the ground that Welch had become eligible for discretionary cancellation of removal. Immigration and Naturalization Act § 240A, 8 U.S.C. § 1229b. The district court granted the unopposed motion. Welch’s removal proceedings remain open.

The DOJ appeals the district court’s order directing it to provide Welch with a bail hearing with respect to his detention pendente lite. II The DOJ claims that Welch, as a removable alien, must be detained without possibility of release pending a final removal determination, pursuant to § 236(

c) of the Immigration and Naturalization Act, 8 U.S.C. § 1226(c). Aliens in removal proceedings are generally eligible for discretionary release pendente lite unless restricted by § 236(c). See Immigration and Naturalization Act § 236(a). Subsection 236(

c) says:

(1) Custody. The Attorney General shall take into custody any alien who— (

B) 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, when the alien is released [upon serving his sentence], without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

(2) Release. The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides ... that release of the alien from custody is necessary [under the federal witness protection program statute, 18 U.S.C. § 3521], and the alien satisfies the Attorney General that the alien will not pose a danger ... and is likely to appear for any scheduled proceeding. Immigration and Naturalization Act § 236(c), 8 U.S.C. § 1226(c) (emphasis added). The offenses enumerated in § 236(c)(1)(

B) include misdemeanors for carrying a firearm. See 8 U.S.C. § 1227(A)(2)(C). Subsection 236(

c) categorically bars the Attorney General from “releasing] from custody” any alien convicted of an aggravated felony or firearm offense who is not in the federal witness protection program. Although the DOJ maintains that Welch is deportable, his removal is not certain. The DOJ does not challenge the district court’s ruling that the permanent rules under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 apply to Welch’s agency proceedings.

The permanent rules, unlike the transitional rules that initially applied to removal proceedings following passage of the Illegal Immigration Reform and Immigrant Responsibility Act, permit Welch to apply for cancellation of removal so long as he has no felony convictions for purposes of the Immigration and Naturalization Act. See Immigration and Naturalization Act § 240A, 8 U.S.C. 1229b(a) (2001). A successful application for either citizenship or cancellation of removal will effectively terminate the DOJ’s current efforts to remove Welch.

Ill The district court held that detention of Welch pendente lite without the opportunity for a bail hearing violated his right to due process. “[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The substantive component of due process “forbids [legislation] to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Id at 301-02, 113 S.Ct. 1439; see Hawkins v.

Freeman, 195 F.3d 732, 739 (4th Cir.1999) (en banc). Infringements of liberty interests that are not fundamental are subject to less exacting scrutiny. See Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). A. We begin our due process analysis with the history, practice, and legal tradition of the liberty interest claimed by Welch. Glucksberg, 521 U.S. at 710, 117 S.Ct. 2258; Hawkins, 195 F.3d at 739.

As “[t]here is no general liberty interest in being free of even the most arbitrary and capricious government action,” we are required to “carefully state[ ]” the liberty interest that we consider. Hawkins, 195 F.3d at 739. “By this means, the Nation’s history, legal traditions, and practices ... provide the crucial guideposts for responsible decisionmaking, that would be threatened by analyzing the claimed right at too general a level.” Id (internal quotation marks and citations omitted).

Central to our due process inquiry, Welch’s detention raises the question whether a person has a constitutional right to freedom from incarceration absent a judicial finding of unacceptable flight risk or danger to the community, where probable cause for removal from the United States exists but a final determination has not been made. 1. Traditional Anglo-American law generally provides an opportunity to seek release from governmental incarceration pendente lite.

Blackstone acknowledges “[t]he personal liberty of individuals ... without imprisonment or restraint, unless by due course of law” as an absolute personal right. 1 William Blackstone, Commentaries *134. Blackstone teaches that for a judicial officer “to refuse or delay to bail any person bailable, is an offence against the liberty of the subject ... by the common law: as well as by ... statute ... and the habeas corpus act.” 4 id *297 (emphasis in original).

See also Salerno, 481 U.S. at 749, 107 S.Ct. 2095 (noting “ ‘general rule’ ... that the government may not detain a person prior to a judgment of guilt in a criminal trial” subject to significant exceptions “in special circumstances”). Blackstone notes that every defendant is not “bailable” and suggests that the legislature can prohibit bail altogether. Id. But he also writes that a mandatory detention regime is unwise and was unknown in English law: [T]he court of king’s bench ... may bail for any crime whatsoever ... according to the circumstances of the case. And herein the wisdom of the law is very manifest.

To allow bail to be taken commonly for ... enormous crimes, would greatly tend to elude the public justice: and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case .... 4 id. 299 (emphasis added). Few reported American cases squarely address the right to bail pendente lite, apparently because of the rarity in American law of mandatory pretrial detention of adults of sound mind. See United States v.

Melendez-Carrion, 790 F.2d 984, 988, 997 (2d Cir.1986) (opinion of Newman, J.). Most cases deal with pretrial detention with at least a discretionary avenue for release. See, e.g., Flores, 507 U.S. at 296; Salerno, 481 U.S. at 750, 107 S.Ct. 2095; Carlson v. Landon, 342 U.S. 524, 538, 72 S.Ct. 525, 96 L.Ed. 547 (1952). When mandatory detention statutes have appeared outside the capital context, they have generally met with a hostile reaction. Compare, e.g., United States v. Egorov, 319 F.2d 817 (2d Cir.1963) (per curiam) (upholding mandatory detention for aliens accused of capital crimes), with Chi Thon Ngo v.

INS, 192 F.3d 390 (3d Cir.1999) (granting parole hearing to convicted aliens held in mandatory detention under final removal order). We observe that a tradition permitting brief mandatory pretrial detention does exist in the area of interstate extradition. One court has stated that it is the “majority view” that a defendant detained on a State governor’s warrant pending extradition to another State has no constitutional right to bail. Meechaicum v. Fountain, 696 F.2d 790, 792 (10th Cir.1983) (per curiam).

This detention is justified, according to the Meechaicitm court, in order to keep the detainee “readily available to be turned over to those who arrive to return him” to the other State for trial. Id. 2. The practice of mandatory detention of alien criminal convicts pending their final removal orders does not appear to have arisen in American law before the early part of the twentieth Century. In recent decades Congress has repeatedly revisited both the categories of crimes requiring alien deportation and the opportunities for such aliens’ release pendente lite.

The Immigration Act of 1917 made aliens convicted of crimes of “moral turpitude” and receiving sentences of at least one year deportable.

An Act to Regulate the Immigration of Aliens to, and the Residence of Aliens in, the United States, ch. 29, § 19, 39 Stat. 874, 889 (1917). Such aliens were eligible for discretionary bonded release pending adjudication. Id. § 20, 39 Stat. at 881. The Immigration and Nationality Act of 1952 added drug and firearm crimes to the list of deportable offenses. Immigration and Naturalization Act § 241(a)(4)(A). The statute also eliminated the bond requirement for release. Id. § 242(a)(1)(C). In 1988, the Anti Drug Abuse Act created the “aggravated felon” category of de-portable alien.

Anti Drug Abuse Act § 7342, amending Immigration and Naturalization Act § 101(a), 8 U.S.C. § 1251(a) (1988); see 8 U.S.C.S. § 1101 note. The Anti Drug Abuse Act required alien detention pending a final deportation order. 8 U.S.C. § 1252(a)(2) (1988). This mandatory detention provision, apparently the first in American immigration law, was quickly amended to apply only to felons who had not been lawfully admitted to the United States. Id. (1992); see 8 U.S.C.S. § 1101 note (1992).

In 1996, the Antiterrorism and Effective Death Penalty Act expanded the list of crimes requiring detention and removal and eliminated the Anti Drug Abuse Act’s exception for lawful entrants. Antiterrorism and Effective Death Penalty Act § 306(a)(2), 440(c)(1), 8 U.S.C. § 1252 (1996). The Illegal Immigration Reform and Immigrant Responsibility Act temporarily restored the exception a few months later. Illegal Immigration Reform and Immigrant Responsibility Act § 303(b)(3).

After the transitional rules under that Act expired in 1998, both lawfully and unlawfully admitted aliens with criminal convictions requiring deportation once more faced mandatory detention pending their final removal orders. Illegal Immigration Reform and Immigrant Responsibility Act § 236(c), 8 U.S.C. § 1226(c) (1999). B. Welch asserted in the district court that his mandatory incarceration implicates a fundamental liberty interest. 101 F.Supp.2d at 353. Welch cited Salerno for the proposition that strict scrutiny is applicable. Id. at 354. The DOJ argued that only rational basis review applies, citing Reno v.

Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). 101 F.Supp.2d at 353. The district court agreed with Welch and, relying on Salerno, decided that the liberty interest Welch asserts is fundamental and that strict scrutiny should be applied to detention pendente lite. Id. The district court distinguishes the cases of Salerno and Welch from Flores. 101 F.Supp.2d at 353-54. Salerno upholds pretrial detention of dangerous persons accused of serious felonies.

Flores holds that detention pendente lite of juvenile aliens convicted of crimes permitting deportation does not infringe a fundamental right. 101 F.Supp.2d at 354. The district court observes that the detainees in Flores, unlike Salerno or Welch, were juveniles and as such are “always in some form of custody.” Id. (quoting Flores, 507 U.S. at 302, 113 S.Ct. 1439). Concluding that a fundamental interest is infringed, the district court applies strict scrutiny to Welch’s detention pursuant to § 236(c). 101 F.Supp.2d at 354-55.

The district court holds that, under strict scrutiny, the Government’s “admitted[ ]” interest in confining apparently dangerous and removable aliens prior to a removal determination does not justify § 236(c)’s “blanket, irrefutable presumption” prohibiting release pending adjudication. Id. at 354. C. We cannot accept the district court’s conclusion of law that the right to be free from restraint pendente lite is so fundamental as to require strict scrutiny of § 236(c).

In Salerno, the sole opinion on which the district court relied, the Supreme Court describes liberty from physical restraint as being of a “fundamental nature.” 481 U.S. at 750, 107 S.Ct. 2095. But the Salerno Court goes on to say that it cannot “categorically state that pretrial detention ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” 481 U.S. at 751, 107 S.Ct. 2095 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). In Zadvydas v.

Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Court says that “[fjreedom from imprisonment-from government custody, detention, or other forms of physical restraint lies at the heart of the liberty th[e] [Fifth Amendment] protects.” 121 S.Ct. at 2498. The Court neither calls that right “fundamental” nor holds that strict scrutiny applies. See also Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (describing “freedom from physical restraint” as being “at the core of the Fifth Amendment,” with only concurring opinion dubbing it “fundamental right”).

The liberty interest implicated by incarceration pending a final removal order is unquestionably significant. Yet the Supreme Court has never added freedom from incarceration to the short list of fundamental rights. The DOJ urges that we should find a fundamental liberty interest only with the greatest caution. We agree. The very flexibility of due process leaves us “reluctant to expand the concept” into uncharted areas. Hawkins, 195 F.3d at 738. The separation of powers that “keeps courts without certain traditional bounds vis-a-vis the other branches,” Lewis v.

Casey, 518 U.S. 343, 353 n. 3, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), has particular force in immigration and removal: Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress ... in the area of immigration and naturalization. Palma v. Verdeyen, 676 F.2d 100, 104 (4th Cir.1982) (quoting Mathews v.

Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)). The word “fundamental” is in any event a term of art employed to “rein in the subjective elements that are necessarily present in due-process judicial review” and to promote the “balancing of competing interests in every [such] case.” Hawkins, 195 F.3d at 739 n. 2 (quoting Glucksberg, 521 U.S. at 722, 117 S.Ct. 2258).

The semantics of fundamental rights analysis must not finesse the central issue in this case: the circumstances, if any, under which Congress may deny bail to apparently deportable aliens. rv If detention of alien convicts pending removal does not implicate a fundamental liberty interest, we apply a less exacting inquiry to determine whether § 236(

c) comports with substantive due process. Although there can be “no mechanical test” for due process, Shirley v. State, 528 F.2d 819, 822 (4th Cir.1975), the Supreme Court and we employ a consistent inquiry when testing detention pendente lite against due process guarantees. See Hill v. Nicodemus, 979 F.2d 987, 990-91 (4th Cir.1992); Flores, 507 U.S. at 303, 113 S.Ct. 1439; Salerno, 481 U.S. at 746-47, 107 S.Ct. 2095. First, such detention must be reasonably related to legitimate government interests. Second, “[i]t is axiomatic that ‘[d]ue process requires that a pretrial detainee not be punished.’ ” Schall v.

Martin, 467 U.S. 253, 269, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (quoting Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Detention pendente lite must not “constitute! ] impermissible punishment before [adjudication]” but must instead be merely a non-punitive, “regulatory” measure. We consider whether the [detention] is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.

Absent a showing of an express intent to punish on the part of the State, that determination generally will turn on [ (1)] whether an alternative purpose to which [the disability] may rationally be connected is assignable for it, and [ (2)] whether it appears excessive in relation to the alternative purpose.... Martin, 467 U.S. at 269, 104 S.Ct. 2403.

Accord Flores, 507 U.S. at 303, 113 S.Ct. 1439; Salerno, 481 U.S. at 747, 107 S.Ct. 2095; Hill, 979 F.2d at 990-91; see also Zadvydas, 121 S.Ct. at 2498-99 (holding that civil detention in general requires special non-punitive circumstances that outweigh detainee’s liberty interest in freedom from physical restraint) (citing Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). A. The mandatory detention statute, on its face, reveals no punitive intent. Deportation itself is not punitive. Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).

Mandatory detention pending a final removal decision bears a reasonable relationship to legitimate government interests. Despite the lack of express punitive intent, however, the statute may still be punitive if it has no purpose other than punishment, or is excessive in light of its goals. See Martin, 467 U.S. at 269, 104 S.Ct. 2403. The DOJ asserts two principal interests in support of § 236(c). First, mandatory detention reduces the flight risk of aliens facing probable removal. The DOJ points to Congressional findings and reports to the effect that aliens facing removal pose significant flight risks.

See, e.g.,. Sen. William V. Roth, Jr., Criminal Aliens in the United States, S.Rep. No. 104-48 (April 7, 1995), reprinted in 1995 WL 170285 (finding that 20 percent of criminal aliens not detained pendente lite fail to appear for deportation hearings). Although Congress has a legitimate interest in lowering convicted aliens’ flight risk and § 236(

c) furthers this goal, the constitutionality of the statute cannot rest on this interest alone. The Supreme Court has said that a concern over flight risk,. however legitimate, cannot by itself justify mandatory detention before trial. See Salerno, 481 U.S. at 754-55, 107 S.Ct. 2095. “When the Government's] ... only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more.” Id. at 754, 107 S.Ct. 2095 (emphases added); see also Kansas v.

Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (“A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment”). The DOJ asserts a second important interest. The Government seeks to protect the community from wrongful acts by dangerous aliens facing expulsion. Danger is certainly a matter of legitimate public concern. But here Congress bases the presumption of dangerousness on prior acts, in the form of prior convictions.

The sentence for these convictions has already been imposed by a State court and served by Welch. Mandatory detention based On prior convictions, in a civil removal proceeding, must not add to the punishment administered for those convictions in the first place. See Martin, 467 U.S. at 269, 104 S.Ct. 2403. Both purposes relied upon by the Government appear to support mandatory detention under ■ § 236(c). We next determine whether mandatory detention pendente lite based on a record of prior criminal conduct is a reasonable and not excessive way to prevent flight risk and to protect the community.

See Martin, 467 U.S. at 269, 104 S.Ct. 2403; Hill, 979 F.2d at 990-91. We analyze the statute both on its face and as applied to Welch. B. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Salerno, 481 U.S. at 745, 107 S.Ct. 2095. We cannot say that mandatory detention pendente lite of aliens convicted of crimes involving violence, contraband or dangerous instrumentalities violates due process on its face.

A total bar against individual findings of “dangerous” is without question a blunt tool by which to restrict personal liberty. Carlson, 342 U.S. at 538 & n. 31, 72 S.Ct. 525. On the other hand, mandatory detention here is based upon prior convictions, which enjoy a unique status in due process analysis. At least in the criminal context, “any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (quoting Jones v.

United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311) (parentheses omitted) (emphasis added). It follows that pri- or convictions as a basis for regulatory detention require fewer due process safeguards as well. “One basis for [this] ... constitutional distinction is not hard to see: unlike virtually any other consideration used to enlarge the possible [deprivation] ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. at 249, 119 S.Ct. 1215.

An infringement of liberty on account of past acts suggests that the purpose of the infringement may be punitive rather than regulatory. See Nestor, 363 U.S. at 619-20, 80 S.Ct. 1367. But present consequences based on past acts are not always punitive and often serve purely regulatory purposes. Basing detention here on carefully defined categories of past convictions provides a clear, definite standard for § 236(c)’s applicability. See Carlson, 342 U.S. at 543, 72 S.Ct. 525 (noting that clear standards for physical detention can be salutary for due process purposes). State or federal convicts subject to § 236(

c) may reasonably be assumed to have in fact performed the dangerous acts that constitute the crimes for which they were convicted. Aliens committing such acts should be aware that doing so may subject them to drastic and unwelcome consequences above and beyond mere judicial punishment, up to and including removal. Persons facing removal have predictable incentives to abscond from custody and predictable indifference to lesser penalties for future wrongful acts committed within the jurisdiction of the United States.

Historically, the Government faces significant practical and administrative challenges in dealing with aliens. Congress’ power to act is at its height in the context of foreign affairs in general and immigration in particular. See Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). So long as § 236(

c) of the Immigration and Naturalization Act does not violate the Constitution’s guarantees, the legislative intent will be given effect. See Fiallo, 430 U.S. at 792, 97 S.Ct. 1473; Carlson, 342 U.S. at 537, 72 S.Ct. 525. The mandatory detention pendente lite of apparently deportable aliens does not violate due process under every possible set of circumstances. We are not able to sustain Welch’s facial challenge to § 236(c). C. We examine Welch’s particular circumstances to determine whether the statute violates due process as applied in his case. We conclude that it does.

Fourteen months of incarceration pendente lite of a longtime resident alien with extensive community ties, with no chance of release and no speedy adjudication rights as in criminal proceedings, together lead us to conclude that the circumstances of Welch’s detention constitute punishment without trial. 1. The DOJ insists that Welch, as an alien convicted of a firearm crime, is not entitled to the full panoply of due process rights. The DOJ points to Parra v. Perryman, 172 F.3d 954 (7th Cir.1999), the first reported circuit case to address the constitutionality of § 236(c).

In Parra, a criminal alien in the United States challenged § 236(

c) on due process grounds. 172 F.3d at 955-56. The Parra court relies upon Congress’ plenary power over aliens to uphold the statute. Id. at 958. In light of the Supreme Court’s later clarification of this plenary power doctrine in Zadvy-das, we decline to adopt Parra’s reasoning.

We repeat the axiom that “Congress has virtually plenary authority over the admission of aliens.” Palma, 676 F.2d at 103. “Over no conceivable subject is the legislative power of Congress more complete,” and in the immigration area “Congress regularly makes rules that would be unacceptable if applied to citizens.” Fiallo, 430 U.S. at 792, 97 S.Ct. 1473. In Zadvydas, however, the Supreme Court says that the plenary power doctrine is largely inapplicable to aliens who have already entered the United States, even after becoming subject to a final removal order. 121 S.Ct. at 2500-02.

Zadvydas thus rejects the proposition, on which the Parra court squarely relies, that aliens under final removal orders have forfeited any “legal right to remain in the United States.” Compare Parra, 172 F.3d at 958, with Zadvydas, 121 S.Ct. at 2502. The plenary power doctrine does not become entirely inapplicable to aliens once they have entered the United States.

See, e.g., Flores, 507 U.S. at 305-06, 113 S.Ct. 1439 (relying in part on plenary power doctrine to uphold brief detention of dangerous juvenile aliens pending adjudication); Carlson, 342 U.S. at 542-43, 72 S.Ct. 525 (relying on doctrine to uphold detention of dangerous Communist aliens pending adjudication); see also Palma, 676 F.2d at 104. But “once an alien gains admission to this country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” Vancouver Women’s Health Collective Soc’y v. A.H. Robins Co., 820 F.3d 1359, 1363 (4th Cir.1987).

See also United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (noting that voluntarily resident aliens who develop strong domestic ties enjoy strengthened civil rights). Zadvydas requires us to consider whether Welch, as a longtime resident alien with extensive domestic connections, is entitled to the due process protections that citizens enjoy. 2. The governmental interests supporting detention pendente lite are relatively slight in Welch’s case. Little flight risk appears.

Welch has never sought to elude the INS despite being at liberty for months while appealing his first removal order. The DOJ does not contest the immigration judge’s express finding that his case presents “exceptionally appealing humanitarian factors.” and that his naturalization application is likely to succeed. Where flight risk is concerned, “[t]here is a clear difference ... between facing possible deportation and facing certain deportation.” St. Cyr, 121 S.Ct. at 2293 (emphases added). The record provides little support for a dangerous alien finding.

Welch’s criminal record in Maryland, consisting entirely of misdemeanors, provides the only record evidence that Welch is anything but a credit to his community. The record before us provides thin support for an irre-buttable presumption that Welch is so dangerous as to preclude his release pending resolution of his civil removal proceeding. In Kofa v. United States INS, 60 F.3d 1084 (4th Cir.1995) (en banc), we employed “two principles of statutory construction[,] plain English and common sense,” to explain the operation of a statute barring discretionary cancellation of removal for aggravated felons.

Id. at 1088. We interpreted the statute as establishing a presumption that an “alien constitutes a danger to the community because he has been convicted of a particularly serious crime, so once the particularly serious crime determination is made, the alien is ineligible for [cancellation] without a separate finding on dangerousness.” Id. (emphasis added).

In other words, the reason that aggravated felony convictions may form a sensible basis for a rebuttable presumption of dangerousness is that an aggravated felony is a “particularly serious crime.” We doubt that common sense similarly permits an irrebuttable presumption of dangerousness based on a single firearm misdemeanor. The DOJ urges us to consider not just Welch’s misdemeanor plea, but also the dangerous acts underlying his vacated felony convictions. But the DOJ has already conceded this argument.

We agree that expunged State convictions may remain convictions for purposes of the Immigration and Naturalization Act so long as there was both (1) a finding or confession of guilt and (2) a punishment imposed. See Immigration and Naturalization Act § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) (2001). But the DOJ has abandoned enforcement of Welch’s first removal order.

The DOJ did not appeal the district court’s ruling that Welch is eligible to apply for cancellation of removal under § 240A of the Immigration and Naturalization Act, 8 U.S.C. § 1229b(A), even though cancellation is expressly made available only to removable aliens with no aggravated felony convictions for purposes of the Act. In fact, the DOJ joined Welch’s motion to stay his removal proceeding on the explicit ground that he was eligible for § 240A cancellation.

The DOJ cannot contend that Welch’s vacated convictions are irrelevant to whether he should be removed, yet relevant to whether he is dangerous pending a removal determination. Finally, we examine the length of Welch’s detention to determine whether it is “excessive” in relation to the statute’s goals. The point at which extended detention pendente lite will violate due process depends upon such factors as the nature of the deprivation, see Nestor, 363 U.S. at 617, 80 S.Ct. 1367; Wong Wing v.

United States, 163 U.S. 228, 241, 16 S.Ct. 977, 41 L.Ed. 140 (1896); the conditions of confinement, see Martin, 467 U.S. at 270, 104 S.Ct. 2403; Bell, 441 U.S. 520, 536-37, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); the procedures afforded detainees prior to adjudication, see Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Gerstein v. Pugh, 420 U.S. 103, 112-13, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); and the justification for the continued detention. See Bell, 441 U.S. at 539-40, 99 S.Ct. 1861; United States v. Johnson, 732 F.2d 379, 381 (4th Cir.1984).

The actual length of the detention is a cornerstone of the inquiry. See Zadvydas, 121 S.Ct. at 2503. The short maximum duration of most pretrial detention statutes is significant. See, e.g., Martin, 467 U.S. at 270, 104 S.Ct. 2403 (17 days); United States v. Edwards, 480 A.2d 1321 (D.C.App.1981) (en banc) (60 days). Long pretrial detentions are generally upheld only where the detainee’s own aggressive procedural tactics are the chief cause of the delay. See, e.g., Doherty v. Thornburgh, 943 F.2d 204 (2d Cir.1991) (8 years); Dor v. Dist. Dir., 891 F.2d 997 (2d Cir.1989) (5 years).

In Zadvydas, the Supreme Court questions the constitutionality of the detention of aliens after a final removal order but before actual removal. 121 S.Ct. at 2503. Detention pending actual removal features a clearly identifiable event marking completion of the administrative process: actual removal. Nevertheless, Welch enjoys the benefit of no deadline by which actual removal must be accomplished following a final removal order, and removal may prove entirely impracticable. The Zadvy-das Court stresses repeatedly that pos-torder detention may be “indefinite, perhaps permanent.” Id.

Welch’s detention pending a final removal order is similarly indefinite. Like the postorder detention in Zadvydas, Welch’s detention features a clearly identifiable event marking completion of the detention period (i.e., issuance of a final order), but no clearly identifiable deadline by which that event must take place. Also, like the aliens in Zadvydas, Welch is not himself the cause of the delay in completion. The Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., adopts a presumptive limit of 90 days for pretrial detention in the criminal context.

Congress has adopted the same 90 day limit for the mandatory detention of deportable aliens like Welch after they are finally ordered removed. 8 U.S.C. § 1231(a)(2); see Zadvydas, 121 S.Ct. at 2495. Post-order detention of aliens may continue past 90 days, but only after an individual administrative review. 121 S.Ct. at 2495. In Zadvydas, the Court imposes a presumptive six-month upper limit on even this optional detention period. Id. at 2505.

Welch, a prima facie deportable alien, does not present as compelling a case for either mandatory or discretionary detention as the aliens in Zadvydas, who were convicted felons already subject to final removal orders. Yet Welch’s 14 months in detention is five months longer than the 90 day § 1231(a)(2) and six-month Zadvydas limits combined. We consider fourteen months’ incarceration before adjudication, as applied to Welch, to fall outside any range that comports with due process in these circumstances.

V The district court’s grant of Welch’s petition did not trench upon executive discretion, for no such discretion existed. The district court judgment does not order the DOJ to release Welch from custody. The judgment merely orders a bail hearing. The DOJ was able to present, and the immigration judge was free to consider, evidence of flight risk and dangerousness at the bail hearing. Yet the immigration judge found Welch fit for release and enlarged him on relatively minimal bond.

As a political branch enacting broad statutes, Congress can neither foresee nor address every conceivable set of circumstances under which government power is exercised against individuals. Where Congress eliminates executive discretion, courts remain as defenders of personal liberty in individual situations. The separation of powers is not offended by directing the executive administrative process to include bail hearings pendente lite in removal proceedings. VI Welch’s 14-month detention without a bond hearing did not contravene the dictates of § 236(c).

After carefully considering all the circumstances reflected in the record, we are convinced that Welch’s detention constitutes punishment without the benefit of a trial. The district court’s judgment granting Welch’s petition for a writ of habeas corpus is AFFIRMED. . The terms "deportation” and "removal” are ■ synonymous in this opinion. . In 1996 Congress recodified former § 241 of the Immigration and Naturalization Act, 8 U.S.C. § 1251 (1994), in substantially identical form at § 237 of the Act as amended, 8 U.S.C. § 1227 (2001). .

Welch completed his sentence for his now-vacated felony convictions in 1996, before § 236(

c) took effect. Nevertheless, we agree with the district court’s conclusion that § 236(

c) applies to Welch. See 101 F.Supp.2d at 352-52. In 1999, from the time Welch entered his second set of guilty pleas until he was resentenced, he was in the constructive custody of the State of Maryland. With resentencing came his "release.” . Even substantively acceptable deprivations of liberty interests "must still be implemented in a fair manner.” Salerno, 481 U.S. at 746, 107 S.Ct. 2095. But in Welch's case there is no procedure to implement. Bail pendente lite must be denied as a matter of law. The procedural due process inquiry collapses into the substantive one. See Kofa v.

United States INS, 60 F.3d 1084, 1091 n. 7 (4th Cir.1995) (en banc). . A more detailed history of mandatory alien detention is found in Sen. William V. Roth, Jr., Criminal Aliens in the United States, S.Rep. No. 104-48 (April 7, 1995), reprinted in 1995 WL 170285. . The detention provision of the Immigration and Naturalization Act, § 236(c), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act was originally intended to apply to all aliens placed in removal proceedings after April 1, 1997. See Illegal Immigration Reform and Immigrant Responsibility Act § 303(b)(1).

At the INS's request, Congress provided for a two-year grace period before § 236(

c) took effect upon a showing that the INS lacked the resources to implement its mandatory detention requirements. The grace period was invoked on October 9, 1996. The "Transitional Period Custody Rules” in effect during the grace period temporarily restored the exception from mandatory detention pendente lite for lawful entrants that existed before the passage of the Antiterrorism and Effective Death Penalty Act of 1996. . Although we accept for purposes of this opinion the parties’ position that § 236(

c) of the Immigration and Naturalization Act mandates Welch's incarceration, we note that the provision may arguably be interpreted differently. Subsection 236(

c) bars only "release from custody." § 236(c)(2). But "custody” need not rise to the level of physical detention. See Taylor v. Taintor, 16 Wall. (83 U.S.) 366, 371, 21 L.Ed. 287 (1873) ("When bail is given, the principal is regarded as delivered to the custody of his sureties”) (emphasis added). See also Albright v.

Oliver, 510 U.S. 266, 278-79, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (Ginsburg, J., concurring) ("[A] defendant released pretrial ... is scarcely at liberty!;] ... he remains apprehended, arrested in his movements, indeed 'seized' for trial, so long as he is bound to appear in court and answer the state's charges”). Cf. Zadvydas v. Davis, 533 U.S. 678, 688-90, 121 S.Ct. 2491, 2498, 150 L.Ed.2d 653 (2001) ("[W]hen

an Act of Congress raises a serious doubt as to its constitutionality, this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided”). . The district court did not say whether it concluded that § 236(

c) is unconstitutional on its face, as applied to Welch, or both. Welch argues here that the statute is invalid both on its face and as applied. . Parra also argued, citing Flores and Carlson, that § 236(c)’s elimination of discretionary release reduces the statute’s due process problems. 172 F.3d at 958. In fact, Flores and Carlson rely heavily on the existence and exercise of executive discretion as ameliorating the due process difficulties posed by detention pendente lite. See Flores, 507 U.S. at 309, 113 S.Ct. 1439; Carlson, 342 U.S. at 538 & n. 31, 72 S.Ct. 525. .

We note the absence of any claim in the record that Welch’s conduct has been that of a terrorist, or that he is or has ever been implicated in ongoing dangerous activities such as terrorism or organized crime. Cf. Zadvydas, 121 S.Ct. at 2502 (noting that "terrorism or other special circumstances” might justify special "forms of preventive detention and ... heightened deference to the judgments of the political branch with respect to matters of national security”). . We note, however, that § 101(a)(48)(

A) of the Immigration and Naturalization Act was intended to address strictly rehabilitative ex-pungements of otherwise valid convictions. Yanez-Popp v. INS, 998 F.2d 231, 234-37 (4th Cir.1993). Welch’s felony convictions were vacated, not for rehabilitative purposes, but for ineffective assistance of counsel. . Welch’s detention would not necessarily end upon issuance of a final removal order. He would continue to be detained until actual removal is accomplished.

We note that he has been subject to a previous final removal order once before, however, and that his actual removal to Panama proved impracticable on that occasion. . As the record does not indicate that Welch has been returned to detention, we do not order his release pending issuance of the mandate. If Welch is in fact under detention, he may seek issuance of the writ from the district court.