Demore v. Kim
538 U.S. 510 (2003)
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Rule of Law:
The mandatory detention of a deportable alien convicted of certain crimes during the limited period necessary for removal proceedings does not violate the Due Process Clause of the Fifth Amendment, and the government is not required to provide an individualized bond hearing to determine if the alien poses a flight risk or danger to the community.
Facts:
- Hyung Joon Kim, a citizen of the Republic of South Korea, entered the United States in 1984 at the age of six.
- In 1986, Kim became a lawful permanent resident of the United States.
- In July 1996, Kim was convicted of first-degree burglary in a California state court.
- In April 1997, Kim was convicted of a second crime, petty theft with priors.
- After serving his criminal sentences, the Immigration and Naturalization Service (INS) took Kim into custody.
- The INS initiated removal proceedings against Kim based on his criminal convictions.
- Pursuant to 8 U.S.C. § 1226(c), the INS detained Kim without a bond hearing pending the conclusion of his removal proceedings.
Procedural Posture:
- Hyung Joon Kim filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California, challenging the constitutionality of his mandatory detention.
- The District Court, a court of first instance, granted Kim's petition, finding 8 U.S.C. § 1226(c) unconstitutional and ordering the INS to provide an individualized bond hearing.
- The government (petitioner) appealed the District Court's decision to the U.S. Court of Appeals for the Ninth Circuit, an intermediate appellate court.
- The Ninth Circuit affirmed the District Court's judgment, holding that the mandatory detention of a lawful permanent resident alien without an individualized hearing violated substantive due process.
- The United States Supreme Court, the highest court, granted the government's petition for a writ of certiorari to resolve a conflict among the Courts of Appeals.
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Issue:
Does 8 U.S.C. § 1226(c), which mandates the detention of a lawful permanent resident alien during removal proceedings because they have been convicted of certain crimes, violate the Due Process Clause of the Fifth Amendment by not requiring an individualized bond hearing?
Opinions:
Majority - Chief Justice Rehnquist
No, the statute does not violate the Due Process Clause. Detention during removal proceedings is a constitutionally permissible part of that process, especially for criminal aliens. Congress has broad power over immigration and was justifiably concerned about high rates of flight and recidivism among criminal aliens released pending removal. Unlike the potentially indefinite detention for post-removal order aliens in Zadvydas v. Davis, the detention under § 1226(c) is for a brief, limited, and definite period necessary to complete removal proceedings. The government's strong interests in ensuring aliens appear for their proceedings and protecting the community outweigh the alien's liberty interest in this context, justifying a categorical detention rule without individualized hearings.
Concurring - Justice Kennedy
The statute is constitutional. Due process requires procedures to ensure there is merit to the government's charge that an alien is deportable, which is satisfied by existing procedures like a 'Joseph hearing'. However, if the detention were to become unreasonably prolonged, an individualized determination as to the alien's risk of flight and dangerousness could become constitutionally necessary to prevent the detention from becoming arbitrary. As the detention here was not unreasonably delayed, the mandatory detention scheme is permissible.
Concurring - Justice O'Connor
The statute is constitutional, but the Court should not have reached the merits because federal courts lack jurisdiction. Section 1226(e) of the statute unequivocally strips federal courts of jurisdiction, including habeas corpus, to review any action or decision by the Attorney General regarding the detention of aliens under this section. Although the majority incorrectly found jurisdiction, its ultimate decision on the constitutional question is correct and I concur in the judgment.
Dissenting - Justice Souter
Yes, the statute violates the Due Process Clause. Mandatorily detaining a lawful permanent resident, who has significant ties to the country, without any individualized finding that they pose a risk of flight or danger, is a violation of the fundamental right to be free from physical confinement. The Court's reasoning forgets over a century of precedent acknowledging the constitutional rights of permanent residents. The government provided no reason to believe Kim's detention was necessary, and the detention period under this statute can last for many months, which is not a brief period.
Dissenting - Justice Breyer
Yes, as applied here, the statute violates due process. While brief detention might be permissible for an alien who concedes deportability, Kim contests his deportability with non-frivolous arguments. The statute should be interpreted to avoid constitutional problems by requiring an individualized bail hearing for aliens with substantial claims against removal. Such a hearing would determine if the alien is a flight risk or danger, similar to standards used in the criminal justice system for defendants appealing a conviction.
Analysis:
This decision solidifies Congress's broad authority to regulate the detention of aliens, particularly those with criminal records. It creates a clear doctrinal distinction between pre-removal-order detention, which can be mandatory and categorical for a brief period, and post-removal-order detention, which, under Zadvydas, cannot be indefinite without stronger justification. The ruling empowers the executive branch to detain a class of aliens without individualized review, prioritizing governmental interests in administrative efficiency and public safety over the individual liberty interests of lawful permanent residents. Justice Kennedy's concurrence, however, suggests a potential limit, indicating that due process might require an individualized hearing if the 'brief' detention becomes unreasonably prolonged.
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