Demore v. Kim: Mandatory Detention Allowed | Custody & No
Bond/Bail: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1) (April 29, 2003)
The US Supreme Court declared that lawful
permanent residents with
certain criminal convictions can be detained pursuant to INA §236(c)
without an individual bond hearing. The Court, however, also held that §
236(e) does not preclude habeas review of challenges to detention under
§ 236(c) .
The Supreme Court decision in Demore v. Kim applied only to
individuals who conceded deportability and explicitly did not address
the adequacy of the Matter of Joseph hearing, which allows a person to
be released if she or he can demonstrate that the government is
"substantially unlikely to prevail" on the charges of removal. To the
extent possible, non-citizens should not concede deportability and
request a Matter of Joseph hearing. 22 I. & N. Dec. 799 (BIA 1999)
http://callyourlawyers.com/pdfcaselaw/matterofjoseph.pdf
The Immigration Judge may make a determination on whether a lawful
permanent resident “is not properly included” in a mandatory detention
category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before
or after the conclusion of the underlying removal case. If this
threshold bond decision is made after the Immigration Judge’s resolution
of the removal case, the Immigration Judge may rely on that underlying
merits determination.
certain criminal convictions can be detained pursuant to INA §236(c)
without an individual bond hearing. The Court, however, also held that §
236(e) does not preclude habeas review of challenges to detention under
§ 236(c) .
The Supreme Court decision in Demore v. Kim applied only to
individuals who conceded deportability and explicitly did not address
the adequacy of the Matter of Joseph hearing, which allows a person to
be released if she or he can demonstrate that the government is
"substantially unlikely to prevail" on the charges of removal. To the
extent possible, non-citizens should not concede deportability and
request a Matter of Joseph hearing. 22 I. & N. Dec. 799 (BIA 1999)
http://callyourlawyers.com/pdfcaselaw/matterofjoseph.pdf
The Immigration Judge may make a determination on whether a lawful
permanent resident “is not properly included” in a mandatory detention
category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before
or after the conclusion of the underlying removal case. If this
threshold bond decision is made after the Immigration Judge’s resolution
of the removal case, the Immigration Judge may rely on that underlying
merits determination.
Demore v.
Kim, 538 U.S. __ , 123 S.Ct. 1708, No.
01-1491, 4/29/03 SUPREME COURT OF THE UNITED
STATES
PDF Case: http://callyourlawyers.com/pdfcaselaw/KIM_3428.pdf
Hyung Joon Kim came to the United States at the age of six and became a
lawful permanent resident two years later. As a teenager, Kim was
convicted of first-degree burglary and petty theft. He was detained
during his removal proceedings pursuant to the mandatory detention
provision of INA §236(c). After three months in detention, Kim filed a
petition for a writ of habeas corpus challenging the constitutionality
of mandatory detention.
Under the Immigration and Nationality Act, 8 U.S.C. § 1226(c), "the
Attorney General shall take into custody any alien who" is removable
from this country because he has been convicted of one of a specified
set of crimes, including an "aggravated felony." After respondent, a
lawful permanent resident alien, was convicted in state court of
first--degree burglary and, later, of "petty theft with priors," the
Immigration and Naturalization Service (INS) charged him with being
deportable from the United States in light of these convictions, and
detained him pending his removal hearing. Without disputing the validity
of his convictions or the INS' conclusion that he is deportable and
therefore subject to mandatory detention under § 1226(c), respondent
filed a habeas corpus action challenging § 1226(c) on the ground that
his detention thereunder violated due process because the INS had made
no determination that he posed either a danger to society or a flight
risk. The District Court agreed and granted respondent's petition
subject to the INS' prompt undertaking of an individualized bond
hearing, after which respondent was released on bond. In affirming, the
Ninth Circuit held that § 1226(c) violates substantive due process as
applied to respondent because he is a lawful permanent resident, the
most favored category of aliens.
The court rejected the Government's two principal justifications for
mandatory detention under § 1226(c), discounting the first ---- ensuring
the presence of criminal aliens at their removal proceedings ---- upon
finding that not all aliens detained pursuant to § 1226(c) would
ultimately be deported, and discounting the second ---- protecting the
public from dangerous criminal aliens ----on the grounds that the
aggravated felony classification triggering respondent's detention
included crimes (such as respondent's) that the court did not consider
"egregious" or otherwise sufficiently dangerous to the public to
necessitate mandatory detention. Relying on Zadvydas v. Davis, 533 U.S.
678, the court concluded that the INS had not provided a justification
for no--bail civil detention sufficient to overcome a permanent resident
alien's liberty interest.
1. Section 1226(e) ---- which states that "the Attorney General's
discretionary judgment regarding the application of this section shall
not be subject to review" and that "no court may set aside any
action or decision by the Attorney General under this section regarding
the detention or release of any alien" ---- does not deprive the federal
courts of jurisdiction to grant habeas relief to aliens challenging
their detention under § 1226(c). Respondent does not challenge a "
discretionary judgment" by the Attorney General or a "decision" that the
Attorney General has made regarding his detention or release. Rather,
respondent challenges the statutory framework that permits his detention
without bail. Where Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear. E.g., Webster
v. Doe, 486 U.S. 592, 603. And, where a provision precluding review is
claimed to bar habeas review, the Court requires a particularly clear
statement that such is Congress' intent. See INS v. St. Cyr, 533 U.S.
289, 308--309, 298, 327. Section 1226(e) contains no explicit provision
barring habeas review. Pp. 4--6.
2. Congress, justifiably concerned with evidence that deportable
criminal aliens who are not detained continue to engage in crime and
fail to appear for their removal hearings in large numbers, may require
that persons such as respondent be detained for the brief period
necessary for their removal proceedings. In the exercise of its broad
power over naturalization and immigration, Congress regularly makes
rules that would be unacceptable if applied to citizens. Mathews v.
Diaz, 426 U.S. 67, 79--80. Although the Fifth Amendment entitles aliens
to due process in deportation proceedings, Reno v. Flores, 07 U.S. 292,
306, detention during such proceedings is a constitutionally valid
aspect of the process, e.g., Wong Wing v. United States, 163 U.S. 228,
235, even where, as here, aliens challenge their detention on the
grounds that there has been no finding that they are unlikely to appear
for their deportation proceedings, Carlson v. Landon, 342 U.S. 524, 538.
The INS detention of respondent, a criminal alien who has conceded that
he is deportable, for the limited period of his removal proceedings, is
governed by these cases. Respondent argues unpersuasively that the §
1226(c) detention policy violates due process under Zadvydas, 533 U.S.,
at 699, in which the Court held that § 1231(a)(b) authorizes continued
detention of an alien subject to a final removal order beyond that
section's 90--day removal period for only such time as is reasonably
necessary to secure the removal. Zadvydas is materially different from
the present case in two respects. First, the aliens there challenging
their detention following final deportation orders were ones for whom
removal was "no longer practically attainable," such that their
detention did not serve its purported immigration purpose. Id., at 690.
In contrast, because the statutory provision at issue in this case
governs detention of deportable criminal aliens pending their removal
proceedings, the detention necessarily serves the purpose of preventing
the aliens from fleeing prior to or during such proceedings. Second,
while the period of detention at issue in Zadvydas was "indefinite" and
" potentially permanent," id., at 690--691, the record shows that
1226(c) detention not only has a definite termination point, but lasts,
in the majority of cases, for less than the 90 days the Court considered
presumptively valid in Zadvydas. Pp. 6--20. 276 F.3d 523, reversed.
JUDGES: REHNQUIST, C. J., delivered the opinion of the Court, in which
KENNEDY, J., joined in full, in which STEVENS, SOUTER, GINSBURG, and
BREYER, JJ., joined as to Part I, and in which O'CONNOR, SCALIA, and
THOMAS, JJ., joined as to all but Part I. KENNEDY, J., filed a
concurring opinion. O'CONNOR, J., filed an opinion concurring in part
and concurring in the judgment, in which SCALIA and THOMAS, JJ., joined.
SOUTER, J., filed an opinion concurring in part and dissenting in part,
in which STEVENS and GINSBURG, JJ., joined. BREYER, J., filed an opinion
concurring in part and dissenting in part.
PDF Case: http://callyourlawyers.com/pdfcaselaw/KIM_3428.pdf
Hyung Joon Kim came to the United States at the age of six and became a
lawful permanent resident two years later. As a teenager, Kim was
convicted of first-degree burglary and petty theft. He was detained
during his removal proceedings pursuant to the mandatory detention
provision of INA §236(c). After three months in detention, Kim filed a
petition for a writ of habeas corpus challenging the constitutionality
of mandatory detention.
Under the Immigration and Nationality Act, 8 U.S.C. § 1226(c), "the
Attorney General shall take into custody any alien who" is removable
from this country because he has been convicted of one of a specified
set of crimes, including an "aggravated felony." After respondent, a
lawful permanent resident alien, was convicted in state court of
first--degree burglary and, later, of "petty theft with priors," the
Immigration and Naturalization Service (INS) charged him with being
deportable from the United States in light of these convictions, and
detained him pending his removal hearing. Without disputing the validity
of his convictions or the INS' conclusion that he is deportable and
therefore subject to mandatory detention under § 1226(c), respondent
filed a habeas corpus action challenging § 1226(c) on the ground that
his detention thereunder violated due process because the INS had made
no determination that he posed either a danger to society or a flight
risk. The District Court agreed and granted respondent's petition
subject to the INS' prompt undertaking of an individualized bond
hearing, after which respondent was released on bond. In affirming, the
Ninth Circuit held that § 1226(c) violates substantive due process as
applied to respondent because he is a lawful permanent resident, the
most favored category of aliens.
The court rejected the Government's two principal justifications for
mandatory detention under § 1226(c), discounting the first ---- ensuring
the presence of criminal aliens at their removal proceedings ---- upon
finding that not all aliens detained pursuant to § 1226(c) would
ultimately be deported, and discounting the second ---- protecting the
public from dangerous criminal aliens ----on the grounds that the
aggravated felony classification triggering respondent's detention
included crimes (such as respondent's) that the court did not consider
"egregious" or otherwise sufficiently dangerous to the public to
necessitate mandatory detention. Relying on Zadvydas v. Davis, 533 U.S.
678, the court concluded that the INS had not provided a justification
for no--bail civil detention sufficient to overcome a permanent resident
alien's liberty interest.
1. Section 1226(e) ---- which states that "the Attorney General's
discretionary judgment regarding the application of this section shall
not be subject to review" and that "no court may set aside any
action or decision by the Attorney General under this section regarding
the detention or release of any alien" ---- does not deprive the federal
courts of jurisdiction to grant habeas relief to aliens challenging
their detention under § 1226(c). Respondent does not challenge a "
discretionary judgment" by the Attorney General or a "decision" that the
Attorney General has made regarding his detention or release. Rather,
respondent challenges the statutory framework that permits his detention
without bail. Where Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear. E.g., Webster
v. Doe, 486 U.S. 592, 603. And, where a provision precluding review is
claimed to bar habeas review, the Court requires a particularly clear
statement that such is Congress' intent. See INS v. St. Cyr, 533 U.S.
289, 308--309, 298, 327. Section 1226(e) contains no explicit provision
barring habeas review. Pp. 4--6.
2. Congress, justifiably concerned with evidence that deportable
criminal aliens who are not detained continue to engage in crime and
fail to appear for their removal hearings in large numbers, may require
that persons such as respondent be detained for the brief period
necessary for their removal proceedings. In the exercise of its broad
power over naturalization and immigration, Congress regularly makes
rules that would be unacceptable if applied to citizens. Mathews v.
Diaz, 426 U.S. 67, 79--80. Although the Fifth Amendment entitles aliens
to due process in deportation proceedings, Reno v. Flores, 07 U.S. 292,
306, detention during such proceedings is a constitutionally valid
aspect of the process, e.g., Wong Wing v. United States, 163 U.S. 228,
235, even where, as here, aliens challenge their detention on the
grounds that there has been no finding that they are unlikely to appear
for their deportation proceedings, Carlson v. Landon, 342 U.S. 524, 538.
The INS detention of respondent, a criminal alien who has conceded that
he is deportable, for the limited period of his removal proceedings, is
governed by these cases. Respondent argues unpersuasively that the §
1226(c) detention policy violates due process under Zadvydas, 533 U.S.,
at 699, in which the Court held that § 1231(a)(b) authorizes continued
detention of an alien subject to a final removal order beyond that
section's 90--day removal period for only such time as is reasonably
necessary to secure the removal. Zadvydas is materially different from
the present case in two respects. First, the aliens there challenging
their detention following final deportation orders were ones for whom
removal was "no longer practically attainable," such that their
detention did not serve its purported immigration purpose. Id., at 690.
In contrast, because the statutory provision at issue in this case
governs detention of deportable criminal aliens pending their removal
proceedings, the detention necessarily serves the purpose of preventing
the aliens from fleeing prior to or during such proceedings. Second,
while the period of detention at issue in Zadvydas was "indefinite" and
" potentially permanent," id., at 690--691, the record shows that
1226(c) detention not only has a definite termination point, but lasts,
in the majority of cases, for less than the 90 days the Court considered
presumptively valid in Zadvydas. Pp. 6--20. 276 F.3d 523, reversed.
JUDGES: REHNQUIST, C. J., delivered the opinion of the Court, in which
KENNEDY, J., joined in full, in which STEVENS, SOUTER, GINSBURG, and
BREYER, JJ., joined as to Part I, and in which O'CONNOR, SCALIA, and
THOMAS, JJ., joined as to all but Part I. KENNEDY, J., filed a
concurring opinion. O'CONNOR, J., filed an opinion concurring in part
and concurring in the judgment, in which SCALIA and THOMAS, JJ., joined.
SOUTER, J., filed an opinion concurring in part and dissenting in part,
in which STEVENS and GINSBURG, JJ., joined. BREYER, J., filed an opinion
concurring in part and dissenting in part.
Posted: Sun - September 28, 2003 at 03:15 PM
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Published On: Dec 09, 2004 09:19 PM
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Published On: Dec 09, 2004 09:19 PM