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The United States Supreme Court reversed the 9th Circuit ruling
on section 236(c) of the Immigration and Nationality Act, which calls for
detention without bond for non-U.S. citizens in removal proceedings who
have been convicted of specified criminal offenses. (Aggravated felony
conviction; moral turpitude conviction with sentence of more than one
year within 5/10 years of admission; 2 or more moral turpitude
convictions;) In the 9th Circuit ruling, Kim v. Ziglar, 276 F.3d 523 (9th Cir.
2002), the court had ruled that the detention without a hearing
of a lawful permanent resident pursuant to section 236(c) violated due

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.

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

A lawful permanent resident will not be considered “properly included”
in a mandatory detention category when an Immigration Judge or the Board
of Immigration Appeals finds, on the basis of the bond record as a
whole, that it is substantially unlikely that the Immigration and
Naturalization Service will prevail on a charge of removability
specified in section 236(c)(1) of the Act.

Although a conviction document may provide the Service with sufficient
reason to believe that an alien is removable under one of the mandatory
detention grounds for purposes of charging the alien and making an
initial custody determination, neither the Immigration Judge nor the
Board is bound by the Service’s decisions in that regard when
determining whether an alien is properly included within one of the
regulatory provisions that would deprive the Immigration Judge and the
Board of jurisdiction to redetermine the custody conditions imposed on
the alien by the Service. When an Immigration Judge’s removal decision
precedes the determination, pursuant to 8 C.F.R. § 3.19(h)(2)(ii),
whether an alien is “properly included” in a mandatory detention
category, the removal decision may properly form the basis for that
determination. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999)

Demore v. Kim, 538 U.S. __ , No. 01-1491, 4/29/03

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.

Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002).

PROCEDURAL POSTURE: Respondent, the Immigration and Naturalization
Service (INS), sought review of an order from the United States District
Court for the Northern District of California, which held that 8
U.S.C.S. § 1226(c)(1)(B) was unconstitutional on its face, and ordered
the INS to hold a bail hearing to decide petitioner's risk of flight
and dangerousness after he had been charged with removability.

OVERVIEW: Petitioner came to the United States as a child and became a
lawful permanent resident. As an adult, he was convicted of burglary and
petty theft. The day after his release from custody, the INS detained
him under 8 U.S.C.S. § 1226(c)(1)(B) on the ground that his convictions
qualified as felonies, making him removable. Petitioner sought a writ of
habeas corpus, alleging the no-bail provision of 8 U.S.C.S. § 1226(c)
violated the Fifth Amendment Due Process Clause. The trial court held
that 8 U.S.C.S. § 1226 was unconstitutional on its face and ordered the
INS to hold a bail hearing to decide petitioner's risk of flight and
dangerousness. On appeal by the INS, the court affirmed, finding that
the unavailability of bail under § 1226 was unconstitutional as applied
to lawful permanent resident aliens. However, the court was unprepared
to hold that detention under § 1226 was unconstitutional in all its
possible applications. The court determined that the government failed
to carry its burden of proving that the fact that some aliens may
be dangerous justified civil detention, without bail, of all lawful
permanent resident aliens who had been charged with removability.

OUTCOME: The order requiring the INS to hold a bail hearing to determine
petitioner's risk of flight and dangerousness after he had been charged
with removability was affirmed. The court held that the unavailability
of bail was unconstitutional as applied to lawful permanent resident

In Kim v. Ziglar, the Ninth Circuit reviewed the no-bond provision of
section 236(c). The government tried to justify the no-bond provision by
appealing to generalized concerns about the flight risk that criminal
aliens represent, as well as concerns about their threat to community
safety. The court found these concerns unavailing.
With respect to the flight risk issue, the government argued that if
immigrants who commit crimes are not detained, a significant number will
abscond. Moreover, the government asserted that for such immigrants,
their eventual removal from the U.S. is virtually certain. However, the
court examined the government's statistics and disagreed with its
conclusions. It also noted that despite their criminal convictions, some
immigrants remain eligible for some remedies, including withholding of
removal, protection under the Convention Against Torture, and, following
the Supreme Court's decision in INS v. St. Cyr, 121 S Ct. 2271 (2001),
relief under INA section 212(c). In addition, some immigrants might
successfully argue that the crimes they were convicted of do not
constitute aggravated felonies.

Under current regulatory enforcement practice the '96 law allows the
mandatory detention without bail of all aggravated felons released after
October 9, 1998 despite whether they actually pose a danger to the
community or whether they are a flight risk. That the person is a lawful
permanent resident with roots in the community does not legally matter.
However, any immigrant who completed his or her criminal sentence prior
to October 9, 1998 can be considered for release from detention. If the
INS does not release the immigrant, he or she can apply for a bond
redetermination hearing before an immigration judge, and can appeal any
negative determination to the Board of Immigration Appeals (BIA). The
provisions of section 236(c) of the Act "shall apply to individuals
released after" October 8, 1998, the date which the Transition Period
Custody Rules expired. See, Matter of Adeniji, Interim Decision #3417
(BIA 1999); 8 C.F.R. Sec. 236.1(c)(8)(2000).

The mandatory detention provisions of section 236(c) of the Immigration
and Nationality Act, 8 U.S.C. Sec. 1226(c) do not apply to an alien who
was convicted after the end of the Transition Period Custody
Rules-October 8, 1998, but who was last released from the physical
custody of state authorities prior to the expiration of the Transition
Rules and who was not physically confined or restrained because of
that conviction. In re Neville George WEST, Interim Decision #3438,
October 26, 2000.

A criminal alien who is released from criminal custody after the
expiration of the Transition Period Custody Rules is subject to
mandatory detention pursuant to section 236(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1226(c) (Supp. V 1999), even if the alien is
not immediately taken into custody by the Immigration and Naturalization
Service when released from incarceration. Matter of Rojas, 23 I&N Dec.
117 (BIA 2001) ID #3451.

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