Demore v. Kim

DEMORE, DISTRICT DIRECTOR, SAN FRANCISCO

DISTRICT OF IMMIGRATION AND NATURALI- SERVICE,

ZATION et al. v. KIM No. Argued January 01-1491. April 2003 Decided J.,C. Rehnquist, delivered the Court, opinion in which Ken- nedy, J., joined full, which Stevens, Souter, Ginsburg, JJ., joined as to Part I, and in which O’Connor, Scalia, Breyer, Thomas, JJ., joined as to all but Part I. J., filed a concurring Kennedy, opinion, post, p. J., 581. O’Connor, filed an opinion in part concurring and concurring in judgment, which in JJ., and Thomas, Scalia joined, post, 533. p. J., filed an opinion Souter, in concurring part and dissenting in part, in which JJ., and Ginsburg, Stevens joined, post, p. 540. J., filed Breyer, opinion an concurring in part and in part, dissenting post, p. 576.

Solicitor argued General Olson petitioners. the cause for With him on the briefs Attorney were Assistant General Deputy McCallum, Solicitor General Kneedler, Austin C. Schlick, Keener, Donald E. and Mark C. Walters.

Judy argued Rabinovitz respondent. cause for With her on the Guttentag, brief were Lucas Gelernt, Lee Steven Shapiro, Stephen R. A. Jr., Christopher Hut, Meade, J. Lili Jayashri ana M. Garces, and Srikantiah.* *Daniel J. Popeo and Richard Samp A filed a brief for the Washington Foundation Legal et al. as amici urging curiae reversal. Briefs of amici curiae urging affirmance were filed for the American Bar Carlton, Association by Jr., P. and Jeffrey Bleich; L. for Citi- Alfred and zens Immigrants for Equal Justice et al. Morawetz; by Nancy for International Rights Human Organizations by J. William Aceves and Paul L. Hoffman; for Law by Kanstroom; Professors Daniel for the National Pacific Asian American Legal Consortium et al. by Richard A Cordray, F. Eugene Chay, Vincent A Eng, William L. Taylor; and and for T. Alex- ander Aleinikoff al. et J. Drier. Anthony. Rehnquist Chief Justice delivered the of the opinion Court. 236(c) Immigration Nationality

Section and Act, 66 §1226(c), 200, as amended, Stat. 110Stat. 3009-585, 8 U. S. C. provides “[t]he Attorney that General custody shall take into any alien country who” is from removable because he specified has been convicted of a of one set of crimes. Re spondent Republic ais citizen of the of South He Korea. in age 1984, entered the United States at the six, permanent became lawful resident of the United States years July two later. he was convicted of first- degree burglary in state in April court and, California in “petty he was aof second crime, convicted theft with (INS) priors.” Immigration and Naturalization Service charged respondent being deportable with from the United light States pend convictions, these him detained ing hearing.1 his Congress, We justifiably hold deportable concerned that criminal aliens who are not de engage tained continue to appear crime and fail to for hearings large their removal may require numbers, persons respondent period such be detained for brief necessary proceedings. their removal

Respondent dispute validity prior does not of his con- victions, which following procedural were obtained the full protections justice system our Respondent criminal offers. dispute did subject also not the INS’ conclusion that he is to 32a; 1 App. 1227(a)(2) to Pet. 1101(a)(43)(G), §§ for Cert. see 8 U. S. C. (A)(iii). 1226(c) Section authorizes detention of who have com alia, inter mitted certain crimes including, “aggravated felony,” any §§ 1226(c)(1)(B), 1227(a)(2)(A)(iii), any two involving moral “crimes 1227(a)(2)(A)(ii). §§ turpitude,” 1226(c)(1)(B), INS Although initially included respondent’s document, 1997 conviction in the it charging subsequently amended the immigration him to charges against his include 1996 conviction for first-degree burglary as basis for mandatory another detention and deportation. Brief n. that (alleging Petitioners re spondent’s convictions reflected two ‘“crimes moral involving turpitude’”). 1226(c). detention

mandatory § under Brief in See Opposi- 1-2; tion 8-9.2 In he App. that conceding deportable, a forwent respondent at which he would have been hearing entitled to raise any nonfrivolous dem- available to argument onstrate that he was not included in a properly mandatory 3.19(h)(2)(h) detention Matter § See 8 category. (2002); CFR (BIA 22 I. 1999).3 & N. Dec. 799 Joseph, in- Respondent of stead filed habeas action to 28 corpus U. S. pursuant C. § the United States District Court for the Northern District of California of challenging constitutionality 1226(c) § itself. to App. Pet. for Cert. 2a. He argued his 1226(e) detention § under violated due because process the INS had made no determination that he either a posed to Id., danger or a society risk. at 31a, flight 33a.

The District Court 1226(c)’s with agreed § respondent requirement mandatory for certain criminal aliens was Kim unconstitutional. Schiltgen, No. C 99- 2As respondent explained: “The requires statute [INS] to take into custody any alien who deportable’ ‘is from the United States based on having been convicted of any of a wide range crimes.... [Respondent] does not challenge INS’s to take authority him into custody after he fin ished serving his criminal sentence. His challenge is solely Section 1226(c)’sabsolute prohibition his detention, release where, from even here, the INS never asserted that posed he a danger or significant flight risk.” Brief in Opposition 1-2. 3This “Joseph hearing” is immediately provided to a detainee who 1226(c). claims that he is covered Tr. of Oral Arg. 22. At the hearing, the may detainee avoid mandatory detention by demonstrating alien, that he is not an was not convicted of the predicate crime, or that the INS is otherwise substantially unlikely establish that he inis fact subject mandatory §3.19(h)(2)(ii) detention. See 8 CFR (2002);Matter (BIA Joseph, 1999). 22 I. & N. Dec. 799 respondent Because conceded that he was deportable because 1226(c) conviction that triggers thus no sought Joseph hearing, we have no occasion to review the ade quacy of Joseph hearings generally screening out those who improp are erly 1226(c). detained pursuant §to Such individualized is avail review able, however, and Justice is mistaken if he means Souter suggest otherwise. post, 555-556, See (opinion concurring part and dis (hereinafter senting in part) dissent). (Aug. 11, 1999), App. SI to Pet. for Cert. 31a-51a. The District Court granted therefore respondent’s petition sub ject prompt INS’ undertaking anof individualized hearing bond to determine respondent whether posed either flight a risk or danger community. Id., at Fol 50a. lowing that decision, the District Director of the re INS respondent leased on $5,000bond. Court Appeals for the Ninth Circuit affirmed. Ziglar, (2002).

Kim v. § 276 F. 3d 523 That court held that 1226(c) violates substantive process due applied to re- spondent permanent because he is a resident Id., alien. 528. It permanent noted that resident aliens constitute most category favored they aliens and that right have the permanently reside in the United States, to here, work apply and to for citizenship. Ibid. The recognized court rejected the Government’s principal justifications two for mandatory 1226(c): (1) detention under ensuring the presence of criminal aliens at their removal proceedings; and (2) protecting public dangerous from criminal aliens. The Court Appeals justification discounted the first be- cause it found that not all pursuant aliens detained 1226(c) ultimately would deported. be Id., at 531-532. And it justification discounted second on the grounds that the aggravated felony classification triggering respond- ent’s detention included crimes that the court did not con- sider “egregious” or otherwise sufficiently dangerous to the public to necessitate mandatory Id., detention. at 532-533. Respondent’s crimes of first-degree burglary (burglary of an inhabited dwelling) petty theft, for instance, the Ninth Circuit dismissed as ordinary “rather crimes.” Id., at 538. Relying upon our recent decision Zadvydas v. Davis, 533 (2001), U. S. 678 Appeals Court of concluded that the INS provided had not justification “for no-bail civil detention sufficient to overcome a permanent lawful resident alien’s liberty interest.” 276 3d, F. at 535.

516

Three other Courts of have Appeals reached the same con- See Patel Zemski, clusion. v. (CA3 275 F. 3d 299 2001); Welch Ashcroft, Hoang v. (CA4 v. Com- 293 3d F. 213 2002); fort, (CA10 282 2002). F. 3d 1247 The Seventh Circuit, how- ever, rejected constitutional 1226(c) §to challenge aby per- resident alien. Parra Perryman, manent v. 172 3dF. 954 (1999). We certiorari to granted resolve this conflict, see S.U. 956 (2002), and now reverse.

r—1 We address first the that 8 argument 1226(e) U. S. §C. de- us of prives to jurisdiction hear this case. See Florida v. Thomas, (2001) U. S. the (“Although parties did not raise the issue their briefs the merits, we must first consider whether we have to jurisdiction decide case”). An amicus and the argues, concurring opinion agrees, § 1226(e) the deprives federal courts of jurisdiction to grant habeas relief to aliens their challenging detention under 1226(c). See Brief for Washington Foundation et Legal al. as Amici Curiae. 1226(e) Section states:

“(e) Judicial review “The Attorney General’s discretionary re- judgment the garding application of this section shall not be sub- ject review. No court set aside may action or any decision by General Attorney under this section re- garding or release of alien or any grant, revocation, or denial of bond or parole.” The amicus argues that respondent a “deci- contesting sion by Attorney General” to detain him under 1226(c), and that, no accordingly, court set aside may that action. Brief for Washington Legal Foundation et al. as Amici Curiae 7-8.

But respondent does challenge “discretionary judg- ment” Attorney General or a “decision” the At- General torney has made his regarding detention or release. respondent Rather, challenges the statutory framework that permits his detention Perryman, bail. without Parra (“Section 1226(e) supra, at 957 likewise challenges deals with operational decisions, rather legislation than estab- lishing decisions”). the framework for those Court

This has held that Congress “where pre- intends judicial clude review of constitutional claims its to do intent so be must clear.” (1988); Doe, Webster v. 486 U. 592, S. see also (1974) (hold- Johnson v. Robison, 415 U. S. 361, 367 “ ing provision barring review of ‘decisions of the Ad- any ministrator question any law or fact under law by administered the Veterans’ providing Administration ben- ” efits for (em- veterans’ did not bar challenge constitutional deleted)). phasis provision And, a where precluding review is claimed to bar review, habeas required Court has particularly clear statement is Congress’ such intent. Cyr, See (2001) INS v. St. U. S. (holding 308-309 provision, that title of Custody “Elimination of by Review Corpus,” along Habeas with broad statement of intent to preclude review, was not sufficient to bar review of habeas corpus petitions); id., see also (citing refusing cases find bar to habeas review where specific there was no men- tion of the Court’s authority petitions); hear habeas id., at 327 (Scalia, J., dissenting) (arguing that opinion established superclear “a ‘magic statement, requirement words’ congressional expression of” preclude an intent to ha- review). beas 1226(e) Section explicit contains no provision barring ha- beas review, and we think that its clear text does not bar respondent’s challenge constitutional legislation to the au thorizing his detention without bail. II

Having determined that the jurisdic- federal courts have tion to review a constitutional challenge 1226(c), pro- we ceed to review respondent’s 1226(c) claim. Section man- during proceedings

dates detention for a limited deportable including class of those convicted an aliens— aggravated felony. Congress against adopted provision backdrop of wholesale failure with in- to deal INS creasing activity by e.g., rates of criminal See, aliens. Aliens in the Hearings Criminal United States: before the Permanent on Investigations Subcommittee of the Senate Cong., Committee on Governmental Affairs, 103d 1st Sess. (1993); (1995) (hereinafter Rep. p. Rep. 104-48, S. No. S. 104-48) (confinement of criminal aliens mil- alone cost $724 1990). lion in growing seg- Criminal aliens were the fastest prison population, already ment of the constituting federal roughly prisoners, they rap- 25% of all federal formed a idly rising prison populations share of Id., state as well. Congress’ 6-9. investigations showed, however, that could identify deportable INS not even aliens, most much less locate them and remove them country. from Id., study at 1. One showed that, at the then-current rate of deportation, years it every would take 23 to remove criminal already subject alien deportation. Id., Making at 5. worse, matters deported criminal aliens who swiftly were country reentered illegally great Id., numbers. at 3. inability The INS’ near-total deportable to remove crimi- imposed nal aliens monetary more than a cost on the Nation. Congress First, explained, “[a]liens who enter or remain in the United States effectively violation of our law are taking immigration opportunities might otherwise be (1996). extended to Rep. p. others.” S. 104-249, No. 7 Sec- deportable ond, criminal aliens who remained the United States often being committed more crimes before removed. study One 1986 that, showed after criminal aliens were iden- deportable, tified as 77% were arrested at least once more nearly multiple half—were arrested times before 45%— deportation their proceedings began. even Hearing on H. R. 3333 before Immigration, the Subcommittee on Refu- gees, and International Law the House Committee on the Judiciary, Cong., (1989) 101st (hereinafter 1st Sess., 54, 52 1989 House Hearing); Zadvydas, see also S.,U. 713- 714 (Kennedy, J., dissenting) (discussing high rates of recidi- aliens). vism for released criminal

Congress also had before it evidence major that one of the causes of the INS’ failure deportable to remove criminal agency’s aliens was the failure to detain during those aliens deportation their proceedings. Department See of Justice, Inspector Officeof the Immigration General, and Naturaliza- tion Deportation Service, of Aliens After Final Orders Have (Mar. Been Rep. 1996), (herein- Issued, No. 1-96-03 App. 46 (“Detention Inspection after Report) key to effective de- portation”); see also Rep. H. R. (1995). p. No. 104-469, Attorney General at the time had broad discretion to conduct individualized hearings bond and to release criminal aliens from custody during their removal proceedings when those aliens were present determined an excessive flight risk or threat society. 1252(a)(1982 See 8 U. C.S. ed.). Despite this discretion to hearings, conduct bond how- practice ever, in the INS faced severe limitations on funding space, which considerations affected its release (“[Rjelease Rep. determinations. S. 104-48, at determi- nations are made in large part, INS according to the number of beds particular available in region”); see also Reply Brief for Petitioners 9.

Once released, more than 20% deportable criminal aliens failed appear for their hearings. See Rep. S. 104-48, 2; see also Brief for Petitioners 19.4 The

4Although the Attorney General had authority to release these aliens on bond, it is not clear that all of the aliens released were in given fact individualized bond hearings. See Brief for (“[M]ore Petitioners than 20% of criminal aliens who were released on bond or otherwise not kept in custody throughout their deportation proceedings failed to appear for those proceedings” (emphasis added)), citing S. Rep. 104-48, at 2. The evidence does suggest, however, that many deportable criminal aliens in this “released criminal aliens” sample received such determinations. See at 562-564 (opinion statistic, post, that

dissent disputes con- study a subsequent on to J.), praise but goes Souter, con- more than of Justice Institute Vera the ducted the dissent explains, As the Post, 565-566. it. at firms criminal those [deportable “77% of found that Vera study their removal pro- for showed up released on bond” aliens] four out of one This Post, finding at 565. ceedings. —that the com- to absconded prior bond aliens released criminal striking even more of his removal proceedings pletion —is be- evidence in the rate reflected the one-in-five flight than Insti- 1226(c).5 The Vera it when fore adopted Congress that, even concern Congress’ tute study supports strongly criminal releasing deportable screening, with individualized of flight. rate lead an unacceptable would to aliens on bond times laws several amended immigration Congress limited 1988, In Congress of the 1980’s. the end toward risk flight that, for for not evaluated (noting aliens Brief Petitioners for 40%). doubled skip rate hearing, prehearing at a bond that “92% crimi study that the demonstrated The dissent also claims attended conditions supervisory under . . . who were released nal aliens J.). SOUTEK, study Post, (opinion at hearings.” all of their through for criminal rate manage appearance raise did Program Assistance Appearance as the program known supervision (AAP). First, included study limited study But the AAP is of value. charged and who, prison were released from only respondent, 16 aliens like felony. 1 Vera Insti on the of an being deportable aggravated with basis Evalua INS: An Justice, for the Community Supervision Testing tute of 2000). 33-34, (Aug. Program, pp. Appearance Assistance tion study addition, were admitted into study 127 aliens in AAP all community family and “strength after being screened group apply ties, eligibility prior legal proceedings, rates in appearance id., this selec Id., 13; Following at see also at 37. legal remedy.” for a “supervision frequent, ongoing tion staff were in communication process, id., re things, required other participants,” through, among with sessions, visits, retaining legal periodic home assistance porting id., event, in And, seeks an respondent at 41-42. representation, any The dissent’s supervision.” bond hearing, “community dividualized likely under conditions are supervisory claim criminal aliens released 565,therefore, the point. beside hearings, post, totally their attend

521 Attorney custody determina- General’s discretion over deportable respect had been con- with aliens who tions aggravated VII, L. Tit. 100-690, of felonies. See Pub. victed 7343(a), § Congress Then, 1990, 4470. broadened 102Stat. felony,” “aggravated subjecting crimi- more of the definition mandatory Tit. 101-649, detention. See Pub. L. nal aliens to 501(a), § however, 5048. At Con- time, Stat. the same V, (1988 1252(a)(2)(B) § provision, gress new a U. S. C. added II), authorizing Attorney Supp. release ed., General during permanent deportation proceed- their resident aliens flight ings such aliens were found not to where constitute community. 101-649, threat to the L. Tit. risk or See Pub. 504(a)(5), 104 Stat. 5049. V,

During period Congress making same which was immigration changes laws, to the it was also con- incremental sidering pre- wholesale reform of those laws. Some studies Congress suggested that of criminal sented to during proceedings might the best their be way country. to ensure their successful removal from this g., Hearing Inspection Report, App. See, 75; e. House (“Congress requir- Rep. consider 46; 104-48, S. at 32 should aggravated deporta- ing pending detained that all felons be may step necessary high tion. Such a be because of rate bond”). It no-shows for those criminal aliens released on following Reports Congress those enacted 8 U. S. C. Attorney requiring General to detain subset of deportable pending criminal aliens a determination their removability. power

“In the its broad exercise of over naturalization regularly immigration, Congress makes rules that would unacceptable applied be Diaz, if to citizens.” Mathews v. (1976). 426 U. 79-80 The seeks to S. dissent avoid this immigration by repeatedly premise fundamental law refer- ring (opinion Post, 547-549, to it as “dictum.” n. 9 J.). Mathews, however, Court made the Souter, statement the dissent now seeks to avoid in reliance on clear

precedent establishing toward “‘any policy aliens is vitally and intricately interwoven with contemporaneous policies in regard the conduct of relations, foreign the war power, and the maintenance of a republican form of gov ” ernment.’ S.,U. at 81, n. 17 Harisiades (quoting Shaughnessy, 342 U. 680, S. (1952)). 588-589 And, since Mathews, has Court firmly repeatedly endorsed the proposition that Congress may make rules as to aliens that would be if e.g., unacceptable applied to See, citizens. Zadvydas, S.,U. at 718 (Kennedy, (“The J., dissenting) liberty of the aliens rights before us here are to limi subject tations and conditions not applicable to citizens”); Reno v. Flores, 292, U. (1993) S. 305-306 (“Thus, ‘in the exercise of its broad power over immigration and naturalization, “Congress makes regularly rules that would be unacceptable ’” if applied Fiallo citizens” Bell, (quoting v. U. S. 792 (1977), in turn Mathews, supra, quoting at 79-80)); United States Verdugo-Urquidez, 494 U. S. 259, 273 (1990).

In his habeas corpus challenge, respondent did not contest Congress’ general authority remove criminal aliens from the United States. Nor did he argue he himself was not “deportable” within the 1226(c).6 § meaning Rather, 6Respondent’s concession this score is relevant for First, two reasons: because of the concession, respondent by his own choice did not receive one of the procedural protections otherwise provided to aliens detained 1226(c). § under And, second, because of the concession we do not reach a contrary argument raised respondent for the first time in his brief on the merits in this Court. Specifically,in his merits, brief on the respond ent suggests that he might not subject be 1226(c) detention under after all because his 1997 conviction for petty theft with priors might not qualify anas aggravated under felony recent Ninth Circuit precedent. Respondent now states that he intends to argue at his next removal hear ing that “his 1997conviction does not constitute an aggravated felony ... and his 1996 conviction [for first-degree burglary] does not constitute either an aggravated or a felony crime involving moral turpitude.” Brief for Respondent. 11-12. As respondent has conceded that he is deportable for purposes of his 1226(c) habeas corpus challenge to at all previous stages of this proceeding, see n. supra, we decide the case on that basis. respondent argued may that the Government not, consistent with Due Process Clause of the Fifth Amendment, detain period necessary him for the brief proceed- for his removal ings. The dissent, after an initial detour on the re- issue of spondent’s post, (opinion concession, see at 541-543 of Sou- J.), acknowledges ultimately the real issue this case. ter, (ex- Post, Opposition 555-556, n. 11; see also Brief in 1-2 plaining respondent’s “challenge solely to Section 1226(c)’s detention”). prohibition absolute on his release from

“It is well established that the Fifth Amendment entitles process deportation due proceedings.” law supra, Flores, At the same time, 306. however, this recognized during Court has deportation pro- ceedings constitutionally aspect deportation valid process. century ago, deportation As we said than a more proceedings “would be vain if those accused could not held be custody pending inquiry into their true character.” Wong (1896); Wing States, v. United 163 228, U. S. 235 see supra, also Flores, at Zadvydas, 305-306; 533 U. 697 constitutionally (distinguishing questioned detention there at pending issue from “detention a determination of removabil- ity”); id., dissenting) (“Congress’ J., at 711 power (Kennedy, to detain aliens in connection with removal or exclusion .. . part Legislature’s is authority considerable over immi- matters”).7 gration (1952),

In Landon, Carlson v. 524 U. S. the Court con- challenge sidered a to the detention of aliens who were deportable participation of their because ac- Communist confusion, Lest any there be he is “de- emphasize we that by conceding and, hence, portable” 1226(c), to subject mandatory detention under re- spondent did not concede that he will ultimately deported. be As the Post, notes, dissent has applied for respondent withholding of removal. Souter, J.). at 541 (opinion of fact, 1907 there was prior provision no any bail for permitting §20, 34 aliens of their during pendency deportation proceedings. See Stat. 905.

tivities. The deny they detained did not aliens that were Party they members of the Communist that were there- deportable. fore Id., respondent Instead, at 530. like present they challenged case, their detention on the grounds finding that there they had no been that were un- likely appear deportation for proceedings their or- when dered to Id., do so. at 531-532; see also Brief Petitioner Landon, Carlson v. p. O. T. (arguing No. legislative justify determinations could “depriving not [an alien] liberty of his personal without facts to the individ- ual”). Although Attorney ostensibly General had dis- cretion to release detained Communist aliens on bond, the adopted INS had policy a refusing grant bail to those light aliens in of what Justice Frankfurter viewed as the “conception mistaken Congress [alien had made Com- munists] (dis- in effect unbailable.” S.,U. at 559, 568 senting opinion). rejected

The Court they aliens’ claims that were enti- tled to be they released from detention if pose flight did “[detention explaining risk, necessarily part of this de- portation procedure.” Id., 538; see also id., at 535. Court Congress noted that had chosen to make such deportable “understanding based on its [Communists’] at- titude toward the use of force accomplish and violence ... political their Id., aims.” at 541. And it concluded that the deny INS could “by bail to the detainees reference to the legislative any scheme” even without finding flight risk. (Black, (“Denial Id., at 543; see also id., at 550 dissenting) J., [of bail] ground was not on [the that if aliens] released might try possible to evade obedience deportation or- ders”); id., at and n. 6.

The argues dissent though that, even in aliens Carlson were flight risks, findings “individualized dangerous- of ness were made” as to each of the (opin- Post, aliens. at 573 J.). ion of again, The dissent, is mistaken. The Souter, aliens in Carlson had not been individually found dangerous.

525 The evidence them was against their in membership the Communist and “a Party ... of in degree participation Communist activities.” S.,U. at 541. There was no “individualized of findin[g]” future likely dangerousness of the aliens in any and, at least one case, there awas specific finding nondangerousness.8 Court nonethe- less concluded that the denial of bail was permissible “by reference to legislative scheme to eradicate the evils of Id., Communist at 543.9 activity.” London, See Carlson v. S., (Black, 342 U. at J., dissenting) (noting “

that, case, in at least one the alien involved had been found ‘not likely in engage any subversive added)); (emphasis id., activities’” also see “ 550, n. 5 (quoting the District Judge’s in case finding No. 35 that ‘I don’t know whether it is true ... that their dangerous release is security to the ”); id., (“[T]he of the United States’ at 552 agent bureau is not required to ” prove that a he person throws jail in is ... ‘dangerous’ added)); (emphasis id., see (Frankfurter, J., (“[T]he also at 567 dissenting) Attorney General ... did not deny bail from an individualized estimate of ‘the danger to the ” public safety person’s] [each presence within community’ (empha added)). sis 9Apart from its error with respect to the dangerousness determination, the dissent attempts to distinguish Carlson from the case present by ar “ ” that guing the aliens in Carlson had in engaged ‘personal activity’ “ support political party Congress ‘a considered menace to the pub- ” Post, J.). (cid:127)lie.’ at 569 (opinion of Souter, that suggesting ais distinction, the dissent ignores “personal activity” that aliens re like spondent have undertaken in committing crimes that subject them to detention in the first personal activity that has been determined instance — with far greater procedural protections than any finding “active mem bership” Party Communist involved in Carlson. See 342 U. (“[T]he Director made allegation[s], affidavits, supported by that the Service’s dossier of each petitioner contained evidence indicating himto that each was at the time of arrest a member of the Party Communist of the United States and had since 1930 ... participated the Party’s others”). indoctrination of case, In the present respondent became “de- 1226(c) portable” under only following criminal convictions that were se cured following full procedural protections. convictions, These moreover, reflect “personal activity” Congress considered relevant to future dangerousness. Davis, (2001) Cf. Zadvydas 533 U. S. (Ken nedy, J., dissenting) (noting “a criminal record accumulated by an

In Reno (1993), Flores, 507 U. S. 292 the Court consid- ered process another due challenge to during detention de- portation proceedings. process The due challenge there brought by was of juveniles. class alien The had ar- INS rested them and holding custody them in pending their deportation hearings. The aliens challenged policy the INS’ of releasing juveniles detained alien only into the care parents, their legal guardians, or certain other adult rela- g., tives. See, id., e. (citing at 297 Detention and Release (1988) Juveniles, (codified Reg. Fed. deporta- to (1992))). tion at 8 CFR 242.24 policy improperly The argued aliens that the “upon

relied a ‘blanket’presumption of the unsuitability of custodians other parents, than close rela- guardians” tives, and to care for the juvenile detained aliens. 507 S.,U. at 313. In rejecting argument, the Court em- phasized that presumptions “reasonable generic and rules,” even when made the INS rather than Congress, are not necessarily impermissible exercises Congress’ traditional power legislate respect with Ibid.; aliens. see also (“In id., at 313-314 the case of each detained juvenile, alien the INS makes those determinations specific that are to the individual and necessary application accurate regu- lation .... particularization go individuation need this”). no further than Thus, as prior with the challenges during detention deportation proceedings, Court rejected Flores process the due challenge upheld constitutionality of the detention.

Despite this Court’s longstanding view that the Govern- may ment constitutionally deportable detain during period limited necessary for their removal proceedings, respondent argues that the narrow policy reflected § 1226(c) in 8 U. S. C. violates process. due Respondent, like admitted alien” is a good indicator of future danger, and that “[a]ny sug- gestion that aliens who have completed prison terms no longer present a danger simply does not accord with the reality a significant risk may exist”). still 1226(c) the four Appeals Courts of that have held to be unconstitutional, heavily upon relies opinion our recent (2001). Zadvydas Davis, 533 U. S. 678 Zadvydas, In process Court considered a due challenge (1994 to detention of aliens under 8 U. S. C. Supp. ed., V), governs which following detention a final order of re- 1231(a)(6) provides, moval. Section among things, other that when an alien who has been ordered removed is not in fact during removed 90-day statutory period,” “removal “may that alien beyond be detained period” the removal in the discretion Attorney General. The Court in Zadvydas read 1231 to authorize continued detention of an following alien 90-day period for time such reasonably as is necessary to secure the alien’s removal. 533 U. at 699. Zadvydas

But is materially present different from the case respects. two Zadvydas, First, in challenging aliens their detention following final deportation orders of were for ones re- whom moval longer “no practically Id., attainable.” at 690. The Court thus held that the detention there did not serve purported its immigration purpose. Ibid. In holding, so rejected the Court the Government’s claim that, detain- ing the aliens prevent involved, it could fleeing them from prior to their removal. The Court observed that where, as there, goal “detention’s longer is no practically attainable, longer detention no bears a pur- reasonable relation to the pose Ibid, for (inter- which the individual was committed.” quotation omitted).10 nal marks and citation present statutory ease, the provision gov- at issue erns deportable detention of pending criminal aliens their 10The dissent denies this point, insisting that the detention at issue in Zadvydas actually did bear a reasonable relation to immigration its pur Post, Soutek, pose. at 561 J.) (opinion (“[T]he Zadvydas statute . .. served the purpose of preventing aliens . . . from fleeing prior to actual deportation”).

removal proceedings. necessarily Such detention serves purpose preventing deportable criminal aliens from fleeing prior during to or proceedings, their removal thus increasing the that, chance if removed, ordered the aliens will successfully Respondent be disagrees, removed. ar- guing that mandatory there is no evidence that necessary because the Government has never shown that hearings individualized bond would be ineffective. See Respondent Brief 14. But as supra, discussed above, see § 1226(c), adopting 519-520, in Congress had before it evi- suggesting permitting dence discretionary release of pending hearings their removal large would lead to deportable numbers skipping criminal aliens their hear- ings remaining large at in the unlawfully. United States

Respondent argues that these statistics are irrelevant and do not demonstrate that hearings individualized bond “are ineffective burdensome.” Respondent Brief for 33-40. It is § of course true Congress that when 1226, enacted indi vidualized bail determinations had not op been under tested timal conditions, possible or tested in permutations. all their But when the deportable Government deals with aliens, the Due require Process Clause does not employ it to the least burdensome to accomplish means goal. its The evidence Congress certainly had before it supports approach it hypothetical selected even if other, might studies sug have gested different courses of g., action. Angeles Cf., e. Los Books, Inc., Alameda (2002); 535 U. S. 425, 436-437 Flores, (“It supra, may at 315 well be that policies other would be better, [not] even legislature but ‘we are a charged with formulating public policy’” (quoting Martin, Schall v. 467 (1984))). 253, U. 281 S.

Zadvydas materially is present different from the case in respect a second period well. While the of detention at Zadvydas issue in “potentially perma- “indefinite” and nent,” 533 at U. 690-691, the detention here is of a much shorter duration.

Zadvydas it was distinguished statutory provision from 1226 on these considering there noting very grounds, pend- unlike detention detention, “post-removal-period ing removability a determination . obvious , . . has no Id., at added). termination Under point.” (emphasis §1226(c), not does detention have a definite termination in the of cases it lasts for the 90 less than majority point, Zadvydas.11 we considered valid in days presumptively that, Executive Office Review has calculated Immigration 85% of the cases in which aliens are detained pursuant 1226(c), removal are in an average proceedings completed and median of 30 for Petition- time of Brief days days. cases, In the 15% of the alien ers 39-40. which remaining the Board the decision immigration judge appeals of four takes an Appeals, appeal average Immigration Id., months, with a median time that shorter. at slightly 40.12 not include the in which

These statistics do cases many while still are the alien is completed proceedings Id., time for the conviction. underlying serving scheme did Zadvydas “[t]he concedes that considered The dissent usually .... immediately [CJustody hearings review provide review unit.” postorder within months of a transfer to occurred three J.). Post, Yet, in present discussing (opinion SOUTER, n. case, process that “the due of an individu requirement the dissent insists to detention shorter than” re necessity applies periods of finding alized Martin, 253, 270, Post, 568, Schall v. 467 U. S. (citing n. spondent’s. (1984), was to a when hearing” in which “the detainee entitled 276-277 period days”). of 17 The dissent “a maximum detention threatened with entitled to an suggestion reconcile its aliens are makes no to attempt to be Zadvydas permitting holding with immediate hearing a hearing. to such months prior detained for several 1226(c) § is not the detention at stake under time of very limited J.) (“Success (opinion at 568 Souter, See by post, missed the dissent. ibid, months”); po (considering “[t]he ful several challenges require often confinement”); at 549 post, but see [worth] tential months several detention”). (“potentially lengthy n. 17.13 In cases, those the aliens involved are never sub- to jected detention at In sum, all. mandatory the detention 1226(c) § at stake under lasts a month a half roughly and the vast of cases in which it majority invoked, and about five months in the of cases in minority which the alien chooses to appeal.14 detained Respondent for some- has Congress directed INS to identify track deportable crimi nal aliens while they are still in the justice criminal and to com system, plete removal against them as proceedings promptly possible. See Antiterrorism and Effective 1996, 104-132, Death Act of Penalty L. Pub. §§432, 438(a), 1273-1276; 110 Stat. Illegal Immigration Reform and Immi grant 1996, Responsibility 104-208, Act of §§326, 329, Pub. L. 110 Stat. (codified §1228). 3009-630 to 3009-631 at 8 U. S. C. The INS therefore (IHP) established the Institutional Hearing Program sub (subsequently sumed under the “Institutional 1997, Removal Program”). By the Gen eral Accounting Office nearly found that half of all deportable criminal aliens’ cases were completed through prior the IHP to the aliens’ release prison. from See Office, Accounting General Report Chairman, to the Subcommittee on Immigration and Claims of the House Committee Judiciary, INS’ Efforts to Remove Imprisoned Aliens Continue to Need (Oct. 1998). Improvement 1Fig. however, The report urged, that the INS needed improve operations its in order to complete removal pro ceedings all against deportable criminal Id., aliens before their release. at 13. 1226(c) Should course, pass, come to and the temporary detention it mandates would be rendered obsolete. 14Prior to 1226(c), enactment of when the vast majority deport- able criminal aliens were not detained during their deportation proceed ings, filed many frivolous appeals in order to delay their See deportation. 104-48, S. Rep. at 2 (“Delays can earn criminal aliens than more work permits wages they delay long enough they may even obtain U. S. —if citizenship”). Cf. Zadvydas, (Kennedy, J., 533 U. at 713 dissenting) (“[C]ourt ordered release cannot help but encourage dilatory and obstruc aliens”). tive tactics Respondent contends that the of detention length required appeal may deter aliens from exercising right their to do so. Brief for Respondent 32. As we have explained before, however, “the legal system... is replete with situations requiring making of difficult judgments as to which follow,” and, course even in the context, criminal there is no constitutional prohibition against requiring parties make such choices. (1971) McGautha v. California, 183, 213 (internal 402 U. S. quotation marks omitted); accord, v. Stynchcombe, S.U. Chaffin (1973). 30-31 what than the longer six average spending months in INS — to the District custody Court’s order prior habeas granting relief, but himself had respondent requested continuance of his removal hearing.15

For the reasons set forth above, claim respondent’s must fail. Detention during is a constitu- proceedings g., Wong process. See, e. of that tionally permissible part Wing, (“We 163 U. S., at 235 it think clear that detention, or confinement, as temporary part means necessary effect to the give for the provisions exclusion or expulsion Carlson London, aliens would valid”); be v. 342 U. S. 524 Flores, Reno (1952); (1993). 507 U. S. 292 The INS deten- tion of a criminal who respondent, alien has conceded that he is for limited deportable, his period removal pro- is ceedings, governed these cases. The judgment Court of is Appeals

Reversed. Justice Kennedy, concurring.

While the justification 1226(c) for 8 U. S. C. is based upon the Government’s concerns the risks over and dan flight ante, at 518-521, to the ger community, ultimate purpose behind the detention is premised upon alien’s deportabil As a ity. due consequence, process requires individualized procedures ensure there least some merit to the Im migration and (INS) Naturalization Service’s and, charge therefore, sufficient justification to detain a lawful perma nent resident alien a more formal pending See hearing. Zadvydas v. Davis, 678, 690 (2001) (“[Wjhere U. S. deten tion’s is no goal longer attainable, practically detention no bears a longer reasonable relation to the for which purpose 15 Respondent was custody held in for three months before filing his habeas petition. His removal hearing scheduled to occur two months later, but respondent requested and received a continuance to obtain docu ments relevant his withholding application. See Brief Respondent 9, n. 12. (internal quotation individual committed” and marks omitted)); id.,

brackets at dissenting) J., (Kennedy, (“Liberty under the Due protection Process Clause includes against arbitrary personal unlawful or or restraint deten- tion”). If the satisfy Government cannot this minimal, threshold then burden, the permissibility of continued deten- pending tion deportation proceedings solely upon turns ability alien’s satisfy ordinary procedures— bond namely, whether if pose released alien would a of risk flight danger or a to the community. Id., at 721 (Kennedy, dissenting). J.,

As the procedures notes, Court these apparently were respondent available to Respondent this case. was enti- tled hearing to a in which he could any “raise[d] have non- argument frivolous available to demonstrate that he was properly in mandatory included a category.” detention Ante, 3.19(h)(2)(ii) (citing and n. 3 (2002); 8 CFR (BIA Joseph, Matter 1999)). 22 I. & N. Dec. 799 Had he prevailed in such proceeding, Immigration Judge then would have had to respondent determine if “could be consid- ered ... for general release under the provisions” bond 1226(a). Id., at Respondent, 809. however, did not seek relief under procedures, these and the Court had no occasion here to determine adequacy. their Ante, at 514, n. 3.

For similar reasons, since the Due pro- Process Clause arbitrary hibits deprivations liberty, permanent a lawful resident alien respondent such could be entitled to an indi- vidualized determination as to flight his risk danger- ousness if the continued detention became unreasonable or unjustified. Zadvydas, U. at 684-686; id., at (“[AJliens J., dissenting) (Kennedy, are entitled to be free from detention arbitrary that is or capricious”). Were there to be an delay unreasonable in pursuing INS and com- pleting deportation proceedings, it could necessary become inquire then to whether the is not to facilitate de- portation, or protect against flight risk of dangerous- ness, but to incarcerate other reasons. That is not a proper statutory inference, however, either from the scheme or from the itself circumstances of this case. The Court’s opinion careful premises, join with these consistent and I it full. with whom Justice and Jus- O’Connor,

Justice Scalia join, concurring part concurring in the tice Thomas judgment. join opinion all but I

I Part of the major- because, Court’s ity having jurisdiction, agree there I determined with the respondent’s challenge Court’s resolution of on the merits. join 1226(e) § I cannot Part I because I 8 believe that C. U. S. unequivocally deprives jurisdiction federal courts of to set “any aside by Attorney action or decision” the General in 1226(c) § detaining criminal under pro- while removal ceedings ongoing. precisely are That is the nature of the action before us.

I begin I with the of the text statute: Attorney

“The discretionary judgment General’s re- garding application of this section shall not be sub- ject may review. any No court set aside action or by Attorney decision General under this section regarding any the detention or release of alien or the grant, 1226(e) § parole.” or denial revocation, of bond or added). (emphasis dispute

There is no respondent’s that after release from prison Attorney in 1999, General detained him “under § section,” e., i. under 1226. And, the action of which respondent complains “regarding is one the detention or re- a[n] lease of grant, alien or the revocation, or denial of bond 1226(e). § parole.” or my only plausible view, the read- 1226(e) § ing of Congress is that prohibit intended to federal courts “set[ting] from Attorney aside” the General’s decision

to deem respondent ineligible criminal alien such as during release the limited duration of his or her removal proceedings. recognize

I “strong presumption both the judi in favor of cial review of administrative “longstanding action” and our requiring rule congressional clear statement of intent repeal jurisdiction.” habeas Cyr, INS v. St. U. S. (2001). acknowledge Congress I also will not be repealed deemed to jurisdiction have habeas in the absence specific unambiguous of a statutory directive to that ef fect. parte id., See at 312-313; Yerger, Ex Wall. (1869). signal Here, however, the Congress sent 1226(e) enacting could not be may clearer: “No court set any aside action or regarding decision . .. added.) any

release of (Emphasis alien.” simply There is no way reasonable language to read this pre other than as cluding all including review, habeas Attorney review, of the General’s actions or decisions to detain pursu criminal aliens 1226(c). ant to Cyr,

In St. Court provisions held certain Antiterrorism and Penalty Death Effective Act of 1996 (AEDPA) Illegal Immigration Reform and Immi- grant (IIRIRA) Responsibility Act of 1996 strip do not fed- eral jurisdiction courts of their to review an alien’s habeas claim that he or eligible she is for a deportation. waiver of S.,U. at I 312. dissented that case, and continue to believe it wrongly was Nothing decided. Cyr, St. how- requires ever, ignore that we plain the language and clear 1226(e). § meaning Cyr,

In St. the Court significance stressed the Congress’ use “judicial of the term jurisdictional- review” each the limiting provisions at issue. In concluding Congress that had not intended to limit jurisdiction habeas by limiting “ju- dicial review,” the Court reasoned as follows: ‘judicial

“The term ‘jurisdiction review’ or to review’ is the focus of each of provisions. these three im- the migration ‘judicial context, corpus’ review* and ‘habeas historically have meanings. distinct See Heikkila v. (1953). Barber, 345 U. S. 229 In Heikkila, the Court finality concluded the provisions that ‘pre- issue cluded] judicial review*to the possible maximum extent the under Constitution, [Ad- and thus concluded that the Act] ministrative Procedure inapplicable. Id., at 235. Nevertheless, the Court right reaffirmed the corpus. habeas Ibid. Noting that role limited by played the courts in corpus habeas proceedings was far judicial narrower than review authorized APA, the Court concluded scope that ‘it is inquiry corpus on habeas that differentiates’ habeas from review ‘judicial Id., review.’” at 311-312. 1226(e) §

In this case, however, does not mention any limita- “judicial tions on review.” To be sure, the first sentence of 1226(e) § precludes “review” Attorney General’s “dis- cretionary judgment[s]” 1226(c). to detain aliens under But the second sentence unequiv- limited, so and states ocally “[n]o may any court set aside action or decision” 1226(c). to detain an alien under It seriously cannot be maintained that the second employs sentence a term of art such that “no really court” does not mean “no court,” Attorney decision of the may General not be “set aside” in actions Immigration filed under the Act Naturalization but may be set aside habeas review.

Congress’ use of the term “Judicial review” as the title of § 1226(e) compel does not a different conclusion. As the Court Cyr, stated in St. “a alone title is not controlling,” id., because the title of a power has statute no give what the text of away. the statute takes Where as here “ statutory text is clear, ‘the of a title statute... limit cannot plain meaning of the Pennsylvania text.’” Dept. of Yeskey, (1998) Corrections v. 524 S.U. 212 (quoting Trainmen v. Baltimore & Co., R. Ohio 331 U. S. 519, 528- (1947)). 529 Cyr Court also in focused St. any absence of

language statutory in the provisions relevant making explicit § reference to habeas review under 28 U. S. C. 2241. See 533 S.,U. at 313, n. 36. statutory This spoke silence volumes, light Court reasoned, §2241 of the “historic use jurisdiction as a means of reviewing deportation and exclu sion orders,” ibid. In contrast, there is no analogous history of routine reliance on jurisdiction habeas to challenge the detention of aliens pending without bail the conclusion of re proceedings. moval We have entertained challenges such only twice, and neither was successful on the merits. See (1993); Reno Flores, 507 U. S. Carlson v. Landon, 342 (1952). U. S. See also Corpus, Neuman, Habeas Execu tive Detention, and the Removal of Aliens, 98 Colum. L. Rev. (1998) 961, 1067,n. 120 (distinguishing pursuant a final order of removal interlocutory from the detention at here). issue Congress’ § failure to mention 2241 this con text significance therefore lacks the that the Court accorded Congress’ silence on the issue Cyr. in St. In nothing sum, Cyr requires in St. 1226(e) § us interpret 8 U. S. C. to mean anything other plain than what its language says.

I recognize the two Appeals Courts of that have 1226(e) § considered the have issue held that pre does not clude habeas claims respondent’s. such as See Patel v. Zem (CA3 ski, 275 F. 2001); 3d 299 Perryman, Parra v. 172 F. 3d (CA7 1999). Parra, the Seventh Circuit held that 1226(e) § 1226(c) does not bar “challenges to op itself, posed to decisions implementing that subsection.” Id., Though 957. opinion the Court’s today heavily relies on this I distinction, see no basis for importing plain it into lan guage of the statute.

The Seventh sought Circuit support from our decision Reno v. American-Arab Anti-Discrimination Comm., 525 (1999) S. (AADC), U. but holding our supports my there 1226(e). reading of In AADC, the Court construed a stat- ute that sharply limits review of “arising claims from Attorney by pro- or the General to commence action decision adjudicate against ceedings, or execute removal orders cases, (1994 §1252(g) [Act].” any 8 U. ed., this S. C. alien under III). provision Supp. imposes concluded that The Court addressing claims jurisdictional limits on one of the “ aetion[s]’” specifically ‘decisions] in or enumerated three supra, at AADC, 482. Nowhere in did AADC the statute. jurisdictional suggest, however, that the statute’s the Court depending particular grounds might apply on the limits Attorney challenging the General’s de- raised an alien for in three areas. therefore cisions actions these AADC imposing provides support artificial limitations on the no for 1226(e). § scope broad of 8 C. U. S. 1226(e) Because §plainly deprives federal habeas courts of

II jurisdiction mandatory detention under over claims that 1226(c) § conceivably argue could unconstitutional, one repeal Suspension provides Clause, such a the which violates Privilege Corpus shall “The of the Writ of Habeas follows: suspended, Inva not be unless when in of Rebellion or Cases public Safety may require Const., I, sion the it.” S. Art. U. 1226(e)’s § clarity ques 9, cl. 2. makes a text such Cyr, unavoidable, tion the Court invoked unlike St. where interpreted the constitutional the rele doctrine of doubt and repeal provisions vant of AEDPA not to habeas and IIRIRA jurisdiction. Cyr, supra, Tribe 314; see also Seminole St. (where (1996) Florida, 44, 57, Fla. v. n. 9 517 U. S. of text avoiding “preference a con clear, statute is question” plainly stitutional cannot be invoked defeat expressed Congress). intent of 1226(e) my any argument view, violates the Sus-

pension likely Cyr unavailing. Clause is held that “at St. protects Suspension minimum, absolute Clause (quoting writ ‘as it existed 1789.’” 538 U. (1996)). Turpin, Felker v. 518 U. The consti- S. 663-664 §1226(e)’s tutionality of limitation habeas review there- fore turns generally on whether the writ available to (or, position in respondent’s those possibly, there- after) challenge during proceedings.

Admittedly, discerning corpus the relevant habeas law for purposes Suspension analysis complex Clause task. suggests Nonetheless, historical respondent evidence permitted would not challenge have been temporary to his pending very detention removal until recently. Because co imposed lonial America immigration, few restrictions on prior there is little case law to that time the about availabil ity of challenge temporary habeas review to pend ing deportation. Cyr, exclusion or supra, See St. at 305. English experience, suggests however, that such review was not available: England, only

“In question the that has ever been made regard power expel the been has whether it could by King be exercised the without consent of formerly Parliament. It was by King, exercised but by later times passed Parliament, which several acts subject on the between 1793 and Eng- 1848. Eminent judges, sitting lish in the Judicial Committee of the Privy gone very Council, have supporting far in the ex- expulsion, clusion by or authority the executive of a col- ony, having of aliens right no absolute to enter its terri- tory or to Fong remain Ting therein.” Yue v. United (1893)(citations omitted). States, 149 U. S. country, In this Congress pass did not regulat- the first law ing immigration 3) until (pt. 1875. See 18 Stat. 477. In century, late 19th statutory controls on immigration tight- ened, the challenges number of brought by aliens to Govern- deportation ment or exclusion decisions also increased. See Cyr, St. supra, at 305-306. Because immigration federal laws from 1891 until express no provision made judi- cial review, what limited review existed pe- took the form titions for writs of corpus. habeas g., e. See, Ekiu v. United (1892); States, 142 Fong U. Ting S. 651 States, Yue v. United supra; The Japanese Immigrant (1908); Case, 189 U. S. 86 (1908); Chin Yowv. United States, 208 U. S. 8 Kwock Jan Fat (1920); White, 253 v. Ng U. S. 454 Fung Ho White, v. 259 U. S. (1922). Though willing Court was to entertain these challenges habeas deportation exclusion Government decisions, in no case did question the Court right of immi gration temporarily officials to detain aliens while exclusion deportation proceedings ongoing. were

By the century, mid-20th deporta- number of aliens in proceedings tion being parole considerably. released rose g., See, e. Carlson Landon, 342 S., U. n. 31. None- theless, until 1952 corpus petitions habeas remained the deportation means which challenged. orders could be (1953). Heikkila v. Barber, 345 U. S. 229, 236-237 Under regime, an alien paroled who had been but wished challenge deportation a final place order had to in himself custody Government filing before a petition challeng- habeas ing Bridges (1945). the order. Wixon, 326 U. S. this, Given it surprising is not that the Court was not faced with numerous brought by habeas claims seeking re- lease pending from deportation.

So far I am as aware, until did we entertain such challenge. a See supra. Carlson v. Landon, And there, we power Congress reaffirmed temporary order the during detention of aliens proceedings. Id., at 538. Flores, Reno v. rejected we likewise a challenge similar to such detention. And, Flores was wide-ranging class § action in which 28 U. S. C. 2241 was but one of several stat-

utes invoked as jurisdiction. the basis for federal 507 S.,U. at 296. All in appears it all, in and thereafter until very recently, the writ generally was not available challenge aliens to their detention proceed- while removal ings ongoing. were majority

Because juris- Court has determined that diction respondent’s exists over claims, I need not conclu- sively thorny question 1226(e) § decide the whether 8 U. S. C. violates the Suspension present Clause. For purposes, it is enough 1226(e) § say my that in view, unambiguously bars challenges Attorney habeas to the General’s decisions re- garding temporary detention of criminal aliens under 1226(c) pending removal. said, That majority because a the Court has jurisdiction, determined there and be- agree I cause majority’s with the resolution of the merits respondent’s challenge, join I in all but Part I of the opinion. Court’s Justice Souter, with whom Justice Stevens Jus- Ginsburg

tice join, concurring part dissenting part.

Respondent Klimis lawfully an alien perma- admitted to nent residence in the United States. He claims that the Constitution Immigration forbids the and Naturalization (INS) Service 1226(c) from detaining him under 8 U. S. C. unless his government detention serves a interest, such preventing flight danger community. to the He contends process that due right affords him a hearing to a before an impartial giving official,1 him a chance to show poses that he no risk justify that would confining him between the moment the Government claims he is removable adjudication and the of the Government’s claim. join

I Part I opinion, of the Court’s upholds which federal jurisdiction case, but I dissent from dispo- the Court’s

1Kim does not claim a hearing before any specific official. The general ity may of his claim fact, reflect the just below, noted that the INS released him bond any without hearing whatsoever after the District Court entered its in judgment this case. App. 11-13. Accordingly, is no there to enquire occasion whether due process requires any particular ‘access to arbiter, such as one unaffiliated with I the INS. therefore use the neutral term “impartial” describing hearing Kim claims. sition on The the merits. holding Court’s that the Constitu- permits tion the Government to up permanent lock a lawful country resident of this when there concededly is no reason forgets century do over precedent so of acknowledging rights permanent residents, including liberty the basic from physical lying confinement process. the heart due argued The INS has never detaining necessary isKim guarantee appearance his for proceedings removal2 toor protect anyone danger from in the meantime. Instead, shortly after District Court issued its order this case, sponte INS, sua and without holding custody even hearing, concluded that Kim “would not be considered a any threat” and flight risk of be could met a bond of App. $5,000. 11-13. He was released soon thereafter, and there is no indication that he is not complying with the terms of his release. approval Court’s lengthy mandatory detention can justification

therefore claim no emergency national any posed by risk particularly. Kim judgment The Court’s unjustified by past cases or current facts, respectfully and I dissent.

I At the outset, there is the suggestion Court’s mistaken that Kim removability, “conceded” his ante, 514, 523, n. 6, 531. The Court cites no any statement before court conceding removability, I and can op- find none. At the first portunity, applied Kim Immigration to for Court with- holding of removal, Respondent Brief 9, n. 12, and he 1996, Congress “deportation” combined and “exclusion” proceedings into a single “removal” proceeding. Illegal Immigration Reform and Im migrant Responsibility Act 104-208, 304(a), Pub. L. 110 Stat. 3009-587, adding 8 U. S. C. 1229a. this case Because requires consider ation of cases decided both before after opinion refers to but, “removal” generally where requires, context distinguishes be tween “deportation” of aliens who have entered the United States and “exclusion” of aliens who seek entry.

represents that he intends to assert his criminal convic- tions are not for removable independ- offenses and that he is ently eligible statutory for relief removal, from id., 11-12; see ante, also at 522-523, n. 6. his brief before Ninth Circuit, Kim stated that his removability open ques- was “an tion,” that he fighting [his] was “still removal adminis- tratively,” Immigration and that yet Court had hold hearing. a merits Brief of Petitioner-Appellee in (CA9), pp. No. 99-17373 4,13-14, 24,33-34, and n. 28, 48-49. argument At oral here, his counsel stated that Kim was chal- lenging removability. his Arg. See Tr. of Oral 36-38, 44. suggestion

The that Kim should have contested his remov- ability in corpus petition, this habeas ante, at 522-523, and n. 6, point misses the that all he claims, or could claim, now is that his detention pending proceedings violates Challenges Constitution. removability ap- itself, and plications for relief from usually removal, are submitted in the first immigration instance to an judge. See 8 U. S. C. 1229a(a)(3). § Immigration Judge yet had not held an hearing initial on the substantive removability issue of when Kim filed his petition habeas in the District Court, even though Kim had been detained over three months under 1226(c). If Kim’s corpus petition habeas had claimed “that he himself ‘deportable,”’ as Court suggests it should ante, have, at 522, the District Court would probably have dismissed the claim g., unexhausted. E. Espinal Filion, No. (SDNY, 00-CIV-2647-HB-JCF, 2001 WL 395196 2001). Apr. 17, Kim did not, “conced[e] therefore, that he is deportable,” by ante, at challenging removability before the Immigration Judge and challenging detention in a fed- eral court.3 3The Court’s effort to explain its reference to a nonexistent concession,

ante,- 522-523, n. gain seeks to an advantage from the fact that Immigration and Nationality Act uses the word “deportable” in various ways, one being describe classes of may aliens who be removed if the necessary facts are proven, e. g., 1227(a), and another to describe aliens who have actually been adjudged as being the United States unlawfully, Kim continue to claim may the benefit of his current status unless and until it is final terminated order removal. 8 (2002). CFR He therefore 1.1(p) claim the due may proc ess to which a lawful is resident entitled. permanent

n —I A It has been settled for over a that all aliens century within our are territory entitled to the “persons” of the protection Due Process Clause. Aliens in the United “residing States for a shorter time, entitled, are so as are longer long they permitted by government United States to remain in the to the country, the Constitution, and to safeguards of the laws, in to their protection regard rights person and and to their property, civil and criminal responsibil- ity.” Yue States, Fong United Ting 698, U. S. (1893). The Japanese Case, U. S. Immigrant 100- 101 (1903), settled doubt that any lingering the Fifth Amend- ment’s Due Process Clause aliens a to gives right challenge mistreatment of their person or property.

The constitutional of an protection alien’s and person prop- erty in the case particularly strong of aliens lawfully e. g., 1229b. An alien is not adjudged “deportable” until an order enters “concluding that the is deportable alien or ordering deportation,” and such an order is not final until affirmed the Board of Immigration Appeals or until the time expires 1101(a)(47)(A>-(B). for §§ seeking review. To suggest, do, the Court seems that an alien has conceded removability simply because he does not dispute that he has charged been with facts will render him removable if those facts are later proven is like saying that a civil defendant has conceded liability by to move failing to dismiss the complaint under 12(b)(6) Rule Federal of Civil Procedure or that a criminal defendant has conceded guilt by failing dispute the validity of the indictment. But even if sound, Court’s reasoning were it would situation, (and cover Kim’s for he has stated the Court acknowledges) his intent contest the sufficiency his criminal convictions as a basis Ante, for removal. 522-523, at discussion, n. 6. This which the Court “detour,” ante, calls a is necessary only because of the Court’s insistence stating that Kim Ante, conceded he is “deportable.” 513, 522, 531. (LPRs). immigration permanent residence admitted to perma a life opportunity to establish give LPRs the laws by developing familial, and country economic, nently in this fact, of a those citizen. indistinguishable ties from social way to goes its encour out of of the United States the law immigration prefer by creating age just such attachments C. relation, as a U. S. a citizen close for those with ences (3M4), 1153(a)(1), §§ professional those valuable and with promising benefits to the United skills or other assets 1153(b)(1)-(5). §§ States, they permanent residence, LPRs are

Once admitted they may enjoyed by citizens: in the freedom share economic private public jobs sectors with compete most in the apart job-specific authorization, from obtaining out public assistance, jury duty, of and certain forms franchise, indistinguishable of those generally from their lives are obligations goes as as well citizens. That United States nonimmigrant temporary, aliens, who opportunities. Unlike or generally on income from domestic sources are taxed LPRs, business, 872, S. C. connected with a 26 U. domestic 26 income, on their worldwide CFR citizens, like are taxed 1.871-2(b) (2002). 1.871-1(a), 1.1-1(b), §§ LPRs be Male register ages must under the Selec of 18 and 26 tween 605.4 1948, 625, I, §3, Act Tit. 62 Stat. tive eh. Service of pay support citizens, taxes, econ aliens, like “Resident omy, myriad Forces, contribute in the Armed and serve society.” 717, 413 ways In re U. S. other our Griffiths, (1973). they they may apply for full choose, if 722 And polity through naturalization. membership the national legal through mechanisms fostered these The attachments brought to the United for LPRs intense are all more They up grow of here as members as children. States with society probably without much touch their them, around considering citizenship, probably country the United of 4 registration from exemption discharge seek or may an LPR Although from LPR an action bars permanently such alienage, on the grounds 1426(a). 8 citizenship. U. S. C. States seeking United 545 just as home as much as a younger native-born, States sister entitled to citizenship. brother United States “[M]any resident aliens country longer have lived in and stronger family, social, established and economic ties here have some who become than Woodby naturalized citizens.” (1966). INS, 276, 385 S. 286 example. v. U. Kim is an He age to the moved United States at lawfully six permanent eight. residence admitted when he was His citizen, is a mother and his father and brother are LPRs. in Kim’s situation have LPRs little or no reason to feel or to any place firm with establish ties besides the United States.5 Our decisions have reflected early these As realities. as statutory 1892, we addressed an issue of construction with “foreigners the realization that who have become domiciled country in a acquire rights own, other than their and must discharge many respects duties in possessed by the same as imposed upon country, the citizens of that and no restric- footing upon tion on the persons which such stand reason presumed.” of their domicil of choice ... is to be Lau Ow Fifty years Bew States, v. United U. S. 61-62.6 later dealing question evidentiary competence with a in Brid- ges (1945), Wixon, v. U. S. we said that “the notions legal system applied fairness on which our is founded” may with full force to “aliens whose roots have become, (CA4 2002) (detainee See also Welch Ashcroft, 293 F. 3d 10); 1247, obtained LPR Comfort, status at v. age Hoang 282 F. 3d 1252- (CA10 2002) [Reporter’s 15), 1253 and (ages 3 cert. No. 01-1616 pending, post, See Note: p. 1010]. 6 Venus, (1814), 8 Cranch 253 we held that property to belonging American citizens who were resident in the England during War of 1812 was to be treated as to belonging English proprietors purposes prize law. that, We stated as permanent residents of England, the American “bound, citizens residence, were such by to society they the which are members, state, to subject the laws of and a owing allegiance qualified thereto; (with they it, are to defend obliged exception an in favor of such a subject, in relation his native in country) return for the protection it them, affords and the which the laws bestow as privileges upon them sub id., jects,” at 282. 546 are

they present case, in this land,” id., fixed deeply Kwong at Hai Colding, Chew v. And in 154. 344 U. S. 590 (1953), we read the word “excludable” regulation hav no ing application LPRs, since such a would have reading been questionable “a given resident alien’s constitutional Id., Kwong right due process.” Hai Chew 598-599.7 adopted statement Justice Murphy, concurring “ Bridges, ‘once an alien enters lawfully and resides in this he country becomes invested with the rights guaranteed by Constitution to all within our people borders. Such include rights those protected First by and the Fifth Amendments and by due process clause of the Four teenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They their extend inalienable to all privileges “persons” guard against any encroachment on those rights federal or state by authority.’” U.S., at 596-597, n. 5 Bridges, (quoting supra, 161). See also United States v. Verdugo-Urquidez, 494 U. (1990) S. 259, 271 (“[Afiiens receive constitutional pro tections when have they come within the territory United States and developed substantial connections with Woodby,supra, country”); at (holding deporta tion orders must be supported clear, by unequivocal, con evidence vincing owing the “drastic deprivations that may follow when a resident of this country compelled our Government to forsake all the bonds formed here and togo land foreign where he often has no contemporary identifi cation”); Johnson Eisentrager, v. U. S. 770-771 (1950) (“The alien, to whom the United States has been tradi- 7“Although the holding [in Kwong Hai Chew] one of regulatory interpretation, the rationale was one of law. constitutional Any doubts that Chew recognized constitutional rights in the resident alien returning from a trip brief abroad were dispelled by Fleuti, Rosenberg [374 U. S. (1963),] where we described Chew as holding ‘that the returning resi dent alien is entitled as a matter of process due to a hearing the charges underlying any attempt to exclude him.’ 374 U. at 460.” Landon v. Plasencia, (1982). 459 U. S. tionally hospitable, has been generous accorded and as- cending rights scale of as he increases identity his with our [A]t society. . . . since least 1886, we have extended to the person property and important resident aliens constitu- guaranties tional process the due of law of the —such Amendment”). Fourteenth The law therefore considers an LPR to be at home in the States, United and even when the Government seeks re- we greater moval, have protections accorded LPRs than other aliens under the Due Process Clause. In Landon v. (1982), Plasencia, 459 S. 21 U. we long-term held that a resi- dent country who left the period for a brief placed and was in proceedings exclusion upon return was entitled to claim greater procedural protections under that Clause than aliens seeking entry. initial The LPR’s interest remaining the United is, States we question, said, “without weighty one.” Id., at 34. Rosenberg See also v. Fleuti, 374 U. S. 449 (1963);Kwong supra. Chew, Hai

Although subject LPRs remain to the federal removal power, power may not be process, exercised without due any decision about requirements process of due an LPR must account for difficulty distinguishing practical as well as doctrinal liberty terms between the in- terest of an LPR aof evaluating citizen.8 Kim’s challenge to his mandatory detention under 8 U. S. C. § 1226(c), starting point reasonable is the traditional concerning doctrine physical Government’s confinement of individuals.9 8This case provides no occasion determine the constitutionality

mandatory detention of aliens other than LPRs. 9 The statement that “[i]n the exercise of its power broad over natural ization and immigration, Congress regularly makes rules that would be unacceptable if applied citizens,” Diaz, Mathews 426 U. S. 79-80 (1976), cannot be read to leave limitations on the liberty of aliens unre- Ante, viewable. at 521-522. Diaz involved a federal statute that limited eligibility for a federal medical program insurance to United States citi zens and LPRs who had been continuously resident in the United States

B Kim’s claim is a limited not that the one: Government may not detain LPRs to ensure removal hear- their at appearance S., years. for five at 426 U. 69-70. a lower court Reversing judgment that this statute equal protection, violated we this: said

“In the exercise of power immigration, its broad over naturalization and Congress makes that if regularly unacceptable applied rules would be citizens. The exclusion of power aliens and the reservation to de- have no port permissible counterpart in power the Federal Government’s Con-, to regulate the conduct of its own The fact an Act of citizenry. that treats gress differently in from citizens does not itself imply ” (footnotes omitted). disparate Id., such treatment is ‘invidious.’ at 79-80 full, Taken in meaning paragraph plain: through the exer- cise of the deportation exclusion power, Congress aliens to a exposes treatment (expulsion) that cannot be imposed on citizens. The cases cited in the footnotes to this paragraph all concern accordingly Congress’s power to enact grounds Id., 80, of exclusion deportation. or at nn. 14-15 Mandel, (citing (1972); Klemdienst v. Press, 408 U. S. 753 Galvan v. (1954); U. S. 522 (1952)); and Harisiades v. Shaughnessy, 342 S. 580 U. ante, Diaz, 81, cf. at 522 17, (quoting supra, at n. quoting turn Harisi- ades). Nothing in Diaz addresses due process protection liberty purports to sanction any particular limitation on the liberty LPRs under circumstances comparable to those here. terms,

Even on its the Diaz statement is dictum. We acknowledged immediately that real question presented “[t]he is not [Diaz] whether discrimination between citizens and rather, aliens is permissible; it is whether the statutory discrimination within the class of allowing aliens— benefits to some aliens but not to permissible.” S., others—is 426 U. at 80. Our holding that Congress could consider length of residence and immigra- tion status medical allocating insurance no way suggests the exist- ence of a power federal imprison long-term resident alien when the Government concedes that there is no need to do so.

The Court does not explain why it believes the Diaz dictum to be rele- case, vant to this other than to repeat it and identify prior instances of its Ante, quotation. at 521-522. The Court resists calling the statement “ ” ‘dictum,’ ante, but it does not deny that Diaz involved “discrimi- nation within the class of aliens” rather than “discrimination between citi- aliens,” zens and 426 U. thus making any suggestion about Con- gress’s power to treat citizens and aliens differently unnecessary to the holding. Nor does the deny Court that Diaz dealt with an equal protec- tion challenge to the allocation of medical insurance and had nothing ings, but that process due under the Fifth Amendment condi- potentially tions a lengthy detention on hearing and an impartial decisionmaker’s finding that necessary detention is governmental to a purpose. He thus repeated invokes our decisions that the claim of liberty protected by the Fifth Amendment is at its strongest government when seeks to detain an individual. The Chief wrote in 1987 Justice “[i]n society our liberty is the norm, and prior to trial or without trial is carefully limited exception.” United States v. Salerno, 481 U. S. 739, 755. See also Reno (1993) v. Flores, 507 U. 292, S. J., concurring) (O’Connor, (“The institutionalization of by an government adult the trig- gers heightened, substantive process due scrutiny”); Foucha v. (1992) (“Freedom Louisiana, 504 U. S. 71, 80 bodily from restraint has always been at the core of liberty protected the by the Due Process Clause arbitrary from governmental ac- tion”); id., at (“As 90 (Kennedy, dissenting) J., incarceration persons is the most common and one of the most feared instruments of oppression state and state indifference, we ought to acknowledge at the outset that freedom from this restraint is essential to the basic liberty definition of in the Fifth and Fourteenth Constitution”). Amendments of the

Accordingly, the Fifth permits Amendment detention where “heightened, process substantive due scrutiny” finds a “‘sufficiently compelling’” governmental need. Flores, supra, at 316 (O’Connor, J., concurring) (quoting Salerno, 748). 481 U. S., at deciding In in Salerno that principle did not categorically pretrial bar detention of criminal de- fendants without bail under the Bail Reform Act of 1984, it was crucial that the provided statute that, “[i]n a full-blown adversary hearing, the Government must convince a neutral by decisionmaker clear and convincing evidence that no con- ditions of release can reasonably assure safety community any person.” Id., at (citing 18 U. S. C. say subject of the right of LPRs to protection of their liberty under the Due Process Clause. supra, See at 543-547. 3142(f)). not a “scattershot Act was stressed that We merely suspected

attempt incapacitate of” who are those process 750, and held that due offenses, S., at serious 481 U. Act it pretrial because the confined some allowed by proves “[w]hen sphere need: the Government to a of real presents convincing an that an arrestee clear and evidence or the com threat to an individual and articulable identified (calling supra, munity.” Foucha, at 81 Id., 751; see also “sharply pretrial focused detention statute Salerno scheme”). involuntary

We have reviewed civil commitment statutes (1979), Addington way. Texas, same 441 U. S. 418 civilly mentally ill we held could not that a State commit showing by convincing without “clear and evidence” that the person dangerous others, id., was at 433. The elevated “[l]oss proof liberty burden was demanded calls because showing something for a that the individual suffers from idiosyncratic more serious than is demonstrated behav- statutory deficiency Id., ior.” at 427. The was the same Foucha, where we held that civil Louisiana’s commitment process statute failed due because the individual denied “adversary hearing prove by an at which the State must convincing demonstrably clear and evidence that he is dan- gerous community.” id,.at to the 504 at U. 81. See also J.) (civil (opinion depends 88 of O’Connor, on commitment “necessary a purposes connection between the nature and confinement”). requiring compelling addition to a reason detention, persons we held that the class of affected must be narrow pretrial-type and, in lockup, the time must be no more than reasonably necessary what is before the merits can be re- solved. In the case of placed the Bail Reform Act, we weight on applied the fact that the statute to defendants suspected of “the most supra, serious crimes,” Salerno, at 747; see supra, Foucha, also 81, at while the statute (1997), Hendricks, Kansas v. 521 provided U. S. 346 likewise only for of “a dangerous confinement limited subclass of per- “ ” sons” who had sexually committed ‘a violent offense’ and “ ‘a abnormality who suffered from mental or personality dis- ” “ ” portending order’ ‘predatory acts of sexual violence,’ id., §59-29a02(a) (1994)). (quoting at 357 Kan. Stat. Ann. Sa- lerno relied the restriction of “by stringent the Speedy time limitations Trial Act,” 481 S.,U. at Foucha, whereas in it was a fault that the statute did not impose any comparable limitation, 504 (citing U. S., at 82 Sa- lerno). See also Jackson Indiana, U. S.

(1972) (“At process least, the due requires that the nature and duration of commitment bear some reasonable relation purpose committed”). to the for which the individual is process demands necessarily substantive go of due procedural, hand in hand the with and the cases insist at the least on an opportunity for a challenge detainee to the reason committing claimed for g., supra, Hendricks, him. E. at 357 (stating that civil permitted commitment where “the place pursuant proper confinement procedures takes standards”); (invalidat- evidentiary supra, Foucha, at 81-82 ing a statute prove which “the nothing under State need (“[T]he justify detention”); supra, continued Salerno, procedures by judicial which a officer evaluates the likelihood dangerousness of future specifically designed are to further accuracy determination”); Addington, supra, (requiring heightened proof impress burden of “to factfinder importance thereby with of the decision and perhaps to reduce inappropriate commit- chances ordered”). ments will be yield simple

These govern eases distillate that should process result here. Due calls for an determina- individual tion before away. someone is locked In none of the cases cited did suggest we ever government that the could avoid 1226(e) Due by doing Process Clause what does, se- lecting people a class of categorical for confinement on a basis denying and any members dispute of that class chance away. course, would necessity putting cases, them be could nothing comparable if and residents citizens mean sleight categorical process by sort of shorn of due hearing” adversary before any “full-blown hand. Without heightened burden of supra, Salerno, detention, procedures to show Addington, supra, or other proof, Foucha', committing individual, government’s interest an rights supra, procedural would amount supra; Jackson, membership. testing nothing group mechanisms for but J.) (“Nor supra, (opinion Foucha, at 88 Cf. O’Connor, permissible acquittees alike, without to treat all it be would crimes”). procedure regard particular could And if for their expediently, presumably could dispensed with so so be nar- requirements be that the class of detainees substantive Salerno, period strictly limited. detention row and the supra; supra. Hendricks,

C just ago Zadvydas Davis, We held as much two Terms (2001), proposition which stands U. S. rationality detaining requires more of a an alien than the general justification go any must to the statute; detention Zadvydas aliens, of two alien considered detention himself. Zadvydas already ordered removed Ma, and who had been enjoyed immigration and therefore lawful status. Their no unlikely owing appeared cases arose because actual removal accept them, with to the refusal of their native countries to they the result that for the had been detained stand- 90-day period, during ard time most which removal beyond period executed, orders are because the but “ ” community’ INS considered them to be a ‘risk to the “‘unlikely comply Id., with the order of removal.’” 1231(a)(6) (1994 V)). (quoting Supp. ed., 8 U. S. C. Zadvydas challenged potentially and Ma their continued indefinite under the Due Process Clause of the Fifth Amendment.

553 Zadvydas opinion opened by noting applica- the clear bility general process due physical standards: detention requires “special justification” both a “outweighs that constitutionally protected ‘individual’s avoiding interest in physical restraint’” “adequate procedural and protections.” 356). S.,U. at (quoting Hendricks, 521 S., at U. No- suggest where did we that “constitutionally protected liberty avoiding physical interest” in confinement, even for already ordered removed, conceptually was different liberty from the interest of citizens considered in Jackson, Salerno, Foucha, and contrary, Hendricks. On the we cited expressly those cases adopted their reasoning, even as applied to right aliens whose to remain in the United States already had been Zadvydas, declared forfeited. S.,U. at 690. began by

Thus, we positing commonly accepted substan- proceeded tive standards and enquire any “special into justification” might outweigh powerful the aliens’ inter- avoiding physical est in confinement [individually “under or- dered] release may conditions that not be Id., violated.” at We nothing justify 696. found position. Government’s The statute was not narrowed to a particularly dangerous class of but aliens, rather affected “aliens ordered removed many various including reasons, tourist visa viola- Id., tions.” at 691. The detention subject itself was “stringent time limitations,” supra, Salerno, at but potentially permanent, indefinite or even Zadvydas, S., Finally, U. 691. although Zadvydas both ap- and Ma peared dangerous, to be this conclusion was undermined procedures in defects resulting finding danger- upshot Id., ousness. at 692. The was such serious doubt constitutionality about the of the detention statute we authorizing construed it as continuing when an alien’s “reasonably removal was foreseeable.” Id., at 699. Zadvydas the cases of and Ma, the fact that their countries of citizenship willing were not accept weighed their return keeping hand

against interest them at the Government’s flight though both were serious removal, even for instant we remanded the cases to the 684-686, 690, and id., at risks, sufficiency of Appeals for a determination Courts Zadvydas’s individual and Ma’s interests the Government’s detention, id., 702. Zadvydas analysis disposition in and

Our individualized his chal- support an individualized review of Kim’sclaim for confining supposed justify lenge to that are to the reasons removability. fact, In prior any him to determination proceedings have an additional interest in anything in avoiding beyond considered confinement, in entry may Zadvydas: prior of a removal order detention to develop impede ability present case to and his well the alien’s removability. very Brief for on issue of See Citizens Immigrants Equal et al. 20-23. for Justice as Amici Curiae penalty recognition all, our that the serious of removal After proof, Woodby justified heightened be standard of must (1966),will not mean when INS, S. 276 all that much 385 U. away from detain, transfer, and isolate aliens INS can Boyle, lawyers, witnesses, their and evidence. Cf. Stack v. (1951). right against Kim’s re- 342 U. to defend S. stronger gives in him even claim than the aliens moval an Zadvydas could raise. principal Zadvydas, well as fact, dissenters theory compel majority, accepted a that would success that

for Kim in this case. The dissent relied on the fact subject Zadvydas were a “final order of removal” and Ma right immigration to re- and had “no under the basic laws country,” (opinion 533 U. at 720 main Kennedy, J.), distinguishing right them “from aliens lawful with a position. ibid., dissent here,” which is Kim’s remain recognized right all and inad- aliens, even “removable arbitrary “free from that is ones, missible” be detention opinion capricious,” explained de- id., at and the or pass “arbitrary capricious” test “when or tention would to avoid necessary the risk of flight to the danger commu- ibid.10 nity,”

Hence the dissent’s Zadvydas focus on “whether there are adequate procedures” allowing “persons once to de- subject tention show through rehabilitation, new appreciation of their or under responsibilities, other no standards, they longer risks or present special if danger put Ibid.; large.” see id., also at 722-723. Indeed, there is further support Kim’s claim in the dissent’s view that the process afforded to removable aliens like Zadvydas and Ma “[went] far toward th[e] objective” satisfying procedural due id., process, 722;11 that process stands in stark contrast to the total ab- 10In support standard, of its the dissent on a relied report by the United High Nations Commissioner for Refugees, which likewise countenanced “in cases of necessity” stated, under heading entitled “Guideline 3: Exceptional Grounds for Detention”:

“There should be a presumption against detention. Where there are monitoring which mechanisms can be employed as viable alternatives to (such detention, as reporting obligations or guarantor requirements ...), these should be applied unless there is evidence to suggest that such first an alternative will not be in effective the individual case. Detention should therefore only place take after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful legitimate and purpose.” United Nations High Commissioner for Refugees, Revised Guidelines on Applicable Cri teria and Standards Relating to the (Feb. Detention of Asylum Seekers 1999) (hereinafter Guidelines) Detention (emphasis in original), cited in Zadvydas, S.,U. at 721 (opinion J.). of Kennedy, The High Commissioner also to referred the “minimum procedural guár- antele]” for a detainee “either personally or through representative, to the challenge necessity of the deprivation of liberty the review hearing, and to rebut any findings made.” Detention Guidelines, Guideline 5: Pro- cedural Safeguards. 11The scheme considered in Zadvydas did not provide review immedi ately after the removability determination; the dissent noted that custody review hearings usually occurred within three months of a transfer to a postorder unit, detention with further reviews annually or more fre quently if the alien requested them. 533 U. at 722-723. But the lag was fitted to the circumstances. case, usual removal in fact would Kim’s claim in to available review

sence of response custody The remov- nor risk.12 flight he is neither dangerous that Zadvydas to repre- had the to a right hearing, able aliens risk of of facts and to consideration sentation, bearing rehabilitation, evidence of criminal history, including flight, Ibid. The references to the States. and ties to the United and the discussion individual’s detention of an “necessity” show that principal requirements procedural Zadvydas as individual- envisioned due dissenters process case correctly of in this review, and the Court Appeals ized in- benefit detention without held that Kim’s mandatory as understood violated due dividualized process enquiry Kennedy Zadvydas and both majority Justice Ziglar, (CA9 Kim 3d 523, 276 F. 535-537 dissent. 2002). detention of to consider the Court Every Appeals raised a custody come when it did not that interim promptly; it is course, here, timing right The issue is not but the substantial issue. at all. individualized review (BIA 221. & Dec. 799 Joseph, N. hearing recognized Matter of “ 1999), notes, ‘Joseph deficiency. is no to this As the Court response ” statu does not meet the hearing’ only permits an alien show that he 1226(c). Ante, tory mandatory criteria for detention under statute, that, Kim that he fits under the argues assuming n. 3. even Due him does not fit under the Process application statute’s to LPRs like Clause. Kennedy Process “an requires the Due Clause recognizes Justice flight individualized as to risk dangerous- [an LPR’s] determination unjustified.” if ness unreasonable [becomes] continued detention Ante, at 532 is see how Kim’sdeten- (concurring opinion). It difficult tion unjustified, in this case is unreasonable and since the anything but necessary completion Government concedes of his the fact proceedings community’s Certainly removal or protection. charge” that “there is at least some merit to the Kim should [INS’s] ante, removable, be held to be not establish a compelling at does reason for noncriminal aliens on bond many detention. The INS releases 1226(a)(2) conditional parole or on under pending proceedings, and the fact that Kim offenses does has been convicted of criminal not on detention, justify its own his supra, see at 550-553.

557 1226(c) Zadvydas LPR under an after reached the same conclusion.13

D justification” process requires “special sum, due a physical “outweighs detention that the individual’s constitu- tionally protected avoiding physical in interest restraint” “adequate procedural protections.” Zadvydas, as well (internal omitted). quotation S., 533 U. at 690-691 marks ‘sufficiently compelling’ governmental “There must be a in- [an] justify usually punitive terest to a action, such interest imprisoning regulatory in criminal a convicted or inter- forestalling danger community.” in est Flores, to the 507 concurring) (quoting at 316 S., J., Salerno, U. 481 (O’Connor, 748). subject persons S., at U. The class of to confinement commensurately must be narrow and the duration of con- Zadvydas, accordingly. supra, finement limited at 691;Hen- dricks, 521 S., 368;Foucha, U. at 504 U. S., 81-82; Salerno, at supra, at dissenting 747, 750. view Kennedy’s Justice Zadvydas, majority, disapproved like that of the “necessary” flight that is not danger; to counter a risk of or “arbitrary capricious” it is and violates the substantive component Due Process at Clause. 533 U. 721. Finally, procedural requires, process due minimum, at a impartial a have the an detainee benefit of decisionmaker particular able to consider circumstances on the issue of ne- cessity. at at Id., 691-692; id., 722 J., dissent- (KENNEDY, ing); supra, supra, Foucha, Salerno, 81; also 750.- See Kenyeres post, v. at 1305 J., cham- Ashcroft, (Kennedy, bers) (“An opportunity present griev- one’s meritorious supports legitimacy public accept- ances to court statutory regime”). ance of (CA4 2002); Ashcroft, Welch v. Hoang Comfort, 293 F. 3d v. (CA10 2002), [Reporter’s

F. 3d 1247 No. pending, cert. 01-1616 Note: (CA3 Zemski, 1010]; 2001). Patel v. F. post, p. See 3d 299 The Seventh Perryman, Parra (1999), Circuit’s decision F. 3d 954 preceded in Zadvydas. our decision

By standards, these easy Kim’s is an case “[HJeight- one. ened, process scrutiny,” substantive due supra, Flores, concurring), J., uncovers serious infirmities (O’Connor, 1226(c). §in Detention dangerous is not limited to criminal aliens likely or those found applies flee, to but all to aliens claimed deportable to be for criminal convictions, even where underlying the offenses g., are minor. E. Michel v. (CA2 2000)

INS, 206 F. 3d (possession of stolen bus transfers); (BIA 1992) Bart, Matter 20 I. & N. Dec. 436 (issuance check). 1226(c) of a bad Detention under is not by limited the kind of imposed time limit Speedy Trial Act, and while long it lasts proceed as the removal ings, those proceedings have no may deadline and last over year. a See Brief for Immigrants Citizens and Equal for Justice et al. as Amici Curiae 23-26; see also id., at 10-20 (citing 1226(c) examples). Section requires neither per nor mits an official to determine whether Kim’s detention was necessary prevent flight danger.

Kim’s particular detention without justification in these re- spects, or opportunity to enquire into it, violates both components process, of due and I would accordingly affirm the judgment of the Court Appeals requiring INS hold a hearing bail to see whether detention is needed to avoid flight risk of or a danger community.14 This surely is gives enough, little given the fact that 8 U. S. C. 1536 charged an LPR being with foreign terrorist right to a hearing release pending a determination that he be removed.

Ill proceeds Court contrary conclusion on the premise that “the may Government constitutionally detain 14Although Kim ais criminal, convicted we are not concerned here with a State’s interest those punishing who violate its criminal laws. Kim completed the criminal sentence imposed by the California courts on Feb ruary 1999, and California no longer has any interest in incarcerating him. the limited deportable during period necessary Ante, their at 526. proceedings.” Sometimes, it but that often, is not the in maybe may, contention. point Kim has never INS’s to detain challenged general power in removal aliens or even its to proceedings detain power him in if it affords him a chance to particular, participate in an whether he risk or a poses to enquiry flight danger society. “ rather, is whether has chosen ‘a question, Congress means of constitutionally im- permissible [its implementing’ Zadvydas, supra, at 695 INS power.” migration] (quoting Chadha, see also Carlson 919, 462 (1983)); v. U. S. 941-942 Landon, 342 (1952) 524, v. U. S. 537 that (stating depor- “is, course, tation power interven- subject judicial Constitution’”). tion under law of the ‘paramount As Zadvydas, in we are here concerned with the power to remove aliens but with the constitutional lim- “important Zadvydas, supra, itations” on that exercise. at power’s 695.15 States, The Court’s citations to Wong Wing United v. 163 U. S. 228 Ante,

(1896), 523, are In Wong Wing, inapposite. therefore at 531. we hypothesized “necessary that detention give to the removal of effect” valid”; an alien “would subjunctive be use of the plain mood makes that the issue was not before the Court. 163 U. Wing 235. Wong certainly did not hold that detention in aid of removal was from exempt the Due Process Clause.

Moreover, the Wong Wing dictum must be in understood light common in contemporary practice the federal courts of aliens on releasing bail pending deportation proceedings. While the Court is correct the first statutory provision permitting Executive officials to release ante, 1907, on bond 523, 7, enacted n. the Court ignores numerous judicial bail e. United grants prior See, to that year. g., Williams, States ex rel. (1904) Turner 279, v. 194 U. S. (stating the lower court admitted the appellant to bail to this pending appeal Court); States, Fong Yue (1893) Ting United 698, (same); 149 U. S. Tai, curiam); United (CA2 1901) v. Moy States Yee In re 109 F. 1 (per Lum Poy, (CC 1904) 128 F. Mont. (noting that “the practice California, Idaho, has been Oregon and is to admit persons Chinese

A The Court much spends Zad- effort trying distinguish vydas, but even if the Court succeeded, success would not Zadvydas avail it much. was an application de- principles in over a veloped of cases on century of aliens rights and the limits on the government’s power to confine individu- als. While there are differences between detention pending (this case) proceedings and detention after entry (Zadvydas), a removal order the differences merely point up bail an pending investigation into the lawfulness of their residence within States, the United and before any order for deportation made”); has been Tai, (Mass. In re Ah 1903) 125 F. 796-797 (identifying practice several federal bail, districts admitting aliens to both before an initial fin- ding of deportability during the appeal therefrom); In re Chow Goo Pooi, (CC 77, 1884). 25 F. 78 Cal. The breadth of this practice is evident from one court’s statement that “[t]o hold bail altogether inadmissible ... would invalidate of hundreds existing recognizances.” Tai, Ah supra, at 797. As Judge Hand Augustus noted, later the only in change 1907was that bail decisions were committed to the discretion officials, of Executive than rather judges: “Prior to the passage in Congress 1907 of the act empowering the administrative bail, fix officialto various courts made it a practice to grant bail to aliens during deportation In hearings.... opinion our that act intended to place general the determination of granting in bail the hands of the authorities charged with the enforcement deportation laws persons ordinarily qualified best to perform such a function . . . .” United States ex rel. Potash v. District Director Immigration and Nat- of uralization, (CA2 1948)(citations 169 F. omitted). 2d Thus, while Wong Wing stated in passing that detention may be used where it was “part the of means necessary” to aliens, the removal of U. at that statement was written against the background of the general availability judicial relief from pending deportation proceedings. judicial The grants of prior bail arose in federal habeas proceed- ings. Contrary to Justice objection to federal jurisdiction O’Connor’s matter, in this is indeed “history there of routine reliance on habeas jurisdiction to challenge detention of aliens without bail pending the Ante, conclusion removal proceedings.” (opinion in concurring part concurring judgment). that Kim’s is stronger supra, claim, see In 554-556. any analytical case, the framework set forth in Salerno, Fou cha, Hendricks, physical Jackson, and other confinement applies cases to both, and the two differences the Court re upon lies fail to challenge remove Kim’s from ambit of Zadvydas either the earlier cases or itself.16 1226(e) says First, the Court that purpose “serves the preventing deportable criminal aliens fleeing prior from during their proceedings.” Ante, at 528. Yes it Zadvydas, does, statute viewed outside the con- any text of alien’s individual purpose detention, served the preventing deported aliens ordered to be fleeing from prior deportation. to actual case, each the fact that purpose statute general serves its justify fails to detention of an particular. individual in Some individual 1226(e) §by aliens covered challenges have meritorious removability or claims for relief from removal. See Brief for Immigrants Citizens and Equal for Justice et al. as Amici Curiae 10-20. toAs such Zadvydas aliens, as with and Ma, Government has a weak reason the immigra- under tion laws detaining them. appears respond Court Congress may require

detention of removable aliens general based on a conclusion that detention is needed for effective removal of criminal on a class-wide basis. But logic Zadvydas should have come way, out the other for detention of the entire class of aliens who actually have been ordered re- general will “serv[e] moved in purpose” of their effective removal, ante, at 528. Yet neither the Court nor JUSTICE in suggested Kennedy dissent scrutiny under the Due Process Clause be general could satisfied at such a level. Rather, we remanded the Zadvydas individual eases of Ma for strength determinations of the of the Government’s 16The Court Salerno, tellingly Foucha, does not even mention Hen dricks, or Jackson.

reasons for them in detaining S., 533 U. at particular. 702.17 canWe on insist less here, since the nothing Government’s justification for individuals like detaining Ma, Zadvydas who had no to remain in right this and were country proven id., risks and flight dangers 684-686, at is cer- society, (and tainly weaker) at least no stronger its than interest in a lawful detaining permanent resident has who not been (or claimed) shown even to be either risk or a flight threat community.18 The Court’s closest to a approach reason class- justifying wide detention without here is a exception Senate Report stating over 20% of nondetained aliens criminal failed 17The Court is therefore in mistaken suggesting I that view the deten tion the individual aliens in Zddvydas as serving governmental pur Ante, pose. at n. 10. The Court confuses the “statute in Zadvydas, viewed outside the any context of detention,” individual alien’s at supra, 561, with the “detention at issue ante, in 527, 10, Zadvydas,” at n. namely, the detention of Zadvydas and Ma as individuals. The due process analy sis in Zadvydas latter, concentrated holding that the detention of Zadvydas and Ma would not serve a legitimate immigration if purpose there were no “significant likelihoodof the reasonably foresee able future.” S., 533 U. Thus, at 701. the Court’s suggestion this case that “the statutory provision” authorizes “detention” that prevents de- portable from fleeing as a general matter, ante, 527-528, at is no sufficient basis for claiming Zadvydas support for the Court’s methodol ogy Rather, result. the Court should consider whether the detention of Kim as an individual necessary to a compelling interest, Government just as it did for the detention Zadvydas and Ma as individuals. theAs concedes, Government Kim’sindividual detention serves no Government purpose at all. 18Nor can general recidivism, ante, risk of 518-519, justify measure. The interest preventing recidivism may be “by vindicated the ordinary criminal processes conviction, involving charge and use of enhanced sentences recidivists, and other permissible ways of deal ing with patterns of criminal conduct.” Louisiana, Foucha v. 504 U. S. (1992). The ability to detain aliens in removal proceedings who pose threats to the community also satisfies this interest. Cf. United Salerno, States v. (1987). 481 U. S. 739 detention, alternative to course, is not unrestricted liberty, but supervised release, which ad also dresses the risk of Zadvydas, recidivism. 533 U. 696. appear hearings. for removal Ante, (citing Rep. S. (1995) (hereinafter No. 104-48 Report)). begin Senate To Report’s with, the Senate statistic treats all criminal aliens alike distinguish and does not between LPRs like Kim, who likely are developed to have strong ties within the United supra, States, see at 544-547, and temporary visitors or ille- gal entrants. Even importantly, more the statistic tells us nothing flight about risk at all because, as both the Court recognize, the Senate Report making the INS was its custody ground determinations not on the of likelihood of flight dangerousness, large part, but according “in to the number of beds particular available in a region.” Senate Report 23, ante, cited at 519;see also Rep. H. R. No. 104-469, (1995) (hereinafter p. (“[I]n Report) House deciding deportable release alien, the is making INS a decision the alien cannot be given detained its limited re- sources”); App. 26-27. This meant that the INS often could even posed detain the aliens who flight serious risks. Report Senate (noting that the only INS had 3,500 de- tention beds for criminal aliens in country the entire comprising Pennsylvania, INS district Delaware, and 15). "Virginia West desperate had lack of space likewise had led the INS to set bonds too low, because “if pay, alien is not able to the alien cannot be released, space and a needed bed Report lost.” House 124. The Report recognized Senate also that, even when INS iden- tifies a alien, criminal the INS “often refuses to take action because agents transport insufficient prisoners, or be- space.” cause of limited detention Report Senate 2. Four former high-ranking explained INS officials the Court’s sta- “Flight tistics as follows: rates high were early so in 1990s not as a discretionary result of judgment chronic fail- [the] ures assessing INS in might which pose flight risk. the rates Rather, were alarmingly high because proceedings decisions release aliens in were driven over- by whelmingly lack of detention facilities.” Brief for T. et al. as Amici Curiae Alexander Aleinikoff 19. recognition that, at the time of the The Court’s enactment §1226(c), bail had not been of “individualized determinations optimal an tested under conditions” thus rather under- explain The Ante, statement. at 528. Court does not how decisions to release the INS’s resource-driven individuals pose flight predictable risks, and their failure who serious hearings, justify systemwide attend could removal denial any opportunity of for to individuals like Kim release who flight public. are neither risks nor threats by report Department The Court cites a of also Justice upon by Department Justice, relied the Government. of Of- Inspector Immigration General, fice of the and Naturaliza- Deportation Service, Aliens tion After Final Orders Have (Mar. (herein- 1996), Rep. App. Issued, Been 14 No. 1-96-03 Report), ante, after Post-Order cited But 521. that report does not even address the issue of detention before a determination been that has made an alien is removable. As Report analyzed indicates, its title the Post-Order already rates for who had received final orders (“This removability.19 Report, App. See also Post-Order 25 by current review was limited actions taken re- INS to [immigration judges move aliens after or the of Immi- Board orders”).20 gration Appeals] final had issued governed by Detention such aliens is issue in statute 1226(c). Zadvydas, 1231(a), by 20A that prior study by body same noted rates nonappearance deportation aliens in proceedings before issuance of orders to deport Kim) (aliens, is, like approximately were 23% for first half of 1993 Justice, and 21% all of Department Inspector for 1992. Office of the General, Case Hearing Immigration Process in the Executive Office for (hereinafter 1994) Review, 1-93-03, Rep. (May Hearing No. Re p. Case port). Congress appears to have considered these Sen figures, relevant (“Over Report percent ate of nondetained criminal aliens fail to without to irrelevant appear deportation proceedings”), referring Post-Order postorder Report numbers. Government relied on the case, More relevant largely ignored by at the recent conducted Court, is a study INS’s con- request (most criminal aliens that 92% of of whom were cluding LPRs) under who were released conditions at- supervisory 1 Vera all of their hearings. Justice, tended Institute of for the An INS: Community Supervision Evaluation Testing Assistance ii, 33, 36 Program, pp. Appearance (Aug. 2000) (hereinafter Vera Institute Even without Study). of criminal aliens 82% released on supervision, recognizance 77% of those released on showed as did bond, up, leading the to conclude reporters “supervision especially for aliens” that effective criminal detention “mandatory Id., all aliens is not criminal ii, at virtually necessary.” 36, 42.21 7, 19-20, 7; Brief for argument. its brief and at oral Petitioners and n.

Tr. Oral The Government did not Arg. 23. cite the Case Hearing Report. 21The Court in minor criticisms of the Vera Study throws Institute that no have on its relevance here. The bearing supervised institute’s release included 127 criminal aliens program mandatory who would be to subject 1226(c) their under because of criminal histories. Vera Insti Study tute 33. Since the INS seeks on Kim’s removal the grounds ante, 513, either or turpitude aggravated felony, crimes of moral an see at 1,n. the fact that most of the Vera Institute Study’s subjects were con ante, victed of moral an turpitude felony, crimes of but not at aggravated 520, 5,n. is of no moment. Nor were all of the aliens subject studied ibid.; intensive supervision, subject supervision,” most were “regular which involved no orienta mandatory reporting beyond sessions an initial tion that the alien supervision required only keep session with staff and address, court, the staff of a and com apprised mailing appear current Study with the of the Institute 17-18. ply immigration judge, orders Vera That the considered various before screening authorizing institute criteria ante, 520, release, 5, supervised at n. not undermine the value does study, mandatory any program by since the in lieu of deten adopted INS the Zadvydas, Finally, tion could do the same. Cf. 533 U. at 696. fact Kim than supervised that and was release on bond rather sought granted release, ante, 5, at n. the does not detract from the relevance of Vera INS decides to Study. Regardless employ Institute of what methods the mandatory deten- study the the conclusion prevent flight, supports conclu- Vera Institute’s the The nowhere addresses Court supervisory condi- under criminal aliens released sion that hearings. likely overwhelmingly attend their tions are compari- the that 23% of Instead, the Court fixes on the fact all failed to attend group bond son of aliens released on deter- hearings. bond Ante, Since the their at 519-520. INS, the fact remains made minations were may to re- well have led the INS resource-driven concerns flight bonds too risks on lease evident individuals who were supra, at 563-564. low to ensure their attendance. See assumption bond determinations Court’s that the INS’s ante, screening” flight risk, at involved “individualized support Study. in the Thus finds no Vera Institute by the Court’s reliance on the rate of aliens released failure Report bond, INS whether it comes from the Senate support Study, ante, 519-520, Vera Institute does not its conclusion. inapposite sum, not show that Court’s statistics do proceedings, pending

detention of criminal removal LPRs general necessary level, even on attendance to ensure hearings, Study reinforces and the Vera Institute point by establishing of release under effectiveness supervisory just Zadvydas. conditions, as we did constitutionally (noting imprisonment S., U. at 696 was that suspect given possibility “supervision the of under release violated”).22 may conditions that not be first Court’s attempt distinguish accordingly Zadvydas to fails. 1226(c)

tion under is to necessary” prevent flight, “not Vera Institute 42, Study and therefore violates the Due Process Clause. release,’” 22 This case accordingly no issue of ‘“court presents ordered ante, Zadvydas, supra, at 713 (Kennedy, J., at n. 14 (quoting dissent case, ing)); in for the INS reached its own example, determination to release Kim on bond. only This case concerns the uncontroversial re quirement that detention a governmental serve interest and compelling that detainees adequate procedures be afforded errone ensuring against Salerno, E. g., (“[T]he ous confinement. 481 U. at 751 by procedures mandatory its second effort is claim that de- The Court’s 1226(c) generally under of a “much shorter dura- tention Zadvydas. Ante, the incarceration at issue in than tion” proceedings While true are un- it is that at 528. prove potentially likely permanent,” 533 to “indefinite and they formally any period, to at are limited S.,U. beyond suggested by Court, that extend the time the often days” average or, time of 47 who exercise is, “an appeal, average ante, right months,” of four at “an their Hearing Report (finding aver- also Case that the 529; see charging by age receipt a detained time from documents immigration judge the final decision alien averages taking however, days). face, Even on their these legitimate process they answer to the claim to are no due hearing. individualized treatment average receipt charg- place, time first from In the ing to decision obscures the fact that alien documents being may charging documents after detained receive charged period. example, Kim, for was not for a substantial Brief for weeks after the INS detained him. until five Respondent 9. revealing explanation is an of the raw numbers

Even more averaged conceded, out. As Solicitor General that are period great average part length re- majority of involve aliens the vast cases flects the fact that challenge removability all. of Oral Tr. who no raise hardly pat- Kim, however, will fit that Arg. LPRs like 57. many illegal temporary nonimmi- entrants and tern. Unlike likely press grants, aliens most substantial are the LPRs dangerousness likelihood of future officer evaluates the which judicial determination”); further of that accuracy designed are specifically (Kennedy, J., dissenting) (stating supra, see also Zadvydas, detained aliens to permitting “adequate procedures” process requires due danger” warranting present special risks longer show no “they confinement). 568

challenges removability requiring lengthy proceedings.23 See Vera Institute 33, Study of many (stating criminal aliens studied were “lawful permanent residents who have much or all their spent of adult lives in the United States” and that 40% those released on supervision “were in States”). allowed the United stay Successful chal- often lenges several months require see Brief proceedings, for Citizens and Amici for Immigrants Justice et al. as Equal Curiae 10-20; detention for an like this open-ended period falls far short of the time “stringent limitations” held to be Salerno, in significant S., at U. 747. The potential several months of confinement an requires individualized finding under necessity Zadvydas,24

B Zadvydas The Court has failed to distinguish any way that matters. It does no better in its effort its portray result case Carlson v. as controlled Landon, Reno Flores, U. S. 524 (1952), v. (1993). 507 U. S. 292 23 Criminal aliens whose “removal are proceedings completed while [they are] still time serving for the conviction,” ante, underlying 529, at are case, irrelevant to this they since are never detained pending removal 1226(c). § proceedings under 24The Court calls several months unnecessary imprisonment a “very time,” ante, limited n. 12. But the process due requirement anof individualized finding of necessity applies to detention periods shorter than Kim’s. Martin, Schall (1984), U. S. involved a maximum detention period days, id., of 17 yet process our due analysis noted that the detainee was entitled to a hearing in which he challenge could necessity of his confinement before an impartial required decisionmaker state the facts and reasons underlying any id., detain, decision to at 276- 277. The 90-day 1231(a)(1) period not only has a fixed end point, but applies also only after the alien removable, has been adjudged 1231(a)(1)(B). The discussion of that provision in Zadvydas cannot be read to indicate any standard of permissible treatment of LPR an who has yet been found removable. Carlson did not involve mandatory detention. It involved system similar to the one Kim contends for here. The aliens’ pending deportation proceedings in Carlson followed a decision on behalf of the Attorney General that custody preferable was to release on bond or on conditional parole. 842 528, (citing U. 5n. Security Internal Act 1011). of 1950, §23, 64 Stat. We sustained decision be- cause we found that the District Director of INS, the to Attorney whom the delegated General had authority, the did not abuse his discretion in concludingthat “evidence of mem- [in bership the Party] plus Communist personal activity in supporting extending the Party’s philosophy concerning violence” made the aliens “a menace public to the interest.” S.,U. significance 541. The looking “personal activity” in analysis our complemented was by express our recognition that there was “no evidence or contention that persons all deportable arrested as ... for Communist mem- bership are denied bail,” id., at by 541-542, and a Govern- report ment showing that in fact large “the majority” of on charges arrested comparable to the peti- Carlson tioners’ were allowed bail. Id., at 542; id., see also at 538, (noting n. 31 that it “quite clear” that “detention without bond has been exception”).

Indeed, the Carlson Court’s analysis constitutional relying on the opportunity for individualized bond determinations simply argument followed in the brief for the United States in that case. response argument the aliens’ the statute made it “mandatory on Attorney General deny bail to alien communists,” the Government stated, “[w]e need not consider the constitutionality of such a law for that is not present what the provides.” law Respond- Brief for ent in Carlson v. Landon, T. p. O. No. 19; see also (“[T]he id., at 20 act itself, terms, its that, leaves no doubt power to detain is discretionary, mandatory”). presented Government following also excerpt of a state- ment of the Judiciary chairman of the House Committee:

“ particular hardship going ‘No any- on be worked one bear mandatory because, this fact in mind, it is not Attorney people General to hold in detention. given discretionary power. He is judgment If in his people one just class of I ought have mentioned paramount to be held for may national reasons, he detain obliged him, but he anybody, is although to hold I trust every that in case a subversive or a hardened Id., criminal Cong. he will.’” (quoting at 19 Rec. (1950)(statement Walter) 10449-10450 Rep. (emphasis Respondent added in Brief for in Landon, Carlson v. supra)).

In short, very Carlson addressed a different scheme from the one here.

It is also point beside the for suggest the Court to that “like respondent present in the case,” petition the Carlson challenged ers their detention “there because had been no finding they unlikely that appear deporta were to for their proceedings.” tion Ante, at 524. Each of them was de interest,” being tained after found to be “a public menace to at U. challenge, and their Kim’s, unlike was 3 that the INS had up locked impermissible them for an reason (danger society) whereas finding flight a of risk of justified (“It would have Id., detention. urged 533-584 is . . . that where there no justify evidence to a fear of un availability for hearings or for carrying possi out of a judgment ble deportation, denial of bail under the circum stances discretion”); of these cases is an abuse of see also id., (Black, (“A at dissenting) J., power put jail because dangerous cannot be power derived from deport”).25 25Similarly, the question v. Zydok, argued and presented Butterfield decided together Carlson, with “[w]hether, his discretion exercising to grant or withhold bail pending final determination of the deportability rejected We leaving contention, petitioners in deten- tion they because dangerous were public to the interest, and on that issue, an official had determined that the Carlson petitioners ought to be detained. Here, impar- however, no tial decisionmaker has determined detaining Kim is re- quired any purpose at all, and neither the Government nor the Court even claims such a need.

For same reason it is point beside the to note that the unsuccessful petitioners’ Carlson brief raised a claim that detention without personal reference to facts to their indi vidual cases would violate the Due Process Ante, Clause. at 524. As the pointed United States out in its own Carlson brief, that issue was never presented, since the District Di rector’s exercise of discretion was based on individualized determinations petitioners that the dangerous were to soci ety. supra, See at 570.26 Nor is the Court entitled to in voke Carlson saying that the adopted INS policy “had of refusing grant bail” to alien Communists, which made Attorney the General’s discretion to release aliens on bond merely “ostensible].” Ante, at 524. The Carlson Court “[tjhere found that is no evidence or per- contention that all alien, of an the Attorney General justified is in denying on bail ground that alien an active participant in Communist Party affairs, or whether he is bound also to consider other circumstances, particularly the likelihood that the alien will report as ordered.” Pet. for Cert. in Butter v. Zydok, 1951, O. T. 136, No. p. 2. field 26While a prior may conviction sometimes evidence risk of future dan ger, it is not in cases, conclusive all and Kim is a good example, given that the Government found that he “would not be considered a threat.” App. Indeed, 13. the Court acknowledges that convictions are only “relevant to” dangerousness, ante, 525, 9; at n. it does not state that they compel a finding danger in all cases. As even the Zadvydas dissent recognized, due process requires that detained criminal aliens be given an opportunity to rebut the necessity of showing “that through rehabilita tion, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if at put large.” S., 533 U. of Kennedy, at (opinion J.). deportable membership arrested as ... for Communist

sons at are denied 342 U. 541-542. S., bail.” accept opinion Court refuses of the Carlson representations and the in the Court made successful brief only for the in that case. The Government Court fails acknowledge holding improp- Carlson; the actual it erly adopts authority statements made in dissent. The emphatic “[t]here Court’s assertion that was no ‘individual- likely findin[g]’ dangerousness any ized future as to entirely ante, opinions aliens,” at 525, rests voiced in dis- although only sent, Court mentions this fact a foot- (citing note, ante, at 525, n. 8 342 U. 550, n. (Black, (Frankfurter, dissenting), J., id., at 567 J., dissenting)). Statements made in dissent do not override express finding petitioners Carlson Court’s that the that case were found to be not members of the Commu- Party, nist but “active in degree, Communist work” and to “a perhaps [one] [participants] minor case, in Communist ac- Id., tivities.” at 541.27

Moreover, suggest the Carlson dissenters did not that no individualized they determinations had occurred; rather, con- findings tended that the District Director’s individual of dan- gerousness unsupported by were sufficient reliable evidence. (Black, id., at See 549-550 dissenting) (arguing J., that the “ ” (ar- all); aliens ‘dangerous’ were not in fact id., at 552 guing danger that findings were based on “the rankest hear- say being evidence” instead of “required prove” the INS dangerous); the detainee was (arguing id., at 555-556 activity within the Communist movement did not make “dangerous”); (Frankfurter, id., at 566-567 J., 27In the footnote immediately its following dissenting citation of opin ions, the Court cites a passage from the Carlson majority opinion confirm Carlson ing that the petitioners’ detention rested on the “allegation, sup ported affidavits, that the [INS’s] dossier of each petitioner contained evidence” of Communist Party membership and activities “to the preju ante, dice of the public 9). S., interest.” at (quoted 525, U. at n. mem- evidence of Communist that party dissenting) (arguing of that evidence to show was “insufficient danger”; bership of stale; and that the history activities was some aliens’ that forced him to conclude the aliens involved treatment of discretion was General actually exercising Attorney Carlson basis).28 And even if the dissenters on an individual the Carl- correct, all that would show is that were factually less) into de- son no Government, was misled (by Court of that on the basis individualized findings the case ciding the Carlson Court were Given that made. dangerousness which it individu- believed that was case deciding clearly occurred, it is error serious alized determinations Carlson a case in which to treat they deciding Court did not. no from the isolated help passages Court

Finally, gets the Carlson the Carlson it of that quotes. Although opinion was “‘a that detention deportation Court stated part’” Carlson, ante, at 524 S., 538), at 342 U. (quoting procedure, it said that detention part every deportation nowhere far Instead, it that “the acknowledged larger proceeding. were re- on “subversive of aliens charges” part” deportable was “‘not that one of the aliens dissenting 28 Justice Black’s statement activities,”’ S., 342 U. does not subversive likely engage any ante, On at 525. finding nondangerousness,” to a “specific amount could prove stated that the Government the Court contrary, expressly Party; in the Communist it activity” “personal based on dangerousness sabotage far as acts of “specific so to show required go was not simply Carlson, supra, at 541. Thus while action.” or incitement to subversive action,” certainly was a finding there finding was no of “subversive there unconvincing. Black that found albeit one Justice “danger,” Likewise, statement in dissent the Solicitor Frankfurter’s Justice “it the Govern- had has been States “advised” General of United deportation for aliens who awaiting bail” policy ... to terminate ment’s Communists,” to recon- U. is difficult “present were active and the majority opinion in both the statements contrary cile with the Carlson, Whatever its see at 569-572. supra, brief in United States’s of bail does not to a denials basis, “policy” reference Justice Frankfurter’s today. places upon it that the Court weight bear the personal leased on “modest bonds or recognizances” pending deportation proceedings. their Id., n. 31. Contrary holding today, the Court’s the Carlson Court understood that discretion to admit to bail necessary, “[o]f was since [a] course purpose [the injure States] United could not imputed be generally to all subject deportation.” Id., only at 538. It light was in this that the Court said that [its] INS “justify could refusal of bail reference to legislative scheme to eradicate the evils of Communist activity”; the Court referring was power to the INS’s detain on a finding given that a alien engaged was in Com- munist activity that society. threatened Id., at 543. The Court nowhere addressed, approved, much less the notion that the INS justify, could or Congress compel, could an individual’s any detention without determination at all that his necessary detention was to some purpose. Government And if there any was ever point, doubt on this it failed to survive subsequent, our recognition unanimous that the de- tention scheme required Carlson “some level of individual- ized precondition determination” as a to detention. INS v. National Immigrants’ Center Rights, Inc., 502 U. S. 183, (1991); 194-195 see also Flores, S.,U. at 313. Carlson stands odds with the Court’s outcome in this case. The Court’s paragraph supra, Flores, is no help more to it. Like Carlson, Flores did mandatory involve de- tention, regulation INS at issue in Flores actually required juveniles that alien be pending released proceedings unless the INS determined that detention “ required [the ‘to juvenile’s] secure timely appearance before [INS] or the immigration court juvenile’s to ensure the ” safety or that of others.’ 507 S.,U. at 297 (quoting 8 CFR §242.24(b)(1)(1992)). Again, agrees Kim system such a is constitutional and contends for it here. Flores turned not on the necessity of detention, but on regulation’s restric- juveniles tion that alien could be released to the custody juvenile’s parent, legal guardian, specified or another adult relative. Even limitation, subject however, was exception releasing juvenile to “ person for to another in compelling ‘unusual and and in circumstances the discretion [INS] patrol of the agent.’” district director or chief 242.24(b)(4)(1992)). (quoting S.,U. at 297 8 CFR process Thus, the substantive due issue in Flores was not the necessary whether aliens’ “ governmen detention was ato ” purpose: tal physical ‘freedom from restraint’ was “not at “ juveniles, issue” at all because, as ‘always the aliens were ” custody.’ in some form of (quoting S., 507 U. at 302 Schall “ (1984)). Martin, ‘[l]egal custody' 253, 265 U. S. Since rather accurately than more ‘detention’ reality describes the arrangement” of the in Flores, S., 507 U. at 298, that ease no bearing has on this one, which concerns the detention of an adult.29 equally distinguishable procedural

Flores is at the level. procedures We held custody that the for the decision sufficed any constitutionally because keep determination to the alien custody “in the recognizance, [INS], released on or open released under bond” was immigration review court, Immigration Appeals, Board and the federal courts. Id., at Like juve- Carlson, 308. the aliens in niles subject Flores were system to a different and raised complaint different from Kim’s. While may Flores holds that pre- the INS use “reasonable sumptions generic carrying statutory rules” in out its discretion, gave S., gen- U. at it no carte blanche to 29Nor is it to the point the Court to quote Flores rejecting “ ‘ aliens’ challenge to a “blanket” presumption unsuitability of custo ” dians other than Ante, relatives, parents, close guardians.’ 313). (quoting 507 U. Flores expressly stated that regulation did not implicate the liberty core interest avoiding physical confinement. Id., at 302 (“The physical ‘freedom from restraint’ ... is not at issue case”). this

eral legislation an entire depriving class of aliens of liberty Flores did during proceedings. not disturb estab- lished standards that detention of an adult must be justified in each individual instance.30

> This case is not about the National Government’s undis- puted power detain aliens in order avoid flight pre- vent to the danger community. issue is whether power be may exercised by a still lawful detaining perma- nent resident alien when there is no reason for it and no way it. The challenge Court’s the Due holding Process Clause allows under a blanket rule is devoid even ostensible justification in fact and at odds with the settled I standard of liberty. respectfully dissent. in Justice concurring Breyer, part dissenting

part. I agree with the that majority the courts have jurisdiction, and I join Part I of its If opinion. I (as believed the majority ante, at 513-514, apparently see believes, 3) and n. that Kim had conceded that he is deportable, then I would conclude the Government could detain him without bail for the few weeks ordinarily for formal necessary aof entry order. Brief for Petitioners 39-40; ante, see at 528-531. Time limits of the kind set Zadvydas Davis, forth v. 533 U. S. 678 (2001), should these and govern longer periods detention, for an alien’s concession that he is deportable

30Indeed, the passages the Court quotes from Flores did not concern the regulation’s constitutionality all, at but rather its validity as an imple mentation of the Id., authorizing statute. at 313 (“Respondents also con tend that the INS regulation violates the statute because it relies upon ‘blanket’ presumption”). Flores separated clearly its analysis of the regu lation under the Due Process Clause from its analysis of the regulation id., under the id., statute. 300; See at see also at 318-319 (O’Connor, J., concurring) (pointing out the substantive id., process due analysis at at 301-306, and the procedural due process id., 306-309). analysis

577 entry equivalent of an order rough to me the seems under (reading statute, id., removal. at 699-701 See presump- commonly imposing a compulsion, constitutional post-removal- limit for of 6-month “reasonable” time tion detention). order concedes an alien case,

This is not one in which however, argues points deportability. out, Kim As Justice Souter concurring (opinion contrary. ante, to the See at 541-542 part). his earlier part dissenting in claims that Kim ” “ felony’ ‘aggravated nor for convictions were neither for an “ ” Respondent turpitude.’ 3, crimes of Brief for two ‘moral shifting given court 11-12, 31-32, and 29. And lower n. arguments say I his matters, views such cannot delay. solely interposed purposes are insubstantial or g., 1201, F. 3d See, Corona-Sanchez, e. United 291 States v. (CA9 2002) prior “aggravated (petty an theft with a felony”). Compare Omagah 254, F. 3d v. Ashcroft, (CA5 2002) (“‘Moral turpitude generally to conduct refers inherently public being base, that shocks the conscience as ”), depraved’ 2d vile, Kessler, or 98 F. with Guarneri v. “ (CA5 1938)(“Moral turpitude” ‘[a]nything 580-581 involves ”), justice, good contrary honesty, done principle morals’ (CA3 and Quilodran-Brau Holland, F. 2d 1956)(“The turpitude’ easy borderline of is not an one ‘moral locate”). being long legal arguments

That nei- so—as as Kim’s are interposed solely purposes ther insubstantial nor delay interpreted light immigration the in statutes, —then (if permit dangerous Constitution, a Kim neither nor risk) flight thing, obtain For one Kim’s to bail. constitu- strong. tional claims to bail in circumstances are these See concurring part ante, at 548-552, J., 557-558 (Souter, dissenting part). strong they enough to re- Indeed, are quire a us “ascertain whether construction of the statute fairly by may possible question [constitutional] is which the

be avoided.” Crowell (1932); v. Benson, 285 U. S. ac- Zadvydas, cord, supra, at 689.

For another, the literally relevant say statutes nothing about an who, individual armed argument with strong against deportability, might, might or not, fall within their § 1226(c) terms. Title 8 U. S. C. tells Attorney General custody any (em- “take into alien who deportable” ... phasis added), may, not one who may not, fall into that category. Indeed, the permits Government now such an alien to obtain if argument against bail his deportability is significantly stronger than substantial, e., i. strong enough to make it “substantially unlikely” that the Government will Joseph, (BIA win. 1999). Matter 22 I. & N. Dec. 799 3.19(h)(2)(ii) § (2002). Cf. 8 CFR Finally, bail standards drawn from justice the criminal system are available to fill statutory gap. Federal law makes bail available to a criminal defendant after conviction pending (1) appeal provided appeal is “not for the (2) purpose of delay,” appeal “raises a ques- substantial (3) tion of law or fact,” and defendant shows “clear and convincing that, evidence” if released, likely he “is not pose flee or danger safety” to the of the community. 3143(b). U. S. C. give These standards weight considerable any special governmental interest (e.g., process-related concerns or flight class-related risks, see 528). ante, at The standards protective are more of a de- tained liberty alien’s interest than currently those adminis- tered in the Immigration and Naturalization Joseph Service’s hearings. they And proved have in practice workable in the justice criminal system. Nothing in the statute forbids 1226(c) their use when deportability is in doubt.

I (silent) interpret would imposing statute as these bail standards. Zadvydas, Cf. supra, 698; United States v. Witkovich, 353 (1957); U. S. 194, 201-202 Dulles, Kent v. (1958). 357 U. S. 116, 129 interpreted, So the statute would require the permit Government to a detained alien to seek dangerousness flight risk an individualized assessment (1) deportable long is not claim he as the alien’s (2) delay solely purposes interposed raises question fact” And that that is not insubstantial. of “law my interpretation, with what the view, is consistent Con- I this case to the would remand Ninth stitution demands. Kim has raised such to determine whether claim. Circuit respect, contrary I from Court’s With dissent disposition.

Case Details

Case Name: Demore v. Kim

Court Name: Supreme Court of the United States

Date Published: Apr 29, 2003

Citation: 538 U.S. 510

Docket Number: 01-1491

Court Abbreviation: SCOTUS