Lead Opinion
delivered the opinion of the Court.
Section 236(c) of the Immigration and Nationality Act, 66 Stat. 200, as amended, 110 Stat. 3009-585, 8 U. S. C. § 1226(c), provides that “[t]he Attorney General shall take into custody any alien who” is removable from this country because he has been convicted of one of a specified set of crimes. Respondent is a citizen of the Republic of South Korea. He entered the United States in 1984, at the age of six, and became a lawful permanent resident of the United States two years later. In July 1996, he was convicted of first-degree burglary in state court in California and, in April 1997, he was convicted of a second crime, “petty theft with priors.” The Immigration and Naturalization Service (INS) charged respondent with being deportable from the United States in light of these convictions, and detained him pending his removal hearing.
Respondent does not dispute the validity of his prior convictions, which were obtained following the full procedural protections our criminal justice system offers. Respondent also did not dispute the INS’ conclusion that he is subject to
The District Court agreed with respondent that § 1226(c)’s requirement of mandatory detention for certain criminal aliens was unconstitutional. Kim v. Schiltgen, No. C 99-
The Court of Appeals for the Ninth Circuit affirmed. Kim v. Ziglar,
r — 1
We address first the argument that 8 U. S. C. § 1226(e) deprives us of jurisdiction to hear this case. See Florida v. Thomas,
“(e) Judicial review
“The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.”
The amicus argues that respondent is contesting a “decision by the Attorney General” to detain him under § 1226(c), and that, accordingly, no court may set aside that action. Brief for Washington Legal Foundation et al. as Amici Curiae 7-8.
But respondent does not challenge a “discretionary judgment” by the Attorney General or a “decision” that the Attorney General has made regarding his detention or release.
This Court has held that “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.” Webster v. Doe,
Section 1226(e) contains no explicit provision barring ha-beas review, and we think that its clear text does not bar respondent’s constitutional challenge to the legislation authorizing his detention without bail.
II
Having determined that the federal courts have jurisdiction to review a constitutional challenge to § 1226(c), we proceed to review respondent’s claim. Section 1226(c) man
The INS’ near-total inability to remove deportable criminal aliens imposed more than a monetary cost on the Nation. First, as Congress explained, “[a]liens who enter or remain in the United States in violation of our law are effectively taking immigration opportunities that might otherwise be extended to others.” S. Rep. No. 104-249, p. 7 (1996). Second, deportable criminal aliens who remained in the United States often committed more crimes before being removed. One 1986 study showed that, after criminal aliens were identified as deportable, 77% were arrested at least once more and 45% — nearly half — were arrested multiple times before their deportation proceedings even began. Hearing on H. R. 3333 before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the
Congress also had before it evidence that one of the major causes of the INS’ failure to remove deportable criminal aliens was the agency’s failure to detain those aliens during their deportation proceedings. See Department of Justice, Office of the Inspector General, Immigration and Naturalization Service, Deportation of Aliens After Final Orders Have Been Issued, Rep. No. 1-96-03 (Mar. 1996), App. 46 (hereinafter Inspection Report) (“Detention is key to effective deportation”); see also H. R. Rep. No. 104-469, p. 123 (1995). The Attorney General at the time had broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings when those aliens were determined not to present an excessive flight risk or threat to society. See 8 U. S. C. § 1252(a) (1982 ed.). Despite this discretion to conduct bond hearings, however, in practice the INS faced severe limitations on funding and detention space, which considerations affected its release determinations. S. Rep. 104-48, at 23 (“[Rjelease determinations are made by the INS in large part, according to the number of beds available in a particular region”); see also Reply Brief for Petitioners 9.
Once released, more than 20% of deportable criminal aliens failed to appear for their removal hearings. See S. Rep. 104-48, at 2; see also Brief for Petitioners 19.
Congress amended the immigration laws several times toward the end of the 1980’s. In 1988, Congress limited
During the same period in which Congress was making incremental changes to the immigration laws, it was also considering wholesale reform of those laws. Some studies presented to Congress suggested that detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal from this country. See, e. g., 1989 House Hearing 75; Inspection Report, App. 46; S. Rep. 104-48, at 32 (“Congress should consider requiring that all aggravated felons be detained pending deportation. Such a step may be necessary because of the high rate of no-shows for those criminal aliens released on bond”). It was following those Reports that Congress enacted 8 U. S. C. § 1226, requiring the Attorney General to detain a subset of deportable criminal aliens pending a determination of their removability.
“In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Mathews v. Diaz,
In his habeas corpus challenge, respondent did not contest Congress’ general authority to remove criminal aliens from the United States. Nor did he argue that he himself was not “deportable” within the meaning of § 1226(c).
“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Flores, supra, at 306. At the same time, however, this Court has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings “would be vain if those accused could not be held in custody pending the inquiry into their true character.” Wong Wing v. United States,
In Carlson v. Landon,
The Court rejected the aliens’ claims that they were entitled to be released from detention if they did not pose a flight risk, explaining “[detention is necessarily a part of this deportation procedure.” Id., at 538; see also id., at 535. The Court noted that Congress had chosen to make such aliens deportable based on its “understanding of [Communists’] attitude toward the use of force and violence ... to accomplish their political aims.” Id., at 541. And it concluded that the INS could deny bail to the detainees “by reference to the legislative scheme” even without any finding of flight risk. Id., at 543; see also id., at 550 (Black, J., dissenting) (“Denial [of bail] was not on the ground that if released [the aliens] might try to evade obedience to possible deportation orders”); id., at 551, and n. 6.
The dissent argues that, even though the aliens in Carlson were not flight risks, “individualized findings of dangerousness were made” as to each of the aliens. Post, at 573 (opinion of Souter, J.). The dissent, again, is mistaken. The aliens in Carlson had not been found individually dangerous.
Despite this Court’s longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings, respondent argues that the narrow detention policy reflected in 8 U. S. C. § 1226(c) violates due process. Respondent, like
In Zadvydas, the Court considered a due process challenge to detention of aliens under 8 U. S. C. § 1231 (1994 ed., Supp. V), which governs detention following a final order of removal. Section 1231(a)(6) provides, among other things, that when an alien who has been ordered removed is not in fact removed during the 90-day statutory “removal period,” that alien “may be detained beyond the removal period” in the discretion of the Attorney General. The Court in Zadvydas read § 1231 to authorize continued detention of an alien following the 90-day removal period for only such time as is reasonably necessary to secure the alien’s removal.
But Zadvydas is materially different from the present case in two respects.
First, in Zadvydas, the aliens challenging their detention following final orders of deportation were ones for whom removal was “no longer practically attainable.” Id., at 690. The Court thus held that the detention there did not serve its purported immigration purpose. Ibid. In so holding, the Court rejected the Government’s claim that, by detaining the aliens involved, it could prevent them from fleeing prior to their removal. The Court observed that where, as there, “detention’s goal is no longer practically attainable, detention no longer bears a reasonable relation to the purpose for which the individual was committed.” Ibid, (internal quotation marks and citation omitted).
In the present ease, the statutory provision at issue governs detention of deportable criminal aliens pending their
Respondent argues that these statistics are irrelevant and do not demonstrate that individualized bond hearings “are ineffective or burdensome.” Brief for Respondent 33-40. It is of course true that when Congress enacted § 1226, individualized bail determinations had not been tested under optimal conditions, or tested in all their possible permutations. But when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal. The evidence Congress had before it certainly supports the approach it selected even if other, hypothetical studies might have suggested different courses of action. Cf., e. g., Los Angeles v. Alameda Books, Inc.,
Zadvydas is materially different from the present case in a second respect as well. While the period of detention at issue in Zadvydas was “indefinite” and “potentially permanent,”
These statistics do not include the many cases in which removal proceedings are completed while the alien is still serving time for the underlying conviction. Id., at 40,
For the reasons set forth above, respondent’s claim must fail. Detention during removal proceedings is a constitutionally permissible part of that process. See, e. g., Wong Wing,
Reversed.
Notes
App. to Pet. for Cert. 32a; see 8 U. S. C. §§ 1101(a)(43)(G), 1227(a)(2) (A)(iii). Section 1226(c) authorizes detention of aliens who have committed certain crimes including, inter alia, any “aggravated felony,” §§ 1226(c)(1)(B), 1227(a)(2)(A)(iii), and any two “crimes involving moral turpitude,” §§ 1226(c)(1)(B), 1227(a)(2)(A)(ii). Although the INS initially included only respondent’s 1997 conviction in the charging document, it subsequently amended the immigration charges against him to include his 1996 conviction for first-degree burglary as another basis for mandatory detention and deportation. Brief for Petitioners 3, n. 2 (alleging that respondent’s convictions reflected two ‘“crimes involving moral turpitude’”).
As respondent explained: “The statute requires the [INS] to take into custody any alien who ‘is deportable’ from the United States based on having been convicted of any of a wide range of crimes.... [Respondent] does not challenge INS’s authority to take him into custody after he finished serving his criminal sentence. His challenge is solely to Section 1226(c)’s absolute prohibition on his release from detention, even where, as here, the INS never asserted that he posed a danger or significant flight risk.” Brief in Opposition 1-2.
This “Joseph hearing” is immediately provided to a detainee who claims that he is not covered by § 1226(c). Tr. of Oral Arg. 22. At the hearing, the detainee may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the INS is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention. See 8 CFR §3.19(h)(2)(ii) (2002); Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). Because respondent conceded that he was deportable because of a conviction that triggers § 1226(c) and thus sought no Joseph hearing, we have no occasion to review the adequacy of Joseph hearings generally in screening out those who are improperly detained pursuant to § 1226(c). Such individualized review is available, however, and Justice Souter is mistaken if he means to suggest otherwise. See post, at 555-556, 558 (opinion concurring in part and dissenting in part) (hereinafter dissent).
Although the Attorney General had authority to release these aliens on bond, it is not clear that all of the aliens released were in fact given individualized bond hearings. See Brief for Petitioners 19 (“[M]ore 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
The dissent also claims that the study demonstrated that “92% of criminal aliens . . . who were released under supervisory conditions attended all of their hearings.” Post, at 565 (opinion of SOUTEK, J.). The study did manage to raise the appearance rate for criminal aliens through a supervision program known as the Appearance Assistance Program (AAP). But the AAP study is of limited value. First, the study included only 16 aliens who, like respondent, were released from prison and charged with being deportable on the basis of an aggravated felony. 1 Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, pp. 33-34, 36 (Aug. 1, 2000). In addition, all 127 aliens in the AAP study were admitted into the study group only after being screened for “strength of family and community ties, appearance rates in prior legal proceedings, and eligibility to apply for a legal remedy.” Id., at 13; see also id., at 37. Following this selection process, “supervision staff were in frequent, ongoing communication with participants,” id., at 14, through, among other things, required reporting sessions, periodic home visits, and assistance in retaining legal representation, id., at 41-42. And, in any event, respondent seeks an individualized bond hearing, not “community supervision.” The dissent’s claim that criminal aliens released under supervisory conditions are likely to attend their hearings, post, at 565, therefore, is totally beside the point.
Respondent’s concession on this score is relevant for two reasons: First, because of the concession, respondent by his own choice did not receive one of the procedural protections otherwise provided to aliens detained under § 1226(c). And, second, because of the concession we do not reach a contrary argument raised by respondent for the first time in his brief on the merits in this Court. Specifically, in his brief on the merits, respondent suggests that he might not be subject to detention under § 1226(c) after all because his 1997 conviction for petty theft with priors might not qualify as an aggravated felony under recent Ninth Circuit precedent. Respondent now states that he intends to argue at his next removal hearing that “his 1997 conviction does not constitute an aggravated felony ... and his 1996 conviction [for first-degree burglary] does not constitute either an aggravated felony or a crime involving moral turpitude.” Brief for Respondent. 11-12. As respondent has conceded that he is deportable for purposes of his habeas corpus challenge to § 1226(c) at all previous stages of this proceeding, see n. 3, supra, we decide the case on that basis.
In fact, prior to 1907 there was no provision permitting bail for any aliens during the pendency of their deportation proceedings. See §20, 34 Stat. 905.
See Carlson v. London,
Apart from its error with respect to the dangerousness determination, the dissent attempts to distinguish Carlson from the present case by arguing that the aliens in Carlson had engaged in “ ‘personal activity’ ” in support of a political party Congress considered “ ‘a menace to the pub-•lie.’ ” Post, at 569 (opinion of Souter, J.). In suggesting that this is a distinction, the dissent ignores the “personal activity” that aliens like respondent have undertaken in committing the crimes that subject them to detention in the first instance — personal activity that has been determined with far greater procedural protections than any finding of “active membership” in the Communist Party involved in Carlson. See
The dissent denies this point, insisting that the detention at issue in Zadvydas actually did bear a reasonable relation to its immigration purpose. Post, at 561 (opinion of Soutek, J.) (“[T]he statute in Zadvydas . . . served the purpose of preventing aliens . . . from fleeing prior to actual deportation”).
The dissent concedes that “[t]he scheme considered in Zadvydas did not provide review immediately .... [CJustody review hearings usually occurred within three months of a transfer to a postorder detention unit.” Post, at 555, n. 11 (opinion of SOUTER, J.). Yet, in discussing the present case, the dissent insists that “the due process requirement of an individualized finding of necessity applies to detention periods shorter than” respondent’s. Post, at 568, n. 24 (citing Schall v. Martin, 467 U. S. 253, 270, 276-277 (1984), in which “the detainee was entitled to a hearing” when threatened with “a maximum detention period of 17 days”). The dissent makes no attempt to reconcile its suggestion that aliens are entitled to an immediate hearing with the holding in Zadvydas permitting aliens to be detained for several months prior to such a hearing.
The very limited time of the detention at stake under § 1226(c) is not missed by the dissent. See post, at 568 (opinion of Souter, J.) (“Successful challenges often require several months”); ibid, (considering “[t]he potential for several months [worth] of confinement”); but see post, at 549 (“potentially lengthy detention”).
Congress has directed the INS to identify and track deportable criminal aliens while they are still in the criminal justice system, and to complete removal proceedings against them as promptly as possible. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, §§432, 438(a), 110 Stat. 1273-1276; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, §§326, 329, 110 Stat. 3009-630 to 3009-631 (codified at 8 U. S. C. §1228). The INS therefore established the Institutional Hearing Program (IHP) (subsequently subsumed under the “Institutional Removal Program”). By 1997, the General Accounting Office found that nearly half of all deportable criminal aliens’ cases were completed through the IHP prior to the aliens’ release from prison. See General Accounting Office, Report to the Chairman, Subcommittee on Immigration and Claims of the House Committee on the Judiciary, INS’ Efforts to Remove Imprisoned Aliens Continue to Need Improvement 10, Fig. 1 (Oct. 1998). The report urged, however, that the INS needed to improve its operations in order to complete removal proceedings against all deportable criminal aliens before their release. Id., at 13. Should this come to pass, of course, § 1226(c) and the temporary detention it mandates would be rendered obsolete.
Prior to the enactment of § 1226(c), when the vast majority of deport-able criminal aliens were not detained during their deportation proceedings, many filed frivolous appeals in order to delay their deportation. See S. Rep. 104-48, at 2 (“Delays can earn criminal aliens more than work permits and wages — if they delay long enough they may even obtain U. S. citizenship”). Cf. Zadvydas,
Respondent was held in custody for three months before filing his habeas petition. His removal hearing was scheduled to occur two months later, but respondent requested and received a continuance to obtain documents relevant to his withholding application. See Brief for Respondent 9, n. 12.
Concurrence Opinion
concurring.
While the justification for 8 U. S. C. § 1226(c) is based upon the Government’s concerns over the risks of flight and danger to the community, ante, at 518-521, the ultimate purpose behind the detention is premised upon the alien’s deportability. As a consequence, due process requires individualized procedures to ensure there is at least some merit to the Immigration and Naturalization Service’s (INS) charge and, therefore, sufficient justification to detain a lawful permanent resident alien pending a more formal hearing. See Zadvydas v. Davis,
As the Court notes, these procedures were apparently available to respondent in this case. Respondent was entitled to a hearing in which he could have “raise[d] any non-frivolous argument available to demonstrate that he was not properly included in a mandatory detention category.” Ante, at 514, and n. 3 (citing 8 CFR § 3.19(h)(2)(ii) (2002); Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999)). Had he prevailed in such a proceeding, the Immigration Judge then would have had to determine if respondent “could be considered ... for release under the general bond provisions” of § 1226(a). Id., at 809. Respondent, however, did not seek relief under these procedures, and the Court had no occasion here to determine their adequacy. Ante, at 514, n. 3.
For similar reasons, since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified. Zadvydas,
Concurrence Opinion
with whom Justice Scalia and Justice Thomas join, concurring in part and concurring in the judgment.
I join all but Part I of the Court’s opinion because, a majority having determined there is jurisdiction, I agree with the Court’s resolution of respondent’s challenge on the merits. I cannot join Part I because I believe that 8 U. S. C. § 1226(e) unequivocally deprives federal courts of jurisdiction to set aside “any action or decision” by the Attorney General in detaining criminal aliens under § 1226(c) while removal proceedings are ongoing. That is precisely the nature of the action before us.
I
I begin with the text of the statute:
“The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” § 1226(e) (emphasis added).
There is no dispute that after respondent’s release from prison in 1999, the Attorney General detained him “under this section,” i. e., under § 1226. And, the action of which respondent complains is one “regarding the detention or release of a[n] alien or the grant, revocation, or denial of bond or parole.” § 1226(e). In my view, the only plausible reading of § 1226(e) is that Congress intended to prohibit federal courts from “set[ting] aside” the Attorney General’s decision
I recognize both the “strong presumption in favor of judicial review of administrative action” and our “longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction.” INS v. St. Cyr,
In St. Cyr, the Court held that certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) do not strip federal courts of their jurisdiction to review an alien’s habeas claim that he or she is eligible for a waiver of deportation.
In St. Cyr, the Court stressed the significance of Congress’ use of the term “judicial review” in each of the jurisdictional-limiting provisions at issue. In concluding that Congress had not intended to limit habeas jurisdiction by limiting “judicial review,” the Court reasoned as follows:
“The term ‘judicial review’ or ‘jurisdiction to review’ is the focus of each of these three provisions. In the im*535 migration context, ‘judicial review* and ‘habeas corpus’ have historically distinct meanings. See Heikkila v. Barber,345 U. S. 229 (1953). In Heikkila, the Court concluded that the finality provisions at issue ‘precluded] judicial review* to the maximum extent possible under the Constitution, and thus concluded that the [Administrative Procedure Act] was inapplicable. Id., at 235. Nevertheless, the Court reaffirmed the right to habeas corpus. Ibid. Noting that the limited role played by the courts in habeas corpus proceedings was far narrower than the judicial review authorized by the APA, the Court concluded that ‘it is the scope of inquiry on habeas corpus that differentiates’ habeas review from ‘judicial review.’” Id., at 311-312.
In this case, however, § 1226(e) does not mention any limitations on “judicial review.” To be sure, the first sentence of § 1226(e) precludes “review” of the Attorney General’s “discretionary judgment[s]” to detain aliens under § 1226(c). But the second sentence is not so limited, and states unequivocally that “[n]o court may set aside any action or decision” to detain an alien under § 1226(c). It cannot seriously be maintained that the second sentence employs a term of art such that “no court” does not really mean “no court,” or that a decision of the Attorney General may not be “set aside” in actions filed under the Immigration and Naturalization Act but may be set aside on habeas review.
Congress’ use of the term “Judicial review” as the title of § 1226(e) does not compel a different conclusion. As the Court stated in St. Cyr, “a title alone is not controlling,” id., at 308, because the title of a statute has no power to give what the text of the statute takes away. Where as here the statutory text is clear, “ ‘the title of a statute... cannot limit the plain meaning of the text.’” Pennsylvania Dept. of Corrections v. Yeskey,
I recognize that the two Courts of Appeals that have considered the issue have held that § 1226(e) does not preclude habeas claims such as respondent’s. See Patel v. Zemski,
The Seventh Circuit sought support from our decision in Reno v. American-Arab Anti-Discrimination Comm.,
II
Because § 1226(e) plainly deprives courts of federal habeas jurisdiction over claims that mandatory detention under § 1226(c) is unconstitutional, one could conceivably argue that such a repeal violates the Suspension Clause, which provides as follows: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U. S. Const., Art. I, § 9, cl. 2. The clarity of § 1226(e)’s text makes such a question unavoidable, unlike in St. Cyr, where the Court invoked the doctrine of constitutional doubt and interpreted the relevant provisions of AEDPA and IIRIRA not to repeal habeas jurisdiction. St. Cyr, supra, at 314; see also Seminole Tribe of Fla. v. Florida,
In my view, any argument that § 1226(e) violates the Suspension Clause is likely unavailing. St. Cyr held that “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’”
Admittedly, discerning the relevant habeas corpus law for purposes of Suspension Clause analysis is a complex task. Nonetheless, historical evidence suggests that respondent would not have been permitted to challenge his temporary detention pending removal until very recently. Because colonial America imposed few restrictions on immigration, there is little case law prior to that time about the availability of habeas review to challenge temporary detention pending exclusion or deportation. See St. Cyr, supra, at 305. The English experience, however, suggests that such review was not available:
“In England, the only question that has ever been made in regard to the power to expel aliens has been whether it could be exercised by the King without the consent of Parliament. It was formerly exercised by the King, but in later times by Parliament, which passed several acts on the subject between 1793 and 1848. Eminent English judges, sitting in the Judicial Committee of the Privy Council, have gone very far in supporting the exclusion or expulsion, by the executive authority of a colony, of aliens having no absolute right to enter its territory or to remain therein.” Fong Yue Ting v. United States,149 U. S. 698 , 709 (1893) (citations omitted).
In this country, Congress did not pass the first law regulating immigration until 1875. See 18 Stat. (pt. 3) 477. In the late 19th century, as statutory controls on immigration tightened, the number of challenges brought by aliens to Government deportation or exclusion decisions also increased. See St. Cyr, supra, at 305-306. Because federal immigration laws from 1891 until 1952 made no express provision for judicial review, what limited review existed took the form of pe
By the mid-20th century, the number of aliens in deportation proceedings being released on parole rose considerably. See, e. g., Carlson v. Landon,
So far as I am aware, not until 1952 did we entertain such a challenge. See Carlson v. Landon, supra. And there, we reaffirmed the power of Congress to order the temporary detention of aliens during removal proceedings. Id., at 538. In Reno v. Flores, we likewise rejected a similar challenge to such detention. And, Flores was a wide-ranging class action in which 28 U. S. C. § 2241 was but one of several statutes invoked as the basis for federal jurisdiction.
Concurrence Opinion
with whom Justice Stevens and Justice Ginsburg join, concurring in part and dissenting in part.
Respondent Klim is an alien lawfully admitted to permanent residence in the United States. He claims that the Constitution forbids the Immigration and Naturalization Service (INS) from detaining him under 8 U. S. C. § 1226(c) unless his detention serves a government interest, such as preventing flight or danger to the community. He contends that due process affords him a right to a hearing before an impartial official,
I join Part I of the Court’s opinion, which upholds federal jurisdiction in this case, but I dissent from the Court’s dispo
The Court’s approval of lengthy mandatory detention can therefore claim no justification in national emergency or any risk posed by Kim particularly. The Court’s judgment is unjustified by past cases or current facts, and I respectfully dissent.
I
At the outset, there is the Court’s mistaken suggestion that Kim “conceded” his removability, ante, at 514, 523, and n. 6, 531. The Court cites no statement before any court conceding removability, and I can find none. At the first opportunity, Kim applied to the Immigration Court for withholding of removal, Brief for Respondent 9, n. 12, and he
The suggestion that Kim should have contested his remov-ability in this habeas corpus petition, ante, at 522-523, and n. 6, misses the point that all he claims, or could now claim, is that his detention pending removal proceedings violates the Constitution. Challenges to removability itself, and applications for relief from removal, are usually submitted in the first instance to an immigration judge. See 8 U. S. C. § 1229a(a)(3). The Immigration Judge had not yet held an initial hearing on the substantive issue of removability when Kim filed his habeas petition in the District Court, even though Kim had been detained for over three months under § 1226(c). If Kim’s habeas corpus petition had claimed “that he himself was not ‘deportable,”’ as the Court suggests it should have, ante, at 522, the District Court would probably have dismissed the claim as unexhausted. E. g., Espinal v. Filion, No. 00-CIV-2647-HB-JCF,
► — I
A
It has been settled for over a century that all aliens within our territory are “persons” entitled to the protection of the Due Process Clause. Aliens “residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility.” Fong Yue Ting v. United States,
The constitutional protection of an alien’s person and property is particularly strong in the case of aliens lawfully
Once they are admitted to permanent residence, LPRs share in the economic freedom enjoyed by citizens: they may compete for most jobs in the private and public sectors without obtaining job-specific authorization, and apart from the franchise, jury duty, and certain forms of public assistance, their lives are generally indistinguishable from those of United States citizens. That goes for obligations as well as opportunities. Unlike temporary, nonimmigrant aliens, who are generally taxed only on income from domestic sources or connected with a domestic business, 26 U. S. C. § 872, LPRs, like citizens, are taxed on their worldwide income, 26 CFR §§ 1.1-1(b), 1.871-1(a), 1.871-2(b) (2002). Male LPRs between the ages of 18 and 26 must register under the Selective Service Act of 1948, eh. 625, Tit. I, §3, 62 Stat. 605.
The attachments fostered through these legal mechanisms are all the more intense for LPRs brought to the United States as children. They grow up here as members of the society around them, probably without much touch with their country of citizenship, probably considering the United
Our decisions have reflected these realities. As early as 1892, we addressed an issue of statutory construction with the realization that “foreigners who have become domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction on the footing upon which such persons stand by reason of their domicil of choice ... is to be presumed.” Lau Ow Bew v. United States,
The law therefore considers an LPR to be at home in the United States, and even when the Government seeks removal, we have accorded LPRs greater protections than other aliens under the Due Process Clause. In Landon v. Plasencia,
Although LPRs remain subject to the federal removal power, that power may not be exercised without due process, and any decision about the requirements of due process for an LPR must account for the difficulty of distinguishing in practical as well as doctrinal terms between the liberty interest of an LPR and that of a citizen.
Kim’s claim is a limited one: not that the Government may not detain LPRs to ensure their appearance at removal hear
Accordingly, the Fifth Amendment permits detention only where “heightened, substantive due process scrutiny” finds a “‘sufficiently compelling’” governmental need. Flores, supra, at 316 (O’Connor, J., concurring) (quoting Salerno,
We have reviewed involuntary civil commitment statutes the same way. In Addington v. Texas,
In addition to requiring a compelling reason for detention, we held that the class of persons affected must be narrow and, in pretrial-type lockup, the time must be no more than what is reasonably necessary before the merits can be resolved. In the case of the Bail Reform Act, we placed weight on the fact that the statute applied only to defendants suspected of “the most serious of crimes,” Salerno, supra, at 747; see also Foucha, supra, at 81, while the statute in Kansas v. Hendricks,
The substantive demands of due process necessarily go hand in hand with the procedural, and the cases insist at the least on an opportunity for a detainee to challenge the reason claimed for committing him. E. g., Hendricks, supra, at 357 (stating that civil commitment was permitted where “the confinement takes place pursuant to proper procedures and evidentiary standards”); Foucha, supra, at 81-82 (invalidating a statute under which “the State need prove nothing to justify continued detention”); Salerno, supra, at 751 (“[T]he procedures by which a judicial officer evaluates the likelihood of future dangerousness are specifically designed to further the accuracy of that determination”); Addington, supra, at 427 (requiring a heightened burden of proof “to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered”).
These eases yield a simple distillate that should govern the result here. Due process calls for an individual determination before someone is locked away. In none of the cases cited did we ever suggest that the government could avoid the Due Process Clause by doing what § 1226(e) does, by selecting a class of people for confinement on a categorical basis and denying members of that class any chance to dispute the
C
We held as much just two Terms ago in Zadvydas v. Davis,
Thus, we began by positing commonly accepted substantive standards and proceeded to enquire into any “special justification” that might outweigh the aliens’ powerful interest in avoiding physical confinement “under [individually ordered] release conditions that may not be violated.” Id., at 696. We found nothing to justify the Government’s position. The statute was not narrowed to a particularly dangerous class of aliens, but rather affected “aliens ordered removed for many and various reasons, including tourist visa violations.” Id., at 691. The detention itself was not subject to “stringent time limitations,” Salerno, supra, at 747, but was potentially indefinite or even permanent, Zadvydas,
Our individualized analysis and disposition in Zadvydas support Kim’s claim for an individualized review of his challenge to the reasons that are supposed to justify confining him prior to any determination of removability. In fact, aliens in removal proceedings have an additional interest in avoiding confinement, beyond anything considered in Zadvydas: detention prior to entry of a removal order may well impede the alien’s ability to develop and present his case on the very issue of removability. See Brief for Citizens and Immigrants for Equal Justice et al. as Amici Curiae 20-23. After all, our recognition that the serious penalty of removal must be justified on a heightened standard of proof, Woodby v. INS,
In fact, the principal dissenters in Zadvydas, as well as the majority, accepted a theory that would compel success for Kim in this case. The dissent relied on the fact that Zadvydas and Ma were subject to a “final order of removal” and had “no right under the basic immigration laws to remain in this country,”
Hence the Zadvydas dissent’s focus on “whether there are adequate procedures” allowing “persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large.” Ibid.; see also id., at 722-723. Indeed, there is further support for 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” of satisfying procedural due process, id., at 722;
D
In sum, due process requires a “special justification” for physical detention that “outweighs the individual’s constitutionally protected interest in avoiding physical restraint” as well as “adequate procedural protections.” Zadvydas,
Kim’s detention without particular justification in these respects, or the opportunity to enquire into it, violates both components of due process, and I would accordingly affirm the judgment of the Court of Appeals requiring the INS to hold a bail hearing to see whether detention is needed to avoid a risk of flight or a danger to the community.
Ill
The Court proceeds to the contrary conclusion on the premise that “the Government may constitutionally detain
The question, rather, is whether Congress has chosen “ ‘a constitutionally permissible means of implementing’ [its immigration] power.” Zadvydas, supra, at 695 (quoting INS v. Chadha,
The Court spends much effort trying to distinguish Zad-vydas, but even if the Court succeeded, success would not avail it much. Zadvydas was an application of principles developed in over a century of cases on the rights of aliens and the limits on the government’s power to confine individuals. While there are differences between detention pending removal proceedings (this case) and detention after entry of a removal order (Zadvydas), the differences merely point up
First, the Court says that § 1226(e) “serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings.” Ante, at 528. Yes it does, and the statute in Zadvydas, viewed outside the context of any individual alien’s detention, served the purpose of preventing aliens ordered to be deported from fleeing prior to actual deportation. In each case, the fact that a statute serves its purpose in general fails to justify the detention of an individual in particular. Some individual aliens covered by § 1226(e) have meritorious challenges to removability or claims for relief from removal. See Brief for Citizens and Immigrants for Equal Justice et al. as Amici Curiae 10-20. As to such aliens, as with Zadvydas and Ma, the Government has only a weak reason under the immigration laws for detaining them.
The Court appears to respond that Congress may require detention of removable aliens based on a general conclusion that detention is needed for effective removal of criminal aliens on a class-wide basis. But on that logic Zadvydas should have come out the other way, for detention of the entire class of aliens who have actually been ordered removed will in general “serv[e] the purpose” of their effective removal, ante, at 528. Yet neither the Court nor JUSTICE Kennedy in dissent suggested that scrutiny under the Due Process Clause could be satisfied at such a general level. Rather, we remanded the individual eases of Zadvydas and Ma for determinations of the strength of the Government’s
The Court’s closest approach to a reason justifying class-wide detention without exception here is a Senate Report stating that over 20% of nondetained criminal aliens failed
The Court’s recognition that, at the time of the enactment of § 1226(c), “individualized bail determinations had not been tested under optimal conditions” is thus rather an understatement. Ante, at 528. The Court does not explain how the INS’s resource-driven decisions to release individuals who pose serious flight risks, and their predictable failure to attend removal hearings, could justify a systemwide denial of any opportunity for release to individuals like Kim who are neither flight risks nor threats to the public.
The Court also cites a report by the Department of Justice relied upon by the Government. Department of Justice, Office of the Inspector General, Immigration and Naturalization Service, Deportation of Aliens After Final Orders Have Been Issued, Rep. No. 1-96-03 (Mar. 1996), App. 14 (hereinafter Post-Order Report), cited ante, at 519, 521. But that report does not even address the issue of detention before a determination has been made that an alien is removable. As its title indicates, the Post-Order Report analyzed removal rates only for aliens who had already received final orders of removability.
In sum, the Court’s inapposite statistics do not show that detention of criminal LPRs pending removal proceedings, even on a general level, is necessary to ensure attendance at removal hearings, and the Vera Institute Study reinforces the point by establishing the effectiveness of release under supervisory conditions, just as we did in Zadvydas.
In the first place, the average time from receipt of charging documents to decision obscures the fact that the alien may receive charging documents only after being detained for a substantial period. Kim, for example, was not charged until five weeks after the INS detained him. Brief for Respondent 9.
Even more revealing is an explanation of the raw numbers that are averaged out. As the Solicitor General conceded, the length of the average detention period in great part reflects the fact that the vast majority of cases involve aliens who raise no challenge to removability at all. Tr. of Oral Arg. 57. LPRs like Kim, however, will hardly fit that pattern. Unlike many illegal entrants and temporary nonimmi-grants, LPRs are the aliens most likely to press substantial
B
The Court has failed to distinguish Zadvydas in any way that matters. It does no better in its effort to portray its result in this case as controlled by Carlson v. Landon,
Carlson did not involve mandatory detention. It involved a system similar to the one Kim contends for here. The aliens’ detention pending deportation proceedings in Carlson followed a decision on behalf of the Attorney General that custody was preferable to release on bond or on conditional parole.
Indeed, the Carlson Court’s constitutional analysis relying on the opportunity for individualized bond determinations simply followed the argument in the brief for the United States in that case. In response to the aliens’ argument that the statute made it “mandatory on the Attorney General to deny bail to alien communists,” the Government stated, “[w]e need not consider the constitutionality of such a law for that is not what the present law provides.” Brief for Respondent in Carlson v. Landon, O. T. 1951, No. 35, p. 19; see also id., at 20 (“[T]he act itself, by its terms, leaves no doubt that, the power to detain is discretionary, not mandatory”). The
“ ‘No particular hardship is going to be worked on anyone because, bear this fact in mind, it is not mandatory on the Attorney General to hold people in detention. He is given discretionary power. If in his judgment one of the class of people I have just mentioned ought to be held for paramount national reasons, he may detain him, but he is not obliged to hold anybody, although I trust that in every case of a subversive or a hardened criminal he will.’” Id., at 19 (quoting 96 Cong. Rec. 10449-10450 (1950) (statement of Rep. Walter) (emphasis added in Brief for Respondent in Carlson v. Landon, supra)).
In short, Carlson addressed a very different scheme from the one here.
It is also beside the point for the Court to suggest that “like respondent in the present case,” the Carlson petitioners challenged their detention because “there had been no finding that they were unlikely to appear for their deportation proceedings.” Ante, at 524. Each of them was detained after being found to be “a menace to the public interest,”
For the same reason it is beside the point to note that the unsuccessful Carlson petitioners’ brief raised a claim that detention without reference to facts personal to their individual cases would violate the Due Process Clause. Ante, at 524. As the United States pointed out in its own Carlson brief, that issue was never presented, since the District Director’s exercise of discretion was based on individualized determinations that the petitioners were dangerous to society. See supra, at 570.
The Court refuses to accept the opinion of the Carlson Court and the representations made in the successful brief for the Government in that case. The Court not only fails to acknowledge the actual holding of Carlson; it improperly adopts as authority statements made in dissent. The Court’s emphatic assertion that “[t]here was no ‘individualized findin[g]’ of likely future dangerousness as to any of the aliens,” ante, at 525, rests entirely on opinions voiced in dissent, although the Court only mentions this fact in a footnote, ante, at 525, n. 8 (citing
Moreover, the Carlson dissenters did not suggest that no individualized determinations had occurred; rather, they contended that the District Director’s individual findings of dangerousness were unsupported by sufficient reliable evidence. See id., at 549-550 (Black, J., dissenting) (arguing that the aliens were not in fact “ ‘dangerous’ ” at all); id., at 552 (arguing that danger findings were based on “the rankest hearsay evidence” instead of the INS being “required to prove” that the detainee was dangerous); id., at 555-556 (arguing that activity within the Communist movement did not make the aliens “dangerous”); id., at 566-567 (Frankfurter, J.,
Finally, the Court gets no help from the isolated passages of the Carlson opinion that it quotes. Although the Carlson Court stated that detention was “‘a part’” of deportation procedure, ante, at 524 (quoting Carlson,
2
The Court’s paragraph on Flores, supra, is no more help to it. Like Carlson, Flores did not involve mandatory detention, and the INS regulation at issue in Flores actually required that alien juveniles be released pending removal proceedings unless the INS determined that detention was required “ ‘to secure [the juvenile’s] timely appearance before the [INS] or the immigration court or to ensure the juvenile’s safety or that of others.’ ”
Thus, the substantive due process issue in Flores was not whether the aliens’ detention was necessary to a governmental purpose: “ ‘freedom from physical restraint’ ” was “not at issue” at all because, as juveniles, the aliens were “ ‘always in some form of custody.’ ”
Flores is equally distinguishable at the procedural level. We held that the procedures for the custody decision sufficed constitutionally because any determination to keep the alien “in the custody of the [INS], released on recognizance, or released under bond” was open to review by the immigration court, the Board of Immigration Appeals, and the federal courts. Id., at 308. Like the aliens in Carlson, the juveniles in Flores were subject to a different system and raised a different complaint from Kim’s.
While Flores holds that the INS may use “reasonable presumptions and generic rules” in carrying out its statutory discretion,
>
This case is not about the National Government’s undisputed power to detain aliens in order to avoid flight or prevent danger to the community. The issue is whether that power may be exercised by detaining a still lawful permanent resident alien when there is no reason for it and no way to challenge it. The Court’s holding that the Due Process Clause allows this under a blanket rule is devoid of even ostensible justification in fact and at odds with the settled standard of liberty. I respectfully dissent.
Kim does not claim a hearing before any specific official. The generality of his claim may reflect the fact, noted just below, that the INS released him on bond without any hearing whatsoever after the District Court entered its judgment in this case. App. 11-13. Accordingly, there is no occasion to enquire whether due process requires ‘access to any particular arbiter, such as one unaffiliated with the INS. I therefore use the neutral term “impartial” in describing the hearing Kim claims.
In 1996, Congress combined “deportation” and “exclusion” proceedings into a single “removal” proceeding. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, § 304(a), 110 Stat. 3009-587, adding 8 U. S. C. § 1229a. Because this case requires consideration of cases decided both before and after 1996, this opinion refers to “removal” generally but, where the context requires, distinguishes between “deportation” of aliens who have entered the United States and “exclusion” of aliens who seek entry.
The Court’s effort to explain its reference to a nonexistent concession, ante,- at 522-523, n. 6, seeks to gain an advantage from the fact that the Immigration and Nationality Act uses the word “deportable” in various ways, one being to describe classes of aliens who may be removed if the necessary facts are proven, e. g., § 1227(a), and another to describe aliens who have actually been adjudged as being in the United States unlawfully,
Although an LPR may seek exemption or discharge from registration on the grounds of alienage, such an action permanently bars the LPR from seeking United States citizenship. 8 U. S. C. § 1426(a).
See also Welch v. Ashcroft,
In The Venus,
“Although the holding [in Kwong Hai Chew] was one of regulatory interpretation, the rationale was one of constitutional law. Any doubts that Chew recognized constitutional rights in the resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, [
This case provides no occasion to determine the constitutionality of mandatory detention of aliens other than LPRs.
The statement that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens,” Mathews v. Diaz,
“In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens and the reservation of the power to deport have no permissible counterpart in the Federal Government’s power to regulate the conduct of its own citizenry. The fact that an Act of Con-, gress treats aliens differently from citizens does not in itself imply that such disparate treatment is ‘invidious.’ ” Id., at 79-80 (footnotes omitted).
Taken in full, the meaning of this paragraph is plain: through the exercise of the deportation and exclusion power, Congress exposes aliens to a treatment (expulsion) that cannot be imposed on citizens. The cases cited in the footnotes to this paragraph accordingly all concern Congress’s power to enact grounds of exclusion or deportation. Id., at 80, nn. 14-15 (citing Klemdienst v. Mandel,
Even on its terms, the Diaz statement is dictum. We acknowledged immediately that “[t]he real question presented by [Diaz] is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens — allowing benefits to some aliens but not to others — is permissible.”
The Court does not explain why it believes the Diaz dictum to be relevant to this case, other than to repeat it and identify prior instances of its quotation. Ante, at 521-522. The Court resists calling the statement “ ‘dictum,’ ” ante, at 521, but it does not deny that Diaz involved “discrimination within the class of aliens” rather than “discrimination between citizens and aliens,”
In support of its standard, the dissent relied on a report by the United Nations High Commissioner for Refugees, which likewise countenanced detention only “in cases of necessity” and stated, under a heading entitled “Guideline 3: Exceptional Grounds for Detention”:
“There should be a presumption against detention. Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as reporting obligations or guarantor requirements ...), these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case. Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful and legitimate purpose.” United Nations High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (Feb. 1999) (hereinafter Detention Guidelines) (emphasis in original), cited in Zadvydas,
The High Commissioner also referred to the “minimum procedural guár-antele]” for a detainee “either personally or through a representative, to challenge the necessity of the deprivation of liberty at the review hearing, and to rebut any findings made.” Detention Guidelines, Guideline 5: Procedural Safeguards.
The scheme considered in Zadvydas did not provide review immediately after the removability determination; the dissent noted that custody review hearings usually occurred within three months of a transfer to a postorder detention unit, with further reviews annually or more frequently if the alien requested them.
The hearing recognized in Matter of Joseph, 221. & N. Dec. 799 (BIA 1999), is no response to this deficiency. As the Court notes, the “ ‘Joseph hearing’ ” only permits an alien to show that he does not meet the statutory criteria for mandatory detention under § 1226(c). Ante, at 514, and n. 3. Kim argues that, even assuming that he fits under the statute, the statute’s application to LPRs like him does not fit under the Due Process Clause.
Justice Kennedy recognizes that the Due Process Clause requires “an individualized determination as to [an LPR’s] risk of flight and dangerousness if the continued detention [becomes] unreasonable or unjustified.” Ante, at 532 (concurring opinion). It is difficult to see how Kim’s detention in this case is anything but unreasonable and unjustified, since the Government concedes that detention is not necessary to completion of his removal proceedings or to the community’s protection. Certainly the fact that “there is at least some merit to the [INS’s] charge” that Kim should be held to be removable, ante, at 531, does not establish a compelling reason for detention. The INS releases many noncriminal aliens on bond or on conditional parole under § 1226(a)(2) pending removal proceedings, and the fact that Kim has been convicted of criminal offenses does not on its own justify his detention, see supra, at 550-553.
Welch v. Ashcroft,
Although Kim is a convicted criminal, we are not concerned here with a State’s interest in punishing those who violate its criminal laws. Kim completed the criminal sentence imposed by the California courts on February 1, 1999, and California no longer has any interest in incarcerating him.
The Court’s citations to Wong Wing v. United States,
Moreover, the Wong Wing dictum must be understood in light of the common contemporary practice in the federal courts of releasing aliens on bail pending deportation proceedings. While the Court is correct that the first statutory provision permitting Executive officials to release aliens on bond was enacted in 1907, ante, at 523, n. 7, the Court ignores the numerous judicial grants of bail prior to that year. See, e. g., United States ex rel. Turner v. Williams,
As Judge Augustus Hand later noted, the only change in 1907 was that bail decisions were committed to the discretion of Executive officials, rather than judges:
“Prior to the passage by Congress in 1907 of the act empowering the administrative official to fix bail, various courts made it a practice to grant bail to aliens during deportation hearings.... In our opinion that act was intended to place the general determination of granting bail in the hands of the authorities charged with the enforcement of the deportation laws as persons ordinarily best qualified to perform such a function . . . .” United States ex rel. Potash v. District Director of Immigration and Naturalization,
Thus, while Wong Wing stated in passing that detention may be used where it was “part of the means necessary” to the removal of aliens,
The judicial grants of bail prior to 1907 arose in federal habeas proceedings. Contrary to Justice O’Connor’s objection to federal jurisdiction in this matter, there is indeed a “history of routine reliance on habeas jurisdiction to challenge the detention of aliens without bail pending the conclusion of removal proceedings.” Ante, at 536 (opinion concurring in part and concurring in judgment).
The Court tellingly does not even mention Salerno, Foucha, Hendricks, or Jackson.
The Court is therefore mistaken in suggesting that I view the detention of the individual aliens in Zddvydas as serving a governmental purpose. Ante, at 527, n. 10. The Court confuses the “statute in Zadvydas, viewed outside the context of any individual alien’s detention,” supra, at 561, with the “detention at issue in Zadvydas,” ante, at 527, n. 10, namely, the detention of Zadvydas and Ma as individuals. The due process analysis in Zadvydas concentrated on the latter, holding that the detention of Zadvydas and Ma would not serve a legitimate immigration purpose if there were no “significant likelihood of removal in the reasonably foreseeable future.”
Nor can the general risk of recidivism, ante, at 518-519, justify this measure. The interest in preventing recidivism may be vindicated “by the ordinary criminal processes involving charge and conviction, the use of enhanced sentences for recidivists, and other permissible ways of dealing with patterns of criminal conduct.” Foucha v. Louisiana,
Detention of such aliens is governed by the statute at issue in Zadvydas, § 1231(a), not by § 1226(c).
A prior study by the same body noted that nonappearance rates by aliens in deportation proceedings before issuance of orders to deport (aliens, that is, like Kim) were approximately 23% for the first half of 1993 and 21% for all of 1992. Department of Justice, Office of the Inspector General, Case Hearing Process in the Executive Office for Immigration Review, Rep. No. 1-93-03, p. 5 (May 1994) (hereinafter Case Hearing Report). Congress appears to have considered these relevant figures, Senate Report 2 (“Over 20 percent of nondetained criminal aliens fail to appear for deportation proceedings”), without referring to irrelevant postorder numbers. The Government relied on the Post-Order Report
The Court throws in minor criticisms of the Vera Institute Study that have no bearing on its relevance here. The institute’s supervised release program included 127 criminal aliens who would be subject to mandatory detention under § 1226(c) because of their criminal histories. Vera Institute Study 33. Since the INS seeks Kim’s removal on the grounds of either crimes of moral turpitude or an aggravated felony, see ante, at 513, n. 1, the fact that most of the Vera Institute Study’s subjects were convicted of crimes of moral turpitude but not an aggravated felony, ante, at 520, n. 5, is of no moment. Nor were all of the aliens studied subject to intensive supervision, ibid.; most were subject to “regular supervision,” which involved no mandatory reporting sessions beyond an initial orientation session with supervision staff and required only that the alien keep the staff apprised of a current mailing address, appear in court, and comply with the orders of the immigration judge, Vera Institute Study 17-18. That the institute considered various screening criteria before authorizing supervised release, ante, at 520, n. 5, does not undermine the value of the study, since any program adopted by the INS in lieu of mandatory detention could do the same. Cf. Zadvydas,
This case accordingly presents no issue of ‘“court ordered release,’” ante, at 530, n. 14 (quoting Zadvydas, supra, at 713 (Kennedy, J., dissenting)); in this case, for example, the INS reached its own determination to release Kim on bond. This case concerns only the uncontroversial requirement that detention serve a compelling governmental interest and that detainees be afforded adequate procedures ensuring against erroneous confinement. E. g., Salerno,
Criminal aliens whose “removal proceedings are completed while [they are] still serving time for the underlying conviction,” ante, at 529, are irrelevant to this case, since they are never detained pending removal proceedings under § 1226(c).
The Court calls several months of unnecessary imprisonment a “very limited time,” ante, at 529, n. 12. But the due process requirement of an individualized finding of necessity applies to detention periods shorter than Kim’s. Schall v. Martin,
Similarly, the question presented in Butterfield v. Zydok, argued and decided together with Carlson, was “[w]hether, in exercising his discretion to grant or withhold bail pending final determination of the deportability
While a prior conviction may sometimes evidence a risk of future danger, it is not conclusive in all cases, and Kim is a good example, given that the Government found that he “would not be considered a threat.” App. 13. Indeed, the Court acknowledges that convictions are only “relevant to” dangerousness, ante, at 525, n. 9; it does not state that they compel a finding of 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 detention by showing “that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large.”
In the footnote immediately following its citation of dissenting opinions, the Court cites a passage from the Carlson majority opinion confirming that the Carlson petitioners’ detention rested on the “allegation, supported by affidavits, that the [INS’s] dossier of each petitioner contained evidence” of Communist Party membership and activities “to the prejudice of the public interest.”
Justice Black’s dissenting statement that one of the aliens was “‘not likely to engage in any subversive activities,”’
Likewise, Justice Frankfurter’s statement in dissent that the Solicitor General of the United States had “advised” that “it has been the Government’s policy ... to terminate bail” for aliens awaiting deportation who were “present active Communists,”
Nor is it to the point for the Court to quote Flores as rejecting the aliens’ challenge to a “ ‘ “blanket” presumption of the unsuitability of custodians other than parents, close relatives, and guardians.’ ” Ante, at 526 (quoting
Indeed, the passages the Court quotes from Flores did not concern the regulation’s constitutionality at all, but rather its validity as an implementation of the authorizing statute. Id., at 313 (“Respondents also contend that the INS regulation violates the statute because it relies upon a ‘blanket’ presumption”). Flores clearly separated its analysis of the regulation under the Due Process Clause from its analysis of the regulation under the statute. See id., at 300; see also id., at 318-319 (O’Connor, J., concurring) (pointing out the substantive due process analysis at id., at 301-306, and the procedural due process analysis at id., at 306-309).
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the majority that the courts have jurisdiction, and I join Part I of its opinion. If I believed (as the majority apparently believes, see ante, at 513-514, and n. 3) that Kim had conceded that he is deportable, then I would conclude that the Government could detain him without bail for the few weeks ordinarily necessary for formal entry of a removal order. Brief for Petitioners 39-40; see ante, at 528-531. Time limits of the kind set forth in Zadvydas v. Davis,
This case, however, is not one in which an alien concedes deportability. As Justice Souter points out, Kim argues to the contrary. See ante, at 541-542 (opinion concurring in part and dissenting in part). Kim claims that his earlier convictions were neither for an “ ‘aggravated felony’ ” nor for two crimes of “ ‘moral turpitude.’ ” Brief for Respondent 3, 11-12, 31-32, and n. 29. And given shifting lower court views on such matters, I cannot say that his arguments are insubstantial or interposed solely for purposes of delay. See, e. g., United States v. Corona-Sanchez,
That being so — as long as Kim’s legal arguments are neither insubstantial nor interposed solely for purposes of delay — then the immigration statutes, interpreted in light of the Constitution, permit Kim (if neither dangerous nor a flight risk) to obtain bail. For one thing, Kim’s constitutional claims to bail in these circumstances are strong. See ante, at 548-552, 557-558 (Souter, J., concurring in part and dissenting in part). Indeed, they are strong enough to require us to “ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may
For another, the relevant statutes literally say nothing about an individual who, armed with a strong argument against deportability, might, or might not, fall within their terms. Title 8 U. S. C. § 1226(c) tells the Attorney General to “take into custody any alien who ... is deportable” (emphasis added), not one who may, or may not, fall into that category. Indeed, the Government now permits such an alien to obtain bail if his argument against deportability is significantly stronger than substantial, i. e., strong enough to make it “substantially unlikely” that the Government will win. Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). Cf. 8 CFR § 3.19(h)(2)(ii) (2002).
Finally, bail standards drawn from the criminal justice system are available to fill this statutory gap. Federal law makes bail available to a criminal defendant after conviction and pending appeal provided (1) the appeal is “not for the purpose of delay,” (2) the appeal “raises a substantial question of law or fact,” and (3) the defendant shows by “clear and convincing evidence” that, if released, he “is not likely to flee or pose a danger to the safety” of the community. 18 U. S. C. § 3143(b). These standards give considerable weight to any special governmental interest in detention (e.g., process-related concerns or class-related flight risks, see ante, at 528). The standards are more protective of a detained alien’s liberty interest than those currently administered in the Immigration and Naturalization Service’s Joseph hearings. And they have proved workable in practice in the criminal justice system. Nothing in the statute forbids their use when § 1226(c) deportability is in doubt.
I would interpret the (silent) statute as imposing these bail standards. Cf. Zadvydas, supra, at 698; United States v. Witkovich,
With respect, I dissent from the Court’s contrary disposition.