Demore v. Kim - Opinion Announcement

Argument of Chief Justice Rehnquist

Mr. Rehnquist: I have the opinion of the Court to announce in No. 01-1491 Demore against Kim.

Section 1226 of the Immigration and Nationality Act requires the Attorney General to 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 permanent resident alien who was convicted of first degree burglary and petty theft.

The INS charged him with being deportable from the United States based on his convictions and took him into custody under Section 1226(c).

Respondent agreed that he was subject to mandatory detention under the Act, but he filed a habeas corpus petition challenging the claiming that it violates due process under the Fifth Amendment to detain him without an individualized hearing to determine whether he is a danger to society or a flight risk.

The District Court agreed and granted the writ.

The Court of Appeals for the Ninth Circuit affirmed.

We granted certiorari and now reverse.

There are two parts to the opinion: the does first part is that this Court have jurisdiction to consider the question?

The statute of at issue provides that no court may set aside any action or decision by the Attorney General under 1226.

Respondent challenges not a decision of the Attorney General, but rather the statutory framework that permits his detention without bail.

Becuase the statute does not clearly bar habeas corpus review, we have jurisdiction to review this case, and that we decide by a vote of six to three.

On the merits of the constitutionality of 1226(c), we decide by a vote of five to four that it is constitutional.

Congress enacted 1226 in the light of evidence showing that deportable criminal aliens, were not detained, continued to engage in crime and failed to appear for their removal hearings in large numbers.

We have held before that in the exercise of its broad power over naturalization and immigration.

Congress may make rules as to aliens that would be unacceptable of applied to citizens.

We also have held the detention during the deportation proceedings is a necessary part of the deportation process.

Respondent in arguing that his detention under 1226(c) is unconstitutional, relies heavily upon our decision two years ago in Zadvydas against Davis, in which we held the detention beyond the 90-day removal period for an alien ordered removed was permissible for only such time it is reasonably necessary to secure the aliens' removal.

Zadvydas is materially different, however, from the present case.

First, the aliens in that case were once for whom removal was no longer practically obtainable such that their detention did not serve its proported immigration purpose.

In contrast, because 1226(c) authorizes detention of aliens pending their removal proceedings, the detention necessarily serves the purpose of preventing aliens from fleeing before such proceeding; second, while the period of detention at issue in Zadvydas was indefinite and potentially permanent.

The record shows that 1226(c) detention not only has a definite termination point, but it lasts in a majority of cases for less than 90 days as which the court considered in Zadvydas.

So we reverse the judgment of the Court of Appeals.

Justice Kennedy has filed a concurring opinion; Justice O'Connor has filed an opinion concurring in part and concurring in the judgment in which Justices Scalia and Thomas have joined.

Argument of Justice Souter

Mr. Souter: Four of us are in dissenting positions this morning.

Justice Breyer has filed a descending opinion on grounds of statutory construction based on the doctrine of constitutional avoidance.

Justice Stevens, Justice Ginsburg and I are dissenting on the constitutional issue which the Chief Justice has just described.

The Respondent Kim is an alien, lawfully admitted to permanent residence in United States, also known as the holder of a Green Card.

Although the government seeks to remove him from the country, he remains a lawful permanent resident unless and until an order of removal is entered.

It is not clear that such an order will be entered since he is challenging the removability before the Immigration Court and has applied for withholding of removal.

Accordingly, Kim's constitutional right to liberty is the same as that of any lawful permanent resident and the right to be free from physical confinement except as justified under the Fifth Amendment's Due Process Clause applies to permanent resident aliens, as well as the citizens of the United States.

Determining what the Due Process Clause requires in this case is not difficult.

The Fifth Amendment protection of liberty is that its height and the government tries to incarcerate an individual.

As the Court of Appeals recognized, we have repeatedly held it before the government may lock someone up, it must show that the individual's detention is necessary to a compeling government purpose or interest.

We have applied this principle in the context to pre trial detention, civil commitment and only two years ago in a case called Zadvydas to which the Chief Justice referred in the context of detention of aliens ordered deported from the United States.

In each of these cases, we held that continued incarceration depend on an individualized showing of necessity, such as a showing of the detainee posed a risk of flight or a danger to others.

Detention of lawful residents cannot be justified on a categorical basis without individualized assessments.

The due process cases that shield two minimum requirements that must be satisfied in each individual case: the first is substantive, the individual's detention must be necessary to a governmental purpose; the second is procedural, the individual must at least be given the opportunity to convince an impartial decision maker that his detention is in fact unnecessary despite the government's contrary assertion.

Kim here fails both requirements.

Substantively, the statute does not require the government even to assert a reason to detain a particular lawful resident alien.

The government claims that the statute is constitutional, nonetheless, on the ground that there is a statistical justification for class-wide detention once a charge of removability has been brought, but the government's reliance on general statistics misses the mark even on its own terms.

None of the government study show that aliens in Kim's position are highly likely to abscond unless detain.

In one recent study expressly concluded that mandatory detention was unnecessary to prevent flight by aliens like Kim who are alegedly removable but not yet ordered removed.

Kim's own case makes it clear that there is no reason to detain him at all and neither the court nor the government contests this fact.

After the District Court ended its judgment in this case, the INS, the Immigration and Naturalization Service without even holding a hearing concluded that Kim could be released on bond of $5,000.

Locking someone up wihtout even a claim of necessity when the government admits that he can be safely released on bond, is an arbitrary deprivation of liberty that violates the substantive component of due process.

Procedurally, the only hearing available for aliens in Kim's position is a so-called Joseph hearing, which is an opportunity to show that the government's claim of removability is essentially frivolous.

Such a hearing only permits Kim to argue that he is not within the statutory category of people subject to mandatory detention.

It does not allow him to show what our cases require that he have a chance to show and that is that his detention serves no governmental purpose.

By authorizing Kim's detention today, the court is allowing the government to imprison a lawful resident of this country even though there is no need to do that.

Justice Stevens, Justice Ginsburg and I believe that sucn an action is a fundamental denial of due process.

We think the Court of Appeals applied the constitution correctly.

We would affirm its judgment and we respectfully dissent from the Court's contrary conclusion.