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Supreme Court Upholds Mandatory Detention Statute, Reverses Ninth Circuit

by Christina B. LaBrie

On April 29, 2003, the US Supreme Court issued a decision in Demore v. Kim, an important case involving the mandatory detention of certain permanent residents with criminal convictions. In reversing the decision of the US Court of Appeals for the Ninth Circuit, the Supreme Court found that mandatory detention, as required by Section 236(c) of the Immigration and Nationality Act (INA), is a "constitutionally permissible" part of removal proceedings. Demore v. Kim, 538 U.S. __,(2003).

Hyung Joon Kim came to the United States at the age of six and became a lawful permanent resident two years later. As a teenager, Kim was convicted of first-degree burglary and petty theft. He was detained during his removal proceedings pursuant to the mandatory detention provision of INA §236(c). After three months in detention, Kim filed a petition for a writ of habeas corpus challenging the constitutionality of mandatory detention.

Kim raised two important issues, the Court’s jurisdiction to grant habeas corpus relief and the constitutionality of the mandatory detention statute, INA §236(c). The case resulted in five different opinions and different split majorities on each of the two issues.


The decision affirmed the Court’s jurisdiction to grant habeas corpus relief to aliens challenging their detention under INA §236(c). Six justices agreed that despite the language of INA §236(e)1 , the Court is not deprived of jurisdiction to hear a challenge to the mandatory detention statute. Jurisdiction is retained, Chief Justice Renquist reasoned, because the statute contains no explicit provision barring habeas review. Justices Kennedy, Souter, Stevens, Ginsburg, and Breyer concurred in this part of the Chief Justice’s decision.

In a separate opinion, Justices O’Connor, Scalia and Thomas argued that the language of INA §236(e) deprives federal courts of jurisdiction to set aside "’any action of decision’ of the Attorney General in detaining criminal aliens under [INA §236(c)] while removal proceedings are ongoing."


A 5-4 majority found that mandatory detention of lawful permanent residents under INA §236(c) does not violate substantive due process. Chief Justice Renquist’s opinion on this part of the case was joined by Justices Kennedy, O’Connor, Scalia and Thomas. The Court reasoned that Congress was justifiably concerned with criminal aliens who fail to appear for removal hearings and who continue to engage in criminal acts and thus could mandate detention "for the brief period necessary for their removal proceedings."

The Court found that its prior decision in Zadvydas v. Davis, 533 US 678 (2001), was distinguishable in two ways. First, Zadvydas involved individual whose removal from the United States was not practically obtainable. Therefore, the Government’s concern with flight prior to removal was no longer applicable. Second, the period of detention in Zadvydas was lengthy and potentially indefinite. The Chief Justice relied on statistics from the Executive Office of Immigration Review calculating that the average length of a removal proceeding for aliens detained pursuant to INA §236(c) is 47 days.

The majority decision reaffirms Congress’s power to make rules that would be "unacceptable if applied to citizens." See Mathews v. Diaz, 426 U.S. 67, 79-80 (1976). The Chief Justice explains that Congress adopted the mandatory detention policy in response to the "wholesale failure by the INS to deal with increasing rates of criminal activity by aliens." The majority found that "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."

Justice Souter, joined by Justices Stevens and Ginsburg, dissented from the majority’s decision on the merits. Justice Souter read his dissent from the bench, which is not common and thus may indicate a particularly strong disagreement with the outcome of the case. In finding that due process "calls for an individual determination before someone is locked away," Justice Souter relied on the Court’s decision in Zadvydas v. Davis. The dissent pointed out that Kim has not yet been ordered removed from the United States and thus has a stronger claim than the aliens in Zadvydas.

Justice Breyer wrote a separate dissent in which he said that INA §236(c) is not applicable to an alien until deportability has been determined. Therefore, an individualized bail hearing should be available to an alien who presents arguments are "neither insubstantial nor imposed solely for the purposes of delay."


Without a doubt, the Government will soon seek to re-detain individuals released pursuant to the prior circuit court decisions that found INA §236(c) to be unconstitutional. Reports have already surfaced that such individuals have been arrested at master calendar hearings in Immigration Courts in San Francisco and Arizona. Many of those previously released were issued orders of supervision pursuant to which they must appear regularly at a district office, presenting a danger of arrest at those appearances. Aliens should also be aware of the increased possibility of detention under INA §236(c) in connection with applications for benefits, such as employment authorization and adjustment of status.

All hope is not lost, however. The Supreme Court’s decision leaves open the opportunity for criminal aliens to challenge the applicability of INA §236(c) in so-called Matter of Joseph hearings. In Matter of Joseph, 22 I. & N. 799 (BIA 1999), the Board of Immigration Appeals decided that a criminal alien may be released by the Immigration Judge upon a showing that the government is "substantially unlikely to prevail" on the charge of removeability. This standard is very high and requires a full examination of the merits of the case.

However, one could also argue that Kim simply doesn’t apply to any case in which deportability is challenged by the alien. The majority opinion emphasized the significance of Kim’s concession of deportability and clearly stated that the decision applies to "a criminal alien who has conceded that he is deportable…." In addition, the majority specifically stated that because of this concession, the Court did not address the adequacy of the Joseph hearing in screening out those who are improperly detained pursuant to INA §236(c).

Therefore, the door is also open to challenge the high standard set forth in Joseph. In Joseph the Board decided that a lawful permanent resident must show that the government is "substantially unlikely to prevail" on the charge of removeability. This standard is not supported by the applicable regulation, as 8 C.F.R. §3.19(h)(2)(ii) allows an alien to seek a determination from an Immigration Judge that he is "not properly included" in any of the categories mandating detention.

The majority also stressed the "brief period" of detention necessary for the removal of criminal aliens. In fact, the relatively short length of detention was one of the factors the majority used in distinguishing Zadvydas. Because Kim affirms the habeas jurisdiction of the federal courts, one could file a habeas challenge if the detention is not "brief" and thus extends beyond the period contemplated in Kim.

Although Kim did not address issues of national security and terrorism, it is consistent with a shift in US immigration policy in favor of detention since September 11th. It also represents the continued erosion of the rights of the least-favored group of immigrants – those with criminal convictions – that has persisted since the sweeping changes made to immigration law in 1996.

1INA §236(e): "(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."

About The Author

Christina B. LaBrie, Esq. is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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