Supreme Court Upholds Mandatory Detention

IMMIGRATION LAW & POLICY

Arrest and Detention

SUPREME COURT UPHOLDS MANDATORY DETENTION
Immigrants' Rights Update, Vol. 17, No. 3, June 3, 2003

The U.S. Supreme Court has upheld the constitutionality of section 236(c) of the Immigration and Nationality Act, which provides for mandatory detention, while removal proceedings are pending, of non-U.S. citizens who are deportable as a result of specified criminal offenses. The decision reverses a ruling by the Ninth Circuit Court of Appeals and overrules three other circuits-the Third, Fourth, and Tenth-all of which had found that the mandatory detention of lawful permanent residents, when they are not afforded a hearing in which they could show that their detention is not warranted, violates due process.

The respondent in this case, Hyung Joon Kim, is a citizen of South Korea who first entered the United States in 1984 at the age of six and two years later became an LPR. In 1996 he was convicted of first-degree burglary, and the following year he was convicted of a second crime, petty theft with priors. The Immigration and Naturalization Service initiated proceedings against Kim based on the criminal convictions, and he was detained without a bond hearing pursuant to sec. 236(c). Sec. 236(c) authorizes detention of non-U.S. citizens who are inadmissible or deportable because they have committed specified crimes, including an aggravated felony, and two crimes involving moral turpitude. Kim conceded deportability and did not seek a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), to contest whether sec. 236(c) applies to his case.

Kim filed a habeas corpus petition with the federal district court, contending that his detention without a hearing violated due process. The district court found sec. 236(c) unconstitutional and required that Kim be granted a bond hearing. He was then released by the INS on a $5,000 bond. The INS appealed the district court decision, and the Ninth Circuit affirmed the district court in Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002). The INS then sought review of this decision in the Supreme Court.

Writing on behalf of a majority of the justices, Chief Justice Rehnquist first concluded that the Court has jurisdiction over the case. INA sec. 236(e) provides that "[t]he Attorney General's discretionary judgment regarding the application of [sec. 236] 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 parole." The Court concluded that this provision does not apply to this case, which is not a challenge to a discretionary determination, but rather to the constitutionality of mandatory detention under the statute. Moreover, sec. 236(e) does not explicitly bar habeas jurisdiction, as the Court requires for a statutory provision to be considered to eliminate review by habeas corpus.

Turning to the merits, the Court first noted that Kim did not contest the fact that mandatory detention applies to him because of his convictions, nor did he contest that he is deportable based on those convictions. The Court concluded that at least in these limited circumstances, sec. 236(c)'s requirement of mandatory detention for immigrants convicted of specified convictions, "for the brief period necessary" to conclude removal proceedings, does not violate due process. The Court found that it was reasonable for Congress to require detention in order to ensure that deportable immigrants can be removed, since Congress 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." The Court also based its conclusion on the finding that removal proceedings are of short duration, noting statistics showing that in 85 percent of cases subject to mandatory detention, removal proceedings are completed in an average time of 47 days. The Court therefore distinguished this case from the indefinite detention that was at issue in Zadvydas v. Davis, 533 U.S. 678 (2001).

Justice O'Connor, joined by Justices Scalia and Thomas, concurred in the judgment of the Court and in the majority opinion's discussion of the merits of the case. They disagreed with the Court's conclusion regarding jurisdiction, and they would find that sec. 236(e) deprives the Court of jurisdiction over this case. Justice Souter, joined by Justices Stevens and Ginsburg, concurred with the majority opinion's finding of jurisdiction and dissented from the opinion on the merits. They would find that mandatory detention without an individualized opportunity to show that detention is not warranted by risk of flight or danger violates due process.

Demore v. Kim, 123 S.Ct. 1708 (Apr. 29, 2003).