Demore v. Kim

LOCATION: Harris County Sheriff’s Department

DOCKET NO.: 01-1491
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 538 US 510 (2003)
ARGUED: Jan 15, 2003
DECIDED: Apr 29, 2003

Daniel J. Popeo - for the Washington Legal Foundation et al. as amici curiae urging reversal
Judy Rabinovitz - Argued the cause for the respondent
Richard A. Samp - for the Washington Legal Foundation et al. as amici curiae urging reversal
Theodore B. Olson - Department of Justice, argued the cause for the petitioners

Facts of the case

Under the Immigration and Nationality Act, 8 USC section 1226(c), the 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, including an aggravated felony. After Hyung Joon Kim, a lawful permanent resident alien, was convicted in state court of first-degree burglary and petty theft with priors, the Immigration and Naturalization Service charged him with being deportable and detained him pending his removal hearing. Kim filed a habeas corpus action challenging section 1226(c) on the ground that his detention violated due process because the INS had made no determination that he posed either a danger to society or a flight risk. The District Court granted Kim's petition. In affirming, the Court of Appeals concluded that the INS had not provided a justification for no-bail civil detention sufficient to overcome a permanent resident alien's liberty interest.


Does the Immigration and Nationality Act, which provides for no-bail, civil detention, violate a lawful permanent resident alien's liberty interest?

Media for Demore v. Kim

Audio Transcription for Oral Argument - January 15, 2003 in Demore v. Kim

Audio Transcription for Opinion Announcement - April 29, 2003 in Demore v. Kim

William H. 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.

David H. 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.