OCTOBER TERM, 2002
Syllabus
DEMORE, DISTRICT DIRECTOR, SAN FRANCISCO DISTRICT OF IMMIGRATION
AND NATURALIZATION SERVICE, ET AL.
v. KIM
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 01-1491. Argued January 15, 2003-Decided April 29, 2003
Under the Immigration and Nationality Act, 8 U. S. C. § 1226(c),
"[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, including an "aggravated felony." After
respondent, a lawful permanent resident alien, was convicted in
state court of first-degree burglary and, later, of "petty theft
with priors," the Immigration and Naturalization Service (INS)
charged him with being deportable from the United States in light
of these convictions, and detained him pending his removal hearing.
Without disputing the validity of his convictions or the INS'
conclusion that he is deportable and therefore subject to mandatory
detention under § 1226(c), respondent filed a habeas corpus action
challenging § 1226(c) on the ground that his detention thereunder
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 agreed and granted respondent's petition subject to the INS'
prompt undertaking of an individualized bond hearing, after which
respondent was released on bond. In affirming, the Ninth Circuit
held that § 1226(c) violates substantive due process as applied to
respondent because he is a lawful permanent resident, the most
favored category of aliens. The court rejected the Government's two
principal justifications for mandatory detention under § 1226(c),
discounting the firstensuring the presence of criminal aliens at
their removal proceedingsupon finding that not all aliens detained
pursuant to § 1226(c) would ultimately be deported, and discounting
the second-protecting the public from dangerous criminal aliens-on
the grounds that the aggravated felony classification triggering
respondent's detention included crimes (such as respondent's) that
the court did not consider "egregious" or otherwise sufficiently
dangerous to the public to necessitate mandatory detention. Relying
on
Zadvydas v.
Davis, 533 U. S. 678, the court
concluded that the INS had not provided a justification for no-bail
civil detention sufficient to overcome a permanent resident alien's
liberty interest.
511
Held:
1. Section 1226(e)-which states that "[t]he Attorney General's
discretionary judgment regarding the application of this section
shall not be subject to review" and that "[n]o court may set aside
any action or decision by the Attorney General under this section
regarding the detention or release of any alien" -does not deprive
the federal courts of jurisdiction to grant habeas relief to aliens
challenging their detention under § 1226(c). 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. Rather, respondent challenges the statutory
framework that permits his detention without bail. Where Congress
intends to preclude judicial review of constitutional claims its
intent to do so must be clear.
E. g., Webster v.
Doe,
486 U. S. 592,
603. And, where a provision precluding review is claimed to bar
habeas review, the Court requires a particularly clear statement
that such is Congress' intent. See
INS v.
St. Cyr,
533 U. S. 289,
308-309, 298, 327. Section 1226(e) contains no explicit provision
barring habeas review. Pp. 516-517.
2. Congress, justifiably concerned with evidence that deportable
criminal aliens who are not detained continue to engage in crime
and fail to appear for their removal hearings in large numbers, may
require that persons such as respondent be detained for the brief
period necessary for their removal proceedings. 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, 426 U. S. 67, 79-80.
Although the Fifth Amendment entitles aliens to due process in
deportation proceedings,
Reno v.
Flores, 507 U. S. 292, 306,
detention during such proceedings is a constitutionally valid
aspect of the process,
e. g., Wong Wing v.
United
States, 163 U. S.
228, 235, even where, as here, aliens challenge their detention
on the grounds that there has been no finding that they are
unlikely to appear for their deportation proceedings,
Carlson v.
Landon, 342 U. S. 524, 538. The
INS detention of respondent, a criminal alien who has conceded that
he is deportable, for the limited period of his removal
proceedings, is governed by these cases. Respondent argues
unpersuasively that the § 1226(c) detention policy violates due
process under
Zadvydas, 533 U. S., at 699, in which the
Court held that § 1231(a)(6) authorizes continued detention of an
alien subject to a final removal order beyond that section's 90-day
removal period for only such time as is reasonably necessary to
secure the removal.
Zadvydas is materially different from
the present case in two respects. First, the aliens there
challenging their detention following final deportation orders were
ones for whom removal was "no longer practically attainable," such
that their detention
512
Syllabus
did not serve its purported immigration purpose.
Id., at
690. In contrast, because the statutory provision at issue in this
case governs detention of deportable criminal aliens
pending
their removal proceedings, the detention necessarily serves the
purpose of preventing the aliens from fleeing prior to or during
such proceedings. Second, while the period of detention at issue in
Zadvydas was "indefinite" and "potentially permanent,"
id., at 690-691, the record shows that §1226(c) detention
not only has a definite termination point, but lasts, in the
majority of cases, for less than the 90 days the Court considered
presumptively valid in
Zadvydas. Pp. 517-531.
276 F.3d
523, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
KENNEDY, J., joined in full, in which STEVENS, SOUTER, GINSBURG,
and BREYER, JJ., joined as to Part I, and in which O'CONNOR,
SCALIA, and THOMAS, JJ., joined as to all but Part I. KENNEDY, J.,
filed a concurring opinion,
post, p. 531. O'CONNOR, J.,
filed an opinion concurring in part and concurring in the judgment,
in which SCALIA and THOMAS, JJ., joined,
post, p. 533.
SOUTER, J., filed an opinion concurring in part and dissenting in
part, in which STEVENS and GINSBURG, JJ., joined,
post, p.
540. BREYER, J., filed an opinion concurring in part and dissenting
in part,
post, p. 576.
Solicitor General Olson argued the cause for
petitioners.
With him on the briefs were Assistant Attorney General McCallum,
Deputy Solicitor General Kneedler, Austin C. Schlick, Donald E.
Keener, and Mark C. Walters.
Judy Rabinovitz argued the cause for respondent. With her on the
brief were Lucas Guttentag, Lee Gelernt, Steven R. Shapiro, A.
Stephen Hut, Jr., Christopher
J. Meade, Liliana M. Garces,
and Jayashri Srikantiah.
*
* Daniel J. Popeo and
Richard A.
Samp filed a brief for the Washington Legal Foundation et al.
as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the American Bar Association by
Alfred P. Carlton, Jr., and
Jeffrey L. Bleich; for Citizens and Immigrants for Equal
Justice et al. by
Nancy Morawetz; for International Human
Rights Organizations by
William J. Aceves and
Paul L. Hoffman; for Law Professors by
Daniel
Kanstroom; for the National Asian Pacific American Legal
Consortium et al. by
Richard A. Cordray, Eugene F.
Chay,
Vincent A. Eng, and
William L. Taylor; and for T.
Alexander Aleinikoff et al. by
Anthony J.
Grler.
513
CHIEF JUSTICE REHNQUIST 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.1
We hold that Congress, justifiably concerned that deportable
criminal aliens who are not detained continue to engage in crime
and fail to appear for their removal hearings in large numbers, may
require that persons such as respondent be detained for the brief
period necessary for their removal proceedings.
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
1 App. to Pet. for Cert. 32a; see 8 U. S. C. §§ 1l01(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' ").
514
mandatory detention under § 1226(c). See Brief in Opposition
1-2; App. 8-9.2 In conceding that he was deportable, respondent
forwent a hearing at which he would have been entitled to raise any
nonfrivolous argument available to demonstrate that he was not
properly included in a mandatory detention category. See 8 CFR §
3.19(h)(2)(ii) (2002);
Matter of Joseph, 22 1. & N. Dec.
799 (BIA 1999).3 Respondent instead filed a habeas corpus action
pursuant to 28 U. S. C. § 2241 in the United States District Court
for the Northern District of California challenging the
constitutionality of § 1226(c) itself. App. to Pet. for Cert. 2a.
He argued that his detention under § 1226(c) violated due process
because the INS had made no determination that he posed either a
danger to society or a flight risk.
Id., at 31a, 33a.
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-
2 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.
3This
"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 1. & 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).
515
2257 SI (Aug. 11, 1999), App. to Pet. for Cert. 31a-51a. The
District Court therefore granted respondent's petition subject to
the INS' prompt undertaking of an individualized bond hearing to
determine whether respondent posed either a flight risk or a danger
to the community.
Id., at 50a. Following that decision, the
District Director of the INS released respondent on $5,000
bond.
The Court of Appeals for the Ninth Circuit affirmed.
Kim v.
Ziglar, 276 F.3d
523 (2002). That court held that § 1226(c) violates substantive
due process as applied to respondent because he is a permanent
resident alien.
Id., at 528. It noted that permanent
resident aliens constitute the most favored category of aliens and
that they have the right to reside permanently in the United
States, to work here, and to apply for citizenship.
Ibid.
The court recognized and rejected the Government's two principal
justifications for mandatory detention under § 1226(c): (1)
ensuring the presence of criminal aliens at their removal
proceedings; and (2) protecting the public from dangerous criminal
aliens. The Court of Appeals discounted the first justification
because it found that not all aliens detained pursuant to § 1226(c)
would ultimately be deported.
Id., at 531-532. And it
discounted the second justification on the grounds that the
aggravated felony classification triggering respondent's detention
included crimes that the court did not consider "egregious" or
otherwise sufficiently dangerous to the public to necessitate
mandatory detention.
Id., at 532-533. Respondent's crimes of
first-degree burglary (burglary of an inhabited dwelling) and petty
theft, for instance, the Ninth Circuit dismissed as "rather
ordinary crimes."
Id., at 538. Relying upon our recent
decision in
Zadvydas v.
Davis, 533 U. S. 678 (2001),
the Court of Appeals concluded that the INS had not provided a
justification "for no-bail civil detention sufficient to overcome a
lawful permanent resident alien's liberty interest." 276 F. 3d, at
535.
516
Three other Courts of Appeals have reached the same conclusion.
See
Patel v.
Zemski, 275 F.3d
299 (CA3 2001); Welch v.
Ashcroft, 293 F.3d
213 (CA4 2002);
Hoang v.
Comfort,
282 F.3d
1247 (CAlO 2002). The Seventh Circuit, however, rejected a
constitutional challenge to § 1226(c) by a permanent resident
alien.
Parra v.
Perryman, 172 F.3d
954 (1999). We granted certiorari to resolve this conflict, see
536 U. S. 956 (2002), and now reverse.
I
We address first the argument that 8 U. S. C. § 1226(e) deprives
us of jurisdiction to hear this case. See
Florida v.
Thomas, 532 U.
S. 774, 777 (2001) ("Although the parties did not raise the
issue in their briefs on the merits, we must first consider whether
we have jurisdiction to decide this case"). An
amicus
argues, and the concurring opinion agrees, that § 1226(e) deprives
the federal courts of jurisdiction to grant habeas relief to aliens
challenging their detention under § 1226(c). See Brief for
Washington Legal Foundation et al. as
Amici Curiae. Section
1226(e) states:
"(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.
517
Rather, respondent challenges the statutory framework that
permits his detention without bail.
Parra v.
Perryman,
supra, at 957 ("Section 1226(e) likewise deals with challenges
to operational decisions, rather than to the legislation
establishing the framework for those decisions").
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, 486 U. S. 592, 603
(1988); see also
Johnson v.
Robison, 415 U. S. 361, 367 (1974)
(holding that provision barring review of "'decisions of the
Administrator on any question of law or fact under any law
administered by the Veterans' Administration providing benefits for
veterans'" did not bar constitutional challenge (emphasis
deleted)). And, where a provision precluding review is claimed to
bar habeas review, the Court has required a particularly clear
statement that such is Congress' intent. See
INS v.
St.
Cyr, 533 U. S.
289, 308-309 (2001) (holding that title of provision,
"Elimination of Custody Review by Habeas Corpus," along with broad
statement of intent to preclude review, was not sufficient to bar
review of habeas corpus petitions); see also
id., at 298
(citing cases refusing to find bar to habeas review where there was
no specific mention of the Court's authority to hear habeas
petitions);
id., at 327 (SCALIA, J., dissenting) (arguing
that opinion established "a superclear statement, 'magic words'
requirement for the congressional expression of" an intent to
preclude habeas review).
Section 1226(e) contains no explicit provision barring habeas
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-
518
dates detention during removal proceedings for a limited class
of deportable aliens-including those convicted of an aggravated
felony. Congress adopted this provision against a backdrop of
wholesale failure by the INS to deal with increasing rates of
criminal activity by aliens. See,
e. g., Criminal
Aliens in the United States: Hearings before the Permanent
Subcommittee on Investigations of the Senate Committee on
Governmental Affairs, 103d Cong., 1st Sess. (1993); S. Rep. No.
104-48, p. 1 (1995) (hereinafter S. Rep. 104-48) (confinement of
criminal aliens alone cost $724 million in 1990). Criminal aliens
were the fastest growing segment of the federal prison population,
already constituting roughly 25% of all federal prisoners, and they
formed a rapidly rising share of state prison populations as well.
Id., at 6-9. Congress' investigations showed, however, that
the INS could not even
identify most deportable aliens, much
less locate them and remove them from the country.
Id., at
1. One study showed that, at the then-current rate of deportation,
it would take 23 years to remove every criminal alien already
subject to deportation.
Id., at 5. Making matters worse,
criminal aliens who were deported swiftly reentered the country
illegally in great numbers.
Id., at 3.
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
519
Judiciary, 101st Cong., 1st Sess., 54, 52 (1989) (hereinafter
1989 House Hearing); see also
Zadvydas, 533 U. S., at 713714
(KENNEDY, J., dissenting) (discussing high rates of recidivism for
released criminal aliens).
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 N aturalization 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 ("[R]elease
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 19.4 The
4 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
520
dissent disputes that statistic,
post, at 562-564
(opinion of SOUTER, J.), but goes on to praise a subsequent study
conducted by the Vera Institute of Justice that more than confirms
it.
Post, at 565-566. As the dissent explains, the Vera
study found that "77% of those [deportable criminal aliens]
released on bond" showed up for their removal proceedings.
Post, at 565. This finding-that one out of four criminal
aliens released on bond absconded prior to the completion of his
removal proceedings-is even more striking than the one-in-five
flight rate reflected in the evidence before Congress when it
adopted § 1226(c).5 The Vera Institute study strongly supports
Congress' concern that, even with individualized screening,
releasing deportable criminal aliens on bond would lead to an
unacceptable rate of flight.
Congress amended the immigration laws several times toward the
end of the 1980's. In 1988, Congress limited
Brief for Petitioners 19 (noting that, for aliens not evaluated
for flight risk at a bond hearing, the prehearing skip rate doubled
to 40%).
5 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 SOUTER, 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.
521
the Attorney General's discretion over custody determinations
with respect to deportable aliens who had been convicted of
aggravated felonies. See Pub. L. 100-690, Tit. VII, § 7343(a), 102
Stat. 4470. Then, in 1990, Congress broadened the definition of
"aggravated felony," subjecting more criminal aliens to mandatory
detention. See Pub. L. 101-649, Tit. V, § 501(a), 104 Stat. 5048.
At the same time, however, Congress added a new provision, 8 U. S.
C. § 1252(a)(2)(B) (1988 ed., Supp. II), authorizing the Attorney
General to release permanent resident aliens during their
deportation proceedings where such aliens were found not to
constitute a flight risk or threat to the community. See Pub. L.
101-649, Tit. V, § 504(a)(5), 104 Stat. 5049.
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, 426 U. S.
67, 79-80 (1976). The dissent seeks to avoid this fundamental
premise of immigration law by repeatedly referring to it as
"dictum."
Post, at 547-549, n. 9 (opinion of SOUTER, J.).
The Court in
Mathews, however, made the statement the
dissent now seeks to avoid in reliance on clear
522
precedent establishing that "'any policy toward aliens is
vitally and intricately interwoven with contemporaneous policies in
regard to the conduct of foreign relations, the war power, and the
maintenance of a republican form of government.'" 426 U. S., at 81,
n. 17 (quoting
Harisiades v.
Shaughnessy, 342 U. S. 580, 588-589
(1952)). And, since
Mathews, this Court has firmly and
repeatedly endorsed the proposition that Congress may make rules as
to aliens that would be unacceptable if applied to citizens. See,
e. g., Zadvydas, 533 U. S., at 718 (KENNEDY,
J., dissenting) ("The liberty rights of the aliens before us here
are subject to limitations and conditions not applicable to
citizens");
Reno v.
Flores, 507 U. S. 292, 305-306
(1993) ("Thus, 'in the exercise of its broad power over immigration
and naturalization, "Congress regularly makes rules that would be
unacceptable if applied to citizens"'" (quoting
Fiallo v.
Bell, 430 U.
S. 787, 792 (1977), in turn quoting
Mathews, supra, at
79-80));
United States v.
Verdugo-Urquidez, 494 U. S. 259, 273
(1990).
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).6 Rather,
6 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.
523
respondent argued that the Government may not, consistent with
the Due Process Clause of the Fifth Amendment, detain him for the
brief period necessary for his removal proceedings. The dissent,
after an initial detour on the issue of respondent's concession,
see
post, at 541-543 (opinion of SouTER, J.), ultimately
acknowledges the real issue in this case.
Post, at 555-556,
n. 11; see also Brief in Opposition 1-2 (explaining that
respondent's "challenge is solely to Section 1226(c)'s absolute
prohibition on his release from detention").
"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, 163 U. S.
228, 235 (1896); see also
Flores, supra, at 305-306;
Zadvydas, 533 U. S., at 697 (distinguishing constitutionally
questioned detention there at issue from "detention pending a
determination of removability");
id., at 711 (KENNEDY, J.,
dissenting) ("Congress' power to detain aliens in connection with
removal or exclusion ... is part of the Legislature's considerable
authority over immigration matters").7
In
Carlson v.
Landon, 342 U. S. 524 (1952), the
Court considered a challenge to the detention of aliens who were
deportable because of their participation in Communist ac-
Lest there be any confusion, we emphasize that by conceding he
is
"deportable" and, hence, subject to mandatory detention
under § 1226(c), respondent did not concede that he
will
ultimately be deported. As the dissent notes, respondent has
applied for withholding of removal.
Post, at 541 (opinion of
SOUTER, J.).
7 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.
524
tivities. The detained aliens did not deny that they were
members of the Communist Party or that they were therefore
deportable.
Id., at 530. Instead, like respondent in the
present case, they challenged their detention on the grounds that
there had been no finding that they were unlikely to appear for
their deportation proceedings when ordered to do so.
Id., at
531-532; see also Brief for Petitioner in
Carlson v.
Landon, O. T. 1951, No. 35, p. 12 (arguing that legislative
determinations could not justify "depriving [an alien] of his
liberty without facts personal to the individual"). Although the
Attorney General ostensibly had discretion to release detained
Communist aliens on bond, the INS had adopted a policy of refusing
to grant bail to those aliens in light of what Justice Frankfurter
viewed as the mistaken "conception that Congress had made [alien
Communists] in effect unbailable." 342 U. S., at 559, 568
(dissenting opinion).
The Court rejected the aliens' claims that they were entitled to
be released from detention if they did not pose a flight risk,
explaining "[d]etention 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.
525
The only evidence against them was their membership in the
Communist Party and "a degree ... of participation in Communist
activities." 342 U. S., at 541. There was no "individualized
findin[gJ" of likely future dangerousness as to any of the aliens
and, in at least one case, there was a specific finding of
nondangerousness.8 The Court nonetheless concluded that the denial
of bail was permissible "by reference to the legislative scheme to
eradicate the evils of Communist activity."
Id., at
543.9
8 See
Carlson v.
Landon, 342 U. S., at 549 (Black,
J., dissenting) (noting that, in at least one case, the alien
involved had been found"
'not likely to engage in any
subversive activities'" (emphasis added)); see also
id., at
550, n. 5 (quoting the District Judge's finding in case No. 35 that
'''I don't know whether it is true ... that their release is
dangerous to the security of the United States' ");
id., at
552 ("[T]he bureau agent is
not required to prove that a
person he throws in jail is ... 'dangerous'" (emphasis added)); see
also
id., at 567 (Frankfurter, J., dissenting) ("[T]he
Attorney General ... did
not deny bail from an
individualized estimate of 'the danger to the public safety of
[each person's] presence within the community'" (emphasis
added)).
9 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 public.' "
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 342 U. S., at 530
("[T]he Director made allegation[s], supported by affidavits, that
the Service's dossier of each petitioner contained evidence
indicating to him that each was at the time of arrest a member of
the Communist Party of the United States and had since 1930
participated ... in the Party's indoctrination of others"). In the
present case, respondent became "deportable" under § 1226(c) only
following criminal convictions that were secured following full
procedural protections. These convictions, moreover, reflect
"personal activity" that Congress considered relevant to future
dangerousness. Cf.
Zadvydas v.
Davis, 533 U. S. 678, 714 (2001)
(KENNEDY, J., dissenting) (noting that "a criminal record
accumulated by an
526
In
Reno v.
Flores, 507 U. S. 292 (1993), the
Court considered another due process challenge to detention during
deportation proceedings. The due process challenge there was
brought by a class of alien juveniles. The INS had arrested them
and was holding them in custody pending their deportation hearings.
The aliens challenged the INS' policy of releasing detained alien
juveniles only into the care of their parents, legal guardians, or
certain other adult relatives. See,
e. g., id., at
297 (citing Detention and Release of Juveniles, 53 Fed. Reg. 17449
(1988) (codified as to deportation at 8 CFR § 242.24 (1992))). The
aliens argued that the policy improperly relied "upon a 'blanket'
presumption of the unsuitability of custodians other than parents,
close relatives, and guardians" to care for the detained juvenile
aliens. 507 U. S., at 313. In rejecting this argument, the Court
emphasized that "reasonable presumptions and generic rules," even
when made by the INS rather than Congress, are not necessarily
impermissible exercises of Congress' traditional power to legislate
with respect to aliens.
Ibid.; see also
id., at
313-314 ("In the case of each detained alien juvenile, the INS
makes those determinations that are specific to the individual and
necessary to accurate application of the regulation .... The
particularization and individuation need go no further than this").
Thus, as with the prior challenges to detention during deportation
proceedings, the Court in
Flores rejected the due process
challenge and upheld the constitutionality of the detention.
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
admitted alien" is a good indicator of future danger, and that
"[a]ny suggestion that aliens who have completed prison terms no
longer present a danger simply does not accord with the reality
that a significant risk may still exist").
527
the four Courts of Appeals that have held § 1226(c) to be
unconstitutional, relies heavily upon our recent opinion in
Zadvydas v.
Davis, 533 U. S. 678 (2001).
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.
533 U. S., at 699.
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).lO
In the present case, the statutory provision at issue governs
detention of deportable criminal aliens
pending their
10 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 SOUTER,
J.) ("[T]he statute in
Zadvydas ... served the purpose of
preventing aliens ... from fleeing prior to actual
deportation").
528
removal proceedings. Such detention necessarily serves
the purpose of preventing deportable criminal aliens from fleeing
prior to or during their removal proceedings, thus increasing the
chance that, if ordered removed, the aliens will be successfully
removed. Respondent disagrees, arguing that there is no evidence
that mandatory detention is necessary because the Government has
never shown that individualized bond hearings would be ineffective.
See Brief for Respondent 14. But as discussed above, see
supra, at 519-520, in adopting § 1226(c), Congress had
before it evidence suggesting that permitting discretionary release
of aliens pending their removal hearings would lead to large
numbers of deportable criminal aliens skipping their hearings and
remaining at large in the United States unlawfully.
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., 535 U. S. 425, 436-437
(2002);
Flores, supra, at 315 ("It may well be that other
policies would be even better, but 'we are [not] a legislature
charged with formulating public policy''' (quoting
Schall v.
Martin, 467 U. S. 253, 281 (1984))).
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," 533
U. S., at 690-691, the detention here is of a much shorter
duration.
529
Zadvydas distinguished the statutory prOVlSlon it was
there considering from § 1226 on these very grounds, noting that
"post-removal-period detention,
unlike detention pending a
determination of removability ... , has no obvious termination
point."
Id., at 697 (emphasis added). Under §1226(c), not
only does detention have a definite termination point, in the
majority of cases it lasts for less than the 90 days we considered
presumptively valid in
ZadvydasY The Executive Office for
Immigration Review has calculated that, in 85% of the cases in
which aliens are detained pursuant to § 1226(c), removal
proceedings are completed in an average time of 47 days and a
median of 30 days. Brief for Petitioners 39-40. In the remaining
15% of cases, in which the alien appeals the decision of the
immigration judge to the Board of Immigration Appeals, appeal takes
an average of four months, with a median time that is slightly
shorter.
Id., at 40.12
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,
11 The dissent concedes that "[t]he scheme considered in
Zadvydas did not provide review immediately .... [C]ustody
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.
12 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").
530
n.
17.13 In those cases, the aliens involved are never
subjected to mandatory detention at all. In sum, the detention at
stake under § 1226(c) lasts roughly a month and a half in the vast
majority of cases in which it is invoked, and about five months in
the minority of cases in which the alien chooses to appeal.14
Respondent was detained for some-
13 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.
14 Prior to the enactment of § 1226(c), when the vast majority
of deportable 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, 533 U. S., at 713 (KENNEDY, J., dissenting)
("[C]ourt ordered release cannot help but encourage dilatory and
obstructive tactics by aliens"). Respondent contends that the
length of detention required to appeal may deter aliens from
exercising their right to do so. Brief for Respondent 32. As we
have explained before, however, "the legal system ... is replete
with situations requiring the making of difficult judgments as to
which course to follow," and, even in the criminal context, there
is no constitutional prohibition against requiring parties to make
such choices.
McGautha v.
California, 402 U. S. 183,213 (1971)
(internal quotation marks omitted); accord,
Chaffin v.
Stynchcombe, 412 U. S. 17, 30-31
(1973).
531
what longer than the average-spending six months in INS custody
prior to the District Court's order granting habeas relief, but
respondent himself had requested a continuance of his removal
hearing. 15
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, 163
U. S., at 235 ("We think it clear that detention, or temporary
confinement, as part of the means necessary to give effect to the
provisions for the exclusion or expulsion of aliens would be
valid");
Carlson v.
Landon, 342 U. S. 524 (1952);
Reno v.
Flores, 507 U. S. 292 (1993). The
INS detention of respondent, a criminal alien who has conceded that
he is deportable, for the limited period of his removal
proceedings, is governed by these cases. The judgment of the Court
of Appeals is
Reversed.
JUSTICE KENNEDY, 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, 533 U. S. 678, 690 (2001)
("[W]here detention's goal is no longer practically attainable,
detention no longer bears a reasonable relation to the purpose for
which
15 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.
532
the individual was committed" (internal quotation marks and
brackets omitted));
id., at 718 (KENNEDY, J., dissenting)
("Liberty under the Due Process Clause includes protection against
unlawful or arbitrary personal restraint or detention"). If the
Government cannot satisfy this minimal, threshold burden, then the
permissibility of continued detention pending deportation
proceedings turns solely upon the alien's ability to satisfy the
ordinary bond proceduresnamely, whether if released the alien would
pose a risk of flight or a danger to the community.
Id., at
721 (KENNEDY, J., dissenting).
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 nonfrivolous 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 1. & 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, 533 U. S., at 684-686;
id., at 721
(KENNEDY, J., dissenting) ("[A]liens are entitled to be free from
detention that is arbitrary or capricious"). Were there to be an
unreasonable delay by the INS in pursuing and completing
deportation proceedings, it could become necessary then to inquire
whether the detention is not to facilitate deportation, or to
protect against risk of flight or dangerous-
533
ness, but to incarcerate for other reasons. That is not a proper
inference, however, either from the statutory scheme itself or from
the circumstances of this case. The Court's careful opinion is
consistent with these premises, and I join it in full.
JUSTICE O'CONNOR, 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
534
Opinion of O'CONNOR, J.
to deem a criminal alien such as respondent ineligible for
release during the limited duration of his or her removal
proceedings.
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, 533 U. S. 289, 298
(2001). I also acknowledge that Congress will not be deemed to have
repealed habeas jurisdiction in the absence of a specific and
unambiguous statutory directive to that effect. See
id., at
312-313;
Ex parte Yerger, 8 Wall. 85, 105 (1869). Here,
however, the signal sent by Congress in enacting § 1226(e) could
not be clearer:
"No court may set aside
any action or
decision ... regarding the detention or release of any alien."
(Emphasis added.) There is simply no reasonable way to read this
language other than as precluding all review, including habeas
review, of the Attorney General's actions or decisions to detain
criminal aliens pursuant to § 1226(c).
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. 533 U. S., at 312. I dissented in that case,
and continue to believe it was wrongly decided. Nothing in
St.
Cyr, however, requires that we ignore the plain language and
clear meaning of § 1226(e).
In
St. Cyr, the Court stressed the significance of
Congress' use of the term "judicial review" in each of the
jurisdictionallimiting 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 'preclud[ed] 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 AP A, 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, 524 U.
S. 206, 212 (1998) (quoting
Trainmen v.
Baltimore
&
Ohio R. Co., 331 U. S. 519, 528529
(1947)).
536
Opinion of O'CONNOR, J.
The Court also focused in
St. Cyr on the absence of any
language in the relevant statutory provisions making explicit
reference to habeas review under 28 U. S. C. § 2241. See 533 U. S.,
at 313, n. 36. This statutory silence spoke volumes, the Court
reasoned, in light of the "historic use of § 2241 jurisdiction as a
means of reviewing deportation and exclusion orders,"
ibid.
In contrast, there is no analogous history of routine reliance on
habeas jurisdiction to challenge the detention of aliens without
bail pending the conclusion of removal proceedings. We have
entertained such challenges only twice, and neither was successful
on the merits. See
Reno v.
Flores, 507 U. S. 292 (1993);
Carlson v.
Landon, 342 U. S. 524 (1952). See
also Neuman, Habeas Corpus, Executive Detention, and the Removal of
Aliens, 98 Colum. L. Rev. 961, 1067, n. 120 (1998) (distinguishing
detention pursuant to a final order of removal from the
interlocutory detention at issue here). Congress' failure to
mention § 2241 in this context therefore lacks the significance
that the Court accorded Congress' silence on the issue in
St.
Cyr. In sum, nothing in
St. Cyr requires us to interpret
8 U. S. C. § 1226(e) to mean anything other than what its plain
language says.
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, 275 F.3d
299 (CA3 2001);
Parra v.
Perryman, 172 F.
3d
954 (CA7 1999). In
Parra, the Seventh
Circuit held that § 1226(e) does not bar "challenges to § 1226(c)
itself, as opposed to decisions implementing that subsection."
Id., at 957. Though the Court's opinion today relies heavily
on this distinction, I see no basis for importing it into the plain
language of the statute.
The Seventh Circuit sought support from our decision in
Reno v.
American-Arab Anti-Discrimination Comm., 525
U. S. 471 (1999)
(AADC), but our holding there supports my
reading of § 1226(e). In
AADC, the Court construed a statute
that sharply limits review of claims "arising from the
537
decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against
any alien under this [Act]." 8 U. S. C. § 1252(g) (1994 ed., Supp.
III). The Court concluded that this provision imposes
jurisdictional limits only on claims addressing one of the three
"'decision[s] or action[s]''' specifically enumerated in the
statute.
AADC, supra, at 482. Nowhere in
AADC did the
Court suggest, however, that the statute's jurisdictional limits
might not apply depending on the particular grounds raised by an
alien for challenging the Attorney General's decisions or actions
in these three areas.
AADC therefore provides no support for
imposing artificial limitations on the broad scope of 8 U. S. C. §
1226(e).
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, 517 U. S. 44, 57, n. 9
(1996) (where the text of a statute is clear, the "preference for
avoiding a constitutional question" cannot be invoked to defeat the
plainly expressed intent of Congress).
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.'" 533 U. S., at 301 (quoting
Felker v.
Turpin, 518 U.
S. 651, 663-664 (1996)). The consti-
538
Opinion of O'CONNOR, J.
tutionality of § 1226(e)'s limitation on habeas review therefore
turns on whether the writ was generally available to those in
respondent's position in 1789 (or, possibly, thereafter) to
challenge detention during removal proceedings.
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-
539
titions for writs of habeas corpus. See,
e. g., Ekiu v.
United States, 142 U. S. 651 (1892);
Fong Yue Ting v.
United States, supra; The Japanese
Immigrant Case, 189 U. S. 86 (1903);
Chin Yow v.
United States, 208 U. S. 8 (1908);
Kwock Jan Fat v.
White, 253 U. S. 454 (1920);
Ng Fung Ho v.
White, 259 U. S. 276 (1922).
Though the Court was willing to entertain these habeas challenges
to Government exclusion and deportation decisions, in no case did
the Court question the right of immigration officials to
temporarily detain aliens while exclusion or deportation
proceedings were ongoing.
By the mid-20th century, the number of aliens in deportation
proceedings being released on parole rose considerably. See,
e.
g., Carlson v.
Landon, 342 U. S., at 538, n. 31.
Nonetheless, until 1952 habeas corpus petitions remained the only
means by which deportation orders could be challenged.
Heikkila v.
Barber, 345 U. S. 229, 236-237
(1953). Under this regime, an alien who had been paroled but wished
to challenge a final deportation order had to place himself in
Government custody before filing a habeas petition challenging the
order.
Bridges v.
Wixon, 326 U. S. 135, 140
(1945). Given this, it is not surprising that the Court was not
faced with numerous habeas claims brought by aliens seeking release
from detention pending deportation.
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. 507 U. S.,
at 296. All in all, it appears that in 1789, and thereafter until
very recently, the writ was not generally available to aliens to
challenge their detention while removal proceedings were
ongoing.
540
Opinion of SOUTER, J.
Because a majority of the Court has determined that jurisdiction
exists over respondent's claims, I need not conclusively decide the
thorny question whether 8 U. S. C. § 1226(e) violates the
Suspension Clause. For present purposes, it is enough to say that
in my view, § 1226(e) unambiguously bars habeas challenges to the
Attorney General's decisions regarding the temporary detention of
criminal aliens under § 1226(c) pending removal. That said, because
a majority of the Court has determined that there is jurisdiction,
and because I agree with the majority's resolution of the merits of
respondent's challenge, I join in all but Part I of the Court's
opinion.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JusTICE GINSBURG
join, concurring in part and dissenting in part.
Respondent Kim 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 officia1,1 giving him a chance to
show that he poses no risk that would justify confining him between
the moment the Government claims he is removable and the
adjudication of the Government's claim.
I join Part I of the Court's opinion, which upholds federal
jurisdiction in this case, but I dissent from the Court's
dispo-
1 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.
541
sition on the merits. The Court's holding that the Constitution
permits the Government to lock up a lawful permanent resident of
this country when there is concededly no reason to do so forgets
over a century of precedent acknowledging the rights of permanent
residents, including the basic liberty from physical confinement
lying at the heart of due process. The INS has never argued that
detaining Kim is necessary to guarantee his appearance for removal2
proceedings or to protect anyone from danger in the meantime.
Instead, shortly after the District Court issued its order in this
case, the INS,
sua sponte and without even holding a custody
hearing, concluded that Kim "would not be considered a threat" and
that any risk of flight could be met by a bond of $5,000. App.
11-13. He was released soon thereafter, and there is no indication
that he is not complying with the terms of his release.
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
2 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.
542
Opinion of SOUTER, J.
represents that he intends to assert that his criminal
convictions are not for removable offenses and that he is
independently eligible for statutory relief from removal,
id., at 11-12; see also
ante, at 522-523, n. 6. In
his brief before the Ninth Circuit, Kim stated that his
removability was "an open question," that he was "still fighting
[his] removal administratively," and that the Immigration Court had
yet to hold a merits hearing. Brief of Petitioner-Appellee in No.
99-17373
(CA9), pp. 4, 13-14,24,33-34, and n. 28, 48-49. At
oral argument here, his counsel stated that Kim was challenging his
removability. See Tr. of Oral Arg. 36-38, 44.
The suggestion that Kim should have contested his removability
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, 2001 WL
395196 (SDNY, Apr. 17, 2001). Kim did not, therefore, "conced[e]
that he is deportable,"
ante, at 531, by challenging
removability before the Immigration Judge and challenging detention
in a federal court.3
3 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,
543
Kim may continue to claim the benefit of his current status
unless and until it is terminated by a final order of removal. 8
CFR § 1.1(p) (2002). He may therefore claim the due process to
which a lawful permanent resident is entitled.
II 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, 149 U. S. 698, 724
(1893). The Japanese Immigrant Case, 189 U. S. 86, 100101
(1903), settled any lingering doubt that the Fifth Amendment's Due
Process Clause gives aliens a right to challenge mistreatment of
their person or property.
The constitutional protection of an alien's person and property
is particularly strong in the case of aliens lawfully
e. g., § 1229b. An alien is not adjudged
"deportable" until an order enters "concluding that the alien is
deportable or ordering deportation," and such an order is not final
until affirmed by the Board of Immigration Appeals or until the
time expires for seeking review. §§ 1l01(a)(47)(A)-(B). To suggest,
as the Court seems to do, that an alien has conceded removability
simply because he does not dispute that he has been charged with
facts that will render him removable if those facts are later
proven is like saying that a civil defendant has conceded liability
by failing to move to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6) or that a criminal defendant has conceded
guilt by failing to dispute the validity of the indictment. But
even if the Court's reasoning were sound, it would not cover Kim's
situation, for he has stated (and the Court acknowledges) his
intent to contest the sufficiency of his criminal convictions as a
basis for removal.
Ante, at 522-523, n. 6. This discussion,
which the Court calls a "detour,"
ante, at 523, is necessary
only because of the Court's insistence in stating that Kim conceded
that he is "deportable."
Ante, at 513, 522, 531.
544
Opinion of SOUTER, J.
admitted to permanent residence (LPRs). The immigration laws
give LPRs the opportunity to establish a life permanently in this
country by developing economic, familial, and social ties
indistinguishable from those of a citizen. In fact, the law of the
United States goes out of its way to encourage just such
attachments by creating immigration preferences for those with a
citizen as a close relation, 8 U. S. C. §§ 1153(a)(1), (3)-(4), and
those with valuable professional skills or other assets promising
benefits to the United States, §§ 1153(b)(1)-(5).
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, ch. 625, Tit. I, § 3, 62 Stat.
605.4 "Resident aliens, like citizens, pay taxes, support the
economy, serve in the Armed Forces, and contribute in myriad other
ways to our society."
In re Griffiths, 413 U. S. 717, 722
(1973). And if they choose, they may apply for full membership in
the national polity through naturalization.
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
4 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).
545
States as home just as much as a native-born, younger brother or
sister entitled to United States citizenship. "[M]any resident
aliens have lived in this country longer and established stronger
family, social, and economic ties here than some who have become
naturalized citizens."
Woodby v.
INS, 385 U. S. 276, 286
(1966). Kim is an example. He moved to the United States at the age
of six and was lawfully admitted to permanent residence when he was
eight. His mother is a citizen, and his father and brother are
LPRs. LPRs in Kim's situation have little or no reason to feel or
to establish firm ties with any place besides the United
States.5
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,
144 U. S. 47,
61-62.6 Fifty years later in dealing with a question of evidentiary
competence in
Bridges v.
Wixon, 326 U. S. 135 (1945), we
said that "the notions of fairness on which our legal system is
founded" applied with full force to "aliens whose roots may have
become, as
5 See also
Welch v.
Ashcroft, 293 F.3d
213, 215
(CA4 2002) (detainee obtained LPR status at age
10);
Hoang v.
Comfort, 282 F.3d
1247, 12521253 (CAW 2002) (ages 3 and 15), cert. pending, No.
01-1616 [REPORTER'S NOTE: See
post, p. 1010].
6 In
The Venus, 8 Cranch 253 (1814), we held that
property belonging to American citizens who were resident in
England during the War of 1812 was to be treated as belonging to
English proprietors for purposes of prize law. We stated that, as
permanent residents of England, the American citizens were "bound,
by such residence, to the society of which they are members,
subject to the laws of the state, and owing a qualified allegiance
thereto; they are obliged to defend it, (with an exception in favor
of such a subject, in relation to his native country) in return for
the protection it affords them, and the privileges which the laws
bestow upon them as subjects,"
id., at 282.
546
Opinion of SOUTER, J.
they are in the present case, deeply fixed in this land,"
id., at 154. And in
Kwong Hai Chew v.
Colding,
344 U. S. 590
(1953), we read the word "excludable" in a regulation as having no
application to LPRs, since such a reading would have been
questionable given "a resident alien's constitutional right to due
process."
Id., at 598-599.7
Kwong Hai Chew adopted
the statement of Justice Murphy, concurring in
Bridges, that
"'once an alien lawfully enters and resides in this country he
becomes invested with the rights guaranteed by the Constitution to
all people within our borders. Such rights include those protected
by the First and the Fifth Amendments and by the due process clause
of the Fourteenth Amendment. None of these provisions acknowledges
any distinction between citizens and resident aliens. They extend
their inalienable privileges to all "persons" and guard against any
encroachment on those rights by federal or state authority.'" 344
U. S., at 596-597, n. 5 (quoting
Bridges, supra, at 161).
See also
United States v.
Verdugo-Urquidez, 494 U. S. 259, 271 (1990)
("[A]liens receive constitutional protections when they have come
within the territory of the United States and developed substantial
connections with this country");
Woodby, supra, at 285
(holding that deportation orders must be supported by clear,
unequivocal, and convincing evidence owing to the "drastic
deprivations that may follow when a resident of this country is
compelled by our Government to forsake all the bonds formed here
and go to a foreign land where he often has no contemporary
identification");
Johnson v.
Eisentrager, 339 U. S. 763, 770-771
(1950) ("The alien, to whom the United States has been tradi-
7 "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, [
374 U. S. 449 (1963),]
where we described
Chew as holding 'that the returning
resident alien is entitled as a matter of due process to a hearing
on the charges underlying any attempt to exclude him.' 374 U. S.,
at 460."
Landon v.
Plasencia, 459 U. S. 21, 33
(1982).
547
tionally hospitable, has been accorded a generous and ascending
scale of rights as he increases his identity with our society ....
[A]t least since 1886, we have extended to the person and property
of resident aliens important constitutional guaranties-such as the
due process of law of the Fourteenth Amendment").
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, 459 U. S. 21 (1982), we
held that a long-term resident who left the country for a brief
period and was placed in exclusion proceedings upon return was
entitled to claim greater procedural protections under that Clause
than aliens seeking initial entry. The LPR's interest in remaining
in the United States is, we said, "without question, a weighty
one."
Id., at 34. See also
Rosenberg v.
Fleuti, 374 U.
S. 449 (1963); Kwong Hai Chew, supra.
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.8 In evaluating Kim's challenge to his mandatory detention
under 8 U. S. C. § 1226(c), the only reasonable starting point is
the traditional doctrine concerning the Government's physical
confinement of individuals.9
8 This case provides no occasion to determine the
constitutionality of mandatory detention of aliens other than
LPRs.
9 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, 426 U. S.
67, 79-80 (1976), cannot be read to leave limitations on the
liberty of aliens unreviewable.
Ante, at 521-522.
Diaz involved a federal statute that limited eligibility for
a federal medical insurance program to United States citizens and
LPRs who had been continuously resident in the United States
548
Opinion of SOUTER, J.
B
Kim's claim is a limited one: not that the Government may not
detain LPRs to ensure their appearance at removal hear-
for five years. 426 U. S., at 69-70. Reversing a lower court
judgment that this statute violated equal protection, we said
this:
"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 Congress
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
Kleindienst v.
Mandel, 408 U. S. 753 (1972);
Galvan v.
Press, 347 U. S. 522 (1954); and
Harisiades v.
Shaughnessy, 342 U. S. 580 (1952));
cf.
ante, at 522 (quoting
Diaz, supra, at 81, n. 17,
in turn quoting
Harisiades). Nothing in
Diaz
addresses due process protection of liberty or purports to sanction
any particular limitation on the liberty of LPRs under
circumstances comparable to those here.
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." 426 U. S., at 80.
Our holding that Congress could consider length of residence and
immigration status in allocating medical insurance in no way
suggests the existence of a federal power to imprison a long-term
resident alien when the Government concedes that there is no need
to do so.
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," 426 U. S., at 80, thus making any
suggestion about Congress's power to treat citizens and aliens
differently unnecessary to the holding. Nor does the Court deny
that
Diaz dealt with an equal protection challenge to the
allocation of medical insurance and had nothing to
549
ings, but that due process under the Fifth Amendment conditions
a potentially lengthy detention on a hearing and an impartial
decisionmaker's finding that detention is necessary to a
governmental purpose. He thus invokes our repeated decisions that
the claim of liberty protected by the Fifth Amendment is at its
strongest when government seeks to detain an individual. THE CHIEF
JUSTICE wrote in 1987 that "[i]n our society liberty is the norm,
and detention prior to trial or without trial is the carefully
limited exception."
United States v.
Salerno,
481 U. S. 739,
755. See also
Reno v.
Flores, 507 U. S. 292, 316 (1993)
(O'CONNOR, J., concurring) ("The institutionalization of an adult
by the government triggers heightened, substantive due process
scrutiny");
Foucha v.
Louisiana, 504 U. S. 71, 80 (1992)
("Freedom from bodily restraint has always been at the core of the
liberty protected by the Due Process Clause from arbitrary
governmental action");
id., at 90 (KENNEDY, J., dissenting)
("As incarceration of persons is the most common and one of the
most feared instruments of state oppression and state indifference,
we ought to acknowledge at the outset that freedom from this
restraint is essential to the basic definition of liberty in the
Fifth and Fourteenth Amendments of the Constitution").
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, 481 U. S., at 748). In deciding in
Salerno
that this principle did not categorically bar pretrial detention of
criminal defendants without bail under the Bail Reform Act of 1984,
it was crucial that the statute provided that, "[i]n a full-blown
adversary hearing, the Government must convince a neutral
decisionmaker by clear and convincing evidence that no conditions
of release can reasonably assure the safety of the community or any
person."
Id., at 750 (citing 18 U. S. C.
say on the subject of the right of LPRs to protection of their
liberty under the Due Process Clause. See
supra, at
543-547.
550
Opinion of SOUTER, J.
§ 3142(f)). We stressed that the Act was not a "scattershot
attempt to incapacitate those who are merely suspected of" serious
offenses, 481 U. S., at 750, and held that due process allowed some
pretrial detention because the Act confined it to a sphere of real
need: "[w]hen the Government proves by clear and convincing
evidence that an arrestee presents an identified and articulable
threat to an individual or the community."
Id., at 751; see
also
Foucha, supra, at 81 (calling the pretrial detention
statute in
Salerno a "sharply focused scheme").
We have reviewed involuntary civil commitment statutes the same
way. In
Addington v.
Texas, 441 U. S. 418 (1979), we
held that a State could not civilly commit the mentally ill without
showing by "clear and convincing evidence" that the person was
dangerous to others,
id., at 433. The elevated burden of
proof was demanded because "[l]oss of liberty calls for a showing
that the individual suffers from something more serious than is
demonstrated by idiosyncratic behavior."
Id., at 427. The
statutory deficiency was the same in
Foucha, where we held
that Louisiana's civil commitment statute failed due process
because the individual was denied an "adversary hearing at which
the State must prove by clear and convincing evidence that he is
demonstrably dangerous to the community." 504 U. S., at 81. See
also
id., at 88 (opinion of O'CONNOR, J.) (civil commitment
depends on a "necessary connection between the nature and purposes
of confinement").
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, 521
U. S. 346 (1997), likewise provided
551
only for confinement of "a limited subclass of dangerous
persons" who had committed "'a sexually violent offense'" and who
suffered from" 'a mental abnormality or personality disorder' "
portending" 'predatory acts of sexual violence,'"
id., at
357 (quoting Kan. Stat. Ann. § 59-29a02(a) (1994)).
Salerno
relied on the restriction of detention "by the stringent time
limitations of the Speedy Trial Act," 481 U. S., at 747, whereas in
Foucha, it was a fault that the statute did not impose any
comparable limitation, 504 U. S., at 82 (citing
Salerno).
See also
Jackson v.
Indiana, 406 U. S. 715, 738 (1972)
("At the least, due process requires that the nature and duration
of commitment bear some reasonable relation to the purpose for
which the individual is committed").
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 cases 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(c) does, by selecting a class of people for
confinement on a categorical basis and denying members of that
class any chance to dispute the
552
Opinion of SOUTER, J.
necessity of putting them away. The cases, of course, would mean
nothing if citizens and comparable residents could be shorn of due
process by this sort of categorical sleight of hand. Without any
"full-blown adversary hearing" before detention,
Salerno,
supra, at 750, or heightened burden of proof,
Addington,
supra, or other procedures to show the government's interest in
committing an individual,
Foucha, supra; Jackson, supra,
procedural rights would amount to nothing but mechanisms for
testing group membership. Cf.
Foucha, supra, at 88 (opinion
of O'CONNOR, J.) ("Nor would it be permissible to treat all
acquittees alike, without regard for their particular crimes"). And
if procedure could be dispensed with so expediently, so presumably
could the substantive requirements that the class of detainees be
narrow and the detention period strictly limited.
Salerno,
supra; Hendricks, supra.
C
We held as much just two Terms ago in
Zadvydas v.
Davis, 533 U.
S. 678 (2001), which stands for the proposition that detaining
an alien requires more than the rationality of a general detention
statute; any justification must go to the alien himself.
Zadvydas considered detention of two aliens, Zadvydas and
Ma, who had already been ordered removed and therefore enjoyed no
lawful immigration status. Their cases arose because actual removal
appeared unlikely owing to the refusal of their native countries to
accept them, with the result that they had been detained not only
for the standard 90-day removal period, during which time most
removal orders are executed, but beyond that period because the INS
considered them to be a "'risk to the community''' and "'unlikely
to comply with the order of removal.'"
Id., at 682 (quoting
8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V)). Zadvydas and Ma
challenged their continued and potentially indefinite detention
under the Due Process Clause of the Fifth Amendment.
553
The
Zadvydas opinion opened by noting the clear
applicability of general due process standards: physical detention
requires both a "special justification" that "outweighs the
'individual's constitutionally protected interest in avoiding
physical restraint'" and "adequate procedural protections." 533 U.
S., at 690 (quoting
Hendricks, 521 U. S., at 356). Nowhere
did we suggest that the "constitutionally protected liberty
interest" in avoiding physical confinement, even for aliens already
ordered removed, was conceptually different from the liberty
interest of citizens considered in
Jackson, Salerno, Foucha,
and
Hendricks. On the contrary, we cited those cases and
expressly adopted their reasoning, even as applied to aliens whose
right to remain in the United States had already been declared
forfeited.
Zadvydas, 533 U. S., at 690.
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, 533 U. S., at 691. Finally,
although both Zadvydas and Ma appeared to be dangerous, this
conclusion was undermined by defects in the procedures resulting in
the finding of dangerousness.
Id., at 692. The upshot was
such serious doubt about the constitutionality of the detention
statute that we construed it as authorizing continuing detention
only when an alien's removal was "reasonably foreseeable."
Id., at 699. In the cases of Zadvydas and Ma, the fact that
their countries of citizenship were not willing to accept their
return weighed
554
Opinion of SOUTER, J.
against the Government's interest in keeping them at hand for
instant removal, even though both were serious flight risks,
id., at 684-686,690, and we remanded the cases to the Courts
of Appeals for a determination of the sufficiency of the
Government's interests in Zadvydas's and Ma's individual detention,
id., at 702.
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, 385 U. S. 276 (1966),
will not mean all that much when the INS can detain, transfer, and
isolate aliens away from their lawyers, witnesses, and evidence.
Cf.
Stack v.
Boyle, 342 U. S. 1, 4 (1951).
Kim's right to defend against removal gives him an even stronger
claim than the aliens in
Zadvydas could raise.
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," 533 U. S.,
at 720 (opinion of KENNEDY, J.), in distinguishing them "from
aliens with a lawful right to remain here,"
ibid., which is
Kim's position. The dissent recognized the right of all aliens,
even "removable and inadmissible" ones, to be "free from detention
that is arbitrary or capricious,"
id., at 721, and the
opinion explained that detention would pass the "arbitrary or
capricious" test "when
555
necessary to avoid the risk of flight or danger to the
community,"
ibid.10
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 thee] objective" of
satisfying procedural due process,
id., at 722; 11 that
process stands in stark contrast to the total ab-
10 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, 533 U. S., at 721
(opinion of KENNEDY, J.).
The High Commissioner also referred to the "minimum procedural
guarante[e]" 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.
11 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. 533 U. S., at 722-723. But the lag was fitted to the
circumstances. In the usual case, removal in fact would
556
Opinion of SOUTER, J.
sence of custody review available in response to Kim's claim
that he is neither dangerous nor a flight risk.12 The removable
aliens in
Zadvydas had the right to a hearing, to
representation, and to consideration of facts bearing on risk of
flight, including criminal history, evidence of rehabilitation, and
ties to the United States.
Ibid. The references to the
"necessity" of an individual's detention and the discussion of the
procedural requirements show that the principal
Zadvydas
dissenters envisioned due process as individualized review, and the
Court of Appeals in this case correctly held that Kim's mandatory
detention without benefit of individualized enquiry violated due
process as understood by both the
Zadvydas majority and
JUSTICE KENNEDY in dissent.
Kim v.
Ziglar, 276 F.3d
523, 535-537 (CA9 2002). Every Court of Appeals to consider the
detention of
come promptly; it is only when it did not that interim custody
raised a substantial issue. The issue here, of course, is not
timing but the right to individualized review at all.
12 The hearing recognized in
Matter of Joseph, 22 I.
& 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.
557
an LPR under § 1226(c) after
Zadvydas reached the same
conclusion. 13
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, 533
U. S., at 690-691 (internal quotation marks omitted). "There must
be a 'sufficiently compelling' governmental interest to justify
such [an] action, usually a punitive interest in imprisoning the
convicted criminal or a regulatory interest in forestalling danger
to the community."
Flores, 507 U. S., at 316 (O'CONNOR, J.,
concurring) (quoting
Salerno, 481 U. S., at 748). The class
of persons subject to confinement must be commensurately narrow and
the duration of confinement limited accordingly.
Zadvydas,
supra, at 691;
Hendricks, 521 U. S., at 368;
Foucha, 504 U. S., at 81-82;
Salerno, supra, at 747,
750. JUSTICE KENNEDY'S dissenting view in
Zadvydas, like
that of the majority, disapproved detention that is not "necessary"
to counter a risk of flight or danger; it is "arbitrary or
capricious" and violates the substantive component of the Due
Process Clause. 533 U. S., at 721. Finally, procedural due process
requires, at a minimum, that a detainee have the benefit of an
impartial decisionmaker able to consider particular circumstances
on the issue of necessity.
Id., at 691-692;
id., at
722 (KENNEDY, J., dissenting);
Foucha, supra, at 81;
Salerno, supra, at 750. See also
Kenyeres v.
Ashcroft, post, at 1305 (KENNEDY, J., in chambers) ("An
opportunity to present one's meritorious grievances to a court
supports the legitimacy and public acceptance of a statutory
regime").
13 Welch v.
Ashcroft, 293 F.3d
213 (CA4 2002);
Hoang v.
Comfort, 282 F.
3d 1247 (CAlO 2002), cert. pending, No. 01-1616 [REPORTER'S
NOTE:
See
post, p. 10lO];
Patel v.
Zemski,
275 F.3d
299 (CA32001). The Seventh Circuit's decision in
Parra
v.
Perryman, 172 F.3d
954 (1999), preceded our decision in
Zadvydas.
558
Opinion of SOUTER, J.
By these standards, Kim's case is an easy one. "[H]eightened,
substantive due process scrutiny,"
Flores, supra, at 316
(O'CONNOR, J., concurring), uncovers serious infirmities in §
1226(c). Detention is not limited to dangerous criminal aliens or
those found likely to flee, but applies to all aliens claimed to be
deportable for criminal convictions, even where the underlying
offenses are minor.
E. g., Michel v.
INS, 206 F.3d
253, 256
(CA2 2000) (possession of stolen bus
transfers);
Matter of Bart, 20 1. & N. Dec. 436 (BIA
1992) (issuance of a bad check). Detention under § 1226(c) is not
limited by the kind of time limit imposed by the Speedy Trial Act,
and while it lasts only as long as the removal proceedings, those
proceedings have no deadline and may last over a year. See Brief
for Citizens and Immigrants for Equal Justice et al. as
Amici
Curiae 23-26; see also
id., at 10-20 (citing examples).
Section 1226(c) neither requires nor permits an official to
determine whether Kim's detention was necessary to prevent flight
or danger.
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.14 This is surely little
enough, given the fact that 8 U. S. C. § 1536 gives an LPR charged
with being a foreign terrorist the right to a release hearing
pending a determination that he be removed.
III
The Court proceeds to the contrary conclusion on the premise
that "the Government may constitutionally detain
14 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.
559
deportable aliens during the limited period necessary for their
removal proceedings."
Ante, at 526. Sometimes, maybe often,
it may, but that is not the point in contention. Kim has never
challenged the INS's general power to detain aliens in removal
proceedings or even its power to detain him in particular, if it
affords him a chance to participate in an enquiry whether he poses
a flight risk or a danger to society.
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, 462 U. S. 919, 941-942
(1983)); see also
Carlson v.
Landon, 342 U. S. 524, 537 (1952)
(stating that the deportation power "is, of course, subject to
judicial intervention under the 'paramount law of the Constitution'
"). As in
Zadvydas, we are here concerned not with the power
to remove aliens but with the "important constitutionallimitations"
on that power's exercise.
Zadvydas, supra, at 695.15
15 The Court's citations to
Wong Wing v.
United
States, 163 U. S.
228 (1896), are therefore inapposite.
Ante, at 523, 531.
In
Wong Wing, we hypothesized that detention "necessary to
give effect" to the removal of an alien "would be valid"; the use
of the subjunctive mood makes plain that the issue was not before
the Court. 163 U. S., at 235.
Wong Wing certainly did not
hold that detention in aid of removal was exempt from the Due
Process Clause.
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, 194 U. S. 279, 283 (1904)
(stating that the lower court admitted the appellant to bail
pending appeal to this Court);
Fong Yue Ting v.
United
States, 149 U. S.
698, 704 (1893) (same);
United States v.
Moy Yee
Tai, 109 F. 1
(CA2 1901)
(per curiam); In re
Lum Poy, 128 F.9d
4, 975
(CC Mont. 1904) (noting that "the practice in
California, Idaho, and Oregon has been and is to admit Chinese
persons to
560
Opinion of SOUTER, J.
A
The Court spends much effort trying to distinguish
Zadvydas, 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
bail pending an investigation into the lawfulness of their
residence within the United States, and before any order for
deportation has been made");
In re Ah Tai, 125 F.7d
5, 796-797 (Mass. 1903) (identifying a practice in several
federal districts admitting aliens to bail, both before an initial
finding of deportability and during the appeal therefrom);
In re
Chow Goo Pooi, 25 F. 77, 78
(CC Cal. 1884). The breadth
of this practice is evident from one court's statement that "[tJo
hold bail altogether inadmissible ... would invalidate hundreds of
existing recognizances."
Ah Tai, supra, at 797.
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, 169 F.2d 747, 751
(CA2
1948) (citations omitted).
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, 163 U. S., at 235, that statement was written
against the background of the general availability of judicial
relief from detention pending deportation proceedings.
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).
561
that Kim's is the stronger claim, see
supra, at 554-556.
In any case, the analytical framework set forth in
Salerno,
Foucha, Hendricks, Jackson, and other physical confinement
cases applies to both, and the two differences the Court relies
upon fail to remove Kim's challenge from the ambit of either the
earlier cases or
Zadvydas itself.16
First, the Court says that § 1226(c) "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(c) 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 cases of Zadvydas and Ma for
determinations of the strength of the Government's
16 The Court tellingly does not even mention
Salerno, Foucha,
Hendricks, or
Jackson.
562
Opinion of SOUTER, J.
reasons for detaining them in particular. 533 U. S., at 702.17
We can insist on nothing less here, since the Government's
justification for detaining individuals like Zadvydas and Ma, who
had no right to remain in this country and were proven flight risks
and dangers to society,
id., at 684-686, is certainly
stronger (and at least no weaker) than its interest in detaining a
lawful permanent resident who has not been shown (or even claimed)
to be either a flight risk or a threat to the community.18
The Court's closest approach to a reason justifying classwide
detention without exception here is a Senate Report stating that
over 20% of nondetained criminal aliens failed
17The Court is therefore mistaken in suggesting that I view the
detention of the individual aliens in
Zadvydas 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." 533 U.
S., at 701. Thus, the Court's suggestion in this case that "the
statutory provision" authorizes "detention" that prevents
deportable aliens from fleeing as a general matter,
ante, at
527-528, is no sufficient basis for claiming
Zadvydas as
support for the Court's methodology or result. Rather, the Court
should consider whether the detention of Kim as an individual is
necessary to a compelling Government interest, just as it did for
the detention of Zadvydas and Ma as individuals. As the Government
concedes, Kim's individual detention serves no Government purpose
at all.
18 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, 504 U. S. 71, 82 (1992).
The ability to detain aliens in removal proceedings who pose
threats to the community also satisfies this interest. Cf.
United States v.
Salerno, 481 U. S. 739 (1987). The
alternative to detention, of course, is not unrestricted liberty,
but supervised release, which also addresses the risk of
recidivism.
Zadvydas, 533 U. S., at 696.
563
to appear for removal hearings.
Ante, at 519 (citing S.
Rep. No. 104-48 (1995) (hereinafter Senate Report)). To begin with,
the Senate Report's statistic treats all criminal aliens alike and
does not distinguish between LPRs like Kim, who are likely to have
developed strong ties within the United States, see
supra,
at 544-547, and temporary visitors or illegal entrants. Even more
importantly, the statistic tells us nothing about flight risk at
all because, as both the Court and the Senate Report recognize, the
INS was making its custody determinations not on the ground of
likelihood of flight or dangerousness, but "in large part,
according to the number of beds available in a particular region."
Senate Report 23, cited
ante, at 519; see also H. R. Rep.
No. 104-469, p. 124 (1995) (hereinafter House Report) ("[I]n
deciding to release a deportable alien, the INS is making a
decision that the alien cannot be detained given its limited
resources"); App. 26-27. This meant that the INS often could not
detain even the aliens who posed serious flight risks. Senate
Report 23 (noting that the INS had only 3,500 detention beds for
criminal aliens in the entire country and the INS district
comprising Pennsylvania, Delaware, and West Virginia had only 15).
The desperate lack of detention space likewise had led the INS to
set bonds too low, because "if the alien is not able to pay, the
alien cannot be released, and a needed bed space is lost." House
Report 124. The Senate Report also recognized that, even when the
INS identifies a criminal alien, the INS "often refuses to take
action because of insufficient agents to transport prisoners, or
because of limited detention space." Senate Report 2. Four former
high-ranking INS officials explained the Court's statistics as
follows: "Flight rates were so high in the early 1990s not as a
result of chronic discretionary judgment failures by [the] INS in
assessing which aliens might pose a flight risk. Rather, the rates
were alarmingly high because decisions to release aliens in
proceedings were driven over-
564
Opinion of SOUTER, J.
whelmingly by a lack of detention facilities." Brief for T.
Alexander Aleinikoff et al. as
Amici Curiae 19.
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 N aturalization 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. 19 See also Post-Order Report, App.
25 ("This current review was limited to actions taken by INS to
remove aliens after [immigration judges or the Board of Immigration
Appeals] had issued final orders").2o
19 Detention of such aliens is governed by the statute at issue
in
Zadvydas, § 1231(a), not by § 1226(c).
20 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
565
More relevant to this case, and largely ignored by the Court, is
a recent study conducted at the INS's request concluding that 92%
of criminal aliens (most of whom were LPRs) who were released under
supervisory conditions attended all of their hearings. 1 Vera
Institute of Justice, Testing Community Supervision for the INS: An
Evaluation of the Appearance Assistance Program, pp. ii, 33, 36
(Aug. 1, 2000) (hereinafter Vera Institute Study). Even without
supervision, 82% of criminal aliens released on recognizance showed
up, as did 77% of those released on bond, leading the reporters to
conclude that "supervision was especially effective for criminal
aliens" and that "mandatory detention of virtually all criminal
aliens is not necessary."
Id., at ii,
36,42.21
in its brief and at oral argument. Brief for Petitioners 7,
19-20, and n. 7; Tr. of Oral Arg. 23. The Government did not cite
the Case Hearing Report.
21 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, 533 U. S., at 696. Finally, the fact
that Kim sought and was granted release on bond rather than
supervised release,
ante, at 520, n. 5, does not detract
from the relevance of the Vera Institute Study. Regardless of what
methods the INS decides to employ to prevent flight, the study
supports the conclusion that mandatory deten-
566
Opinion of SOUTER, J.
The Court nowhere addresses the Vera Institute's conclusion that
criminal aliens released under supervisory conditions are
overwhelmingly likely to attend their hearings. Instead, the Court
fixes on the fact that 23% of the comparison group of aliens
released on bond failed to attend all of their hearings.
Ante, at 519-520. Since the bond determinations were made by
the INS, the fact remains that resource-driven concerns may well
have led the INS to release individuals who were evident flight
risks on bonds too low to ensure their attendance. See
supra, at 563-564. The Court's assumption that the INS's
bond determinations involved "individualized screening" for flight
risk,
ante, at 520, finds no support in the Vera Institute
Study. Thus the Court's reliance on the failure rate of aliens
released by the INS on bond, whether it comes from the Senate
Report or the Vera Institute Study,
ante, at 519-520, does
not support its conclusion.
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. 533 U. S., at 696
(noting that imprisonment was constitutionally suspect given the
possibility of "supervision under release conditions that may not
be violated").22 The Court's first attempt to distinguish
Zadvydas accordingly fails.
tion under § 1226(c) is "not necessary" to prevent flight, Vera
Institute Study 42, and therefore violates the Due Process
Clause.
22 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, 481 U. S., at 751
("[T]he procedures by
567
The Court's second effort is its claim that mandatory detention
under § 1226(c) is generally of a "much shorter duration" than the
incarceration at issue in
Zadvydas. Ante, at 528. While it
is true that removal proceedings are unlikely to prove "indefinite
and potentially permanent," 533 U. S., at 696, they are not
formally limited to any period, and often extend beyond the time
suggested by the Court, that is, "an average time of 47 days" or,
for aliens who exercise their right of appeal, "an average of four
months,"
ante, at 529; see also Case Hearing Report 12
(finding that the average time from receipt of charging documents
by a detained alien to a final decision by the immigration judge
was 54 days). Even taking these averages on their face, however,
they are no legitimate answer to the due process claim to
individualized treatment and hearing.
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 nonimmigrants, LPRs are the aliens most likely to press
substantial
which a judicial officer evaluates the likelihood of future
dangerousness are specifically designed to further the accuracy of
that determination"); see also
Zadvydas, supra, at 721
(KENNEDY, J., dissenting) (stating that due process requires
"adequate procedures" permitting detained aliens to show that "they
no longer present special risks or danger" warranting
confinement).
568
Opinion of SOUTER, J.
challenges to removability requiring lengthy proceedings.23 See
Vera Institute Study 33, 37 (stating that many of the criminal
aliens studied were "lawful permanent residents who have spent much
or all of their adult lives in the United States" and that 40% of
those released on supervision "were allowed to stay in the United
States"). Successful challenges often require several months of
proceedings, see Brief for Citizens and Immigrants for Equal
Justice et al. as
Amici Curiae 10-20; detention for an
open-ended period like this falls far short of the "stringent time
limitations" held to be significant in
Salerno, 481 U. S.,
at 747. The potential for several months of confinement requires an
individualized finding of necessity under
Zadvydas.24
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,
342 U. S. 524
(1952), and
Reno v.
Flores, 507 U. S. 292 (1993).
23 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).
24 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, 467 U.
S. 253 (1984), involved a maximum detention period of 17 days,
id., at 270, yet our due process analysis noted that the
detainee was entitled to a hearing in which he could challenge the
necessity of his confinement before an impartial decisionmaker
required to state the facts and reasons underlying any decision to
detain,
id., at 276277. The 90-day removal period in §
1231(a)(1) not only has a fixed endpoint, but also applies only
after the alien has been adjudged removable, § 1231(a)(1)(B). The
discussion of that provision in
Zadvydas cannot be read to
indicate any standard of permissible treatment of an LPR who has
not yet been found removable.
569
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. 342 U.
S., at 528, n. 5 (citing Internal Security Act of 1950, § 23, 64
Stat. 1011). We sustained that decision because we found that the
District Director of the INS, to whom the Attorney General had
delegated the authority, did not abuse his discretion in concluding
that "evidence of membership [in the Communist Party] plus personal
activity in supporting and extending the Party's philosophy
concerning violence" made the aliens "a menace to the public
interest." 342 U. S., at 541. The significance of looking to
"personal activity" in our analysis was complemented by our express
recognition that there was "no evidence or contention that all
persons arrested as deportable ... for Communist membership are
denied bail,"
id., at 541-542, and by a Government report
showing that in fact "the large majority" of aliens arrested on
charges comparable to the
Carlson petitioners' were allowed
bail.
Id., at 542; see also
id., at 538, n. 31
(noting that it was "quite clear" that "detention without bond has
been the exception").
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
570
Opinion of SOUTER, J.
Government also presented the following excerpt of a statement
of the chairman of the House Judiciary Committee:
"'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 Congo
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," 342 U. S., at 541, and their
challenge, unlike Kim's, was that the INS had locked them up for an
impermissible reason (danger to society) whereas only a finding of
risk of flight would have justified detention.
Id., at
533-534 ("It is urged ... that where there is no evidence to
justify a fear of unavailability for the hearings or for the
carrying out of a possible judgment of deportation, denial of bail
under the circumstances of these cases is an abuse of discretion");
see also
id., at 551 (Black, J., dissenting) ("A power to
put in jail because dangerous cannot be derived from a power to
deport").25
25 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
571
We rejected that contention, leaving the petitioners in
detention because they were dangerous to the public interest, and
on that issue, an official had determined that the
Carlson
petitioners ought to be detained. Here, however, no impartial
decisionmaker has determined that detaining Kim is required for any
purpose at all, and neither the Government nor the Court even
claims such a need.
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 570.26
Nor is the Court entitled to invoke
Carlson by saying that
the INS "had adopted a policy of refusing to grant bail" to alien
Communists, which made the Attorney General's discretion to release
aliens on bond merely "ostensibl[e]."
Ante, at 524. The
Carlson Court found that "[t]here is no evidence or
contention that all per-
of an alien, the Attorney General is justified in denying bail
on the ground that the alien is an active participant in Communist
Party affairs, or whether he is bound also to consider other
circumstances, particularly the likelihood that the alien will
report as ordered." Pet. for Cert. in
Butterfield v.
Zydok, O. T. 1951, No. 136, p. 2.
26 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." 533 U. S., at 721 (opinion of KENNEDY,
J.).
572
Opinion of SOUTER, J.
sons arrested as deportable ... for Communist membership are
denied bail." 342 U. S., at 541-542.
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[gJ' 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 342 U. S., at 549, 550, n. 5, 552 (Black, J., dissenting),
and
id., at 567 (Frankfurter, J., dissenting)). Statements
made in dissent do not override the
Carlson Court's express
finding that the petitioners in that case were found to be not only
members of the Communist Party, but "active in Communist work" and
to "a degree, minor perhaps in [one] case, [participants] in
Communist activities."
Id., at 541.27
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.,
27 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." 342 U. S., at 530 (quoted
ante, at 525, n. 9).
573
dissenting) (arguing that evidence of Communist party membership
was "insufficient to show danger"; that evidence of some aliens'
activities was stale; and that the history of treatment of the
aliens involved forced him to conclude that the Attorney General
was not actually exercising discretion on an individual basis).28
And even if the
Carlson dissenters were factually correct,
all that would show is that the
Carlson Court was misled (by
the Government, no less) into deciding the case on the basis that
individualized findings of dangerousness were made. Given that the
Carlson Court clearly believed that it was deciding a case
in which individualized determinations occurred, it is serious
error for this Court to treat
Carlson as deciding a case in
which they did not.
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,
342 U. S., at 538), it nowhere said that detention was part of
every deportation proceeding. Instead, it acknowledged that "the
far larger part" of aliens deportable on "subversive charges" were
re-
28 Justice Black's dissenting statement that one of the aliens
was" 'not likely to engage in any subversive activities,'" 342 U.
S., at 549, does not amount to a "specific finding of
nondangerousness,"
ante, at 525. On the contrary, the Court
expressly stated that the Government could prove dangerousness
based on "personal activity" in the Communist Party; it simply was
not required to go so far as to show "specific acts of sabotage or
incitement to subversive action."
Carlson, supra, at 541.
Thus while there was no finding of "subversive action," there
certainly was a finding of "danger," albeit one that Justice Black
found unconvincing.
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," 342 U.
S., at 568, is difficult to reconcile with the contrary statements
in both the majority opinion and the United States's brief in
Carlson, see
supra, at 569-572. Whatever its basis,
Justice Frankfurter's reference to a "policy" of bail denials does
not bear the weight that the Court places upon it today.
574
Opinion of SOUTER, J.
leased on "modest bonds or personal recognizances" pending their
deportation proceedings.
Id., at 538, n. 31. Contrary to the
Court's holding today, the
Carlson Court understood that
discretion to admit to bail was necessary, since "[o]f course [a]
purpose to injure [the United States] could not be imputed
generally to all aliens subject to deportation."
Id., at
538. It was only in this light that the Court said that the INS
could "justify [its] refusal of bail by reference to the
legislative scheme to eradicate the evils of Communist activity";
the Court was referring to the INS's power to detain on a finding
that a given alien was engaged in Communist activity that
threatened society.
Id., at 543. The Court nowhere
addressed, much less approved, the notion that the INS could
justify, or that Congress could compel, an individual's detention
without any determination at all that his detention was necessary
to some Government purpose. And if there was ever any doubt on this
point, it failed to survive our subsequent, unanimous recognition
that the detention scheme in
Carlson required "some level of
individualized determination" as a precondition to detention.
INS v.
National Center for Immigrants' Rights, Inc.,
502 U. S. 183,
194-195 (1991); see also
Flores, 507 U. S., at 313.
Carlson stands at odds with the Court's outcome in this
case.
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.''' 507 U. S., at 297 (quoting 8 CFR § 242.24(b)(1) (1992)).
Again, Kim agrees that such a system is constitutional and contends
for it here.
Flores turned not on the necessity of
detention, but on the regulation's restric-
575
tion that alien juveniles could only be released to the custody
of the juvenile's parent, legal guardian, or another specified
adult relative. Even this limitation, however, was subject to
exception for releasing a juvenile to another person in " 'unusual
and compelling circumstances and in the discretion of the [INS]
district director or chief patrol agent.'" 507 U. S., at 297
(quoting 8 CFR § 242.24(b)(4) (1992)).
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.'" 507 U. S., at 302 (quoting
Schall v.
Martin, 467 U.
S. 253, 265 (1984)). Since" '[l]egal custody' rather than
'detention' more accurately describes the reality of the
arrangement" in
Flores, 507 U. S., at 298, that case has no
bearing on this one, which concerns the detention of an
adult.29
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, 507 U. S., at 313, it gave no
carte blanche to
gen-
29 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 507 U.
S., at 313).
Flores expressly stated that the regulation did
not implicate the core liberty interest in avoiding physical
confinement.
Id., at 302 ("The 'freedom from physical
restraint' ... is not at issue in this case").
576
Opinion of BREYER, J.
eral legislation depriving an entire class of aliens of liberty
during removal proceedings.
Flores did not disturb
established standards that detention of an adult must be justified
in each individual instance.3o
IV
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.
JUSTICE BREYER, 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, 533 U. S. 678
(2001), should govern these and longer periods of detention, for an
alien's concession that he is deportable
30 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).
577
seems to me the rough equivalent of the entry of an order of
removal. See
id., at 699-701 (reading the statute, under
constitutional compulsion, as commonly imposing a presumption of a
6-month "reasonable" time limit for post-removalorder
detention).
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, 291 F.3d
1201, 1213
(CA9 2002) (petty theft with a prior not an
"aggravated felony"). Compare
Omagah v.
Ashcroft,
288 F.3d
254, 259
(CA5 2002) (" 'Moral turpitude refers generally
to conduct that shocks the public conscience as being inherently
base, vile, or depraved' "), with
Guarneri v.
Kessler, 98 F.2d 580,
580-581 (CA5 1938) ("Moral
turpitude" involves" '[a]nything done contrary to justice, honesty,
principle or good morals' "), and
Quilodran-Brau v.
Holland, 232 F.2d
183, 184
(CA3 1956) ("The borderline of 'moral
turpitude' is not an easy one to locate").
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
578
Opinion of BREYER, J.
be avoided."
Crowell v.
Benson, 285 U. S. 22, 62 (1932);
accord,
Zadvydas, supra, at 689.
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
1. & 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. Federallaw 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, 353 U. S. 194, 201-202
(1957);
Kent v.
Dulles, 357 U. S. 116, 129
(1958). So interpreted, the statute would require the Government to
permit a detained alien to seek
579
an individualized assessment of flight risk and dangerousness as
long as the alien's claim that he is not deportable is (1) not
interposed solely for purposes of delay and (2) raises a question
of "law or fact" that is not insubstantial. And that
interpretation, in my view, is consistent with what the
Constitution demands. I would remand this case to the Ninth Circuit
to determine whether Kim has raised such a claim.
With respect, I dissent from the Court's contrary
disposition.
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