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Demore v. Kim, 538 U.S. 510 (2003)

Legal Research Home > United States Supreme Court > 538 U.S. > Demore v. Kim, 538 U.S. 510 (2003)

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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 first— ensuring the presence of criminal aliens at their removal proceedings— upon 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.

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