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,
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