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
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