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.
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