558
Opinion of Souter, J.
By these standards, Kim's case is an easy one. "[H]eight-ened, 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 I. & 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.
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