564
Opinion of Souter, J.
whelmingly by a lack of detention facilities." Brief for T. Alexander Aleinikoff et al. as Amici Curiae 19.
The Court's recognition that, at the time of the enactment of § 1226(c), "individualized bail determinations had not been tested under optimal conditions" is thus rather an under-statement. Ante, at 528. The Court does not explain how the INS's resource-driven decisions to release individuals who pose serious flight risks, and their predictable failure to attend removal hearings, could justify a systemwide denial of any opportunity for release to individuals like Kim who are neither flight risks nor threats to the public.
The Court also cites a report by the Department of Justice relied upon by the Government. Department of Justice, Office of the Inspector General, Immigration and Naturalization Service, Deportation of Aliens After Final Orders Have Been Issued, Rep. No. I-96-03 (Mar. 1996), App. 14 (herein-after Post-Order Report), cited ante, at 519, 521. But that report does not even address the issue of detention before a determination has been made that an alien is removable. As its title indicates, the Post-Order Report analyzed removal rates only for aliens who had already received final orders of removability.19 See also Post-Order Report, App. 25 ("This current review was limited to actions taken by INS to remove aliens after [immigration judges or the Board of Immigration Appeals] had issued final orders").20
19 Detention of such aliens is governed by the statute at issue in Zadvydas, § 1231(a), not by § 1226(c).
20 A prior study by the same body noted that nonappearance rates by aliens in deportation proceedings before issuance of orders to deport (aliens, that is, like Kim) were approximately 23% for the first half of 1993 and 21% for all of 1992. Department of Justice, Office of the Inspector General, Case Hearing Process in the Executive Office for Immigration Review, Rep. No. I-93-03, p. 5 (May 1994) (hereinafter Case Hearing Report). Congress appears to have considered these relevant figures, Senate Report 2 ("Over 20 percent of nondetained criminal aliens fail to appear for deportation proceedings"), without referring to irrelevant postorder numbers. The Government relied on the Post-Order Report
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