Demore, Charles, District Dir., San Francisco Dist. of INS, et al. v. Kim, Hyung Joon (04/29/2003)

Questions presented: Whether respondent's mandatory detention under Section 1226(c)(1) of Title 8 of the U.S. Code, which requires the U.S. Attorney General to take into custody aliens who are inadmissible to or deportable from the United States because they have committed a specified offense, including an aggravated felony, violates the 5th Amendment's Due Process Clause, where the respondent was convicted of an aggravated felony after his admission into the United States.

BY ERYN MCGARY, MEDILL NEWS SERVICE

Hyung Joon Kim was released from prison on Feb. 1, 1999, after serving almost three years for petty theft. The next day, the Immigration and Naturalization Service took him into custody and denied him bail. Kim, the INS claimed, was going to be deported.

Kim, a citizen of South Korea, moved to the United States when he was six years old. He became a lawful permanent resident two years later, a change in status that would eventually give him the right to apply for U.S. citizenship. But rather than being naturalized at age 18, Kim was convicted in a California state court of first degree burglary. Less than a year later, in 1997, he was convicted of "petty theft with priors" and sentenced to three years in prison.

Under a 1996 amendment to the Immigration and Naturalization Act, Kims conviction constituted an "aggravated felony" and was grounds for deportation. What's more, the statute specifically requires that aggravated felons be taken into custody and further mandates that they be held without bail throughout the course of their deportation proceedings.

On May 17, 1999, more than three months after the INS took him into custody, Kim petitioned the U.S. District Court for the Northern District of California for a writ of habeas corpus, claiming that mandatory detention without bail violated his 5th Amendment right to due process.

The district judge agreed, ruling that the statute violated the 5th Amendment by its very nature. Though the judge recognized Congress absolute authority over immigration regulation, she noted that implementation of their laws was very much at the mercy of the Constitution. The mandatory detention of criminal aliens was an "excessive means" of achieving the permissible goal of preventing deportable aliens from evading the INS, Judge Susan Illston ruled. "While the governments goals are valid," she wrote, "[the statute] simply paints with too broad a brush. Less excessive means exist for accomplishing Congress goals, such as having individualized bail hearings." The judge ordered that the INS grant Kim a bail hearing. In lieu of the hearing, the INS released him on $5,000 bond, then appealed.

The 9th Circuit Court of Appeals affirmed, but with a much narrower scope. "We do not hold in this case that the unavailability of bail under [the statute] is unconstitutional on its face," wrote Judge William Fletcher for a unanimous panel. "We do hold, however that it is unconstitutional as applied to lawful permanent resident aliens."

The court criticized the INS's reasoning that the detention of criminal aliens contributed to public safety. Many of these aliens, like Kim, had committed relatively minor offenses, Fletcher pointed out. "This argument is insufficient to justify a blanket denial of bail, for aggravated felonies, as defined by the statute, are not all egregious; nor do they conclusively establish the people who have committed them are menaces to the public," he wrote.

The court acknowledged that post-Sept. 11 vigilance could necessitate future detention without bail of some aliens. "No responsible court will leave an unprotected spot in the Nation's armor, and our decision does not do so," Fletcher wrote. "We do not hold that a lawful permanent resident alien in removal proceedings has an absolute right to bail. We hold only that such an alien has a right to an individualized determination of a right to bail, tailored to his or her particular circumstances."

In separate cases, the 10th and 3rd circuits joined the 9th in declaring the mandatory detention statute unconstitutional while the 7th Circuit rejected a similar due process challenge. Due to what it characterized as "confusion and disagreement among the courts of appeals," the INS petitioned the U.S. Supreme Court for a writ of certiorari and stressed the need for a speedy resolution, since hundreds of removal proceedings similar to Kims trigger mandatory detention each week.

The INS took issue with the 9th Circuits individualized hearing recommendation, noting that in 1994, only 11 percent of non-detained aliens with final removal orders were successfully deported. Congress did not enact this legislation in a vacuum, its petition maintained, but rather "in direct response to the failure of earlier immigration provisions that provided for the sort of individualized hearings that the court of appeals required here."

Further, aliens already tried and convicted of a crime "have enjoyed full due process protections in connection with those convictions," the government reasoned. "Thus, criminal aliens have already been accorded the opportunity for an individualized hearing..."

The Supreme Court granted certiorari on June 28, 2002, the last day of its 2001-02 term.

On April 29, 2003, a sharply divided Court reversed, holding 5-4 that the government can constitutionally jail legal and illegal immigrants pending deportation for criminality.

Referring to the backdrop of "wholesale failure by the INS to deal with increasing rates of criminal activity by aliens," Chief Justice William Rehnquist concluded for the majority that Congress had adequately demonstrated a need to imprison aliens awaiting deportation for past crimes to keep them from committing new crimes.

The Court's decision applied the mandatory-detention provisions of the 1996 immigration law to lawful permanent residents, as well as aliens who had not been lawfully admitted into the U.S.

In so holding, the majority distinguished the case from Zadvydas v. Davis, decided two years ago in which the Court held that the government could not indefinitely detain a deportable alien whose country of origin refused to take him back. The distinction is in the length of detention, Rehnquist noted.

Justices David Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer dissented.

In the longer of two dissents, Justice Souter criticized the result for being "devoid of even ostensible justification." He pointed in particular to the impact the decision would have on permanent legal residents, whose "basic liberty from physical confinement" lies at the heart of due process.

The Court also addressed an overlapping question; whether habeas relief was available despite language in the immigration law suggesting the cases were not reviewable. Six justices concluded that habeas review was available, including Chief Justice Rehnquist who wrote the lead opinion, Justice Anthony Kennedy and the four dissenters.

Attorneys: For Demore, Dist. Dir., INS, et al.:THEODORE B. OLSONSolicitor General. Counsel of RecordROBERT D. MCCALLUM, JR.Assistant Attorney GeneralEDWIN S. KNEEDLERDeputy Solicitor GeneralAUSTIN C. SCHLICKAssistant to the Solicitor GeneralDAVID J. KLINEDONALD E. KEENERMARK C. WALTERS