Demore v. Kim

538 U.S. 510 (2003)

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Nature of the Case

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Facts

D is a citizen of the Republic of South Korea. He entered the United States in 1984, at the age of six, and became a lawful permanent resident of the United States two years later. In July 1996, D was convicted of first-degree burglary in state court in California and, in April 1997, he was convicted of a second crime, 'petty theft with priors.' The INS charged respondent with being deportable from the United States in light of these convictions and detained him pending his removal hearing. D does not dispute the validity of his prior convictions. D also did not dispute the INS' conclusion that he is subject to mandatory detention under §1226(c). D filed a habeas corpus action pursuant to 28 U. S. C. §2241 in the United States District Court for the Northern District of California challenging the constitutionality of §1226(c) itself. D argues that his detention under §1226(c) violated due process because the INS had made no determination that he posed either a danger to society or a flight risk. The District Court agreed with D that §1226(c)'s requirement of mandatory detention for certain criminal aliens was unconstitutional. The District Court granted D's petition subject to the INS' prompt undertaking of an individualized bond hearing to determine whether respondent posed either a flight risk or a danger to the community. The INS released D on $5,000 bond. The Court of Appeals for the Ninth Circuit affirmed. That court held that §1226(c) violates substantive due process as applied to respondent because he is a permanent resident alien. It noted that permanent resident aliens constitute the most favored category of aliens and that they have the right to reside permanently in the United States, to work here, and to apply for citizenship. The court recognized and rejected the Government's two principal justifications for mandatory detention under §1226(c): (1) ensuring the presence of criminal aliens at their removal proceedings; and (2) protecting the public from dangerous criminal aliens. The Court of Appeals discounted the first justification because it found that not all aliens detained pursuant to §1226(c) would ultimately be deported. And it discounted the second justification on the grounds that the aggravated felony classification triggering respondent's detention included crimes that the court did not consider 'egregious' or otherwise sufficiently dangerous to the public to necessitate mandatory detention. The Ninth Circuit dismissed D's crimes as 'rather ordinary crimes.' Three other Courts of Appeals have reached the same conclusion. The Seventh Circuit, however, rejected a constitutional challenge to §1226(c) by a permanent resident alien.