Criminal Defense of Immigrants

(B)  Constitutionality.  In Demore v. Kim,[1] the Supreme Court found that mandatory detention of a lawful permanent resident did not violate due process where the LPR conceded deportability and did not request a hearing to determine whether he was subject to mandatory detention.  The Supreme Court thereby overturned a number of decisions to the contrary.[2]

The Demore decision was based on the fact, conceded by the noncitizen, that his convictions were valid and that he was “therefore subject to mandatory detention under § 1226(c) . . . .”[3]  Since the plurality of four justices was insufficient to hold the mandatory detention statute constitutional, Justice Kennedy’s fifth vote and concurring opinion defines the narrow holding of the case.  He held that “due process requires individualized procedures to ensure there is at least some merit to the Immigration and Naturalization Service’s (INS) charge [of removability] and, therefore, sufficient justification to detain a lawful permanent resident pending a more formal hearing. [Citation omitted.] If the Government cannot sustain this minimal, threshold burden, then the permissibility of continued detention pending deportation proceedings turns solely upon the alien’s ability to satisfy the normal bond procedures — namely, whether if released the alien would pose a risk of flight or a danger to the community.”[4]

                As both the plurality and concurring opinions note, the noncitizen was entitled to a Joseph hearing in which he could have “raised[d] any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category.”[5]  If he had prevailed at the hearing, the Immigration Judge would then have determined whether the noncitizen “could be considered . . . for release under the general bond provisions.”[6]  As the noncitizen in Demore did not seek relief under the procedures required by Matter of Joseph,[7] the court did not determine the validity of those procedures.  Justice Kennedy pointed out that a noncitizen would also have had a right to a bond hearing “if the continued detention became unreasonable or unjustified.”[8]  At least one case, following Demore v. Kim, has found that no due process claim exists where the noncitizen contests the finding of removal, but the court finds that the basis for contesting the claim has no merit.[9]  Another court has found a period of two years and eight months too long to detain a noncitizen pending expedited removal.[10]

[158] Demore v. Kim, 538 U.S. 510 (2003).

[159] See, e.g., Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), cert. granted, 122 S.Ct. 2696 (June 28, 2002), overruled, Demore v. Kim, 538 U.S. 510 (2003); Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Hoang v. Comfort, 282 F.3d 1247 (10th Cir. Mar. 5, 2002).

[160] Demore v. Kim, supra, 538 U.S. at 526, n.6.

[161] Id. at 532 (Kennedy, J., concurring).

[162] Demore v. Kim, supra, 538 U.S. 510, 514 (2003).

[163] Demore v. Kim, supra, 538 U.S. 510, 514, and n.3 (2003).

[164] Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999).

[165] Demore v. Kim, supra, 538 U.S. 510, 532 (2003) (Kennedy, J., concurring).

[166] Gonzalez v. O’Connell, 355 F.3d 1010 (7th Cir. Jan. 21, 2004) (mandatory detention constitutional when basis for contesting removal was based on claim contrary to binding case precedent).

[167] Tijani v. Willis, 430 F.3d 1241 (9th Cir. Dec. 13, 2005) (two years and four months detention pursuant to INA § 236(c), 8 U.S.C. § 1226(c) pending expedited removal proceedings is not expeditious).