Wednesday, November 13, 2013

Demore v. Kim case brief

Demore v. Kim case brief summary
538 U.S. 510 (2003)

Petitioners, a federal district director of the Immigration and Naturalization Service (INS) and others, sought a writ of certiorari to the United States Court of Appeals for the Ninth Circuit challenging its decision that 8 U.S.C.S. § 1226(c) violated substantive due process as applied to respondent permanent resident alien. Certiorari was granted to resolve a conflict among the circuits.

The INS had detained the alien pending his removal hearing.


  • The lower court held that the INS had not sufficiently justified the no-bail detention to overcome the alien's liberty interest.8 U.S.C.S. § 1226(e) did not deprive the reviewing court of jurisdiction as the statute's clear text contained no explicit provision barring habeas review and/or review of a constitutional challenge. 
  • Given the evidence before Congress suggesting that aliens who were not detained continued to engage in crime and failed to appear for their removal proceedings in large numbers, Congress was justified in requiring that permanent legal residents who had been convicted of crimes be detained for the brief period necessary for their removal proceedings. 
  • Such detention did not violate substantive due process because Congress was authorized to make rules as to aliens that were unacceptable if applied to citizens and the detention period had a definite termination point. 
  • Thus, the detention of the alien, a convicted criminal who conceded that he was deportable, for the limited period of his removal proceedings did not violate substantive due process.
The judgment was reversed.

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