Demore v. Kim
The Supreme Court upheld a federal law requiring the government to detain certain deportable criminal immigrants, including lawful permanent residents, during their removal proceedings without an individualized bail hearing.
The ruling means Congress can require mandatory detention for a defined category of noncitizens with qualifying convictions for the typically brief period their removal cases are pending, even without proof that a specific person poses a flight risk or danger.
“Detention during removal proceedings is a constitutionally permissible part of that process.”
The majority's core holding that mandatory detention pending removal proceedings does not violate due process.
How it got here: A federal district court ruled the mandatory detention law unconstitutional and ordered a bond hearing; the Ninth Circuit affirmed; the government asked the Supreme Court to resolve a circuit split.
The Case in Depth
What happened
Kim, a South Korean citizen who came to the United States at age six and became a lawful permanent resident two years later, was convicted of burglary in 1996 and petty theft with priors in 1997. Immigration officials charged him as deportable based on these convictions and took him into custody under a law requiring detention of certain criminal immigrants pending their removal hearings, without any hearing on whether he was dangerous or likely to flee.
The question before the Court
Can the government detain a lawful permanent resident with certain past criminal convictions during deportation proceedings without giving him a hearing on flight risk or danger?
Why it matters
Thousands of lawful permanent residents facing deportation over criminal convictions can be jailed automatically while their cases proceed, with no chance to argue for release on bond even if they pose no danger or flight risk. Immigration authorities gained clear legal footing to detain this group as a category rather than case-by-case, shaping detention practices for years afterward.
What changes now
This is a final merits decision, not a temporary order. The Ninth Circuit's ruling favoring Kim is reversed, meaning the mandatory detention law stands as constitutional on its face for the category of noncitizens it covers. The decision resolved a split among circuit courts, and lower courts applying the law going forward must follow this ruling for cases involving mandatory detention of similarly situated criminal permanent residents.
What this does not decide
The Court did not decide whether mandatory detention would be constitutional for noncitizens other than lawful permanent residents, and it did not resolve whether an unreasonably long delay in completing removal proceedings might eventually require an individualized hearing. It also did not conclusively decide whether a separate provision barring judicial review would violate the constitutional right to habeas corpus.
Concurrences and dissents
Concurrence — Justice Kennedy
Justice Kennedy joined the majority in full but stressed that due process requires some individualized procedure ensuring there is at least merit to the charge that the person is deportable before mandatory detention can be justified, and that a lawful permanent resident could be entitled to an individualized hearing if detention became unreasonably prolonged.
Concurrence — Justice O'Connor
Justice O'Connor, joined by Scalia and Thomas, agreed with the outcome on the merits but argued the Court lacked jurisdiction at all, contending the statute's judicial-review-limiting provision clearly barred courts from reviewing detention decisions, including through habeas corpus, and that any Suspension Clause problem was unlikely given historical practice.
Dissent in part — Justice Souter
Justice Souter, joined by Stevens and Ginsburg, agreed the courts had jurisdiction but dissented on the merits, arguing that locking up a lawful permanent resident with no individualized finding of danger or flight risk violates due process, and that Zadvydas and other precedents required a hearing before such detention.
Dissent in part — Justice Breyer
Justice Breyer agreed on jurisdiction but dissented from the merits, reasoning that because Kim disputed his own deportability, the mandatory detention statute should be read, in light of constitutional concerns, to allow him a bail hearing using standards similar to criminal appellate bail, and he would have remanded for that determination.
How the Court got there
The legal reasoning, step by step
- The Court first addressed whether a provision limiting judicial review of detention decisions stripped federal courts of jurisdiction, concluding that the law barred review only of individualized discretionary decisions, not a broad constitutional challenge to the detention statute itself.
- Turning to the merits, the Court applied the long-standing principle that Congress has broad power over immigration and may impose rules on noncitizens that would be impermissible if applied to citizens, and that detention during deportation proceedings has historically been treated as a valid part of that process.
- The Court relied on evidence Congress gathered showing that immigration officials had been unable to locate and remove large numbers of criminal immigrants and that many released on bond failed to appear for their hearings, concluding Congress reasonably decided that detaining this category of people was necessary to ensure successful removal.
- The Court distinguished this case from Zadvydas v. Davis, a prior ruling limiting indefinite detention after a final removal order, explaining that here removal was still practically attainable and detention had a definite, generally short endpoint tied to the pending proceedings.
- Because the detention was of limited duration and served the government's legitimate interest in preventing flight during removal proceedings, the Court concluded that requiring detention of this defined class of criminal noncitizens, without an individualized bond hearing, did not violate due process.
Doctrinal impact
Cases affected by this decision
Distinguishes Zadvydas v. Davis (533 U.S. 678)
The Court said this case differs because removal here was still achievable and detention had a defined, generally short endpoint.
Reaffirms Carlson v. Landon (342 U.S. 524)
The Court relied on this earlier ruling upholding detention of deportable aliens as support for detention during removal proceedings.