538 U.S. 510 (2003)
Hyung Joon Kim, a citizen of South Korea, entered the United States in 1984 at the age of six and became a lawful permanent resident two years later.1 In July 1996 he was convicted of first-degree burglary in California state court, and in April 1997 he was convicted of petty theft with priors.2 The Immigration and Naturalization Service charged him with being deportable on the basis of those convictions and detained him under 8 U.S.C. § 1226(c) pending a removal hearing.3
Kim did not contest the validity of his convictions or dispute that he fell within the mandatory-detention category of § 1226(c).4 Instead, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Northern District of California.5 He claimed that detention without an individualized determination of flight risk or dangerousness violated due process.6
The district court held § 1226(c) unconstitutional as applied to Kim, granted the petition, and directed the INS to provide a bond hearing.7 After that hearing the District Director released Kim on a $5,000 bond.8 The Court of Appeals for the Ninth Circuit affirmed, concluding that mandatory detention under § 1226(c) violates substantive due process for lawful permanent residents.9 Three other courts of appeals reached the same result while the Seventh Circuit rejected the constitutional challenge.10 The Supreme Court granted certiorari to resolve the conflict.11
Whether 8 U.S.C. § 1226(e) deprives federal courts of jurisdiction to review a constitutional challenge to mandatory detention under § 1226(c)?12
Section 1226(e) contains no explicit provision barring habeas review. Its clear text does not bar respondent's constitutional challenge to the legislation authorizing his detention without bail.13 Where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.14 Where a provision precluding review is claimed to bar habeas review the Court has required a particularly clear statement that such is Congress' intent.15
No. Respondent does not challenge a discretionary judgment by the Attorney General. He does not challenge a decision that the Attorney General has made regarding his detention or release.16 Rather respondent challenges the statutory framework that permits his detention without bail. Because the challenge targets the statute itself rather than any particular exercise of discretion, § 1226(e) does not strip jurisdiction.17
The federal courts have jurisdiction to review the constitutional challenge to mandatory detention under § 1226(c).18
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Joined by Scalia And Thomas, Jj.
Justice O'Connor concluded that § 1226(e) unequivocally deprives federal courts of jurisdiction to set aside any action or decision by the Attorney General in detaining criminal aliens under § 1226(c) while removal proceedings are ongoing.19 She reasoned that the second sentence of the provision states unequivocally that no court may set aside any action or decision regarding the detention or release of any alien.20 She concluded that nothing in Reno v. American-Arab Anti-Discrimination Committee or INS v. St. Cyr requires a different reading.21
In her view the plain language bars habeas challenges to the Attorney General's decisions regarding temporary detention of criminal aliens pending removal.22 She joined the majority on the merits once jurisdiction was assumed by the Court.23
Whether mandatory detention of a lawful permanent resident alien under 8 U.S.C. § 1226(c) during removal proceedings violates the Due Process Clause of the Fifth Amendment?24
In the exercise of its broad power over naturalization and immigration Congress regularly makes rules that would be unacceptable if applied to citizens.25 Detention during deportation proceedings is a constitutionally valid aspect of the deportation process.26 The Court recognized more than a century ago that deportation proceedings would be vain if those accused could not be held in custody pending the inquiry into their true character.27 The Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.28
No. Detention during removal proceedings is a constitutionally permissible part of that process.29 The INS detention of respondent, a criminal alien who has conceded that he is deportable, for the limited period of his removal proceedings is governed by longstanding precedent.30 Congress adopted § 1226(c) against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens.31 Congress had evidence that more than 20 percent of deportable criminal aliens failed to appear for their removal hearings when released.32 In the vast majority of cases detention under § 1226(c) lasts roughly a month and a half.33 Detention lasts about five months in the minority of cases in which the alien appeals.34 Respondent was detained for six months prior to the district court's order, but he himself had requested a continuance of his removal hearing.35
Because the detention serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, it bears a reasonable relation to its immigration purpose.36 The detention lasts for a definite period with an obvious termination point and therefore does not violate due process.37
Mandatory detention of a lawful permanent resident alien under 8 U.S.C. § 1226(c) during removal proceedings does not violate the Due Process Clause of the Fifth Amendment.38
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Justice Kennedy concurred in the judgment.39 He emphasized that due process requires individualized procedures to ensure there is at least some merit to the INS charge.40 He noted that such procedures provide sufficient justification to detain a lawful permanent resident alien pending a more formal hearing.
He observed that respondent was entitled to a hearing in which he could have raised any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category.41 He stated that if the Government could not satisfy this minimal threshold burden the permissibility of continued detention would turn on the alien's ability to satisfy ordinary bond procedures.42 He added that a lawful permanent resident could be entitled to an individualized determination as to risk of flight and dangerousness if continued detention became unreasonable or unjustified.43
He found no such unreasonable delay in this case.44
Joined by Stevens And Ginsburg, Jj.
Justice Souter concurred in the jurisdictional holding but dissented on the merits.45 He argued that the Court's approval of lengthy mandatory detention without any individualized finding that detention is necessary to prevent flight or danger forgets over a century of precedent.46 He noted that the precedent acknowledges the rights of permanent residents including the basic liberty from physical confinement at the heart of due process.
He stressed that the INS had never argued that detaining Kim was necessary to guarantee his appearance or to protect anyone from danger.47 He pointed out that shortly after the district court's order the INS itself concluded that Kim would not be considered a threat and released him on bond.48 In his view the statute's failure to require or permit an official to determine whether detention was necessary violates both substantive and procedural due process.49
Justice Breyer concurred in the jurisdictional holding but dissented on the merits.50 He noted that Kim had not conceded deportability.51 Kim raised substantial arguments that his convictions did not qualify him for mandatory detention.52 Therefore the immigration statutes interpreted in light of the Constitution permit him to obtain bail if he is neither dangerous nor a flight risk.53
He would interpret the silent statute as imposing bail standards drawn from the criminal justice system.54 He stated that those standards require the Government to permit a detained alien to seek an individualized assessment of flight risk and dangerousness.55 He limited the requirement to cases in which the alien's claim that he is not deportable is not interposed solely for purposes of delay and raises a substantial question of law or fact.56