|BALTAZAR SOSA, PHU CHAN
HOANG, THANH QUOC NGUYEN,
and PHAM QUA TRUNG,
JOSEPH R. GREENE, District Director, United States Immigration and Naturalization Service, Denver, Colorado,
CITIZENS AND IMMIGRANTS FOR EQUAL JUSTICE,
In Demore, the Supreme Court reviewed Kim v. Ziglar, 276 F. 3d 523 (9th Cir. 2002) (which held § 236(c) violated substantive due process as applied to Kim because INS "has not provided a 'special justification' for no-bail civil detention sufficient to overcome a lawful permanent resident alien's liberty interest on an individualized determination of flight risk and dangerousness" (276 F.3d at 535)). The Demore Court, distinguishing its opinion in Zadvydas, held "that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as [Kim] be detained for the brief period necessary for their removal proceedings." 123 S. Ct. at 1712. The Court concluded that "[d]etention [of criminal aliens] during removal proceedings is a constitutionally permissible part of that process." Id. at 1721-22.
Nothing in the facts of the cases before us on remand warrants our departure from the Demore holding. We REVERSE the district court's rulings that § 236(c) of the INA is unconstitutional as violative of both substantive and procedural due process, and REMAND to the district court for further proceedings.
Entered for the Court
Mary Beck Briscoe
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**. The Honorable Wayne E. Alley, United States District Court for the Western District of Oklahoma, sitting by designation.