Civil Rights and Civil Liberties in the Supreme Court's 2002-2003 Term

Immigrants' Rights

The Court held in Demore v. Hyung Joon Kim, 123 S. Ct. 1708 (2003), that detention of even lawful aliens who are removable from the country for conviction of one of a specified set of crimes under a federal immigration statute is constitutional and does not violate the Due Process Clause. Five Justices (Chief Justice Rehnquist, Kennedy, O’Connor, Scalia, and Thomas) held that Section 1226(c) of the Immigration and Nationality Act was constitutional. Since the case concerned the “detention of deportable criminal alien[s] pending their removal proceedings,” (emphasis in original), the five-Justice majority held that “when the government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.” 123 S. Ct. at 1720. The dissent strongly disagreed, claiming that the majority opinion “forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process.” Id. at 1727. Justices Scalia, Thomas, and O’Connor would have gone even further than the majority, however, arguing that the federal statute should be interpreted to preclude even habeas corpus challenges raising constitutional claims against the statute itself. This would not only contradict precedent requiring a particularly clear congressional statement of intent to preclude such challenges, but would also leave immigrants much more vulnerable to losing even access to habeas review in federal courts.

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