NINTH CIRCUIT RULES PERMANENT RESIDENTS NOT SUBJECT TO MANDATORY DETENTION

Kim v. Ziglar, Ninth Circuit

In this case, the court ruled that mandatory detention of lawful permanent residents prior to the entry of a final deportation order was unconstitutional.

Hyung Joon Kim, a citizen of Korea, became a permanent resident of the US in 1986, when he was eight years old.  In 1996 he was convicted of first-degree burglary, and in 1997 he was convicted of petty theft.  Because of the prior conviction, he was sentenced to three years in prison.  When he was released, the INS took him into custody and began deportation proceedings.  Claiming that Kim had been convicted of an aggravated felony, the INS said he could not receive a bail hearing, and would have to be detained until he was deported.  After three months in detention, Kim filed a petition for a writ of habeas corpus, claiming that denying him the opportunity to seek bail violated his due process rights.  The district court agreed, and the INS released Kim on ,000 bond.  The INS appealed.

Analogizing the case to the Supreme Court decision in Zadvydas v. Davis (issued last summer), which dealt with mandatory detention after the entry of a final deportation order, the Ninth Circuit found that to justify the mandatory detention of a permanent resident during deportation proceedings, the government must have strong special justification for it.  Here, the government presented two primary reasons for the detention:  preventing flight and protecting the public. 

In support of its first argument, preventing flight, the INS presented evidence about how many people fail to appear for their deportation hearings.  The agency also stated that because very few people are eligible for relief from deportation, there is little incentive to appear for the hearing.  The court did not find this evidence persuasive.  It noted that even people rendered deportable because of an aggravated felony conviction could avoid deportation based on grounds similar to asylum.  Also, a recent Supreme Court decision affirmed that withholding of deportation continues to be available to people who pled guilty and would have been eligible for withholding at the time of the plea.  Also, there remains the possibility that an offense the INS claims is an aggravated felony will not be found to be one by a court.  Finally, the court found that restrictions that can be placed on a person released pending their deportation hearing can do much to ensure their appearance. 

Dealing with the issue of protecting the public through the detention of people before their deportation hearing, the Ninth Circuit observed that for such a reason to be valid, the Supreme Court requires that the person so detained must present a specific threat to the public, and that the government must prove this threat exists.  Such a requirement is not present in the detention prior to deportation scheme, where there is no requirement that the government prove the person is a danger.  The INS argued that the aggravated felony conviction that prompted deportation proceedings was evidence of a person’s dangerousness, but again the court noted that in many cases the INS conclusion that an offense is an aggravated felony is reversed by a court, and that because of recent expansions in the definition of aggravated felonies, many nonviolent offenses are included. 

Therefore, the court found that the mandatory detention of lawful permanent residents prior to the entry of a final deportation order was unconstitutional.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/9917373p.pdf.