276 F.3d 523 (9th Cir. 2002), 99-17373, Kim v. Ziglar

Docket Nº99-17373
Citation276 F.3d 523
Case DateJanuary 09, 2002
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

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276 F.3d 523 (9th Cir. 2002)




No. 99-17373

United States Court of Appeals, Ninth Circuit

January 9, 2002

Argued and Submitted February 12, 2001

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[Copyrighted Material Omitted]

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Counsel Mark Walters, Office of Immigration Litigation, Washington, D.C., for the respondents-appellants.

Judy Rabinovitz, American Civil Liberties Union, New York, New York, for the petitioner-appellee.

Appeal from the United States District Court for the Northern District of California Susan Yvonne Illston, District Judge, Presiding D.C. No. CV-99-02257-SI

Before: Procter Hug, Jr., John T. Noonan, and William A. Fletcher, Circuit Judges.

William F. Fletcher, Circuit Judge.

We consider a constitutional challenge to § 236(c) of the Immigration and Nationality

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Act ("INA"), 8 U.S.C. § 1226(c), which requires that the Attorney General take into custody, and detain without bail, certain categories of aliens during the pendency of removal proceedings against them.

Petitioner Hyung Joon Kim, a citizen of Korea, came to the United States in 1984 at the age of six. Two years later, at the age of eight, he became a lawful permanent resident alien. In July 1996, at the age of 18, he was convicted of first degree burglary in California state court. In August 1997, he was convicted in California state court of petty theft with priors, and was sentenced to three years imprisonment. The day after his release from state custody, the Immigration and Naturalization Service ("INS") detained Kim pursuant to 8 U.S.C. § 1226(c)(1)(B), on the ground that his second conviction qualified as an "aggravated felony" under 8 U.S.C. § 1101(a)(43), which in turn made him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

On May 17, 1999, after more than three months in INS custody, Kim filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that the no-bail provision of § 1226(c) violates the Due Process Clause of the Fifth Amendment. On August 10, 1999, after Kim had been in custody for six months, the district court held § 1226(c) unconstitutional on its face and ordered the INS to hold a bail hearing to determine Kim's risk of flight and dangerousness. In lieu of holding a bail hearing, the INS released Kim on a $5,000 bond. A hearing before an Immigration Judge ("IJ") to determine Kim's removability is scheduled for March 2002. The INS appeals from the judgment of the district court.

Although Kim is no longer in custody, the case continues to present a live controversy because the INS states that it will take Kim into custody and hold him without bail if we reverse. The district court had jurisdiction pursuant to 28 U.S.C. § 2241. See INS v. St. Cyr, 121 S.Ct. 2271, 2278 (2001). We have jurisdiction under 28 U.S.C. § 1291.

We do not hold in this case that the unavailability of bail under § 1226(c) is unconstitutional on its face. We do hold, however, that it is unconstitutional as applied to lawful permanent resident aliens.


The INS detained Kim pursuant to 8 U.S.C. § 1226(c), a provision passed as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009. The section as a whole is entitled "Detention of criminal aliens." Section 1226(c)(1) provides, in relevant part,

The Attorney General shall take into custody any alien who --

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2) (A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a) (3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to

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whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

(Emphasis added.)

Three things are notable about§ 1226(c)(1). First, no bail is allowed during the pendency of removal proceedings. This is true even for aliens who are not flight risks and do not pose any threat to the public. Second, a wide range of past conduct triggers removal proceedings and detention without bail. Much of that conduct is non-violent and poses little threat to the physical safety of the public. See discussion in Part V.B, infra. Third, the no-bail provision of § 1226(c)(1) contrasts with the availability of bail under § 1231(a)(6). Section 1226(c)(1) prohibits bail for aliens during the pendency of their removal proceedings--that is, during the period before determination of removability and before entry of any removal order. By contrast, § 1231(a)(6) allows bail for aliens against whom a final removal order has been entered, once 90 days have elapsed since the entry of the order. See discussion in Part VI, infra.

Only one category of alien is exempt from the no-bail requirement of § 1226(c). Section 1226(c)(2) provides for release of government witnesses or those assisting government investigations. Kim has not served as a government witness or assisted in any government investigation, and is therefore not entitled to release from detention under this provision.


The district court sustained a facial constitutional challenge to § 1226(c). "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. " United States v. Salerno, 481 U.S. 739, 745 (1987). We recently reaffirmed the vitality of the Salerno standard outside of First Amendment cases. See S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461, 467 (9th Cir. 2001) ("While we have held that [Planned Parenthood v. ] Casey overruled Salerno in the context of facial challenges to abortion statutes, we will not reject Salerno in other contexts until a majority of the Supreme Court clearly directs us to do so.") (citation and quotation marks omitted).

We do not affirm the district court's facial invalidation of § 1226(c). We are not prepared to hold, on the record in this case, that detention under the statute would be unconstitutional in all of its possible applications. For example, the statute also applies to aliens who have not "entered " the United States. In Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc), we wrote that "[b]ecause excludable aliens are deemed under the entry doctrine not to be present on United States territory, a holding that they have no substantive right to be free from immigration detention reasonably follows." Id. at 1450. The Supreme Court noted the importance of the distinction between aliens who have "entered" and those who have not in Zadvydas v. Davis, 121 S.Ct. 2491, 2500 (2001) ("The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law."). Further, the status of an alien who has been paroled into the United States pursuant to 8 U.S.C. § 1182(d)(5) is the same as that of an alien detained at the border: such an alien has not "entered" the United States. See 8 U.S.C.§ 1182(d)(5)(A) ("such parole of such alien shall not be regarded as an admission of the alien"); Leng May Ma v. Barber, 357 U.S. 185,

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188-90 (1958); Alvarez-Mendez v. Stock, 941 F.2d 956, 961 n.4 (9th Cir. 1991) ("[A]n excludable alien may be paroled into the United States, in which case the law treats him as if he never entered the country and `exclusion' remains the procedure for removing him."). The detention of aliens who have not "entered" the United States is not before us, and we are not prepared to address, on the record compiled in this case, whether such detention is unconstitutional.

We therefore stop short of affirming the district court's holding that § 1226(c) is facially unconstitutional. However, "we may affirm on any basis supported by the record." Saltarelli v. Bob Baker Group Medical Trust, 35 F.3d 382, 387 (9th Cir. 1994). In the present appeal, there is evidence in the record sufficient to permit us to consider this case as an asapplied challenge. We affirm the district court's grant of habeas corpus relief to petitioner Kim on the ground that the statute is unconstitutional as applied to him in his status as a lawful permanent resident alien who has entered the United States.


Lawful permanent resident aliens are the most favored category of aliens admitted to the United States. They have the most ties to the United States of any category of aliens. About seventy percent of lawful permanent resident aliens are admitted because of family members already in the United States. These family members are either United States citizens or, less commonly, other lawful permanent resident aliens. See 8 U.S.C. § 1153(a). The next largest group of lawful permanent resident aliens are highly educated or exceptionally skilled professionals who can contribute in important ways to the educational institutions and economy of the United States. See 8 U.S.C. § 1153(b).

Unlike almost all other aliens, lawful permanent resident aliens have the right to apply for United States citizenship. They also have the right, without limitation, to work in the United States. Of particular relevance to this case, lawful permanent resident aliens have the right to reside permanently in the United States. They retain that right until a final administrative order of removal is entered. See 8...

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