FILED

United States Court of Appeals

Tenth Circuit

MAR 5 2002

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PHU CHAN HOANG, THANH QUOC NGUYEN,

and PHAM QUA TRUNG,

Petitioners-Appellees,

v. No. 01-1136

No. 01-1180

MICHAEL COMFORT, Acting District No. 01-1343

Director, United States Immigration

and Naturalization Service,

Denver, Colorado,

Respondent-Appellant.

CITIZENS AND IMMIGRANTS FOR EQUAL

JUSTICE; AMERICAN IMMIGRATION

LAWYERS ASSOCIATION,

Amici Curiae.

Appeal from United States District Court

for the District of Colorado

(D.C. Nos. 01-B-139, 01-K-256, 01-D-787)

Michelle E. Gorden, Attorney (Emily Anne Radford, Assistant Director; Papu Sandhu,

Senior Litigation Counsel; Allen W. Hausman, Senior Litigation Counsel; and Joshua E.

Braunstein, Attorney, with her on the briefs), Office of Immigration Litigation, Civil

Division, Department of Justice, Washington, D.C., for Respondent-Appellant.

Judy Rabinovitz, American Civil Liberties Union Foundation, New York, New York

(Liliana M. Garces, American Civil Liberties Union Foundation, Oakland, California, and

Jim Salvator, Lafayette, Colorado, with her on the brief), for Petitioners-Appellees.

Marvin E. Frankel and Jennifer L. Rochon of Kramer, Levin, Naftalis & Frankel LLP,

New York, New York, and Nancy Morawetz, of Washington Square Legal Services, Inc.,

New York, New York, on the brief for Citizens and Immigrants for Equal Justice and

American Immigration Lawyers Association, Amici Curiae.

Before BRISCOE and BALDOCK, Circuit Judges, and ALLEY, District Judge.(1)

BRISCOE, Circuit Judge

The United States Immigration and Naturalization Service (INS) appeals the

district court's rulings in three cases which held that Section 236(c) of the Immigration

and Nationality Act, 8 U.S.C.  1226(c), (INA) is unconstitutional as violative of both

substantive and procedural due process. Section 236(c) of the INA requires the

mandatory detention of criminal aliens pending administrative removal proceedings. We

agree that the mandatory detention provision found in  236(c) of the INA, as applied to

petitioners, violates their substantive due process rights and affirm the district court.

I.

Under the INA as first enacted in 1952, an alien convicted either of a crime

involving moral turpitude if the crime was committed within five years of entry into the

(1) The Honorable Wayne E. Alley, United States District Court for the Western

District of Oklahoma, sitting by designation.

United States or a crime violating drug or firearm laws was subject to deportation. INA

 241, codified at 8 U.S.C.  1251 (1952). However, the INA provided the Attorney

General with discretion to release such aliens on bond pending final determination of

deportability. INA  223, codified at 8 U.S.C.  156 (1952).

In 1988, Congress amended the INA as part of the Anti-Drug Abuse Act of 1988

(ADAA). The ADAA established a new category of deportable alien, the aggravated

felon, which included any alien who committed crimes involving murder, drug

trafficking, illicit trafficking in firearms and destructive devices, and any attempt or

conspiracy to commit such crimes. ADAA  7342, amending 8 U.S.C.  1251(a). Under

the ADAA, detention of such aliens pending removal proceedings was mandatory.

ADAA  7343(a).

However, a majority of federal district courts addressing the issue found the

mandatory detention provision of the ADAA unconstitutional. See Martinez v. Greene,

28 F. Supp. 2d 1275, 1279 (D. Colo. 1998), and cases cited therein. As a result, Congress

amended the mandatory detention statute in 1990 and 1991 to permit the release of

aggravated felons who were lawfully admitted to the United States and who could

demonstrate they were not a threat to the community and were likely to appear for their

hearings. Id.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, Stat. 1214 (AEDPA). The AEDPA created automatic

mandatory detention without bond for aggravated felons and other non-citizens with

criminal convictions. INA  242(a)(2), codified at 8 U.S.C.  1252. See Martinez, 28 F.

Supp. 2d at 1280. However, the AEDPA's amendment was almost immediately replaced

with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

Pub. L. No. 104-208, 110 Stat. 1570, which amended the INA to include  236(c), the

provision at issue here.

Section 236(c), codified at 8 U.S.C.  1226(c), is a mandatory pre-removal

detention provision directed at criminal aliens. It directs, in pertinent part, that:

The Attorney General shall take into custody an 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 [sentenced] 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 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.

8 U.S.C.  1226(c)(1). Thus, under  236(c), the Attorney General is directed to detain

"deportable" criminal aliens following release from their original sentences prior to

decisions on their removal from the United States. The Attorney General has discretion

to release an alien only if the alien or an immediate family member is participating in the

federal Witness Protection Program and the alien "satisfies the Attorney General that the

alien will not pose a danger to the safety of other persons or of property and is likely to

appear for any scheduled proceeding." 8 U.S.C.  1226(c)(2).

Section 236(c) did not immediately become applicable with the passage of the

IIRIRA. Instead, the IIRIRA contained "transition period custody rules" which provided

immigration bond hearings to aliens with criminal convictions wherein the aliens were

allowed to demonstrate legal entry and that they did not present a substantial risk of flight

or threat to persons or property. The immigration court had discretion to set bond

pending final administrative action. See IIRIRA  303(b)(3); Martinez, 28 F. Supp. 2d at

1280. The transition rules expired on October 9, 1998, and  236(c) became effective.

II.

The three petitioners in these cases, Thanh Quoc Nguyen, Phu Chang Hoang and

Pham Qua Trung, were all detained pursuant to  236(c).

Thanh Quoc Nguyen

Nguyen entered the United States as a refugee from Vietnam in 1991 at the age of

fifteen. He was admitted as a lawful permanent resident.

In February 1999, Nguyen pled guilty to the misdemeanor offense of threat/use of

a dangerous weapon in a fight. He was sentenced to 365 days in jail, with 320 days

suspended. Due to probation violations, he ultimately served his entire sentence. Upon

completion of his sentence, he was detained by the INS, which had earlier commenced

removal proceedings.

On February 12, 2001, after approximately three months in custody, Nguyen

petitioned for a writ of habeas corpus arguing that  236(c), as applied, was

unconstitutional. He also filed an application for a temporary restraining order asking for

an individual bond hearing. On February 13, 2001, the district court granted a permanent

injunction and ordered the INS to provide a bond hearing. After a hearing, Nguyen was

released on $8,000 bond.

Nguyen is currently seeking a withholding of removal under the INA, as well as

relief under the Convention Against Torture, 8 C.F.R.  208.18 (2001). He is also

seeking post-trial relief in state court. Specifically, he seeks reduction of his sentence by

one day, which would make him eligible to apply for cancellation of removal. See 8

U.S.C.  1226(c)(1)(C).

Phu Chang Hoang

Hoang entered the United States as a refugee from Vietnam in 1979 at the age of

three. He was admitted as a lawful permanent resident.

In February 1993, at the age of sixteen, Hoang pled guilty to two counts of

aggravated robbery in connection with the stealing of a purse and wallet by use of force,

threats, and intimidation with the aid of a firearm. He was sentenced to ten years on each

count, to be served consecutively. Hoang served eight and a half years and was released,

whereupon he was detained by the INS and removal proceedings were begun.

On January 24, 2001, some two months after being detained, Hoang petitioned for

a writ of habeas corpus arguing that  236(c), as applied, was unconstitutional. He also

filed an application for a temporary restraining order requesting an individual bond

hearing. The district court granted a final injunction in favor of Hoang directing the INS

to conduct a bond hearing. After the hearing, Hoang was released on $20,000 bond.

Hoang is currently seeking relief for removal under the Convention Against Torture.

Pham Qua Trung

Trung entered the United States as a refugee from Vietnam in 1987 at the age of

fifteen. He was admitted as a lawful permanent resident.

On August 9, 2000, Trung pled guilty to two counts of forgery in Utah state court.

He was sentenced to an indeterminate term not to exceed five years, and was required to

serve thirty days. Upon completion of his sentence, he was detained by the INS, which

had begun removal proceedings a month earlier.

On April 27, 2001, after more than a month in detention, Trung petitioned for a

writ of habeas corpus arguing that  236(c), as applied, was unconstitutional. Trung also

filed an application for temporary restraining order, requesting an individual bond

hearing. The district court granted the order and directed the INS to conduct a bond

hearing. After a hearing, Trung was released on $7,500 bond.

Trung is currently seeking withholding of removal under the Convention Against

Torture, and is also challenging the INS's contention that his forgery conviction

constitutes an aggravated felony under the INA. 8 U.S.C.  1227(a)(2)(A). If the

challenge is successful, Trung would be eligible to apply for cancellation of removal. In

addition, he is seeking a reduction of his sentence in state court which would render him

eligible for cancellation or removal.

III.

In all three appeals, we are asked to review the district court's ruling that  236(c)

is unconstitutional. Although  236(e) of the INA, 8 U.S.C.  1226(e), provides that

"[t]he Attorney General's discretionary judgment regarding the application of [ 236]

shall not be subject to review," courts retain jurisdiction over habeas petitions which

include constitutional challenges. Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999).

See Ho v. Greene, 204 F.3d 1045, 1051-52 (10th Cir. 2000), overruled on other grounds

by Zadvydas v. Davis, 121 S. Ct. 2491 (2001).

Statutes are presumed to be constitutional. See United States v. Pompey, 264 F.3d

1176, 1179 (10th Cir. 2001). This court reviews challenges to the constitutionality of a

statute under a de novo standard. Id.

The constitutionality of  236(c) in the face of a due process challenge has been

addressed by numerous courts, with conflicting results. The Seventh Circuit has held that

 236(c) does not violate either substantive or procedural due process. See Parra, 172

F.3d at 958. The Third Circuit and the Ninth Circuit have held that  236(c) does violate

substantive due process. See Patel v. Zemski, 275 F.3d 299 (3rd Cir. 2001); Kim v.

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

IV.

As a preliminary issue, the government argues that the district court's decisions in

Hoang's and Nguyen's cases should be reversed and the habeas petitions in those cases

dismissed for failure to exhaust administrative remedies. The government contends that

comprehensive administrative procedures are available under Title 8 of the Code of

Federal Regulations for aliens to dispute that  236(c) applies to them and to seek bond.

See 8 C.F.R.  3.19 and 236.1. Therefore, according to the government, Hoang and

Nguyen should follow those procedures before being allowed to file habeas actions.

With regard to immigration laws, exhaustion of remedies is statutorily required

only for appeals of final orders of removal. See 8 U.S.C.  1252(d)(1). The government

does not contend that exhaustion is statutorily mandated, but instead argues that

exhaustion should be required to protect administrative authority and promote judicial

efficiency, citing McCarthy v. Madigan, 503 U.S. 140, 145 (1992).

We disagree. While McCarthy provides that courts may, in their discretion,

require exhaustion of administrative remedies, there are "at least three broad sets of

circumstances in which the interests of the individual weigh heavily against requiring

administrative exhaustion": 1) where requiring resort to an administrative remedy may

cause undue prejudice to the assertion of a subsequent court action, as where the time

period required for administrative action is unreasonable or indefinite; 2) where the

administrative remedy is inadequate because of doubt as to whether the agency is

empowered to grant relief; and 3) where the administrative remedy is inadequate because

the administrative body is biased or has otherwise predetermined the issue before it. 503

U.S. at 146-149. All three of these categories apply here.

First, a petitioner's detention during the period required for the exhaustion of

remedies may infringe upon his or her rights, especially where the issue sought to be

raised, the constitutionality of  236(c), is one which does not implicate the discretion or

the expertise of the agency involved. See Welch v. Reno, 101 F. Supp. 2d 347, 351-52 (D.

Md. 2000). Second, the agency involved, the Board of Immigration Appeals (BIA), does

not have the power to reach constitutional arguments, and thus is not empowered to grant

effective relief. See Yanez v. Holder, 149 F. Supp. 2d 485, 489-90 (N.D. Ill. 2001);

Welch, 101 F. Supp. 2d at 351-52. Third, the BIA has previously ruled that it is barred by

 236(c) from granting bond, and therefore any attempt by a petitioner to exhaust would

be futile. See Galvez v. Lewis, 56 F. Supp. 2d 637, 644 (E.D. Va. 1999).

As a result, we decline to reverse the district court's decisions in Hoang's and

Nguyen's cases for failure to exhaust administrative remedies, and instead proceed to the

question of whether  236(c) violates the petitioners' due process rights.

V.

The Due Process Clause of the Fifth Amendment provides that "No

person shall . . . be deprived of life, liberty, or property, without due process

of law . . . ." This Court has held that the Due Process Clause protects

individuals against two types of government action. So-called "substantive

due process" prevents the government from engaging in conduct that

"shocks the conscience," or interferes with rights "implicit in the concept of

ordered liberty." When government action depriving a person of life,

liberty, or property survives substantive due process scrutiny, it must still be

implemented in a fair manner. This requirement has traditionally been

referred to as "procedural" due process.

United States v. Salerno, 481 U.S. 739, 746 (1987) (internal citations omitted).

The petitioners' challenge is to the constitutionality of  236(c) as applied to them,

rather than a facial challenge. Therefore, in order to prevail, they need only show that the

statute, as applied to their particular situations, violates due process.

Nature of Petitioners' Interest

The first step in any due process analysis is a careful identification of the asserted

right. See Reno v. Flores, 507 U.S. 292, 302 (1993). If the liberty interest asserted by the

petitioners may be characterized as fundamental, then a governmental provision

infringing upon that interest must be narrowly tailored to serve a compelling

governmental interest. See id.

The government argues that the petitioners' alleged interests are not fundamental

because, as aliens who are subject to  236(c), the petitioners have forfeited any rights to

remain in the country and thus any liberty interests they may have had are greatly

diminished. The government contends that the petitioners' interests should therefore be

characterized, in accordance with the holding in Parra, as "not liberty in the abstract, but

liberty in the United States by someone no longer entitled to remain in this country but

eligible to live at liberty in his native land." See 172 F.3d at 958. The Seventh Circuit

found that this interest was not fundamental because

[p]ersons subject to [ 236(c)] have forfeited any legal entitlement to

remain in the United States and have little hope of clemency. . . . Before

the IIRIRA bail was available to persons in Parra's position as a corollary to

the possibility of discretionary relief from deportation; now that this

possibility is so remote, so too is any reason for release pending removal.

Parra's legal right to remain in the United States has come to an end. An

alien in Parra's position can withdraw his defense of the removal

proceeding and return to his native land, thus ending his detention

immediately. He has the keys in his pocket. A criminal alien who insists on

postponing the inevitable has no constitutional right to remain at large

during the ensuing delay, and the United States has a powerful interest in

maintaining the detention in order to ensure that removal actually occurs.

Id.

We do not agree with the Seventh Circuit's determination that an alien who is

subject to  236(c) has somehow forfeited his or her right to liberty during deportation

proceedings. A similar argument was recently rejected in Zadvydas v. Davis, 121 S. Ct.

2491, 2501 (2001). In Zadvydas, the Court held that even an alien who had already been

ordered to be deported retained a liberty interest strong enough to raise a due process

challenge concerning his or her indefinite and possibly permanent detention resulting

from the inability to carry out the deportation order. In so holding, the Court expressly

rejected the government's position that "whatever liberty interest the aliens possess, it is

`greatly diminished' by their lack of a legal right to `liv[e] at large in this country.'" Id. at

2502. In the wake of the Court's ruling in Zadvydas, the vitality of the Seventh Circuit's

holding in Parra is greatly diminished, as is the government's argument which relies

upon Parra.

The petitioners in this case are presently lawful permanent residents of the United

States. Although they are "deportable" because of their criminal records, they remain

lawful permanent residents until such time as they are finally ordered deported. See 8

C.F.R.  1.1(p) (stating that lawful permanent resident status terminates upon entry of a

final administrative order of exclusion or deportation). Aliens who are lawful permanent

residents of and are physically present in the United States are persons within the

protection of the Fifth Amendment, and may not be deprived of life, liberty or property

without due process of law. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953).

The petitioners are not asserting that the Government has no right to detain them

incident to their deportation proceedings. Indeed, such an argument would be futile, as

the government's power to detain pursuant to deportation proceedings is well established.

See Wong Wing v. United States, 163 U.S. 228, 235 (1896) (stating that detention

necessary to carry out deportation would be valid). Rather, the petitioners are asserting

they have a fundamental liberty interest that may not be arbitrarily infringed upon by the

Government absent an opportunity for an individualized hearing to address risk of flight

and danger to the public. That is the liberty interest at issue in this case.

The question then becomes whether the petitioners' liberty interest is a

fundamental right, thus triggering heightened scrutiny. The government contends that the

right of an alien to be free from detention is not a fundamental right, citing Flores. In

Flores, the Supreme Court addressed the constitutionality of a regulation which permitted

the release of detained juvenile aliens, arrested on suspicion of being deportable, only to

their parents, legal guardians, adult relatives, or other appointed and approved caregivers.

507 U.S. at 297. If no one in this category was available, the regulation required the

juvenile's placement in a foster care facility.

In categorizing the right of the juveniles to other placement, the Court refused to

find the right to be fundamental, stating that:

The "freedom from physical restraint" invoked by respondents is not at

issue in this case. Surely not in the sense of shackles, chains, or barred

cells, given the Juvenile Care Agreement [authorizing placement only in

certain juvenile care facilities]. Nor even in the sense of a right to come

and go at will, since, as we have said elsewhere, "juveniles, unlike adults,

are always in some form of custody," and where the custody of the parent or

legal guardian fails, the government may (indeed, we have said must) either

exercise custody itself or appoint someone else to do so. Nor is the right

asserted the right of a child to be released from all other custody into the

custody of its parents, legal guardian, or even close relatives: The

challenged regulation requires such release when it is sought. Rather, the

right at issue is the alleged right of a child who has no available parent,

close relative, or legal guardian, and for whom the government is

responsible, to be placed in the custody of a willing-and-able private

custodian rather than of a government-operated or government-selected

child-care institution.

Id. at 302 (internal citations omitted). Applying only rational basis scrutiny, the Court

found the regulation did not violate due process. Id. at 303-06.

Flores, however, is distinguishable from the instant case. The petitioners here are

adults, and thus have the right to come and go at will. Further, although the juveniles in

Flores were not facing physical restraint in the sense of shackles, chains, or barred cells,

that is exactly the form of restraint the petitioners face here.

"Freedom from bodily restraint has always been at the core of the liberty protected

by the Due Process Clause." Foucha v. Louisiana, 504 U.S. 71, 80 (1992). "In our

society liberty is the norm, and detention prior to trial or without trial is a carefully limited

exception." Salerno, 481 U.S. at 755. Even in the context of aliens, government

detention violates the Due Process Clause unless the detention is ordered in a criminal

proceeding with adequate procedural protections, or in "certain special and narrow

nonpunitive circumstances. . . where a special justification . . . outweighs the individual's

constitutionally protected interest in avoiding physical restraint." Zadvydas, 121 S. Ct. at

2499 (internal citations omitted). In Salerno, the Court recognized that a person who is

detained pending trial has a fundamental liberty interest in freedom from restraint. See

481 U.S. at 750-51. The liberty interest of a person who is detained pending deportation

proceedings is no less fundamental. See Rodriguez-Fernandez v. Wilkinson, 654 F.2d

1382, 1387 (10th Cir. 1981) (analogizing detention pending trial with detention pending

deportation proceedings). As a result, we conclude that the petitioners have a

fundamental liberty interest in freedom from detention pending deportation proceedings

that may only be infringed upon in certain limited circumstances.

Congressional Authority in Immigration

The government argues that  236(c) is constitutional given the power of Congress

in the area of immigration. The government contends that Congress' broad power to

legislate in the area of immigration limits judicial review of Congress' decisions with

regard to detention pending deportation and removal hearings.

Congress has plenary authority over substantive immigration decisions under Art.

I,  8, cl. 4 of the Constitution. See INS v. Chadha, 462 U.S. 919, 941 (1983). "`[O]ver

no conceivable subject is the legislative power of Congress more complete than it is over'

the admission of aliens." Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic

Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). This power is of a political

character which is subject only to narrow judicial review. See Fiallo, 430 U.S. at 792.

However, statutes which implement this plenary authority are subject to the limits of the

Constitution. See Zadvydas, 121 S. Ct. at 2501; Chadha, 462 U.S. at 940-41. Thus,

while aliens are subject to the plenary power of Congress to expel them, Congress'

implementation of this authority must comport with the Constitution. See Carlson v.

Landon, 342 U.S. 524, 534-37 (1952).

In Chadha, the Court rejected the argument that the plenary power of Congress

required courts to uphold the constitutionality of INA  244(c)(2), which gave either

house of Congress a veto over decisions by the Attorney General to suspend deportation

proceedings. In concluding that this statute was subject to due process review, the Court

stated: "The plenary authority of Congress over aliens under Art I,  8, cl 4, is not open

to question, but what is challenged here is whether Congress has chosen a constitutionally

permissible means of implementing that power." 462 U.S. at 940-41. Similarly, in

Zadvydas, the Court rejected the Government's argument that Congress' plenary power

over immigration gave it the power to indefinitely detain aliens who had been found to be

removable but could not be removed because their home countries would not take them.

The Court noted:

The question before us is not one of "confer[ring] on those admitted

the right to remain against the national will" or "sufferance of aliens" who

should be removed. Rather, the issue we address is whether aliens that the

Government finds itself unable to remove are to be condemned to an

indefinite term or imprisonment within the United States.

121 S. Ct. at 2501 (internal citations omitted).

Like the statutes at issue in Chadha and Zadvydas,  236(c) concerns the method

by which the immigration statutes are implemented and not the political substantive

decision of who is to be admitted or excluded. As such,  236(c) must comply with the

Constitution. See Chadha, 462 U.S. at 940-41.

Substantive Due Process

Where the right implicated in a substantive due process analysis is fundamental,

the Government may not infringe upon it, regardless of the process provided, unless the

infringement is narrowly tailored to serve a compelling state interest. See Flores, 507

U.S. at 302. Governmental detention in a non-criminal proceeding offends the Due

Process Clause except in certain non-punitive circumstances where a special justification

outweighs the individual's constitutionally protected interest in avoiding physical

restraint. See Zadvydas, 121 S. Ct. at 2499.

Thus, in order to pass constitutional muster,  236(c) must first be non-punitive.

See id.; Salerno, 481 U.S. at 746-47. In determining whether a restriction on liberty

constitutes punishment, we initially look to whether Congress intended the statute to be

punitive, or whether another purpose may rationally be assigned to the restriction on

liberty. See Salerno, 481 U.S. at 747; Bell v. Wolfish, 441 U.S. 520, 537 (1979). If

Congress intended the restriction on liberty to be punishment, or if there is no other

purpose that may rationally be assigned to it, it is punitive. However, even if a restriction

was not meant to be punishment and a non-punitive purpose may be rationally assigned to

it, the restriction may still constitute punishment if it imposes conditions so excessive in

relation to the assigned purpose as to be considered punitive rather than regulatory. See

Salerno, 481 U.S. at 747; Bell, 441 U.S. at 537.

Our analysis of the statute leads us to conclude that  236(c) is non-punitive.

Nothing in the legislative history of  236(c) suggests that mandatory detention was

intended by Congress as a punishment for aliens. Rather, a review of the legislative

history indicates that the mandatory detention provision was designed to serve two

legitimate nonpunitive purposes: ensuring removal by preventing the alien from fleeing,

and protecting the community from further criminal acts or other dangers. See S. Rep.

No. 104-48, 104th Cong., 1st Sess. (1995) at 23-27, 31-32; 63 Fed. Reg. 27441, 27442

(May 19, 1998). The detention imposed by  236(c) is rationally related to these two

purposes. Further, the detention imposed is not so excessive in relation to the two

purposes of the statute as to constitute punishment.

We turn to the second part of the analysis -- whether the purposes espoused for the

mandatory detention provision, flight prevention and crime prevention, constitute special

justifications which outweigh the individual's constitutionally protected interest in

avoiding physical restraint. See Zadvydas, 121 S. Ct. at 2499. Our analysis of this issue

entails a determination of whether the government's interest is compelling and whether

the statute is narrowly tailored such that the government's interest outweighs that of the

individual. See Salerno, 481 U.S. at 749-51.

The government contends that the mandatory detention provision contained in

 236(c) is necessary to protect against the risk of flight by deportable aliens. According

to the government, Congress determined that the detention was necessary to ensure that

deportable aliens appeared for their deportation proceedings. The government reasons

that because those persons subject to  236(c) are likely to be deported, they may be

presumed to be flight risks.

Certainly, the government has a compelling interest in ensuring attendance by

deportable aliens at deportation proceedings. However,  236(c) is not narrowly tailored

to achieve that interest. Rather than establishing a procedure to determine which aliens

might be flight risks, it establishes an irrebuttable presumption that all aliens to which

mandatory detention applies are flight risks.

The government argues that certain presumptions with regard to immigration are

valid, citing Carlson, 342 U.S. 524. In Carlson, the Court addressed a provision which

allowed the Attorney General to detain without bail, pending deportation, those aliens

who were members of the Communist Party. The Court found the provision to be

constitutional, reasoning that "[d]etention is necessarily a part of this deportation

procedure" because otherwise "aliens arrested for deportation would have opportunities

to hurt the United States during the pendency of deportation proceedings." Id. at 538.

Carlson, however, does not support the government's argument. The detention

provision in Carlson was not categorically applied, but instead was based on an

individual determination of dangerousness made by the Attorney General, and the

decision to detain without bail was subject to judicial review. The Court in Carlson

expressly rejected the idea that intent to injure could be imputed to all aliens who were

subject to deportation as members of the Communist Party. Id. at 542. Unlike the

detention provision at issue in Carlson,  236(c) does not provide for an individual

determination of risk of flight, choosing instead to impute flight risk to all criminal aliens.

The Senate Report which spawned the creation of  236(c) found that over 20% of

non-detained aliens did not appear for their deportation proceedings. S. Rep. No. 104-48

at 23-24. Presumably, however, this means that somewhere near 80% of non-detained

aliens in that time period did in fact appear. It is true that the more likely a person is to be

removed, the less likely it is that the person will appear for removal proceedings.

Nevertheless, a risk of flight cannot be imputed to all who fit the broad category of

persons affected by  236(c). The fallacy in such a blanket assumption is especially

pertinent as applied to the petitioners here. All three petitioners are currently pursuing

avenues which, if successful, would lessen the probability that they will be deported or

removed. Thus, they have a significant incentive to attend deportation proceedings.

The risk of flight posed by some criminal aliens is insufficient to justify the

mandatory detention of all aliens who meet the criteria under  236(c). Although the

government has a compelling interest in ensuring that deportable aliens appear for their

proceedings, this interest is not sufficient to justify detention of a lawful permanent

resident alien absent an individualized determination that the alien is in fact a flight risk.

The second asserted reason for mandatory detention, the safety of the public,

provides even less justification for such detention. While it cannot be denied that the

government has a compelling interest in protecting the public from dangerous aliens,

 236(c) applies the blanket irrebuttable presumption that all those to whom it applies are

dangerous, a presumption not justified by the nature of offenses which  236(c)

encompasses. Offenses to which the mandatory detention provision in  236(c) applies

include not only dangerous offenses such as murders, rapes, crimes of terrorist activity,

violations of the controlled substances and firearms laws, and crimes committed by repeat

offenders, but also less dangerous offenses such as crimes of moral turpitude with a

sentence of one year in prison, theft offenses with a term of imprisonment of one year or

more, fraud, tax evasion, assisting document fraud in some cases, and perjury. See 8

U.S.C.  1226(c); 8 U.S.C. 1101(a)(43).

Absent an individualized determination of dangerousness, it cannot simply be

assumed that persons who have at one time been convicted of the crimes encompassed by

 236(c) pose a danger to the public. However, this is exactly what  236(c) does. Given

the wide range of offenses covered by  236(c), the safety of the public does not justify its

mandatory detention of lawful permanent resident aliens without individualized

determinations that they in fact pose a danger to the public.

Any argument that  236(c)'s blanket presumption of flight risk and dangerousness

is narrowly tailored is further undermined by the results of the bond hearing granted to the

petitioners by the district court. After an examination of their individual circumstances,

all three petitioners were ordered released on various amounts of bond, thus refuting the

proposition that they were such flight risks or so dangerous that mandatory detention was

required.

We therefore conclude that the government has failed to show special justifications

for the mandatory detention provision contained in  236(c) which are sufficient to

outweigh a lawful permanent resident alien's constitutionally protected liberty interest in

avoiding physical restraint without an individualized determination of flight risk or

danger to the public. Therefore, we hold that  236(c) violates the petitioners' rights to

substantive due process. Our holding in this regard makes it unnecessary for us to reach

the petitioners' claim that  236(c) also deprives them of procedural due process.

VI.

There is a question as to whether we should adopt a construction of  236(c) which

would be constitutional. Where one construction of a statute would raise serious

constitutional problems but an alternative interpretation is fairly possible and would avoid

such problems, the alternative interpretation should be adopted. See INS v. St. Cyr, 121 S.

Ct. 2271, 2279 (2001). The petitioners contend that such an alternative interpretation is

possible if we were to construe the term "is deportable" in  236(c) to mean "subject to a

final order of removal." Under this interpretation,  236(c) would only impose mandatory

detention on those aliens who had received a final order of removal.

However, it is clear from the text of the statute that Congress intended the "is

deportable" language of  236(c) to apply prior to a final order of removal. Given this

clear intention of Congress, we may not adopt a saving construction that is plainly

contrary to this intent. United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).

VII.

We hold that the mandatory detention provision of  236(c), as applied to the

petitioners as lawful permanent resident aliens, violates their right to substantive due

process.

AFFIRMED.