F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 20 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
BALTAZAR SOSA, PHU CHAN
HOANG, THANH QUOC NGUYEN, and
PHAM QUA TRUNG,
Petitioners-Appellees,
v. No. 00-1339
No. 01-1136
JOSEPH R. GREENE, District Director, No. 01-1180
United States Immigration and No. 01-1343
Naturalization Service, Denver, Colorado, (D.C. Nos. 00-WM-640,
01-B-139, 01-K-256,
Respondent-Appellant. and 01-D-787)
(D. Colorado)
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CITIZENS AND IMMIGRANTS FOR
EQUAL JUSTICE,
Amicus Curiae.
ORDER AND JUDGMENT*
Before BRISCOE, BALDOCK, Circuit Judges, and ALLEY, District Judge.**
*
This order and judgment is not binding precedent, except under the doctrines of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.
The United States Immigration and Naturalization Service (INS) appealed the
district court’s rulings that § 236(c) of the Immigration and Nationality Act, 8 U.S.C.
§ 1226(c), (INA) was unconstitutional as violative of both substantive and procedural due
process. On appeal, we affirmed the district court’s rulings. Relying heavily upon
Zadvydas v. Davis, 533 U.S. 678 (2001), we concluded “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.” Hoang v. Comfort, 282 F.3d 1247,
1260 (10th Cir. 2002). The United States Supreme Court granted a writ of certiorari,
vacated our judgments, and remanded the matters to us for further consideration in light
of Demore v. Kim, 123 S. Ct. 1708 (2003).
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
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[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
Circuit Judge
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