Detaining Due Process: The Need for Procedural Reform in “Joseph” Hearings after Demore v. Kim


In Demore v. Kim (hereinafter Kim II), the United States Supreme Court seriously undermined immigrants’ due process rights and revived “immigration exceptionalism,” the policy of insulating substantive immigration decisions from mainstream constitutional analysis. Kim II held that substantive due process does not require an individualized assessment of dangerousness and flight risk prior to detaining a lawful permanent resident (LPR) pending removal under a provision of the Immigration and Nationality Act (INA). In so holding, the Court defied established substantive due process jurisprudence on civil detention, which requires the government to offer a special justification based on specific characteristics of the individual. The Court also eschewed two traditions in immigration law-the privileged status of LPRs over other noncitizens, and the application of the plenary power doctrine exclusively to substantive, rather than procedural, immigration law.

Suggested Reading