                                                                              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)
 -------------------------

 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          This order and judgment is not binding precedent, except under the doctrines of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


                                              2
[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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