MASSARO v. UNITED STATES

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Syllabus
MASSARO v. UNITED STATES
certiorari to the united states court of appeals for
the second circuit
No. 01–1559. Argued February 25, 2003—Decided April 23, 2003
Petitioner Massaro was indicted on federal racketeering charges in con-
nection with a murder. The day before his trial began, prosecutors
learned of a bullet allegedly recovered from the car in which the victim’s
body was found, but did not inform defense counsel until the trial was
underway. Defense counsel more than once declined the trial court’s
offer of a continuance so the bullet could be examined. Massaro was
convicted and sentenced to life imprisonment. On direct appeal his new
counsel argued that the District Court had erred in admitting the bullet
in evidence, but did not raise an ineffective-assistance-of-trial-counsel
claim. The Second Circuit affirmed. Massaro later moved to vacate
his conviction under 28 U. S. C. § 2255, claiming, as relevant here, that
his trial counsel had rendered ineffective assistance in failing to accept
the trial court’s offer of a continuance. The District Court found his
claim procedurally defaulted because he could have raised it on direct
appeal. In affirming, the Second Circuit adhered to its precedent that,
when the defendant is represented by new counsel on appeal and the
ineffective-assistance claim is based solely on the trial record, the claim
must be raised on direct appeal; failure to do so results in procedural
default unless the petitioner shows cause and prejudice.
Held: An ineffective-assistance-of-counsel claim may be brought in a col-
lateral proceeding under § 2255, whether or not the petitioner could have
raised the claim on direct appeal. Requiring a criminal defendant to
bring ineffective-assistance claims on direct appeal does not promote
the procedural default rule’s objectives: conserving judicial resources
and respecting the law’s important interest in the finality of judgments.
Applying that rule to ineffective-assistance claims would create a risk
that defendants would feel compelled to raise the issue before there has
been an opportunity fully to develop the claim’s factual predicate, and
would raise the issue for the first time in a forum not best suited to
assess those facts, even if the record contains some indication of defi-
ciencies in counsel’s performance. A § 2255 motion is preferable to di-
rect appeal for deciding an ineffective-assistance claim. When a claim
is brought on direct appeal, appellate counsel and the court must pro-
ceed on a trial record that is not developed precisely for, and is therefore

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Syllabus
often incomplete or inadequate for, the purpose of litigating or preserv-
ing the claim. A defendant claiming ineffective counsel must show that
counsel’s actions were not supported by a reasonable strategy and that
the error was prejudicial. Strickland v. Washington, 466 U. S. 668.
The evidence introduced at trial, however, will be devoted to guilt
or innocence issues, and the resulting record may not disclose the
facts necessary to decide either prong of the Strickland analysis.
Under the rule announced here, ineffective-assistance claims ordinarily
will be litigated in the first instance in the district court, the forum best
suited to developing the facts necessary to determining the adequacy of
representation during an entire trial. The court may take testimony
from witnesses for the defendant and the prosecution and from the
counsel alleged to have rendered the deficient performance. In addi-
tion, the § 2255 motion often will be ruled upon by the district judge
who presided at trial, who should have an advantageous perspective
for determining the effectiveness of counsel’s conduct and whether any
deficiencies were prejudicial. This Court does not hold that ineffective-
assistance claims must be reserved for collateral review, as there may
be cases in which trial counsel’s ineffectiveness is so apparent from the
record that appellate counsel will raise the issue on direct appeal or in
which obvious deficiencies in representation will be addressed by an
appellate court sua sponte. In such cases, certain questions may arise
in subsequent § 2255 proceedings concerning the conclusiveness of
determinations made on the claims raised on direct appeal; but these
implementation matters are not before the Court. Pp. 504–509.
27 Fed. Appx. 26, reversed and remanded.
Kennedy, J., delivered the opinion for a unanimous Court.
Herald Price Fahringer argued the cause for petitioner.
With him on the briefs were Erica T. Dubno and Eugene
Gressman.
Sri Srinivasan argued the cause for the United States.
With him on the brief were Solicitor General Olson, Assist-
ant Attorney General Chertoff, Deputy Solicitor General
Dreeben, and Steven L. Lane.*
*David A. Lewis and David M. Porter filed a brief for the National
Association of Criminal Defense Lawyers et al. as amici curiae urging
reversal.

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502 MASSARO v. UNITED STATES
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
Petitioner, Joseph Massaro, was indicted on federal rack-
eteering charges, including murder in aid of racketeering, 18
U. S. C. § 1962(d), in connection with the shooting death of
Joseph Fiorito. He was tried in the United States District
Court for the Southern District of New York. The day be-
fore Massaro’s trial was to begin, prosecutors learned of
what appeared to be a critical piece of evidence: a bullet al-
legedly recovered from the car in which the victim’s body
was found. They waited for several days, however, to in-
form defense counsel of this development. Not until the
trial was underway and the defense had made its opening
statement did they make this disclosure. After the trial
court and the defense had been informed of the development
but still during the course of trial, defense counsel more than
once declined the trial court’s offer of a continuance so the
bullet could be examined. Massaro was convicted and sen-
tenced to life imprisonment.
On direct appeal new counsel for Massaro argued the Dis-
trict Court had erred in admitting the bullet in evidence, but
he did not raise any claim relating to ineffective assistance of
trial counsel. The Court of Appeals for the Second Circuit
affirmed the conviction. Judgt. order reported at 57 F. 3d
1063 (1995).
Massaro later filed a motion under 28 U. S. C. § 2255, seek-
ing to vacate his conviction. As relevant here, he claimed
that his trial counsel had rendered ineffective assistance in
failing to accept the trial court’s offer to grant a continuance.
The United States District Court for the Southern District
of New York found this claim procedurally defaulted because
Massaro could have raised it on direct appeal.
The Court of Appeals for the Second Circuit affirmed.
27 Fed. Appx. 26 (1995). The court acknowledged that
ineffective-assistance claims usually should be excused from
procedural-default rules because an attorney who handles
both trial and appeal is unlikely to raise an ineffective-

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Opinion of the Court
assistance claim against himself. Nevertheless, it adhered
to its decision in Billy-Eko v. United States, 8 F. 3d 111
(1993). Under Billy-Eko, when the defendant is repre-
sented by new counsel on appeal and the ineffective-
assistance claim is based solely on the record made at trial,
the claim must be raised on direct appeal; failure to do so
results in procedural default unless the petitioner shows
cause and prejudice. Finding that Massaro was represented
by new counsel on appeal, that his trial counsel’s ineffective-
ness was evident from the record, and that he had failed to
show cause or prejudice, the Court of Appeals held him pro-
cedurally barred from bringing the ineffective-assistance
claim on collateral review.
We granted certiorari. 536 U. S. 990 (2002). Petitioner
now urges us to hold that claims of ineffective assistance of
counsel need not be raised on direct appeal, whether or not
there is new counsel and whether or not the basis for the
claim is apparent from the trial record. The Federal Courts
of Appeals are in conflict on this question, with the Seventh
Circuit joining the Second Circuit, see Guinan v. United
States, 6 F. 3d 468 (CA7 1993), and 10 other Federal Courts
of Appeals taking the position that there is no procedural
default for failure to raise an ineffective-assistance claim on
direct appeal, see, e. g., United States v. Cofske, 157 F. 3d 1,
2 (CA1 1998), cert. denied, 526 U. S. 1059 (1999); United
States v. Jake, 281 F. 3d 123, 132, n. 7 (CA3 2002); United
States v. King, 119 F. 3d 290, 295 (CA4 1997); United States
v. Rivas, 157 F. 3d 364, 369 (CA5 1998); United States v.
Neuhausser, 241 F. 3d 460, 474 (CA6), cert. denied, 534 U. S.
879 (2001); United States v. Evans, 272 F. 3d 1069, 1093 (CA8
2001), cert. denied, 535 U. S. 1029 (2002); United States v.
Rewald, 889 F. 2d 836, 859 (CA9 1989), cert. denied, 498 U. S.
819 (1990); United States v. Galloway, 56 F. 3d 1239, 1240
(CA10 1995) (en banc); United States v. Griffin, 699 F. 2d
1102, 1107–1109 (CA11 1983); United States v. Richardson,
167 F. 3d 621, 626 (CADC), cert. denied, 528 U. S. 895 (1999).

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504 MASSARO v. UNITED STATES
Opinion of the Court
We agree with the majority of the Courts of Appeals, and
we reverse.
The background for our discussion is the general rule that
claims not raised on direct appeal may not be raised on col-
lateral review unless the petitioner shows cause and preju-
dice. See United States v. Frady, 456 U. S. 152, 167–168
(1982); Bousley v. United States, 523 U. S. 614, 621–622
(1998). The procedural-default rule is neither a statutory
nor a constitutional requirement, but it is a doctrine adhered
to by the courts to conserve judicial resources and to respect
the law’s important interest in the finality of judgments.
We conclude that requiring a criminal defendant to bring
ineffective-assistance-of-counsel claims on direct appeal does
not promote these objectives.
As Judge Easterbrook has noted, “[r]ules of procedure
should be designed to induce litigants to present their
contentions to the right tribunal at the right time. ”
Guinan, supra, at 474 (concurring opinion). Applying the
usual procedural-default rule to ineffective-assistance claims
would have the opposite effect, creating the risk that defend-
ants would feel compelled to raise the issue before there has
been an opportunity fully to develop the factual predicate for
the claim. Furthermore, the issue would be raised for the
first time in a forum not best suited to assess those facts.
This is so even if the record contains some indication of
deficiencies in counsel’s performance. The better-reasoned
approach is to permit ineffective-assistance claims to be
brought in the first instance in a timely motion in the district
court under § 2255. We hold that an ineffective-assistance-
of-counsel claim may be brought in a collateral proceeding
under § 2255, whether or not the petitioner could have raised
the claim on direct appeal.
In light of the way our system has developed, in most cases
a motion brought under § 2255 is preferable to direct ap-
peal for deciding claims of ineffective assistance. When an
ineffective-assistance claim is brought on direct appeal, ap-

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Opinion of the Court
pellate counsel and the court must proceed on a trial record
not developed precisely for the object of litigating or pre-
serving the claim and thus often incomplete or inadequate
for this purpose. Under Strickland v. Washington, 466
U. S. 668 (1984), a defendant claiming ineffective counsel
must show that counsel’s actions were not supported by
a reasonable strategy and that the error was prejudicial.
The evidence introduced at trial, however, will be devoted to
issues of guilt or innocence, and the resulting record in many
cases will not disclose the facts necessary to decide either
prong of the Strickland analysis. If the alleged error is
one of commission, the record may reflect the action taken
by counsel but not the reasons for it. The appellate court
may have no way of knowing whether a seemingly unusual
or misguided action by counsel had a sound strategic motive
or was taken because the counsel’s alternatives were even
worse. See Guinan, supra, at 473 (Easterbrook, J., con-
curring) (“No matter how odd or deficient trial counsel’s
performance may seem, that lawyer may have had a reason
for acting as he did. . . . Or it may turn out that counsel’s
overall performance was sufficient despite a glaring omis-
sion . . .”). The trial record may contain no evidence of al-
leged errors of omission, much less the reasons underlying
them. And evidence of alleged conflicts of interest might be
found only in attorney-client correspondence or other docu-
ments that, in the typical criminal trial, are not introduced.
See, e. g., Billy-Eko, supra, at 114. Without additional fac-
tual development, moreover, an appellate court may not be
able to ascertain whether the alleged error was prejudicial.
Under the rule we adopt today, ineffective-assistance
claims ordinarily will be litigated in the first instance in the
district court, the forum best suited to developing the facts
necessary to determining the adequacy of representation
during an entire trial. The court may take testimony from
witnesses for the defendant and the prosecution and from the
counsel alleged to have rendered the deficient performance.

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See, e. g., Griffin, 699 F. 2d, at 1109 (In a § 2255 proceeding,
the defendant “has a full opportunity to prove facts estab-
lishing ineffectiveness of counsel, the government has a full
opportunity to present evidence to the contrary, the district
court hears spoken words we can see only in print and sees
expressions we will never see, and a factual record bearing
precisely on the issue is created”); Beaulieu v. United States,
930 F. 2d 805 (CA10 1991) (partially rev’d on other grounds,
United States v. Galloway, 56 F. 3d 1239 (CA10 1995). In
addition, the § 2255 motion often will be ruled upon by the
same district judge who presided at trial. The judge, hav-
ing observed the earlier trial, should have an advantageous
perspective for determining the effectiveness of counsel’s
conduct and whether any deficiencies were prejudicial.
The Second Circuit’s rule creates inefficiencies for courts
and counsel, both on direct appeal and in the collateral pro-
ceeding. On direct appeal it puts counsel into an awkward
position vis-a` -vis trial counsel. Appellate counsel often
need trial counsel’s assistance in becoming familiar with
a lengthy record on a short deadline, but trial counsel will
be unwilling to help appellate counsel familiarize himself
with a record for the purpose of understanding how it re-
flects trial counsel’s own incompetence.
Subjecting ineffective-assistance claims to the usual cause-
and-prejudice rule also would create perverse incentives
for counsel on direct appeal. To ensure that a potential
ineffective-assistance claim is not waived—and to avoid in-
curring a claim of ineffective counsel at the appellate stage—
counsel would be pressured to bring claims of ineffective
trial counsel, regardless of merit.
Even meritorious claims would fail when brought on direct
appeal if the trial record were inadequate to support them.
Appellate courts would waste time and resources attempting
to address some claims that were meritless and other claims
that, though colorable, would be handled more efficiently if
addressed in the first instance by the district court on col-

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lateral review. See, e. g., United States v. Galloway, supra,
at 1241 (“threat of . . . procedural bar has doubtless resulted
in many claims being asserted on direct appeal only to pro-
tect the record . . . unnecessarily burden[ing] both the par-
ties and the court . . .”). This concern is far from spec-
ulative. The Court of Appeals for the Second Circuit, in
light of its rule applying procedural default to ineffective-
assistance claims, has urged counsel to “err on the side of
inclusion on direct appeal,” Billy-Eko, 8 F. 3d, at 116.
On collateral review, the Second Circuit’s rule would cause
additional inefficiencies. Under that rule a court on collat-
eral review must determine whether appellate counsel is
“new.” Questions may arise, for example, about whether a
defendant has retained new appellate counsel when different
lawyers in the same law office handle trial and appeal. The
habeas court also must engage in a painstaking review of the
trial record solely to determine if it was sufficient to support
the ineffectiveness claim and thus whether it should have
been brought on direct appeal. A clear rule allowing these
claims to be brought in a proceeding under § 2255, by con-
trast, will eliminate these requirements. Although we could
“require the parties and the district judges to search for nee-
dles in haystacks—to seek out the rare claim that could have
been raised on direct appeal, and deem it waived,” Guinan,
6 F. 3d, at 475 (Easterbrook, J., concurring)—we do not see
the wisdom in requiring a court to spend time on exercises
that, in most instances, will produce no benefit. It is a bet-
ter use of judicial resources to allow the district court on
collateral review to turn at once to the merits.
The most to be said for the rule in the Second Circuit is
that it will speed resolution of some ineffective-assistance
claims. For the reasons discussed, however, we think few
such claims will be capable of resolution on direct appeal and
thus few will benefit from earlier resolution. And the bene-
fits of the Second Circuit’s rule in those rare instances are
outweighed by the increased judicial burden the rule would

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Opinion of the Court
impose in many other cases, where a district court on col-
lateral review would be forced to conduct the cause-and-
prejudice analysis before turning to the merits. The Second
Circuit’s rule, moreover, does not produce the benefits of
other rules requiring claims to be raised at the earliest
opportunity—such as the contemporaneous objection rule—
because here, raising the claim on direct appeal does not per-
mit the trial court to avoid the potential error in the first
place.
A growing majority of state courts now follow the rule we
adopt today. For example, the Supreme Court of Pennsyl-
vania recently changed its position to hold that “a claim rais-
ing trial counsel ineffectiveness will no longer be considered
waived because new counsel on direct appeal did not raise a
claim related to prior counsel’s ineffectiveness.” Common-
wealth v. Grant, 572 Pa. 48, 67, 813 A. 2d 726, 738 (2002); see
also id., at 62–67, and n. 13, 813 A. 2d, at 735–738, and n. 13
(cataloging other States’ case law adopting this position).
Although the Government now urges us to adopt the rule
of the Court of Appeals for the Second Circuit, the Govern-
ment took the opposite approach in some previous cases, ar-
guing not only that claims of ineffective assistance of counsel
could be brought in the first instance in a motion under
§ 2255, but that they must be brought in such a motion pro-
ceeding and not on direct appeal. See, e. g., United States
v. Cronic, 466 U. S. 648, 667, n. 42 (1984). We do not go
this far. We do not hold that ineffective-assistance claims
must be reserved for collateral review. There may be cases
in which trial counsel’s ineffectiveness is so apparent from
the record that appellate counsel will consider it advisable to
raise the issue on direct appeal. There may be instances,
too, when obvious deficiencies in representation will be
addressed by an appellate court sua sponte. In those cases,
certain questions may arise in subsequent proceedings under
§ 2255 concerning the conclusiveness of determinations made
on the ineffective-assistance claims raised on direct ap-

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peal; but these matters of implementation are not before us.
We do hold that failure to raise an ineffective-assistance-
of-counsel claim on direct appeal does not bar the claim
from being brought in a later, appropriate proceeding
under § 2255.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.

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510 OCTOBER TERM, 2002
Syllabus
DEMORE, DISTRICT DIRECTOR, SAN FRANCISCO
DISTRICT OF IMMIGRATION AND NATURALI-
ZATION SERVICE, et al. v. KIM
certiorari to the united states court of appeals for
the ninth circuit
No. 01–1491. Argued January 15, 2003—Decided April 29, 2003
Under the Immigration and Nationality Act, 8 U. S. C. § 1226(c), “[t]he At-
torney General shall take into custody any alien who” is removable from
this country because he has been convicted of one of a specified set of
crimes, including an “aggravated felony.” After respondent, a lawful
permanent resident alien, was convicted in state court of first-degree
burglary and, later, of “petty theft with priors,” the Immigration and
Naturalization Service (INS) charged him with being deportable from
the United States in light of these convictions, and detained him pending
his removal hearing. Without disputing the validity of his convictions
or the INS’ conclusion that he is deportable and therefore subject to
mandatory detention under § 1226(c), respondent filed a habeas corpus
action challenging § 1226(c) on the ground that his detention thereunder
violated due process because the INS had made no determination that
he posed either a danger to society or a flight risk. The District Court
agreed and granted respondent’s petition subject to the INS’ prompt
undertaking of an individualized bond hearing, after which respond-
ent was released on bond. In affirming, the Ninth Circuit held that
§ 1226(c) violates substantive due process as applied to respondent
because he is a lawful permanent resident, the most favored category
of aliens. The court rejected the Government’s two principal justifica-
tions for mandatory detention under § 1226(c), discounting the first—
ensuring the presence of criminal aliens at their removal proceedings—
upon finding that not all aliens detained pursuant to § 1226(c) would
ultimately be deported, and discounting the second—protecting the pub-
lic from dangerous criminal aliens—on the grounds that the aggravated
felony classification triggering respondent’s detention included crimes
(such as respondent’s) that the court did not consider “egregious” or
otherwise sufficiently dangerous to the public to necessitate mandatory
detention. Relying on Zadvydas v. Davis, 533 U. S. 678, the court con-
cluded that the INS had not provided a justification for no-bail civil
detention sufficient to overcome a permanent resident alien’s liberty
interest.

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Held:
1. Section 1226(e)—which states that “[t]he Attorney General’s discre-
tionary judgment regarding the application of this section shall not be
subject to review” and that “[n]o court may set aside any action or deci-
sion by the Attorney General under this section regarding the detention
or release of any alien”—does not deprive the federal courts of jurisdic-
tion to grant habeas relief to aliens challenging their detention under
§ 1226(c). Respondent does not challenge a “discretionary judgment”
by the Attorney General or a “decision” that the Attorney General has
made regarding his detention or release. Rather, respondent chal-
lenges the statutory framework that permits his detention without bail.
Where Congress intends to preclude judicial review of constitutional
claims its intent to do so must be clear. E. g., Webster v. Doe, 486 U. S.
592, 603. And, where a provision precluding review is claimed to bar
habeas review, the Court requires a particularly clear statement that
such is Congress’ intent. See INS v. St. Cyr, 533 U. S. 289, 308–309,
298, 327. Section 1226(e) contains no explicit provision barring habeas
review. Pp. 516–517.
2. Congress, justifiably concerned with evidence 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 respondent be detained for the brief period neces-
sary for their removal proceedings. In the exercise of its broad power
over naturalization and immigration, Congress regularly makes rules
that would be unacceptable if applied to citizens. Mathews v. Diaz, 426
U. S. 67, 79–80. Although the Fifth Amendment entitles aliens to due
process in deportation proceedings, Reno v. Flores, 507 U. S. 292, 306,
detention during such proceedings is a constitutionally valid aspect of
the process, e. g., Wong Wing v. United States, 163 U. S. 228, 235, even
where, as here, aliens challenge their detention on the grounds that
there has been no finding that they are unlikely to appear for their
deportation proceedings, Carlson v. Landon, 342 U. S. 524, 538. The
INS detention of respondent, a criminal alien who has conceded that he
is deportable, for the limited period of his removal proceedings, is gov-
erned by these cases. Respondent argues unpersuasively that the
§ 1226(c) detention policy violates due process under Zadvydas, 533
U. S., at 699, in which the Court held that § 1231(a)(6) authorizes contin-
ued detention of an alien subject to a final removal order beyond that
section’s 90-day removal period for only such time as is reasonably nec-
essary to secure the removal. Zadvydas is materially different from
the present case in two respects. First, the aliens there challenging
their detention following final deportation orders were ones for whom
removal was “no longer practically attainable,” such that their detention

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512 DEMORE v. KIM
Syllabus
did not serve its purported immigration purpose. Id., at 690. In con-
trast, because the statutory provision at issue in this case governs de-
tention of deportable criminal aliens pending their removal proceedings,
the detention necessarily serves the purpose of preventing the aliens
from fleeing prior to or during such proceedings. Second, while the
period of detention at issue in Zadvydas was “indefinite” and “poten-
tially permanent,” id., at 690–691, the record shows that §1226(c) deten-
tion not only has a definite termination point, but lasts, in the majority
of cases, for less than the 90 days the Court considered presumptively
valid in Zadvydas. Pp. 517–531.
276 F. 3d 523, reversed.
Rehnquist, C. J., delivered the opinion of the Court, in which Ken-
nedy, J., joined in full, in which Stevens, Souter, Ginsburg, and
Breyer, JJ., joined as to Part I, and in which O’Connor, Scalia, and
Thomas, JJ., joined as to all but Part I. Kennedy, J., filed a concurring
opinion, post, p. 531. O’Connor, J., filed an opinion concurring in part
and concurring in the judgment, in which Scalia and Thomas, JJ., joined,
post, p. 533. Souter, J., filed an opinion concurring in part and dissenting
in part, in which Stevens and Ginsburg, JJ., joined, post, p. 540.
Breyer, J., filed an opinion concurring in part and dissenting in part,
post, p. 576.
Solicitor General Olson argued the cause for petitioners.
With him on the briefs were Assistant Attorney General
McCallum, Deputy Solicitor General Kneedler, Austin C.
Schlick, Donald E. Keener, and Mark C. Walters.
Judy Rabinovitz argued the cause for respondent. With
her on the brief were Lucas Guttentag, Lee Gelernt, Steven
R. Shapiro, A. Stephen Hut, Jr., Christopher J. Meade, Lili-
ana M. Garces, and Jayashri Srikantiah.*
*Daniel J. Popeo and Richard A. Samp filed a brief for the Washington
Legal Foundation et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American
Bar Association by Alfred P. Carlton, Jr., and Jeffrey L. Bleich; for Citi-
zens and Immigrants for Equal Justice et al. by Nancy Morawetz; for
International Human Rights Organizations by William J. Aceves and Paul
L. Hoffman; for Law Professors by Daniel Kanstroom; for the National
Asian Pacific American Legal Consortium et al. by Richard A. Cordray,
Eugene F. Chay, Vincent A. Eng, and William L. Taylor; and for T. Alex-
ander Aleinikoff et al. by Anthony J. Orler.

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513 Cite as: 538 U. S. 510 (2003)
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
Section 236(c) of the Immigration and Nationality Act, 66
Stat. 200, as amended, 110 Stat. 3009–585, 8 U. S. C. § 1226(c),
provides that “[t]he Attorney General shall take into custody
any alien who” is removable from this country because he
has been convicted of one of a specified set of crimes. Re-
spondent is a citizen of the Republic of South Korea. He
entered the United States in 1984, at the age of six, and
became a lawful permanent resident of the United States
two years later. In July 1996, he was convicted of first-
-degree burglary in state court in California and, in April
1997, he was convicted of a second crime, “petty theft with
priors.” The Immigration and Naturalization Service (INS)
charged respondent with being deportable from the United
States in light of these convictions, and detained him pend-
ing his removal hearing.1 We hold that Congress, justifiably
concerned that deportable criminal aliens who are not de-
tained continue to engage in crime and fail to appear for
their removal hearings in large numbers, may require that
persons such as respondent be detained for the brief period
necessary for their removal proceedings.
Respondent does not dispute the validity of his prior con-
victions, which were obtained following the full procedural
protections our criminal justice system offers. Respondent
also did not dispute the INS’ conclusion that he is subject to
1 App. to Pet. for Cert. 32a; see 8 U. S. C. §§ 1101(a)(43)(G), 1227(a)(2)
(A)(iii). Section 1226(c) authorizes detention of aliens who have com-
mitted certain crimes including, inter alia, any “aggravated felony,”
§§ 1226(c)(1)(B), 1227(a)(2)(A)(iii), and any two “crimes involving moral
turpitude,” §§ 1226(c)(1)(B), 1227(a)(2)(A)(ii). Although the INS initially
included only respondent’s 1997 conviction in the charging document, it
subsequently amended the immigration charges against him to include his
1996 conviction for first-degree burglary as another basis for mandatory
detention and deportation. Brief for Petitioners 3, n. 2 (alleging that re-
spondent’s convictions reflected two “ ‘crimes involving moral turpitude’ ”).

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514 DEMORE v. KIM
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mandatory detention under § 1226(c). See Brief in Opposi-
tion 1–2; App. 8–9.2 In conceding that he was deportable,
respondent forwent a hearing at which he would have been
entitled to raise any nonfrivolous argument available to dem-
onstrate that he was not properly included in a mandatory
detention category. See 8 CFR § 3.19(h)(2)(ii) (2002); Matter
of Joseph, 22 I. & N. Dec. 799 (BIA 1999). 3 Respondent in-
stead filed a habeas corpus action pursuant to 28 U. S. C.
§ 2241 in the United States District Court for the Northern
District of California challenging the constitutionality of
§ 1226(c) itself. App. to Pet. for Cert. 2a. He argued that
his detention under § 1226(c) violated due process because
the INS had made no determination that he posed either a
danger to society or a flight risk. Id., at 31a, 33a.
The District Court agreed with respondent that § 1226(c)’s
requirement of mandatory detention for certain criminal
aliens was unconstitutional. Kim v. Schiltgen, No. C 99–
2 As respondent explained: “The statute requires the [INS] to take into
custody any alien who ‘is deportable’ from the United States based on
having been convicted of any of a wide range of crimes. . . . [Respondent]
does not challenge INS’s authority to take him into custody after he fini-
shed serving his criminal sentence. His challenge is solely to Section
1226(c)’s absolute prohibition on his release from detention, even where,
as here, the INS never asserted that he posed a danger or significant flight
risk.” Brief in Opposition 1–2.
3 This “Joseph hearing” is immediately provided to a detainee who
claims that he is not covered by § 1226(c). Tr. of Oral Arg. 22. At the
hearing, the detainee may avoid mandatory detention by demonstrating
that he is not an alien, was not convicted of the predicate crime, or that
the INS is otherwise substantially unlikely to establish that he is in fact
subject to mandatory detention. See 8 CFR § 3.19(h)(2)(ii) (2002); Matter
of Joseph, 22 I. & N. Dec. 799 (BIA 1999). Because respondent conceded
that he was deportable because of a conviction that triggers § 1226(c) and
thus sought no Joseph hearing, we have no occasion to review the ade-
quacy of Joseph hearings generally in screening out those who are improp-
erly detained pursuant to § 1226(c). Such individualized review is avail-
able, however, and Justice Souter is mistaken if he means to suggest
otherwise. See post, at 555–556, 558 (opinion concurring in part and dis-
senting in part) (hereinafter dissent).

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2257 SI (Aug. 11, 1999), App. to Pet. for Cert. 31a–51a. The
District Court therefore granted respondent’s petition sub-
ject to the INS’ prompt undertaking of an individualized
bond hearing to determine whether respondent posed either
a flight risk or a danger to the community. Id., at 50a. Fol-
lowing that decision, the District Director of the INS re-
leased respondent on $5,000 bond.
The Court of Appeals for the Ninth Circuit affirmed.
Kim v. Ziglar, 276 F. 3d 523 (2002). That court held that
§ 1226(c) violates substantive due process as applied to re-
spondent because he is a permanent resident alien. Id., at
528. It noted that permanent resident aliens constitute the
most favored category of aliens and that they have the right
to reside permanently in the United States, to work here,
and to apply for citizenship. Ibid. The court recognized
and rejected the Government’s two principal justifications
for mandatory detention under § 1226(c): (1) ensuring the
presence of criminal aliens at their removal proceedings; and
(2) protecting the public from dangerous criminal aliens.
The Court of Appeals discounted the first justification be-
cause it found that not all aliens detained pursuant to
§ 1226(c) would ultimately be deported. Id., at 531–532.
And it discounted the second justification on the grounds
that the aggravated felony classification triggering respond-
ent’s detention included crimes that the court did not con-
sider “egregious” or otherwise sufficiently dangerous to the
public to necessitate mandatory detention. Id., at 532–533.
Respondent’s crimes of first-degree burglary (burglary of an
inhabited dwelling) and petty theft, for instance, the Ninth
Circuit dismissed as “rather ordinary crimes.” Id., at 538.
Relying upon our recent decision in Zadvydas v. Davis, 533
U. S. 678 (2001), the Court of Appeals concluded that the INS
had not provided a justification “for no-bail civil detention
sufficient to overcome a lawful permanent resident alien’s
liberty interest.” 276 F. 3d, at 535.

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516 DEMORE v. KIM
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Three other Courts of Appeals have reached the same con-
clusion. See Patel v. Zemski, 275 F. 3d 299 (CA3 2001);
Welch v. Ashcroft, 293 F. 3d 213 (CA4 2002); Hoang v. Com-
fort, 282 F. 3d 1247 (CA10 2002). The Seventh Circuit, how-
ever, rejected a constitutional challenge to § 1226(c) by a per-
manent resident alien. Parra v. Perryman, 172 F. 3d 954
(1999). We granted certiorari to resolve this conflict, see
536 U. S. 956 (2002), and now reverse.
I
We address first the argument that 8 U. S. C. § 1226(e) de-
prives us of jurisdiction to hear this case. See Florida v.
Thomas, 532 U. S. 774, 777 (2001) (“Although the parties did
not raise the issue in their briefs on the merits, we must first
consider whether we have jurisdiction to decide this case”).
An amicus argues, and the concurring opinion agrees, that
§ 1226(e) deprives the federal courts of jurisdiction to grant
habeas relief to aliens challenging their detention under
§ 1226(c). See Brief for Washington Legal Foundation et al.
as Amici Curiae. Section 1226(e) states:
“(e) Judicial review
“The Attorney General’s discretionary judgment re-
garding the application of this section shall not be sub-
ject to review. No court may set aside any action or
decision by the Attorney General under this section re-
garding the detention or release of any alien or the
grant, revocation, or denial of bond or parole.”
The amicus argues that respondent is contesting a “deci-
sion by the Attorney General” to detain him under § 1226(c),
and that, accordingly, no court may set aside that action.
Brief for Washington Legal Foundation et al. as Amici
Curiae 7–8.
But respondent does not challenge a “discretionary judg-
ment” by the Attorney General or a “decision” that the At-
torney General has made regarding his detention or release.

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Rather, respondent challenges the statutory framework that
permits his detention without bail. Parra v. Perryman,
supra, at 957 (“Section 1226(e) likewise deals with challenges
to operational decisions, rather than to the legislation estab-
lishing the framework for those decisions”).
This Court has held that “where Congress intends to pre-
clude judicial review of constitutional claims its intent to do
so must be clear.” Webster v. Doe, 486 U. S. 592, 603 (1988);
see also Johnson v. Robison, 415 U. S. 361, 367 (1974) (hold-
ing that provision barring review of “ ‘decisions of the Ad-
ministrator on any question of law or fact under any law
administered by the Veterans’ Administration providing ben-
efits for veterans’ ” did not bar constitutional challenge (em-
phasis deleted)). And, where a provision precluding review
is claimed to bar habeas review, the Court has required a
particularly clear statement that such is Congress’ intent.
See INS v. St. Cyr, 533 U. S. 289, 308–309 (2001) (holding
that title of provision, “Elimination of Custody Review by
Habeas Corpus,” along with broad statement of intent to
preclude review, was not sufficient to bar review of habeas
corpus petitions); see also id., at 298 (citing cases refusing to
find bar to habeas review where there was no specific men-
tion of the Court’s authority to hear habeas petitions); id., at
327 (Scalia, J., dissenting) (arguing that opinion established
“a superclear statement, ‘magic words’ requirement for
the congressional expression of ” an intent to preclude ha-
beas review).
Section 1226(e) contains no explicit provision barring ha-
beas review, and we think that its clear text does not bar
respondent’s constitutional challenge to the legislation au-
thorizing his detention without bail.
II
Having determined that the federal courts have jurisdic-
tion to review a constitutional challenge to § 1226(c), we pro-
ceed to review respondent’s claim. Section 1226(c) man-

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518 DEMORE v. KIM
Opinion of the Court
dates detention during removal proceedings for a limited
class of deportable aliens—including those convicted of an
aggravated felony. Congress adopted this provision against
a backdrop of wholesale failure by the INS to deal with in-
creasing rates of criminal activity by aliens. See, e. g.,
Criminal Aliens in the United States: Hearings before the
Permanent Subcommittee on Investigations of the Senate
Committee on Governmental Affairs, 103d Cong., 1st Sess.
(1993); S. Rep. No. 104–48, p. 1 (1995) (hereinafter S. Rep.
104–48) (confinement of criminal aliens alone cost $724 mil-
lion in 1990). Criminal aliens were the fastest growing seg-
ment of the federal prison population, already constituting
roughly 25% of all federal prisoners, and they formed a rap-
idly rising share of state prison populations as well. Id., at
6–9. Congress’ investigations showed, however, that the
INS could not even identify most deportable aliens, much
less locate them and remove them from the country. Id.,
at 1. One study showed that, at the then-current rate of
deportation, it would take 23 years to remove every criminal
alien already subject to deportation. Id., at 5. Making
matters worse, criminal aliens who were deported swiftly
reentered the country illegally in great numbers. Id., at 3.
The INS’ near-total inability to remove deportable crimi-
nal aliens imposed more than a monetary cost on the Nation.
First, as Congress explained, “[a]liens who enter or remain
in the United States in violation of our law are effectively
taking immigration opportunities that might otherwise be
extended to others.” S. Rep. No. 104–249, p. 7 (1996). Sec-
ond, deportable criminal aliens who remained in the United
States often committed more crimes before being removed.
One 1986 study showed that, after criminal aliens were iden-
tified as deportable, 77% were arrested at least once more
and 45%—nearly half—were arrested multiple times before
their deportation proceedings even began. Hearing on
H. R. 3333 before the Subcommittee on Immigration, Refu-
gees, and International Law of the House Committee on the

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Judiciary, 101st Cong., 1st Sess., 54, 52 (1989) (hereinafter
1989 House Hearing); see also Zadvydas, 533 U. S., at 713–
714 (Kennedy, J., dissenting) (discussing high rates of recidi-
vism for released criminal aliens).
Congress also had before it evidence that one of the major
causes of the INS’ failure to remove deportable criminal
aliens was the agency’s failure to detain those aliens during
their deportation proceedings. See Department of Justice,
Office of the Inspector General, Immigration and Naturaliza-
tion Service, Deportation of Aliens After Final Orders Have
Been Issued, Rep. No. I–96–03 (Mar. 1996), App. 46 (herein-
after Inspection Report) (“Detention is key to effective de-
portation”); see also H. R. Rep. No. 104–469, p. 123 (1995).
The Attorney General at the time had broad discretion to
conduct individualized bond hearings and to release criminal
aliens from custody during their removal proceedings when
those aliens were determined not to present an excessive
flight risk or threat to society. See 8 U. S. C. § 1252(a) (1982
ed.). Despite this discretion to conduct bond hearings, how-
ever, in practice the INS faced severe limitations on funding
and detention space, which considerations affected its release
determinations. S. Rep. 104–48, at 23 (“[R]elease determi-
nations are made by the INS in large part, according to the
number of beds available in a particular region”); see also
Reply Brief for Petitioners 9.
Once released, more than 20% of deportable criminal
aliens failed to appear for their removal hearings. See
S. Rep. 104–48, at 2; see also Brief for Petitioners 19.4 The
4 Although the Attorney General had authority to release these aliens
on bond, it is not clear that all of the aliens released were in fact given
individualized bond hearings. See Brief for Petitioners 19 (“[M]ore than
20% of criminal aliens who were released on bond or otherwise not kept
in custody throughout their deportation proceedings failed to appear for
those proceedings” (emphasis added)), citing S. Rep. 104–48, at 2. The
evidence does suggest, however, that many deportable criminal aliens in
this “released criminal aliens” sample received such determinations. See

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520 DEMORE v. KIM
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dissent disputes that statistic, post, at 562–564 (opinion of
Souter, J.), but goes on to praise a subsequent study con-
ducted by the Vera Institute of Justice that more than con-
firms it. Post, at 565–566. As the dissent explains, the
Vera study found that “77% of those [deportable criminal
aliens] released on bond” showed up for their removal pro-
ceedings. Post, at 565. This finding—that one out of four
criminal aliens released on bond absconded prior to the com-
pletion of his removal proceedings—is even more striking
than the one-in-five flight rate reflected in the evidence be-
fore Congress when it adopted § 1226(c).5 The Vera Insti-
tute study strongly supports Congress’ concern that, even
with individualized screening, releasing deportable criminal
aliens on bond would lead to an unacceptable rate of flight.
Congress amended the immigration laws several times
toward the end of the 1980’s. In 1988, Congress limited
Brief for Petitioners 19 (noting that, for aliens not evaluated for flight risk
at a bond hearing, the prehearing skip rate doubled to 40%).
5 The dissent also claims that the study demonstrated that “92% of crimi-
nal aliens . . . who were released under supervisory conditions attended
all of their hearings.” Post, at 565 (opinion of Souter, J.). The study
did manage to raise the appearance rate for criminal aliens through a
supervision program known as the Appearance Assistance Program
(AAP). But the AAP study is of limited value. First, the study included
only 16 aliens who, like respondent, were released from prison and charged
with being deportable on the basis of an aggravated felony. 1 Vera Insti-
tute of Justice, Testing Community Supervision for the INS: An Evalua-
tion of the Appearance Assistance Program, pp. 33–34, 36 (Aug. 1, 2000).
In addition, all 127 aliens in the AAP study were admitted into the study
group only after being screened for “strength of family and community
ties, appearance rates in prior legal proceedings, and eligibility to apply
for a legal remedy.” Id., at 13; see also id., at 37. Following this selec-
tion process, “supervision staff were in frequent, ongoing communication
with participants,” id., at 14, through, among other things, required re-
porting sessions, periodic home visits, and assistance in retaining legal
representation, id., at 41–42. And, in any event, respondent seeks an in-
dividualized bond hearing, not “community supervision.” The dissent’s
claim that criminal aliens released under supervisory conditions are likely
to attend their hearings, post, at 565, therefore, is totally beside the point.

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the Attorney General’s discretion over custody determina-
tions with respect to deportable aliens who had been con-
victed of aggravated felonies. See Pub. L. 100–690, Tit. VII,
§ 7343(a), 102 Stat. 4470. Then, in 1990, Congress broadened
the definition of “aggravated felony,” subjecting more crimi-
nal aliens to mandatory detention. See Pub. L. 101–649, Tit.
V, § 501(a), 104 Stat. 5048. At the same time, however, Con-
gress added a new provision, 8 U. S. C. § 1252(a)(2)(B) (1988
ed., Supp. II), authorizing the Attorney General to release
permanent resident aliens during their deportation proceed-
ings where such aliens were found not to constitute a flight
risk or threat to the community. See Pub. L. 101–649, Tit.
V, § 504(a)(5), 104 Stat. 5049.
During the same period in which Congress was making
incremental changes to the immigration laws, it was also con-
sidering wholesale reform of those laws. Some studies pre-
sented to Congress suggested that detention of criminal
aliens during their removal proceedings might be the best
way to ensure their successful removal from this country.
See, e. g., 1989 House Hearing 75; Inspection Report, App.
46; S. Rep. 104–48, at 32 (“Congress should consider requir-
ing that all aggravated felons be detained pending deporta-
tion. Such a step may be necessary because of the high rate
of no-shows for those criminal aliens released on bond”). It
was following those Reports that Congress enacted 8 U. S. C.
§ 1226, requiring the Attorney General to detain a subset of
deportable criminal aliens pending a determination of their
removability.
“In the exercise of its broad power over naturalization
and immigration, Congress regularly makes rules that would
be unacceptable if applied to citizens.” Mathews v. Diaz,
426 U. S. 67, 79–80 (1976). The dissent seeks to avoid this
fundamental premise of immigration law by repeatedly refer-
ring to it as “dictum.” Post, at 547–549, n. 9 (opinion of
Souter, J.). The Court in Mathews, however, made the
statement the dissent now seeks to avoid in reliance on clear

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522 DEMORE v. KIM
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precedent establishing that “ ‘any policy toward aliens is
vitally and intricately interwoven with contemporaneous
policies in regard to the conduct of foreign relations, the war
power, and the maintenance of a republican form of gov-
ernment.’ ” 426 U. S., at 81, n. 17 (quoting Harisiades v.
Shaughnessy, 342 U. S. 580, 588–589 (1952)). And, since
Mathews, this Court has firmly and repeatedly endorsed the
proposition that Congress may make rules as to aliens that
would be unacceptable if applied to citizens. See, e. g.,
Zadvydas, 533 U. S., at 718 (Kennedy, J., dissenting) (“The
liberty rights of the aliens before us here are subject to limi-
tations and conditions not applicable to citizens”); Reno v.
Flores, 507 U. S. 292, 305–306 (1993) (“Thus, ‘in the exercise
of its broad power over immigration and naturalization,
“Congress regularly makes rules that would be unacceptable
if applied to citizens” ’ ” (quoting Fiallo v. Bell, 430 U. S. 787,
792 (1977), in turn quoting Mathews, supra, at 79–80));
United States v. Verdugo-Urquidez, 494 U. S. 259, 273 (1990).
In his habeas corpus challenge, respondent did not contest
Congress’ general authority to remove criminal aliens from
the United States. Nor did he argue that he himself was
not “deportable” within the meaning of § 1226(c).6 Rather,
6 Respondent’s concession on this score is relevant for two reasons: First,
because of the concession, respondent by his own choice did not receive
one of the procedural protections otherwise provided to aliens detained
under § 1226(c). And, second, because of the concession we do not reach
a contrary argument raised by respondent for the first time in his brief on
the merits in this Court. Specifically, in his brief on the merits, respond-
ent suggests that he might not be subject to detention under § 1226(c)
after all because his 1997 conviction for petty theft with priors might
not qualify as an aggravated felony under recent Ninth Circuit precedent.
Respondent now states that he intends to argue at his next removal hear-
ing that “his 1997 conviction does not constitute an aggravated felony . . .
and his 1996 conviction [for first-degree burglary] does not constitute
either an aggravated felony or a crime involving moral turpitude.” Brief
for Respondent 11–12. As respondent has conceded that he is deportable
for purposes of his habeas corpus challenge to § 1226(c) at all previous
stages of this proceeding, see n. 3, supra, we decide the case on that basis.

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respondent argued that the Government may not, consistent
with the Due Process Clause of the Fifth Amendment, detain
him for the brief period necessary for his removal proceed-
ings. The dissent, after an initial detour on the issue of re-
spondent’s concession, see post, at 541–543 (opinion of Sou-
ter, J.), ultimately acknowledges the real issue in this case.
Post, at 555–556, n. 11; see also Brief in Opposition 1–2 (ex-
plaining that respondent’s “challenge is solely to Section
1226(c)’s absolute prohibition on his release from detention”).
“It is well established that the Fifth Amendment entitles
aliens to due process of law in deportation proceedings.”
Flores, supra, at 306. At the same time, however, this
Court has recognized detention during deportation pro-
ceedings as a constitutionally valid aspect of the deportation
process. As we said more than a century ago, deportation
proceedings “would be vain if those accused could not be held
in custody pending the inquiry into their true character.”
Wong Wing v. United States, 163 U. S. 228, 235 (1896); see
also Flores, supra, at 305–306; Zadvydas, 533 U. S., at 697
(distinguishing constitutionally questioned detention there at
issue from “detention pending a determination of removabil-
ity”); id., at 711 (Kennedy, J., dissenting) (“Congress’ power
to detain aliens in connection with removal or exclusion . . .
is part of the Legislature’s considerable authority over immi-
gration matters”).7
In Carlson v. Landon, 342 U. S. 524 (1952), the Court con-
sidered a challenge to the detention of aliens who were
deportable because of their participation in Communist ac-
Lest there be any confusion, we emphasize that by conceding he is “de-
portable” and, hence, subject to mandatory detention under § 1226(c), re-
spondent did not concede that he will ultimately be deported. As the
dissent notes, respondent has applied for withholding of removal. Post,
at 541 (opinion of Souter, J.).
7 In fact, prior to 1907 there was no provision permitting bail for any
aliens during the pendency of their deportation proceedings. See §20, 34
Stat. 905.

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524 DEMORE v. KIM
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tivities. The detained aliens did not deny that they were
members of the Communist Party or that they were there-
fore deportable. Id., at 530. Instead, like respondent in
the present case, they challenged their detention on the
grounds that there had been no finding that they were un-
likely to appear for their deportation proceedings when or-
dered to do so. Id., at 531–532; see also Brief for Petitioner
in Carlson v. Landon, O. T. 1951, No. 35, p. 12 (arguing
that legislative determinations could not justify “depriving
[an alien] of his liberty without facts personal to the individ-
ual”). Although the Attorney General ostensibly had dis-
cretion to release detained Communist aliens on bond, the
INS had adopted a policy of refusing to grant bail to those
aliens in light of what Justice Frankfurter viewed as the
mistaken “conception that Congress had made [alien Com-
munists] in effect unbailable.” 342 U. S., at 559, 568 (dis-
senting opinion).
The Court rejected the aliens’ claims that they were enti-
tled to be released from detention if they did not pose a flight
risk, explaining “[d]etention is necessarily a part of this de-
portation procedure.” Id., at 538; see also id., at 535. The
Court noted that Congress had chosen to make such aliens
deportable based on its “understanding of [Communists’] at-
titude toward the use of force and violence . . . to accomplish
their political aims.” Id., at 541. And it concluded that the
INS could deny bail to the detainees “by reference to the
legislative scheme” even without any finding of flight risk.
Id., at 543; see also id., at 550 (Black, J., dissenting) (“Denial
[of bail] was not on the ground that if released [the aliens]
might try to evade obedience to possible deportation or-
ders”); id., at 551, and n. 6.
The dissent argues that, even though the aliens in Carlson
were not flight risks, “individualized findings of dangerous-
ness were made” as to each of the aliens. Post, at 573 (opin-
ion of Souter, J.). The dissent, again, is mistaken. The
aliens in Carlson had not been found individually dangerous.

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The only evidence against them was their membership in
the Communist Party and “a degree . . . of participation in
Communist activities.” 342 U. S., at 541. There was no
“individualized findin[g]” of likely future dangerousness as
to any of the aliens and, in at least one case, there was a
specific finding of nondangerousness.8 The Court nonethe-
less concluded that the denial of bail was permissible “by
reference to the legislative scheme to eradicate the evils of
Communist activity.” Id., at 543.9
8 See Carlson v. Landon, 342 U. S., at 549 (Black, J., dissenting) (noting
that, in at least one case, the alien involved had been found “ ‘not likely to
engage in any subversive activities’ ” (emphasis added)); see also id., at
550, n. 5 (quoting the District Judge’s finding in case No. 35 that “ ‘I don’t
know whether it is true . . . that their release is dangerous to the security
of the United States’ ”); id., at 552 (“[T]he bureau agent is not required to
prove that a person he throws in jail is . . . ‘dangerous’ ” (emphasis added));
see also id., at 567 (Frankfurter, J., dissenting) (“[T]he Attorney General
. . . did not deny bail from an individualized estimate of ‘the danger to the
public safety of [each person’s] presence within the community’ ” (empha-
sis added)).
9 Apart from its error with respect to the dangerousness determination,
the dissent attempts to distinguish Carlson from the present case by ar-
guing that the aliens in Carlson had engaged in “ ‘personal activity’ ” in
support of a political party Congress considered “ ‘a menace to the pub-
lic.’ ” Post, at 569 (opinion of Souter, J.). In suggesting that this is a
distinction, the dissent ignores the “personal activity” that aliens like re-
spondent have undertaken in committing the crimes that subject them to
detention in the first instance—personal activity that has been determined
with far greater procedural protections than any finding of “active mem-
bership” in the Communist Party involved in Carlson. See 342 U. S., at
530 (“[T]he Director made allegation[s], supported by affidavits, that the
Service’s dossier of each petitioner contained evidence indicating to him
that each was at the time of arrest a member of the Communist Party
of the United States and had since 1930 participated . . . in the Party’s
indoctrination of others”). In the present case, respondent became “de-
portable” under § 1226(c) only following criminal convictions that were se-
cured following full procedural protections. These convictions, moreover,
reflect “personal activity” that Congress considered relevant to future
dangerousness. Cf. Zadvydas v. Davis, 533 U. S. 678, 714 (2001) (Ken-
nedy, J., dissenting) (noting that “a criminal record accumulated by an

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526 DEMORE v. KIM
Opinion of the Court
In Reno v. Flores, 507 U. S. 292 (1993), the Court consid-
ered another due process challenge to detention during de-
portation proceedings. The due process challenge there
was brought by a class of alien juveniles. The INS had ar-
rested them and was holding them in custody pending their
deportation hearings. The aliens challenged the INS’ policy
of releasing detained alien juveniles only into the care of
their parents, legal guardians, or certain other adult rela-
tives. See, e. g., id., at 297 (citing Detention and Release of
Juveniles, 53 Fed. Reg. 17449 (1988) (codified as to deporta-
tion at 8 CFR § 242.24 (1992))). The aliens argued that the
policy improperly relied “upon a ‘blanket’ presumption of the
unsuitability of custodians other than parents, close rela-
tives, and guardians” to care for the detained juvenile aliens.
507 U. S., at 313. In rejecting this argument, the Court em-
phasized that “reasonable presumptions and generic rules,”
even when made by the INS rather than Congress, are not
necessarily impermissible exercises of Congress’ traditional
power to legislate with respect to aliens. Ibid.; see also
id., at 313–314 (“In the case of each detained alien juvenile,
the INS makes those determinations that are specific to the
individual and necessary to accurate application of the regu-
lation . . . . The particularization and individuation need go
no further than this”). Thus, as with the prior challenges
to detention during deportation proceedings, the Court in
Flores rejected the due process challenge and upheld the
constitutionality of the detention.
Despite this Court’s longstanding view that the Govern-
ment may constitutionally detain deportable aliens during
the limited period necessary for their removal proceedings,
respondent argues that the narrow detention policy reflected
in 8 U. S. C. § 1226(c) violates due process. Respondent, like
admitted alien” is a good indicator of future danger, and that “[a]ny sug-
gestion that aliens who have completed prison terms no longer present a
danger simply does not accord with the reality that a significant risk may
still exist”).

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the four Courts of Appeals that have held § 1226(c) to be
unconstitutional, relies heavily upon our recent opinion in
Zadvydas v. Davis, 533 U. S. 678 (2001).
In Zadvydas, the Court considered a due process challenge
to detention of aliens under 8 U. S. C. § 1231 (1994 ed., Supp.
V), which governs detention following a final order of re-
moval. Section 1231(a)(6) provides, among other things,
that when an alien who has been ordered removed is not in
fact removed during the 90-day statutory “removal period,”
that alien “may be detained beyond the removal period”
in the discretion of the Attorney General. The Court in
Zadvydas read § 1231 to authorize continued detention of an
alien following the 90-day removal period for only such time
as is reasonably necessary to secure the alien’s removal.
533 U. S., at 699.
But Zadvydas is materially different from the present case
in two respects.
First, in Zadvydas, the aliens challenging their detention
following final orders of deportation were ones for whom re-
moval was “no longer practically attainable.” Id., at 690.
The Court thus held that the detention there did not serve
its purported immigration purpose. Ibid. In so holding,
the Court rejected the Government’s claim that, by detain-
ing the aliens involved, it could prevent them from fleeing
prior to their removal. The Court observed that where, as
there, “detention’s goal is no longer practically attainable,
detention no longer bears a reasonable relation to the pur-
pose for which the individual was committed.” Ibid. (inter-
nal quotation marks and citation omitted).10
In the present case, the statutory provision at issue gov-
erns detention of deportable criminal aliens pending their
10 The dissent denies this point, insisting that the detention at issue in
Zadvydas actually did bear a reasonable relation to its immigration pur-
pose. Post, at 561 (opinion of Souter, J.) (“[T]he statute in Zadvydas
. . . served the purpose of preventing aliens . . . from fleeing prior to
actual deportation”).

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528 DEMORE v. KIM
Opinion of the Court
removal proceedings. Such detention necessarily serves
the purpose of preventing deportable criminal aliens from
fleeing prior to or during their removal proceedings, thus
increasing the chance that, if ordered removed, the aliens
will be successfully removed. Respondent disagrees, ar-
guing that there is no evidence that mandatory detention
is necessary because the Government has never shown that
individualized bond hearings would be ineffective. See
Brief for Respondent 14. But as discussed above, see supra,
at 519–520, in adopting § 1226(c), Congress had before it evi-
dence suggesting that permitting discretionary release of
aliens pending their removal hearings would lead to large
numbers of deportable criminal aliens skipping their hear-
ings and remaining at large in the United States unlawfully.
Respondent argues that these statistics are irrelevant and
do not demonstrate that individualized bond hearings “are
ineffective or burdensome.” Brief for Respondent 33–40.
It is of course true that when Congress enacted § 1226, indi-
vidualized bail determinations had not been tested under op-
timal conditions, or tested in all their possible permutations.
But when the Government deals with deportable aliens, the
Due Process Clause does not require it to employ the least
burdensome means to accomplish its goal. The evidence
Congress had before it certainly supports the approach it
selected even if other, hypothetical studies might have sug-
gested different courses of action. Cf., e. g., Los Angeles v.
Alameda Books, Inc., 535 U. S. 425, 436–437 (2002); Flores,
supra, at 315 (“It may well be that other policies would be
even better, but ‘we are [not] a legislature charged with
formulating public policy’ ” (quoting Schall v. Martin, 467
U. S. 253, 281 (1984))).
Zadvydas is materially different from the present case in
a second respect as well. While the period of detention at
issue in Zadvydas was “indefinite” and “potentially perma-
nent,” 533 U. S., at 690–691, the detention here is of a much
shorter duration.

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Opinion of the Court
Zadvydas distinguished the statutory provision it was
there considering from § 1226 on these very grounds, noting
that “post-removal-period detention, unlike detention pend-
ing a determination of removability . . . , has no obvious
termination point.” Id., at 697 (emphasis added). Under
§1226(c), not only does detention have a definite termination
point, in the majority of cases it lasts for less than the 90
days we considered presumptively valid in Zadvydas.11 The
Executive Office for Immigration Review has calculated that,
in 85% of the cases in which aliens are detained pursuant to
§ 1226(c), removal proceedings are completed in an average
time of 47 days and a median of 30 days. Brief for Petition-
ers 39–40. In the remaining 15% of cases, in which the alien
appeals the decision of the immigration judge to the Board
of Immigration Appeals, appeal takes an average of four
months, with a median time that is slightly shorter. Id., at
40.12
These statistics do not include the many cases in which
removal proceedings are completed while the alien is still
serving time for the underlying conviction. Id., at 40,
11 The dissent concedes that “[t]he scheme considered in Zadvydas did
not provide review immediately . . . . [C]ustody review hearings usually
occurred within three months of a transfer to a postorder detention unit.”
Post, at 555, n. 11 (opinion of Souter, J.). Yet, in discussing the present
case, the dissent insists that “the due process requirement of an individu-
alized finding of necessity applies to detention periods shorter than” re-
spondent’s. Post, at 568, n. 24 (citing Schall v. Martin, 467 U. S. 253, 270,
276–277 (1984), in which “the detainee was entitled to a hearing” when
threatened with “a maximum detention period of 17 days”). The dissent
makes no attempt to reconcile its suggestion that aliens are entitled to an
immediate hearing with the holding in Zadvydas permitting aliens to be
detained for several months prior to such a hearing.
12 The very limited time of the detention at stake under § 1226(c) is not
missed by the dissent. See post, at 568 (opinion of Souter, J.) (“Success-
ful challenges often require several months”); ibid. (considering “[t]he po-
tential for several months [worth] of confinement”); but see post, at 549
(“potentially lengthy detention”).

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530 DEMORE v. KIM
Opinion of the Court
n. 17.13 In those cases, the aliens involved are never sub-
jected to mandatory detention at all. In sum, the detention
at stake under § 1226(c) lasts roughly a month and a half in
the vast majority of cases in which it is invoked, and about
five months in the minority of cases in which the alien
chooses to appeal.14 Respondent was detained for some-
13 Congress has directed the INS to identify and track deportable crimi-
nal aliens while they are still in the criminal justice system, and to com-
plete removal proceedings against them as promptly as possible. See
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132,
§§ 432, 438(a), 110 Stat. 1273–1276; Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996, Pub. L. 104–208, §§ 326, 329, 110 Stat.
3009–630 to 3009–631 (codified at 8 U. S. C. § 1228). The INS therefore
established the Institutional Hearing Program (IHP) (subsequently sub-
sumed under the “Institutional Removal Program”). By 1997, the Gen-
eral Accounting Office found that nearly half of all deportable criminal
aliens’ cases were completed through the IHP prior to the aliens’ release
from prison. See General Accounting Office, Report to the Chairman,
Subcommittee on Immigration and Claims of the House Committee on the
Judiciary, INS’ Efforts to Remove Imprisoned Aliens Continue to Need
Improvement 10, Fig. 1 (Oct. 1998). The report urged, however, that the
INS needed to improve its operations in order to complete removal pro-
ceedings against all deportable criminal aliens before their release. Id.,
at 13. Should this come to pass, of course, § 1226(c) and the temporary
detention it mandates would be rendered obsolete.
14 Prior to the enactment of § 1226(c), when the vast majority of deport-
able criminal aliens were not detained during their deportation proceed-
ings, many filed frivolous appeals in order to delay their deportation. See
S. Rep. 104–48, at 2 (“Delays can earn criminal aliens more than work
permits and wages—if they delay long enough they may even obtain U. S.
citizenship”). Cf. Zadvydas, 533 U. S., at 713 (Kennedy, J., dissenting)
(“[C]ourt ordered release cannot help but encourage dilatory and obstruc-
tive tactics by aliens”). Respondent contends that the length of detention
required to appeal may deter aliens from exercising their right to do so.
Brief for Respondent 32. As we have explained before, however, “the
legal system . . . is replete with situations requiring the making of difficult
judgments as to which course to follow,” and, even in the criminal context,
there is no constitutional prohibition against requiring parties to make
such choices. McGautha v. California, 402 U. S. 183, 213 (1971) (internal
quotation marks omitted); accord, Chaffin v. Stynchcombe, 412 U. S. 17,
30–31 (1973).

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Kennedy, J., concurring
what longer than the average—spending six months in INS
custody prior to the District Court’s order granting habeas
relief, but respondent himself had requested a continuance
of his removal hearing.15
For the reasons set forth above, respondent’s claim must
fail. Detention during removal proceedings is a constitu-
tionally permissible part of that process. See, e. g., Wong
Wing, 163 U. S., at 235 (“We think it clear that detention, or
temporary confinement, as part of the means necessary to
give effect to the provisions for the exclusion or expulsion of
aliens would be valid”); Carlson v. Landon, 342 U. S. 524
(1952); Reno v. Flores, 507 U. S. 292 (1993). The INS deten-
tion of respondent, a criminal alien who has conceded that
he is deportable, for the limited period of his removal pro-
ceedings, is governed by these cases. The judgment of the
Court of Appeals is
Reversed.
Justice Kennedy, concurring.
While the justification for 8 U. S. C. § 1226(c) is based upon
the Government’s concerns over the risks of flight and dan-
ger to the community, ante, at 518–521, the ultimate purpose
behind the detention is premised upon the alien’s deportabil-
ity. As a consequence, due process requires individualized
procedures to ensure there is at least some merit to the Im-
migration and Naturalization Service’s (INS) charge and,
therefore, sufficient justification to detain a lawful perma-
nent resident alien pending a more formal hearing. See
Zadvydas v. Davis, 533 U. S. 678, 690 (2001) (“[W]here deten-
tion’s goal is no longer practically attainable, detention no
longer bears a reasonable relation to the purpose for which
15 Respondent was held in custody for three months before filing his
habeas petition. His removal hearing was scheduled to occur two months
later, but respondent requested and received a continuance to obtain docu-
ments relevant to his withholding application. See Brief for Respondent
9, n. 12.

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532 DEMORE v. KIM
Kennedy, J., concurring
the individual was committed” (internal quotation marks and
brackets omitted)); id., at 718 (Kennedy, J., dissenting)
(“Liberty under the Due Process Clause includes protection
against unlawful or arbitrary personal restraint or deten-
tion”). If the Government cannot satisfy this minimal,
threshold burden, then the permissibility of continued deten-
tion pending deportation proceedings turns solely upon the
alien’s ability to satisfy the ordinary bond procedures—
namely, whether if released the alien would pose a risk of
flight or a danger to the community. Id., at 721 (Kennedy,
J., dissenting).
As the Court notes, these procedures were apparently
available to respondent in this case. Respondent was enti-
tled to a hearing in which he could have “raise[d] any non-
frivolous argument available to demonstrate that he was
not properly included in a mandatory detention category.”
Ante, at 514, and n. 3 (citing 8 CFR § 3.19(h)(2)(ii) (2002);
Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999)). Had he
prevailed in such a proceeding, the Immigration Judge then
would have had to determine if respondent “could be consid-
ered . . . for release under the general bond provisions” of
§ 1226(a). Id., at 809. Respondent, however, did not seek
relief under these procedures, and the Court had no occasion
here to determine their adequacy. Ante, at 514, n. 3.
For similar reasons, since the Due Process Clause pro-
hibits arbitrary deprivations of liberty, a lawful permanent
resident alien such as respondent could be entitled to an indi-
vidualized determination as to his risk of flight and danger-
ousness if the continued detention became unreasonable or
unjustified. Zadvydas, 533 U. S., at 684–686; id., at 721
(Kennedy, J., dissenting) (“[A]liens are entitled to be free
from detention that is arbitrary or capricious”). Were there
to be an unreasonable delay by the INS in pursuing and com-
pleting deportation proceedings, it could become necessary
then to inquire whether the detention is not to facilitate de-
portation, or to protect against risk of flight or dangerous-

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533 Cite as: 538 U. S. 510 (2003)
Opinion of O’Connor, J.
ness, but to incarcerate for other reasons. That is not a
proper inference, however, either from the statutory scheme
itself or from the circumstances of this case. The Court’s
careful opinion is consistent with these premises, and I join
it in full.
Justice O’Connor, with whom Justice Scalia and Jus-
tice Thomas join, concurring in part and concurring in the
judgment.
I join all but Part I of the Court’s opinion because, a major-
ity having determined there is jurisdiction, I agree with the
Court’s resolution of respondent’s challenge on the merits.
I cannot join Part I because I believe that 8 U. S. C. § 1226(e)
unequivocally deprives federal courts of jurisdiction to set
aside “any action or decision” by the Attorney General in
detaining criminal aliens under § 1226(c) while removal pro-
ceedings are ongoing. That is precisely the nature of the
action before us.
I
I begin with the text of the statute:
“The Attorney General’s discretionary judgment re-
garding the application of this section shall not be sub-
ject to review. No court may set aside any action or
decision by the Attorney General under this section
regarding the detention or release of any alien or the
grant, revocation, or denial of bond or parole.” § 1226(e)
(emphasis added).
There is no dispute that after respondent’s release from
prison in 1999, the Attorney General detained him “under
this section,” i. e., under § 1226. And, the action of which
respondent complains is one “regarding the detention or re-
lease of a[n] alien or the grant, revocation, or denial of bond
or parole.” § 1226(e). In my view, the only plausible read-
ing of § 1226(e) is that Congress intended to prohibit federal
courts from “set[ting] aside” the Attorney General’s decision

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534 DEMORE v. KIM
Opinion of O’Connor, J.
to deem a criminal alien such as respondent ineligible for
release during the limited duration of his or her removal
proceedings.
I recognize both the “strong presumption in favor of judi-
cial review of administrative action” and our “longstanding
rule requiring a clear statement of congressional intent to
repeal habeas jurisdiction.” INS v. St. Cyr, 533 U. S. 289,
298 (2001). I also acknowledge that Congress will not be
deemed to have repealed habeas jurisdiction in the absence
of a specific and unambiguous statutory directive to that ef-
fect. See id., at 312–313; Ex parte Yerger, 8 Wall. 85, 105
(1869). Here, however, the signal sent by Congress in
enacting § 1226(e) could not be clearer: “No court may set
aside any action or decision . . . regarding the detention or
release of any alien.” (Emphasis added.) There is simply
no reasonable way to read this language other than as pre-
cluding all review, including habeas review, of the Attorney
General’s actions or decisions to detain criminal aliens pursu-
ant to § 1226(c).
In St. Cyr, the Court held that certain provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) and the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (IIRIRA) do not strip fed-
eral courts of their jurisdiction to review an alien’s habeas
claim that he or she is eligible for a waiver of deportation.
533 U. S., at 312. I dissented in that case, and continue to
believe it was wrongly decided. Nothing in St. Cyr, how-
ever, requires that we ignore the plain language and clear
meaning of § 1226(e).
In St. Cyr, the Court stressed the significance of Congress’
use of the term “judicial review” in each of the jurisdictional-
limiting provisions at issue. In concluding that Congress
had not intended to limit habeas jurisdiction by limiting “ju-
dicial review,” the Court reasoned as follows:
“The term ‘judicial review’ or ‘jurisdiction to review’ is
the focus of each of these three provisions. In the im-

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535 Cite as: 538 U. S. 510 (2003)
Opinion of O’Connor, J.
migration context, ‘judicial review’ and ‘habeas corpus’
have historically distinct meanings. See Heikkila v.
Barber, 345 U. S. 229 (1953). In Heikkila, the Court
concluded that the finality provisions at issue ‘pre-
clud[ed] judicial review’ to the maximum extent possible
under the Constitution, and thus concluded that the [Ad-
ministrative Procedure Act] was inapplicable. Id., at
235. Nevertheless, the Court reaffirmed the right to
habeas corpus. Ibid. Noting that the limited role
played by the courts in habeas corpus proceedings was
far narrower than the judicial review authorized by the
APA, the Court concluded that ‘it is the scope of inquiry
on habeas corpus that differentiates’ habeas review from
‘judicial review.’ ” Id., at 311–312.
In this case, however, § 1226(e) does not mention any limita-
tions on “judicial review.” To be sure, the first sentence of
§ 1226(e) precludes “review” of the Attorney General’s “dis-
cretionary judgment[s]” to detain aliens under § 1226(c).
But the second sentence is not so limited, and states unequiv-
ocally that “[n]o court may set aside any action or decision”
to detain an alien under § 1226(c). It cannot seriously be
maintained that the second sentence employs a term of art
such that “no court” does not really mean “no court,” or that
a decision of the Attorney General may not be “set aside” in
actions filed under the Immigration and Naturalization Act
but may be set aside on habeas review.
Congress’ use of the term “Judicial review” as the title of
§ 1226(e) does not compel a different conclusion. As the
Court stated in St. Cyr, “a title alone is not controlling,” id.,
at 308, because the title of a statute has no power to give
what the text of the statute takes away. Where as here the
statutory text is clear, “ ‘the title of a statute . . . cannot limit
the plain meaning of the text.’ ” Pennsylvania Dept. of
Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (quoting
Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528–
529 (1947)).

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536 DEMORE v. KIM
Opinion of O’Connor, J.
The Court also focused in St. Cyr on the absence of any
language in the relevant statutory provisions making explicit
reference to habeas review under 28 U. S. C. § 2241. See 533
U. S., at 313, n. 36. This statutory silence spoke volumes,
the Court reasoned, in light of the “historic use of § 2241
jurisdiction as a means of reviewing deportation and exclu-
sion orders,” ibid. In contrast, there is no analogous history
of routine reliance on habeas jurisdiction to challenge the
detention of aliens without bail pending the conclusion of re-
moval proceedings. We have entertained such challenges
only twice, and neither was successful on the merits. See
Reno v. Flores, 507 U. S. 292 (1993); Carlson v. Landon, 342
U. S. 524 (1952). See also Neuman, Habeas Corpus, Execu-
tive Detention, and the Removal of Aliens, 98 Colum. L. Rev.
961, 1067, n. 120 (1998) (distinguishing detention pursuant to
a final order of removal from the interlocutory detention at
issue here). Congress’ failure to mention § 2241 in this con-
text therefore lacks the significance that the Court accorded
Congress’ silence on the issue in St. Cyr. In sum, nothing
in St. Cyr requires us to interpret 8 U. S. C. § 1226(e) to mean
anything other than what its plain language says.
I recognize that the two Courts of Appeals that have
considered the issue have held that § 1226(e) does not pre-
clude habeas claims such as respondent’s. See Patel v. Zem-
ski, 275 F. 3d 299 (CA3 2001); Parra v. Perryman, 172 F. 3d
954 (CA7 1999). In Parra, the Seventh Circuit held that
§ 1226(e) does not bar “challenges to § 1226(c) itself, as op-
posed to decisions implementing that subsection.” Id., at
957. Though the Court’s opinion today relies heavily on this
distinction, I see no basis for importing it into the plain lan-
guage of the statute.
The Seventh Circuit sought support from our decision in
Reno v. American-Arab Anti-Discrimination Comm., 525
U. S. 471 (1999) (AADC), but our holding there supports my
reading of § 1226(e). In AADC, the Court construed a stat-
ute that sharply limits review of claims “arising from the

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Opinion of O’Connor, J.
decision or action by the Attorney General to commence pro-
ceedings, adjudicate cases, or execute removal orders against
any alien under this [Act].” 8 U. S. C. § 1252(g) (1994 ed.,
Supp. III). The Court concluded that this provision imposes
jurisdictional limits only on claims addressing one of the
three “ ‘decision[s] or action[s]’ ” specifically enumerated in
the statute. AADC, supra, at 482. Nowhere in AADC did
the Court suggest, however, that the statute’s jurisdictional
limits might not apply depending on the particular grounds
raised by an alien for challenging the Attorney General’s de-
cisions or actions in these three areas. AADC therefore
provides no support for imposing artificial limitations on the
broad scope of 8 U. S. C. § 1226(e).
II
Because § 1226(e) plainly deprives courts of federal habeas
jurisdiction over claims that mandatory detention under
§ 1226(c) is unconstitutional, one could conceivably argue that
such a repeal violates the Suspension Clause, which provides
as follows: “The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Inva-
sion the public Safety may require it.” U. S. Const., Art. I,
§ 9, cl. 2. The clarity of § 1226(e)’s text makes such a ques-
tion unavoidable, unlike in St. Cyr, where the Court invoked
the doctrine of constitutional doubt and interpreted the rele-
vant provisions of AEDPA and IIRIRA not to repeal habeas
jurisdiction. St. Cyr, supra, at 314; see also Seminole Tribe
of Fla. v. Florida, 517 U. S. 44, 57, n. 9 (1996) (where the
text of a statute is clear, the “preference for avoiding a con-
stitutional question” cannot be invoked to defeat the plainly
expressed intent of Congress).
In my view, any argument that § 1226(e) violates the Sus-
pension Clause is likely unavailing. St. Cyr held that “at
the absolute minimum, the Suspension Clause protects the
writ ‘as it existed in 1789.’ ” 533 U. S., at 301 (quoting
Felker v. Turpin, 518 U. S. 651, 663–664 (1996)). The consti-

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538 DEMORE v. KIM
Opinion of O’Connor, J.
tutionality of § 1226(e)’s limitation on habeas review there-
fore turns on whether the writ was generally available to
those in respondent’s position in 1789 (or, possibly, there-
after) to challenge detention during removal proceedings.
Admittedly, discerning the relevant habeas corpus law for
purposes of Suspension Clause analysis is a complex task.
Nonetheless, historical evidence suggests that respondent
would not have been permitted to challenge his temporary
detention pending removal until very recently. Because co-
lonial America imposed few restrictions on immigration,
there is little case law prior to that time about the availabil-
ity of habeas review to challenge temporary detention pend-
ing exclusion or deportation. See St. Cyr, supra, at 305.
The English experience, however, suggests that such review
was not available:
“In England, the only question that has ever been made
in regard to the power to expel aliens has been whether
it could be exercised by the King without the consent of
Parliament. It was formerly exercised by the King, but
in later times by Parliament, which passed several acts
on the subject between 1793 and 1848. Eminent Eng-
lish judges, sitting in the Judicial Committee of the
Privy Council, have gone very far in supporting the ex-
clusion or expulsion, by the executive authority of a col-
ony, of aliens having no absolute right to enter its terri-
tory or to remain therein.” Fong Yue Ting v. United
States, 149 U. S. 698, 709 (1893) (citations omitted).
In this country, Congress did not pass the first law regulat-
ing immigration until 1875. See 18 Stat. (pt. 3) 477. In the
late 19th century, as statutory controls on immigration tight-
ened, the number of challenges brought by aliens to Govern-
ment deportation or exclusion decisions also increased. See
St. Cyr, supra, at 305–306. Because federal immigration
laws from 1891 until 1952 made no express provision for judi-
cial review, what limited review existed took the form of pe-

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titions for writs of habeas corpus. See, e. g., Ekiu v. United
States, 142 U. S. 651 (1892); Fong Yue Ting v. United States,
supra; The Japanese Immigrant Case, 189 U. S. 86 (1903);
Chin Yow v. United States, 208 U. S. 8 (1908); Kwock Jan Fat
v. White, 253 U. S. 454 (1920); Ng Fung Ho v. White, 259 U. S.
276 (1922). Though the Court was willing to entertain these
habeas challenges to Government exclusion and deportation
decisions, in no case did the Court question the right of immi-
gration officials to temporarily detain aliens while exclusion
or deportation proceedings were ongoing.
By the mid-20th century, the number of aliens in deporta-
tion proceedings being released on parole rose considerably.
See, e. g., Carlson v. Landon, 342 U. S., at 538, n. 31. None-
theless, until 1952 habeas corpus petitions remained the only
means by which deportation orders could be challenged.
Heikkila v. Barber, 345 U. S. 229, 236–237 (1953). Under
this regime, an alien who had been paroled but wished to
challenge a final deportation order had to place himself in
Government custody before filing a habeas petition challeng-
ing the order. Bridges v. Wixon, 326 U. S. 135, 140 (1945).
Given this, it is not surprising that the Court was not faced
with numerous habeas claims brought by aliens seeking re-
lease from detention pending deportation.
So far as I am aware, not until 1952 did we entertain such
a challenge. See Carlson v. Landon, supra. And there, we
reaffirmed the power of Congress to order the temporary
detention of aliens during removal proceedings. Id., at 538.
In Reno v. Flores, we likewise rejected a similar challenge
to such detention. And, Flores was a wide-ranging class
action in which 28 U. S. C. § 2241 was but one of several stat-
utes invoked as the basis for federal jurisdiction. 507 U. S.,
at 296. All in all, it appears that in 1789, and thereafter
until very recently, the writ was not generally available to
aliens to challenge their detention while removal proceed-
ings were ongoing.

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540 DEMORE v. KIM
Opinion of Souter, J.
Because a majority of the Court has determined that juris-
diction exists over respondent’s claims, I need not conclu-
sively decide the thorny question whether 8 U. S. C. § 1226(e)
violates the Suspension Clause. For present purposes, it is
enough to say that in my view, § 1226(e) unambiguously bars
habeas challenges to the Attorney General’s decisions re-
garding the temporary detention of criminal aliens under
§ 1226(c) pending removal. That said, because a majority of
the Court has determined that there is jurisdiction, and be-
cause I agree with the majority’s resolution of the merits
of respondent’s challenge, I join in all but Part I of the
Court’s opinion.
Justice Souter, with whom Justice Stevens and Jus-
tice Ginsburg join, concurring in part and dissenting in
part.
Respondent Kim is an alien lawfully admitted to perma-
nent residence in the United States. He claims that the
Constitution forbids the Immigration and Naturalization
Service (INS) from detaining him under 8 U. S. C. § 1226(c)
unless his detention serves a government interest, such as
preventing flight or danger to the community. He contends
that due process affords him a right to a hearing before an
impartial official,1 giving him a chance to show that he poses
no risk that would justify confining him between the moment
the Government claims he is removable and the adjudication
of the Government’s claim.
I join Part I of the Court’s opinion, which upholds federal
jurisdiction in this case, but I dissent from the Court’s dispo-
1 Kim does not claim a hearing before any specific official. The general-
ity of his claim may reflect the fact, noted just below, that the INS released
him on bond without any hearing whatsoever after the District Court
entered its judgment in this case. App. 11–13. Accordingly, there is no
occasion to enquire whether due process requires access to any particular
arbiter, such as one unaffiliated with the INS. I therefore use the neutral
term “impartial” in describing the hearing Kim claims.

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sition on the merits. The Court’s holding that the Constitu-
tion permits the Government to lock up a lawful permanent
resident of this country when there is concededly no reason
to do so forgets over a century of precedent acknowledging
the rights of permanent residents, including the basic liberty
from physical confinement lying at the heart of due process.
The INS has never argued that detaining Kim is necessary
to guarantee his appearance for removal 2 proceedings or to
protect anyone from danger in the meantime. Instead,
shortly after the District Court issued its order in this case,
the INS, sua sponte and without even holding a custody
hearing, concluded that Kim “would not be considered a
threat” and that any risk of flight could be met by a bond of
$5,000. App. 11–13. He was released soon thereafter, and
there is no indication that he is not complying with the terms
of his release.
The Court’s approval of lengthy mandatory detention can
therefore claim no justification in national emergency or any
risk posed by Kim particularly. The Court’s judgment is
unjustified by past cases or current facts, and I respectfully
dissent.
I
At the outset, there is the Court’s mistaken suggestion
that Kim “conceded” his removability, ante, at 514, 523, and
n. 6, 531. The Court cites no statement before any court
conceding removability, and I can find none. At the first op-
portunity, Kim applied to the Immigration Court for with-
holding of removal, Brief for Respondent 9, n. 12, and he
2 In 1996, Congress combined “deportation” and “exclusion” proceedings
into a single “removal” proceeding. Illegal Immigration Reform and Im-
migrant Responsibility Act of 1996, Pub. L. 104–208, § 304(a), 110 Stat.
3009–587, adding 8 U. S. C. § 1229a. Because this case requires consider-
ation of cases decided both before and after 1996, this opinion refers to
“removal” generally but, where the context requires, distinguishes be-
tween “deportation” of aliens who have entered the United States and
“exclusion” of aliens who seek entry.

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represents that he intends to assert that his criminal convic-
tions are not for removable offenses and that he is independ-
ently eligible for statutory relief from removal, id., at 11–12;
see also ante, at 522–523, n. 6. In his brief before the Ninth
Circuit, Kim stated that his removability was “an open ques-
tion,” that he was “still fighting [his] removal adminis-
tratively,” and that the Immigration Court had yet to
hold a merits hearing. Brief of Petitioner-Appellee in
No. 99–17373 (CA9), pp. 4, 13–14, 24, 33–34, and n. 28, 48–49.
At oral argument here, his counsel stated that Kim was chal-
lenging his removability. See Tr. of Oral Arg. 36–38, 44.
The suggestion that Kim should have contested his remov-
ability in this habeas corpus petition, ante, at 522–523, and
n. 6, misses the point that all he claims, or could now claim,
is that his detention pending removal proceedings violates
the Constitution. Challenges to removability itself, and ap-
plications for relief from removal, are usually submitted in
the first instance to an immigration judge. See 8 U. S. C.
§ 1229a(a)(3). The Immigration Judge had not yet held an
initial hearing on the substantive issue of removability when
Kim filed his habeas petition in the District Court, even
though Kim had been detained for over three months under
§ 1226(c). If Kim’s habeas corpus petition had claimed “that
he himself was not ‘deportable,’ ” as the Court suggests it
should have, ante, at 522, the District Court would probably
have dismissed the claim as unexhausted. E. g., Espinal v.
Filion, No. 00–CIV–2647–HB–JCF, 2001 WL 395196 (SDNY,
Apr. 17, 2001). Kim did not, therefore, “conced[e] that he is
deportable,” ante, at 531, by challenging removability before
the Immigration Judge and challenging detention in a fed-
eral court.3
3 The Court’s effort to explain its reference to a nonexistent concession,
ante, at 522–523, n. 6, seeks to gain an advantage from the fact that the
Immigration and Nationality Act uses the word “deportable” in various
ways, one being to describe classes of aliens who may be removed if the
necessary facts are proven, e. g., § 1227(a), and another to describe aliens
who have actually been adjudged as being in the United States unlawfully,

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Kim may continue to claim the benefit of his current status
unless and until it is terminated by a final order of removal.
8 CFR § 1.1(p) (2002). He may therefore claim the due proc-
ess to which a lawful permanent resident is entitled.
II
A
It has been settled for over a century that all aliens within
our territory are “persons” entitled to the protection of the
Due Process Clause. Aliens “residing in the United States
for a shorter or longer time, are entitled, so long as they are
permitted by the government of the United States to remain
in the country, to the safeguards of the Constitution, and to
the protection of the laws, in regard to their rights of person
and of property, and to their civil and criminal responsibil-
ity.” Fong Yue Ting v. United States, 149 U. S. 698, 724
(1893). The Japanese Immigrant Case, 189 U. S. 86, 100–
101 (1903), settled any lingering doubt that the Fifth Amend-
ment’s Due Process Clause gives aliens a right to challenge
mistreatment of their person or property.
The constitutional protection of an alien’s person and prop-
erty is particularly strong in the case of aliens lawfully
e. g., § 1229b. An alien is not adjudged “deportable” until an order enters
“concluding that the alien is deportable or ordering deportation,” and such
an order is not final until affirmed by the Board of Immigration Appeals
or until the time expires for seeking review. §§ 1101(a)(47)(A)–(B). To
suggest, as the Court seems to do, that an alien has conceded removability
simply because he does not dispute that he has been charged with facts
that will render him removable if those facts are later proven is like saying
that a civil defendant has conceded liability by failing to move to dismiss
the complaint under Federal Rule of Civil Procedure 12(b)(6) or that a
criminal defendant has conceded guilt by failing to dispute the validity of
the indictment. But even if the Court’s reasoning were sound, it would
not cover Kim’s situation, for he has stated (and the Court acknowledges)
his intent to contest the sufficiency of his criminal convictions as a basis
for removal. Ante, at 522–523, n. 6. This discussion, which the Court
calls a “detour,” ante, at 523, is necessary only because of the Court’s
insistence in stating that Kim conceded that he is “deportable.” Ante, at
513, 522, 531.

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admitted to permanent residence (LPRs). The immigration
laws give LPRs the opportunity to establish a life perma-
nently in this country by developing economic, familial, and
social ties indistinguishable from those of a citizen. In fact,
the law of the United States goes out of its way to encour-
age just such attachments by creating immigration prefer-
ences for those with a citizen as a close relation, 8 U. S. C.
§§ 1153(a)(1), (3)–(4), and those with valuable professional
skills or other assets promising benefits to the United
States, §§ 1153(b)(1)–(5).
Once they are admitted to permanent residence, LPRs
share in the economic freedom enjoyed by citizens: they may
compete for most jobs in the private and public sectors with-
out obtaining job-specific authorization, and apart from the
franchise, jury duty, and certain forms of public assistance,
their lives are generally indistinguishable from those of
United States citizens. That goes for obligations as well as
opportunities. Unlike temporary, nonimmigrant aliens, who
are generally taxed only on income from domestic sources or
connected with a domestic business, 26 U. S. C. § 872, LPRs,
like citizens, are taxed on their worldwide income, 26 CFR
§§ 1.1–1(b), 1.871–1(a), 1.871–2(b) (2002). Male LPRs be-
tween the ages of 18 and 26 must register under the Selec-
tive Service Act of 1948, ch. 625, Tit. I, § 3, 62 Stat. 605.4
“Resident aliens, like citizens, pay taxes, support the econ-
omy, serve in the Armed Forces, and contribute in myriad
other ways to our society.” In re Griffiths, 413 U. S. 717,
722 (1973). And if they choose, they may apply for full
membership in the national polity through naturalization.
The attachments fostered through these legal mechanisms
are all the more intense for LPRs brought to the United
States as children. They grow up here as members of the
society around them, probably without much touch with their
country of citizenship, probably considering the United
4 Although an LPR may seek exemption or discharge from registration
on the grounds of alienage, such an action permanently bars the LPR from
seeking United States citizenship. 8 U. S. C. § 1426(a).

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States as home just as much as a native-born, younger
brother or sister entitled to United States citizenship.
“[M]any resident aliens have lived in this country longer and
established stronger family, social, and economic ties here
than some who have become naturalized citizens.” Woodby
v. INS, 385 U. S. 276, 286 (1966). Kim is an example. He
moved to the United States at the age of six and was lawfully
admitted to permanent residence when he was eight. His
mother is a citizen, and his father and brother are LPRs.
LPRs in Kim’s situation have little or no reason to feel or to
establish firm ties with any place besides the United States.5
Our decisions have reflected these realities. As early as
1892, we addressed an issue of statutory construction with
the realization that “foreigners who have become domiciled
in a country other than their own, acquire rights and must
discharge duties in many respects the same as possessed by
and imposed upon the citizens of that country, and no restric-
tion on the footing upon which such persons stand by reason
of their domicil of choice . . . is to be presumed.” Lau Ow
Bew v. United States, 144 U. S. 47, 61–62.6 Fifty years later
in dealing with a question of evidentiary competence in Brid-
ges v. Wixon, 326 U. S. 135 (1945), we said that “the notions
of fairness on which our legal system is founded” applied
with full force to “aliens whose roots may have become, as
5 See also Welch v. Ashcroft, 293 F. 3d 213, 215 (CA4 2002) (detainee
obtained LPR status at age 10); Hoang v. Comfort, 282 F. 3d 1247, 1252–
1253 (CA10 2002) (ages 3 and 15), cert. pending, No. 01–1616 [Reporter’s
Note: See post, p. 1010].
6 In The Venus, 8 Cranch 253 (1814), we held that property belonging to
American citizens who were resident in England during the War of 1812
was to be treated as belonging to English proprietors for purposes of prize
law. We stated that, as permanent residents of England, the American
citizens were “bound, by such residence, to the society of which they are
members, subject to the laws of the state, and owing a qualified allegiance
thereto; they are obliged to defend it, (with an exception in favor of such
a subject, in relation to his native country) in return for the protection it
affords them, and the privileges which the laws bestow upon them as sub-
jects,” id., at 282.

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546 DEMORE v. KIM
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they are in the present case, deeply fixed in this land,” id.,
at 154. And in Kwong Hai Chew v. Colding, 344 U. S. 590
(1953), we read the word “excludable” in a regulation as hav-
ing no application to LPRs, since such a reading would have
been questionable given “a resident alien’s constitutional
right to due process.” Id., at 598–599.7 Kwong Hai Chew
adopted the statement of Justice Murphy, concurring in
Bridges, that “ ‘once an alien lawfully enters and resides in
this country he becomes invested with the rights guaranteed
by the Constitution to all people within our borders. Such
rights include those protected by the First and the Fifth
Amendments and by the due process clause of the Four-
teenth Amendment. None of these provisions acknowledges
any distinction between citizens and resident aliens. They
extend their inalienable privileges to all “persons” and guard
against any encroachment on those rights by federal or state
authority.’ ” 344 U. S., at 596–597, n. 5 (quoting Bridges,
supra, at 161). See also United States v. Verdugo-Urquidez,
494 U. S. 259, 271 (1990) (“[A]liens receive constitutional pro-
tections when they have come within the territory of the
United States and developed substantial connections with
this country”); Woodby, supra, at 285 (holding that deporta-
tion orders must be supported by clear, unequivocal, and con-
vincing evidence owing to the “drastic deprivations that may
follow when a resident of this country is compelled by our
Government to forsake all the bonds formed here and go to
a foreign land where he often has no contemporary identifi-
cation”); Johnson v. Eisentrager, 339 U. S. 763, 770–771
(1950) (“The alien, to whom the United States has been tradi-
7 “Although the holding [in Kwong Hai Chew] was one of regulatory
interpretation, the rationale was one of constitutional law. Any doubts
that Chew recognized constitutional rights in the resident alien returning
from a brief trip abroad were dispelled by Rosenberg v. Fleuti, [374 U. S.
449 (1963),] where we described Chew as holding ‘that the returning resi-
dent alien is entitled as a matter of due process to a hearing on the charges
underlying any attempt to exclude him.’ 374 U. S., at 460.” Landon v.
Plasencia, 459 U. S. 21, 33 (1982).

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tionally hospitable, has been accorded a generous and as-
cending scale of rights as he increases his identity with our
society. . . . [A]t least since 1886, we have extended to the
person and property of resident aliens important constitu-
tional guaranties—such as the due process of law of the
Fourteenth Amendment”).
The law therefore considers an LPR to be at home in the
United States, and even when the Government seeks re-
moval, we have accorded LPRs greater protections than
other aliens under the Due Process Clause. In Landon v.
Plasencia, 459 U. S. 21 (1982), we held that a long-term resi-
dent who left the country for a brief period and was placed
in exclusion proceedings upon return was entitled to claim
greater procedural protections under that Clause than aliens
seeking initial entry. The LPR’s interest in remaining in
the United States is, we said, “without question, a weighty
one.” Id., at 34. See also Rosenberg v. Fleuti, 374 U. S. 449
(1963); Kwong Hai Chew, supra.
Although LPRs remain subject to the federal removal
power, that power may not be exercised without due process,
and any decision about the requirements of due process for
an LPR must account for the difficulty of distinguishing in
practical as well as doctrinal terms between the liberty in-
terest of an LPR and that of a citizen.8 In evaluating Kim’s
challenge to his mandatory detention under 8 U. S. C.
§ 1226(c), the only reasonable starting point is the traditional
doctrine concerning the Government’s physical confinement
of individuals.9
8 This case provides no occasion to determine the constitutionality of
mandatory detention of aliens other than LPRs.
9 The statement that “[i]n the exercise of its broad power over natural-
ization and immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens,” Mathews v. Diaz, 426 U. S. 67, 79–80
(1976), cannot be read to leave limitations on the liberty of aliens unre-
viewable. Ante, at 521–522. Diaz involved a federal statute that limited
eligibility for a federal medical insurance program to United States citi-
zens and LPRs who had been continuously resident in the United States

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B
Kim’s claim is a limited one: not that the Government may
not detain LPRs to ensure their appearance at removal hear-
for five years. 426 U. S., at 69–70. Reversing a lower court judgment
that this statute violated equal protection, we said this:
“In the exercise of its broad power over naturalization and immigration,
Congress regularly makes rules that would be unacceptable if applied to
citizens. The exclusion of aliens and the reservation of the power to de-
port have no permissible counterpart in the Federal Government’s power
to regulate the conduct of its own citizenry. The fact that an Act of Con-
gress treats aliens differently from citizens does not in itself imply that
such disparate treatment is ‘invidious.’ ” Id., at 79–80 (footnotes omitted).
Taken in full, the meaning of this paragraph is plain: through the exer-
cise of the deportation and exclusion power, Congress exposes aliens to a
treatment (expulsion) that cannot be imposed on citizens. The cases cited
in the footnotes to this paragraph accordingly all concern Congress’s
power to enact grounds of exclusion or deportation. Id., at 80, nn. 14–15
(citing Kleindienst v. Mandel, 408 U. S. 753 (1972); Galvan v. Press, 347
U. S. 522 (1954); and Harisiades v. Shaughnessy, 342 U. S. 580 (1952));
cf. ante, at 522 (quoting Diaz, supra, at 81, n. 17, in turn quoting Harisi-
ades). Nothing in Diaz addresses due process protection of liberty or
purports to sanction any particular limitation on the liberty of LPRs under
circumstances comparable to those here.
Even on its terms, the Diaz statement is dictum. We acknowledged
immediately that “[t]he real question presented by [Diaz] is not whether
discrimination between citizens and aliens is permissible; rather, it is
whether the statutory discrimination within the class of aliens—allowing
benefits to some aliens but not to others—is permissible.” 426 U. S., at 80.
Our holding that Congress could consider length of residence and immigra-
tion status in allocating medical insurance in no way suggests the exist-
ence of a federal power to imprison a long-term resident alien when the
Government concedes that there is no need to do so.
The Court does not explain why it believes the Diaz dictum to be rele-
vant to this case, other than to repeat it and identify prior instances of its
quotation. Ante, at 521–522. The Court resists calling the statement
“ ‘dictum,’ ” ante, at 521, but it does not deny that Diaz involved “discrimi-
nation within the class of aliens” rather than “discrimination between citi-
zens and aliens,” 426 U. S., at 80, thus making any suggestion about Con-
gress’s power to treat citizens and aliens differently unnecessary to the
holding. Nor does the Court deny that Diaz dealt with an equal protec-
tion challenge to the allocation of medical insurance and had nothing to

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ings, but that due process under the Fifth Amendment condi-
tions a potentially lengthy detention on a hearing and an
impartial decisionmaker’s finding that detention is necessary
to a governmental purpose. He thus invokes our repeated
decisions that the claim of liberty protected by the Fifth
Amendment is at its strongest when government seeks to
detain an individual. The Chief Justice wrote in 1987
that “[i]n our society liberty is the norm, and detention prior
to trial or without trial is the carefully limited exception.”
United States v. Salerno, 481 U. S. 739, 755. See also Reno
v. Flores, 507 U. S. 292, 316 (1993) (O’Connor, J., concurring)
(“The institutionalization of an adult by the government trig-
gers heightened, substantive due process scrutiny”); Foucha
v. Louisiana, 504 U. S. 71, 80 (1992) (“Freedom from bodily
restraint has always been at the core of the liberty protected
by the Due Process Clause from arbitrary governmental ac-
tion”); id., at 90 (Kennedy, J., dissenting) (“As incarceration
of persons is the most common and one of the most feared
instruments of state oppression and state indifference, we
ought to acknowledge at the outset that freedom from this
restraint is essential to the basic definition of liberty in the
Fifth and Fourteenth Amendments of the Constitution”).
Accordingly, the Fifth Amendment permits detention only
where “heightened, substantive due process scrutiny” finds
a “ ‘sufficiently compelling’ ” governmental need. Flores,
supra, at 316 (O’Connor, J., concurring) (quoting Salerno,
481 U. S., at 748). In deciding in Salerno that this principle
did not categorically bar pretrial detention of criminal de-
fendants without bail under the Bail Reform Act of 1984, it
was crucial that the statute provided that, “[i]n a full-blown
adversary hearing, the Government must convince a neutral
decisionmaker by clear and convincing evidence that no con-
ditions of release can reasonably assure the safety of the
community or any person.” Id., at 750 (citing 18 U. S. C.
say on the subject of the right of LPRs to protection of their liberty under
the Due Process Clause. See supra, at 543–547.

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550 DEMORE v. KIM
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§ 3142(f)). We stressed that the Act was not a “scattershot
attempt to incapacitate those who are merely suspected of ”
serious offenses, 481 U. S., at 750, and held that due process
allowed some pretrial detention because the Act confined it
to a sphere of real need: “[w]hen the Government proves by
clear and convincing evidence that an arrestee presents an
identified and articulable threat to an individual or the com-
munity.” Id., at 751; see also Foucha, supra, at 81 (calling
the pretrial detention statute in Salerno a “sharply focused
scheme”).
We have reviewed involuntary civil commitment statutes
the same way. In Addington v. Texas, 441 U. S. 418 (1979),
we held that a State could not civilly commit the mentally ill
without showing by “clear and convincing evidence” that the
person was dangerous to others, id., at 433. The elevated
burden of proof was demanded because “[l]oss of liberty calls
for a showing that the individual suffers from something
more serious than is demonstrated by idiosyncratic behav-
ior.” Id., at 427. The statutory deficiency was the same
in Foucha, where we held that Louisiana’s civil commitment
statute failed due process because the individual was denied
an “adversary hearing at which the State must prove by
clear and convincing evidence that he is demonstrably dan-
gerous to the community.” 504 U. S., at 81. See also id., at
88 (opinion of O’Connor, J.) (civil commitment depends on
a “necessary connection between the nature and purposes
of confinement”).
In addition to requiring a compelling reason for detention,
we held that the class of persons affected must be narrow
and, in pretrial-type lockup, the time must be no more than
what is reasonably necessary before the merits can be re-
solved. In the case of the Bail Reform Act, we placed
weight on the fact that the statute applied only to defendants
suspected of “the most serious of crimes,” Salerno, supra,
at 747; see also Foucha, supra, at 81, while the statute in
Kansas v. Hendricks, 521 U. S. 346 (1997), likewise provided

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only for confinement of “a limited subclass of dangerous per-
sons” who had committed “ ‘a sexually violent offense’ ” and
who suffered from “ ‘a mental abnormality or personality dis-
order’ ” portending “ ‘predatory acts of sexual violence,’ ” id.,
at 357 (quoting Kan. Stat. Ann. § 59–29a02(a) (1994)). Sa-
lerno relied on the restriction of detention “by the stringent
time limitations of the Speedy Trial Act,” 481 U. S., at 747,
whereas in Foucha, it was a fault that the statute did not
impose any comparable limitation, 504 U. S., at 82 (citing Sa-
lerno). See also Jackson v. Indiana, 406 U. S. 715, 738
(1972) (“At the least, due process requires that the nature
and duration of commitment bear some reasonable relation
to the purpose for which the individual is committed”).
The substantive demands of due process necessarily go
hand in hand with the procedural, and the cases insist at the
least on an opportunity for a detainee to challenge the reason
claimed for committing him. E. g., Hendricks, supra, at 357
(stating that civil commitment was permitted where “the
confinement takes place pursuant to proper procedures and
evidentiary standards”); Foucha, supra, at 81–82 (invalidat-
ing a statute under which “the State need prove nothing to
justify continued detention”); Salerno, supra, at 751 (“[T]he
procedures by which a judicial officer evaluates the likelihood
of future dangerousness are specifically designed to further
the accuracy of that determination”); Addington, supra, at
427 (requiring a heightened burden of proof “to impress the
factfinder with the importance of the decision and thereby
perhaps to reduce the chances that inappropriate commit-
ments will be ordered”).
These cases yield a simple distillate that should govern the
result here. Due process calls for an individual determina-
tion before someone is locked away. In none of the cases
cited did we ever suggest that the government could avoid
the Due Process Clause by doing what § 1226(c) does, by se-
lecting a class of people for confinement on a categorical basis
and denying members of that class any chance to dispute the

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necessity of putting them away. The cases, of course, would
mean nothing if citizens and comparable residents could be
shorn of due process by this sort of categorical sleight of
hand. Without any “full-blown adversary hearing” before
detention, Salerno, supra, at 750, or heightened burden of
proof, Addington, supra, or other procedures to show the
government’s interest in committing an individual, Foucha,
supra; Jackson, supra, procedural rights would amount to
nothing but mechanisms for testing group membership.
Cf. Foucha, supra, at 88 (opinion of O’Connor, J.) (“Nor
would it be permissible to treat all acquittees alike, without
regard for their particular crimes”). And if procedure could
be dispensed with so expediently, so presumably could the
substantive requirements that the class of detainees be nar-
row and the detention period strictly limited. Salerno,
supra; Hendricks, supra.
C
We held as much just two Terms ago in Zadvydas v. Davis,
533 U. S. 678 (2001), which stands for the proposition that
detaining an alien requires more than the rationality of a
general detention statute; any justification must go to the
alien himself. Zadvydas considered detention of two aliens,
Zadvydas and Ma, who had already been ordered removed
and therefore enjoyed no lawful immigration status. Their
cases arose because actual removal appeared unlikely owing
to the refusal of their native countries to accept them, with
the result that they had been detained not only for the stand-
ard 90-day removal period, during which time most removal
orders are executed, but beyond that period because the
INS considered them to be a “ ‘risk to the community’ ” and
“ ‘unlikely to comply with the order of removal.’ ” Id., at
682 (quoting 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V)).
Zadvydas and Ma challenged their continued and potentially
indefinite detention under the Due Process Clause of the
Fifth Amendment.

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The Zadvydas opinion opened by noting the clear applica-
bility of general due process standards: physical detention
requires both a “special justification” that “outweighs the
‘individual’s constitutionally protected interest in avoiding
physical restraint’ ” and “adequate procedural protections.”
533 U. S., at 690 (quoting Hendricks, 521 U. S., at 356). No-
where did we suggest that the “constitutionally protected
liberty interest” in avoiding physical confinement, even for
aliens already ordered removed, was conceptually different
from the liberty interest of citizens considered in Jackson,
Salerno, Foucha, and Hendricks. On the contrary, we cited
those cases and expressly adopted their reasoning, even as
applied to aliens whose right to remain in the United States
had already been declared forfeited. Zadvydas, 533 U. S.,
at 690.
Thus, we began by positing commonly accepted substan-
tive standards and proceeded to enquire into any “special
justification” that might outweigh the aliens’ powerful inter-
est in avoiding physical confinement “under [individually or-
dered] release conditions that may not be violated.” Id., at
696. We found nothing to justify the Government’s position.
The statute was not narrowed to a particularly dangerous
class of aliens, but rather affected “aliens ordered removed
for many and various reasons, including tourist visa viola-
tions.” Id., at 691. The detention itself was not subject
to “stringent time limitations,” Salerno, supra, at 747, but
was potentially indefinite or even permanent, Zadvydas, 533
U. S., at 691. Finally, although both Zadvydas and Ma ap-
peared to be dangerous, this conclusion was undermined by
defects in the procedures resulting in the finding of danger-
ousness. Id., at 692. The upshot was such serious doubt
about the constitutionality of the detention statute that we
construed it as authorizing continuing detention only when
an alien’s removal was “reasonably foreseeable.” Id., at 699.
In the cases of Zadvydas and Ma, the fact that their countries
of citizenship were not willing to accept their return weighed

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against the Government’s interest in keeping them at hand
for instant removal, even though both were serious flight
risks, id., at 684–686, 690, and we remanded the cases to the
Courts of Appeals for a determination of the sufficiency of
the Government’s interests in Zadvydas’s and Ma’s individual
detention, id., at 702.
Our individualized analysis and disposition in Zadvydas
support Kim’s claim for an individualized review of his chal-
lenge to the reasons that are supposed to justify confining
him prior to any determination of removability. In fact,
aliens in removal proceedings have an additional interest
in avoiding confinement, beyond anything considered in
Zadvydas: detention prior to entry of a removal order may
well impede the alien’s ability to develop and present his case
on the very issue of removability. See Brief for Citizens and
Immigrants for Equal Justice et al. as Amici Curiae 20–23.
After all, our recognition that the serious penalty of removal
must be justified on a heightened standard of proof, Woodby
v. INS, 385 U. S. 276 (1966), will not mean all that much when
the INS can detain, transfer, and isolate aliens away from
their lawyers, witnesses, and evidence. Cf. Stack v. Boyle,
342 U. S. 1, 4 (1951). Kim’s right to defend against re-
moval gives him an even stronger claim than the aliens in
Zadvydas could raise.
In fact, the principal dissenters in Zadvydas, as well as
the majority, accepted a theory that would compel success
for Kim in this case. The dissent relied on the fact that
Zadvydas and Ma were subject to a “final order of removal”
and had “no right under the basic immigration laws to re-
main in this country,” 533 U. S., at 720 (opinion of Kennedy,
J.), in distinguishing them “from aliens with a lawful right
to remain here,” ibid., which is Kim’s position. The dissent
recognized the right of all aliens, even “removable and inad-
missible” ones, to be “free from detention that is arbitrary
or capricious,” id., at 721, and the opinion explained that de-
tention would pass the “arbitrary or capricious” test “when

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necessary to avoid the risk of flight or danger to the commu-
nity,” ibid.10
Hence the Zadvydas dissent’s focus on “whether there are
adequate procedures” allowing “persons once subject to de-
tention to show that through rehabilitation, new appreciation
of their responsibilities, or under other standards, they no
longer present special risks or danger if put at large.” Ibid.;
see also id., at 722–723. Indeed, there is further support for
Kim’s claim in the dissent’s view that the process afforded to
removable aliens like Zadvydas and Ma “[went] far toward
th[e] objective” of satisfying procedural due process, id., at
722; 11 that process stands in stark contrast to the total ab-
10 In support of its standard, the dissent relied on a report by the United
Nations High Commissioner for Refugees, which likewise countenanced
detention only “in cases of necessity” and stated, under a heading entitled
“Guideline 3: Exceptional Grounds for Detention”:
“There should be a presumption against detention. Where there are
monitoring mechanisms which can be employed as viable alternatives to
detention, (such as reporting obligations or guarantor requirements . . .),
these should be applied first unless there is evidence to suggest that such
an alternative will not be effective in the individual case. Detention
should therefore only take place after a full consideration of all possible
alternatives, or when monitoring mechanisms have been demonstrated not
to have achieved the lawful and legitimate purpose.” United Nations
High Commissioner for Refugees, Revised Guidelines on Applicable Cri-
teria and Standards Relating to the Detention of Asylum Seekers (Feb.
1999) (hereinafter Detention Guidelines) (emphasis in original), cited
in Zadvydas, 533 U. S., at 721 (opinion of Kennedy, J.).
The High Commissioner also referred to the “minimum procedural guar-
ante[e]” for a detainee “either personally or through a representative, to
challenge the necessity of the deprivation of liberty at the review hearing,
and to rebut any findings made.” Detention Guidelines, Guideline 5: Pro-
cedural Safeguards.
11 The scheme considered in Zadvydas did not provide review immedi-
ately after the removability determination; the dissent noted that custody
review hearings usually occurred within three months of a transfer to a
postorder detention unit, with further reviews annually or more fre-
quently if the alien requested them. 533 U. S., at 722–723. But the lag
was fitted to the circumstances. In the usual case, removal in fact would

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sence of custody review available in response to Kim’s claim
that he is neither dangerous nor a flight risk.12 The remov-
able aliens in Zadvydas had the right to a hearing, to repre-
sentation, and to consideration of facts bearing on risk of
flight, including criminal history, evidence of rehabilitation,
and ties to the United States. Ibid. The references to the
“necessity” of an individual’s detention and the discussion
of the procedural requirements show that the principal
Zadvydas dissenters envisioned due process as individual-
ized review, and the Court of Appeals in this case correctly
held that Kim’s mandatory detention without benefit of in-
dividualized enquiry violated due process as understood
by both the Zadvydas majority and Justice Kennedy in
dissent. Kim v. Ziglar, 276 F. 3d 523, 535–537 (CA9
2002). Every Court of Appeals to consider the detention of
come promptly; it is only when it did not that interim custody raised a
substantial issue. The issue here, of course, is not timing but the right to
individualized review at all.
12 The hearing recognized in Matter of Joseph, 22 I. & N. Dec. 799 (BIA
1999), is no response to this deficiency. As the Court notes, the “ ‘Joseph
hearing’ ” only permits an alien to show that he does not meet the statu-
tory criteria for mandatory detention under § 1226(c). Ante, at 514, and
n. 3. Kim argues that, even assuming that he fits under the statute, the
statute’s application to LPRs like him does not fit under the Due Process
Clause.
Justice Kennedy recognizes that the Due Process Clause requires “an
individualized determination as to [an LPR’s] risk of flight and dangerous-
ness if the continued detention [becomes] unreasonable or unjustified.”
Ante, at 532 (concurring opinion). It is difficult to see how Kim’s deten-
tion in this case is anything but unreasonable and unjustified, since the
Government concedes that detention is not necessary to completion of his
removal proceedings or to the community’s protection. Certainly the fact
that “there is at least some merit to the [INS’s] charge” that Kim should
be held to be removable, ante, at 531, does not establish a compelling
reason for detention. The INS releases many noncriminal aliens on bond
or on conditional parole under § 1226(a)(2) pending removal proceedings,
and the fact that Kim has been convicted of criminal offenses does not on
its own justify his detention, see supra, at 550–553.

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an LPR under § 1226(c) after Zadvydas reached the same
conclusion.13
D
In sum, due process requires a “special justification” for
physical detention that “outweighs the individual’s constitu-
tionally protected interest in avoiding physical restraint”
as well as “adequate procedural protections.” Zadvydas,
533 U. S., at 690–691 (internal quotation marks omitted).
“There must be a ‘sufficiently compelling’ governmental in-
terest to justify such [an] action, usually a punitive interest
in imprisoning the convicted criminal or a regulatory inter-
est in forestalling danger to the community.” Flores, 507
U. S., at 316 (O’Connor, J., concurring) (quoting Salerno, 481
U. S., at 748). The class of persons subject to confinement
must be commensurately narrow and the duration of con-
finement limited accordingly. Zadvydas, supra, at 691; Hen-
dricks, 521 U. S., at 368; Foucha, 504 U. S., at 81–82; Salerno,
supra, at 747, 750. Justice Kennedy’s dissenting view in
Zadvydas, like that of the majority, disapproved detention
that is not “necessary” to counter a risk of flight or danger;
it is “arbitrary or capricious” and violates the substantive
component of the Due Process Clause. 533 U. S., at 721.
Finally, procedural due process requires, at a minimum, that
a detainee have the benefit of an impartial decisionmaker
able to consider particular circumstances on the issue of ne-
cessity. Id., at 691–692; id., at 722 (Kennedy, J., dissent-
ing); Foucha, supra, at 81; Salerno, supra, at 750. See also
Kenyeres v. Ashcroft, post, at 1305 (Kennedy, J., in cham-
bers) (“An opportunity to present one’s meritorious griev-
ances to a court supports the legitimacy and public accept-
ance of a statutory regime”).
13 Welch v. Ashcroft, 293 F. 3d 213 (CA4 2002); Hoang v. Comfort, 282
F. 3d 1247 (CA10 2002), cert. pending, No. 01–1616 [Reporter’s Note:
See post, p. 1010]; Patel v. Zemski, 275 F. 3d 299 (CA3 2001). The Seventh
Circuit’s decision in Parra v. Perryman, 172 F. 3d 954 (1999), preceded
our decision in Zadvydas.

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558 DEMORE v. KIM
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By these standards, Kim’s case is an easy one. “[H]eight-
ened, substantive due process scrutiny,” Flores, supra, at
316 (O’Connor, J., concurring), uncovers serious infirmities
in § 1226(c). Detention is not limited to dangerous criminal
aliens or those found likely to flee, but applies to all aliens
claimed to be deportable for criminal convictions, even
where the underlying offenses are minor. E. g., Michel v.
INS, 206 F. 3d 253, 256 (CA2 2000) (possession of stolen bus
transfers); Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992)
(issuance of a bad check). Detention under § 1226(c) is not
limited by the kind of time limit imposed by the Speedy Trial
Act, and while it lasts only as long as the removal proceed-
ings, those proceedings have no deadline and may last over
a year. See Brief for Citizens and Immigrants for Equal
Justice et al. as Amici Curiae 23–26; see also id., at 10–20
(citing examples). Section 1226(c) neither requires nor per-
mits an official to determine whether Kim’s detention was
necessary to prevent flight or danger.
Kim’s detention without particular justification in these re-
spects, or the opportunity to enquire into it, violates both
components of due process, and I would accordingly affirm
the judgment of the Court of Appeals requiring the INS to
hold a bail hearing to see whether detention is needed to
avoid a risk of flight or a danger to the community.14 This
is surely little enough, given the fact that 8 U. S. C. § 1536
gives an LPR charged with being a foreign terrorist the
right to a release hearing pending a determination that he
be removed.
III
The Court proceeds to the contrary conclusion on the
premise that “the Government may constitutionally detain
14 Although Kim is a convicted criminal, we are not concerned here with
a State’s interest in punishing those who violate its criminal laws. Kim
completed the criminal sentence imposed by the California courts on Feb-
ruary 1, 1999, and California no longer has any interest in incarcerating
him.

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deportable aliens during the limited period necessary for
their removal proceedings.” Ante, at 526. Sometimes,
maybe often, it may, but that is not the point in contention.
Kim has never challenged the INS’s general power to detain
aliens in removal proceedings or even its power to detain
him in particular, if it affords him a chance to participate
in an enquiry whether he poses a flight risk or a danger to
society.
The question, rather, is whether Congress has chosen “ ‘a
constitutionally permissible means of implementing’ [its im-
migration] power.” Zadvydas, supra, at 695 (quoting INS
v. Chadha, 462 U. S. 919, 941–942 (1983)); see also Carlson
v. Landon, 342 U. S. 524, 537 (1952) (stating that the depor-
tation power “is, of course, subject to judicial interven-
tion under the ‘paramount law of the Constitution’ ”). As
in Zadvydas, we are here concerned not with the power
to remove aliens but with the “important constitutional lim-
itations” on that power’s exercise. Zadvydas, supra, at
695. 15
15 The Court’s citations to Wong Wing v. United States, 163 U. S. 228
(1896), are therefore inapposite. Ante, at 523, 531. In Wong Wing, we
hypothesized that detention “necessary to give effect” to the removal of
an alien “would be valid”; the use of the subjunctive mood makes plain
that the issue was not before the Court. 163 U. S., at 235. Wong Wing
certainly did not hold that detention in aid of removal was exempt from
the Due Process Clause.
Moreover, the Wong Wing dictum must be understood in light of the
common contemporary practice in the federal courts of releasing aliens on
bail pending deportation proceedings. While the Court is correct that
the first statutory provision permitting Executive officials to release aliens
on bond was enacted in 1907, ante, at 523, n. 7, the Court ignores the
numerous judicial grants of bail prior to that year. See, e. g., United
States ex rel. Turner v. Williams, 194 U. S. 279, 283 (1904) (stating that
the lower court admitted the appellant to bail pending appeal to this
Court); Fong Yue Ting v. United States, 149 U. S. 698, 704 (1893) (same);
United States v. Moy Yee Tai, 109 F. 1 (CA2 1901) (per curiam); In re
Lum Poy, 128 F. 974, 975 (CC Mont. 1904) (noting that “the practice in
California, Idaho, and Oregon has been and is to admit Chinese persons to

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560 DEMORE v. KIM
Opinion of Souter, J.
A
The Court spends much effort trying to distinguish Zad-
vydas, but even if the Court succeeded, success would not
avail it much. Zadvydas was an application of principles de-
veloped in over a century of cases on the rights of aliens
and the limits on the government’s power to confine individu-
als. While there are differences between detention pending
removal proceedings (this case) and detention after entry of
a removal order (Zadvydas), the differences merely point up
bail pending an investigation into the lawfulness of their residence within
the United States, and before any order for deportation has been made”);
In re Ah Tai, 125 F. 795, 796–797 (Mass. 1903) (identifying a practice in
several federal districts admitting aliens to bail, both before an initial
finding of deportability and during the appeal therefrom); In re Chow Goo
Pooi, 25 F. 77, 78 (CC Cal. 1884). The breadth of this practice is evident
from one court’s statement that “[t]o hold bail altogether inadmissible . . .
would invalidate hundreds of existing recognizances.” Ah Tai, supra,
at 797.
As Judge Augustus Hand later noted, the only change in 1907 was that
bail decisions were committed to the discretion of Executive officials,
rather than judges:
“Prior to the passage by Congress in 1907 of the act empowering the
administrative official to fix bail, various courts made it a practice to grant
bail to aliens during deportation hearings. . . . In our opinion that act was
intended to place the general determination of granting bail in the hands
of the authorities charged with the enforcement of the deportation laws
as persons ordinarily best qualified to perform such a function . . . .”
United States ex rel. Potash v. District Director of Immigration and Nat-
uralization, 169 F. 2d 747, 751 (CA2 1948) (citations omitted).
Thus, while Wong Wing stated in passing that detention may be used
where it was “part of the means necessary” to the removal of aliens, 163
U. S., at 235, that statement was written against the background of the
general availability of judicial relief from detention pending deportation
proceedings.
The judicial grants of bail prior to 1907 arose in federal habeas proceed-
ings. Contrary to Justice O’Connor’s objection to federal jurisdiction
in this matter, there is indeed a “history of routine reliance on habeas
jurisdiction to challenge the detention of aliens without bail pending the
conclusion of removal proceedings.” Ante, at 536 (opinion concurring in
part and concurring in judgment).

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that Kim’s is the stronger claim, see supra, at 554–556. In
any case, the analytical framework set forth in Salerno, Fou-
cha, Hendricks, Jackson, and other physical confinement
cases applies to both, and the two differences the Court re-
lies upon fail to remove Kim’s challenge from the ambit of
either the earlier cases or Zadvydas itself.16
First, the Court says that § 1226(c) “serves the purpose of
preventing deportable criminal aliens from fleeing prior to
or during their removal proceedings.” Ante, at 528. Yes it
does, and the statute in Zadvydas, viewed outside the con-
text of any individual alien’s detention, served the purpose
of preventing aliens ordered to be deported from fleeing
prior to actual deportation. In each case, the fact that
a statute serves its purpose in general fails to justify the
detention of an individual in particular. Some individual
aliens covered by § 1226(c) have meritorious challenges to
removability or claims for relief from removal. See Brief
for Citizens and Immigrants for Equal Justice et al. as Amici
Curiae 10–20. As to such aliens, as with Zadvydas and Ma,
the Government has only a weak reason under the immigra-
tion laws for detaining them.
The Court appears to respond that Congress may require
detention of removable aliens based on a general conclusion
that detention is needed for effective removal of criminal
aliens on a class-wide basis. But on that logic Zadvydas
should have come out the other way, for detention of the
entire class of aliens who have actually been ordered re-
moved will in general “serv[e] the purpose” of their effective
removal, ante, at 528. Yet neither the Court nor Justice
Kennedy in dissent suggested that scrutiny under the Due
Process Clause could be satisfied at such a general level.
Rather, we remanded the individual cases of Zadvydas and
Ma for determinations of the strength of the Government’s
16 The Court tellingly does not even mention Salerno, Foucha, Hen-
dricks, or Jackson.

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reasons for detaining them in particular. 533 U. S., at 702.17
We can insist on nothing less here, since the Government’s
justification for detaining individuals like Zadvydas and Ma,
who had no right to remain in this country and were proven
flight risks and dangers to society, id., at 684–686, is cer-
tainly stronger (and at least no weaker) than its interest in
detaining a lawful permanent resident who has not been
shown (or even claimed) to be either a flight risk or a threat
to the community.18
The Court’s closest approach to a reason justifying class-
wide detention without exception here is a Senate Report
stating that over 20% of nondetained criminal aliens failed
17 The Court is therefore mistaken in suggesting that I view the deten-
tion of the individual aliens in Zadvydas as serving a governmental pur-
pose. Ante, at 527, n. 10. The Court confuses the “statute in Zadvydas,
viewed outside the context of any individual alien’s detention,” supra, at
561, with the “detention at issue in Zadvydas,” ante, at 527, n. 10, namely,
the detention of Zadvydas and Ma as individuals. The due process analy-
sis in Zadvydas concentrated on the latter, holding that the detention of
Zadvydas and Ma would not serve a legitimate immigration purpose if
there were no “significant likelihood of removal in the reasonably foresee-
able future.” 533 U. S., at 701. Thus, the Court’s suggestion in this case
that “the statutory provision” authorizes “detention” that prevents de-
portable aliens from fleeing as a general matter, ante, at 527–528, is no
sufficient basis for claiming Zadvydas as support for the Court’s methodol-
ogy or result. Rather, the Court should consider whether the detention
of Kim as an individual is necessary to a compelling Government interest,
just as it did for the detention of Zadvydas and Ma as individuals. As the
Government concedes, Kim’s individual detention serves no Government
purpose at all.
18 Nor can the general risk of recidivism, ante, at 518–519, justify this
measure. The interest in preventing recidivism may be vindicated “by
the ordinary criminal processes involving charge and conviction, the use
of enhanced sentences for recidivists, and other permissible ways of deal-
ing with patterns of criminal conduct.” Foucha v. Louisiana, 504 U. S.
71, 82 (1992). The ability to detain aliens in removal proceedings who
pose threats to the community also satisfies this interest. Cf. United
States v. Salerno, 481 U. S. 739 (1987). The alternative to detention, of
course, is not unrestricted liberty, but supervised release, which also ad-
dresses the risk of recidivism. Zadvydas, 533 U. S., at 696.

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to appear for removal hearings. Ante, at 519 (citing S. Rep.
No. 104–48 (1995) (hereinafter Senate Report)). To begin
with, the Senate Report’s statistic treats all criminal aliens
alike and does not distinguish between LPRs like Kim, who
are likely to have developed strong ties within the United
States, see supra, at 544–547, and temporary visitors or ille-
gal entrants. Even more importantly, the statistic tells us
nothing about flight risk at all because, as both the Court
and the Senate Report recognize, the INS was making its
custody determinations not on the ground of likelihood of
flight or dangerousness, but “in large part, according to the
number of beds available in a particular region.” Senate
Report 23, cited ante, at 519; see also H. R. Rep. No. 104–469,
p. 124 (1995) (hereinafter House Report) (“[I]n deciding
to release a deportable alien, the INS is making a decision
that the alien cannot be detained given its limited re-
sources”); App. 26–27. This meant that the INS often could
not detain even the aliens who posed serious flight risks.
Senate Report 23 (noting that the INS had only 3,500 de-
tention beds for criminal aliens in the entire country and
the INS district comprising Pennsylvania, Delaware, and
West Virginia had only 15). The desperate lack of detention
space likewise had led the INS to set bonds too low, because
“if the alien is not able to pay, the alien cannot be released,
and a needed bed space is lost.” House Report 124. The
Senate Report also recognized that, even when the INS iden-
tifies a criminal alien, the INS “often refuses to take action
because of insufficient agents to transport prisoners, or be-
cause of limited detention space.” Senate Report 2. Four
former high-ranking INS officials explained the Court’s sta-
tistics as follows: “Flight rates were so high in the early
1990s not as a result of chronic discretionary judgment fail-
ures by [the] INS in assessing which aliens might pose a
flight risk. Rather, the rates were alarmingly high because
decisions to release aliens in proceedings were driven over-

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564 DEMORE v. KIM
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whelmingly by a lack of detention facilities.” Brief for T.
Alexander Aleinikoff et al. as Amici Curiae 19.
The Court’s recognition that, at the time of the enactment
of § 1226(c), “individualized bail determinations had not been
tested under optimal conditions” is thus rather an under-
statement. Ante, at 528. The Court does not explain how
the INS’s resource-driven decisions to release individuals
who pose serious flight risks, and their predictable failure to
attend removal hearings, could justify a systemwide denial
of any opportunity for release to individuals like Kim who
are neither flight risks nor threats to the public.
The Court also cites a report by the Department of Justice
relied upon by the Government. Department of Justice, Of-
fice of the Inspector General, Immigration and Naturaliza-
tion Service, Deportation of Aliens After Final Orders Have
Been Issued, Rep. No. I–96–03 (Mar. 1996), App. 14 (herein-
after Post-Order Report), cited ante, at 519, 521. But that
report does not even address the issue of detention before a
determination has been made that an alien is removable. As
its title indicates, the Post-Order Report analyzed removal
rates only for aliens who had already received final orders of
removability.19 See also Post-Order Report, App. 25 (“This
current review was limited to actions taken by INS to re-
move aliens after [immigration judges or the Board of Immi-
gration Appeals] had issued final orders”).20
19 Detention of such aliens is governed by the statute at issue in
Zadvydas, § 1231(a), not by § 1226(c).
20 A prior study by the same body noted that nonappearance rates by
aliens in deportation proceedings before issuance of orders to deport
(aliens, that is, like Kim) were approximately 23% for the first half of 1993
and 21% for all of 1992. Department of Justice, Office of the Inspector
General, Case Hearing Process in the Executive Office for Immigration
Review, Rep. No. I–93–03, p. 5 (May 1994) (hereinafter Case Hearing Re-
port). Congress appears to have considered these relevant figures, Sen-
ate Report 2 (“Over 20 percent of nondetained criminal aliens fail to
appear for deportation proceedings”), without referring to irrelevant
postorder numbers. The Government relied on the Post-Order Report

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More relevant to this case, and largely ignored by the
Court, is a recent study conducted at the INS’s request con-
cluding that 92% of criminal aliens (most of whom were
LPRs) who were released under supervisory conditions at-
tended all of their hearings. 1 Vera Institute of Justice,
Testing Community Supervision for the INS: An Evaluation
of the Appearance Assistance Program, pp. ii, 33, 36 (Aug.
1, 2000) (hereinafter Vera Institute Study). Even without
supervision, 82% of criminal aliens released on recognizance
showed up, as did 77% of those released on bond, leading
the reporters to conclude that “supervision was especially
effective for criminal aliens” and that “mandatory detention
of virtually all criminal aliens is not necessary.” Id., at ii,
36, 42.21
in its brief and at oral argument. Brief for Petitioners 7, 19–20, and n. 7;
Tr. of Oral Arg. 23. The Government did not cite the Case Hearing
Report.
21 The Court throws in minor criticisms of the Vera Institute Study that
have no bearing on its relevance here. The institute’s supervised release
program included 127 criminal aliens who would be subject to mandatory
detention under § 1226(c) because of their criminal histories. Vera Insti-
tute Study 33. Since the INS seeks Kim’s removal on the grounds of
either crimes of moral turpitude or an aggravated felony, see ante, at 513,
n. 1, the fact that most of the Vera Institute Study’s subjects were con-
victed of crimes of moral turpitude but not an aggravated felony, ante, at
520, n. 5, is of no moment. Nor were all of the aliens studied subject to
intensive supervision, ibid.; most were subject to “regular supervision,”
which involved no mandatory reporting sessions beyond an initial orienta-
tion session with supervision staff and required only that the alien keep
the staff apprised of a current mailing address, appear in court, and com-
ply with the orders of the immigration judge, Vera Institute Study 17–18.
That the institute considered various screening criteria before authorizing
supervised release, ante, at 520, n. 5, does not undermine the value of the
study, since any program adopted by the INS in lieu of mandatory deten-
tion could do the same. Cf. Zadvydas, 533 U. S., at 696. Finally, the fact
that Kim sought and was granted release on bond rather than supervised
release, ante, at 520, n. 5, does not detract from the relevance of the Vera
Institute Study. Regardless of what methods the INS decides to employ
to prevent flight, the study supports the conclusion that mandatory deten-

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The Court nowhere addresses the Vera Institute’s conclu-
sion that criminal aliens released under supervisory condi-
tions are overwhelmingly likely to attend their hearings.
Instead, the Court fixes on the fact that 23% of the compari-
son group of aliens released on bond failed to attend all of
their hearings. Ante, at 519–520. Since the bond deter-
minations were made by the INS, the fact remains that
resource-driven concerns may well have led the INS to re-
lease individuals who were evident flight risks on bonds too
low to ensure their attendance. See supra, at 563–564.
The Court’s assumption that the INS’s bond determinations
involved “individualized screening” for flight risk, ante, at
520, finds no support in the Vera Institute Study. Thus the
Court’s reliance on the failure rate of aliens released by the
INS on bond, whether it comes from the Senate Report or
the Vera Institute Study, ante, at 519–520, does not support
its conclusion.
In sum, the Court’s inapposite statistics do not show that
detention of criminal LPRs pending removal proceedings,
even on a general level, is necessary to ensure attendance at
removal hearings, and the Vera Institute Study reinforces
the point by establishing the effectiveness of release under
supervisory conditions, just as we did in Zadvydas. 533
U. S., at 696 (noting that imprisonment was constitutionally
suspect given the possibility of “supervision under release
conditions that may not be violated”).22 The Court’s first
attempt to distinguish Zadvydas accordingly fails.
tion under § 1226(c) is “not necessary” to prevent flight, Vera Institute
Study 42, and therefore violates the Due Process Clause.
22 This case accordingly presents no issue of “ ‘court ordered release,’ ”
ante, at 530, n. 14 (quoting Zadvydas, supra, at 713 (Kennedy, J., dissent-
ing)); in this case, for example, the INS reached its own determination to
release Kim on bond. This case concerns only the uncontroversial re-
quirement that detention serve a compelling governmental interest and
that detainees be afforded adequate procedures ensuring against errone-
ous confinement. E. g., Salerno, 481 U. S., at 751 (“[T]he procedures by

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The Court’s second effort is its claim that mandatory de-
tention under § 1226(c) is generally of a “much shorter dura-
tion” than the incarceration at issue in Zadvydas. Ante,
at 528. While it is true that removal proceedings are un-
likely to prove “indefinite and potentially permanent,” 533
U. S., at 696, they are not formally limited to any period, and
often extend beyond the time suggested by the Court, that
is, “an average time of 47 days” or, for aliens who exercise
their right of appeal, “an average of four months,” ante, at
529; see also Case Hearing Report 12 (finding that the aver-
age time from receipt of charging documents by a detained
alien to a final decision by the immigration judge was 54
days). Even taking these averages on their face, however,
they are no legitimate answer to the due process claim to
individualized treatment and hearing.
In the first place, the average time from receipt of charg-
ing documents to decision obscures the fact that the alien
may receive charging documents only after being detained
for a substantial period. Kim, for example, was not charged
until five weeks after the INS detained him. Brief for
Respondent 9.
Even more revealing is an explanation of the raw numbers
that are averaged out. As the Solicitor General conceded,
the length of the average detention period in great part re-
flects the fact that the vast majority of cases involve aliens
who raise no challenge to removability at all. Tr. of Oral
Arg. 57. LPRs like Kim, however, will hardly fit that pat-
tern. Unlike many illegal entrants and temporary nonimmi-
grants, LPRs are the aliens most likely to press substantial
which a judicial officer evaluates the likelihood of future dangerousness
are specifically designed to further the accuracy of that determination”);
see also Zadvydas, supra, at 721 (Kennedy, J., dissenting) (stating that
due process requires “adequate procedures” permitting detained aliens to
show that “they no longer present special risks or danger” warranting
confinement).

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challenges to removability requiring lengthy proceedings.23
See Vera Institute Study 33, 37 (stating that many of the
criminal aliens studied were “lawful permanent residents
who have spent much or all of their adult lives in the United
States” and that 40% of those released on supervision “were
allowed to stay in the United States”). Successful chal-
lenges often require several months of proceedings, see Brief
for Citizens and Immigrants for Equal Justice et al. as Amici
Curiae 10–20; detention for an open-ended period like this
falls far short of the “stringent time limitations” held to be
significant in Salerno, 481 U. S., at 747. The potential for
several months of confinement requires an individualized
finding of necessity under Zadvydas.24
B
The Court has failed to distinguish Zadvydas in any way
that matters. It does no better in its effort to portray its
result in this case as controlled by Carlson v. Landon, 342
U. S. 524 (1952), and Reno v. Flores, 507 U. S. 292 (1993).
23 Criminal aliens whose “removal proceedings are completed while
[they are] still serving time for the underlying conviction,” ante, at 529,
are irrelevant to this case, since they are never detained pending removal
proceedings under § 1226(c).
24 The Court calls several months of unnecessary imprisonment a “very
limited time,” ante, at 529, n. 12. But the due process requirement of an
individualized finding of necessity applies to detention periods shorter
than Kim’s. Schall v. Martin, 467 U. S. 253 (1984), involved a maximum
detention period of 17 days, id., at 270, yet our due process analysis noted
that the detainee was entitled to a hearing in which he could challenge the
necessity of his confinement before an impartial decisionmaker required to
state the facts and reasons underlying any decision to detain, id., at 276–
277. The 90-day removal period in § 1231(a)(1) not only has a fixed end-
point, but also applies only after the alien has been adjudged removable,
§ 1231(a)(1)(B). The discussion of that provision in Zadvydas cannot be
read to indicate any standard of permissible treatment of an LPR who has
not yet been found removable.

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1
Carlson did not involve mandatory detention. It involved
a system similar to the one Kim contends for here. The
aliens’ detention pending deportation proceedings in Carlson
followed a decision on behalf of the Attorney General that
custody was preferable to release on bond or on conditional
parole. 342 U. S., at 528, n. 5 (citing Internal Security Act
of 1950, § 23, 64 Stat. 1011). We sustained that decision be-
cause we found that the District Director of the INS, to
whom the Attorney General had delegated the authority, did
not abuse his discretion in concluding that “evidence of mem-
bership [in the Communist Party] plus personal activity in
supporting and extending the Party’s philosophy concerning
violence” made the aliens “a menace to the public interest.”
342 U. S., at 541. The significance of looking to “personal
activity” in our analysis was complemented by our express
recognition that there was “no evidence or contention that
all persons arrested as deportable . . . for Communist mem-
bership are denied bail,” id., at 541–542, and by a Govern-
ment report showing that in fact “the large majority” of
aliens arrested on charges comparable to the Carlson peti-
tioners’ were allowed bail. Id., at 542; see also id., at 538,
n. 31 (noting that it was “quite clear” that “detention without
bond has been the exception”).
Indeed, the Carlson Court’s constitutional analysis relying
on the opportunity for individualized bond determinations
simply followed the argument in the brief for the United
States in that case. In response to the aliens’ argument that
the statute made it “mandatory on the Attorney General to
deny bail to alien communists,” the Government stated, “[w]e
need not consider the constitutionality of such a law for that
is not what the present law provides.” Brief for Respond-
ent in Carlson v. Landon, O. T. 1951, No. 35, p. 19; see also
id., at 20 (“[T]he act itself, by its terms, leaves no doubt that
the power to detain is discretionary, not mandatory”). The

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570 DEMORE v. KIM
Opinion of Souter, J.
Government also presented the following excerpt of a state-
ment of the chairman of the House Judiciary Committee:
“ ‘No particular hardship is going to be worked on any-
one because, bear this fact in mind, it is not mandatory
on the Attorney General to hold people in detention.
He is given discretionary power. If in his judgment
one of the class of people I have just mentioned ought
to be held for paramount national reasons, he may detain
him, but he is not obliged to hold anybody, although I
trust that in every case of a subversive or a hardened
criminal he will.’ ” Id., at 19 (quoting 96 Cong. Rec.
10449–10450 (1950) (statement of Rep. Walter) (emphasis
added in Brief for Respondent in Carlson v. Landon,
supra)).
In short, Carlson addressed a very different scheme from
the one here.
It is also beside the point for the Court to suggest that
“like respondent in the present case,” the Carlson petition-
ers challenged their detention because “there had been no
finding that they were unlikely to appear for their deporta-
tion proceedings.” Ante, at 524. Each of them was de-
tained after being found to be “a menace to the public inter-
est,” 342 U. S., at 541, and their challenge, unlike Kim’s, was
that the INS had locked them up for an impermissible reason
(danger to society) whereas only a finding of risk of flight
would have justified detention. Id., at 533–534 (“It is urged
. . . that where there is no evidence to justify a fear of un-
availability for the hearings or for the carrying out of a possi-
ble judgment of deportation, denial of bail under the circum-
stances of these cases is an abuse of discretion”); see also id.,
at 551 (Black, J., dissenting) (“A power to put in jail because
dangerous cannot be derived from a power to deport”).25
25 Similarly, the question presented in Butterfield v. Zydok, argued and
decided together with Carlson, was “[w]hether, in exercising his discretion
to grant or withhold bail pending final determination of the deportability

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We rejected that contention, leaving the petitioners in deten-
tion because they were dangerous to the public interest, and
on that issue, an official had determined that the Carlson
petitioners ought to be detained. Here, however, no impar-
tial decisionmaker has determined that detaining Kim is re-
quired for any purpose at all, and neither the Government
nor the Court even claims such a need.
For the same reason it is beside the point to note that the
unsuccessful Carlson petitioners’ brief raised a claim that
detention without reference to facts personal to their indi-
vidual cases would violate the Due Process Clause. Ante,
at 524. As the United States pointed out in its own Carlson
brief, that issue was never presented, since the District Di-
rector’s exercise of discretion was based on individualized
determinations that the petitioners were dangerous to soci-
ety. See supra, at 570.26 Nor is the Court entitled to in-
voke Carlson by saying that the INS “had adopted a policy
of refusing to grant bail” to alien Communists, which made
the Attorney General’s discretion to release aliens on bond
merely “ostensibl[e].” Ante, at 524. The Carlson Court
found that “[t]here is no evidence or contention that all per-
of an alien, the Attorney General is justified in denying bail on the ground
that the alien is an active participant in Communist Party affairs, or
whether he is bound also to consider other circumstances, particularly the
likelihood that the alien will report as ordered.” Pet. for Cert. in Butter-
field v. Zydok, O. T. 1951, No. 136, p. 2.
26 While a prior conviction may sometimes evidence a risk of future dan-
ger, it is not conclusive in all cases, and Kim is a good example, given that
the Government found that he “would not be considered a threat.” App.
13. Indeed, the Court acknowledges that convictions are only “relevant
to” dangerousness, ante, at 525, n. 9; it does not state that they compel a
finding of danger in all cases. As even the Zadvydas dissent recognized,
due process requires that detained criminal aliens be given an opportunity
to rebut the necessity of detention by showing “that through rehabilita-
tion, new appreciation of their responsibilities, or under other standards,
they no longer present special risks or danger if put at large.” 533 U. S.,
at 721 (opinion of Kennedy, J.).

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sons arrested as deportable . . . for Communist membership
are denied bail.” 342 U. S., at 541–542.
The Court refuses to accept the opinion of the Carlson
Court and the representations made in the successful brief
for the Government in that case. The Court not only fails
to acknowledge the actual holding of Carlson; it improp-
erly adopts as authority statements made in dissent. The
Court’s emphatic assertion that “[t]here was no ‘individual-
ized findin[g]’ of likely future dangerousness as to any of the
aliens,” ante, at 525, rests entirely on opinions voiced in dis-
sent, although the Court only mentions this fact in a foot-
note, ante, at 525, n. 8 (citing 342 U. S., at 549, 550, n. 5,
552 (Black, J., dissenting), and id., at 567 (Frankfurter, J.,
dissenting)). Statements made in dissent do not override
the Carlson Court’s express finding that the petitioners in
that case were found to be not only members of the Commu-
nist Party, but “active in Communist work” and to “a degree,
minor perhaps in [one] case, [participants] in Communist ac-
tivities.” Id., at 541. 27
Moreover, the Carlson dissenters did not suggest that no
individualized determinations had occurred; rather, they con-
tended that the District Director’s individual findings of dan-
gerousness were unsupported by sufficient reliable evidence.
See id., at 549–550 (Black, J., dissenting) (arguing that the
aliens were not in fact “ ‘dangerous’ ” at all); id., at 552 (ar-
guing that danger findings were based on “the rankest hear-
say evidence” instead of the INS being “required to prove”
that the detainee was dangerous); id., at 555–556 (arguing
that activity within the Communist movement did not make
the aliens “dangerous”); id., at 566–567 (Frankfurter, J.,
27 In the footnote immediately following its citation of dissenting opin-
ions, the Court cites a passage from the Carlson majority opinion confirm-
ing that the Carlson petitioners’ detention rested on the “allegation, sup-
ported by affidavits, that the [INS’s] dossier of each petitioner contained
evidence” of Communist Party membership and activities “to the preju-
dice of the public interest.” 342 U. S., at 530 (quoted ante, at 525, n. 9).

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dissenting) (arguing that evidence of Communist party mem-
bership was “insufficient to show danger”; that evidence of
some aliens’ activities was stale; and that the history of
treatment of the aliens involved forced him to conclude that
the Attorney General was not actually exercising discretion
on an individual basis).28 And even if the Carlson dissenters
were factually correct, all that would show is that the Carl-
son Court was misled (by the Government, no less) into de-
ciding the case on the basis that individualized findings of
dangerousness were made. Given that the Carlson Court
clearly believed that it was deciding a case in which individu-
alized determinations occurred, it is serious error for this
Court to treat Carlson as deciding a case in which they
did not.
Finally, the Court gets no help from the isolated passages
of the Carlson opinion that it quotes. Although the Carlson
Court stated that detention was “ ‘a part’ ” of deportation
procedure, ante, at 524 (quoting Carlson, 342 U. S., at 538),
it nowhere said that detention was part of every deportation
proceeding. Instead, it acknowledged that “the far larger
part” of aliens deportable on “subversive charges” were re-
28 Justice Black’s dissenting statement that one of the aliens was “ ‘not
likely to engage in any subversive activities,’ ” 342 U. S., at 549, does not
amount to a “specific finding of nondangerousness,” ante, at 525. On the
contrary, the Court expressly stated that the Government could prove
dangerousness based on “personal activity” in the Communist Party; it
simply was not required to go so far as to show “specific acts of sabotage
or incitement to subversive action.” Carlson, supra, at 541. Thus while
there was no finding of “subversive action,” there certainly was a finding
of “danger,” albeit one that Justice Black found unconvincing.
Likewise, Justice Frankfurter’s statement in dissent that the Solicitor
General of the United States had “advised” that “it has been the Govern-
ment’s policy . . . to terminate bail” for aliens awaiting deportation who
were “present active Communists,” 342 U. S., at 568, is difficult to recon-
cile with the contrary statements in both the majority opinion and the
United States’s brief in Carlson, see supra, at 569–572. Whatever its
basis, Justice Frankfurter’s reference to a “policy” of bail denials does not
bear the weight that the Court places upon it today.

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leased on “modest bonds or personal recognizances” pending
their deportation proceedings. Id., at 538, n. 31. Contrary
to the Court’s holding today, the Carlson Court understood
that discretion to admit to bail was necessary, since “[o]f
course [a] purpose to injure [the United States] could not
be imputed generally to all aliens subject to deportation.”
Id., at 538. It was only in this light that the Court said that
the INS could “justify [its] refusal of bail by reference to
the legislative scheme to eradicate the evils of Communist
activity”; the Court was referring to the INS’s power to
detain on a finding that a given alien was engaged in Com-
munist activity that threatened society. Id., at 543. The
Court nowhere addressed, much less approved, the notion
that the INS could justify, or that Congress could compel, an
individual’s detention without any determination at all that
his detention was necessary to some Government purpose.
And if there was ever any doubt on this point, it failed to
survive our subsequent, unanimous recognition that the de-
tention scheme in Carlson required “some level of individual-
ized determination” as a precondition to detention. INS v.
National Center for Immigrants’ Rights, Inc., 502 U. S. 183,
194–195 (1991); see also Flores, 507 U. S., at 313. Carlson
stands at odds with the Court’s outcome in this case.
2
The Court’s paragraph on Flores, supra, is no more help
to it. Like Carlson, Flores did not involve mandatory de-
tention, and the INS regulation at issue in Flores actually
required that alien juveniles be released pending removal
proceedings unless the INS determined that detention was
required “ ‘to secure [the juvenile’s] timely appearance before
the [INS] or the immigration court or to ensure the juvenile’s
safety or that of others.’ ” 507 U. S., at 297 (quoting 8 CFR
§ 242.24(b)(1) (1992)). Again, Kim agrees that such a system
is constitutional and contends for it here. Flores turned not
on the necessity of detention, but on the regulation’s restric-

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tion that alien juveniles could only be released to the custody
of the juvenile’s parent, legal guardian, or another specified
adult relative. Even this limitation, however, was subject
to exception for releasing a juvenile to another person in
“ ‘unusual and compelling circumstances and in the discretion
of the [INS] district director or chief patrol agent.’ ” 507
U. S., at 297 (quoting 8 CFR § 242.24(b)(4) (1992)).
Thus, the substantive due process issue in Flores was not
whether the aliens’ detention was necessary to a governmen-
tal purpose: “ ‘freedom from physical restraint’ ” was “not at
issue” at all because, as juveniles, the aliens were “ ‘always
in some form of custody.’ ” 507 U. S., at 302 (quoting Schall
v. Martin, 467 U. S. 253, 265 (1984)). Since “ ‘[l]egal custody’
rather than ‘detention’ more accurately describes the reality
of the arrangement” in Flores, 507 U. S., at 298, that case
has no bearing on this one, which concerns the detention of
an adult.29
Flores is equally distinguishable at the procedural level.
We held that the procedures for the custody decision sufficed
constitutionally because any determination to keep the alien
“in the custody of the [INS], released on recognizance, or
released under bond” was open to review by the immigration
court, the Board of Immigration Appeals, and the federal
courts. Id., at 308. Like the aliens in Carlson, the juve-
niles in Flores were subject to a different system and raised
a different complaint from Kim’s.
While Flores holds that the INS may use “reasonable pre-
sumptions and generic rules” in carrying out its statutory
discretion, 507 U. S., at 313, it gave no carte blanche to gen-
29 Nor is it to the point for the Court to quote Flores as rejecting the
aliens’ challenge to a “ ‘ “blanket” presumption of the unsuitability of custo-
dians other than parents, close relatives, and guardians.’ ” Ante, at 526
(quoting 507 U. S., at 313). Flores expressly stated that the regulation
did not implicate the core liberty interest in avoiding physical confinement.
Id., at 302 (“The ‘freedom from physical restraint’ . . . is not at issue in
this case”).

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eral legislation depriving an entire class of aliens of liberty
during removal proceedings. Flores did not disturb estab-
lished standards that detention of an adult must be justified
in each individual instance.30
IV
This case is not about the National Government’s undis-
puted power to detain aliens in order to avoid flight or pre-
vent danger to the community. The issue is whether that
power may be exercised by detaining a still lawful perma-
nent resident alien when there is no reason for it and no way
to challenge it. The Court’s holding that the Due Process
Clause allows this under a blanket rule is devoid of even
ostensible justification in fact and at odds with the settled
standard of liberty. I respectfully dissent.
Justice Breyer, concurring in part and dissenting in
part.
I agree with the majority that the courts have jurisdiction,
and I join Part I of its opinion. If I believed (as the majority
apparently believes, see ante, at 513–514, and n. 3) that Kim
had conceded that he is deportable, then I would conclude
that the Government could detain him without bail for the
few weeks ordinarily necessary for formal entry of a removal
order. Brief for Petitioners 39–40; see ante, at 528–531.
Time limits of the kind set forth in Zadvydas v. Davis, 533
U. S. 678 (2001), should govern these and longer periods of
detention, for an alien’s concession that he is deportable
30 Indeed, the passages the Court quotes from Flores did not concern
the regulation’s constitutionality at all, but rather its validity as an imple-
mentation of the authorizing statute. Id., at 313 (“Respondents also con-
tend that the INS regulation violates the statute because it relies upon a
‘blanket’ presumption”). Flores clearly separated its analysis of the regu-
lation under the Due Process Clause from its analysis of the regulation
under the statute. See id., at 300; see also id., at 318–319 (O’Connor, J.,
concurring) (pointing out the substantive due process analysis at id., at
301–306, and the procedural due process analysis at id., at 306–309).

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seems to me the rough equivalent of the entry of an order
of removal. See id., at 699–701 (reading the statute, under
constitutional compulsion, as commonly imposing a presump-
tion of a 6-month “reasonable” time limit for post-removal-
order detention).
This case, however, is not one in which an alien concedes
deportability. As Justice Souter points out, Kim argues
to the contrary. See ante, at 541–542 (opinion concurring in
part and dissenting in part). Kim claims that his earlier
convictions were neither for an “ ‘aggravated felony’ ” nor for
two crimes of “ ‘moral turpitude.’ ” Brief for Respondent 3,
11–12, 31–32, and n. 29. And given shifting lower court
views on such matters, I cannot say that his arguments
are insubstantial or interposed solely for purposes of delay.
See, e. g., United States v. Corona-Sanchez, 291 F. 3d 1201,
1213 (CA9 2002) (petty theft with a prior not an “aggravated
felony”). Compare Omagah v. Ashcroft, 288 F. 3d 254, 259
(CA5 2002) (“ ‘Moral turpitude refers generally to conduct
that shocks the public conscience as being inherently base,
vile, or depraved’ ”), with Guarneri v. Kessler, 98 F. 2d 580,
580–581 (CA5 1938) (“Moral turpitude” involves “ ‘[a]nything
done contrary to justice, honesty, principle or good morals’ ”),
and Quilodran-Brau v. Holland, 232 F. 2d 183, 184 (CA3
1956) (“The borderline of ‘moral turpitude’ is not an easy one
to locate”).
That being so—as long as Kim’s legal arguments are nei-
ther insubstantial nor interposed solely for purposes of
delay—then the immigration statutes, interpreted in light of
the Constitution, permit Kim (if neither dangerous nor a
flight risk) to obtain bail. For one thing, Kim’s constitu-
tional claims to bail in these circumstances are strong. See
ante, at 548–552, 557–558 (Souter, J., concurring in part and
dissenting in part). Indeed, they are strong enough to re-
quire us to “ascertain whether a construction of the statute
is fairly possible by which the [constitutional] question may

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be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932); ac-
cord, Zadvydas, supra, at 689.
For another, the relevant statutes literally say nothing
about an individual who, armed with a strong argument
against deportability, might, or might not, fall within their
terms. Title 8 U. S. C. § 1226(c) tells the Attorney General
to “take into custody any alien who . . . is deportable” (em-
phasis added), not one who may, or may not, fall into that
category. Indeed, the Government now permits such an
alien to obtain bail if his argument against deportability is
significantly stronger than substantial, i. e., strong enough to
make it “substantially unlikely” that the Government will
win. Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999).
Cf. 8 CFR § 3.19(h)(2)(ii) (2002).
Finally, bail standards drawn from the criminal justice
system are available to fill this statutory gap. Federal law
makes bail available to a criminal defendant after conviction
and pending appeal provided (1) the appeal is “not for the
purpose of delay,” (2) the appeal “raises a substantial ques-
tion of law or fact,” and (3) the defendant shows by “clear
and convincing evidence” that, if released, he “is not likely
to flee or pose a danger to the safety” of the community. 18
U. S. C. § 3143(b). These standards give considerable weight
to any special governmental interest in detention (e. g.,
process-related concerns or class-related flight risks, see
ante, at 528). The standards are more protective of a de-
tained alien’s liberty interest than those currently adminis-
tered in the Immigration and Naturalization Service’s Joseph
hearings. And they have proved workable in practice in the
criminal justice system. Nothing in the statute forbids
their use when § 1226(c) deportability is in doubt.
I would interpret the (silent) statute as imposing these
bail standards. Cf. Zadvydas, supra, at 698; United States
v. Witkovich, 353 U. S. 194, 201–202 (1957); Kent v. Dulles,
357 U. S. 116, 129 (1958). So interpreted, the statute would
require the Government to permit a detained alien to seek

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Opinion of Breyer, J.
an individualized assessment of flight risk and dangerousness
as long as the alien’s claim that he is not deportable is (1)
not interposed solely for purposes of delay and (2) raises a
question of “law or fact” that is not insubstantial. And that
interpretation, in my view, is consistent with what the Con-
stitution demands. I would remand this case to the Ninth
Circuit to determine whether Kim has raised such a claim.
With respect, I dissent from the Court’s contrary
disposition.

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580 OCTOBER TERM, 2002
Syllabus
ROELL et al. v. WITHROW
certiorari to the united states court of appeals for
the fifth circuit
No. 02–69. Argued February 26, 2003—Decided April 29, 2003
The Federal Magistrate Act of 1979 (Act) empowers full-time magistrate
judges to conduct “any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case,” as long as they
are “specially designated . . . by the district court” and acting with “the
consent of the parties.” 28 U. S. C. § 636(c)(1). Respondent Withrow,
a state prisoner, brought an action under 42 U. S. C. § 1983 against mem-
bers of the prison’s medical staff, petitioners Roell, Garibay, and Reagan,
alleging that they had deliberately disregarded his medical needs in
violation of the Eighth Amendment. During a preliminary hearing, the
Magistrate Judge told Withrow that he could choose to have her rather
than the District Judge preside over the entire case. Withrow agreed
orally and later in writing, but the petitioners did not at that point give
their consent. Without waiting for their decision, the District Judge
referred the case to the Magistrate Judge for final disposition, but with
the caveat that all petitioners would have an opportunity to consent to
her jurisdiction, and that the referral order would be vacated if any of
them did not consent. Only Reagan gave written consent to the refer-
ral; Roell and Garibay said nothing about the referral. The case never-
theless proceeded in front of the Magistrate Judge, all the way to a jury
verdict and judgment for the petitioners. Roell and Garibay voluntar-
ily participated in the entire course of proceedings and voiced no objec-
tion when, at several points, the Magistrate Judge made it clear that
she believed they had consented. When Withrow appealed, the Fifth
Circuit sua sponte remanded the case to the District Court to determine
whether the parties had consented to proceed before the Magistrate
Judge. Only then did Roell and Garibay file a formal letter of consent
stating that they consented to all of the prior proceedings before the
Magistrate Judge. The District Court referred the Fifth Circuit’s en-
quiry to that same Magistrate Judge, who reported that by their actions
Roell and Garibay clearly implied their consent to her jurisdiction, but
ruled that she had lacked jurisdiction because, under Circuit precedent,
such consent had to be expressly given. The District Court adopted
the report and recommendation. The Fifth Circuit affirmed, holding
that, under § 636(c)(1), lack of consent and defects in the referral order
are nonwaivable jurisdictional errors, that § 636(c) consent must be ex-

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581 Cite as: 538 U. S. 580 (2003)
Syllabus
press, and that petitioners’ postjudgment consent was inadequate
under the Act.
Held: Consent to a magistrate judge’s designation can be inferred from a
party’s conduct during litigation. Roell’s and Garibay’s general appear-
ances before the Magistrate Judge, after they had been told of their
right to be tried by a district judge, supply the consent necessary for
the Magistrate Judge’s “civil jurisdiction” under § 636(c)(1). It is true
that § 636(c)(2) and Federal Rule of Civil Procedure 73(b), which estab-
lish the procedures for a § 636(c)(1) referral, envision advance, written
consent communicated to the clerk. This procedure is by no means just
advisory, and district courts are bound to adhere strictly to it. But the
text and structure of § 636(c) as a whole indicate that a defect in the
referral under § 636(c)(2) does not eliminate that magistrate judge’s
“civil jurisdiction” under § 636(c)(1) as long as the parties have in fact
voluntarily consented. So far as concerns full-time magistrate judges,
§ 636(c)(1), which is the font of magistrate judge authority, speaks only
of “the consent of the parties,” without qualification as to form, and
§ 636(c)(3) similarly provides that “[t]he consent of the parties allows” a
full-time magistrate judge to enter a final, appealable judgment of the
district court. These unadorned references to the “consent of the par-
ties” contrast with the language in § 636(c)(1) covering referral to cer-
tain part-time magistrate judges, which requires not only that the par-
ties consent, but that they do so by “specific written request.” In
addition, there is a good pragmatic reason to think that Congress in-
tended to permit implied consent. In giving magistrate judges case-
dispositive civil authority, Congress hoped to relieve the district courts’
caseload while still preserving every litigant’s right to insist on trial
before an Article III district judge. Strict insistence on the express
consent requirement embodied in § 636(c)(2) would minimize any risk to
the latter objective, but it would create an even greater risk to the
former one: the risk of a full and complicated trial wasted at the option
of an undeserving and possibly opportunistic litigant. Here, Withrow
gave express, written consent; he thus received the protection intended
by the statute and deserves no boon from the other side’s failure. Had
the outcome of the case been different, the shoe might be on the other
foot; insistence on the bright line would let parties in Roell’s and Gari-
bay’s position hedge their bets, keeping a poker face to conceal their
failure to file the form, and then sandbagging the other side when the
judgment turned out not to their liking. The preferable rule, which
does better by the mix of congressional objectives, is to infer con-
sent from a litigant’s general appearance before the magistrate judge,
after having been told of his right to be tried by a district judge.
Pp. 585–591.
288 F. 3d 199, reversed and remanded.

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582 ROELL v. WITHROW
Opinion of the Court
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J.,
filed a dissenting opinion, in which Stevens, Scalia, and Kennedy, JJ.,
joined, post, p. 591.
Lisa R. Eskow, Deputy Solicitor General of Texas, argued
the cause for petitioners. With her on the briefs were Greg
Abbott, Attorney General, Philip A. Lionberger, former So-
licitor General, R. Ted Cruz, Solicitor General, Melanie P.
Sarwal, Assistant Solicitor General, and Charles K. Eldred,
Assistant Attorney General.
Amanda Frost argued the cause for respondent. With
her on the brief was Brian Wolfman.
Justice Souter delivered the opinion of the Court.
The Federal Magistrate Act of 1979 (Federal Magistrate
Act or Act) expanded the power of magistrate judges by au-
thorizing them to conduct “any or all proceedings in a jury
or nonjury civil matter and order the entry of judgment in
the case,” as long as they are “specially designated . . . by
the district court” and are acting “[u]pon the consent of the
parties.” 28 U. S. C. § 636(c)(1). The question is whether
consent can be inferred from a party’s conduct during litiga-
tion, and we hold that it can be.
I
Respondent Jon Michael Withrow is a Texas state prisoner
who brought an action under Rev. Stat. § 1979, 42 U. S. C.
§ 1983, against members of the prison’s medical staff, peti-
tioners Joseph Roell, Petra Garibay, and James Reagan, al-
leging that they had deliberately disregarded his medical
needs in violation of the Eighth Amendment. See Estelle v.
Gamble, 429 U. S. 97 (1976). During a preliminary hearing
before a Magistrate Judge to determine whether the suit
could proceed in forma pauperis, see 28 U. S. C. § 1915, the
Magistrate Judge told Withrow that he could choose to have

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583 Cite as: 538 U. S. 580 (2003)
Opinion of the Court
her rather than the District Judge preside over the entire
case. App. 10–11. Withrow agreed orally, id., at 11, and
later in writing, App. to Pet. for Cert. 20a. A lawyer from
the Texas attorney general’s office who attended the hearing,
but was not permanently assigned to Withrow’s case, indi-
cated that she would have to “talk to the attorneys who have
been assigned the case to see if [the petitioners] will execute
consent forms.” App. 11.
Without waiting for the petitioners’ decision, the District
Judge referred the case to the Magistrate Judge for final
disposition, but with the caveat that “all defendants [would]
be given an opportunity to consent to the jurisdiction of the
magistrate judge,” and that the referral order would be va-
cated if any of the defendants did not consent. App. to Pet.
for Cert. 21a. The Clerk of Court sent the referral order to
the petitioners along with a summons directing them to in-
clude “[i]n their answer or in a separate pleading . . . a state-
ment that ‘All defendants consent to the jurisdiction of a
United States Magistrate Judge’ or ‘All defendants do not
consent to the jurisdiction of a United States Magistrate
Judge.’ ” App. 13. The summons advised them that “[t]he
court shall not be told which parties do not consent.” Ibid.
Only Reagan, who was represented by private counsel, gave
written consent to the referral; Roell and Garibay, who were
represented by an assistant in the attorney general’s office,
filed answers but said nothing about the referral. App. to
Pet. for Cert. 17a.
The case nevertheless proceeded in front of the Magistrate
Judge, all the way to a jury verdict and judgment for the
petitioners. When Withrow appealed, the Court of Appeals
sua sponte remanded the case to the District Court to “de-
termine whether the parties consented to proceed before the
magistrate judge and, if so, whether the consents were oral
or written.” Id., at 13a. It was only then that Roell and
Garibay filed a formal letter of consent with the District

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584 ROELL v. WITHROW
Opinion of the Court
Court, stating that “they consented to all proceedings before
this date before the United States Magistrate Judge, includ-
ing disposition of their motion for summary judgment and
trial.” Id., at 22a.
The District Court nonetheless referred the Court of Ap-
peals’s enquiry to the same Magistrate Judge who had con-
ducted the trial, who reported that “by their actions [Roell
and Garibay] clearly implied their consent to the jurisdiction
of a magistrate.” Id., at 19a. She was surely correct, for
the record shows that Roell and Garibay voluntarily partici-
pated in the entire course of proceedings before the Magis-
trate Judge, and voiced no objection when, at several points,
the Magistrate Judge made it clear that she believed they
had consented.1 The Magistrate Judge observed, however,
that under the Circuit’s precedent “consent cannot be implied
by the conduct of the parties,” id., at 18a, and she accord-
ingly concluded that the failure of Roell and Garibay to give
express consent before sending their postjudgment letter to
the District Court meant that she had lacked jurisdiction to
hear the case, ibid. The District Court adopted the report
and recommendation over the petitioners’ objection. Id.,
at 14a–15a.
The Court of Appeals affirmed the District Court, agree-
ing that “[w]hen, pursuant to § 636(c)(1), the magistrate judge
1 On at least three different occasions, counsel for Roell and Garibay was
present and stood silent when the Magistrate Judge stated that they had
consented to her authority. First, in a status teleconference involving the
addition of a new defendant, Danny Knutson, who later settled with Wi-
throw and was dropped from the suit, the Magistrate Judge stated that
“all of the other parties have consented to my jurisdiction.” App. 18.
Petitioners later filed a motion for summary judgment, which the Magis-
trate Judge denied, noting in her order that “this case was referred to the
undersigned to conduct all further proceedings, including entry of final
judgment, in accordance with 28 U. S. C. § 636(c)(1).” App. to Pet. for
Cert. 26a. And finally, during jury selection, the Magistrate Judge told
the panel that both sides had consented to her jurisdiction to hear the
case. Id., at 27a.

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Opinion of the Court
enters [a] final judgment, lack of consent and defects in the
order of reference are jurisdictional errors” that cannot be
waived. 288 F. 3d 199, 201 (CA5 2002). It also reaffirmed
its prior holding that Ҥ 636(c) consent must be express; it
cannot be implied by the parties’ conduct.” Ibid. Finally,
the appellate court decided that petitioners’ postjudgment
consent did not satisfy § 636(c)(1)’s consent requirement.
Id., at 203. We granted certiorari, 537 U. S. 999 (2002), and
now reverse.
II
The Federal Magistrate Act provides that “[u]pon the con-
sent of the parties, a full-time United States magistrate
judge . . . may conduct any or all proceedings in a jury or
nonjury civil matter and order the entry of judgment in the
case, when specially designated to exercise such jurisdiction
by the district court.” 28 U. S. C. § 636(c)(1). Unlike non-
consensual referrals of pretrial but case-dispositive matters
under § 636(b)(1), which leave the district court free to do as
it sees fit with the magistrate judge’s recommendations, a
§ 636(c)(1) referral gives the magistrate judge full authority
over dispositive motions, conduct of trial, and entry of final
judgment, all without district court review. A judgment en-
tered by “a magistrate judge designated to exercise civil ju-
risdiction under [§ 636(c)(1)]” is to be treated as a final judg-
ment of the district court, appealable “in the same manner
as an appeal from any other judgment of a district court.”
§ 636(c)(3).2
2 Prior to the 1996 amendments to the Act, see Federal Courts Improve-
ment Act of 1996, Pub. L. 104–317, § 207(1)(B), 110 Stat. 3850, parties could
also elect to appeal to “a judge of the district court in the same manner
as on an appeal from a judgment of the district court to a court of appeals.”
28 U. S. C. § 636(c)(4) (1994 ed.) (repealed 1996). If the latter course was
pursued, the court of appeals could grant leave to appeal the district
court’s judgment. § 636(c)(5) (same). In all events, whether the initial
appeal was to the court of appeals under § 636(c)(3) or to the district court
under § 636(c)(4), the parties retained the right to seek ultimate review
from this Court. § 636(c)(5) (same).

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586 ROELL v. WITHROW
Opinion of the Court
Section 636(c)(2) establishes the procedures for a § 636(c)(1)
referral. “If a magistrate judge is designated to exercise
civil jurisdiction under [§ 636(c)(1)], the clerk of court shall,
at the time the action is filed, notify the parties of the avail-
ability of a magistrate judge to exercise such jurisdiction.”
§ 636(c)(2). Within the time required by local rule, “[t]he de-
cision of the parties shall be communicated to the clerk of
court.” Ibid. Federal Rule of Civil Procedure 73(b) speci-
fies that the parties’ election of a magistrate judge shall be
memorialized in “a joint form of consent or separate forms
of consent setting forth such election,” see Fed. Rules Civ.
Proc. Form 34, and that neither the magistrate nor the dis-
trict judge “shall . . . be informed of a party’s response to
the clerk’s notification, unless all parties have consented to
the referral of the matter to a magistrate judge.” The pro-
cedure created by 28 U. S. C. § 636(c)(2) and Rule 73(b) thus
envisions advance, written consent communicated to the
clerk, the point being to preserve the confidentiality of a par-
ty’s choice, in the interest of protecting an objecting party
against any possible prejudice at the magistrate judge’s
hands later on. See also § 636(c)(2) (“Rules of court for the
reference of civil matters to magistrate judges shall include
procedures to protect the voluntariness of the parties’
consent”).
Here, of course, § 636(c)(2) was honored in the breach, by a
referral before Roell and Garibay gave their express consent,
without any statement from them, written or oral, until after
judgment. App. to Pet. for Cert. 19a. Nonetheless, Roell
and Garibay “clearly implied their consent” by their decision
to appear before the Magistrate Judge, without expressing
any reservation, after being notified of their right to refuse
and after being told that she intended to exercise case-
dispositive authority. Ibid.3 The only question is whether
3 See Black’s Law Dictionary 95 (7th ed. 1999) (“ ‘The term “appearance”
. . . designate[s] the overt act by which [a party] submits himself to the
court’s jurisdiction . . . . An appearance may be expressly made by formal

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Opinion of the Court
consent so shown can count as conferring “civil jurisdiction”
under § 636(c)(1), or whether adherence to the letter of
§ 636(c)(2) is an absolute demand.
So far as it concerns full-time magistrate judges,4 the font
of a magistrate judge’s authority, § 636(c)(1), speaks only of
“the consent of the parties,” without qualification as to form,
and § 636(c)(3) similarly provides that “[t]he consent of the
parties allows” a full-time magistrate judge to enter a final,
appealable judgment of the district court. These unadorned
references to “consent of the parties” contrast with the lan-
guage in § 636(c)(1) covering referral to certain part-time
magistrate judges, which requires not only that the parties
consent, but that they do so by “specific written request.”
Cf. also 18 U. S. C. § 3401(b) (allowing magistrate judges to
preside over misdemeanor trials only if the defendant “ex-
pressly consents . . . in writing or orally on the record”). A
distinction is thus being made between consent simple, and
consent expressed in a “specific written request.” And
although the specific referral procedures in 28 U. S. C.
§ 636(c)(2) and Federal Rule of Civil Procedure 73(b) are by
no means just advisory, the text and structure of the section
as a whole suggest that a defect in the referral to a full-time
magistrate judge under § 636(c)(2) does not eliminate that
magistrate judge’s “civil jurisdiction” under § 636(c)(1) so
long as the parties have in fact voluntarily consented. See
King v. Ionization Int’l, Inc., 825 F. 2d 1180, 1185 (CA7 1987)
(noting that the Act “does not require a specific form . . .
of consent”).5
written or oral declaration, or record entry, or it may be implied from some
act done with the intention of appearing and submitting to the court’s
jurisdiction’ ” (quoting 4 Am. Jur. 2d, Appearance § 1, p. 620 (1995))).
4 The parties do not dispute that the Magistrate Judge who presided
over the trial was a full-time Magistrate Judge.
5 The textual evidence cited by the dissent is far from conclusive. The
dissent focuses on the fact that § 636(c)(1) allows a magistrate judge to
exercise authority only “[u]pon” the parties’ consent, and it concludes that
this temporal connotation forecloses accepting implied consent. But the

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588 ROELL v. WITHROW
Opinion of the Court
These textual clues are complemented by a good pragmatic
reason to think that Congress intended to permit implied
consent. In giving magistrate judges case-dispositive civil
authority, Congress hoped to relieve the district courts’
“mounting queue of civil cases” and thereby “improve access
to the courts for all groups.” S. Rep. No. 96–74, p. 4 (1979);
see H. R. Rep. No. 96–287, p. 2 (1979) (The Act’s main object
was to create “a supplementary judicial power designed to
meet the ebb and flow of the demands made on the Federal
judiciary”). At the same time, though, Congress meant to
preserve a litigant’s right to insist on trial before an Article
III district judge insulated from interference with his obliga-
tion to ignore everything but the merits of a case. See
Commodity Futures Trading Comm’n v. Schor, 478 U. S.
833, 848 (1986) (Article III protects litigants’ “ ‘right to have
claims decided before judges who are free from potential
timing of consent is a different matter from the manner of its expression,
and it is perfectly in keeping with the sequence of events envisioned by
§ 636(c)(1) to infer consent from a litigant’s initial act of appearing be-
fore the magistrate judge and submitting to her jurisdiction, instead of
insisting on trial before a district judge. An “appearance” being com-
monly understood as “[t]he first act of the defendant in court,” J. Ballen-
tine, Law Dictionary with Pronunciations 91 (2d ed. 1948), any subsequent
proceedings by the court will occur “[u]pon the consent of the parties,”
§ 636(c)(1).
Furthermore, it is hardly true, contrary to the dissent’s claim, post, at
594 (opinion of Thomas, J.), that § 636(c)(2) and Rule 73(b) are pointless if
implied consent is permitted under § 636(c)(1). Certainly, notification of
the right to refuse the magistrate judge is a prerequisite to any inference
of consent, so that aspect of § 636(c)(2)’s protection is preserved. And
litigants may undoubtedly insist that they be able to communicate their
decision on the referral to the clerk, in order to guard against the risk of
reprisals at the hands of either judge. The only question is whether a
litigant who forgoes that procedural opportunity, but still voluntarily gives
his consent through a general appearance before the magistrate judge, is
still subject to the magistrate judge’s “civil jurisdiction,” and we think
that the language of § 636(c)(1) indicates that he is.

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Opinion of the Court
domination by other branches of government’ ” (quoting
United States v. Will, 449 U. S. 200, 218 (1980))). It was
thus concern about the possibility of coercive referrals that
prompted Congress to make it clear that “the voluntary con-
sent of the parties is required before a civil action may be
referred to a magistrate for a final decision.” S. Conf. Rep.
No. 96–322, p. 7 (1979); see also S. Rep. No. 96–74, at 5 (“The
bill clearly requires the voluntary consent of the parties as
a prerequisite to a magistrate’s exercise of the new jurisdic-
tion. The committee firmly believes that no pressure, tacit
or expressed, should be applied to the litigants to induce
them to consent to trial before the magistrates”); H. R. Rep.
No. 96–287, at 2 (The Act “creates a vehicle by which liti-
gants can consent, freely and voluntarily, to a less formal,
more rapid, and less expensive means of resolving their
civil controversies”).6
When, as here, a party has signaled consent to the magis-
trate judge’s authority through actions rather than words,
the question is what outcome does better by the mix of con-
gressional objectives. On the one hand, the virtue of strict
insistence on the express consent requirement embodied in
§ 636(c)(2) is simply the value of any bright line: here, abso-
lutely minimal risk of compromising the right to an Article
6 Originally, the third sentence of § 636(c)(2) provided that once the deci-
sion of the parties was communicated to the clerk, “neither the district
judge nor the magistrate shall attempt to persuade or induce any party to
consent to reference of any civil matter to a magistrate.” 93 Stat. 643.
In the 1990 amendments to the Act, Congress amended § 636(c)(2) to pro-
vide that even after the parties’ decision is made, “either the district court
judge or the magistrate may again advise the parties of the availability of
the magistrate, but in so doing, shall also advise the parties that they
are free to withhold consent without adverse substantive consequences.”
Judicial Improvements Act of 1990, Pub. L. 101–650, § 308, 104 Stat. 5112.
The change reflected Congress’s diminishing concern that communication
between the judge and the parties would lead to coercive referrals. See
H. R. Rep. No. 101–734, p. 27 (1990).

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590 ROELL v. WITHROW
Opinion of the Court
III judge. But there is another risk, and insisting on a
bright line would raise it: the risk of a full and complicated
trial wasted at the option of an undeserving and possibly
opportunistic litigant. This risk is right in front of us in
this case. Withrow consented orally and in writing to the
Magistrate Judge’s authority following notice of his right to
elect trial by an Article III district judge; he received the
protection intended by the statute, and deserves no boon
from the other side’s failure to cross the bright line. In fact,
there is even more to Withrow’s unworthiness, since under
the local rules of the District Court, it was Withrow’s unmet
responsibility as plaintiff to get the consent of all parties and
file the completed consent form with the clerk. See Gen.
Order No. 80–5, Art. III(B)(2) (SD Tex., June 16, 1980), p. 5,
App. to Brief in Opposition 7a. In another case, of course,
the shoe might be on the other foot; insisting on the bright
line would allow parties in Roell’s and Garibay’s position to
sit back without a word about their failure to file the form,
with a right to vacate any judgment that turned out not to
their liking.
The bright line is not worth the downside. We think the
better rule is to accept implied consent where, as here, the
litigant or counsel was made aware of the need for consent
and the right to refuse it, and still voluntarily appeared to
try the case before the Magistrate Judge. Inferring consent
in these circumstances thus checks the risk of gamesmanship
by depriving parties of the luxury of waiting for the outcome
before denying the magistrate judge’s authority. Judicial
efficiency is served; the Article III right is substantially hon-
ored. See Schor, supra, at 849–850 (finding that the litigant
“effective[ly] waive[d]” his right to an Article III court by
deciding “to seek relief before the [Commodity Futures
Trading Commission] rather than in the federal courts”);
United States v. Raddatz, 447 U. S. 667, 676, n. 3 (1980) (es-
chewing a construction of the Act that would tend to “frus-

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591 Cite as: 538 U. S. 580 (2003)
Thomas, J., dissenting
trate the plain objective of Congress to alleviate the increas-
ing congestion of litigation in the district courts”).7
III
Roell’s and Garibay’s general appearances before the Mag-
istrate Judge, after they had been told of their right to be
tried by a district judge, supply the consent necessary for
the Magistrate Judge’s “civil jurisdiction” under § 636(c)(1).8
We reverse the judgment of the Court of Appeals and re-
mand the case for proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Stevens, Justice
Scalia, and Justice Kennedy join, dissenting.
The provision that this Court must interpret reads: “Upon
the consent of the parties, a . . . magistrate judge . . . may
7 We doubt that this interpretation runs a serious risk of “spawn[ing] a
second litigation of significant dimension.” Buckhannon Board & Care
Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532
U. S. 598, 609 (2001) (internal quotation marks omitted). In the first
place, implied consent will be the exception, not the rule, since, as we
discuss above, district courts remain bound by the procedural require-
ments of § 636(c)(2) and Federal Rule of Civil Procedure 73(b). See supra,
at 586, 587–588, n. 5. The dissent surmises, post, at 596, that our position
raises “ambiguities” as to whether an inference of consent will be sup-
ported in a particular case, but we think this concern is greatly exagger-
ated: as long as parties are notified of the availability of a district judge
as required by § 636(c)(2) and Rule 73(b), a litigant’s general appearance
before the magistrate judge will usually indicate the necessary consent.
In all events, whatever risk of “second[ary] litigation” may exist under an
implied consent rule pales in comparison to the inefficiency and unfairness
of requiring relitigation of the entire case in circumstances like these.
8 Because we conclude that Roell and Garibay impliedly consented to
the Magistrate Judge’s authority, we need not address whether express
postjudgment consent would be sufficient in a case where there was no
prior consent, either express or implied. We also have no opportunity to
decide whether the Court of Appeals was correct that lack of consent is a
“jurisdictional defect” that can be raised for the first time on appeal.

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592 ROELL v. WITHROW
Thomas, J., dissenting
conduct any or all proceedings in a jury or nonjury civil mat-
ter and order the entry of judgment.” 28 U. S. C. § 636(c)(1).
The majority holds that no express consent need be given
prior to the commencement of proceedings before the magis-
trate judge. Rather, consent can be implied “where . . . the
litigant or counsel was made aware of the need for consent
and the right to refuse it, and still voluntarily appeared to
try the case before the Magistrate Judge.” Ante, at 590.
In my view, this interpretation of § 636(c)(1) is contrary to its
text, fails to respect the statutory scheme, and raises serious
constitutional concerns. Furthermore, I believe that a lack
of proper consent is a jurisdictional defect and, therefore, a
court of appeals reviewing a judgment entered by a magis-
trate judge pursuant to § 636(c) may inquire sua sponte into
the consent’s validity.
I
A
There are two prongs to the majority’s holding: (1) parties
can give their consent during the actual proceedings con-
ducted by a magistrate judge, and (2) such consent need not
be explicit, but rather may be inferred from the parties’ con-
duct. Neither of these conclusions is correct.
As already noted, a magistrate judge may carry out cer-
tain functions of a district court only “[u]pon the consent of
the parties.” Congress’ use of the word “upon” suggests
that the necessary consent must precede the magistrate
judge’s exercise of his authority. “Upon” is defined as
“immediately or very soon after.” The Random House Dic-
tionary of the English Language 1570 (1966). Thus, under
the plain language of the statute, consent is a precondition
to the magistrate judge’s exercise of case-dispositive power;
without it, a magistrate judge cannot preside over a trial or
enter judgment. Pacemaker Diagnostic Clinic of Am., Inc.
v. Instromedix, Inc., 725 F. 2d 537, 540 (CA9 1984) (en banc)
(Kennedy, J.).

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593 Cite as: 538 U. S. 580 (2003)
Thomas, J., dissenting
The word “upon” is used to mean “thereafter” in other
parts of the statute as well. For example, § 636(h) provides
that a “magistrate judge who has retired may, upon the con-
sent of the chief judge of the district involved, be recalled to
serve as a magistrate judge . . . .” (Emphasis added.)
Clearly, a retired magistrate judge cannot return to his
former post before the chief judge consents. Similarly,
§ 636(e)(3) uses the word “upon” to mean “subsequent to.”
That subsection grants magistrate judges the power to hold
parties before them in contempt, but conditions the imposi-
tion of contempt sanctions “upon notice and hearing under
the Federal Rules of Criminal Procedure. ” (Emphasis
added.) That is, a party cannot be held in contempt without
first being given notice and a hearing. Because under the
normal rules of statutory construction the Court “assumes
that identical words used in different parts of the same
act are intended to have the same meaning,” Sorenson v.
Secretary of Treasury, 475 U. S. 851, 860 (1986) (citations
and internal quotation marks omitted), the word “upon” in
§ 636(c)(1) must mean “thereafter,” just as it does in §§ 636(h)
and (e)(3). By allowing consent to be “inferred from a par-
ty’s conduct during litigation,” ante, at 582 (emphasis added),
the majority disregards the clear meaning of the word
“upon.”
Similarly, the conclusion that implied, rather than express,
consent suffices is not borne out by either § 636(c)(1) itself or
the statutory scheme as a whole. The majority is, of course,
correct that the relevant clause of § 636(c)(1) speaks only of
“consent,” while the clause addressing part-time magistrate
judges requires that consent be communicated by a “specific
written request.” Ante, at 587 (internal quotation marks
omitted). But this premise does not command the conclu-
sion the majority draws. Both clauses require express con-
sent, with the latter mandating a specific form of express
consent—a written request.

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594 ROELL v. WITHROW
Thomas, J., dissenting
This reading is most consistent with the statutory scheme.
Despite the majority’s concession that § 636(c)(2) and Federal
Rule of Civil Procedure 73 “are by no means just advisory,”
ante, at 587, the majority fails to give them any weight.
Section 636(c)(2) requires the clerk of the district court to
notify the parties of the availability of a magistrate “at the
time the action is filed,” after which the “decision of the par-
ties [whether to consent] shall be communicated to the clerk
of court.” The fact that the parties’ decision must be com-
municated to the clerk soon after the filing of the action indi-
cates that the consent envisioned by the statute must be
given affirmatively and expressly. Indeed, a party would
find it quite difficult to “communicat[e]” the necessary con-
sent to the clerk of the court through actions undertaken
“during litigation,” ante, at 582 (emphasis added). The ma-
jority’s view suggests that the clerk of the court must moni-
tor the parties’ behavior in the magistrate judge’s courtroom
and determine, at some point not specified by the majority,
that the parties’ actions have ripened into consent. That is
not a reasonable interpretation. Accordingly, I would hold
that appearance before a magistrate judge without objection
cannot be deemed “consent” within the meaning of this stat-
utory scheme.
Federal Rule of Civil Procedure 73 fortifies this reading.
The Rule mirrors the provisions of § 636(c)(2) for informing
parties of their option to proceed before a magistrate judge
and of their obligation to file a consent form if they chose to
do so. Fed. Rule Civ. Proc. 73(b) (“When a magistrate judge
has been designated to exercise civil trial jurisdiction, the
clerk shall give written notice to the parties of their opportu-
nity to consent,” and if the parties agree, “they shall execute
and file a joint form of consent or separate forms of consent
. . .” (emphasis added)).
Read together, the foregoing provisions indicate that par-
ties must expressly communicate their consent to the magis-
trate judge’s exercise of jurisdiction over their case and must

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595 Cite as: 538 U. S. 580 (2003)
Thomas, J., dissenting
do so before litigation—or at the very least before a magis-
trate judge enters a binding judgment.
B
While I agree with the majority’s view that § 636(c)(1) was
“meant to preserve a litigant’s right to insist on trial before
an Article III district judge,” ante, at 588, and to prevent
“coercive referrals,” ante, at 589, the majority’s construction
of this provision does not follow the Court’s “settled policy
to avoid an interpretation of a federal statute that engenders
constitutional issues.” Gomez v. United States, 490 U. S.
858, 864 (1989).
“A critical limitation on [the] expanded jurisdiction [of
magistrate judges] is consent. ” Id., at 870. Reading
§ 636(c)(1) to require express consent not only is more con-
sistent with the text of the statute, but also ensures that the
parties knowingly and voluntarily waive their right to an
Article III judge. A party’s express consent is a clear and
unambiguous indication that the party had sufficient notice
it was freely waiving its right. Accordingly, I would choose
this interpretation over the majority’s view that implied con-
sent suffices to give a magistrate judge dispositive authority
over a case. Cf. Aetna Ins. Co. v. Kennedy ex rel. Bogash,
301 U. S. 389, 393 (1937) (holding that the parties, by their
request for directed verdicts, did not waive their right to
trial by jury, and observing that “courts indulge every rea-
sonable presumption against waiver”); Ohio Bell Telephone
Co. v. Public Util. Comm’n of Ohio, 301 U. S. 292, 307 (1937)
(holding that a telephone company did not waive its right
to have the value of its property determined upon evidence
presented in open proceedings by not opposing consolidation
of two proceedings, and noting that “[w]e do not presume
acquiescence in the loss of fundamental rights”).
Moreover, the majority’s test for determining whether a
party has given adequate implied consent—“where . . . the
litigant or counsel was made aware of the need for consent

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596 ROELL v. WITHROW
Thomas, J., dissenting
and the right to refuse it, and still voluntarily appeared to
try the case before the Magistrate Judge,” ante, at 590—
is rife with ambiguities. How are the courts to determine
whether the litigant or counsel “was made aware of the need
to consent and the right to refuse it”? Are courts required
to search beyond the record and inquire into whether a clerk
of the court informed either a litigant or his counsel of the
litigant’s rights and provided them with requisite forms to
sign? Can courts rely, if applicable, on the parties’ partici-
pation in other unrelated proceedings before a magistrate
judge? In addition, the majority’s view of what constitutes
“voluntariness” in this context is not at all clear as it seems
to depend, at least in part, on establishing a litigant’s or
counsel’s awareness of the litigant’s rights.
Although the majority brushes aside the prudential impli-
cations of its reading, ante, at 591, n. 7 (“We doubt that this
interpretation runs a serious risk of ‘spawn[ing] a second
litigation of significant dimension.’ Buckhannon Board &
Care Home, Inc. v. West Virginia Dept. of Health and
Human Resources, 532 U. S. 598, 609 (2001)”), it is hardly a
novel proposition that a bright-line rule would be easier to
administer. And, it would certainly be so in adjudicating
the validity of consent under this statute. If express con-
sent is required, courts will not have to study the record of
a proceeding on a case-by-case basis, searching for patterns
in the parties’ behavior that would provide sufficient indicia
of voluntariness to satisfy this newly minted, but vague, test
for consent. A bright-line rule brings clarity and predict-
ability, and, in light of the constitutional implications of this
case, these values should not be discounted.
Given the uncertainties surrounding the determination of
the validity of implied consent, it is not surprising that the
majority does not even claim that the requirements of Arti-
cle III have been satisfied in this case. Rather, all the ma-
jority can muster is that “the Article III right is substan-
tially honored.” Ante, at 590 (emphasis added). However,

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Thomas, J., dissenting
litigants’ rights under Article III are either protected or
they are not. As the majority suggests, its reading does not
safeguard these rights. Indeed, the only protection offered
by the majority is its hope that the “procedural requirements
of § 636(c)(2) and Federal Rule of Civil Procedure 73(b)” will
be complied with. Ante, at 591, n. 7. The majority offers
no credible solution for circumstances, such as the ones here,
where these rules were not followed.
Even apart from the plain text of the statute and the canon
of constitutional avoidance, concerns about fairness—to
which the majority alludes above, see ante, at 588–590—
weigh in favor of express consent. According to the major-
ity, the respondent is a “possibly opportunistic litigant,” who
“deserves no boon from the other side’s failure to cross the
bright line,” ante, at 590. The record, however, provides no
evidence that respondent, proceeding pro se below, manipu-
lated the system. Moreover, “the other side” is the State of
Texas, a repeat player, represented by its own counsel, and
no doubt familiar with the rules of the local federal courts.
Finally, it was not respondent who raised the issue of con-
sent, but the Court of Appeals, which considered the ques-
tion sua sponte.
II
Because the parties here did not expressly consent to the
proceeding before the Magistrate Judge, I next consider
whether the lack of such consent destroys jurisdiction of a
court of appeals reviewing a magistrate judge’s judgment.
I believe it does, and thus, a court of appeals may—and in-
deed must—raise it sua sponte.
A court of appeals exercises jurisdiction over a magistrate
judge’s final order pursuant to § 636(c)(3), which provides:
“Upon entry of judgment in any case referred under
paragraph (1) of this subsection, an aggrieved party may
appeal directly to the appropriate United States court
of appeals from the judgment of the magistrate judge in

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598 ROELL v. WITHROW
Thomas, J., dissenting
the same manner as an appeal from any other judgment
of a district court. The consent of the parties allows a
magistrate judge designated to exercise civil jurisdic-
tion under paragraph (1) of this subsection to direct the
entry of a judgment of the district court in accordance
with the Federal Rules of Civil Procedure.” (Empha-
sis added.)
Under § 636(c)(3), appellate jurisdiction over final judgments
entered by a magistrate judge depends on whether the re-
quirements of § 636(c)(1), including consent, are satisfied.
Absence of consent means absence of a “judgment,” which, in
turn, means absence of appellate jurisdiction. Thus, under
§ 636, the necessary precondition for a court of appeals’ juris-
diction over a magistrate judge’s order is the parties’ consent
to proceed before the magistrate judge. Because valid con-
sent is a jurisdictional prerequisite for appellate jurisdiction,
and, hence, an integral part of the inquiry into the existence
of such jurisdiction, § 636(c)(3) permits a court of appeals to
examine the validity of the consent to the magistrate judge’s
authority sua sponte.
The de facto officer doctrine is not to the contrary. That
doctrine “prevent[s] litigants from abiding the outcome of a
lawsuit and then overturning it if adverse upon a technicality
of which they were previously aware.” Glidden Co. v. Zda-
nok, 370 U. S. 530, 535 (1962) (plurality opinion). Examples
of such “technicalities” are defects in the judge’s appoint-
ment or designation. See, e. g., Ex parte Ward, 173 U. S.
452, 456 (1899) ( judge improperly appointed during a Senate
recess); Wright v. United States, 158 U. S. 232, 238 (1895)
(deputy marshal whose oath of office had not been properly
administered); McDowell v. United States, 159 U. S. 596, 601–
602 (1895) ( judge whose designation to sit in a different dis-
trict may have been improper under the statute); Ball v.
United States, 140 U. S. 118, 128–129 (1891) ( judge sitting in
place of a deceased judge where designation permitted only
the substitution for a disabled judge). The doctrine is, how-

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599 Cite as: 538 U. S. 580 (2003)
Thomas, J., dissenting
ever, inapplicable “when the alleged defect of authority oper-
ates also as a limitation on this Court’s appellate jurisdiction.
Ayrshire Collieries Corp. v. United States, 331 U. S. 132
(three-judge court); United States v. Emholt, 105 U. S. 414
(certificate of divided opinion).” Glidden, 370 U. S., at 535
(plurality opinion). Additionally, “when the statute claimed
to restrict authority is not merely technical but embodies a
strong policy concerning the proper administration of judicial
business, this Court has treated the alleged defect as ‘juris-
dictional’ and agreed to consider it on direct review even
though not raised at the earliest practicable opportunity.”
Id., at 535–536. This is the case here—§ 636(c) “embodies a
strong policy” of ensuring that litigants waive their rights to
an Article III judge knowingly and voluntarily. The re-
quirement of consent is not a mere “technicality.” Sections
636(c)(1), 636(c)(2), and 636(c)(3) reference consent explicitly
and require it as a precondition for the exercise of a magis-
trate judge’s authority and of a court of appeals’ review of
the magistrate judge’s judgment. The foregoing indicates
the importance of consent as a touchstone of this statutory
scheme. Thus, absence of consent is a jurisdictional defect
and a court of appeals must raise such defects sua sponte.
* * *
I would vacate the judgment below and remand the case
with instructions to dismiss the appeal for lack of subject-
matter jurisdiction. I respectfully dissent.

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600 OCTOBER TERM, 2002
Syllabus
ILLINOIS ex rel. MADIGAN, ATTORNEY GENERAL
OF ILLINOIS v. TELEMARKETING ASSOCIATES,
INC., et al.
certiorari to the supreme court of illinois
No. 01–1806. Argued March 3, 2003—Decided May 5, 2003
Respondents, Illinois for-profit fundraising corporations and their owner
(collectively Telemarketers), were retained by VietNow National Head-
quarters, a charitable nonprofit corporation, to solicit donations to aid
Vietnam veterans. The contracts between those parties provided,
among other things, that Telemarketers would retain 85 percent of the
gross receipts from Illinois donors, leaving 15 percent for VietNow.
The Illinois Attorney General filed a complaint in state court, alleging,
inter alia, that Telemarketers represented to donors that a significant
amount of each dollar donated would be paid over to VietNow for spe-
cifically identified charitable endeavors, and that such representations
were knowingly deceptive and materially false, constituted a fraud, and
were made for Telemarketers’ private pecuniary benefit. The trial
court granted Telemarketers’ motion to dismiss the fraud claims
on First Amendment grounds. In affirming, the Illinois Appellate and
Supreme Courts placed heavy weight on Schaumburg v. Citizens for a
Better Environment, 444 U. S. 620, Secretary of State of Md. v. Joseph
H. Munson Co., 467 U. S. 947, and Riley v. National Federation of Blind
of N. C., Inc., 487 U. S. 781. Those decisions held that certain regula-
tions of charitable solicitation barring fees in excess of a prescribed level
effectively imposed prior restraints on fundraising, and were therefore
incompatible with the First Amendment. The state high court ac-
knowledged that this case involved no such prophylactic proscription of
high-fee charitable solicitation. Instead, the court noted, the Attorney
General sought to enforce the State’s generally applicable antifraud laws
against Telemarketers for specific instances of deliberate deception.
However, the Illinois Supreme Court said, Telemarketers’ solicitation
statements were alleged to be false only because Telemarketers con-
tracted for 85 percent of the gross receipts and failed to disclose this
information to donors. The court concluded that the Attorney Gener-
al’s complaint was, in essence, an attempt to regulate Telemarketers’
ability to engage in a protected activity based upon a percentage-rate
limitation—the same regulatory principle rejected in Schaumburg,
Munson, and Riley.

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601 Cite as: 538 U. S. 600 (2003)
Syllabus
Held: Consistent with this Court’s precedent and the First Amendment,
States may maintain fraud actions when fundraisers make false or mis-
leading representations designed to deceive donors about how their
donations will be used. The Illinois Attorney General’s allegations
against Telemarketers therefore state a claim for relief that can survive
a motion to dismiss. Pp. 611–624.
(a) The First Amendment protects the right to engage in charitable
solicitation, see, e. g., Schaumburg, 444 U. S., at 632, but does not shield
fraud, see, e. g., Donaldson v. Read Magazine, Inc., 333 U. S. 178, 190.
Like other forms of public deception, fraudulent charitable solicitation
is unprotected speech. See, e. g., Schneider v. State (Town of Irving-
ton), 308 U. S. 147, 164. This Court has not previously addressed the
First Amendment’s application to individual fraud actions of the kind at
issue here. It has, however, three times held unconstitutional prophy-
lactic laws designed to combat fraud by imposing prior restraints on
solicitation when fundraising fees exceeded a specified reasonable
level. Pp. 611–617.
(b) In those cases, Schaumburg, Munson, and Riley, the Court took
care to leave a corridor open for fraud actions to guard the public
against false or misleading charitable solicitations. See, e. g., Schaum-
burg, 444 U. S., at 637. As those decisions recognized, there are differ-
ences critical to First Amendment concerns between fraud actions
trained on representations made in individual cases and statutes that
categorically ban solicitations when fundraising costs run high. Simply
labeling an action one for “fraud,” of course, will not carry the day. Had
the State Attorney General’s complaint charged fraud based solely on
the percentage of donations the fundraisers would retain, or their failure
to alert donors to fee arrangements at the start of each call, Riley would
support swift dismissal. Portions of the Attorney General’s complaint
against Telemarketers were of this genre. But the complaint and an-
nexed affidavits, in large part, alleged not simply what Telemarketers
failed to convey. They also described what Telemarketers misleadingly
represented. Taking into account the affidavits, and reading the com-
plaint in the light most favorable to the Attorney General, that pleading
described misrepresentations this Court’s precedent does not place
under the First Amendment’s cover. First, the complaint asserted that
Telemarketers affirmatively represented that a significant amount of
each dollar donated would be paid over to VietNow to be used for spe-
cific charitable purposes while in fact Telemarketers knew that 15 cents
or less of each dollar would be available for those purposes. Second,
the complaint essentially alleged that the charitable solicitation was a
fac¸ade: Although Telemarketers represented that donated funds would
go to VietNow’s charitable purposes, the amount of funds paid over to

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602 ILLINOIS ex rel. MADIGAN v. TELEMARKETING
ASSOCIATES, INC.
Syllabus
the charity was merely incidental to the fundraising effort, which was
made for Telemarketers’ private pecuniary benefit. Fraud actions so
tailored, targeting misleading affirmative representations about how do-
nations would be used, are unlike the prophylactic measures invalidated
in Schaumburg, Munson, and Riley: So long as the emphasis is on what
the fundraisers misleadingly convey, and not on percentage limitations
on solicitors’ fees per se, fraud actions need not impermissibly chill pro-
tected speech. Pp. 617–619.
(c) The prohibitions invalidated in Schaumburg, Munson, and Riley
turned solely on whether high percentages of donated funds were spent
on fundraising. Their application did not depend on whether the fund-
raiser made fraudulent representations to potential donors. In contrast
to the prior restraints inspected in those cases, a properly tailored
fraud action targeting specific fraudulent representations employs no
“ ‘[b]road prophylactic rul[e],’ ” Schaumburg, 444 U. S., at 637 (citation
omitted), lacking any “nexus . . . [to] the likelihood that the solicitation
is fraudulent,” Riley, 487 U. S., at 793. Such an action thus falls on the
constitutional side of the line “between regulation aimed at fraud and
regulation aimed at something else in the hope that it would sweep
fraud in during the process.” Munson, 467 U. S., at 969–970. The At-
torney General’s complaint has a solid core in allegations that home in
on Telemarketers’ affirmative statements designed to mislead donors
regarding the use of their contributions. Of prime importance, to prove
a defendant liable for fraud under Illinois case law, the State must show
by clear and convincing evidence that the defendant knowingly made a
false representation of a material fact, that such representation was
made with the intent to mislead the listener, and that the representation
succeeded in doing so. In contrast to a prior restraint on solicitation,
or a regulation that imposes on fundraisers an uphill burden to prove
their conduct lawful, the State bears the full burden of proof in an indi-
vidualized fraud action. Exacting proof requirements of this order, in
other contexts, have been held to provide sufficient breathing room for
protected speech. See, e. g., New York Times Co. v. Sullivan, 376 U. S.
254, 279–280. As an additional safeguard responsive to First Amend-
ment concerns, an appellate court could independently review the trial
court’s findings. Cf. Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485, 498–511. What the First Amendment and this
Court’s case law emphatically do not require, however, is a blanket ex-
emption from fraud liability for a fundraiser who intentionally misleads
in calls for donations. While the percentage of fundraising proceeds
turned over to a charity is not an accurate measure of the amount of
funds used “for” a charitable purpose, Munson, 467 U. S., at 967, n. 16,
the gravamen of the fraud action in this case is not high costs or fees,

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603 Cite as: 538 U. S. 600 (2003)
Syllabus
but particular representations made with intent to mislead. The Illi-
nois Attorney General has not suggested that a charity must desist from
using donations for legitimate purposes such as information dissemina-
tion, advocacy, and the like. Rather, the Attorney General has alleged
that Telemarketers attracted donations by misleading potential donors
into believing that a substantial portion of their contributions would
fund specific programs or services, knowing full well that was not the
case. Such representations remain false or misleading, however legiti-
mate the other purposes for which the funds are in fact used. The
Court does not agree with Telemarketers that the Attorney General’s
fraud action is simply an end run around Riley’s holding that fundraisers
may not be required, in every telephone solicitation, to state the per-
centage of receipts the fundraiser would retain. It is one thing to com-
pel every fundraiser to disclose its fee arrangements at the start of
a telephone conversation, quite another to take fee arrangements into
account in assessing whether particular affirmative representations
designedly deceive the public. Pp. 619–623.
(d) Given this Court’s repeated approval of government efforts to en-
able donors to make informed choices about their charitable contribu-
tions, see, e. g., Schaumburg, 444 U. S., at 638, almost all States and
many localities require charities and professional fundraisers to register
and file regular reports on their activities, particularly their fundraising
costs. These reports are generally available to the public and are often
placed on the Internet. Telemarketers do not object on First Amend-
ment grounds to these disclosure requirements. Just as government
may seek to inform the public and prevent fraud through such require-
ments, so it may vigorously enforce antifraud laws to prohibit profes-
sional fundraisers from obtaining money on false pretenses or by mak-
ing false statements. Riley, 487 U. S., at 800. High fundraising costs,
without more, do not establish fraud, see id., at 793, and mere failure to
volunteer the fundraiser’s fee when contacting a potential donee, with-
out more, is insufficient to state a claim for fraud, id., at 795–801. But
these limitations do not disarm States from assuring that their residents
are positioned to make informed choices about their charitable giving.
Pp. 623–624.
198 Ill. 2d 345, 763 N. E. 2d 289, reversed and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court. Scalia, J.,
filed a concurring opinion, in which Thomas, J., joined, post, p. 624.
Richard S. Huszagh, Assistant Attorney General of Illi-
nois, argued the cause for petitioner. With him on the briefs

538US2 Unit: $U49 [11-02-04 17:58:23] PAGES PGT: OPLG
604 ILLINOIS ex rel. MADIGAN v. TELEMARKETING
ASSOCIATES, INC.
Counsel
were Lisa Madigan, Attorney General, James E. Ryan, for-
mer Attorney General, Joel D. Bertocchi, Solicitor General,
Barry B. Gross, Chief Deputy Attorney General, and Jerald
S. Post, Floyd D. Perkins, and Matthew D. Shapiro, Assist-
ant Attorneys General.
Deputy Solicitor General Clement argued the cause for
the United States et al. as amici curiae urging reversal.
With him on the brief were Solicitor General Olson, Assist-
ant Attorney General McCallum, Matthew D. Roberts, Jacob
M. Lewis, and Catherine Hancock.
Errol Copilevitz argued the cause for respondents. With
him on the brief were William E. Raney, Mackenzie Canter
III, and Mark Diskin.*
*Briefs of amici curiae urging reversal were filed for the State of Flor-
ida et al. by Richard E. Doran, Attorney General of Florida, Thomas E.
Warner, Solicitor General, Louis F. Hubener and Matthew J. Conigliaro,
Deputy Solicitors General, Jonathan A. Glogau, Arabella W. Teal, Corpo-
ration Counsel of the District of Columbia, Thomas R. Keller, Acting At-
torney General of Hawaii, and Anabelle Rodrı´guez, Attorney General of
Puerto Rico, and by the Attorneys General for their respective States as
follows: William H. Pryor, Jr., of Alabama, Gregg D. Renkes of Alaska,
Mark Lunsford Pryor of Arkansas, Bill Lockyer of California, Ken Sala-
zar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of
Delaware, Thurbert E. Baker of Georgia, Alan G. Lance of Idaho, Steve
Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas,
Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, G.
Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F.
Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Hatch
of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of
Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie
Sue Del Papa of Nevada, Phillip P. McLaughlin of New Hampshire,
David Samson of New Jersey, Patricia A. Madrid of New Mexico, Eliot
Spitzer of New York, Wayne Stenehjem of North Dakota, Betty D. Mont-
gomery of Ohio, Hardy Myers of Oregon, Mike Fisher of Pennsylvania,
Sheldon Whitehouse of Rhode Island, Charles Condon of South Carolina,
Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Greg Ab-
bott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont,

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Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
This case concerns the amenability of for-profit fundraising
corporations to suit by the Attorney General of Illinois for
fraudulent charitable solicitations. The controversy arises
from the fundraisers’ contracts with a charitable nonprofit
corporation organized to advance the welfare of Vietnam vet-
erans; under the contracts, the fundraisers were to retain 85
percent of the proceeds of their fundraising endeavors. The
State Attorney General’s complaint alleges that the fund-
raisers defrauded members of the public by falsely repre-
senting that “a significant amount of each dollar donated
would be paid over to [the veterans organization] for its
[charitable] purposes while in fact the [fundraisers] knew
that . . . 15 cents or less of each dollar would be available”
for those purposes. App. 9, ¶ 34. Complementing that alle-
gation, the complaint states that the fundraisers falsely rep-
resented that “the funds donated would go to further . . .
charitable purposes,” id., at 8, ¶ 29, when in fact “the amount
. . . paid over to charity was merely incidental to the fund
Jerry W. Kilgore of Virginia, Christine O. Gregoire of Washington, Darrell
V. McGraw, Jr., of West Virginia, and Hoke MacMillan of Wyoming; and
for the Council of Better Business Bureaus, Inc., et al. by Steven J. Cole
and Richard Woods.
Briefs of amici curiae urging affirmance were filed for the American
Teleservices Association by Robert Corn-Revere; for the Association of
Fundraising Professionals et al. by Geoffrey W. Peters and Walter J.
Sczudlo; for Disabled American Veterans by Christopher J. Clay and John
L. Moore, Jr.; for the Free Speech Defense and Education Fund, Inc., et al.
by William J. Olson, John S. Miles, Herbert W. Titus, Mark Weinberg,
and Mark Fitzgibbons; for Independent Sector et al. by Robert A. Bois-
ture, Albert G. Lauber, and Lloyd H. Mayer; and for Public Citizen, Inc.,
et al. by Bonnie I. Robin-Vergeer and Alan B. Morrison.
Briefs of amici curiae were filed for AARP by Deborah M. Zuckerman,
Stacy J. Canan, and Michael R. Schuster; for Hudson Bay Co. of Illinois,
Inc., by Thomas H. Goodman and Anthony J. Gleekel; and for Thirty-two
Commercial Fundraisers et al. by Charles H. Nave.

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606 ILLINOIS ex rel. MADIGAN v. TELEMARKETING
ASSOCIATES, INC.
Opinion of the Court
raising effort,” which was conducted primarily “for the pri-
vate pecuniary benefit of ” the fundraisers, id., at 9, ¶ 35.
The question presented is whether those allegations state
a claim for relief that can survive a motion to dismiss. In
accord with the Illinois trial and appellate courts, the Illinois
Supreme Court held they did not. That court was “mindful
of the opportunity for public misunderstanding and the po-
tential for donor confusion which may be presented with
fund-raising solicitations of the sort involved in th[is] case,”
Ryan v. Telemarketing Associates, Inc., 198 Ill. 2d 345, 363,
763 N. E. 2d 289, 299 (2001); it nevertheless concluded that
threshold dismissal of the complaint was compelled by this
Court’s decisions in Schaumburg v. Citizens for a Better
Environment, 444 U. S. 620 (1980), Secretary of State of Md.
v. Joseph H. Munson Co., 467 U. S. 947 (1984), and Riley
v. National Federation of Blind of N. C., Inc., 487 U. S. 781
(1988). Those decisions held that certain regulations of
charitable subscriptions, barring fees in excess of a pre-
scribed level, effectively imposed prior restraints on fund-
raising, and were therefore incompatible with the First
Amendment.
We reverse the judgment of the Illinois Supreme Court.
Our prior decisions do not rule out, as supportive of a fraud
claim against fundraisers, any and all reliance on the per-
centage of charitable donations fundraisers retain for them-
selves. While bare failure to disclose that information di-
rectly to potential donors does not suffice to establish fraud,
when nondisclosure is accompanied by intentionally mislead-
ing statements designed to deceive the listener, the First
Amendment leaves room for a fraud claim.
I
Defendants below, respondents here, Telemarketing Asso-
ciates, Inc., and Armet, Inc., are Illinois for-profit fundraising
corporations wholly owned and controlled by defendant-
respondent Richard Troia. 198 Ill. 2d, at 347–348, 763

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N. E. 2d, at 291. Telemarketing Associates and Armet were
retained by VietNow National Headquarters, a charita-
ble nonprofit corporation, to solicit donations to aid Viet-
nam veterans. Id., at 348, 763 N. E. 2d, at 291. In this
opinion, we generally refer to respondents, collectively, as
“Telemarketers.”
The contracts between the charity, VietNow, and the fund-
raisers, Telemarketers, provided that Telemarketers would
retain 85 percent of the gross receipts from donors within
Illinois, leaving 15 percent for VietNow. Ibid. Under the
agreements, donor lists developed by Telemarketers would
remain in their “sole and exclusive” control. App. 24, 93–94,
102, ¶ 65. Telemarketers also brokered contracts on behalf
of VietNow with out-of-state fundraisers; under those con-
tracts, out-of-state fundraisers retained between 70 percent
and 80 percent of donated funds, Telemarketers received be-
tween 10 percent and 20 percent as a finder’s fee, and Viet-
Now received 10 percent. 198 Ill. 2d, at 348, 763 N. E. 2d, at
291. Between July 1987 and the end of 1995, Telemarketers
collected approximately $7.1 million, keeping slightly more
than $6 million for themselves, and leaving approximately
$1.1 million for the charity. Ibid.1
In 1991, the Illinois Attorney General filed a complaint
against Telemarketers in state court. Id., at 348–350, 763
N. E. 2d, at 291–292.2 The complaint asserted common-law
and statutory claims for fraud and breach of fiduciary duty.
Ibid. It alleged, inter alia, that the 85 percent fee for which
Telemarketers contracted was “excessive” and “not justified
1 The petition for certiorari further alleges that, of the money raised by
Telemarketers, VietNow in the end spent only about 3 percent to provide
charitable services to veterans. Pet. for Cert. 2, and n. 1; see IRS Form
990, filed by VietNow in 2000, available at http://167.10.5.131/Ct0601_0700/
0652/1M11INDV.PDF (as visited Apr. 10, 2003) (available in Clerk of
Court’s case file).
2 References to the complaint in this opinion include all amendments to
that pleading.

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Opinion of the Court
by expenses [they] paid.” App. 103, ¶ 72. Dominantly,
however, the complaint concerned misrepresentation.
In the course of their telephone solicitations, the complaint
states, Telemarketers misleadingly represented that “funds
donated would go to further Viet[N]ow’s charitable pur-
poses.” Id., at 8, ¶ 29. Affidavits attached to the complaint
aver that Telemarketers told prospective donors their contri-
butions would be used for specifically identified charitable
endeavors; typical examples of those endeavors include “food
baskets given to vets [and] their families for Thanksgiving,”
id., at 124, paying “bills and rent to help physically and men-
tally disabled Vietnam vets and their families,” id., at 131,
“jo[b] training,” id., at 145, and “rehabilitation [and] other
services for Vietnam vets,” id., at 169 (some capitalization
omitted in quotes). One affiant asked what percentage of
her contribution would be used for fundraising expenses; she
“was told 90% or more goes to the vets.” Ibid. (capitaliza-
tion omitted). Another affiant stated she was told her dona-
tion would not be used for “labor expenses” because “all
members are volunteers.” Id., at 111 (capitalization omit-
ted).3 Written materials Telemarketers sent to each donor
3 Under Illinois law, exhibits attached to a complaint and referred to in
a pleading become part of the pleading “for all purposes.” Ill. Comp.
Stat., ch. 735, § 5/2–606 (1992); Pure Oil Co. v. Miller-McFarland Drilling
Co., 376 Ill. 486, 497–498, 34 N. E. 2d 854, 859 (1941); 3 R. Michael, Illinois
Practice § 23.9, pp. 332–333, nn. 7–9 and accompanying text (1989) (collect-
ing Illinois cases). Telemarketers’ counsel stated at oral argument that
the Illinois Supreme Court had “found as a matter of law that [the] affida-
vits were not part of the complaint.” Tr. of Oral Arg. 40. We can locate
no such finding in the court’s opinion. Asked to supply a citation after
argument, see id., at 41, counsel directed us to the court’s statement that
“there is no allegation that [Telemarketers] made affirmative misstate-
ments to potential donors.” 198 Ill. 2d 345, 348, 763 N. E. 2d 289, 291
(2001)); see Letter from William E. Raney to William K. Suter, Clerk of
the Court (Mar. 4, 2003). In so stating, the Illinois court overlooked, most
obviously, the two affidavits attesting to Telemarketers’ representations
that “90% or more goes to the vets,” and that there would be no “labor

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represented that contributions would “be used to help and
assist Viet[N]ow’s charitable purposes.” Id., at 8, ¶ 30.4
The 15 cents or less of each solicited dollar actually made
available to VietNow, the Attorney General charged, “was
merely incidental to the fund raising effort”; consequently,
she asserted, “representations made to donors [that a sig-
nificant amount of each dollar donated would be paid over
to Viet[N]ow for its purposes] were knowingly deceptive and
materially false, constituted a fraud[,] and were made for the
private pecuniary benefit of [Telemarketers].” Id., at 9,
¶¶ 34, 35.
Telemarketers moved to dismiss the fraud claims, urging
that they were barred by the First Amendment. The trial
court granted the motion,5 and the dismissal order was
affirmed, in turn, by the Illinois Appellate Court and the
Illinois Supreme Court. The Illinois courts placed heavy
weight on three decisions of this Court: Schaumburg v. Citi-
zens for a Better Environment, 444 U. S. 620 (1980); Sec-
retary of State of Md. v. Joseph H. Munson Co., 467 U. S.
expenses.” See App. 111, 169 (capitalization omitted). In any event, the
sentence fragment counsel identified falls short of showing, in the face of
established Illinois case law, that the court “found” the affidavits annexed
by the Illinois Attorney General dehors the complaint. Counsel’s conten-
tion is further clouded by the Illinois Supreme Court’s explicit notation
that “the Attorney General ha[d] attached to his complaint the affidavits
of 44 VietNow donors.” 198 Ill. 2d, at 352, 763 N. E. 2d, at 293.
4 Illinois law provides that “[i]n any solicitation to the public for a chari-
table organization by a professional fund raiser or professional solicitor[,]
[t]he public member shall be promptly informed by statement in verbal
communications and by clear and unambiguous disclosure in written mate-
rials that the solicitation is being made by a paid professional fund raiser.
The fund raiser, solicitor, and materials used shall also provide the profes-
sional fund raiser’s name and a statement that contracts and reports re-
garding the charity are on file with the Illinois Attorney General and addi-
tionally, in verbal communications, the solicitor’s true name must be
provided.” Ill. Comp. Stat., ch. 225, § 460/17(a) (2001).
5 The parties subsequently stipulated to the dismissal of all remaining
claims. App. to Pet. for Cert. 30–31.

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947 (1984); and Riley v. National Federation of Blind of
N. C., Inc., 487 U. S. 781 (1988). Each of the three decisions
invalidated state or local laws that categorically restrained
solicitation by charities or professional fundraisers if a high
percentage of the funds raised would be used to cover ad-
ministrative or fundraising costs. Schaumburg, 444 U. S., at
620; Munson, 467 U. S., at 947; and Riley, 487 U. S., at 781;
see 198 Ill. 2d, at 359, 763 N. E. 2d, at 297.
The Illinois Supreme Court acknowledged that this case,
unlike Schaumburg, Munson, and Riley, involves no pro-
phylactic provision proscribing any charitable solicitation if
fundraising costs exceeded a prescribed limit. Instead, the
Attorney General sought to enforce the State’s generally ap-
plicable antifraud laws against Telemarketers for “specific in-
stances of deliberate deception.” 198 Ill. 2d, at 358, 763 N. E.
2d, at 296 (quoting Riley, 487 U. S., at 803 (Scalia, J., concur-
ring)). “However,” the court said, “the statements made by
[Telemarketers] during solicitation are alleged to be ‘false’
only because [Telemarketers] retained 85% of the gross
receipts and failed to disclose this information to donors.”
198 Ill. 2d, at 359, 763 N. E. 2d, at 297. The Attorney Gen-
eral’s complaint, in the Illinois Supreme Court’s view, was
“in essence, an attempt to regulate [Telemarketers’] ability
to engage in a protected activity based upon a percentage-
rate limitation”—“the same regulatory principle that was re-
jected in Schaumburg[,] Munson, and Riley.” Ibid.
“[H]igh solicitation costs,” the Illinois Supreme Court
stressed, “can be attributable to a number of factors.” Ibid.
In this case, the court noted, Telemarketers contracted to
provide a “wide range” of services in addition to telephone
solicitation. Ibid. For example, they agreed to publish a
newsletter and to maintain a toll-free information hotline.
Id., at 359–360, 763 N. E. 2d, at 297–298. Moreover, the
court added, VietNow received “nonmonetary benefits by
having [its] message disbursed by the solicitation process,”
and Telemarketers were directed to solicit “in a manner that

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would ‘promote goodwill’ on behalf of VietNow.” Id., at 361,
763 N. E. 2d, at 298. Taking these factors into account, the
court concluded that it would be “incorrect to presume . . .
[any] nexus between high solicitation costs and fraud.” Id.,
at 360, 763 N. E. 2d, at 298.
The Illinois Supreme Court further determined that,
under Riley, “fraud cannot be defined in such a way that it
places on solicitors the affirmative duty to disclose to poten-
tial donors, at the point of solicitation, the net proceeds to
be returned to the charity.” Id., at 361, 763 N. E. 2d, at
298.6 Finally, the court expressed the fear that if the com-
plaint were allowed to proceed, all fundraisers in Illinois
would be saddled with “the burden of defending the reason-
ableness of their fees, on a case-by-case basis, whenever in
the Attorney General’s judgment the public was being de-
ceived about the charitable nature of a fund-raising campaign
because the fund-raiser’s fee was too high.” Id., at 362, 763
N. E. 2d, at 299. The threatened exposure to litigation costs
and penalties, the court said, “could produce a substantial
chilling effect on protected speech.” Ibid. We granted cer-
tiorari. 537 U. S. 999 (2002).
II
The First Amendment protects the right to engage in
charitable solicitation. See Schaumburg, 444 U. S., at 632
(“charitable appeals for funds . . . involve a variety of speech
interests—communication of information, the dissemination
and propagation of views and ideas, and the advocacy of
6 Contracts for fundraising campaigns in Illinois must be filed with the
State’s Attorney General, see Ill. Comp. Stat., ch. 225, §§ 460/2(a)(10) and
460/7 (2001), and those contracts must disclose all fundraiser fees, includ-
ing any “stated percentage of the gross amount raised” to be retained by
the fundraiser, § 460/7(b); see § 460/7(d). The filings are open for public
inspection. § 460/2(f). Illinois law also provides that fundraisers must
disclose “the percentage to be received by the charitable organization from
each contribution, if such disclosure is requested by the person solicited.”
§ 460/17(b). Telemarketers did not challenge these requirements.

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Opinion of the Court
causes—that are within the protection of the First Amend-
ment”); Riley, 487 U. S., at 788–789. But the First Amend-
ment does not shield fraud. See, e. g., Donaldson v. Read
Magazine, Inc., 333 U. S. 178, 190 (1948) (the government’s
power “to protect people against fraud” has “always been
recognized in this country and is firmly established”); Gertz
v. Robert Welch, Inc., 418 U. S. 323, 340 (1974) (the “inten-
tional lie” is “no essential part of any exposition of ideas”
(internal quotation marks omitted)). Like other forms of
public deception, fraudulent charitable solicitation is un-
protected speech. See, e. g., Schneider v. State (Town of
Irvington), 308 U. S. 147, 164 (1939) (“Frauds,” including
“fraudulent appeals . . . made in the name of charity and
religion,” may be “denounced as offenses and punished by
law.”); Donaldson, 333 U. S., at 192 (“A contention cannot be
seriously considered which assumes that freedom of the
press includes a right to raise money to promote circulation
by deception of the public.”).
The Court has not previously addressed the First Amend-
ment’s application to individual fraud actions of the kind at
issue here. It has, however, three times considered prophy-
lactic statutes designed to combat fraud by imposing prior
restraints on solicitation when fundraising fees exceeded a
specified reasonable level. Each time, the Court held the
prophylactic measures unconstitutional.
In Schaumburg, decided in 1980, the Court invalidated a
village ordinance that prohibited charitable organizations
from soliciting contributions unless they used at least 75
percent of their receipts “directly for the charitable purpose
of the organization.” 444 U. S., at 624 (internal quotation
marks omitted). The ordinance defined “charitable pur-
poses” to exclude salaries and commissions paid to solicitors,
and the administrative expenses of the charity, including
salaries. Ibid. The village of Schaumburg’s “principal jus-
tification” for the ordinance was fraud prevention: “[A]ny or-
ganization using more than 25 percent of its receipts on fund-

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raising, salaries, and overhead,” Schaumburg submitted, “is
not a charitable, but a commercial, for-profit enterprise”; “to
permit [such an organization] to represent itself as a charity,”
the village urged, “is fraudulent.” Id., at 636.
The Court agreed with Schaumburg that fraud prevention
ranks as “a substantial governmental interes[t],” ibid., but
concluded that “the 75-percent requirement” promoted that
interest “only peripherally.” Ibid. Spending “more than
25 percent of [an organization’s] receipts on fundraising, sala-
ries, and overhead,” the Court explained, does not reliably
indicate that the enterprise is “commercial” rather than
“charitable.” Ibid. Such spending might be altogether ap-
propriate, Schaumburg noted, for a charitable organization
“primarily engaged in research, advocacy, or public educa-
tion [that uses its] own paid staff to carry out these functions
as well as to solicit financial support.” Id., at 636–637.
“The Village’s legitimate interest in preventing fraud,” the
Court stated, “can be better served by measures less intru-
sive than a direct prohibition on solicitation,” id., at 637:
“Fraudulent misrepresentations can be prohibited and the
penal laws used to punish such conduct directly,” ibid.
Four years later, in Munson, the Court invalidated a
Maryland law that prohibited charitable organizations from
soliciting if they paid or agreed to pay as expenses more
than 25 percent of the amount raised. Unlike the inflexible
ordinance in Schaumburg, the Maryland law authorized a
waiver of the 25 percent limitation “where [it] would effec-
tively prevent the charitable organization from raising con-
tributions.” 467 U. S., at 950–951, n. 2. The Court held
that the waiver provision did not save the statute. Id.,
at 962. “[No] reaso[n] other than financial necessity war-
rant[ed] a waiver,” Munson observed. Id., at 963. The
statute provided no shelter for a charity that incurred high
solicitation costs because it chose to disseminate information
as part of its fundraising. Ibid. Nor did it shield a charity

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Opinion of the Court
whose high solicitation costs stemmed from the unpopularity
of its cause. Id., at 967.
“[N]o doubt [there] are organizations that have high fund-
raising costs not due to protected First Amendment activ-
ity,” the Court recognized; it concluded, however, that
Maryland’s statute was incapable of “distinguish[ing] those
organizations from charities that have high costs due to
protected First Amendment activities.” Id., at 966. The
statute’s fatal flaw, the Court said, was that it “operate[d] on
[the] fundamentally mistaken premise that high solicitation
costs are an accurate measure of fraud.” Ibid. As in
Schaumburg, the Court noted, fraud could be checked by
“measures less intrusive than a direct prohibition on solici-
tation”: Fraud could be punished directly and the State
“could require disclosure of the finances of a charitable orga-
nization so that a member of the public could make an in-
formed decision about whether to contribute.” 467 U. S., at
961, and n. 9.
Third in the trilogy of cases on which the Illinois Supreme
Court relied was our 1988 decision in Riley. The village
ordinance in Schaumburg and the Maryland law in Munson
regulated charities; the North Carolina charitable solicita-
tion controls at issue in Riley directly regulated professional
fundraisers. North Carolina’s law prohibited professional
fundraisers from retaining an “unreasonable” or “excessive”
fee. 487 U. S., at 784 (internal quotation marks omitted).
Fees up to 20 percent of the gross receipts collected were
deemed reasonable; fees between 20 percent and 35 percent
were deemed unreasonable if the State showed that the solic-
itation did not involve advocacy or dissemination of informa-
tion. Id., at 784–785. Fees exceeding 35 percent were pre-
sumed unreasonable, but the fundraiser could rebut the
presumption by showing either that the solicitation involved
advocacy or information dissemination, or that, absent the
higher fee, the charity’s “ability to raise money or communi-
cate would be significantly diminished.” Id., at 785–786.

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Relying on Schaumburg and Munson, the Court’s decision
in Riley invalidated North Carolina’s endeavor to rein in
charitable solicitors’ fees. The Court held, once again, that
fraud may not be inferred simply from the percentage of
charitable donations absorbed by fundraising costs. See 487
U. S., at 789 (“solicitation of charitable contributions is pro-
tected speech”; “using percentages to decide the legality of
the fundraiser’s fee is not narrowly tailored to the State’s
interest in preventing fraud”).
The opportunity to rebut the unreasonableness presump-
tion attending a fee over 35 percent did not bring North Car-
olina’s scheme within the constitutional zone, the Court ex-
plained. Under the State’s law, “even where a prima facie
showing of unreasonableness ha[d] been rebutted, the fact-
finder [still had to] make an ultimate determination, on a
case-by-case basis, as to whether the fee was reasonable—a
showing that the solicitation involved . . . advocacy or [the]
dissemination of information [did] not alone establish that
the total fee was reasonable.” Id., at 786.
Training on that aspect of North Carolina’s regulation, the
Court stated: “Even if we agreed that some form of a
percentage-based measure could be used, in part, to test for
fraud, we could not agree to a measure that requires the
speaker to prove ‘reasonableness’ case by case based upon
what is at best a loose inference that the fee might be too
high.” Id., at 793. “[E]very campaign incurring fees in ex-
cess of 35% . . . [would] subject [fundraisers] to potential
litigation over the ‘reasonableness’ of the fee,” the Court ob-
served; that litigation risk, the Court concluded, would “chill
speech in direct contravention of the First Amendment’s dic-
tates.” Id., at 794. Especially likely to be burdened, the
Riley opinion noted, were solicitations combined with advo-
cacy or the communication of information, and fundraising by
small or unpopular charities. Ibid. The Court cautioned,
however, as it did in Schaumburg and Munson, that States
need not “sit idly by and allow their citizens to be de-

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frauded.” 487 U. S., at 795. We anticipated that North
Carolina law enforcement officers would be “ready and able”
to enforce the State’s antifraud law. Ibid.
Riley presented a further issue. North Carolina law re-
quired professional fundraisers to disclose to potential do-
nors, before asking for money, the percentage of the prior
year’s charitable contributions the fundraisers had actually
turned over to charity. Ibid. The State defended this dis-
closure requirement as a proper means to dispel public mis-
perception that the money donors gave to professional fund-
raisers went in greater-than-actual proportion to benefit
charity. Id., at 798.
This Court condemned the measure as an “unduly burden-
some” prophylactic rule, an exaction unnecessary to achieve
the State’s goal of preventing donors from being misled.
Id., at 800. The State’s rule, Riley emphasized, conclusively
presumed that “the charity derive[d] no benefit from funds
collected but not turned over to it.” Id., at 798. This was
“not necessarily so,” the Court said, for charities might well
benefit from the act of solicitation itself, when the request
for funds conveyed information or involved cause-oriented
advocacy. Ibid.
The Court noted in Riley that North Carolina (like Illinois
here) required professional fundraisers to disclose their pro-
fessional status. Id., at 799; see Ill. Comp. Stat., ch. 225,
§ 460/17(a) (2001); supra, at 609, n. 4, 611, n. 6. That disclo-
sure, the Court said, effectively notified contributors that a
portion of the money they donated would underwrite solici-
tation costs. A concerned donor could ask how much of the
contribution would be turned over to the charity, and under
North Carolina law, fundraisers would be obliged to provide
that information. Riley, 487 U. S., at 799 (citing N. C. Gen.
Stat. § 131C–16 (1986)). But upfront telephone disclosure of
the fundraiser’s fee, the Court believed, might end as well as
begin the conversation: A potential contributor who thought
the fee too high might simply hang up. 487 U. S., at 799–

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800. “[M]ore benign and narrowly tailored options” that
would not chill solicitation altogether were available; for ex-
ample, the Court suggested, “the State may itself publish
the detailed financial disclosure forms it requires profes-
sional fundraisers to file,” and “[it] may vigorously enforce
its antifraud laws to prohibit professional fundraisers from
obtaining money on false pretenses or by making false state-
ments.” Ibid.
III
A
The Court’s opinions in Schaumburg, Munson, and Riley
took care to leave a corridor open for fraud actions to guard
the public against false or misleading charitable solicitations.
See Schaumburg, 444 U. S., at 637; Munson, 467 U. S., at 961,
and n. 9; Riley, 487 U. S., at 795, 800.7 As those decisions
recognized, and as we further explain below, there are differ-
ences critical to First Amendment concerns between fraud
actions trained on representations made in individual cases
and statutes that categorically ban solicitations when fund-
raising costs run high. See Part III–B, infra. Simply la-
beling an action one for “fraud,” of course, will not carry the
day. For example, had the complaint against Telemarketers
charged fraud based solely on the percentage of donations
the fundraisers would retain, or their failure to alert poten-
tial donors to their fee arrangements at the start of each
telephone call, Riley would support swift dismissal.8 A
State’s Attorney General surely cannot gain case-by-case
ground this Court has declared off limits to legislators.
7 We are therefore unpersuaded by Telemarketers’ plea that they lacked
fair notice of their vulnerability to fraud actions. See Brief for Respond-
ents 46, 49–50.
8 Although fundraiser retention of 85 percent of donations is significantly
higher than the 35 percent limit in Riley, this Court has not yet accepted
any percentage-based measure as dispositive. See supra, at 615 (quoting
Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 793
(1988)).

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618 ILLINOIS ex rel. MADIGAN v. TELEMARKETING
ASSOCIATES, INC.
Opinion of the Court
Portions of the complaint in fact filed by the Attorney Gen-
eral are of this genre. See, e. g., App. 103, ¶ 72 (asserting
that Telemarketers’ charge “is excessive” and “not justified
by expenses [they] paid”); id., at 86, ¶¶ 67H–67I (alleging
statutory violations based on failure to disclose to prospec-
tive donors Telemarketers’ percentage fee). As we earlier
noted, however, see supra, at 608–609, the complaint and an-
nexed affidavits, in large part, alleged not simply what Tele-
marketers failed to convey; they also described what Tele-
marketers misleadingly represented.
Under Illinois law, similar to the Federal Rules of Civil
Procedure, “[w]hen the legal sufficiency of a complaint is
challenged by a . . . motion to dismiss, all well-pleaded facts
in the complaint are taken as true and [the court] must deter-
mine whether the allegations . . . , when interpreted in the
light most favorable to the plaintiff, are sufficient to estab-
lish a cause of action upon which relief may be granted.”
Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 490, 675
N. E. 2d 584, 588 (1997) (emphasis added). Dismissal is
proper “only if it clearly appears that no set of facts can be
proved under the pleadings which will entitle the plaintiff to
recover.” 198 Ill. 2d, at 351, 763 N. E. 2d, at 293.
Taking into account the affidavits, and reading the com-
plaint in the light most favorable to the Attorney General,
that pleading described misrepresentations our precedent
does not place under the First Amendment’s cover. First, it
asserted that Telemarketers affirmatively represented that
“a significant amount of each dollar donated would be paid
over to Viet[N]ow” to be used for specific charitable pur-
poses—rehabilitation services, job training, food baskets,
and assistance for rent and bills, App. 9, ¶ 34; id., at 124, 131,
145, 163, 169, 187, 189—while in reality Telemarketers knew
that “15 cents or less of each dollar” was “available to Viet-
[N]ow for its purposes.” Id., at 9, ¶ 34. Second, the com-
plaint alleged, essentially, that the charitable solicitation was
a fac¸ade: Although Telemarketers represented that donated

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619 Cite as: 538 U. S. 600 (2003)
Opinion of the Court
funds would go to VietNow’s specific “charitable purposes,”
id., at 8, ¶ 29, the “amount of funds being paid over to charity
was merely incidental to the fund raising effort,” which was
made “for the private pecuniary benefit of [Telemarketers]
and their agents,” id., at 9, ¶ 35. Cf., e. g., Voices for Free-
dom, CCH Trade Reg. ¶ 23,080 (1993) [1987–1993 Transfer
Binder] (complaint against fundraisers who, inter alia, repre-
sented that “substantial portions of the funds from [the sale
of commemorative bracelets] would be used to support a
message center for the troops stationed in the Persian Gulf,”
but “did not use substantial portions of the bracelet-sales
proceeds to support the message center”).
Fraud actions so tailored, targeting misleading affirmative
representations about how donations will be used, are plainly
distinguishable, as we next discuss, from the measures inval-
idated in Schaumburg, Munson, and Riley: So long as the
emphasis is on what the fundraisers misleadingly convey, and
not on percentage limitations on solicitors’ fees per se, such
actions need not impermissibly chill protected speech.
B
In Schaumburg, Munson, and Riley, the Court invalidated
laws that prohibited charitable organizations or fundrais-
ers from engaging in charitable solicitation if they spent
high percentages of donated funds on fundraising—whether
or not any fraudulent representations were made to potential
donors. Truthfulness even of all representations was not
a defense. See supra, at 612–616. In contrast to the prior
restraints inspected in those cases, a properly tailored fraud
action targeting fraudulent representations themselves em-
ploys no “[b]road prophylactic rul[e],” Schaumburg, 444
U. S., at 637 (internal quotation marks and citation omitted),
lacking any “nexus . . . [to] the likelihood that the solicitation
is fraudulent,” Riley, 487 U. S., at 793. Such an action thus
falls on the constitutional side of the line the Court’s cases
draw “between regulation aimed at fraud and regulation

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620 ILLINOIS ex rel. MADIGAN v. TELEMARKETING
ASSOCIATES, INC.
Opinion of the Court
aimed at something else in the hope that it would sweep
fraud in during the process.” Munson, 467 U. S., at 969–
970. The Illinois Attorney General’s complaint, in this light,
has a solid core in allegations that home in on affirmative
statements Telemarketers made intentionally misleading do-
nors regarding the use of their contributions. See supra,
at 608–609.
Of prime importance, and in contrast to a prior restraint
on solicitation, or a regulation that imposes on fundraisers
an uphill burden to prove their conduct lawful, in a properly
tailored fraud action the State bears the full burden of proof.
False statement alone does not subject a fundraiser to fraud
liability. As restated in Illinois case law, to prove a defend-
ant liable for fraud, the complainant must show that the
defendant made a false representation of a material fact
knowing that the representation was false; further, the com-
plainant must demonstrate that the defendant made the rep-
resentation with the intent to mislead the listener, and suc-
ceeded in doing so. See In re Witt, 145 Ill. 2d 380, 391, 583
N. E. 2d 526, 531 (1991). Heightening the complainant’s bur-
den, these showings must be made by clear and convincing
evidence. See Hofmann v. Hofmann, 94 Ill. 2d 205, 222, 446
N. E. 2d 499, 506 (1983).9
Exacting proof requirements of this order, in other con-
texts, have been held to provide sufficient breathing room
for protected speech. See New York Times Co. v. Sullivan,
376 U. S. 254, 279–280 (1964) (action for defamation of public
9 In Riley, this Court expressed concern that case-by-case litigation over
the reasonableness of fundraising fees would inhibit speech. 487 U. S., at
793–794. That concern arose in large measure because the North Caro-
lina statute there at issue placed the burden of proof on the fundraiser.
The Court has long cautioned that, to avoid chilling protected speech, the
government must bear the burden of proving that the speech it seeks to
prohibit is unprotected. See Freedman v. Maryland, 380 U. S. 51, 58
(1965); Speiser v. Randall, 357 U. S. 513, 525–526 (1958). The government
shoulders that burden in a fraud action.

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621 Cite as: 538 U. S. 600 (2003)
Opinion of the Court
official); Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485, 502, and n. 19 (1984) (noting “kinship”
between New York Times standard and “motivation that
must be proved to support a common-law action for de-
ceit”).10 As an additional safeguard responsive to First
Amendment concerns, an appellate court could independ-
ently review the trial court’s findings. Cf. Bose Corp., 466
U. S., at 498–511 (de novo appellate review of findings re-
garding actual malice). What the First Amendment and our
case law emphatically do not require, however, is a blanket
exemption from fraud liability for a fundraiser who inten-
tionally misleads in calls for donations.
The Illinois Supreme Court in the instant case correctly
observed that “the percentage of [fundraising] proceeds
turned over to a charity is not an accurate measure of the
amount of funds used ‘for’ a charitable purpose.” 198 Ill. 2d,
at 360, 763 N. E. 2d, at 298 (citing Munson, 467 U. S., at 967,
n. 16). But the gravamen of the fraud action in this case is
not high costs or fees, it is particular representations made
with intent to mislead. If, for example, a charity conducted
an advertising or awareness campaign that advanced chari-
table purposes in conjunction with its fundraising activity, its
representation that donated funds were going to “charitable
purposes” would not be misleading, much less intentionally
so. Similarly, charitable organizations that engage primar-
ily in advocacy or information dissemination could get and
spend money for their activities without risking a fraud
10 Although this case does not present the issue, the Illinois Attorney
General urges that a constitutional requirement resembling “actual mal-
ice” does not attend “every form of liability by charitable solicitors who
misrepresent the use of donations.” Reply Brief 16–17, n. 11 (internal
quotation marks omitted). We confine our consideration to the complaint
in this case, which alleged that Telemarketers “acted with knowledge of
the falsity of their representations.” Ibid.

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622 ILLINOIS ex rel. MADIGAN v. TELEMARKETING
ASSOCIATES, INC.
Opinion of the Court
charge. See Schaumburg, 444 U. S., at 636–637; Munson,
467 U. S., at 963; Riley, 487 U. S., at 798–799. 11
The Illinois Attorney General here has not suggested that
a charity must desist from using donations for information
dissemination, advocacy, the promotion of public awareness,
the production of advertising material, the development or
enlargement of the charity’s contributor base,12 and the like.
Rather, she has alleged that Telemarketers attracted dona-
tions by misleading potential donors into believing that a
substantial portion of their contributions would fund specific
programs or services, knowing full well that was not the
case. See supra, at 608–609, 618–619. Such representa-
tions remain false or misleading, however legitimate the
other purposes for which the funds are in fact used.
We do not agree with Telemarketers that the Illinois At-
torney General’s fraud action is simply an end run around
Riley’s holding that fundraisers may not be required,
in every telephone solicitation, to state the percentage of
receipts the fundraiser would retain. See Brief for Re-
spondents 14–19. It is one thing to compel every fundraiser
to disclose its fee arrangements at the start of a telephone
conversation, quite another to take fee arrangements into
11 Amicus Mothers Against Drunk Driving (MADD), for example, states
that its mission is “to communicate the message ‘Don’t Drink and Drive.’ ”
Brief for Public Citizen, Inc., et al. as Amici Curiae 13. Telephone solici-
tors retained by MADD “reach millions of people a year, and each call
educates the public about the tragedy of drunk driving, provides statistics
and asks the customer to always designate a sober driver.” Ibid. (inter-
nal quotation marks and citation omitted). Solicitations that described
MADD’s charitable mission would not be fraudulent simply because
MADD devotes a large proportion of its resources to fundraising calls,
for those calls themselves fulfill its advocacy/information dissemination
mission.
12 This Court has consistently recognized that small or unpopular chari-
ties would be hindered by limitations on the portion of receipts they could
devote to subscription building. See Secretary of State of Md. v. Joseph
H. Munson Co., 467 U. S. 947, 967 (1984); Riley, 487 U. S., at 794.

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Opinion of the Court
account in assessing whether particular affirmative repre-
sentations designedly deceive the public.
C
Our decisions have repeatedly recognized the legitimacy
of government efforts to enable donors to make informed
choices about their charitable contributions. In Schaum-
burg, the Court thought it proper to require “disclosure of
the finances of charitable organizations,” thereby to prevent
fraud “by informing the public of the ways in which their
contributions will be employed.” 444 U. S., at 638. In
Munson, the Court reiterated that “disclosure of the finances
of a charitable organization” could be required “so that a
member of the public could make an informed decision about
whether to contribute.” 467 U. S., at 961–962, n. 9. And
in Riley, the Court said the State may require profes-
sional fundraisers to file “detailed financial disclosure forms”
and may communicate that information to the public. 487
U. S., at 800; see also id., at 799, n. 11 (State may require
fundraisers “to disclose unambiguously [their] professional
status”).
In accord with our precedent, as Telemarketers and their
amici acknowledge, in “[a]lmost all of [the] states and many
localities,” charities and professional fundraisers must “reg-
ister and file regular reports on activities[,] particularly
fundraising costs.” Brief for Respondents 37; see Brief for
Independent Sector et al. as Amici Curiae 6–8. These re-
ports are generally available to the public; indeed, “[m]any
states have placed the reports they receive from charities
and professional fundraisers on the Internet.” Brief for Re-
spondents 39; see Brief for Independent Sector et al. as
Amici Curiae 9–10. Telemarketers do not object on First
Amendment grounds to these disclosure requirements. Tr.
of Oral Arg. 43.
Just as government may seek to inform the public and pre-
vent fraud through such disclosure requirements, so it may

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624 ILLINOIS ex rel. MADIGAN v. TELEMARKETING
ASSOCIATES, INC.
Scalia, J., concurring
“vigorously enforce . . . antifraud laws to prohibit profes-
sional fundraisers from obtaining money on false pretenses
or by making false statements.” Riley, 487 U. S., at 800.
High fundraising costs, without more, do not establish fraud.
See id., at 793. And mere failure to volunteer the fund-
raiser’s fee when contacting a potential donee, without more,
is insufficient to state a claim for fraud. Id., at 795–801.
But these limitations do not disarm States from assuring
that their residents are positioned to make informed choices
about their charitable giving. Consistent with our prece-
dent and the First Amendment, States may maintain fraud
actions when fundraisers make false or misleading represen-
tations designed to deceive donors about how their donations
will be used.
* * *
For the reasons stated, the judgment of the Illinois Su-
preme Court is reversed, and the case is remanded for fur-
ther proceedings not inconsistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
concurring.
The question presented by the petition for certiorari in
this case reads as follows: “Whether the First Amendment
categorically prohibits a State from pursuing a fraud action
against a professional fundraiser who represents that dona-
tions will be used for charitable purposes but in fact keeps
the vast majority (in this case 85 percent) of all funds do-
nated.” Pet. for Cert. i. I join the Court’s opinion because
I think it clear from the opinion that if the only representa-
tion made by the fundraiser were the one set forth in the
question presented (“that donations will be used for charita-
ble purposes”), and if the only evidence of alleged failure to
comply with that representation were the evidence set forth
in the question presented (that the fundraiser “keeps the

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625 Cite as: 538 U. S. 600 (2003)
Scalia, J., concurring
vast majority (in this case 85 percent) of all funds donated”),
the answer to the question would be yes.
It is the teaching of Riley v. National Federation of Blind
of N. C., Inc., 487 U. S. 781, 793 (1988), and Secretary of State
of Md. v. Joseph H. Munson Co., 467 U. S. 947, 966 (1984),
that since there is such wide disparity in the legitimate
expenses borne by charities, it is not possible to establish
a maximum percentage that is reasonable. It also follows
from that premise that there can in general be no reasonable
expectation on the part of donors as to what fraction of the
gross proceeds goes to expenses. When that proposition is
combined with the unquestionable fact that one who is prom-
ised, without further specification, that his charitable contri-
bution will go to a particular cause must reasonably under-
stand that it will go there after the deduction of legitimate
expenses, the conclusion must be that the promise is not bro-
ken (and hence fraud is not committed) by the mere fact that
expenses are very high. Today’s judgment, however, rests
upon a “solid core” of misrepresentations, ante, at 620, that
go well beyond mere commitment of the collected funds to
the charitable purpose.