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

Bhargava Ray, Shalini

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

Shalini Bhargava, Detaining Due Process: The Need for Procedural Reform in 'Joseph' Hearings After Demore v. Kim, 31 N.Y.U. Rev. L. & Soc. Change 51 (2006).

46 Pages Posted: 24 Jun 2014 Last revised: 22 Sep 2015

See all articles by Shalini Bhargava Ray

Shalini Bhargava Ray

University of Alabama School of Law

Date Written: 2006

Abstract

In Demore v. Kim, the U.S. Supreme Court upheld the constitutionality of mandatory detention of legal permanent residents who had conceded removability. This Article critiques the Court's excessive reliance on the noncitizen's concession of removability in justifying mandatory detention and the Court's assumption that the availability of a so-called "Joseph" hearing, at which a noncitizen may contest her inclusion in the mandatory detention statute, adequately protects noncitizens from the erroneous deprivation of liberty. This Article argues that the procedures in place at the Joseph hearing violate procedural due process under Mathews v. Eldridge and explores possible procedural reforms.

Keywords: Joseph hearing, mandatory detention, due process, burden of proof

JEL Classification: K19

Suggested Citation: Suggested Citation

Bhargava Ray, Shalini, Detaining Due Process: The Need for Procedural Reform in 'Joseph' Hearings after Demore v. Kim (2006). Shalini Bhargava, Detaining Due Process: The Need for Procedural Reform in 'Joseph' Hearings After Demore v. Kim, 31 N.Y.U. Rev. L. & Soc. Change 51 (2006)., Available at SSRN: https://ssrn.com/abstract=2458004