533US2
Unit: $U87
[10-21-02 18:35:10] PAGES PGT: OPIN
Cite as: 533 U. S. 678 (2001)
723
Kennedy, J., dissenting
quests, the INS has the discretion to grant more frequent
reviews. § 241.4(k)(2)(iii). The INS must provide the alien
30-days advance, written notice of custody reviews; and it
must afford the alien an opportunity to submit any relevant
materials for consideration. § 241.4(i)(3)(ii). The alien may
be assisted by a representative of his choice during the review, §§ 241.4(i)(3)(i), (ii), and the INS must provide the alien
with a copy of its decision, including a brief statement of the
reasons for any continued detention, § 241.4(d).
In this context the proper analysis can be informed by our
cases involving parole-eligibility or parole-revocation determinations. In Morrissey v. Brewer, 408 U. S. 471 (1972),
for example, we held some amount of process was due an
individual whose parole was revoked, for “the liberty of a
parolee, although indeterminate, includes many of the core
values of unqualified liberty.” Id., at 482; see also Board
of Pardons v. Allen, 482 U. S. 369 (1987). We rejected in
Morrissey the suggestion that the State could justify parole
revocation “without some informal procedural guarantees,”
408 U. S., at 483, but “[g]iven the previous conviction and
the proper imposition of conditions,” we recognized that “the
State has an overwhelming interest in being able to return
the individual to imprisonment without the burden of a new
adversary criminal trial,” ibid. We held the review process
need not include a judicial officer or formal court proceeding,
but could be conducted by a neutral administrative official.
Id., at 486.
While the majority expresses some concern that the regulations place the burden on the alien to show he is no longer
dangerous, that question could be adjudicated in a later case
raising the issue. It should be noted the procedural protection here is real, not illusory; and the criteria for obtaining
release are far from insurmountable. Statistics show that
between February 1999 and mid-November 2000 some 6,200
aliens were provided custody reviews before expiration of
the 90-day removal period, and of those aliens about 3,380