INS Detention of Children Upheld : Law: High court allows agency to continue locking up young illegal immigrants awaiting deportation if they cannot be released to a close relative or legal guardian.

Acting in a California case, the Supreme Court ruled Tuesday that federal immigration agents may routinely lock up illegal immigrant children while they are awaiting deportation if they cannot be released to a close relative or legal guardian.

The 7-2 ruling reverses lower court orders that labeled the policy cruel, unnecessary and unconstitutional. It means that the Immigration and Naturalization Service will be able to hold these children and teen-agers for up to a year.

Justice Antonin Scalia called it a “mere novelty” to suggest that illegal immigrant children have the same rights under the Constitution as adult citizens and he defended the current INS policies for dealing with teen-agers as “good enough.”

This “is a policy judgment rather than a constitutional imperative,” he said, so judges should stay out of the matter. Repeatedly in recent years, the Supreme Court has thrown out judicial decisions that restrict the power of the INS.

Lawyers for the Center for Human Rights and Constitutional Law in Los Angeles, which brought the lawsuit that led to the decision, expressed disappointment but said that they are hopeful the policy might be changed by the Clinton Administration.

“The ball is in (Atty. Gen.) Janet Reno’s court,” said Carlos Holguin, a lawyer for the center. “She has been concerned about questions of juvenile justice and our position is that the INS ought to bring its policy into line with acceptable standards of juvenile justice.”

The issue of how to handle young illegal immigrants first gained attention in the mid-1980s, when thousands of youths fled wars in Central America. In addition, thousands of young Mexican children, some of them abandoned by their parents, are picked up each year in California and Arizona, INS officials said.

These immigrants, whether adults or children, could agree to be voluntarily deported. But those who wanted to stay were entitled to a deportation hearing.

In 1984, however, INS Western Regional Commissioner Harold Ezell announced a new policy which said that “no minor shall be released except to a parent or lawful guardian.”

Within months, immigration lawyers learned that children were being routinely strip-searched and confined with adults in barracks surrounded by barbed wire. Lawyers filed a class-action lawsuit against then-Atty. Gen. Edwin Meese III to challenge the policy on behalf of 15-year-old Jenny Flores.

In response, U.S. District Judge Robert Kelleher in Los Angeles ordered the INS to release the children to their parents or a “responsible adult” who could care for them, including Catholic charities and child welfare groups.

In 1991, the U.S. 9th Circuit Court of Appeals in Pasadena upheld the order on a 7-4 vote, declaring that the Constitution forbids imprisoning children who have not committed a crime and pose no danger to the public. That year, 7,225 children had been detained in the Western region, most of them in California.

But Justice Department lawyers appealed to the high court, noting that immigration laws give broad power to the U.S. attorney general and the INS to handle deportations.

In Tuesday’s ruling, Scalia said that the law “leaves ample room” for the INS to decide how best to handle deportable children. His opinion was joined in full by Chief Justice William H. Rehnquist and Justices Byron R. White, Anthony M. Kennedy and Clarence Thomas.

Justices Sandra Day O’Connor and David Souter, while agreeing with the outcome, wrote separately to dispute Scalia’s comment that the Constitution does not give children a fundamental right to be free of imprisonment.

Justices John Paul Stevens and Harry A. Blackmun dissented, saying that the “wholesale detention of . . . harmless children” violates the Constitution.

The INS general counsel said he was pleased that the court had upheld the agency’s authority, but he did not defend the INS detention camps.

“A case like this tends to bring out the worst things the government did, not what typically goes on,” said General Counsel Grover Joseph Rees.