Panel Curbs Indefinite INS Detentions

A federal court panel in Seattle has ruled that immigrants awaiting deportation because of criminal records cannot be jailed indefinitely--a decision that lawyers call an important step toward overturning a controversial government practice.

The five-judge panel found unanimously that the U.S. Immigration and Naturalization Service policy violated 5th Amendment guarantees shielding people from unlawful deprivation of their liberty.

“Detention by the INS can be lawful only in aid of deportation,” the judges wrote in a 13-page opinion issued Friday. “Thus, it is ‘excessive’ to detain an alien indefinitely if deportation will never occur.”

Nationwide, some 3,800 immigrants--ranging from petty thieves to drug traffickers to murderers--are being held in indefinite detention because their homelands will not take them back and the INS refuses to release them. In INS parlance, they are known as “lifers” or “non-removables” who have committed crimes and pose a potential risk if released.

Although the judges’ ruling is binding only in western Washington, attorneys representing detainees say the decision could ultimately carry weight in other states--including California--where many immigrants are challenging indefinite incarceration.

“This order is very well-reasoned and is something that other courts would look to for guidance,” said Jayashri Srikantiah, staff counsel with the immigrants’ rights project of the American Civil Liberties Union, which filed a friend-of-the-court brief in the case.

The federal government plans an appeal and has already gone to court seeking to block releases under the ruling.

“Until there is an all-encompassing ruling by the Supreme Court, this issue will remain in litigation, I would suspect,” said Russell Bergeron, an INS spokesman.

But Lucas Guttentag, who directs the ACLU’s immigrants’ rights project, said the ruling “is a major step in the nationwide effort to have the INS indefinite detention policy declared unconstitutional.”

Federal judges have previously ordered freedom for INS detainees in indefinite detention, but attorneys say this is the first time a multi-judge panel has ruled so decisively.

The great majority of long-term detainees in INS facilities and local jails are nationals of Cuba or of three Southeast Asian nations--Vietnam, Laos and Cambodia--that do not have agreements with the United States allowing the repatriation of deportees. Most are longtime legal U.S. residents who committed crimes while living here.

All “lifers” in INS custody have served their criminal sentences and would have been freed if they were U.S. citizens. However, as noncitizens, they are subject to expulsion for their convictions.

INS officials say they must hold the would-be deportees under the terms of tough 1996 laws that mandate detention of most so-called “criminal aliens.” To let them loose, the INS argues, could pose a threat to the public.

“We have to be very judicious in deciding what we are going to do with individuals, since many of them were convicted of very serious crimes,” said Bergeron, the INS spokesman.

The INS says it regularly reviews the cases of long-term detainees to determine if they are no longer a threat and merit release pending deportation, either on some kind of bond or in custody of relatives or other responsible adults.

But immigrant advocates say the INS review process is ineffective. Allowing the immigrants to languish in U.S. jails and prisons after they have served their criminal time is clearly unconstitutional, critics argue. Some have been held for two years or more.

“It’s double punishment,” said Charles Wheeler, senior attorney for the Catholic Legal Immigration Network in San Francisco. “I don’t think Congress realized it was putting these people in life sentence-type confinement.”

In the Washington state case, the five-judge panel set up a framework under which individual judges could determine whether some 120 immigrants petitioning the courts there for release should be freed. The judges ruled that factors such as a prisoner’s “dangerousness” and “flight risk” were valid considerations, “but only if there is a realistic chance that an alien will be deported.”

Following the ruling, federal judges in Seattle ordered the release of three men, two Vietnamese and a Laotian. However, the government sought to keep the three in jail pending appeal, and as of Sunday, attorneys said the government had only released two--Binh Phan, 27, who came to the U.S. as a teenager from Vietnam and has been ordered deported for theft and drug offenses, and Son Thai Huynh, 31, also from Vietnam, who was convicted of burglary. Still in custody was Khamsaene Sivongxay, 30, a Laotian convicted of theft, said Jay Starsell, an assistant federal public defender who represented all three defendants.