Deportation Policy Dealt Court Setback

The Supreme Court appeared to signal Monday that immigrants who were convicted of crimes before passage of a 1996 immigration reform law must be allowed to appeal deportation orders.

But no one can be sure about the impact of the court’s orders--which potentially could affect many of the 77,000 immigrants now held in state and federal prisons--because the justices did not issue an opinion explaining their actions.

Government lawyers admitted that they were baffled by the court’s handling of the pending appeals. “We will need to review these orders over several days and see how they fit together,” said Justice Department spokeswoman Carole Florman.

Immigrants rights lawyers said they were cheered by the outcome.

“We are reading between the lines,” said Lucas Guttentag, director of the American Civil Liberties Union’s immigrants rights project. “But we think this is a vindication of the principle of judicial review. All persons, immigrants included, are entitled to their day in court.”

The orders represent the court’s latest attempts to deal with immigrant cases arising from changes that the newly Republican-controlled Congress made to immigration law three years ago.

Congress changed the law to say that immigrants who are criminals must be deported and soon. Their removal “shall not be subject to review by any court,” the law said. At the time, Republican sponsors of the change spoke of prisons in California and Texas being filled with immigrants who, they said, should be shipped home at once.

It remains unclear, however, whether that forced deportation rule extends to the tens of thousands of immigrants who, despite past convictions, have lived lawfully in the United States for a decade or more.

Atty. Gen. Janet Reno, whose duties include overseeing the Immigration and Naturalization Service, said the 1996 law applies broadly to immigrants with criminal records, even if their convictions were long ago.

But federal judges across the country have resisted that harsh approach.

On the East Coast, U.S. appeals courts in Boston and New York have ruled that Congress did not mean to close the courthouse door to immigrants whose cases began before 1996.

On the West Coast, the U.S. 9th Circuit Court of Appeals agreed with Reno that Congress did mean to close the courthouse door to all. But doing so was unconstitutional, it said.

The Justice Department challenged both conclusions in the Supreme Court.

And on Monday, the justices let stand the decisions from Boston and New York. In a separate one-line order, they reversed the ruling of the 9th Circuit and told its judges to reconsider the matter.

Before the 1996 law, an immigrant with a criminal conviction was subject to deportation but immigration officials and judges could waive deportation if the immigrant had strong family ties and a recent clean record. The new provisions took away the possibility of leniency.

All the cases that were before the high court Monday concerned immigrants whose cases were pending at the time of the 1996 law.

The criminal provisions of the 1996 act have created havoc and confusion in the courts. The Justice Department said that at least 23,000 immigrants with criminal convictions are being held in federal facilities and 54,000 more are in state prisons.

After Monday’s terse orders, Reno and Justice Department lawyers will have to decide whether to continue defending her view that the 1996 law applies retroactively to pending cases, or give up and allow hearings for all those who are being held.

Two weeks ago, interpreting a different part of the law, the Supreme Court ruled that Congress had closed the courthouse to illegal immigrants who were seeking to head off their deportations.

In one sense, the criminal provisions of the law go further because they apply to people who are in the United States lawfully with green cards or student visas.

In other action Monday, the court:

* Refused to hear an appeal from Oklahoma City bomber Timothy J. McVeigh, who faces the death penalty. He still has another round of appeals before he can be executed.

* Let stand rulings saying that the city of Santa Barbara can keep antiabortion protesters 8 feet away from clinic entrances, but it cannot prevent demonstrators from approaching patients and staff members on the sidewalks. The protesters challenged the first part of the ruling and the city the second, but the court refused to hear either appeal (Edwards vs. Santa Barbara, 98-1025, and Santa Barbara vs. Edwards, 98-1074).

* Refused to block the firing of a Missouri high school teacher who allowed her students to use profanity in class plays (Lacks vs. Ferguson-Florissant School District, 98-983). The lower courts said that the 1st Amendment did not shield the teacher. In October, the court rejected a similar appeal from a North Carolina drama teacher who was removed from her job because her students put on a play with a lesbian character.