Court Bans the Indefinite Detention of Immigrants

It is illegal for the federal government to indefinitely imprison immigrants convicted of crimes who cannot be deported because their native lands--such as Vietnam, Cambodia, Cuba and spinoffs of the former Soviet Union--will not take them back, a federal appeals court ruled Monday.

The 3-0 decision by the U.S. 9th Circuit Court of Appeals in San Francisco has immediate ramifications for about 790 detainees in California and hundreds of others in eight other Western states, and ultimately could affect more than 3,800 people detained nationwide by the Immigration and Naturalization Service.

The ruling upholds decisions by a special panel of five federal trial judges in Seattle and U.S. District Judge Terry J. Hatter in Los Angeles, who have said the INS policy violated the immigrants’ rights.

The appeals court based its decision, however, on an interpretation of a 1996 immigration reform law rather than on constitutional grounds, which could make the ruling more likely to survive a Supreme Court challenge.

The 9th Circuit’s ruling is at odds with decisions rendered by federal appeals courts in New Orleans and Denver. That makes it likely the U.S. Supreme Court will decide to reconcile the conflict, said William J. Aceves, a professor at California Western Law School in San Diego. Aceves filed a brief in support of the immigrants on behalf of advocacy groups including Human Rights Watch and the Jesuit Refugee Service.

An INS spokesman said the agency probably would appeal the ruling.

Attorneys for the detainees were jubilant.

“It’s a very significant victory in terms of saying that the INS doesn’t have this authority that it had been assuming it does--that it can hold people for the rest of their lives if they need to,” said Judy Rabinowitz of the American Civil Liberties Union’s Immigrants Rights Project in New York.

The lead plaintiff in the case, Kim Ho Ma, a 22-year-old Cambodian refugee, was detained for more than two years by the INS after serving 38 months in prison for his role in a gang-related shooting five years ago. Ma, represented by Seattle Deputy Public Defender Jennifer Wellman, was freed late last year, along with four other Seattle men, after the panel of federal trial judges decided that they had been illegally detained.

The 9th Circuit Court ruled that the INS lacks authority under federal immigration laws to continue to detain an immigrant who has finished serving his criminal sentence for more than a reasonable time beyond the normal 90-day statutory period authorized for removal.

“More specifically, in cases like Ma’s, in which there is no reasonable likelihood that the alien will be removed in the reasonably foreseeable future, we hold that it may not detain the alien beyond that statutory removal period,” wrote Judge Stephen Reinhardt of Los Angeles, whose opinion was joined by judges David R. Thompson of San Diego and Thomas G. Nelson of Boise, Idaho.

The judges emphasized that their decision does not leave the government without remedies. The judges said that all immigrants who are ordered released must nonetheless report to immigration officers periodically, submit to medical or psychiatric testing and accept severe travel restrictions.

The three-judge panel represented a broad range of the political spectrum. Reinhardt, an appointee of President Jimmy Carter, is considered the circuit’s most liberal judge; Thompson, a Ronald Reagan appointee, and Nelson, a George Bush appointee, are considerably more conservative.

Hundreds of immigrants affected by the ruling come from such nations as Cambodia, with which the United States has no formal repatriation agreement. Others come from countries that simply will not take back the individuals in question.

Public defenders said that clients who may go free include natives of Algeria, Belarus, Cameroon, China, Eritrea, Iran, Iraq, Laos, Somalia and Ukraine.

The vast majority of the immigrants have been convicted of crimes, served their sentences and been ordered deported by the INS under a 1996 law designed to remove noncitizen criminals from the United States.

The INS had contended that the immigrants were not indefinitely detained and that their cases were reviewed periodically, but the Seattle judges said: “Our review of the record confirms that the INS does not meaningfully and impartially review the petitioners’ custody status.”

The 9th Circuit Court did not take issue with that conclusion.

The lower court judges also rejected the government’s contention that criminal immigrants who have been ordered deported were no longer entitled to the rights of U.S. citizens, including due process of law.

The 9th Circuit judges indicated that they agreed with the Seattle judges but said they did not have to reach a conclusion on that issue because their decision was based simply on a reasonable reading of the immigration law--which does not explicitly state that indefinite detention is permissible.

The appellate judges wrote that their interpretation of the 1996 immigration law did not require them to “second-guess,” or otherwise interfere with the foreign policy actions of the United States government.

“On the contrary, we have taken at face value the evidence submitted by a State Department officer regarding the status of the government’s attempts to establish a repatriation agreement with Cambodia. He has candidly stated that he cannot predict when a repatriation agreement will be established and begin to function.”

The judges also emphasized that international law condemns “prolonged and arbitrary detention.”

Since the lower court ruling last summer, the INS has revised its review procedures, leading to the release of about 100 detainees in the Seattle area.

Ma, however, was not one of them. He gained temporary freedom last November when a Supreme Court justice rejected government arguments that he constituted a threat to public safety.

Times staff writer Hilary E. MacGregor contributed to this story.