Judge Bans Indefinite Jailing by INS

A U.S. District Court judge in Los Angeles has ruled that the federal government may not indefinitely jail noncitizens who have been ordered deported because of crimes, but whose home countries will not take them back.

The ruling Thursday by Chief Judge Terry J. Hatter immediately affects 130 legal immigrants from such countries as Vietnam, Cambodia, and Cuba who have served time for their crimes and are now being held at U.S. detention centers from Lancaster to San Pedro.

More broadly, Hatter’s ruling will govern any future cases in the Central District of California, which includes Los Angeles, Orange and five other California counties from Riverside to San Luis Obispo, at least until the issue can be considered by the U.S. 9th Circuit Court of Appeals.

The appeals court already has decided to review a similar ruling from a federal judge in Seattle. That case will be argued in February, but a ruling could be many months away.

The issue of how to handle people whom the Immigration and Naturalization Service terms “criminal aliens” has been a recurring one nationwide. The INS currently holds about 3,800 such “lifers” across the country, ranging from petty thieves to murderers. All are being held because they are considered deportable under U.S. law but their home countries will not take them back.

Federal trial judges in San Diego and Nevada, as well as federal appeals courts in New Orleans and Philadelphia, have upheld the government’s right to hold such people until they can be deported, even if there is no foreseeable chance of their being freed.

But in his seven-page ruling, Hatter said the policy violates the immigrants’ rights to due process and found that even routine reviews guaranteed by the INS are seldom carried out.

The INS can order detainees to check in with officers, submit to medical exams or post bond, Hatter ruled. But the possibility of danger or flight risk alone is not sufficient reason to hold detainees for the rest of their lives, he wrote.

“Dangerousness and flight risk are permissible considerations, and may, in certain situations, warrant continued detention, but only if there is a realistic chance that an alien will be deported,” he ruled.

Deputy Public Defenders Robert Boyle and David S. McLane said they expected all their clients to be released in coming months after hearings before a magistrate.

“What this is telling people is even if you are not a citizen, the U.S. Constitution protects you,” McLane said.

INS regional spokeswoman Virginia Kice said officials are “disappointed with the judge’s decision, and we disagree with it.” The agency hasn’t decided whether to appeal, she said.

She added, “There is conflicting case law out there, some of which supports indefinite detention.”

John Bartos, the special assistant U.S. attorney in Los Angeles who argued the case for the government, could not be reached Friday for comment.

But civil liberties advocates, who have long criticized the INS policy, hailed the ruling.

“This is a resounding rejection of the Immigration and Naturalization Service argument that they can hold someone forever,” said Lucas Guttentag, who directs the American Civil Liberties Union’s Immigrants’ Rights Project.

“The court recognized that the purpose of immigration detention is to effectuate deportation, not to sentence someone to life in prison.”

Linton Joaquin, director of litigation for the National Immigration Law Center in Los Angeles, said the ruling is “very important because we have a growing population of people in this country who are subject to this indefinite detention.”

The detention often is disproportionate to the crime that was committed, Joaquin said, noting that under the INS’ policy, a person in effect can be sentenced to life for a relatively minor offense.

The government has argued to the contrary in several cases, said Hiroshi Motomura, a University of Colorado law professor and the co-author of one of the leading immigration law casebooks.

Government lawyers maintain that the detentions are not “indefinite,” but simply “prolonged.” The immigrants in question might someday be permitted to return to their home countries, they assert.

“This is a hotly contested” battle, Motomura said. The two sides also spar over whether permitting the immigrant to stay amounts to a de facto grant of permanent resident status, he said.

Beyond those legal arguments, the hundreds of pages of documents filed in the case portray the hopelessness felt by many of the long-term detainees.

Last spring Thanom Posavtoy, a 38-year-old lifer from Laos held at San Pedro, hanged himself in the shower with his bedsheet. Fellow detainees said he became depressed after learning that he probably would never be released.

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Times legal affairs writer Henry Weinstein contributed to this story.