Nation of Mutts in a Muddle

Last week, the Supreme Court took Congress to the shed twice over its mistreatment of immigrants. These decisions represent a surprisingly active role for the court in an area long left to the legislative and executive branches. With two narrow majorities, the court not only limited that authority but also imposed a court-made test for determining whether immigrants should be released from detention.

The court’s intervention into the area is a setback for Congress, which has become increasingly draconian in its treatment of deportable immigrants. In a 1996 law, Congress wanted a “one strike and you’re out” approach to immigrants and to limit the rights of immigrants to appeal deportations. This came as a surprise to many immigrants who had pleaded guilty to minor offenses before 1996 and then were told that the law applied retroactively, so they had unknowingly committed an act of self-deportation.

It was this law, not the deportable immigrants, that the court found distinctly un-American. It is clear that some justices now are willing to impose exacting requirements on Congress in pursuing its hard-line approach.

The court’s intervention into this area may have served the interests of justice, but it also created some new inconsistencies in our already confused immigration laws. Consider the court’s ruling involving Kestutis Zadvydas, a convicted felon and deportable alien who has spent years in jail because no country would accept him. In his case, the court ruled that the government cannot hold criminal immigrants indefinitely. As a result, Zadvydas and thousands like him will be released until the United States can arrange a one-way ticket to a willing country.

Under the new ruling, the government can hold individuals only for six months unless it can show that a native country is likely to take the immigrant back. For deportable immigrants from uncooperative countries, this could mean a de facto visa for years if not for life.

This includes individuals who not only have violated immigration laws by remaining in the United States but also have committed crimes such as murder. For example, another immigrant contesting his detention was Kim Ho Ma, a Cambodian convicted of manslaughter in a gang killing. The Immigration and Naturalization Service opposes releasing such individuals because criminal immigrants have a 70% likelihood of committing new offenses.

The court’s decisions are likely to have an immediate effect on the system. In 2000, the U.S. deported 184,775 people, 71,747 of them for criminal offenses. The government currently holds roughly 20,000 immigrants in detention. This number includes more than 3,000 criminals awaiting deportation. Each now will be able to make an appeal.

On one level, the court’s ruling addresses a problem that shocks the conscience: the potential life incarceration of a petty criminal like Zadvydas, who was sentenced to two years for a drug offense. Yet many noncriminal immigrants may find the court’s new approach rather galling, given their own expedited removal from the country.

Consider the other decision handed down last week. Here, the court ruled that criminal immigrants must be given a right to appeal their deportation to federal trial courts. The ruling had the effect of giving criminal immigrants greater access to the courts than noncriminals under the 1996 law.

These cases only highlight that our immigration laws lack a unifying logic or consistency. We are, of course, not unique. Europe is experiencing more violence against immigrants, and nations like France and Germany are wrestling with zero immigration proposals.

Yet one could expect more from the U.S. After all, we are a nation of immigrants; we are the world’s mutts. One would think that Americans could do better with an area that is so closely tied to our national history and character.