Imprisonment of Immigrants Has Limits, Justices Rule

TIMES LEGAL AFFAIRS WRITER

The Supreme Court ruled Thursday that the federal government cannot indefinitely imprison immigrant criminals who cannot be deported because their native lands--such as Cuba, Cambodia and spinoffs of the former Soviet Union--will not take them back.

The 5-4 ruling marked the second time this week that the court, by a one-vote margin, handed a significant victory to the rights of immigrants--in both instances, to noncitizens who had committed crimes and served their time.

The decision ultimately could mean freedom for about 3,800 people across the country, including about 800 in California, who are detained by the U.S. Immigration and Naturalization Service.

Ultimately, legal experts said, the ruling also could affect thousands of others held by the INS under immigration laws passed by Congress in 1996. Some of the immigrants have languished in prison for years, literally people without a country.

On Monday, the court held that legal immigrants convicted of certain crimes are entitled to a court hearing before they can be deported.

"These decisions really put the spotlight on INS' detention of immigrants, which has been significantly expanded as a result of the 1996 laws," said Judy Rabinowitz of the American Civil Liberties Union's Immigrants' Rights Project in New York.

"This ruling casts doubt on a host of other INS policies and practices, ranging from detention of juveniles to conditions of detention."

INS spokesman Bill Strassburger said the agency would have no comment until its attorneys have reviewed the ruling and determined what the agency must do to comply with it.

Court Sets a Firm Detention Yardstick

Not only did the Supreme Court majority reject the government's contention that it should have broad leeway in how long it can keep immigrants in custody to protect the public, but it set a firm yardstick for the INS. The justices said that after an immigrant serves his prison term, the INS can hold him for only six months unless it can demonstrate that the immigrant's native country is likely to take him back in the near future.

"A statute permitting indefinite detention of an alien would raise a serious constitutional problem," Justice Stephen G. Breyer wrote for the majority. He noted that some in Congress had expressed reservations about the constitutionality of holding these individuals for longer than six months.

Once immigrants enter the United States, Breyer wrote, they are entitled to constitutional protections "whether their presence here is lawful, unlawful, temporary or permanent."

Breyer stressed, however, that the federal government can maintain supervision over any released immigrants.

Breyer's opinion was joined by Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter and Ruth Bader Ginsburg. O'Connor, who often provides the key fifth vote in close cases, switched sides from the position she took in favor of the INS in Monday's case. Justice Anthony M. Kennedy also switched sides, from the majority on Monday to writing a dissent on Thursday. Justices Antonin Scalia and Clarence Thomas and Chief Justice William H. Rehnquist dissented from both rulings.

"This claim can be repackaged as freedom from physical restraint or freedom from indefinite detention, but it is . . . a claimed right of release . . . by an individual who concededly has no legal right to be here," Scalia wrote in the dissent joined by Thomas.

"There is no such constitutional right," Scalia declared.

Kennedy wrote a separate dissent, maintaining that the majority had intruded on powers reserved for the executive branch of the government. Rehnquist joined Kennedy's dissent in full, and Scalia and Thomas agreed with part of it.

The ruling was applauded by immigrant rights advocates, who had contended that indefinite detention violated constitutional provisions prohibiting the government from unfairly or arbitrarily depriving an individual of life, liberty or property.

"We're extremely pleased," said Jay Stansell, an assistant federal public defender who represented Kim Ho Ma, one of the lead plaintiffs in the case. "The natural implication of the decision is we live in a country where there is one constitution and it applies to everyone regardless of where you were born."

Such Detention 'Should Be a Very Rare Thing'

Legal scholars and even the former general counsel of the INS also praised the result. "There is a basic liberty interest at stake here," said University of Virginia law professor David A. Martin, who was at the INS from 1995 to 1998.

"Indefinite detention should be a very rare thing in a free society," added Martin, who said he thought the decision would benefit the INS in the long term, by providing agency officials with clear guidance in such situations.

Thursday's ruling involved two men.

Ma, a 23-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 in 1995. Cambodia, with which the United States has no formal repatriation agreement, refused to take him back.

Ma was freed late in 1999, along with four other Seattle men, after a panel of federal trial judges decided that the five had been illegally detained. Last year, the U.S. 9th Circuit Court of Appeals upheld that ruling, saying the INS lacks authority to continue to detain an immigrant who finishes serving his criminal sentence for more than a reasonable time beyond the normal 90-day statutory period.

The U.S. 5th Circuit Court of Appeals in New Orleans ruled the opposite way in a separate case involving Kestutis Zadvydas, who was born in a refugee camp in a section of post-World War II Germany that eventually became part of Lithuania. He came to the U.S. in the mid-1950s and became a permanent legal resident.

Zadvydas has a long criminal record, involving drug crimes, attempted burglary and theft. In the early 1990s, he was convicted of possessing cocaine with intent to distribute it.

After his release in 1994, Germany told the INS it would not take him because he was not a German citizen. Lithuania also refused to accept him, as did the Dominican Republic, his wife's native country. A federal district court judge ordered him released in 1997, but the 5th Circuit Court reversed that ruling in 1999. The Supreme Court took the case to resolve the conflict between the two rulings. The cases are Ashcroft, Attorney General vs. Kim Ho Ma (No. 00-38) and Zadvydas vs. Davis (No. 99-7791).

Wake Forest University law professor Margaret H. Taylor, an expert on INS detention policies, said she thought the decision was likely to have "much more impact" because the Supreme Court set the specific six-month standard for release. "This makes it a lot easier for an advocate to go into court and urge the court to release his client," she said.

Still, Taylor said she expected that attorneys would have to go to court to seek freedom for their clients, rather than expecting the INS to automatically free detainees six months after the completion of their prison terms.

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

Former INS attorney Martin said the ruling could help spur diplomatic talks in which the U.S. is trying to persuade various nations to take back convicted immigrants.

Jean Butterfield, executive director of the American Immigration Lawyers Assn., called the ruling "a resounding step in the right direction, but it leaves much to be done by Congress."

Bills are pending in the House and Senate to rectify what sponsors consider excesses of the two laws passed in 1996 that affect the rights of immigrants.

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