Court Curbs Detention of Immigrants

The federal government cannot indefinitely imprison immigrants who never have been formally admitted to the country, a federal appeals court in San Francisco ruled Thursday.

The decision could affect thousands of individuals, said Judith Rabinovitz of the immigrants rights project at the American Civil Liberties Union.

When noncitizens commit crimes--including illegal entry into the United States--the federal government’s standard policy is to send them back. But when their native countries will not take them--the situation with Cuba, Cambodia and some former Soviet republics, for example--the government has tried to hold immigrant criminals indefinitely.

Last year, the U.S. Supreme Court said the government could not hold immigrants who had committed crimes in the United States for more than six months after the completion of their prison sentences. The only exception, the court said, could be made if officials could demonstrate that an immigrant’s native country was likely to take him back soon.

Thursday’s ruling flowed from that Supreme Court decision, appeals court Judge M. Margaret McKeown said in her opinion.

Unlike the previous cases, which involved criminals who had been residents of the United States, Thursday’s decision involved a man who had never formally been admitted to the country. Lin Guo Xi, a citizen of China, fled his homeland in 1997. The U.S. Coast Guard apprehended him off the coast of Guam on a boat being used to smuggle immigrants.

Lin pleaded guilty to attempted illegal entry and served six months in prison. He then sought asylum in the United States, saying that he would face persecution at home because of his opposition to China’s laws limiting a family to one child. An immigration judge turned him down and ordered his removal from the country.

In 1999, Lin was transferred from a detention facility in Guam to one near Seattle. But Chinese officials so far have not responded to U.S. requests to issue travel documents to allow his return to their country.

INS officials and an immigration judge ordered that Lin be kept in custody while waiting for a response from Chinese officials.

Lin went to court asking for an order that he be let out of jail while waiting for the travel documents. A federal district judge in Seattle turned him down.

But the appeals court sided with Lin, saying that he was entitled to supervised release unless the government could show that it is “reasonably foreseeable” that he can return to China.

The key legal issue in the case centered on the government’s contention that individuals who had never formally been admitted to the United States have fewer rights than those who have been admitted but are facing deportation.

As a general rule, immigrants who have not been admitted to the country do have fewer rights. In this case, however, the law that deals with the removal of illegal immigrants “does not draw any distinction” between the two groups, McKeown wrote.

Judge Ronald M. Gould joined in the opinion.

The judges noted that the case did not involve “any national security or other special circumstances where special arguments might be made for forms of preventive detention.”

The majority said its ruling did not mean that Lin had to be released immediately. If Lin can present evidence that there is “no significant likelihood of removal [return to China] in the reasonably foreseeable future,” the government must release him unless officials can “respond with evidence” that would rebut his case, McKeown wrote.

Judge Pamela A. Rymer dissented, saying that the ruling “judicially mandates a dramatic shift in immigration policy.”

“Aliens who have entered this country have constitutional rights that aliens who have not entered do not,” Rymer wrote.

The Supreme Court decision in last year’s case specifically noted that “aliens who have not yet gained initial admission to this country would present a very different question” from other immigrants, Rymer wrote.

Thomas Hillyer, the chief federal defender in Seattle, whose office represented Lin, said that he was pleased with the ruling and that, if it stands, Lin’s lawyers will go back into court and argue that he should be released because China will not take him back.

The Justice Department had no immediate comment but is expected to appeal.