Appeals Panel Strikes Down No-Bail Law

A law requiring that immigrants facing deportation hearings after serving a criminal sentence must be held without bail is unconstitutional, a federal appeals court in San Francisco ruled Wednesday.

In the 3-0 decision, which could affect thousands of immigrants in nine Western states, the U.S. 9th Circuit Court of Appeals ruled that a federal law requiring mandatory detention violates due process rights for immigrants who have previously established permanent resident status.

The ruling marks the second time in a month that a federal appeals court has struck down the mandatory detention law, the first ruling coming from the 3rd Circuit Court of Appeals in Philadelphia. Similar challenges to the law are pending in federal appeals courts in Cincinnati, Denver, New York and Richmond.

Since October 1998, the federal government has required that all immigrants facing deportation because of crimes they committed must remain in detention after they finish their sentences, regardless of how long the deportation process lasts. That violates the due process clause of the 5th Amendment, the 9th Circuit held Wednesday.

In its decision, involving a Korean citizen living in Northern California, the court made a pointed reference to the government’s war on terrorism, which has resulted in many immigrants being taken into custody.

“We must remember that our ‘Nation’s armor’ includes our Constitution, the central text of our civic faith,” Judge William A. Fletcher wrote. “It is the foundation of everything that makes our country’s system of laws worth defending. As a lawful permanent resident, [Hyung Joon] Kim is entitled to the individualized determination and fair procedures guaranteed by the due process clause of the 5th Amendment.”

The 9th Circuit said it was not throwing out the statute for all categories of immigrants, just for “permanent resident aliens.”

“No one contends that Kim is a terrorist. He was brought to the U.S. from Korea when he was six years old and became a permanent resident alien when he was eight. He committed rather ordinary crimes [burglary and petty theft] in the state of California and those crimes are the basis for the removal proceedings now pending against him,” Fletcher wrote.

“No responsible court will leave ‘an unprotected spot in the Nation’s armor,’ and our decision does not do so,” Fletcher continued. “We do not hold that a lawful permanent resident alien in removal proceedings has an absolute right to bail. We hold only that such an alien has a right to an individualized determination of a right to bail, tailored to his or her particular circumstances.”

The decision was hailed by Judith Rabinowitz, an attorney for the Immigrants Rights Project of the American Civil Liberties Union, who argued the case on Kim’s behalf.

“This decision reminds us that it is unconstitutional and counterproductive to lock people up without a hearing,” Rabinowitz said. “It is so significant that in this post-9/11 climate a court is still ready to say that there are checks and balances, that the Constitution applies.

“It is very reassuring to see that courts are not stepping back from their role in this climate,” Rabinowitz said.

Bill Strassburger, a spokesman for the Immigration and Naturalization Service in Washington, said the agency would have no comment because it had not had time to review the decision. The INS could ask for a rehearing before a larger panel of 9th Circuit judges or appeal to the Supreme Court.

Wednesday’s ruling relied on two U.S. Supreme Court decisions issued last June. In the first case, INS vs. St. Cyr, the high court ruled that the federal government cannot deport resident immigrants who have been convicted of certain crimes without a court hearing.

In the second case, Zadvydas vs. Davis, the Supreme Court declared that the federal government cannot indefinitely imprison immigrant criminals who cannot be deported because their native lands--such as Cuba or Cambodia--will not take them back.

In the Northern California case, Kim was convicted in July 1996 in state court of first-degree burglary.

Thirteen months later, he was convicted of petty theft and received a three-year sentence. The day after he was released from state custody, Kim was detained by the INS under the mandatory detention statute, on the ground that his second conviction constituted an “aggravated felony,” which made him deportable.

After three months in INS custody, Kim filed a federal habeas corpus writ, arguing that the no-bail law violated the Constitution’s due process clause. Three months later, in August 1999, U.S. District Judge Susan Y. Illston in San Francisco ruled that mandatory detention was unconstitutional and ordered the INS to hold a bail hearing to determine whether Kim was a flight risk or a danger to the community.

The INS then released Kim on a $5,000 bond without holding a bail hearing but appealed Illston’s ruling. A separate hearing to determine whether Kim should be deported is scheduled for March before an immigration judge.

The 9th Circuit said it was notable that the statute never permits bail while a deportation proceeding is pending, even if an immigrant is not a flight risk or poses no threat to the public. The court also noted that a wide range of past conduct--including a number of nonviolent offenses--triggered deportation proceedings.

In addition, the 9th Circuit stressed an anomaly: A separate federal law permits bail for immigrants against whom a final deportation order had been issued, once 90 days had elapsed since the order was issued.

“If aliens subject to a final order of removal may be released on bail, it makes little sense to deny bail to those who are in removal proceedings but have not yet been ordered removed. The incentives to flee are greater for an alien already ordered removed than for an alien still in removal proceedings,” wrote Fletcher, an appointee of President Bill Clinton.

His opinion was joined by Judge Procter Hug Jr., an appointee of President Jimmy Carter, and Judge John T. Noonan, an appointee of President Ronald Reagan.

Fletcher wrote that the judges were troubled by the fact that outside of this legal battle, “the government itself appears to have some doubt about whether the no bail . . . detention is a desirable--let alone a necessary--means of dealing with aliens subject to removal proceedings.”

His opinion noted that in testimony before Congress in September 1998, just before the mandatory detention law took effect, then-INS Commissioner Doris Meissner told the Senate Judiciary Committee that the agency was “exploring alternatives to detention for ensuring that aliens for whom release from custody is appropriate appear for their scheduled [deportation] hearings.”

Meissner also testified that “in some cases, no purpose is served by maintaining the person in custody during the entire process.”