Court strikes down indefinite jailing of would-be immigrants

Resident immigrants facing deportation from the United States may not be held indefinitely in jail simply because their native country refuses to take them back.

In an important decision expanding the rights of would-be immigrants, the US Supreme Court ruled 5 to 4 yesterday that such indefinite detention violates fundamental due-process guarantees in the US Constitution.

The ruling liberates thousands - all of whom had already served prison terms for felonies - from a legal limbo that threatened to keep them behind bars for years, and perhaps decades.

The ruling also marks a clear statement by the high court that Fifth Amendment due-process protections may apply to deportees, rather than just to US citizens and legal permanent residents.

"Essentially, it is a complete victory in that the ruling acknowledges that immigrants are covered by the Constitution as well," says Judy Rabinovitz, senior staff counsel of the American Civil Liberties Union's Immigrants Rights Project.

'Including aliens'

In the opinion for the majority, Justice Stephen Breyer wrote: "... the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."

The majority established a rule in which courts should automatically question the continued detention of deportable aliens who have been held at least six months with no prospect of removal.

There are an estimated 5,000 resident aliens being detained for an indefinite period of time by the Immigration and Naturalization Service pending their deportation. Many are longtime US residents ordered kicked out of the US under the terms of a 1996 immigration law that requires the deportation of any would-be immigrants convicted of a felony.

All the detainees have already served their prison sentences and would have been released into society except for their ordered deportation. In each case, their native country has refused to accept them back, leaving them in a kind of legal limbo.

Judges across the country at both the district-court and appeals-court levels have issued conflicting rulings when examining the issue. In resolving the conflict, the nation's highest court ruled that the government must have a good reason to hold someone in detention.

The majority said that open-ended detention may only be justified when, in the attorney general's view, there is a risk the detainee may flee to avoid deportation or that the detainee may pose a continuing danger to the community if released from jail.

When there is no proof of those conditions, the potential deportee should be released under the same procedures - such as posting a cash bond - that are used to encourage the appearance of defendants in courts the court said.

The decision involves the consolidated cases of two men facing similar plights. Both are resident aliens in the US who were convicted of felonies.

Kim Ho Ma was ordered deported to Cambodia, a country he has not seen since he fled with his parents at age 2. Kestutis Zadvydas was born in a displaced persons camp in Germany after World War II. His parents were Lithuanian, but in 1956 the family moved to the US. Mr. Zadvydas never obtained citizenship and is considered stateless. Germany refused to facilitate a deportation.

Two legal odysseys

In both cases the men had already served their criminal sentences. But the government refused to release them pending deportation.

Mr. Ma filed suit, and the Ninth US Circuit Court of Appeals ordered that he be released from custody. The appeals court ruled that immigration statutes permit detention of deportees for only a "reasonable" period beyond a 90-day removal deadline. Anything longer is an abuse of the discretion of the attorney general, the court ruled.

Another appeals court reached a far different result in Zadvydas's case. The Fifth US Circuit Court of Appeals found that since Zadvydas had already been ordered deported, he did not possess a level of constitutional rights sufficient to second-guess the authority of the attorney general.

Staff writer Dante Chinni contributed to this report.

(c) Copyright 2001. The Christian Science Monitor

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