Court to clarify the rights of noncitizens

When he was 18 years old, Hyung Joon Kim was arrested for breaking into a toolshed. He spent two months in jail. Then, a year later, he was arrested for petty theft and went to prison for 18 months.

For most convicted criminals in the US, the harshest aspect of their punishment ends when they are released from jail or prison. But for Mr. Kim, a green-card holder who came to the US from Korea at age 6, his most costly punishment is yet to come: a one-way ticket back to Korea.

A 1996 immigration law requires that any non-US citizen who commits an aggravated felony must be deported. It further requires that so-called "criminal aliens" be held without bond pending their removal from the US.

Immigrant-rights advocates say that such mandatory detention requirements - which don't afford an opportunity for an individualized hearing before a judge - violate constitutional protections against arbitrary imprisonment by the government.

Government lawyers counter that Congress has the power under the Constitution to enact tough measures to protect America's borders. They say judges shouldn't interfere with efforts to enforce such laws, particularly as the nation is waging a war against foreign-based terrorists seeking to infiltrate the US.

Wednesday, the US Supreme Court takes up Kim's plight in a case that will help establish to what extent constitutional protections apply to noncitizens living in the US. The issue arises at a time when the government is seeking to exercise broad powers to question, investigate, and detain noncitizens, and even conduct secret hearings.

Cases challenging the full array of government efforts in the war on terror are working their way through the courts. The Kim case may offer important clues about how the nation's highest court is likely to approach the thorny issue of protecting civil liberties in times of national peril.

Specifically at issue in this case is whether Congress overstepped its authority in enacting a law that requires an entire class of potential deportees be held behind bars without an opportunity to be free on bond pending a final removal order. "What is so extreme about this statute is that it doesn't allow [the Immigration and Naturalization Service] to decide that this person doesn't need to be detained," says Kim's lawyer, Judy Rabinovitz of the American Civil Liberties Union.

In criminal cases, even accused mass murderers and terrorists have a right to a hearing to determine whether the defendant may be freed after posting a bond. The judge must decide whether the size of the bond will guarantee the defendant's presence at trial. In addition, a judge may refuse to grant bond if prosecutors can show that the defendant may pose a danger to the community if released.

Lawyers for Kim say he should enjoy the same rights. His crimes were relatively minor, they say, and so his release would pose no danger to the community. And a monetary bond would be more than enough to prevent him from fleeing to avoid being sent back to Korea, they say.

Statistics show otherwise, according to government lawyers. "When non-detained aliens were ordered to appear for deportation from the United States, nearly 90 percent absconded," writes Solicitor General Theodore Olson in his brief to the court. "Congress concluded that mandatory detention of a selected group of criminal aliens, during the pendency of their removal proceedings, is necessary to implement its immigration policies."

Federal appeals courts are split on the issue. The Third, Fourth, Ninth, and Tenth Circuits in Philadelphia, Richmond, San Francisco, and Denver, respectively, have struck the law down, while the Seventh US Circuit Court of Appeals in Chicago has upheld it.

"In light of the recent terrorist attacks in this country, [we] believe that the political branches of government must be afforded broad power to detain aliens who are convicted of aggravated felonies," says Richard Samp in a friend-of-the-court brief on behalf of the Washington Legal Foundation.

Yet Ms. Rabinovitz says if Kim wins his case, it will in no way undermine the war on terror. "The essence of an individualized determination is that individuals who are a danger are not going to be released. So this does not put the country at risk whether from dangerous people or from terrorism," she says.