Fwd: NYTimes.com Article: Legal Immigrants Can Be Held Without Bail, Court Says

From: rakeshb@STANFORD.EDU
Date: Tue Apr 29 2003 - 19:42:47 EDT

Legal Immigrants Can Be Held Without Bail, Court Says

April 29, 2003

WASHINGTON, April 29 - The Supreme Court ruled today, in a
case with significant impact on the rights of noncitizens,
that the federal government can detain legal immigrants
without bail during their deportation proceedings.

The court upheld, 5 to 4, the strict rules of the 1996
immigration law, which mandates detention of immigrants who
have committed certain crimes even as those immigrants
challenge their deportation.

``Congress regularly makes rules that would be unacceptable
if applied to citizens,'' the court said in a summary
attached to the opinion by Chief Justice William H.

The case decided today, Demore v. Kim, No. 01-1491, has
been closely followed by immigrants' rights groups and
lawyers who follow immigration issues. Today's decision
made it clear that immigrants - even those in the United
States legally - may have far more to lose than American
citizens if they are convicted of crimes, and not
necessarily heinous ones.

``We hold that Congress, justifiably concerned that
deportable criminal aliens who are not detained continue to
engage in crime and fail to appear for their removal
hearings in large numbers, may require that persons such as
respondent be detained for the brief period necessary for
their removal proceedings,'' Justice Rehnquist wrote.

The ``respondent'' is Hyung Joon Kim, who came to the
United States in 1984 at age 6. While still a child, he
became a lawful permanent resident. In 1996, when he was a
teenager, he was convicted of burglary and the next year
was found guilty of petty theft.

He completed his sentence in California state prison and,
the day after his release, was detained by immigration
officials without bail to await deportation.

After more than three months in custody, Mr. Kim filed a
petition for a writ of habeas corpus, contending that the
1996 law's no-bail provision violated his constitutional
rights. A federal district court and the United States
Court of Appeals for the Ninth Circuit, in San Francisco,
agreed with him.

But today, the Supreme Court reversed the Ninth Circuit,
and two other circuit courts that had come to similar
conclusions. In so doing, the high court agreed with the
government's contention, made in arguments before the
justices in January, that the appeals judges had improperly
substituted their judgment for those of lawmakers.

Given America's often ambivalent relationship with
immigrants, today's ruling will likely not be the last on
immigrants' rights. Nor will the Kim case be the last
controversy, either in the courts or Congress.

As for the 1996 law that its critics say is too harsh,
Chief Justice Rehnquist wrote, ``Congress adopted this
provision against a backdrop of wholesale failure by the
Immigration and Naturalization Service to deal with
increasing rates of criminal activity by aliens.''

Joining in the majority were Justices Anthony M. Kennedy,
Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

Justices David H. Souter, John Paul Stevens, Ruth Bader
Ginsburg and Stephen G. Breyer dissented. ``The Court's
judgment is unjustified by past cases or current facts,''
Justice Souter wrote in an opinion that rang with
indignation in spots.

``Due process calls for an individual determination before
someone is locked away,'' Justice Souter wrote at one
point. He noted that Mr. Kim had completed his state prison
sentence, and that he was not considered dangerous.

Moreover, Justice Souter wrote, lawful permanent residents
like Mr. Kim are the most privileged class of noncitizens -
that is, they are typically ``developing economic,
familial, and social ties indistinguishable from those of a
citizen.'' Many lawful permanent residents aspire to, and
eventually obtain citizenship, he noted.

``This case is not about the national government's
undisputed power to detain aliens in order to avoid flight
or prevent danger to the community,'' Justice Souter
concluded. ``The issue is whether that power may be
exercised by detaining a still lawful permanent resident
alien when there is no reason for it and no way to
challenge it.''

In a closing lament, Justice Souter said the majority's
finding ``is devoid of even ostensible justification in
fact and at odds with the settled standard of liberty.''

The decisions in the case can be read on the Supreme
Court's Web site: www.supremecourtus.gov.

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