Justices reject challenge to 1996 immigration law

Federal measure orders detention of those legally in U.S. facing deportation

April 30, 2003|By Jan C. Greenburg | Jan C. Greenburg,SPECIAL TO THE SUN

WASHINGTON - Handing the government greater power to detain legal immigrants, the Supreme Court narrowly ruled yesterday that legal immigrants convicted of crimes may be held without bail throughout the course of their deportation proceedings, even where they are not a danger to society or flight risk.

By a 5-4 vote, the court ruled that a 1996 federal immigration law that provides for mandatory detention of legal immigrants facing deportation did not violate their constitutional rights. It rejected a challenge by 25-year-old Hyung Joon Kim, who immigrated to the United States from South Korea as a child and is a lawful permanent resident.

The Immigration and Naturalization Service incarcerated him and began deportation proceedings against him after he was convicted of burglary and petty theft. He argued he was entitled to a bond hearing and should be released on bail during his deportation proceedings. He maintained that detention violated his constitutional rights to due process because he was not a danger to society or a flight risk.

He urged the court to overturn the federal law, which requires the INS to detain noncitizens convicted of felonies or other deportable crimes during their deportation hearings. Since President Bill Clinton signed the law into effect, 75,000 legal immigrants have been detained without a bond hearing.

But the court, in a majority opinion by Chief Justice William Rehnquist, said Congress was justified in passing the law because it was responding to the "near-total inability" of the INS to remove deportable criminal immigrants. It said that the law was a valid response to "wholesale failure by the INS to deal with increasing rates of criminal activity by aliens" and that it did not violate Kim's constitutional rights.

"Detention during removal proceedings is a constitutionally permissible part of the process," wrote Rehnquist, who was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The case came about before the Sept. 11, 2001, terrorist attacks and does not directly touch on issues that have arisen in the government's war on terrorism, including the secret detention of hundreds of immigrants, though some observers said it could support the Justice Department's detention of terrorist suspects.

Judy Rabinovitz, a senior staff attorney with the ACLU's Immigrants' Rights Project, who represented Kim, said the ruling was about the "devastating consequences for countless immigrants who will be unnecessarily imprisoned."

David Cole, a Georgetown University law professor who has followed the case, said the court employed a double standard, upholding mandatory detention of immigrants, which it would never allow for citizens.

"That's a stunning development, and it rests foursquare on treating foreign nationals as entitled to less due process rights than U.S. citizens," Cole said. "That's significant for the war on terror."

Cole said the ruling will make it easier for the Justice Department to detain foreign terrorism suspects because the government will not have to prove they are a flight risk.

In its opinion, the court emphasized that it long has found a distinction between citizens and noncitizens in the area of immigration. Although all resident immigrants and noncitizens are entitled to the Constitution's protections, the court said, Congress has broad power over immigration and naturalization and can make rules that don't apply to citizens.

The court said Kim was entitled to a hearing to argue he was not deportable, but the absence of a subsequent bond hearing did not deprive him of the right to due process.

Dissenting justices, led by David H. Souter, decried the decision, which they said was "devoid of even ostensible justification" and was "at odds with the settled standard of liberty." Souter said a legal resident had more rights than an illegal immigrant.

"The court's holding that the Constitution permits the government to lock up a lawful permanent resident of this country when there is concededly no reason to do so forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process," Souter wrote.

He was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen G. Breyer wrote separately.

Jan C. Greenburg writes for the Chicago Tribune, a Tribune Publishing newspaper.

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