| Tuesday, April 11, 2000, 09:37
p.m. Pacific
Court rules against INS practice
In the first of a series of widely anticipated rulings, the 9th U.S.
Circuit Court of Appeals yesterday decided federal immigration authorities
have overstepped their authority by indefinitely detaining criminal aliens
awaiting deportation.
The ruling in the case of Kim Ho Ma, a Cambodian man held by the
Immigration and Naturalization Service for more than two years after he
got out of prison, affirmed a decision by a Seattle federal judge and
could affect hundreds of detainees held locally.
Ultimately, it could affect more than 3,500 immigrants being held by
the INS throughout the country.
"This is a very significant ruling" said Jennifer Wellman, an assistant
federal public defender who represented Ma. "It makes it clear that the
INS does not have the unbridled authority to detain these people when that
detention does not aid in their deportation.
"We got everything we wanted."
But not quite how they wanted it. A three-judge panel stopped short of
declaring unconstitutional the 1996 law that allows the INS to hold
immigrants who were convicted of crimes even after they've served their
prison time. Instead, the judges unanimously concluded the INS had
misinterpreted the law as granting it the authority to hold such people
indefinitely, even when their countries of origin had made it clear they
did not want them back.
Ma had been in INS custody for more than two years.
"We hold that Congress did not grant the INS authority to detain
indefinitely aliens who, like Ma, have entered the United States and
cannot be removed to their native land," the judges wrote.
"To the contrary," they added, "we construe the statute as providing
the INS with authority to detain aliens only for a reasonable time" beyond
a 90-day removal period.
And in cases in which there is no hope of removal - such as when
countries like Cambodia, Vietnam and Belarus refuse to consider
repatriating individuals - the INS is barred from holding people beyond
those 90 days.
The ruling was met with silence by the U.S. Justice Department and the
INS. U.S. Attorney Kate Pflaumer said she would not comment on the
decision, adding that any appeal decision would be made by the U.S.
solicitor general.
Ma's troubles are far from over, however. The INS is attempting to take
him back into custody, saying he is a danger to the community, after his
arrest on March 30 in Kent for alleged misdemeanor domestic violence.
Wellman, the public defender, said Ma was released on bail and
continues to live with his family in the Seattle area.
A hearing is set in U.S. District Court for April 19.
The Justice Department recently filed paperwork in federal court saying
the United States and Cambodia are closer to negotiating the return of
immigrants like Ma.
If that happens, it will be the first time the 22-year-old Ma will have
seen the country of his birth since he was 2, when his family immigrated
to the United States.
When he was 17, Ma was convicted of manslaughter after a gang-related
shooting and was sentenced to more than three years in prison. He served
two years of that sentence, his only criminal conviction.
Ma claimed he was only a passenger in the car from which the gunshots
were fired.
After he completed his sentence, the INS held him for two years while
trying to deport him to Cambodia, one of a handful of countries that will
not accept criminal aliens from the United States.
Ma's case, along with those of four other detainees, were culled from
dozens of petitions filed in federal court in Seattle as representative of
issues common to all the detainees. Each case was assigned to a different
judge.
In July, in an extremely unusual move, five federal judges issued a
joint ruling declaring unconstitutional the law under which the detainees
were held.
The Department of Justice appealed the ruling, and the five cases went
to the 9th Circuit separately. Ma's is the first to be ruled on.
The detainees were held under 1996 changes Congress made to immigration
laws, requiring deportation of aliens convicted of certain crimes and
eliminating any deportation waivers that immigrants could once seek.
Copyright © 2000 The Seattle Times Company
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