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Judge Bans Indefinite Jailing by INS
Immigration: Ruling affects noncitizens who are ordered deported but can't
go back to home countries.
By HILARY E. MACGREGOR, Times Staff
Writer
A U.S. District Court
judge in Los Angeles has ruled that the federal government may not
indefinitely jail noncitizens who have been ordered deported because of
crimes, but whose home countries will not take them back.
The ruling Thursday by Chief Judge Terry
J. Hatter immediately affects 130 legal immigrants from such countries as
Vietnam, Cambodia, and Cuba who have served time for their crimes and are
now being held at U.S. detention centers from Lancaster to San Pedro.
More broadly, Hatter's ruling will
govern any future cases in the Central District of California, which
includes Los Angeles, Orange and five other California counties from
Riverside to San Luis Obispo, at least until the issue can be considered
by the U.S. 9th Circuit Court of Appeals.
The appeals court already has decided to
review a similar ruling from a federal judge in Seattle. That case will be
argued in February, but a ruling could be many months away.
The issue of how to handle people whom
the Immigration and Naturalization Service terms "criminal aliens" has
been a recurring one nationwide. The INS currently holds about 3,800 such
"lifers" across the country, ranging from petty thieves to murderers. All
are being held because they are considered deportable under U.S. law but
their home countries will not take them back.
Federal trial judges in San Diego and
Nevada, as well as federal appeals courts in New Orleans and Philadelphia,
have upheld the government's right to hold such people until they can be
deported, even if there is no foreseeable chance of their being freed.
But in his seven-page ruling, Hatter
said the policy violates the immigrants' rights to due process and found
that even routine reviews guaranteed by the INS are seldom carried out.
The INS can order detainees to check in
with officers, submit to medical exams or post bond, Hatter ruled. But the
possibility of danger or flight risk alone is not sufficient reason to
hold detainees for the rest of their lives, he wrote.
"Dangerousness and flight risk are
permissible considerations, and may, in certain situations, warrant
continued detention, but only if there is a realistic chance that an alien
will be deported," he ruled. Deputy
Public Defenders Robert Boyle and David S. McLane said they expected all
their clients to be released in coming months after hearings before a
magistrate. "What this is telling people
is even if you are not a citizen, the U.S. Constitution protects you,"
McLane said. INS regional spokeswoman
Virginia Kice said officials are "disappointed with the judge's decision,
and we disagree with it." The agency hasn't decided whether to appeal, she
said. She added, "There is conflicting
case law out there, some of which supports indefinite detention."
John Bartos, the special assistant U.S.
attorney in Los Angeles who argued the case for the government, could not
be reached Friday for comment. But civil
liberties advocates, who have long criticized the INS policy, hailed the
ruling. "This is a resounding rejection
of the Immigration and Naturalization Service argument that they can hold
someone forever," said Lucas Guttentag, who directs the American Civil
Liberties Union's Immigrants' Rights Project.
"The court recognized that the purpose
of immigration detention is to effectuate deportation, not to sentence
someone to life in prison." Linton
Joaquin, director of litigation for the National Immigration Law Center in
Los Angeles, said the ruling is "very important because we have a growing
population of people in this country who are subject to this indefinite
detention." The detention often is
disproportionate to the crime that was committed, Joaquin said, noting
that under the INS' policy, a person in effect can be sentenced to life
for a relatively minor offense. The
government has argued to the contrary in several cases, said Hiroshi
Motomura, a University of Colorado law professor and the co-author of one
of the leading immigration law casebooks.
Government lawyers maintain that the
detentions are not "indefinite," but simply "prolonged." The immigrants in
question might someday be permitted to return to their home countries,
they assert. "This is a hotly contested"
battle, Motomura said. The two sides also spar over whether permitting the
immigrant to stay amounts to a de facto grant of permanent resident
status, he said. Beyond those legal
arguments, the hundreds of pages of documents filed in the case portray
the hopelessness felt by many of the long-term detainees.
Last spring Thanom Posavtoy, a
38-year-old lifer from Laos held at San Pedro, hanged himself in the
shower with his bedsheet. Fellow detainees said he became depressed after
learning that he probably would never be released.
* * * Times legal affairs
writer Henry Weinstein contributed to this story.
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