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Supreme Court Allows Criminal Immigrants’ Detention

A closely divided court ruled 5 to 4 to uphold key provisions of a 1996 immigration law that allows the government to detain newly released non-citizens who have committed a wide variety of crimes including most aggravated felonies and drug offenses as they await deportation hearings.

“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…be detained for the brief period necessary for their removal proceedings,” Chief Justice William Rehnquist wrote for a majority that included Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas.

A different majority of justices also ruled that immigrants facing removal can challenge their intermittent imprisonment in court, allowing a judge to evaluate separate cases even though the government has the overall power to keep the former criminals behind bars. The federal law originally stated that the attorney general’s ability to deport criminal aliens “shall not be subject to review.”

But the court said that this should not prevent federal judges from reviewing individual cases, saying that if Congress wants to keep the courts from conducting case reviews based on constitutional claims, it must state that intent more clearly.

In the court’s main opinion, Rehnquist wrote that the government can not hold such persons indefinitely and should ensure that the detention be a “brief period,” noting that holding times lasted around 45 days in most cases.

“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,” Rehnquist wrote.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented to the main ruling saying the decision “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.”

“This case is not about the national government’s undisputed power to detain aliens in order to prevent flight or to prevent danger to the community,” Souter wrote in a dissent.

“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.”

The court’s main ruling reverses a U.S. appeals court decision that found the 1996 law violated the constitutional due process rights of legal immigrants by detaining them without a procedural hearing to determine their flight risk.

The case centered around the detention of Hyung Joon Kim, a South Korean citizen who came to the U.S. at age six and became a lawful permanent resident two years later.

Kim was convicted for burglary in 1996 and for petty theft the next year. The day after his release from a California prison, immigration authorities detained him without bail to await his deportation hearing.

After three months in detention, Kim filed a petition for a writ of habeas corpus arguing that his inability to have a bail hearing violated his constitutional rights. A federal judge and later a U.S. appeals court agreed that a bail hearing should be held in a reasonable amount of time to determine whether Kim still presented a risk to the community.

The Justice Department has detained more than 75,000 criminal aliens under the law, which applies to thousands of immigrants currently in custody as they await deportation proceedings.

The decision was a disappointment for civil liberties groups, which argued the law gave the government unprecedented detention powers.

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