Ruling affects criminals whose native countries won’t allow them back home

Federal appeals court judges in Denver on Tuesday backed the
government’s power to detain indefinitely immigrant criminals
whose countries won’t take them back.

Weighing into a national dilemma, their 10th Circuit Court of
Appeals ruling asserts that this growing class of deportable
immigrant criminals has lost basic rights under the U.S.
Constitution.

The ruling upholds a 1996 law requiring deportation of
immigrants convicted of crimes and detention of those who can’t be
deported. Under the law, the U.S. Immigration and Naturalization
Service is holding 4,566 immigrant criminals, filling up a fourth
of INS detention center beds.

The appeals court case concerned two Vietnamese men detained
at a 340-bed regional INS detention facility east of Denver.

Now they and other detainees – including a Laotian named Sia
Vang who appeared in a separate federal court case Tuesday –
depend more than ever on INS discretion if they ever are to rejoin
their families.

U.S. District Judge Lewis Babcock delayed a decision on
Vang, who was sentenced to 24 years of probation in 1996 for
sexual assault on two preteen girls.

In addressing the constitutional concerns, the appeals court
judges declined to interfere with the law Congress passed in 1996,
which set no time limit for detention.

“This court will not substitute its judgment for that of
Congress by reading into the statute a time limit that is not
included in the plain language of the statute,” Appellate Judge
Michael Murphy, a Clinton appointee, wrote in the 33-page ruling.

Releasing the two Vietnamese detainees who sought freedom
under the Constitution would amount to awarding them “the very
right denied them as a result of the final (deportation) orders,
the right to be at large in the United States,” the judges
reasoned. “The relief they seek is indistinguishable from a
request to be readmitted to this country.” But these and other
immigrant criminals whose countries won’t take them back are
indisputably here, critics emphasized after the ruling. The cost
to U.S. taxpayers tops $100 million a year.

Appellate Judge Wade Brorby, a Reagan appointee, issued a
sharp dissent to the ruling: “Governmental conduct that so reduces
an individual to a “non person’ to permit such imprisonment most
assuredly shocks my conscience,” he wrote.

The ruling immediately drew calls for reconsideration from
immigrants’ rights advocates nationwide.

“We’re going to continue fighting,” said Judy Rabinovitz, a New
York-based senior lawyer for the American Civil Liberties Union,
who argued the case with local lawyer Jim Salvator last July.

Immigrants convicted of crimes “are human beings,” Rabinovitz
said, “and our Constitution protects all persons from deprivation
of life, liberty and property. The two-judge majority
fundamentally misconstrued the constitutional issues presented in
this case.”

A former INS legal chief joined in the outcry.

“Anybody in the United States subject to government power is
entitled to the protection of the Constitution,” said Alex
Aleinikoff, chief INS counsel from 1994 to ’97 and now a professor
at Georgetown University Law Center.

“The conclusion that there are people in this country who can
be arbitrarily detained indefinitely, on the theory that they have
no rights is inconsistent with developments in due process law
over the last century.”

And University of California law professor Charles
Weisselberg, a veteran immigration lawyer, suggested that U.S.
moral authority will suffer. “This makes it harder for us to hold
other countries accountable (for jailing people indefinitely) when
we give people in our country the back of the hand.”

The decision in Denver begins to firm up an uncertain
landscape for detention of immigrants. It’s the second appellate
court ruling supporting the 1996 immigration law that has led to
hundreds of cases in federal district courts nationwide. The Fifth
Circuit Court, covering Texas and Louisiana, ruled last August.
The Ninth Circuit Court in California is expected to rule soon
after hearing arguments earlier this month. Circuit court
decisions are binding in their areas for federal judges ruling on
similar cases.

Federal district judges have been divided, and rulings for
and against the law are mulitiplying.

INS officials took Tuesday’s ruling as less than a green
light for future detentions. They’re reluctant to use their powers
too frequently in part because they don’t have room for many more
long-term detainees.

“The fact that you’ve got two circuit courts that have
basically upheld that the law is constitutional is certainly
significant,” INS spokesman Russ Bergeron said. “But it does not
resolve, finally resolve, the issue. And it may be that ultimately
you will need a Supreme Court decision given the varying district
court rulings.”

The burden of housing growing numbers of immigrant criminals
has forced INS leaders to ask to transfer some to regular federal
prisons. And INS officials say they want their $4.4 billion annual
budget increased this year to afford more beds. INS agents in some
parts of the country who catch illegal immigrants are forced to
release them simply for lack of space.

“Detention is a crucial component of our overall enforcement
effort,” Bergeron said. “The greater our capacity to detain, the
greater our ability to return credibility to the nation’s
immigration laws.”

In Colorado, INS District Director Joe Greene awaits further
instructions from the appellate court.

But Greene said he doesn’t plan on changing his approach to
Vang and other detainees or the reviews and voluntary releases
that the INS began a year ago aimed at easing constitutional
concerns.

At least 1,000 immigrant criminals, convicted of crimes from
manslaughter to misdemeanor drug offenses, were released into U.S.
cities this past year.

All this is bad news for Vang, because Green still considers
him a threat to public safety. “I have to wait,” Vang concluded
glumly Tuesday morning.

The good news for the INS, Greene said, “is that the circuit
has spoken. At least the law for my region has been settled –
until the Supreme Court chooses to decide. That means a little
less litigation, doesn’t it?”