High Court Upholds Jailing of Immigrants

By David G. Savage

April 30, 2003 12 AM PT

Times Staff Writer

WASHINGTON — WASHINGTON--Legal immigrants who have committed serious crimes can be held without a hearing and deported, even if they are not dangerous and are unlikely to flee, the U.S. Supreme Court ruled Tuesday.

The 5-4 decision in a California case upholds a strict 1996 immigration law that seeks to rid the nation of “criminal aliens.” The law requires mandatory detention and deportation of all immigrants, even those who are longtime lawful residents, if they have committed a crime that is punishable by at least a year in prison.

In Tuesday’s ruling, the high court rejected the claim that these immigrants have a constitutional right to a hearing before they are jailed.

“This court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens,” said Chief Justice William H. Rehnquist.

Legal experts said the decision is likely to speed the pace of thousands of deportations. Rehnquist cited government statistics showing that immigrants with criminal records are deported on average within 47 days of their arrest.

Immigration rights advocates and the American Bar Assn. criticized the decision, saying it allowed imprisonment without a hearing. But supporters said the decision affirms the law’s goal of deporting criminal immigrants.

The ruling also gives U.S. Atty. Gen. John Ashcroft a stronger legal basis to hold detainees in the war on terrorism. After the Sept. 11 attacks, Ashcroft and the FBI arrested and detained at least 1,200 immigrants, but charged only a handful with crimes.

Normally, the Constitution does not allow the government to detain a person without full due process of law -- including the filing of charges and a hearing to contest them. But Rehnquist’s opinion stresses that immigrants can be accorded lesser rights than U.S. citizens.

Unlike the terrorism disputes, the case decided Tuesday focused on immigrants who have been found guilty of crimes.

Hyung Joon Kim, a 25-year old South Korean native, came to California when he was 6 and became a legal resident. In 1996, Kim was convicted in Oakland of burglary for breaking into a tool shed. A year later, he was convicted of a petty theft and, because of his record, sentenced to three years in prison.

After his release, however, immigration officials detained Kim, holding him without a hearing while he awaited deportation. Kim sued the INS district commissioner, arguing that he was entitled to a hearing. A federal judge in Oakland agreed and ordered him released on bail.

That decision was upheld by the U.S. 9th Circuit Court of Appeals.

“No one contends Kim is a terrorist,” said Judge William A. Fletcher. “He has committed rather ordinary crimes in the state of California.” Before being jailed, Kim was entitled to a hearing to show he was not “a flight risk or a danger to the community,” the appeals court held. But the Supreme Court’s decision overturned that ruling and said no such hearing is required.

When enacting the 1996 law, Congress concluded that at least 450,000 immigrants were in prison or were on parole for serious crimes.

Once released, many of these immigrants committed more crimes. In Los Angeles, 40% of immigrants who were released from the county jail in 1990 were rearrested within a year, government lawyers said.

Moreover, the Immigration and Naturalization Service had no effective means of tracking all these immigrants with criminal records.

Rehnquist said “criminal aliens [are] the fastest-growing segment of the federal prison population,” noting immigrants account for “roughly 25% of all prisoners.”

It is unclear exactly what crimes are serious enough to trigger deportation.

In 1996, Congress said any “aggravated felony” or recent crime of “moral turpitude” makes an immigrant subject to deportation.

But in practice, lesser offenses such as shoplifting and possession of stolen property have been deemed to be aggravated felonies because they resulted in a jail term of one year or more. The ACLU lawyers cited an example of an immigrant in the New York area who was slated for deportation because of his conviction for stealing four packs of cigarettes and a bottle of cold medicine.

Immigration-rights lawyers say they expect another round of litigation to clarify what crimes can trigger a deportation order.

Past crimes can trigger a deportation, but it was not clear with Tuesday’s ruling whether the government would pursue many offenses that occurred before the 1996 law.

Under that law, “criminal aliens” are subject to mandatory deportation. And federal officials “shall take into custody any alien” who is slated for deportation.

Nonetheless, lower court judges have balked at applying the mandatory detention rule strictly and in all cases.

Last year, Bush administration Solicitor General Theodore B. Olson appealed the lower-court rulings, urging the high court to reverse them.

Since 1996, 75,000 criminal aliens have been taken into custody and deported, and hundreds of new cases arise each week, Olson said. The Supreme Court’s conservative majority sided with the government Tuesday.

Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas said the lower court judges had no power even to hear Kim’s case. They pointed to a provision in the 1996 law that says “the attorney general’s judgment” in deportation cases “shall not be subject to review” in court.

Rehnquist, joined by Justice Anthony M. Kennedy, disagreed in part and said the judges in California had the authority to hear Kim’s case. But the five justices joined to rule Kim can be jailed without a hearing.

“The government may constitutionally detain deportable aliens during the limited period necessary for their removal,” Rehnquist said in Demore vs. Kim.

The court’s liberal bloc -- Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer -- dissented. Souter said the Constitution should be read to give all people, including immigrants, a right to a hearing before they are jailed.

Last month, the high court split along similar lines in a “three strikes” case from California. The 9th Circuit Court said it was unconstitutional to impose a 50-year prison term for shoplifting. In a 5-4 ruling, the Supreme Court disagreed and upheld the law.

Judy Rabinovitz, an American Civil Liberties Union lawyer who represented Kim, said the group was “extremely disappointed” with the ruling. “This will mean a lot of lawful permanent residents will be wrongly detained, even if they pose no flight risk,” she said.

For a longtime U.S. resident who faces deportation, a final few days of freedom is very important, said Professor William Aceves at the California Western School of Law in San Diego. “Those weeks give them a chance to put their matters in order, maybe to assist their families. It’s a brief period, but a very significant one.”

On the other side, lawyers hailed the ruling for enforcing the law as it was written. “The public is significantly safer because of today’s decision,” said Richard Samp of the Washington Legal Foundation. “This means alien felons will be kept in jail rather than their being back on the streets.”

The Department of Homeland Security is charged with enforcing the immigration law. A spokesman said the agency did not have statistics or estimates on how many people might be subject to arrest or deportation.

Peter Nunez, the former U.S. attorney in San Diego, said federal immigration officials have been unable to handle all the criminals who can be deported.

“Before, the deportation process was so lenient and lax,” said Nunez, who heads the board of the Center for Immigration Studies in Washington. “A huge proportion [of the deportees] never showed up, and the INS had no way to cope.” While the new law strengthens the authority of federal officials, it is too soon to say whether it will prove effective, he said.

Alfred P. Carlton Jr., president of the American Bar Assn., denounced the ruling for “ignoring 100 years of legal precedent.”