Court Limits Detention of Immigrants
Justices rule convicts can't be held indefinitely
By Charles Lane and Hanna Rosin
The Washington Post
The Supreme Court ruled yesterday that immigrants who have committed crimes in the United States cannot be detained indefinitely, even if there is no other country to which they can be deported.
By a 5 to 4 vote, the court rejected the Immigration and Nationalization Service's policy of holding such immigrants as long as it deems necessary to protect public safety. Under the policy, the immigrants can win release only by proving they pose no danger to the community.
The ruling represents the high court's second rebuff to U.S. immigration policy this week. On Monday, the court, again splitting 5 to 4, said federal law does not permit the USCIS to automatically deport illegal immigrants convicted of even minor crimes.
Some predicted the cases, taken together, could have broad implications for how immigration law is applied, forcing Congress to apply the same constitutional principles to immigrants that are granted to U.S. citizens.
"This could be a sea change in immigration law," said Georgetown University law professor Alex Aleinikoff, a former USCIS general counsel. "For the last 100 years, the court has said Congress has full power in immigration law. This decision implies that . . . we apply the same standard to immigrants as to U.S. citizens."
Supporters of the government's position said the court was engaged in an act of judicial legislation, usurping Congress's long-established authority to set immigration law.
"In this one, the court greatly expanded the . . . rights of aliens, saying they have the same ones as citizens," said Richard Samp of the Washington Legal Foundation. "It's kind of a slap in the face of Congress."
The dispute grows out of a 1996 change in the immigration law reflecting Congress's diminishing patience for immigrants. Previously, immigrants who had committed crimes would be released into parole after six months until an agreement with their countries was reached. Under the new law, nothing blocked the USCIS from holding them indefinitely.
In yesterday's decision, the court said that could violate the immigrants' due process rights. "The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any . . . protection is obvious," Justice Stephen G. Breyer wrote in his opinion for the court.
Once immigrants enter the country they are entitled to constitutional protections "whether their presence here is lawful, unlawful, temporary or permanent," Breyer said. He was joined by Justices Sandra Day O'Connor, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.
Yesterday's decision will immediately affect about 2,700 "lifers" -- people who committed crimes in the United States and then were ordered deported, but whose countries have refused to take them back. They have been held at BCIS-run detention centers or local jails.
Their cases are reviewed every six months by USCIS officers, who determine whether they are a threat to the community. Of the 4,000 reviews the USCIS conducted from February 1999 to February 2000, about 1,800 resulted in detainees being released, according to the BCIS.
Most are legal immigrants who never applied for citizenship. About half are from Vietnam, Cambodia, Laos and Cuba, countries that refuse to take back expelled immigrants. For them, the decision means they will likely be released on parole at their next six-month hearing.
The court yesterday emphasized that its ruling had no application to aliens detained for other reasons, such as those denied entry and held at border locations, or to potential cases involving suspected terrorists or other national security risks.
Dissenting in yesterday's case, Justice Anthony M. Kennedy, joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, said he did not see how this distinction could be sustained in practice.
Kennedy argued that the court's ruling requires federal judges to intervene in foreign policy decisions about negotiating repatriation agreements -- and will effectively give other countries the right to determine U.S. immigration policy.
Yesterday's ruling involved two men. Kim Ho Ma is a Cambodian refugee who came to the United States in 1985 and participated in an ambush of a fellow gang member in Seattle 10 years later. He served 38 months for first-degree manslaughter and was ordered deported. But Cambodia has no repatriation agreement with the United States.
Last year, the San Francisco-based 9th Circuit Court of Appeals ordered Ma's release. It said immigration law does not allow USCIS to hold people more than a "reasonable time" beyond the 90 days specified in the law.
That ruling conflicted with the result in the case of Kestutis Zadvydas. Described by his lawyers as "a citizen of no country," Zadvydas was born to Lithuanian parents in a refugee camp in U.S.-occupied Germany in 1948. He came to the United States in 1956 and spent much of his life either in jail or as a fugitive. After serving two years on a cocaine charge, Zadvydas was
ordered deported in 1994.
But neither Germany nor Lithuania would claim him as a citizen, and Zadvydas spent four years in various jails before a federal district judge ordered him released. In 1999, the New Orleans-based 5th Circuit Court of Appeals reversed that order, saying that Zadvydas's situation was legally analogous to that of an illegal immigrant detained at the border.
In yesterday's ruling, the Supreme Court defined a set of guidelines that lower courts should follow in deciding whether to release an alien: If the alien can show that there is "good reason" to believe that his deportation will not be possible within a reasonable time, and the government cannot rebut that claim, the court should order him out of jail and into BCIS-supervised probation.
The case was Zadvydas v. Davis, No. 99-7791, consolidated with Ashcroft v. Ma, No. 00-38.
EDITOR'S NOTE: The Supreme Court ruling is at:
http://www.supremecourtus.gov/opinions/00pdf/99-7791.pdf
'Coyote' Drop House Uncovered
By Nena Baker and Cristina Elias
The Arizona Republic
The "coyotes" told Maria the trip through the desert would take four hours and cost her the jewelry she was wearing.
Both were lies.
After a grueling three-day trek on foot from a Sonoran village, Maria and 14 men, all of whom were undocumented migrants, were taken Sunday to a mobile home in south Phoenix.
Their captivity and Maria's escape triggered a chain of events involving an immigrant activist with a felony record, the police, the Mexican consulate, the Immigration and Naturalization Service and 12 unlucky immigrants.
Their drama - the lies, the threats, the fear - is a hidden but increasingly common one in a metropolitan area on the front lines of America's illegal immigration dilemma.
Migrants such as Maria are relying more and more on smugglers to get them across the border, immigration officials said. But this is making them vulnerable not only to death or injury in the desert, but also to abuse and extortion by the very people they have hired to help them.
Coyotes at this drop house waved guns in the faces of Maria and the other captives, telling them they would not be released until friends and relatives paid up.
In Maria's case, the price was $1,100.
Tuesday morning, Maria, a 26-year-old mother of three who did not want her full name used, escaped out a bathroom window.
By Wednesday, the remaining undocumented migrants found in the mobile home, ages 21 to 48, were back in Mexico, deposited there by the BCIS.
Still at large were the coyotes who smuggled them and then held them for money.
Maria, meanwhile, was waiting for her husband, an undocumented landscaper, to cross the border with a smuggler so the two can travel to Las Vegas where they live with their U.S.-born children. Maria was making a return trip to the United States after her family visited relatives in Mexico.
"I got out of it OK," said Maria, a homemaker who has round cheeks, a chubby build and shoulder-length hair. "But it may be worse for others."
When drop houses are discovered, the coyotes "are almost always off the scene by the time police and USCIS get there," USCIS spokesman Russell Ahr said.
"Even if they're still there, it's difficult to ID them because of the reluctance of the immigrants to snitch on them."
No one knows how long the bougainvillea-covered mobile home in the shadow of South Mountain has been used as a drop house, though Maria said her captors bragged they were quite experienced in the trade.
Maria said the group arrived at night and never left the mobile home or even peeked outside the curtains as the coyotes demanded phone numbers of relatives and friends.
After two nights during which she was fed only tuna, corn and onions, Maria was able to shimmy out a bathroom window and reach a trailer nearby. When a woman answered the door, Maria pointed to her cut, swollen feet, remnants of her three-day trek.
"Look at my feet. Help me. Let me in," she said in Spanish.
The other woman, who herself is undocumented, took Maria inside, listened to her story and called Elias Bermudez, who runs an immigration consulting business called Centro de Ayuda, or the Help Center.
Bermudez, a one-time mayor of San Luis who admitted concealing proceeds from a Mexican methamphetamine ring in the early 1990s, drove to the scene "because I was afraid people were in danger."
He also called 911 and notified the Mexican consulate.
Bermudez wanted police to secure the house, then allow the consulate official to take custody of those found inside.
"They had committed no crime," he said.
By this time, however, Maria and her good Samaritan had vanished. Bermudez remained in touch with them by cellphone.
When police arrived, it took a few minutes to sort out what was known.
"There are a group of illegal immigrants in there who are being held against their will by coyotes who have guns," Bermudez told police, explaining his information was secondhand and provided by a woman who had escaped that morning.
Minutes later, four squad cars were cruising the area. Officers knocked on doors and talked to residents. But they found no trace of what they sought.
Undeterred, Bermudez telephoned Maria and persuaded her to return.
About 4 p.m., Maria and Alan Hubberd, a representative of the Mexican consulate, arrived in the back of a police car. Maria pointed out the trailer. An air-conditioner hummed in one window; the others were taped closed.
"Open up. Phoenix Police Department!" Sgt. Robert Carillo barked.
A moment later, Carillo and a swarm of officers entered the mobile home.
"We need a Spanish speaker," Carillo radioed.
Inside were a dozen men, two handguns and a rifle, police said.
All the men told police they had arrived just that morning and had not been mistreated.
"Of course they would say that," Bermudez said. "But that's not true."
Carillo huddled with officers. Police protocol requires that the USCIS be notified when officers discover evidence of a smuggling operation. He flipped open his cellphone and dialed.
Inside the mobile home, one of the men began to cry as he realized his fate.
Hubberd's shoulders slumped. The Mexican consulate could have given the men shelter and wired their families for money to get them on their way, he said.
"It's what the coyotes promised them," he said, "only we would do it for free."
At a little after 6 p.m., USCIS officers arrived. Two by two, they took the men from the mobile home, frisked them and loaded them into an USCIS wagon as Hubberd asked for their names, ages and hometowns.
Before they closed the doors, one officer tried to match snapshots found in the trailer with faces in the van.
Officers were looking for any of the men in the pictures, men who flashed smiles and sported guns tucked into waistbands. A match might reveal a smuggler. None matched.
As for Maria, she said she will never return for another visit back to Mexico. She made this visit south to meet her with in-laws and introduce her children, a 4-year-old and twins nearly 2, to their grandparents.
The children crossed the border earlier with a relative who has documents.
"I was scared that I could not come up with the money they (the coyotes) wanted," Maria said. "It's why I escaped. I wanted to see my children again."
U.S. Blacklists 23 Countries for Human Trafficking
Reuters
WASHINGTON (Reuters) -- The United States blacklisted 23 countries today including allies Israel, Greece and Saudi Arabia on grounds that they were not tackling trafficking in people, which it called ''a modern-day form of slavery.''
Under a law passed by Congress last year, the United States may impose sanctions on these ''tier three'' nations if they do not take steps to get off the list by 2003.
In the first report of its kind, for the year 2000, another 47 countries were put in ''tier two'' -- meaning that they did not meet minimum standards for tackling the problem, but were trying to. This included China, France and Japan.
The ''tier one'' countries, included in the report because they had a significant number of victims of human trafficking, had to prosecute those behind the illegal trade, protect the victims and sponsor or coordinate prevention campaigns.
Britain, Canada, Germany and Hong Kong were in this section, along with Austria, Belgium, Colombia, Italy, The Netherlands, Spain, Switzerland and Taiwan.
Israel was in tier three as a destination country, mainly for women, for trafficking from former Soviet states, Brazil, Turkey, South Africa and some Asian countries.
In a sign this key U.S. ally could qualify for a waiver, however, the State Department said the Israeli government had ''begun to take some steps'' to combat the problem.
Greece, a transit and destination country for victims of sexual exploitation from the Balkans and former Soviet states ''has not yet acknowledged publicly that trafficking is a problem,'' the report said.
In Saudi Arabia, some expatriates who came to work in the oil-rich state found themselves trapped by employers.
''Workers from Bangladesh, Thailand, India, the Philippines, Indonesia and the Horn of Africa have reported being forced into domestic servitude and sexual exploitation,'' the report said.
Another U.S. ally that found itself in the wrong section was South Korea, from where young women were trafficked, mainly for sexual exploitation, primarily to the United States but also to other Western countries and Japan.
''While South Korea is a leader in the region on human rights and democracy generally, the government has done little to combat this relatively new and worsening problem,'' it said.
The others in tier three were Albania, Bahrain, Belarus, Bosnia-Herzegovina, Democratic Republic of Congo, Gabon, Indonesia, Kazakhstan, Lebanon, Malaysia, Pakistan, Qatar, Romania, Russia, Sudan, Turkey, United Arab Emirates and the Federal Republic of Yugoslavia.
The law instructs the president to tell Congress whether he will cut off non-humanitarian, non-trade related aid to a country for the next fiscal year, but the report said sanctions would only be imposed on the basis of the 2003 report.
Other funding for such countries already failing to qualify for such aid would lose money for educational and cultural exchanges or find themselves losing crucial U.S. support for international loans.
The law allows for various waivers of the aid restrictions.
Bush Tilts to Friendlier Tone on Immigrants
By Abraham McLaughlin and Francine Kiefer
The Christian Science Monitor
WASHINGTON -- Wading into an issue of perennial controversy, President Bush urged sweeping changes, and signaled an important tonal shift, this week to make America more welcoming toward immigrants.
His plan - which includes splitting the Immigration and Naturalization Service into two parts (one to defend the border, one to provide faster, more courteous service) - is a calculated political risk. More Hispanics - a key voting bloc - might appreciate him and his party. Yet core Republican conservatives could start rebelling. But more important, Mr. Bush's efforts to ensure that America is, in his words, "a welcoming society" could have major demographic implications that will affect the country far into the future. The US is already welcoming nearly 1 million immigrants a year - a record - and some are beginning to complain that continued high influx will only exacerbate urban sprawl, environmental degradation, energy shortages, and traffic congestion.
America has long had a "love-hate relationship" with immigrants, says Arturo Vargas, executive director of the National Association of Latino Elected and Appointed Officials. "We go through this cycle of loving them during the good times and hating them during the bad times."
Bush's plans include:
* Splitting the USCIS in two. Proponents argue it would keep the agency from being at cross-purposes with itself - trying to keep immigrants out, yet being a courteous welcomer of new applicants for citizenship. Critics worry the law-enforcement side might overshadow the services side.
* Spending $500 million over five years to help the USCIS be more "customer" focused, including processing citizenship applications in six months. Current delays can be three to four years.
* He reiterated support for a law that waives a rule that some illegal immigrants return to their home country before applying for residency. Up to 600,000 people could get legal status.
In coming months, Bush also faces a politically tough decision on whether to create a "guest worker" program that puts migrants on the path to citizenship.
In a ceremony on Ellis Island Tuesday, Bush declared, "Immigration is not a problem to be solved. It is a sign of a confident and successful nation."
Bush's proposals come after a decade in which more immigrants arrived in the US than any other time in history - and amid hints of rising anti-immigrant sentiment.
Observers say Bush may be going farther than any recent president since Ronald Reagan in welcoming immigrants. Some disagree with his approach.
"How dense can we get?" asks Dan Stein, head of the Federation for American Immigration Reform, a controversial group that advocates dramatic border tightening. "Policies that make sense when you're trying to settle a frontier or form the core of an industrial-revolution work force, don't necessarily make sense in a post-industrial era."
He points to a 1996 Census Bureau report. If immigration continues at a "medium" pace, it says, US population will be nearly 400 million by 2050. "High" immigration could mean 438 million. With "net-zero" immigration - with the number of immigrants balancing those who leave or die - it could be 320 million. There are inklings of growing public discontent. The percentage of Americans favoring reduced immigration rose slightly - from 38 to 43 percent - between last September and this March, in Gallup polls. In 1993, on the heels of a recession, 65 percent favored a decrease.
But defenders of immigration view skepticism as irrational.
As for the sprawl concerns, "it's not immigrants who are driving SUVs and building McMansions," says Angela Kelley of the National Immigration Forum in Washington. "They're taking the bus and opening businesses." Indeed, three top high-tech firms were started by immigrants - Intel, Sun Microsystems, and Computer Associates.
On a broader level, immigrants give the US "a demographic safety valve," compared to other industrial nations facing long-term worker shortages as their populations age, says Cato Institute scholar Stephen Moore.
And there's evidence that today's immigrants are assimilating as quickly - maybe quicker - than their predecessors: In the early 1900s, about 25 percent of immigrants couldn't speak English. The 1990 US Census found that 8 percent of immigrants said they couldn't speak English.
It's in this environment of skepticism and debate that Bush's planned reforms land.
There is fairly broad consensus on splitting the USCIS - though supporters differ on details.
The most contentious issue is "guest workers." The administration is debating whether to allow them to eventually become citizens - and hopes to have a decision by the Sept. 5 visit of Mexican President Vicente Fox.
Supporters say "temporary" workers are rarely temporary - often having children and developing roots. Resentments build without the option of citizenship.
But Rep. Lamar Smith (R) of Texas, a key immigration conservative, opposes the option because, he says, it rewards people who've broken the law (those who become guest workers often enter illegally), and will be an incentive for illegal immigration.
Meanwhile, the politics of the issue are complicated - and don't break down along party lines. Pro-business Republicans and pro-minority Democrats support immigration. So-called "nativist" conservatives and some labor unions don't.
RX for the USCIS
A Service in desperate need of reform
By Mark Krikorian
National Review Online
The USCIS is considering raising its fees again, and the mass-immigration crowd is crying foul.
The Associated Press recently reported that the Service is looking at new fee increases to help cover rising costs and cope with growing backlogs. The fee for green-card applications might go up to $330, citizenship to $345. This comes on the heels of a new program to charge $1,000 for expedited processing of many temporary work visas.
The usual suspects have been outraged at these developments: newspaper editorial pages, the immigration lawyers, the "Catholic Legal Immigration Network." And they're right - the USCIS isn't a 7-11 where you buy a green card along with your beef jerky and doughnuts.
But what the high-immigration Left doesn't understand is that this situation is unavoidable under our current approach to immigration. They want to keep admitting a million people a year (or more), but also want efficient service and respectful treatment for all these newcomers.
This is a circle that can't be squared. The BCIS, after decades of neglect and mockery, simply can't modernize in the midst of ever-increasing responsibilities. The fee hikes are simply an attempt at triage by an agency told to hurry into the 21st century while being overwhelmed with applications whose processing is required to be self-funded by fees.
One solution might be simply to throw more money at the BCIS. This is exactly what the Bush administration has proposed. Its FY 2002 budget request for the agency contains a 10 percent increase to more than $5.5 billion, and envisions spending $500 million over five years to bring waiting times down to no more than six months for all immigration applications and "to make customer satisfaction a priority."
This additional funding is desperately needed. The General Accounting Office reported in May that the receipt of new applications (green cards, citizenship, temporary workers, etc.) has increased 50 percent over the past six years and the backlog of unresolved applications has quadrupled to nearly four million. The number of citizenship applications filed in the
1990s was about 6.9 million, triple the level of the 1980s; "temporary" admissions nearly doubled in the 1990s to more than 30 million; and the number of (very labor-intensive) applications for asylum in the 1990s was nearly one million, more than double the level of the 1980s.
Some government agencies might be able to handle such a crush of new work, especially when provided with increased resources. But the USCIS is not just any agency. The name of USCIS headquarters in Washington says it all - Memorials remind us of Washington, Jefferson, and Lincoln, the airport is named after Reagan, the performing arts center after Kennedy, and the USCIS building is named after.Chester A. Arthur.
The BCIS's status as the Rodney Dangerfield of federal agencies isn't limited to symbolism. The abysmally out-of-date and fragmented state of the agency's computer systems stems from a decision in the 1970s not to automate the files so as to preserve low-level clerical jobs. A real government agency would not have been allowed to paint itself into such a corner. As then-Commissioner Doris Meissner told Government Executive magazine in a 1999 interview, "You don't overcome a history like that in four to five years."
No solution to this mess will be easy. Hiking fees to increase available funds is a short-term bureaucratic response. The Bush administration has more ambitious plans to reorganize the agency altogether, splitting the service and enforcement functions into two separate chains of command within the agency. The administration presumably chose its nominee for USCIS
commissioner on the basis of his ability to manage such an overhaul; James Ziglar, currently Sergeant at Arms and Doorkeeper of the Senate, has no experience with immigration but has a long career in finance, including as former managing director of Paine Webber's municipal securities group. (He is also a GOP contributor who sang in the same church choir as Trent Lott
during high school.)
Court Grants Reprieve to Immigrants
By Larry Margasak
The Associated Press
WASHINGTON (AP) -- The Supreme Court granted a reprieve Monday to many legal immigrants with criminal convictions, ruling they cannot be deported without a court hearing.
The 5-4 majority disagreed with a provision of a 1996 law that barred court review of removal orders for immigrants convicted of aggravated felonies.
The rulings, in two separate cases, primarily concerned those who pleaded guilty under an old law that provided such review but faced deportation proceedings under the new, more restrictive legislation.
Lawyers representing immigrants have contended Congress could not prevent judges from reviewing constitutional claims. The Justice Department argued in favor of the law, saying the intent was to avoid delays in removing criminals from the country.
The rulings in both cases were 5-4.
Justice John Paul Stevens, in the majority opinion, said aliens who pleaded guilty under the old law "almost certainly relied" on their right to a court review "in deciding whether to forgo their right to a trial. The "elimination of any possibility of ... relief ... has an obvious and severe retroactive effect," he wrote.
"We therefore hold that relief remains available for aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for ... relief at the time of their plea under the law then in effect."
Two 1996 laws were at issue: the Anti-terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. They dramatically altered the government's treatment of aliens who commit crimes or face deportation for other reasons. Previously, some aliens facing deportation could seek a waiver from the attorney general. The option disappeared for immigrants convicted of aggravated felonies.
One case involved a government appeal seeking to deport a man from Haiti who pleaded guilty to a drug crime in Connecticut. The other involved an appeal by three natives of the Dominican Republic, Mexico and Guyana who were ordered deported for drug crimes in New York state.
Immigration officials ordered all four aliens deported and said the new law barred them from seeking a waiver.
Stevens was joined in the majority by Justices Anthony M. Kennedy, David Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Dissenting were Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas and Chief Justice William Rehnquist.
The Haitian, Enrico St. Cyr, won rulings by a federal trial judge and the 2nd U.S. Circuit Court of Appeals allowing him to seek a waiver because his crime occurred before the new law took effect. The other three aliens took similar arguments directly to the appeals court.
In each case, the 2nd Circuit court said that because the new law barred appeals court review of such issues, the aliens could file a petition in federal trial court.
Denying all court review would "raise a serious constitutional question," the appeals court said in the St. Cyr case.
The cases are Immigration and Naturalization Service v. St. Cyr, 00-767, and Calcano-Martinez v. Immigration and Naturalization Service, 00-1011.
EDITOR'S NOTE: The decisions are on line at:
http://laws.findlaw.com/us/000/00-767.html
http://laws.findlaw.com/us/000/00-1011.html