California Court Orders Hearing For Unlawfully Imprisoned Immigrant

July 14, 1999 12:00 am

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SAN FRANCISCO, CA — Ruling that the San Francisco Office of Immigration and Naturalization Service unlawfully incarcerated a Salvadoran immigrant for over a year, a U.S. District Court Judge yesterday ordered the INS to grant the immigrant a hearing to determine whether the asylum applicant could be released while his case is pending.

“Judge Thelton Henderson’s decision is the first ruling in the Northern District of California to find that the INS is misinterpreting immigration detention statutes,” said Chris Palamountain of the ACLU Immigrants’ Rights Project and one of Rivera’s attorneys. “Now our client will finally enjoy the basic due process right to a hearing which he has been denied for so long.”

On June 22, the American Civil Liberties Union of Northern California filed suit on behalf of the immigrant, Miguel Rivera, charging that INS officials and Attorney General Janet Reno violated Rivera’s Fifth Amendment due process rights. The ACLU also said that the INS violated the Immigration and Nationality Act by denying Rivera the opportunity to demonstrate that he was not a flight risk or a danger to the community.

“The Immigration and Nationality Act cannot allow the government to strip people of their basic right to a hearing before being incarcerated, ” said Alan Schlosser, managing attorney for the ACLU of Northern California. “The Fifth Amendment still guarantees our client the right to a hearing, and every judge to review this case has found that Mr. Rivera is not a danger to the community.”

In 1995, the INS initiated deportation proceedings against Rivera, an undocumented Salvadoran who, fearing for his life, had applied for political asylum in the United States because of his affiliation with the Salvadoran ARENA party.

While living in El Salvador, Rivera had been abducted and beaten by opponents of ARENA; his father was killed. Three other members of Rivera’s family have disappeared and are presumed to have been killed by opponents of the group.

In 1997 an immigration judge granted Rivera asylum in the United States, finding that he had a well-founded fear of persecution if he returned to El Salvador. The judge carefully decided that Rivera’s six-month jail sentence in 1994 did not disqualify him from asylum because of highly favorable reports from his probation officer and regular participation in Alcoholics Anonymous and an anti-domestic violence program.

But only a few days after Rivera was granted asylum, President Clinton signed into law the Illegal Immigration Reform and Immigration Responsibility Act. As a result, the INS argued that Rivera is an “aggravated felon” and therefore ineligible for asylum.

Because a state court later vacated Rivera’s sentence, his conviction can no longer be considered an “aggravated felony.” However, on April 3, 1998 the INS ordered him to report for deportation — three full years after his release from his jail sentence.

Rivera complied and was incarcerated without a hearing at the Tehama County jail on May 4, 1998, where he has been ever since.

“This case proves, once again, that the federal courts are crucial to stopping the illegal practices of a federal agency with a sad history of ignoring the law and violating constitutional rights,” said Lucas Guttentag, Director of the ACLU’s National Immigrants’ Rights Project.

“Mr. Rivera has now spent more than twice as much time in jail waiting for the INS than he did for his prior criminal conviction,” said Robert Lewis, Mr. Rivera’s attorney in the immigration proceedings. “Yet this man presents no danger to the community. His former employer has even promised him his old job back when he is released.”

Rivera is represented by Chris Palamountain, Judy Rabinovitz and Lucas Guttentag of the ACLU Immigrants’ Rights Project, managing attorney Alan Schlosser of the ACLU of Northern California, and attorney Robert Lewis.

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