Federal Appeals Court Rules That Government Cannot Indefinitely Hold Immigrants

March 5, 2003 12:00 am

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NEW YORK–A federal appeals court today ruled that the government is not permitted to indefinitely detain immigrants who are physically present in the United States and who cannot be deported, the American Civil Liberties Union today announced.

Today’s 6-3 decision by the Cincinnati-based Sixth Circuit Court of Appeals resoundingly rejected the government’s assertion that certain immigrants known as “excludable aliens” could be jailed indefinitely if they could not be deported to their home countries. Citing a 2001 Supreme Court decision, Zadvydas v. Davis, the appeals court ruled that the detention statute did not authorize the government to indefinitely detain aliens it is unable to deport in the “reasonably foreseeable future.”

“Today’s decision is a clear rejection of the Attorney General’s attempt to avoid complying with Supreme Court’s decision,” said Judy Rabinovitz, a Senior Staff Attorney with the ACLU’s Immigrants’ Rights Project, who argued the case last March. “The court of appeals emphasized that, given the plain language of the statute, and the Zadvydas decision, the indefinite detention of our clients is not authorized.”

In Zadvydas, the Supreme Court ruled that the law did not allow indefinite detention of former resident immigrants who could not be removed. Today’s court of appeals decision found that the statute applies equally to immigrants who are physically present in the U.S. even if they are deemed to be outside our borders by a longstanding legal fiction.

Last year the cases of Mario Rosales-Garcia and Reynero Arteaga Carballo — both Cuban nationals — were consolidated for hearing before all nine active judges of the Sixth Circuit. Before the ACLU intervened, both men had argued their cases themselves.

Rosales-Garcia, who was being held in an INS facility in Kentucky, argued that it was unconstitutional for the INS to hold him for deportation while knowing that Cuba would never accept him back. Carballo, who was being held in a Tennessee facility, was held in indefinite custody for 15 years, long after he had served out a criminal sentence.

In rejecting the government’s arguments, Judge Karen Nelson Moore, writing for the majority, said that Congress had not authorized indefinite detention and emphasized that such detention of “excludable aliens” would raise the same serious constitutional problems as the Supreme Court identified in Zadvydas.

“Excludable aliens — like all aliens–are clearly protected by the Due Process Clauses of the Fifth and Fourteenth Amendments,” Moore said. “These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”

The Sixth Circuit’s jurisdiction covers Kentucky, Tennessee, Michigan and Ohio.

“We hope the Justice Department will now finally abandon its indefensible position and fully implement the Zadvydas decision,” said Liliana Garces, a staff attorney with the ACLU’s Immigrants’ Rights Project and co-counsel in the case.

To read the Sixth Circuit court of Appeals opinion please go to: http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=03a0070p.06

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