Supreme Court to Review Mandatory Detention of Immigrants

January 14, 2003 12:00 am

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WASHINGTON – The American Civil Liberties Union will urge the Supreme Court tomorrow to reject a law that requires the government to automatically detain legal immigrants after they have completed their sentences for certain low-level crimes.

Under current law, these immigrants must be held without bond while the INS tries to prove they should be deported, a process that can take months or even years. The financial and emotional toll is so great that many individuals have given up fighting their deportation. Many others have ultimately won their cases, making their double incarceration needless.

“The Supreme Court has never upheld a detention statute that sweeps so broadly without allowing some kind of opportunity for an immigrant to demonstrate why his detention is not necessary,” said Judy Rabinovitz, a Senior Staff Attorney with the ACLU’s Immigrants’ Rights Project, who successfully argued the issue before three federal appeals courts and will argue before the Justices tomorrow.

“This law is both arbitrary and irrational,” Rabinovitz added. “It has resulted in the detention of many people with long-standing ties to this country, who have been convicted of minor crimes, who will very likely succeed in challenging their removal, and whom the INS itself concedes pose no danger or flight risk.”

Congress enacted the mandatory immigration detention statute as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), one of a series of harsh anti-immigrant measures passed in 1996. Last year, the Justices rejected a provision of the 1996 immigration detention policy that the government claimed allowed it to indefinitely detain immigrants whose countries will not take them back. In its ruling, the Court emphasized the serious constitutional problems that such a policy would pose, saying that “freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that [the Constitution] protects.” The Justices also made clear that the constitutional right to freedom from detention applies to citizens and non-citizens alike.

“The outcome of this case is especially important at a time when we are seeing more blanket detention of immigrants and more attempts to undermine the crucial system of checks and balances that keeps our democracy healthy,” Rabinovitz said.

Demore v. Kim, No. 01-1491, will decide the fate of 25-year-old Hyung Joon Kim, who immigrated to the United States from South Korea with his family at the age of 6 and has lived virtually his entire life here as a lawful permanent resident. He faces possible deportation for two crimes he committed in 1996 and 1997 – breaking and entering a tool shed, and shoplifting. Kim served one-and-a-half years in jail for these offenses and was released by the state of California in February 1999.

Upon his release from jail, Kim was immediately incarcerated by the INS, where he remained for six months until a district court held the law unconstitutional. Shortly thereafter, the INS agreed to release Kim on a $5,000 bond, based on the agency’s own determination that he posed no danger and no significant risk of flight. Kim has been out on bond since August 1999. He has been reporting regularly to the INS, taking classes at San Jose State University and working at a part-time job.

In ruling against Kim’s INS detention, a California court of appeals noted that the government’s rationale for mandatory detention of immigrants with criminal convictions is undermined by the fact that this same category of immigrants are eligible for release after they have been ordered removed.

Four former high-ranking officials in the INS, including former Commissioner Doris Meissner, have submitted a legal brief in support of Kim’s case. The officials cite INS studies showing that mandatory detention is not necessary to ensure that immigrants appear for their deportation hearings.

The ACLU’s legal brief in the case, as well as six supporting briefs from groups including the former INS officials and a national coalition of families with loved ones facing removal, are online at /court/courtmain.cfm

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