Immigrants stuck in prison limbo

Kim Ho Ma last saw Cambodia in 1979, when he fled the war-torn Southeast Asian nation as a refugee in his father's arms. He was 2.

Now, after spending most of his life in the United States, the US government is trying to deport him to his "homeland."

But Cambodia doesn't want him back.

So Mr. Ma was ordered held indefinitely by the Immigration and Naturalization Service pending a deportation that seems extremely remote.

Ma is among several thousand immigrants convicted of a felony who are now facing de-facto life prison sentences because their native countries refuse to repatriate them.

Today, the US Supreme Court will consider whether indefinite detention is a permissible means to crack down on deportable immigrants who have committed crimes, or whether it is a violation of the Constitution's prohibition against imprisoning people without due process of law.

"The issue here isn't whether these people can be deported. Everyone agrees they can. But the issue is: Can we lock somebody up for life just because a country won't take them back?" says Judy Rabinovitz of the ACLU Immigrants Rights Project in New York. "That does strike people as fundamentally unfair."

In a tandem case, the court is also considering the plight of Kestutis Zadvydas, who was born in a refugee camp in Germany in 1948, came to the US in 1956, and is facing deportation following a string of felony convictions. Mr. Zadvydas never became a US citizen, and no country will accept him. Like Ma, he faces indefinite detention by the INS until he can be deported.

Zadvydas's most recent conviction was for drug dealing. Ma, who had no prior criminal record, was found guilty of involvement in a gang-related killing. He was sentenced to three years, two months and was released a year early for good behavior.

Under a 1996 law, immigrant-aliens convicted of a felony must be deported. But immigration laws are not clear on what should happen when a native country refuses to accept a deportee.

Some analysts say criminal immigrants like Zadvydas and Ma have forfeited the privilege of living in the US and should be detained for as long as necessary to protect law-abiding Americans. "Such aliens' liberty interests in being free from detention [pending deportation] are far outweighed by the public's interest in being protected from criminal activity," writes Richard Samp of the Washington Legal Foundation in a friend-of-the-court brief supporting the INS.

At the heart of the case are two questions. First, did Congress, when it wrote the immigration laws, intend to authorize immigration officials to indefinitely detain persons such as Ma and Zadvydas?

Second, do indefinite detentions, even if authorized by Congress, nonetheless violate the Constitution's due process protections?

More than a dozen federal judges have ruled that indefinite detention violates principles of due process. Federal appeals courts are split on the issue with the Eleventh and Fifth US Circuit Courts of Appeals affirming such detentions, and the Second and Ninth Circuits striking them down.

"This is an issue that a lot of judges find offensive," says Ms. Rabinovitz. "We have seen judges across the political spectrum who say. 'No, we don't do this in our country. We don't lock people up for indefinite periods of time after they have finished serving their criminal sentences.' "

Government lawyers counter that release orders have allowed dangerous criminals back onto US streets, including one with a history of raping children.

They say the courts should avoid second-guessing the attorney general's discretion to decide which criminal immigrants should be released and which should be detained indefinitely.

Other analysts say that if the immigrants commit any future crimes, they can be tried and sentenced to more prison time. They stress that there is no justification in the Constitution for assuming the future dangerousness of a person based solely on a prior criminal record.

"The Immigration Service should not be in the business of simply warehousing people year after year," says Laurie Joyce of the Catholic Legal Immigration Network in San Francisco.

Ms. Joyce says many immigrants facing indefinite detention are young men who ran into trouble with the law as teenagers and are paying a high price for their mistakes. "A lot of these kids, they considered themselves Americans. Then they are told you have to go back to your home country," says Joyce. "And they say, 'America is my home country. I am American.' And the government says, 'No you are not.' "

(c) Copyright 2001. The Christian Science Publishing Society