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Immigration case has potential implications for war on terror
WASHINGTON (CNN) -- The Supreme Court is looking at whether resident aliens should be afforded the same constitutional rights as citizens in a case that could have broader implications for the Bush administration's war against terrorism. At issue is whether non-citizens should be afforded legal due process before deportation proceedings begin. Justices heard arguments in the case Wednesday. Hyung Joon Kim was a lawful permanent resident from South Korea when he was convicted of petty theft in California. After his 1999 prison release, the Immigration and Naturalization Service (INS) took him into custody, denied him bail, and sought to deport him. A 1996 federal law allowed such treatment for those who committed an "aggravated felony." A federal appeals court in January 2002 ruled against the INS on the issue of bail, saying it was unconstitutional to deny it to permanent resident aliens. The court recommended the INS use more discretion in individualized bail hearings, particularly for those who are not considered "menaces to the public." In defending the INS policy, Solicitor General Theodore Olson argued that convicted aliens had full due process protections. But he said non-citizens should be treated differently when they break the law. "Congress regularly makes rules applying to resident aliens that would be unacceptable to citizens," he said. He had the support of at least one justice. "Why can't they be held in custody until they are deported?" asked Justice Antonin Scalia on several occasions during arguments. "What's unreasonable about that?" He called it "one of the risks you take when you commit a felony." Olson also argued that the detention of criminal aliens benefits public safety, a question that worries civil libertarians who fear continuing mass roundups of aliens -- especially those of Middle Eastern or Muslim background -- in the name of domestic security. Three other appeals courts have split on the constitutionality of the mandatory detention law, and the INS asked the Supreme Court for a quick clarification, saying hundreds of such deportation hearings occur each week. The Justice Department cited figures showing many convicted aliens failed to show up for INS hearings on their cases, and that was a reason for a blanket denial of bail until cases are decided.
But Kim's lawyer, Judy Rabinovitz, told justices, "We don't allow people to be locked up for averages. There is no discretion here" regarding her client, who Rabinovitz said had a legitimate claim to contest his deportation order. Kim was eventually freed pending the outcome of the justices' decision. This case is being closely watched, not only because it parallels the cases of hundreds of mostly Middle Eastern men in INS custody, but because any court ruling could provide a legal blueprint for federal authorities who are using immigration detention laws as a way to hold, often indefinitely, those suspected of involvement in terrorism. Outside the court, immigrant rights groups protested against government policies, calling on the Bush administration to end mandatory detentions of non-citizens in INS custody. The case is Demore (INS) v. Kim, No. 01-1491).
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We don't allow people to be locked up for averages. There is no discretion here.
