Lloyd Williams, Senior Associate Editor
TWO LEGAL rulings in the United States in the last fortnight could have adverse effects on Jamaicans there even 'green-card' holders who are lawful permanent residents of the United States who run afoul of the law .
In the more recent case, the U.S. Supreme Court ruled on April 29 that the U.S. Government can put in prison, immigrants who it is seeking to deport, without giving them the opportunity to prove that they are neither flight risks nor threats to the society. These immigrants would include green card holders who have served sentences for any of a slew of drug crimes and other 'aggravated' offences.
In the other case, which was made public on April 24, Attorney-General John Ashcroft ruled that immigrants can be detained indefinitely even though they are not known to have any ties to terrorism.
JAMAICANS
The Supreme Court's 5-4 decision applies to an estimated 75,000 people, including Jamaicans, who have been in detention centres in the U.S. since the law allowing such mandatory detentions came into effect in 1996. In addition, it is estimated that there are thousands of green card holders out on bail while they are contesting deportation orders made against them.
There are an estimated 11 million lawful permanent residents or green card holders in the United States.
Jamaicans are deported from the U.S. at the rate of about 40 a week, with hundreds more in detention centres waiting to be sent home. A total of 2,111 Jamaicans were deported from the U.S. from September 2001 to October 2002 (that country's fiscal year 2002), according to figures from the U.S. Embassy in Kingston.
A total of 1,511 of the deportees were categorised as 'criminal', with 600 being classified as 'non-criminal'.
In the U.S. fiscal year 2001, the number of deportees sent back to Jamaica was 2,017, with 1,298 being classified as 'criminal' and 719 as 'non-criminal'.
Jamaica ranks No. 8 in terms of deportee destinations from the United States, behind 1. Mexico; 2. Honduras; 3. Guatemala; 4. El Salvador; 5. Dominican Republic; 6. Brazil and 7. Colombia.
It is followed by 9. Haiti, 10. Pakistan, 11. Canada, 12. Peru; 13. Nigeria; 14. the Philippines; 15. Ecuador, 16. the People's Republic of China; 17. Argentina; 18. India; 19. Nicaragua and 20. Trinidad and Tobago.
U.S. law enforcement sources estimate that there are hundreds of Jamaicans either in custody, awaiting deportation from the U.S. or against whom deportation proceedings have been filed.
CASE NO. 1
The case considered by the U.S. Supreme Court involved Hyung Joo Kim, 25, of California. He was born in South Korea, he entered the U.S. in 1984 at age six and became a lawful permanent resident (green card holder) two years later. In July 1996 he was convicted in state court in California of first-degree burglary (of an inhabited house) and in April 1997 he was convicted of a second crime 'petty theft with priors'. The Immigration and Naturalisation Service charged him with being deportable from the U.S. because of those convictions and detained him pending his removal hearing. He filed a habeas corpus writ on the ground that his detention under the Immigration and Nationality Act violated due process because the INS had made no determination that he posed either a danger to society or a flight risk.
The District Court agreed and granted his petition and he was released on bond. The Court of Appeals for the Ninth Circuit held that his detention violated substantive due process as applied to him because he is a lawful permanent resident, the most favoured category of aliens, having the right to reside permanently in the U.S., work and to apply for citizenship.
The case ended up in the U.S. Supreme Court which ruled by a five to four majority that Kim should be locked up pending his deportation hearing.
In delivering the opinion of the court that detention during removal proceedings is a constitutionally permissible part of that process, Chief Justice William Rehnquist cited congressional testimony that confinement of criminal aliens alone cost US$724 million in 1990, that criminal aliens were the fastest-growing segment of the U.S. federal prison population, already constituting 25 per cent of all federal prisoners, and that they form a rising share of state prison populations as well.
He said that the INS could not even identify most deportable aliens, much less locate them and remove them from the country. He cited a study which showed that at the current rate of deportation, it would take 23 years to remove every criminal alien already subject to deportation. Making matters worse, the study said, criminal aliens who were deported swiftly re-entered the U.S. illegally in great numbers.
Chief Justice Rehnquist said the agency's near-total inability to remove deportable criminals imposed more than a monetary cost on the American nation. "First, as Congress explained it, 'aliens who enter or remain in the United States in violation of our law are effectively taking immigration opportunities that might otherwise be extended to others'.
"Second, deportable criminal aliens who remained in the United States often committed more crimes before being removed." He cited a 1986 study which showed that after criminal aliens were identified as deportable, 77 per cent were arrested at least once more and 45 per cent nearly half were arrested multiple times before their deportation proceedings even began.
DEPORTABLE CRIMINAL ALIENS
"Congress also has before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings," Chief Justice Rehnquist said.
He said the Supreme Court had "firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens."
Stating that it was well established that "the Fifth Amendment entitles aliens to the due process of law in separation proceedings," he said that at the same time, "this Court has recognised detention during deportation proceedings as a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings 'would be a vain if those accused could not be held in custody pending the inquiry into their true character'."
In his dissenting judgment, Justice David H. Souter said:
"The constitutional protection of an alien's person and property is particularly strong in the case of aliens lawfully admitted to permanent residence (LPRs). The immigration laws give LPRs the opportunity to establish a life permanently in this country by developing economic, familial, and social ties indistinguishable from those of a citizen. In fact, the law of the United States goes out of its way to encourage just such attachments by creating immigration preferences for those with a citizen as a close relation ... and those with valuable professional skills or other assets promising benefits to the United States...
"Once they are admitted to permanent residence, LPRs share in the economic freedom enjoyed by citizens: they may compete for most jobs in the private and public sectors without obtaining job-specification authorisation, and apart from the franchise, jury duty, and certain forms of public assistance, their lives are generally indistinguishable from those of the United States citizens. That goes for obligations as well as opportunities. Unlike temporary, non-immigrant aliens, who are generally taxed only on income from domestic sources or connected with a domestic business ..., LPRs, like citizens, are taxed on their worldwide income... Male LPRs between the ages of 18 and 26 must register under the Selective Service Act of 1948 ...' Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces and contribute in myriad other ways to our society...
"And if they choose, they may apply for full membership in the national polity through naturalisation."
LEGAL MECHANISMS
He said the attachments fostered through those legal mechanisms were all the more intense for LPRs brought to the United States as children. "They grow up here as members of the society around them, probably without much touch with their country of citizenship, probably considering the United States as home just as much as a native-born, younger brother or sister entitled to United States citizenship. Kim is an example.
"Many resident aliens have lived in this country longer and established strong family, social, and economic ties here than some who have become naturalised citizens." Woodby v. INS, 385 U.S. 276, 286 (1966). Kim is an example. He moved to the United States at the age of six and was lawfully admitted to permanent residence when he was eight. His mother is a citizen, and his father and brother are LPRs. LPRs in Kim's situation have little or no reason to feel or to establish firm ties with any place besides the United States."
Justice Souter concluded:
"This case is not about the National Government's undisputed power to detain aliens in order to avoid flight or prevent danger to the community. The issue is whether that power may be exercised by detaining a still lawful permanent resident alien when there is no reason for it and no way to challenge it. The Court's holding that the Due Process Clause allows this under a blanket rule is devoid of even ostensible justification in fact and at odds with the settled standard of liberty."
CASE TWO
The Attorney-General's ruling involved David Joseph, a undocumented alien from Haiti who arrived in Biscayne Bay, Florida, on October 29, 2002, in an overloaded boat with 216 undocumented aliens from Haiti and the Dominican Republic. After the boat tried to evade a U.S. Coast Guard vessel, some of the aliens jumped from it and swam ashore. The boat ran aground and the remaining passengers got off, ran ashore and fled from law enforcement officers.
Joseph, with others, was later taken into custody by the Immigration and Naturalisation Service (now under Border and Transportation Security). On November 6, 2002, an Immigration Judge granted his application for release on bond set at US$2,500, over the objections of the INS.
The INS argued that the release of Joseph and of other members of the undocumented Haitian migrant group of October 29, would stimulate further surges of such illegal migration by sea and threaten important national security interests.
The INS appealed the Immigration Judge's decision to the Board of Immigration Appeals which dismissed it.
Under the Homeland Security Act, the Under-Secretary for Border and Transportation referred the dismissal to Attorney-General Ashcroft for review.
The Attorney-General ruled that the release of the respondent and of other members of the undocumented migrant group of October 29, would stimulate further surges by sea and threaten important national security interests.
Attorney-General Ashcroft, commenting on general areas of concern, said:
"First, there is a concern that the release of aliens such as respondent and the other October 29 migrants would tend to encourage further surges of mass migration from Haiti by sea, with attendant strains on national and homeland security resources. Such mass migrations would also place the lives of the aliens at risk. Second, in the light of the terrorist attacks of September 11, 2001, there is increased necessity in preventing undocumented aliens from entering the country without the screening of the immigration inspection process."
He quoted U.S. State Department assertions that it has "noticed an increase in third country nations (Pakistanis, Palestinians, etc.), using Haiti as a staging point for attempted migration to the United States. This increases the national security interest in curbing use of this migration route."
UNLAWFUL MASS MIGRATIONS
Encouraging such unlawful mass migrations, he said, "is inconsistent with sound immigration policy and important national security interests. As substantiated by the government declarations, surges in such illegal migration by sea, injure national security by diverting valuable Coast Guard and DoD (Department of Defence) resources from counter-terrorism and homeland security responsibilities. Such national security considerations clearly constitute a 'reasonable foundation' for the exercise of my discretion to deny release on bond...", Attorney-General Ashcroft ruled.
Citing Joseph's invocation of the right to asylum protected by the Universal Declaration of Human Rights and an advisory opinion of the United Nations High Commission for Refugees, stating that "asylum seekers should not be detained for purposes of deterrence", Attorney-General Ashcroft said, "This argument is without merit."
He went on: "First, the UDHR is merely a non-binding expression of aspirations and principles, rather than a legally-binding treaty... In any event, the application of U.S. law to protect the nation's borders against mass migrations by hundreds of undocumented aliens violates no right protected by the UDHR or any other applicable rule of international law."
With so many Jamaicans in the deportation pipeline in the U.S., the fear is that scores of them, including green card holders who have been living there for many years, and who are on bail awaiting deportation hearings, could be rounded up and kept in custody without any right of appeal, even though they had already served their sentences. The new ruling is reported to apply to anyone convicted of a crime that is punishable by more than a year in prison.
With the Ashcroft ruling it seems that judges are now being encouraged to deny bail to all persons charged with breaching immigration laws instead of assessing their likelihood of returning to court if they were granted bail and whether they posed any threat to the communities in which they live.
