 YET ANOTHER FEDERAL COURT WEIGHS IN ON INDEFINITE DETENTION
One of the most litigated provisions of the 1996 immigration law relates to indefinite detention; that is, whether the INS can continue to detain a person who cannot be deported. Many courts have written opinions on the issue, and while most have ruled that the INS cannot detain a person indefinitely, some have ruled otherwise. The three courts of appeals that have addressed the issue have all ruled that indefinite detention is permissible. This week the Ninth Circuit Court of Appeals because the latest appellate court to rule on the issue.
Many familiar with the Ninth Circuit, considered one of the most liberal courts in the country, will not be surprised that the court ruled that the INS cannot indefinitely detain a person. However, what is surprising is that the court reached this conclusion without addressing the constitutionality of indefinite detention.
The petitioner in the case was Kim Ho Ma, a Cambodian immigrant who entered the US in 1985 as a refugee at six years old. He later became a permanent resident. When he was 17 he was involved in a gang shooting and was convicted of manslaughter. He was sentenced to over three years in prison but served just over two, being released early for good behavior. When he was released from state custody, the INS took him into custody and initiated deportation proceedings. In October 1998, the deportation order became final, but because there is no repatriation agreement between the US and Cambodia, the INS was not able to deport Ma.
Ma made numerous efforts to secure his release from INS custody. He sought to be released on bond before the deportation order became final, but bond was denied because of the criminal conviction. He also sought review of his detention through regular INS procedures. An INS officer determined that he should be released, but the district director, who has final authority over releases, did not adopt this decision. Ma also filed a petition for a writ of habeas corpus. The district court granted it, finding his continued detention violated his substantive due process rights. The INS appealed, and the case went to the Ninth Circuit.
Rather than launch immediately into the constitutionality of indefinite detention, the court first examined whether it is authorized by statute. The indefinite detention statute provides that some aliens who have been ordered removed "may be detained beyond the removal period." The standard removal period is 90 days. According to the INS, this language authorized them to detain those whose removal was not foreseeable. Ma, on the other hand, argued that it forbid the INS from detaining someone whose deportation was not likely. The Ninth Circuit found neither interpretation was clearly mandated by the statute. While it does authorize detention beyond the 90-day period, it does not specify how much beyond. Therefore, a time provision must be supplied in interpreting the statute. The Ninth Circuit interpreted the statute to allow detention for only a reasonable time after the expiration of the 90-day period. In a case such as Ma's, where deportation is unlikely to occur, the INS cannot detain a person beyond the 90-day period.
Some of the courts that have approved of indefinite detention have done so by relying on the notion that after a person is ordered deported, they lose any constitutional rights they may have possessed as a permanent resident. The Ninth Circuit rejected this reasoning, finding that it could not be reconciled with existing case law.
In reaching its conclusion, the Ninth Circuit also relied on its belief that Congress did not intend such a harsh penalty. According to the Ninth Circuit, what Congress intended in the indefinite detention provision was to allow the INS some leeway in effecting deportation, and to give the agency some flexibility, not to allow the INS to detain someone for the rest of their life. It wrote that "some greater degree of specificity or demonstration of congressional intent would be necessary before we would conclude that a statute had granted the INS so sweeping a power with regard to persons who are generally subject to the protections of the Constitution.
Four appeals courts have now heard cases on the indefinite detention issue, with three ruling that it is permissible and now one ruling that it is not authorized by statute. A situation such as this, generally referred to as a circuit split, is often a precursor to a hearing by the Supreme Court.
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