NINTH CIRCUIT HEARS INDEFINITE DETENTION CASE

On Monday the Ninth Circuit heard arguments in an indefinite detention case involving a Cambodian national, Kim Ho Ma.  Indefinite detention is an increasingly common occurrence, and results when the INS has issued a final order of deportation against a person, but, because the US lacks repatriation agreements with their native countries, they cannot be deported.  We reported earlier in this issue on a similar case where a California court ruled that indefinite detention was unlawful.

Last summer five federal district court judges in Seattle issued a joint opinion in which they found indefinite detention unconstitutional.  Ma was one of those released after the ruling, but his was also the case that the INS decided to appeal.  Ma was convicted at age 17 for his involvement in a gang related drive by shooting.  Now 22, he spent over two years in detention before finally being released last November.

Since the decision last summer, the INS has developed new guidelines for reviewing the cases of those who are in indefinite detention.  However, according to the decisions of numerous judges, these guidelines are not being adhered to by INS officers when a decision on continued detention is made. 

The Ninth Circuit will be the third federal appellate court to hear this issue.  The Fifth Circuit ruled that once a person is under a final order of deportation, they are no longer protected by the US Constitution, and can therefore be detained forever.  The Third Circuit ruled that excludable aliens, those who have never been officially admitted into the US, may be indefinitely detained, but indicated that the outcome would be different if the issue was the detention of a deportable alien.

If a number of courts of appeals reach varying conclusions on this issue, the Supreme Court may step in and issue a decision that will be binding across the entire nation.