NEWS FROM THE COURTS

Xi v. INS, Ninth Circuit

In this case, the court ruled that the Supreme Court case prohibiting the INS from indefinitely detaining permanent residents subject to a final order of deportation also applied to noncitizens who had not been formally admitted to the US.

Lin Guo Xi, a citizen of China, fled China in 1997, arriving in the Northern Marianas Islands, a US territory.  He was not formally admitted to the US, instead being charged with smuggling immigrants into the US.  After serving a six-month prison sentence, he was detained by the INS and placed in removal proceedings.  He applied for asylum, claiming that his opposition to China’s one child policy made his a target for government persecution.  His application was denied and a final deportation order was entered.  Neither he nor the INS has so far been able to obtain a travel document from the government of China, and he remains in INS detention.  At a custody hearing in February 2001, he was ordered to remain in custody, because even though he was not a flight risk, community danger, and has a job available, it was found that the Chinese government routinely issues travel documents to people being deported from the US.  Lin filed a petition for a writ of habeas corpus, which was denied.  According to the judge, the Supreme Court case of Zadvydas v. INS, which held that people who cannot be deported cannot be indefinitely detained, did not apply to Lin because he was never formally admitted to the US. 

In most cases, the INS is given 90 days after a deportation order becomes final to remove the person from the US.  In some case, the INS can detain the person prior to their removal, even if that period is more than 90 days.  Were it possible to deport Lin, because of his criminal conviction, he could be detained for more than 90 days.  The issue before the court is whether Lin, who was never admitted to the US, is covered by the Zadvydas opinion.  In Zadvydas, the Supreme Court ruled that permanent residents who could not be deported could not be indefinitely detained, even though they were subject to a final deportation order.  Once it becomes clear that the deportation will not occur, the person’s detention cannot continue.

In finding that the same reasoning applied to people, such as Lin, who had not been formally admitted to the US, the court noted that the Supreme Court’s reasoning in Zadvydas was not limited to permanent residents, despite language noting that the case involving people who were not admitted might be different, and that the statute authorizing detention did not make any such distinction.  Therefore, the court found that the INS could not continue to detain Lin without providing him an individualized hearing at which he could present his arguments for why he should be released.  Also, the court noted that if Lin’s deportation became imminent, the INS could detain him.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0135867p.pdf.

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