On June 17, five federal judges from Washington State will meet in an unprecedented method of deciding cases. The five cases at issue are habeas corpus petitions brought by detainees in INS custody awaiting deportation. The detainees are criminal aliens subject to automatic deportation under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). IIRAIRA also mandates that they be held without bond pending deportation. For these 5 men, and more than 3500 like them across the country, these provisions have resulted in an indefinite period of detention, essentially incarceration, because the home countries refuse to accept them.

While many of the people being held like this were convicted of serious criminal offenses, many of them were convicted only of misdemeanor offenses or technical immigration status violations, often occurring decades ago.

The June 17th meeting is the result of negotiations occurring this spring between the judges, the federal public defenders representing the detainees and the U.S. attorneys representing the INS. Each judge is expected to issue a separate opinion. These opinions will have to decide whether indefinite detention violates the detainees’ rights to due process. Attorneys representing the detainees argue that there is no evidence the INS is making any progress on the cases while the detainee waits and waits, and that when review is obtained, the chances of the detainee receiving a fair hearing are slim. In these cases the INS serves the functions of judge, jury and jailer. One of the proposals put forth is that the INS prove the same elements required to civilly commit someone, a much higher standard than the agency is currently held to.

The government argues that the INS is working diligently on these cases to find a solution, and that the detention provisions are necessary to protect citizens from criminal aliens who are a threat to public safety.