The News From the Courts column is written by Maria Bjornerud, an immigration attorney with an office in Southaven , MS .  Originally from Russia , Ms. Bjornerud is licensed to practice law in Tennessee and Mississippi .  She can be contacted via email at mbjorne@msn.com.

CALIFORNIA v. CABRERA, H028487, 2005 Cal. App. Unpub. LEXIS 11634 (Ca. Ct. App. 2005) holds that a trial court has no jurisdiction to summarily revoke an alien’s probation for failure to report to the probation department, when an alien has been immediately deported upon his release from custody and a probation order provides for personal appearance at the department as a condition of probation.

JUDGES: RUSHING, PREMO, DUFFY:

Defendant pleaded no contest to inflicting corporal injury on a cohabitant, within seven years of a prior conviction. The court suspended imposition of sentence and granted defendant three years probation and ordered as conditions of probation that Defendant spend eight months in the county jail, and report to this probation officer. Defendant was released to the custody of the INS from the Santa Clara County jail after serving his sentence and was immediately returned to Mexico . Defendant’s probation was revoked on the grounds that Defendant

had failed to contact his probation officer as he was required to do as a condition of his probation. In 1999, his probation was summarily revoked and a bench warrant was issued for defendant's arrest. Defendant was arrested on the bench warrant several years later.

Defendant appealed the trial court's order revoking his probation for failure to report to the probation department.

The court found that Defendant had not willfully failed to report to the probation department at his release from custody while he was in Mexico as a result of his deportation. The court determined that reporting order clearly implied a personal appearance at the department in order to comply with probation conditions. Defendant was prevented from doing so by his deportation. Therefore, the violation underlying the summary revocation was not supported by substantial evidence as required for tolling the running of the probationary period. People v. O'Connell, 107 Cal.App.4th 1062, 1066(2003). As a result, the probationary period was not tolled from the time of his deportation, Defendant's probation expired while he was still in Mexico , and the court lacked jurisdiction to revoke defendant's probation when he returned to the United States years later.

QASSIM, et al. v. BUSH, Civil Action No. 05-0497 (JR), 2005 U.S. Dist. LEXIS 34618 (D.D.C. 2005) holds that an indefinite detention by the United States government of an alien non-enemy combatants at Guantanamo Bay facility is unlawful; nevertheless, the court had authority to order the government neither release such aliens into general population of a military facility, nor allow their entry into the United States on parole.

JUDGE ROBERTSON:

Petitioners are Muslim Uighurs, natives of China 's Xinjiang province. They were captured by Pakistani security forces in late 2001 or early 2002, delivered into U.S. custody, and held in Afghanistan for approximately six months. In 2002, they were transferred to the naval base at Guantanamo Bay , Cuba , where they were detained as "enemy combatants," and where they remain to this day, even though a Combatant Status Review Tribunal (CSRT) determined that "they should no longer be classified as enemy combatants. Petitioners sought a writ of habeas corpus in 2005.

The government claimed that it had authority for petitioners' continued detention because the Executive has the "necessary power to wind up wartime detentions in an orderly fashion," providing that petitioners' detention was lawful in the first place. Hamdi v. Rumsfeld, 542 U.S. 507, 516 (2004).  Nevertheless, the court found that the government had not stated that Petitioners were ever suspected of having engaged in armed conflict against the United States , only that they were captured as they fled towards Pakistan after the inception of coalition bombing.

The court explained that the authority to detain in wartime was grounded in the need to prevent captured individuals from returning to the battlefield. Hamdi, 542 U.S. at 518-21. Because of this limited purpose, to prevent combatants to go back to the battlefield, the laws of war require that detention last no longer than the active hostilities. Id. at 521. The court concluded that even if Petitioners'

initial detention was lawful, and even assuming that some reasonable wind up period of detention was allowable, their continued detention for nine months after the CSRT found them to be non-enemy combatants far exceeded the presumptive limit of six months the Supreme Court applied in the analogous context of removable and excludable aliens detained under immigration statutes. See Zadvydas v. Davis, 533 U.S. 678 (2001). Therefore, the detention of Petitioners has become indefinite and unlawful.

Petitioners were urging the court to invoke the plain language of the habeas statute and order the government to "produce...the bodies" of the Petitioners at the court hearing so that the court could evaluate the government's security concerns and set appropriate conditions for Petitioners' release into the community, on parole, until the government could arrange for their transfer to another country.

The court held that the command of the habeas required the court to order the body of Petitioner produced "unless the application for the writ and the return present only issues of law." 28 U.S.C. § 2243. The court rejected the government's invocation of the doctrine of consular non-reviewability because the Petitioners were not applying for visas, and there had been no exclusion or removal order, and the government conceded that petitioners were not enemy combatants. Therefore, only legal issues of law were presented, and there was no requirement to produce the bodies.

The court summarily rejected to order the release of Petitioners into the general population of the base at Guantanamo Bay because the court had no authority to order the military to allow a civilian, much less a foreign national, access to a military base.

The court found that the government had yet not found another country that would accept Petitioners. Invoking separation of powers doctrine, the court held that it had no authority to grant Petitioners entry into the United States because the power to exclude aliens "is inherent in the executive power to control the foreign affairs of this nation," Knauff v. Shaughnessy, 338 U.S. 537, 542-43 (1950), and that "the conditions of entry for every alien... have been recognized as matters... wholly outside the power of courts to control." Fiallo v. Bell , 430 U.S. 787, 796 (1977).

The court found that a federal court had no relief to offer Petitioners.