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The Supreme Court on April 29 handed the government a big win in immigration law, ruling 5-4 that legal aliens who commit certain crimes in the United States can be imprisoned pending their deportation hearings. But by a separate 6-3 vote, the Court also ruled that it had jurisdiction to review the law in the context of a habeas corpus petition filed by an immigrant detainee. The decision in Demore v. Kim, No. 01-1491, while not directly related to the war on terrorism, may have an impact on future litigation over the Bush administration’s post-Sept. 11 detention of immigrants suspected of having connections to terrorist groups, says Paul Kamenar of the Washington Legal Foundation. “It strengthens the government’s hand in all deportation proceedings.” The foundation filed a brief supporting the government’s position and disputing the Court’s jurisdiction over the case. Chief Justice William Rehnquist, who wrote the majority opinion, noted that criminal aliens make up one-fourth of the nation’s prison population, and that nearly one-fourth of aliens released pending deportation don’t show up for their deportation hearings. Responding to this trend, Congress in the 1996 Illegal Immigration Reform and Immigration Responsibility Act required the government to detain deportable aliens pending their hearings. In this category are those resident aliens who have been convicted of aggravated felonies, multiple crimes of “moral turpitude,” and a variety of other offenses, including drug and firearms crimes. Hyung Joon Kim, who emigrated from South Korea at age 6, was a lawful permanent resident when he was convicted in California of theft and burglary in 1996 and 1997. After serving one and a half years in prison, he was turned over to the Immigration and Naturalization Service to be held pending deportation. He filed a habeas petition challenging the 1996 law, and won at both the district court and appeals court levels. He was released on bond and now, at 25, is a college student. The Bush administration sought reinstatement of the law, arguing that the 9th Circuit “straightforwardly substituted its own policy judgment for the considered conclusion of the political branches.” The American Civil Liberties Union and other groups countered that detention for these aliens could last months or years and that the freedom from arbitrary detention belonged to citizens and noncitizens alike. The high court majority agreed with the government. “Congress adopted this provision against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens,” wrote Rehnquist. “Detention during removal proceedings is a constitutionally permissible part of that process.” Rehnquist also said last year’s ruling in Zadvydas v. Davis did not apply to Kim’s case. In that ruling, the Court imposed some limits on the indefinite detention of those who have already been ordered deported. Rehnquist said the detention for those with pending cases would be “of a much shorter duration.” Justice David Souter read parts of his dissent from the bench, arguing that legal permanent resident aliens are “generally indistinguishable” from citizens in terms of their rights and obligations. “This case is not about the National Government’s undisputed power to detain aliens in order to avoid flight or prevent danger to the community,” wrote Souter. “The issue is whether that power may be exercised by detaining a still lawful permanent resident alien when there is no reason for it and no way to challenge it. The Court’s holding that the Due Process Clause allows this under a blanket rule is devoid of even ostensible justification in fact and at odds with the settled standard of liberty. I respectfully dissent.” Joining Souter in dissent were Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer wrote a separate dissent. Three justices separately dissented on the jurisdictional issue. Justice Sandra Day O’Connor, joined by Justices Antonin Scalia and Clarence Thomas, asserted that throughout the nation’s history, until recently, aliens were not allowed to use habeas to contest pending deportation. With that background, the three agreed that Congress could remove federal court jurisdiction over such detentions.

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