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The Supreme Court will soon consider an urgent plea from the Bush administration to overturn a lower court ruling that would force the government to release imprisoned illegal aliens with criminal records whose native countries don’t want them back. The case of Snyder v. Rosales-Garcia, No. 02-1464, is on the agenda for the Court’s private conference on June 19. At the conference, the justices will determine whether to grant review in this case and dozens of others. At issue is a March 5 ruling by the U.S. Court of Appeals for the 6th Circuit that sided with Mario Rosales-Garcia and Reynero Carballo, Cuban nationals first detained in 1980 as they tried to enter the United States as part of the Mariel boatlift. They had been deemed excludable, but at various times were released on parole. After accumulating criminal records in the United States — Rosales for drug and burglary charges, Carballo for attempted murder — their paroles were revoked and the government sought to deport them. But because Cuba refused to accept them, they were detained indefinitely by the Immigration and Naturalization Service. Their habeas corpus petitions challenging their imprisonment got a boost in 2001 when the Supreme Court handed down Zadvydas v. Davis. The ruling said that permanent resident aliens who were ordered deported could not be kept in prison for longer than six months while efforts were made to find a country that would receive them. As Solicitor General Theodore Olson points out, the Court in Zadvydas said that aliens who had been kept from entering at the border would pose a “very different question” from aliens already residing in the United States. But the American Civil Liberties Union, on behalf of the two detainees, asserts that Zadvydas applies to both classes of aliens. The 6th Circuit en banc ruling agreed, finding that “excludable aliens — like all aliens — are clearly protected by the due process clauses of the Fifth and Fourteenth Amendments.” Judge Karen Nelson Moore, writing for a 6-3 majority, added, “If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States could not torture or summarily execute them.” In dissent, Judge Danny Boggs condemned the majority opinion. “If hundreds, or thousands, or hundreds of thousands of such persons present themselves at our borders,” Boggs wrote, “the government of the United States is constitutionally disabled from doing anything, after a short interval, other than set all such persons at liberty in our country.” He said that could not have been the intent of Congress in its immigration laws. Olson’s brief calls the 6th Circuit ruling “a fundamental error of constitutional law” that has “great practical importance.” He also says it conflicts with other circuit and district court rulings and needs to be resolved by the high court. To let the ruling stand, he argues, would create a “back door” way into the United States for aliens whose home countries do not cooperate in repatriation of their nationals. ACLU lawyer Judy Rabinovitz, seeking to preserve the favorable 6th Circuit ruling, urges the Court not to review it, in part because it “flows ineluctably” from Zadvydas. The Washington Legal Foundation filed an amicus brief on the government’s side, asserting that “national security concerns” are also implicated. “In mass immigrant situations, it is difficult to do sufficient background checks to ensure that terrorists are not among those seeking to enter illegally,” wrote the foundation’s Richard Samp. OTHER CASES UP FOR REVIEW • Dethmers Manufacturing v. Automatic Equipment Manufacturing, No. 02-429. Whether an issued patent can be declared invalid by a court for failure to comply with Patent and Trademark Office procedure, when statutory requirements for patentability have been satisfied. • Immigration and Naturalization Service v. Singh, No. 02-1123. Whether mistakenly missing a deportation hearing is the kind of “exceptional circumstance” that an alien can use to seek reversal of a deportation order. • Federal Communications Commission v. Missouri Municipal League, No. 02-1386. Whether the Telecommunications Act of 1996 pre-empts state law barring municipalities from providing telecommunication services. • Dickson v. Microsoft Corp., No. 02-1305. Definition of “hub-and-spoke” antitrust conspiracy. • United States v. Galletti, No. 02-1389. How Internal Revenue Service claims for unpaid unemployment taxes should be assessed against members of a partnership in bankruptcy. • Saucerman v. Norton, No. 02-1393. Indian lands exception to the Quiet Title Act. • Boeing Co. v. United States ex rel. Roby, No. 02-1411. Contractor liability for loss of government property under the False Claims Act. • AT&T Corp. v. Ting, No. 02-1521. Application of state consumer protection laws to interstate long-distance telephone services regulated by the Federal Communications Commission. • Borough of Tenafly, N.J. v. Tenafly Eruv Association Inc., No. 02-1536. Free exercise clause case involving municipality’s removal of markers from utility poles that designated a special area for Orthodox Jews. • New Hampshire Department of Health and Human Services v. Estate of Raduazo, No. 02-1548. Whether individual Medicaid recipients may claim that monies received by a state under the tobacco Master Settlement Agreement should be used to satisfy the state’s Medicaid lien. • Maryland v. Wallace, No. 02-1649. Whether there is probable cause to arrest all the occupants of a car when a drug-detection dog signals the presence of narcotics while scanning the exterior of the car. • Tennessee v. Lane, No. 02-1667. Whether Title II of the Americans With Disabilities Act exceeds Congress’ authority under Section 5 of the 14th Amendment, and thus fails to abrogate states’ 11th Amendment immunity from private damage claims. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Note: Goldstein represents the respondent in Tennessee v. Lane, No. 02-1667.

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