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The Department of Homeland Security is trying to deport Keyse Jama, Sergio Martinez, and Daniel Benitez. But because of international complications, it can’t seem to find a place to send them. The result is an absurd situation that has been appealed all the way to the Supreme Court. This week, the Court will hear oral argument in these three immigration cases: Jama v. Immigration and Naturalization Service, Clark v. Martinez, and Benitez v. Rozos. All three disputes illustrate the harsh reality behind our increasingly callous immigration policies vis-�-vis aliens who have been convicted of crimes. Aliens who commit crimes in this country undergo the same criminal process that any citizen would in their situation. If they are tried and found guilty, or if they plead, they are sentenced to whatever a jury or judge considers appropriate. They serve their time, pay their fines, and complete the conditions of their probation. In short, they pay their debt to American society as any U.S. citizen would. Yet after paying this debt, aliens may receive the additional punishment of deportation, depending on the nature of the crime committed. The underlying policy rationale is that their presence here is a privilege that they have abused in some way. This is reasonable, and in most situations, deportation is a simple process. The alien’s country of origin or nationality is notified and gives consent, and the alien is placed on a plane. But in some cases, the country can’t be notified and give consent, and an alien found to be deportable by the Department of Homeland Security has nowhere to go. What does the U.S. government do with this person? Right now, the person is stuck in indefinite detention. These situations, involving constitutional, statutory, and humanitarian issues, are now before the Supreme Court. In deciding the fates of Jama, Martinez, and Benitez, the Court should take the opportunity to move immigration law in a humane direction. SENT INTO CIVIL WAR? In Jama v. INS, the Court will examine whether the government may remove an alien to a country unable to accept him. Somalia, the country in question, does not have a functioning government that could provide its acceptance. In fact, it has been in a continuous state of clan-based civil war since 1991. Individuals deported there risk bodily harm and even death. The Department of Homeland Security argues that it is able to deport Jama to Somalia because of the ambiguous language of the immigration statute. The Immigration and Nationality Act outlines the three-step process by which a country of removal is chosen. First, the alien himself may choose a country of removal � unless that country does not accept him. Second, if the alien does not choose or if the alien’s choice won’t accept him, the government may remove the alien to the country of nationality. Third, if the country of nationality does not give its approval, the government may select a destination from a list of additional countries (among which are the country of the alien’s birth and the country from which the alien was admitted). The statutory ambiguity at issue is whether under step three the permission of the intended recipient country is needed to deport the alien. In Jama’s case, the government has reached step three and wishes to send him to Somalia, the country of his birth. Jama fled the violent conflict in Somalia and came with his family as a refugee in 1996. He was arrested in 1999 after being involved in a melee when he came to the aid of a friend. Some of the people involved suffered stab wounds and other serious injury. Jama was convicted of third-degree assault, a felony in Minnesota, and sentenced to jail time, although ultimately he served only probation. He served time in jail because of intoxication, a violation of his parole, and afterward was transferred to the INS (the appropriate agency now known as Immigration and Customs Enforcement, though the case name has not been updated). He now faces a possible deportation to the country he fled out of fear. Jama will argue to the Court that the statute requires Somalia’s consent before any deportation and that under international law, his removal would run afoul of human rights treaties signed by the United States. There is no question that Jama was involved in a serious crime and that people were hurt. But separating him from his family and sending him into chaos, possibly death, seems out of proportion to the offense, especially considering he served the sentence imposed on him by the criminal court system. Ironically, even if Jama wins before the Supreme Court and is not sent to Somalia, he still may face additional punishment from the immigration authorities. Because he never adjusted his refugee status to that of legal permanent resident, Jama faces the possibility of indefinite detention � a punishment that is also before the Supreme Court this week in two other cases. INDEFINITE DETENTIONS The consolidated cases of Clark v. Martinez and Benitez v. Rozos address indefinite detention. Under U.S. immigration law, some aliens are allowed to enter the country for humanitarian reasons, but they are not given a status and so are never considered legally admitted � even though they live here and participate in society as any other immigrant would. In the two cases before the Supreme Court, the individuals are Cuban nationals who came in the Mariel boatlift of 1980, when Fidel Castro allowed any Cuban citizen who wished to depart to leave from the port city of Mariel. Some 125,000 people came. Martinez and Benitez were subsequently convicted of crimes in the United States, and they now face indefinite detention by immigration authorities because they cannot be deported to Cuba because of the strained relations between the United States and Cuba, which would bar any kind of agreement on the deportation of Cuban nationals. Sergio Martinez was convicted of burglary, attempted sexual abuse, and petty theft. Daniel Benitez was convicted of grand theft and burglary. Like Jama, they already have served their time in the penal system for their convictions and now languish in immigration custody. As the immigrants are arguing, the Court’s decision in Zadvydas v. Davis (2001) suggests that there is good reason to conclude that such indefinite detention should not be read into the Immigration and Nationality Act. The Court found in Zadvydas that the statute could not be read to allow indefinite detention for legal permanent residents because it would run afoul of the Fifth Amendment’s due process clause. The same reasoning should apply. The government argues that, as aliens who have not been officially admitted, Martinez and Benitez are still technically “at the border” and, as such, lack any rights under our law. This artificial legal construct, however, ignores the overwhelming similarities between the aliens in Zadvydas and the two Cubans. Both are noncitizens who served their time under criminal law and then faced indefinite detention under immigration law for the same act. The government is unwilling or unable to remove the aliens, but it is not willing to release them. This is problematic even in the instances where an alien has committed a violent crime, but a life sentence � which is essentially what indefinite detention means � is out of proportion to the crimes committed by Martinez and Benitez. A life sentence should be reserved only for the most horrendous of crimes, and it should not be carried out by an administrative agency under the guise that the detention is merely a civil penalty. RETURNING TO DISCRETION The road that led us to these cases began with repeated attempts by Congress to impose more draconian measures to deport convicted aliens. Specifically, the passage in 1996 of the Illegal Immigration Reform and Immigrant Responsibility Act and the Antiterrorism and Effective Death Penalty Act limited any available discretionary relief to aliens with criminal records. The statutes eliminated any waivers, asylum, or cancellation of removal for aliens who committed aggravated felonies and barred their re-entry into the United States for life. Those tools could have been used by an immigration judge to deal with individuals like the three Supreme Court plaintiffs promptly and humanely, but the 1996 statutes make no provision for aliens whose homeland can’t or won’t take them back. Ultimately, the resolution of such cases may belong to Congress. Well-thought-out amendments to the Immigration and Nationality Act allowing immigration judges to use their discretion in these rare occasions may be the ultimate solution. The Supreme Court can lend legislators guidance in this direction by pushing immigration law in a more humane direction through these three cases by concluding that the due process clause does not permit indefinite detention of unadmitted aliens and by not allowing the deportation of aliens to dangerous war zones. Although the United States has a strong interest in security and aliens have a responsibility to be law-abiding, we should not be blind to the human cost of not considering the special circumstances surrounding individual aliens. This is especially true in cases where the individual has nowhere to go. Alberto Benitez is a professor at George Washington University Law School and director of its immigration clinic. (He is no relation to the Benitez plaintiff.) Mirta Woodall is a third-year law student at the school.

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