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A convicted felon awaiting a deportation hearing is entitled to a bail hearing, the 9th U.S. Circuit Court of Appeals ruled Wednesday, sending a message to the nation’s lawmakers not to overlook the Constitution. The unanimous three-judge panel rebuffed arguments by the Immigration and Naturalization Service that Hyung Joon Kim, a lawful resident alien convicted of burglary and petty theft, must be held in custody pending the outcome of a deportation hearing, even after serving his criminal sentence. “We must remember that our ‘nation’s armor’ includes our Constitution, the central text of our civic faith. It is the foundation of everything that makes our country’s system of laws and freedoms worth defending,” Judge William Fletcher wrote, alluding to the events of Sept. 11 and the resulting focus on immigration policies. “As a lawful permanent resident, Kim is entitled to the individualized determination and fair procedures guaranteed by the Due Process Clause of the Fifth Amendment.” Fletcher was joined by Senior Judges Procter Hug Jr. and John Noonan. A native of Korea, Kim had been in INS custody for six months by the time U.S. District of Northern California Judge Susan Illston ruled in August 1999 that the statute under which the INS detains such aliens is unconstitutional. He was immediately released on $5,000 bail. That decision was narrowed slightly by Wednesday’s decision, which affects only lawful permanent residents. Immigrants facing deportation to their native country can wait nearly two years before being ordered out of the country, during which time, under federal law, they are to be held in custody. “The alien is facing the prospect of long-term separation, and if the no-bail provision is valid he or she will be unable to see his or her son, daughter, husband, wife, father or mother except in the detention facility during the pendancy of the removal proceedings,” Fletcher noted. Immigration lawyers said the decision could affect hundreds, if not thousands, of lawful aliens living within the confines of the 9th Circuit. “This is a significant victory because I would say that most of the immigrants who are detained are lawful residents,” said Mark Silverman of San Francisco’s Immigrant Legal Resource Center. He also pointed out that many are virtually lifelong U.S. residents who are facing a one-way ticket to a country they know little about. “These are people who have been acculturated to criminal behavior based on their residence in the U.S.A.” Judy Rabinovitz, the senior staff counsel at the American Civil Liberties Union who argued the case, said the decision sends a couple of messages. “It should be, hopefully, a reminder to Congress to go back and fix” immigration reforms enacted in 1996. She also said that the decision, together with a similar 3rd Circuit case, means that “you have two courts of appeals in unanimous decisions saying we’re not abdicating our role in ensuring Due Process.” Fletcher compared the case to the Supreme Court’s holding last year in Zadvydas v. Davis, 121 S.Ct. 2491, which held that the government cannot imprison immigrants subject to removal indefinitely. In that case, noted Fletcher, the government made the same plenary powers argument — that Congress had virtually unlimited power over immigration laws — as in Kim. “ Zadvydas reaffirmed the principle that aliens are entitled to protection under the Due Process Clause,” Fletcher wrote. (The Zadvydas case included consideration of a 9th Circuit case that was argued at the same time, Ma v. Ashcroft, 257 F.3d 1095.) The Justice Department put forth five reasons to justify the no-bail law, three of which were: to make removal a priority, to correct the failure of past laws, and to repair the nation’s immigration system. Fletcher wasn’t buying those arguments. “The last three justifications are so general that they amount to little more than saying that the ‘justification’ of the statute is to make deportation a priority and to make things better,” he snorted in his opinion. Instead, he focused on the INS’ first two arguments — that the statute is needed to protect the public and to prevent immigrants from fleeing before deportation. Having already criticized the government’s logic, Fletcher went on to criticize their math. He pointed out that government relied on a 1997 study to argue that 89 percent of those who aren’t detained do not show up for their deportation hearings. But Fletcher wrote that the government misinterpreted how the report categorized those released on bail. In fact, they were counted as detained, not among those who had not been detained, as the INS argued in court. “The government makes a fundamental factual error in relying on the 89 percent figure in the report,” Fletcher wrote. “When the report thus recommended ‘detention’ as ‘key to effective deportation,’ it recommended precisely what Kim seeks and the government opposes.” As for the argument that aliens must be detained to protect the public, Fletcher reasoned that the commission of an “aggravated felony” does not automatically mean an alien is an ongoing threat to the public. In a final blow, the judge quoted the congressional testimony of former INS Commissioner Doris Meissner, who questioned whether detention should indeed be statutorily mandated rather than up to the discretion of the INS. “We are reluctant to uphold civil detention impinging on fundamental liberty interests, based on a government policy the need for which the implementing agency itself has questioned,” Fletcher wrote. The decision aligns the 9th Circuit with a recent decision by the 3rd Circuit, while the 7th Circuit has decided the issue in favor of the government.

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