Case tests the rights of immigrants held in US jails

Five men without countries are fighting for their freedom from behind US bars.

And how five federal judges decide their futures next month will help shape policy and laws governing the imprisonment of more than 3,500 detainees held indefinitely by the Immigration and Naturalization Service nationwide.

Under a tough law approved by Congress in 1996, criminal aliens are subject to automatic deportation and must be held without bond until their removal. The law imposes an indefinite sentence on those whose countries won't take them back.

Indefinite detainees have won individual appeals for freedom in California, Texas, and Louisiana. But the Washington case represents the first time a group of them have been put together to argue the constitutional rights of a large group of "lifers" or "unremovables," as these detainees are called.

Lifers are immigrants and refugees who are ordered deported, but whose home countries refuse to take them. Among those nations that balk are Cuba, Vietnam, Laos, Cambodia, Somalia, and the former Soviet Union.

Dennis Batyuchenko, a Soviet Christian refugee, is one of the five lifers involved in the Seattle suit. So far, Mr. Batyuchenko has been held two years by the INS - long enough to see indefinite incarceration take a toll on many detainees and their families.

"I've seen many people losing their identities, becoming men without countries," he says. "They are the people nobody wants."

Lifers generally are ordered deported after serving time for a criminal offense, though some have only immigration violations or misdemeanor convictions. The law affects those with recent convictions, as well as legal residents who may have served time years, even decades ago.

Constitutional rights

The five men named in the Seattle suit were chosen to represent about 150 lifers held in Washington. Their federal public defenders argue that indefinite detention violates the detainees' constitutional rights to due process.

In California, federal public defenders already have helped three indefinite detainees win their freedom. Under court pressure, the California INS began a more rigorous administrative-review process, and subsequently released other lifers.

The five federal district court judges will convene in Seattle for a joint hearing on the cases June 17 and are expected to issue separate decisions early this summer. The unusual process was hammered out in a series of discussions between Seattle judges, the federal public defender, and the US attorney, representing the INS.

All five men in the Washington case came to America to find freedom, lived legally in the Northwest for years, and were ordered deported after serving time for crimes ranging from theft to man-slaughter. Here are their stories:

*At age 13, Bin Phanh left behind his family and smuggled himself aboard a boat bound for Indonesia - a desperate teen whose fellow passengers nearly threw him overboard when they discovered his hiding place. He grew up in foster care in Tacoma and was ordered deported because of theft convictions.

*Khamseane Sivongxay emigrated from Laos with his entire family. He is being held for an old conviction: a 1993 charge of illegal possession of a firearm, for which he served 60 days. Mr. Sivongxay has a wife and a young son, both US citizens, who are staying with his family in Portland, Ore.

*Cambodian Kim Ho Ma, came as a boy after spending years in refugee camps. He got involved in a gang and was ordered deported after a manslaughter conviction in a gang-related shooting at age 17.

*Son Thai Huynh says he is the son of an American GI whose father abandoned him. Without information or documents, Mr. Huynh is struggling to establish his birthright to US citizenship, which would be an automatic ticket to freedom, despite convictions for burglary and theft.

*Batyuchenko, the Soviet Christian refugee, came as a teen with his parents who live in a Seattle suburb. Like other religious refugees, they were forced to renounce all rights to Soviet citizenship in order to leave. Now their former country no longer exists and both Russia and Belarus have refused to take Batyuchenko, who was ordered deported for a conviction of receiving stolen property.

In a brief filed in May, the federal public defender argued that the men's rights are violated because they are being held indefinitely without any evidence that the government is making progress on their deportation. Nor does the INS's internal review process give lifers a fair chance for release.

In such reviews, the detainees' jailer - the INS - also acts as their judge and jury, and often detainees and their families have not been allowed to participate, argues Jay Stansell, an assistant federal public defender in Seattle.

To justify indefinite detention, Mr. Stansell argued that the INS should have to meet the same standards courts require when US citizens are committed civilly - a strict process used, for example, in the case of the criminally insane.

Government explanation

The US Attorney's office in Seattle is expected to argue that deportable immigrants have virtually no constitutional rights. "I have to respectfully disagree with those who argue that these people have done their time and paid their price," says Assistant US Attorney Chris Pickrell. "That holds true for US citizens, but it is invalid to extend that to criminal aliens."

In other suits, lawyers argued that the INS does not hold lifers indefinitely since the US government is continually trying to work on deportation treaties. Canada, the government has noted, recently worked out such an agreement with Vietnam.

They also are expected to argue that the INS practice protects citizens from criminal immigrants who would otherwise threaten public safety or property. Soon, the five federal judges in Seattle will decide who wins the argument.