Liberty and justice ... for citizens only?

Can the US government jail immigrants indefinitely if their native countries refuse to take them back? That's the question being raised by a series of legal challenges to a controversial immigration law.

And the challenges are raising even deeper questions, some legal analysts say, about fundamental fairness and whether America is moving toward becoming a nation of liberty and justice for citizens only.

At issue is a 1996 amendment to US immigration law, requiring that any immigrants convicted of certain criminal offenses be subject to mandatory detention and deportation with no possibility of bail in the interim. In effect, they are hauled back into custody even if they have already served their entire sentences.

And in cases where the country of origin refuses to repatriate the convicted immigrant, the detention can stretch on for years - and in theory could amount to a de facto life sentence if no accepting country can be located.

"You have individuals who are spending years in INS [Immigration and Naturalization Service] detention beyond what they served for their crimes," says Judy Rabinovitz of the American Civil Liberties Union's Immigrants Rights Project in New York. "In some cases they are serving longer periods in INS detention than they did for their crimes."

Congress passed the 1996 law in part in response to concerns about immigrants coming to the US and engaging in criminal enterprises. The law makes clear that any immigrant convicted of an aggravated felony must be deported. Deportation applies to every immigrant convict, including some who have spent most of their lives in the US, spouses married to US citizens, and parents with children who are US citizens.

The law has landed an estimated 16,000 individuals in detention in immigration lockups and county jails. Of those, roughly 4,000 exist in a kind of legal limbo, facing indefinite periods of time behind bars because no country will accept them.

The resulting frustration among detainees has sparked hunger strikes and at least three jail uprisings, including a six-day hostage drama at a Louisiana county jail in December.

Immigrant advocates have filed a string of lawsuits across the country, asking federal judges to declare the 1996 immigration law unconstitutional. They argue that indefinite detention amounts to punishment without trial.

In Seattle, public defenders have managed to free 76 resident immigrants after arguing that their indefinite detention violated their due process rights. The government is appealing those decisions, and the case is set for argument before a panel of the Ninth US Circuit Court of Appeals on Feb. 14.

The case points up the danger of unchecked power by the INS to take harsh, unfair action against immigrants, says Jennifer Wellman, a staff attorney with the Federal Public Defender's Office in Seattle and co-counsel for the immigrants. "That is what is great about America," she says. "There is no one authority that can oppress a person."

She adds, "It is a very important time for the Ninth Circuit [judges] to step up and recognize the rights of these people and remind the [INS] that they do not go unchecked, that they do not operate above the Constitution."

The Fifth Amendment guarantees all "persons" a right to due process of law before the government may subject an individual to imprisonment or other forms of punishment. At the core of the legal challenges is whether green-card immigrants convicted of a crime qualify as "persons" under the US Constitution.

Lawyers for the INS argue that indefinite detention is not punishment. Rather, it is necessary to prevent convicted immigrants from fleeing within the US to avoid deportation. In addition, it is necessary, in some cases, to protect the public from dangerous criminals, they say.

INS lawyers also argue that indefinite detention does not violate constitutional protections because resident immigrants who have been ordered deported are not entitled to the same level of constitutional safeguards as citizens.

Some legal analysts complain that such a position threatens to create a two-tiered system of justice in the US, with a preferred standard of constitutional protection for citizens and a lesser standard for immigrants.

"This is a slow stepping away by Congress," says Anna Gallagher of the American Immigration Law Foundation in Washington. "It is making a distinction between citizens and noncitizens in the US and attributing a different level of rights to those two groups."

Roughly nine federal judges have declared such indefinite detention an unconstitutional violation of due process, while five judges have upheld the law.

The most recent decision came two weeks ago, when a federal judge in Los Angeles struck down the immigration law. "Detention threatens the deprivation of a fundamental liberty interest and clearly triggers 'heightened, substantive due-process scrutiny,' not judicial deference," Chief US District Judge Terry Hatter Jr. writes in his opinion.

But other judges don't see it that way. In August, a three-judge appeals-court panel upheld open-ended detention in a Louisiana case. "The whole point of earmarking criminal aliens for deportation or exclusion is that while we must tolerate a certain risk of recidivism from our criminal citizens, we need not be similarly generous when it comes to those who have not achieved citizenship," writes Circuit Judge Will Garwood for the court.

"Their presence in this country is thus a continuing violation of the immigration laws, and if the preferred method of ending this violation is unavailable, detention may be an acceptable alternative...."

The court also stressed that "reasonable parole and periodic review procedures" by the INS must also be operative.

Immigrant advocates hope that if enough judges raise serious questions about the constitutionality of indefinite detention, the INS will voluntarily reform its regulations and procedures.

Ms. Gallagher says that, under the government's interpretation, longtime legal residents whose wives and children are US citizens can be deported without having a hearing before a neutral judge. "The INS enforcement division then becomes the judge, jury, and executioner."

(c) Copyright 2000. The Christian Science Publishing Society