SAN FRANCISCO - In a small victory for legal immigrants, the US Supreme Court weakened a series of laws adopted by Congress in 1996 that limited the rights of foreign-born legal residents. The decisions by a narrow 5 to 4 margin means the immigration police are denied the power of mandatory detention and deportation of non-citizens without a modicum of due process.
Justice Stephen Breyer, writing for the court majority, argued: "There is no sufficiently strong special justification here for indefinite civil detention, at least as administered in this statute."
The Immigration and Naturalization Service (INS) is holding thousands of non-citizens for deportation because no country will accept them. In many cases, those facing deportation are longtime residents who admitted to misdemeanours or nonviolent felonies as juveniles or young adults. In all cases, the detainees served their required time in prison.
The Supreme Court decisions will immediately affect thousands of such immigrants. Some 20,000 immigrants are now in INS detention. Under current policy and the high court's interpretation, many of these detainees will be free although under some legal oversight.
Prior to the high court's ruling, the federal and state governments had taken a number of decisions limiting the rights of all non-citizens and giving preference to native-born Americans. The claim by both Democratic and Republican politicians was that these reactionary steps were necessary to combat alleged threats of foreign-born "terrorists" and workers taking "American" jobs.
Cambodian case
Not surprisingly the cases that reached the Supreme Court involved immigrants from east Asia and eastern Europe.
A Cambodian man, Kim Ho Ma, was admitted to the United States as a refugee when he was a small child. He never became a citizen and was later convicted of a gangland killing. After serving his time in prison, Ma was ordered to be deported to Cambodia, which refused to take him on the grounds that he wasn't a citizen. Ma was held in custody for two more years. A lower court ruled that Ma could only be held for a "reasonable time" beyond the 90 days under immigration law. The case was appealed to the Supreme Court.
Another refugee, Kestutis Zadvydas, born in 1948 to Lithuanian parents in a displaced persons camp in Germany, suffered a similar fate as Ma. He compiled a criminal record after coming to the US as a small child. He was taken into custody in 1994 and was told he would be deported to Germany where he never lived. Germany refused, as did Lithuania. Zadvydas sat in jail for three years with no hope for freedom.
Finally, in 1997 Zadvydas was released. A higher court reversed a lower court decision granting him his freedom, ruling that immigration matters were "largely immune from judicial control" and found no constitutional problem with his continued indefinite detention.
Both men - and many other men, women and children - faced permanent detention as stateless people without countries.
Clinton era laws
The reactionary laws are relatively new (adopted in 1996), and mark the true legacy of President Bill Clinton. With bipartisan support in the US Congress, Clinton advanced three major proposals to fight "terrorism". The landmark laws - the Illegal Immigration Reform and Immigrant Responsibility Act; the Anti-Terrorism and Effective Death Penalty Act; and a series of welfare reform laws - virtually eliminated the discretionary powers of INS officials to grant exemptions to individual immigrants. The welfare reforms effectively denied all legal residents access to government aid. (The latter reforms had bigger objectives in ending a modest social program that mainly benefited minorities and the poor.)
"Many of the most far-reaching aspects of these laws remain on the books, and almost all of them are exclusionary in nature", said Michael Fix, director of immigration studies at the Urban Institute, a non-profit policy research organisation in Washington, DC, after the Supreme Court's rulings.
"To be a legal permanent resident used to be very secure status", commented Joshua Bernstein of the National Immigration Law Center. "People couldn't vote, but in most other circumstances they were treated fairly. Now we've made it into a much more contingent status when people can no longer feel sure that fundamental rights won't be taken away."
Although the Supreme Court weakened the laws, as Fix noted, the 1996 acts remain on the books. The court simply ruled that legal residents would not face automatic deportation. Some due process would occur especially after the person had met their legal obligations. In addition, if a legal resident is to be deported but no country will accept the deportee, the person can't be held indefinitely in detention.
Congress, facing public scorn, restored some of the welfare benefits for pre-1996 legal immigrants. Some states added food stamps for children of legal immigrants.
The real test is coming as the economy sinks into a recession. The immigrant-bashing right wing seeks to limit the rights of legal residents as part of a campaign to reduce overall immigration. Illegal immigrants, a pariah caste, continue to be used as scapegoats for many social problems. The Supreme Court majority avoided the broader social and constitutional issues by refusing to declare the 1996 laws as unconstitutional.
The weakening of the 1996 laws, however, does represent a step forward and provides encouragement to activists opposed to new restrictions on the rights of legal residents and all citizens.
BY MALIK MIAH