- The Washington Times - Friday, June 29, 2001

The Supreme Court ruled yesterday that criminal aliens awaiting deportation to native lands that refuse to accept them, in violation of international law, cannot be kept locked up indefinitely even if they are deemed "dangerous."
The 5-4 decision affects almost 2,800 aliens in the United States who have committed serious crimes, have served sentences and are in detention, according to the Immigration and Naturalization Service (INS).
The high court set a limit of six months for most cases to be settled instead of "preventive detention that lasts for years if not for life," in the words of Justice Stephen G. Breyer, who wrote the majority opinion. After that, if the alien shows there is no likelihood of deportation, the government would have to justify further detention in court.
Justice Breyer was joined in the majority by Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter and Ruth Bader Ginsburg. Justice Anthony M. Kennedy wrote the dissent joined by Chief Justice William H. Rehnquist and, in part, by Justices Antonin Scalia and Clarence Thomas.
"The people involved in these cases cannot be repatriated, usually because we have no repatriation agreement with those countries, including Cuba, Cambodia, Vietnam and Laos," said Karen Kraushaar of the INS.
"We definitely want to make sure that we proceed in a way that is within the framework of the decision and, at the same time, act responsibly," she said.
Though decisions on many cases hinge on yesterday's ruling, 40 percent of them involving aliens from Cuba and Southeast Asia, the court order directly involved refugees from two wars:
Kestutis Zadvydas, 52, was born to Lithuanian parents in a displaced persons camp in Germany. His family came to the United States when he was 8 and he has a long record of convictions in Fairfax County involving drugs, robberies and burglaries. In 1994, he was ordered deported to Germany, which refused to accept the noncitizen.
Kim Ho Ma, 24, was born in Cambodia and came to the United States when he was 7 through Thailand and the Philippines. He was ordered deported after serving two years for manslaughter in Seattle compounded by gang activity and misconduct in prison. A federal judge decided Cambodia would not accept Ma.
"Protecting the community does not necessarily diminish in force over time. But we have upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections," said the majority opinion, which cited guidelines for post-prison confinement of violent sexual predators or individuals suffering from mental illness.
The court said constitutional safeguards of community protection against those in preventive detention require clear and convincing evidence of dangerousness, a lower standard than for conviction.
The court dismissed the government's other justification, that an alien would flee and hide to escape ultimate deportation.
"[That] justification preventing flight is weak or nonexistent where removal seems a remote possibility at best," the majority said.
The dissenting justices said hundreds of people who are flight risks or dangerous likely will be released as a result of the decision. They said the majority put itself in the position of supervising State Department negotiations with other nations instead of letting courts decide which aliens are likely to flee or pose a public danger.
"In the guise of judicial restraint the court ought not to intrude upon the other branches," the dissenting justices said.

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