- The Washington Times - Wednesday, April 30, 2003

The Supreme Court ruled 5-4 yesterday that immigration officials may jail without bail the thousands of legal immigrants awaiting deportation after serving time for "aggravated felonies."
In a sharply different 6-3 vote, the court also said lower courts may hear constitutional challenges to denial of bail or parole. The court rejected arguments that Congress' demand, that courts may not ignore the attorney general's acts, prevents such challenges.
"Detention during removal proceedings is a constitutionally permissible part of that process," Chief Justice William H. Rehnquist wrote. He said most such removal proceedings take about 47 days.
The initial decision reversed a 9th U.S. Circuit Court of Appeals ruling that released Hyung Joon Kim, 25, from detention while he awaited a bail hearing. He was convicted of first-degree burglary in California in 1996 and convicted in 1997 for petty theft with a prior conviction. Immigration officials consider "petty with a prior" an aggravated felony, a deportable offense.
Kim emigrated from South Korea in 1984 at age 6 and became a legal permanent resident two years later.
Only Justice Anthony M. Kennedy voted yesterday with the chief justice both to detain potential deportees without bail and to permit court challenges to the detention.
Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas agreed to permitting detention without bail, but they dissented on the question of whether lower courts may hear challenges to denials of bail. They said Congress "could not be clearer" in barring habeas corpus challenges in such cases.
Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer joined the chief justice and Justice Kennedy in ruling that the lawmakers' stated intent to block court review was not sufficient to preclude constitutional challenges in specific cases.
But the other decision, on holding immigrants without bail, "forgets over a century of precedent acknowledging the rights of permanent residents," stated the dissent by Justices Souter, Stevens, Ginsburg and Breyer.
The 6-3 bail decision might have been tailored to defer to the administration while not surrendering any part of the courts' historical jurisdiction to hear challenges to the constitutionality of a person's detention, said David Price of the Washington Legal Foundation.
"It would have been hard for Congress to spell it out any more clearly," Mr. Price said.
Solicitor General Theodore B. Olson said the decision "applies to thousands of criminal aliens currently in custody and to hundreds of additional criminal aliens each week against whom removal proceedings are commenced."
In the seemingly conflicting decisions, Chief Justice Rehnquist said 25 percent of immigrants facing deportation after leaving prison never appear for hearings, so potential deportees may be jailed even if they are not a flight risk or danger to the community.
The court reached back to its 1896 Wong Wing v. United States decision to explain why the government should not risk flight by a felon facing deportation.
"As we said more than a century ago, deportation proceedings would be vain if those accused could not be held in custody pending the inquiry into their true character," the court said yesterday.
Chief Justice Rehnquist wrote in his opinion that one in four felons "absconds" before a hearing.
"We hold that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings," the chief justice wrote.

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