Free Imprisoned Immigrants

The Supreme Court agreed Oct. 10 to hear two cases that will significantly impact the constitutional and human rights of deportable immigrants. The cases concern the fate of two legal immigrants scheduled to be deported for serious crimes whose home countries refuse to take them back. Currently, these immigrants reside in legal limbo, unable to live freely in any country. The Immigration and Naturalization Service (INS) is seeking the power to incarcerate them indefinitely--after their prison terms have ended--until deportation can be arranged. Though these individuals may have forfeited their right to reside in the U.S., they have not forfeited their rights as human beings. The court should accordingly reject their permanent imprisonment as repugnant to the principles of due process and personal liberty.

These immigrants are trapped because some countries, unlike the United States, do not automatically grant citizenship and the right of return upon birth. Kestutis Zadvydas was born in a displaced persons camp in U.S.-occupied Germany shortly after World War II, to parents from a region contested by Lithuania and Russia. Having finished a prison term for a narcotics offense and now scheduled for deportation, he has nowhere to go: Germany, which recognizes citizenship by blood rather than territory, refuses to acknowledge him as a citizen, and Lithuania has demanded documentation of his parents' residence that can no longer be found. Although the 5th Circuit Court of Appeals has noted that Zadvydas "may in a sense be stateless," the court refused to free him because it is possible that Lithuania or Russia may be persuaded to accept him as a citizen in the future. Moreover, the court concluded, the INS has full power to detain Zadvydas--perhaps forever--until arrangements have been made to send him elsewhere.

Such a response would effectively punish Zadvydas for the circumstances of his birth. A more reasonable response was taken by the 9th Circuit in deciding the case of Kim Ho Ma, a Cambodian immigrant who served a prison term for manslaughter. The U.S. has no repatriation agreement with Cambodia, so there is no reasonable probability that Ma will ever be returned. Rather than keep him in prison forever, or until Cambodia relents, the appeals court interpreted immigration law so as to require the INS to release him subject to parole-like requirements, including regular meetings with officers and strict travel limitations. If the INS is worried that Ma would attempt to evade a future deportation arrangement, keeping him under these requirements would be far more appropriate than keeping him incarcerated after he has served his sentence and paid his debt to society.

We hope the Supreme Court will adopt the latter view of an immigrant's rights under the Constitution and the law. As the 5th Circuit noted, the International Covenant on Civil and Political Rights mandates that no person shall suffer "arbitrary arrest and detention." It would be a shame if the U.S. were to inflict such punishment on human beings simply because they have fallen through the cracks of a state-centered world.