Saturday, January 11, 2003
The first case for Wed 1/15 is an immigration-law case, INS v. Kim. This is an area in which I am massively ignorant, so those readers who are not ignorant are warmly invited to tell me ways in which I am flat wrong. But really it's a constitutional-law case as well as an immigration-law case, so I'm not completely in the dark.
The question is whether the Constitution requires (as a matter of due process) that a lawful permanent resident alien, who is being subjected to deportation proceedings because he has been convicted of a crime, must be given a hearing and the possibility of release on bail pending the deportation hearing itself -- or whether the INS can (as the statute provides, see section 1226(c)) lock him up without bail until the deportation hearing. The Ninth Circuit held (pdf file) that such a person does have a constitutional right to a hearing on the question of release on bail; and the government has asked for review of that decision.
War on terror, war on terror, war on terror. Not actually relevant, not actually relevant, not actually relevant. Nobody's saying in this case that every person has to be released on bail, so that evildoers would be free to roam around doing evil. The argument instead is that everybody is entitled to a hearing on whether he or she should be released on bail until the final deportation hearing, depending on whether he or she is a danger and/or a flight risk.
How to call this one? Pro-reversal, you've got the fact that it's that darn liberal Ninth Circuit (though with a Reagan appointee on the panel, agreeing with the decision, if I'm not mistaken) and that the government wins most of its cases in the Supreme Court. And war on terror war on terror war on terror bad foreigners! Pro-affirmance you've got the fact that the Ninth Circuit's decision is very convincing to my eye (but then I'm one of those darn liberals too, of course). It's just not part of our legal culture, to lock people up pending the outcome of the proceedings against them, without an individualized inquiry into whether it's necessary to do so. (I understand that some people think that it should be part of our legal culture to do so, and we've done it before. But we shouldn't; it's not who we want to be, if you ask me.). And you've got this decision (pdf file) from a couple of years ago, which doesn't answer the present question but does tend to lean in favor of affirmance here.
In the end, it may come down to a specific judgment about whether an alien targeted for deportation under this statute, based on a criminal conviction, has any chance in hell of avoiding deportation. If the Court thinks that everybody who's heading for a deportation hearing is definitely, no question about it, going to be deported -- then the Court may well think that there's no problem in locking them up til we get around to that foregone conclusion.
Hard call in the end, but I'm a grumpy pessimist this morning, so I'll say "REVERSE".
posted by sam 8:14 AM
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