Posted on 01/09/2002 5:47:25 PM PST by Jean S
SAN FRANCISCO -- A federal appeals court Wednesday declared unconstitutional a law that denies bail hearings to incarcerated immigrants fighting deportation.
The ruling, binding on the nine western states under the supervision of the 9th U.S. Circuit Court of Appeals, does not address immigrants detained following the Sept. 11 attacks. The case addresses immigrants who were convicted of a crime, served their sentence and are detained while the government tries to deport them -- a process that can last as long as three years.
The circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington
Last month, the Philadelphia-based 3rd U.S. Circuit Court of Appeals issued a similar ruling. In 1999, the Chicago-based 7th U.S. Circuit Court of Appeals ruled otherwise. The U.S. Supreme Court is likely to review the issue when there is a split among circuits.
The San Francisco-based 9th Circuit said thousands of immigrants fighting their deportation under these circumstances are entitled to a bail hearing. The court, however, stopped short of saying the immigrants are entitled to bail.
"We hold only that such an alien has a right to an individualized determination of a right to bail, tailored to his or her particular circumstances," the court wrote.
Generally, bail is denied when a defendant is considered a flight risk or a danger to society.
The case decided Wednesday was brought by Hyung Joon Kim, a U.S. resident and a citizen of Korea. When his three-year term for a California petty theft conviction expired, the government detained him while starting deportation proceedings. Kim sued, arguing the 1998 federal law denying bail hearings was unconstitutional.
To send them into gales of laughter?
Sigh
Rather, the deportation process should commence upon incarceration, so that it is completed prior to the convict's sentence being over. Plus, the whole process shold be speeded up so that a final decision is made within 3 months and not three years. That way, the convict can be handed over directly to INS for deportation at the time of his prison release.
With a home proposed deportee could go to, what would be the problem with giving said proposed deportee the choice of working out his immigration problems out of custody at his chateau, or waiting his hearing here in custody?
re:
".......If I am facing a charge where the maximum jail term
is 10 years, but I know that if I skip bail I face further charges
that could put me away for 30 years, then I am not likely to
run, especially if I have a job and if I have a family here to support.
However, if I am here on a visa, and
A. I face being deported from this country if I don't skip out
B. but I might be able to stay if I do skip out,
I think it is reasonable to assume there is a flight risk........."
Huh? Kinda' contorted, wouldn't you say?
The immigrant has an option. He can flee and be sure of
deportation when/if located, since he's compounded his
problem, or trust in our system of jurisprudence. The fact
he arrived at court as specified will count in his favor, not
against him.
Keep in mind what the 9th Circuit Court said. The immigrant's
bail is set according to the crime and circumstances.
If it wasn't a crime of magnitude [moral turpitude] he should
be allowed benefit of doubt - and it is very likely that he
would not be deported.
If it was a serious crime, he would not be sitting and waiting
for the prosecutor's office to figure out a charge that might
get him deported, nor would bail be slight.
Or more simple, the immigrant has more to gain by not
fleeing, than he does by fleeing [under those circumstances
described].
I do agree, there have been too many ultra-liberal "get him
out of the system" findings and bureaucratic maneuverings
between the court system, INS and justice departments in
the past. And likely the reason we hear of hardened and
dangerous criminals of non-US citizenship [and citizens alike]
walking among us, while they should have been deported or
incarcerated. But we shouldn't allow that to prejudice our
concerns and desires to maintain a fair and just system as our
Constitution mandates.
Thanks
Border Violators Routinely Freed to Roam Country
Even Illegal Aliens From Terror-Sponsoring States Are Not Routinely Detained
By David Freddoso
Posted January 4, 2002 4:42 PM
Under current U.S. government policy, a 24-year-old Sudanese who is caught illegally entering the United States through Mexico has a right to live freely on bond in this country until his deportation, unless authorities can demonstrate that he has a criminal record or is a flight risk.
This policy, implemented daily by U.S. immigration courts, has allowed more than 300,000 illegal immigrants from all over the globe—even from countries where major terrorist groups operate—to skip bail while waiting for their hearing or their ride home.
Illegal immigrants from Mexico who have no criminal record are usually repatriated within hours of their apprehension by the Border Patrol, and are not charged with any violation, according to officials of the Border Patrol and U.S. attorneys’ offices.
But aliens from non-contiguous countries—as well as Mexicans who request an immigration hearing—must be brought before a judge for a removal order. It is here that they are usually given the opportunity to post bond, unless an immigration judge rules that they constitute a specific public threat or a flight risk.
In fiscal 2000, the immigration courts reviewed the cases of 215,894 undocumented aliens. Over 144,000 were turned loose or released on bail pending immigration hearings, according to the annual report of the Executive Office for Immigration Review.
Nearly 31% of those released, or more than 44,000, jumped bail and failed to appear for their deportation hearing, the report said. Most of these were ordered deported in absentia, but they still may never leave the United States.
Even among the deportees who do show up for their hearings, few appear for their actual deportation, said INS spokesman Russ Bergeron. Although the INS does not track the exact number of failures to appear nationwide, it estimates that more than 314,000 deportees who have skipped bail—or “absconders”—are at large today among the general population.
It is extremely common for aliens to abscond after they have been ordered deported, said another INS official, who spoke on condition of anonymity. “For some people, it’s just an additional cost of coming here,” he said.
If found by the INS, absconders can be deported immediately. “You don’t have a right to another hearing,” said Rick Kenny, an immigration court spokesman. Absconders can also be barred from legal entry into the United States for any purpose, for more than 10 years, depending on the amount of time they have spent in the country illegally. “You are risking any kind of legal color when you abscond,” said Kenny.
But Bergeron noted that the INS is far short of the resources it would need to find and round up even a small fraction of the absconders currently on the loose.
In spite of the large numbers who skip bail, immigration courts continue to grant bail to thousands of aliens who come to the United States illegally.
“Even non-citizens have a right to a bond determination, and have a right to contest that bond determination in federal court,” even to go as far as the Supreme Court, said Bergeron. Although the INS can recommend no bail, that recommendation has to be approved by an immigration judge.
He added that even in cases of aliens from nations where terrorism is widespread or state-sponsored, such factors on their own cannot be used to deny bail in immigration court.
“You can’t use that kind of generality in front of a judge,” said Bergeron. “You cannot argue that an individual’s nationality, in and of itself, constitutes a threat to the public, any more than you can argue that a person from a city with a high crime rate constitutes a threat because of where they’re from.”
Bergeron said that the INS has only enough detention space to hold about 20,000 illegal immigrants on any given day, and that “the priority is given to those with a criminal history, for obvious reasons.”
Yet although the detention space is “pretty much at full occupation most of the time,” he admitted that the INS would be unable to hold most of the aliens anyway, because “they have a right to have their bond determination reviewed by an immigration court.”
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