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June 1999, Volume 6, Number 6

Courts, INS: Detention and Deportation

Detention. The INS in mid-May released five Cuban felons and pledged to review the cases of 3,500 other prisoners from Cuba, Vietnam, Cambodia and Laos who are now being held indefinitely because they cannot be deported to their home countries. These "lifers" who have completed sentences imposed for US crimes face indefinite detention because their countries will not take them back. The INS said that lifers will be released if they do not pose a threat to public safety.

The INS action came after a 47-day hunger strike outside the Krome detention center near Miami by the parents of the Cuban prisoners. On April 30, a federal judge ordered the INS to release Jose Fernandez, who was detained for three years beyond his original sentence for drug trafficking because three countries refused to accept him as a deportee. He was released immediately.

On June 17, 1999, five federal judges in Seattle, Washington are expected to hear a case involving 150 such "lifers." They argue that they are being held indefinitely without any evidence that the government is making progress on their deportation. The US Attorney's office in Seattle says that deportable immigrants have virtually no constitutional rights.

A high-ranking Mexican official expressed concern about an INS plan to detain all Mexican migrants slated for deportation from the midwest in one location in Texas, saying that this hub-city plan would require the Mexican government to shift consular and legal resources to Texas. Non-Mexicans would be held in the Chicago area. Most migrant advocates oppose the plan, arguing that it would make it harder for migrants to have access to family members and legal counsel. The INS spends about $80 million a year to detain foreigners in the midwest, and wants to stop sending foreigners to local jails at a cost of $50 to $70 a day.

The number of asylum applications has been declining, from 154,464 in FY95 to 54,952 in FY98. The US detains about 40 percent of asylum applicants; the others are released or paroled to family and friends who promise to support them and guarantee that they will show up in court. About 10 percent of the 16,400 foreigners detained in the US are asylum applicants.

Deportation. The US Supreme Court ruled unanimously in May that foreigners who commit serious crimes in their countries of origin can be deported from the US, even if they face prosecution at home for the "serious nonpolitical crimes they committed" there. The court's opinion said that "Judicial deference to the executive branch is especially appropriate in the immigration context."

The ruling came in the case of a Guatemalan who entered the US illegally in 1993. When the INS tried to deport him, he sought asylum, saying that he would be persecuted for leading protesters who burned buses to protest high bus fares. The Board of Immigration Appeals upheld the deportation order, citing "serious nonpolitical crimes." In 1998, the 9th US Circuit Court of Appeals ordered the BIA to reconsider the case; the US Supreme Court reversed the 9th Circuit. For more information: http://supct.law.cornell.edu/supct/html/97-1754.ZS.html />
The 11th U.S. Circuit Court of Appeals in Atlanta in May 1999 ruled unanimously that aliens convicted of felonies have the right to appeal deportation orders through civil lawsuits (habeas corpus petitions) if their crimes occurred before the 1996 enactment of laws that ordered the immediate deportation of immigrants found to have committed an "aggravated felony" in the US:
http://www.law.emory.edu/11circuit/may99/97-5537.opn.html />
The Executive Office for Immigration Review, an agency of the Department of Justice that is separate from the INS, announced that 3,800 foreigners received suspension of deportation (also called cancellation of removal) between October and April 1999. Foreigners ordered deported can apply to remain if they have good moral character, meet residence requirements and prove that their removal would cause extreme and unusual hardship to a US citizen parent, spouse or child.

Naturalization. Under the terms of a settlement between the INS and immigrant advocates, the INS will review the cases of about 3,000 disabled immigrants applying for citizenship who were denied medical waivers that would excuse them from required English and other tests. The settlement came in a class-action suit filed in 1998 on behalf of elderly and disabled applicants.


Jo Ann Zuniga, "INS proposes changes in its detainee policy," Houston Chronicle, May 12, 1999. Jerry Bier, "Fresno jurists join legal push to free INS detainees," Fresno Bee, May 8, 1999. Daniel B. Wood, "The 'Path of Fire,'" Christian Science Monitor, May 4, 1999. "INS suspends hardship appeals of deportations," Miami Herald, May 4, 1999. Angres Viglucci, "Concessions by INS halt hunger strike," Miami Herald, May 4, 1999.