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To Some Immigrants, Justice More an Idea Than a Reality

Law: The executive branch's broad power to detain foreign nationals runs counter to the constitutional provision of due process.


WASHINGTON — American law regarding immigrants has something of a split personality.

On the one hand, the government has broad powers to arrest, detain and deport immigrants who violate the law. They are, after all, not citizens. They were admitted to the United States under certain conditions.

As the Immigration and Naturalization Service put it recently in announcing new regulations, "whether to detain an alien or to release an alien on bond is a matter entrusted to the attorney general's discretion."

On the other hand, the U.S. Constitution speaks of "persons," not just citizens.

The 5th Amendment says, "No person shall be . . . deprived of life, liberty or property without due process of law." Citing those words, the Supreme Court has said that immigrants, like citizens, are entitled to the basic rights of "due process of law" before they can be deprived of their "liberty."

This conflict between broad executive power and basic constitutional rights is at the heart of most legal disputes over immigrants. It has echoed in the current controversy over the more than 1,100 people detained in the wake of the Sept. 11 terrorist attacks.

Atty. Gen. John Ashcroft has invoked his authority to arrest immigrants who he believes may have some link to terrorists.

If those immigrants violated the terms of their visas, committed a criminal offense or posed a danger to national security, Ashcroft and the INS are empowered to hold them in custody.

But civil libertarians have stressed that the government must give these people due process of law. Typically, that means, at a minimum, a notice of the charges and a hearing in which to contest them.

In mid-September, days after the terrorist attacks, Ashcroft revoked the INS rule that said detainees were to be charged within 24 hours of being arrested. In its place, the government said it could hold people in custody for a "reasonable period of time."

This vague standard set off alarms among immigration lawyers. They feared that it would allow the government to round up immigrants and jail them--without even bothering to say why they were being held.

In his proposed anti-terrorism bill, Ashcroft also said outside judges should have no power to review the cases of these detained immigrants.

Congress rebuffed Ashcroft on both points. It said that the government must file charges against detained immigrants within seven days, and it empowered federal judges to hear claims from immigrants who say they are being held unfairly.

But civil libertarians were not celebrating. "We began with an awful piece of legislation, and we succeeded in eliminating some of the worst features," said Liz Vladeck of the Lawyers Committee for Human Rights. "But it still includes sweeping new detention powers" for the government, she said.

In practice, immigration hearings can be secretive, one-sided proceedings. The immigrants who are being held need not have a lawyer to represent them. In criminal cases, the government must provide a lawyer for the defendant, but immigration proceedings are considered civil actions.

Moreover, the government need not even disclose the information against an immigrant who is facing charges. Because terrorism cases may rely on secret intelligence information, the Justice Department has maintained that it can withhold the evidence that forms the basis of its charges.

While some judges have objected to this, the Supreme Court has yet to review the issue of secret information in immigration cases.

In general, the justices prefer to take a hands-off approach to immigration matters, unless the government goes too far.

In 1996, when anti-immigrant sentiment was strong, Congress required that noncitizens who commit crimes in the United States be deported. And to speed matters along, the law also said that the deportable immigrants may not appeal their cases before judges.

That went too far. The Supreme Court, in a 5-4 ruling, struck down that provision in June as violating the fundamental principles of Anglo-Saxon law.

"The writ of habeas corpus has always been available to review the legality of executive detention," wrote Justice John Paul Stevens. The government is free to set the rules for immigrants, he said, but the basic principle of due process cannot be waived.

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