Immigration

• Author: International Law Group

The following case addresses the problem of criminal aliens (including "permanent residents" of the U.S.) who have been detained by the Immigration and Naturalization Service (INS) but cannot be repatriated, thus resulting in their perpetual detention. Petitioner Kim Ho Ma came from his native Cambodia to the U.S. as a refugee at the age of two. He became a permanent resident (that is, he received a "green card") at age six. Unfortunately, he had bad company, got involved in a gang shooting, and was convicted of manslaughter at age 17.

After completing his prison sentence, the INS ordered him removed (previously called "deported") from the U.S. and took him into custody. Cambodia does not have a repatriation agreement with the U.S. and refused to take him back.

Ma filed a petition for habeas corpus. More than 100 similarly situated petitioners filed in the same court. Similar cases have arisen in Nevada and other California districts.

The district court held that Ma's continued detention violates his substantive due process rights under the Fifth Amendment. The INS appeals the court's decision to grant habeas corpus and release Ma from custody.

The issue in this case is whether, in light of the absence of such a repatriation agreement, the Attorney General has the authority to hold Ma in detention indefinitely.

The U.S. Court of Appeals for the Ninth Circuit affirms the district court, but on a different basis. The Court finds that the INS lacks authority under the immigration laws, and particularly 8 U.S.C. Section 1231(a)(6), to detain an alien who has entered the U.S. for more than a reasonable time beyond the normal 90 day statutory period authorized for removal. Section 1231(a)(6) allows the INS to detain aliens with criminal convictions "beyond" 90 days but is silent as to how long such detention is authorized.

"[W]e construe the statute as providing the INS with authority to detain aliens only for a reasonable time beyond the statutory removal period. In cases in which the alien has already entered the United States and there is no reasonable likelihood that a foreign government will accept the...