Monday, Nov. 8, 1999 | 11:52 a.m.
CARSON CITY -- In what is called a first in Nevada, the five federal district judges assigned to Nevada met to decide whether criminal aliens who have been ordered deported by the government can be kept indefinitely in jail if their native country refuses to accept them.
"This is a historic event for the court," U.S. District Judge Howard McKibben, the state's senior federal judge, said. "It is the first time in memory we have convened en banc."
After the 90-minute hearing Friday in federal court in Reno, McKibben said the judges would decided later whether to issue a joint decision or each write a single ruling on the cases assigned to them.
In Las Vegas more than 100 aliens are held in jail because their home countries, such as Vietnam, Cambodia and Cuba, would not re-admit them, says Ruben A. Villalobos, a research specialist with the office of the Federal Public Defender. There may be as many as 3,000 to 3,500 nationwide.
Such aliens have been admitted to the United States, committed a crime and served their sentence. The U.S. Immigration and Naturalization Service wants to deport them on grounds they are a danger to society or a flight risk. But some of them have been in jail up to two years solely because their native country won't take them back.
One key issue is the aliens' constitutional rights. Francis W. Fraser, an attorney for the U.S. Justice Department, argued that once these people are ordered deported, they lose their constitutional right to liberty. "They have no right to be free," he told the judges.
"It's a harsh result, but it's a result of being a criminal alien," he said.
Daniel Broderick, chief assistant federal public defender for the Eastern District of California, disagreed. When aliens are accepted into the United States, he said, "they become constitutional persons. That doesn't go away when they are ordered deported."
Broderick said he understands that some of these ex-cons may be considered dangerous to the public. "But we don't detain people because the government thinks they are dangerous. We don't do that in this country."
Fraser said such aliens have been paroled to the custody of the immigration service, which reviews whether the individual is still a threat to society. He said the aliens, to be released from detention, must acknowledge their crime, show remorse, demonstrate family support and have a place to live and a job opportunity.
If aliens want to challenge the findings of a hearing officer that they must continue in jail indefinitely until their country takes them, they can appeal to the Board of Immigration Appeals.
Judge Johnnie Rawlinson of Las Vegas questioned how long is indefinitely.
Fraser said in the case of Vietnam, there have been efforts to draft a repatriation agreement, which is "difficult and sensitive. I don't know when there will be a result."
McKibben asked Fraser what other rights aliens lose when they are ordered deported. Fraser said he couldn't answer that.
McKibben, Rawlinson and Judges Philip Pro and Lloyd George, both of Las Vegas, peppered both sides with questions about prior decisions by courts in other states. And the judges, including David Hagen of Reno, gave no indication how they were leaning.
They allowed seven days for additional briefs to discuss cases from other jurisdictions.
Five federal judges in Seattle have ruled that indefinite detainment is unconstitutional.
Broderick argued the Nevada judges are bound by rulings of the U.S. Ninth Circuit Court of Appeals decisions on three cases in the 1920s, '30s and '40s. These involved immigrants from Europe, including Nazi Germany. Immigration tried to deport them, but the countries didn't want them or the countries were overrun by Germany. In those cases, the appeals court ruled, they could not be detained indefinitely.
"Admitted aliens have substantial due process rights once they develop ties to this country," Broderick said. "Those rights don't get taken away."
"You're telling us there is no remedy except release them?" George asked Broderick. "Yes." Broderick replied. "The INS does not have the constitutional authority to detain these aliens off the street."
State authorities, Broderick said, have decided these individuals are fit to return to society. The prisoners have gone through such programs as education and Alcoholic Anonymous, have admitted their crimes and shown remorse.
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