Alien detainees lose bid for freedom as judges back INS

RENO -- More than 90 aliens being held in Las Vegas jails lost their bid for freedom Thursday when Nevada's five federal judges decided their rights have not been violated by the Immigration and Naturalization Service.

U.S. Public Defender Franny Forsman said she was "horribly, horribly disappointed" by the judges' decision.

"I'm sorry our judges could not see that keeping people in jail for years or even for life with no charges pending against them is unconscionable," Forsman said. "The 9th Circuit Court of Appeals has this issue before them and we will be appealing. We are not going to stop."

For months, the U.S. public defender's office in Las Vegas has been fighting for the freedom of aliens who have been ordered deported but whose native countries won't accept them back.

The individuals came from Vietnam, Cambodia, Laos and Cuba and were all ordered removed to their native countries because they were convicted of deportable offenses. They have been held in federal custody, even though they have completed their sentences for their criminal acts.

Before 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, people who could not be deported within six months were released. The 1996 act, however, made it possible for the INS to hold aliens indefinitely. It also expanded the types of crimes aliens could be deported for, including some misdemeanors. Moreover, they made the act retroactive, meaning people who committed crimes decades ago and have long since served their punishment could be deported.

Critics of the law point out that the Fifth Amendment to the Constitution protects people from the deprivation of life, liberty or property without due process of law.

But Thursday, in their first-ever joint order, U.S. District Judges Howard McKibben, Lloyd George, David Hagen, Philip Pro and Johnnie Rawlinson wrote that the aliens had no "protected liberty interest" that would stop the federal government from keeping them in jail until their country accepted them.

The judges also wrote, "It is the duty of the Immigration and Naturalization Service to remove petitioners. Until they can do that, it is also their duty to keep petitioners from fleeing or endangering the community."

The judges said the resident aliens -- some have been in jail for two years -- have the opportunity to ask the federal agency periodically for a review of their cases.

"The alien's criminal record does not create a presumption against release," the judges said. "If the decision is to continue detention, the alien is entitled to receive a written statement of reasons for the decision."

There is a semi-annual review or sooner if requested by the individual. And all of the aliens, the court said, have followed this process. If the federal agency does not follow this procedure, the aliens can file a new suit to pursue their case.

According to the INS, there are more than 3,500 so-called "indefinite detainees" in the United States. Defense attorneys all over the nation have taken up their cause with mixed results.

Forsman pointed out that federal judges in Arizona, the Western District of Washington and the Eastern District of California have ruled on behalf of the aliens. Because the government appealed the decisions, however, the 9th U.S. Circuit Court of Appeals is now considering those cases.

The 5th U.S. Circuit Court of Appeals ruled on behalf of the government, and that ruling was cited in the judges' ruling, Forsman said.

Thinh Adrong is one of the aliens Forsman and her staff is fighting for. The 43-year-old electronics technician was convicted of assaulting his wife in California and spent four years in prison after violating his probation by using drugs. Now, eight years after he was convicted, the INS wants to deport him. He is being held in the Las Vegas Detention Center.

In a September interview, Adrong said he doesn't believe his crimes warrant deportation, let alone indefinite jail time.

"I think about losing my children and my family. To never see them again, maybe dying would be a better feeling," Adrong said.

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