What A Surprise: Foreigners Have Rights

by Steve Chapman

You might think that should be obvious, but it's not -- at least not when we're talking about immigrants, a group that includes Ma. Born in Cambodia in 1977, he came to this country as a child and has lived here since as a legal resident alien. But when he was 17, he played a role in a gang-related shooting and went to prison for two years for manslaughter. He served his time -- only to discover that his problems were just beginning.

As a non-citizen, Ma's crime made him subject to deportation. But his native country wouldn't take him back. So what to do with him? Under a 1996 law, the Immigration and Naturalization Service had a simple solution: keep Ma behind bars, based on its belief that he might commit new crimes or flee.

In this upside-down case, the government didn't have to show that he was a risk -- the burden fell on him to prove he wasn't. If he couldn't do so, Ma could be locked up for as long as the government chose, which might have been forever.

But Thursday, the Supreme Court said even non-citizens who have committed crimes are entitled to basic rights, including the right not to be jailed for years on end without a trial. In these circumstances, wrote Justice Stephen Breyer, "an indefinite, perhaps permanent, deprivation of liberty" would be unconstitutional. If the INS can't find a way to deport Ma, it has to let him go.

His case was the week's second victory for non-citizens living in this country. The first also came in the Supreme Court, which said Monday that the government can't deport an immigrant convicted of a crime without granting him the right to a court hearing. The 1996 law decreed that "no court shall have jurisdiction to review any final order of removal." The INS would have the first, last and only word.

The right to a hearing is especially important for Enrico St. Cyr, the Haitian immigrant who brought this case, because the INS pursued him under a law enacted after he committed the drug offense that made him deportable. The Clinton and Bush administrations both claimed they could apply the law retroactively to banish a legal immigrant, forever, without any review by the federal courts. The Supreme Court disagreed on both counts.

The rulings were a welcome affirmation of the principle that in this country, no one is beneath the protection of the law. The U.S. Constitution has a novel feature: It guarantees the rights of people, not just of citizens. Even the lowliest illegal immigrant possesses certain liberties that the government must respect.

But a wave of anti-immigrant fervor swept over Washington back in 1996, and Congress and President Clinton agreed we were being far too hospitable.

Non-citizens convicted of serious crimes had always been subject to removal, but the new law greatly expanded the list of deportable offenses -- including some non-felonies for which the offender served no jail time. Foreigners arriving here seeking political asylum because they feared persecution could be turned down on the spot, and sent home, by low-level immigration agents. Legal residents who long ago paid their debt for minor violations of the law could be put on a plane for a country they left decades ago, or jailed permanently.

The old law tempered justice with mercy. It let non-citizens convicted of deportable crimes apply for a waiver, and many of them with extensive family ties or otherwise good records of behavior were allowed to stay. But the new law has no place for such sentimental considerations.

Much of the damage caused by these policies hasn't been undone -- and much of it can't be undone. Ma spent two years in INS custody before an appeals court finally freed him. In 1997, Gerardo Antonio Mosquera was sent back to Colombia, a country he left as a child, because of a 1989 conviction for selling $10 worth of marijuana to a police informant. Left behind were his wife and three children, all born in the U.S. Soon after, his 17-year-old son, depressed over Mosquera's absence, killed himself.

The Supreme Court has cut back some of the worst features of the 1996 legislation, but there are plenty of bad elements in operation. Minor offenses still mandate automatic expulsion. Secret evidence can still be used to deport non-citizens the government says are dangerous. Foreigners fleeing persecution and death may still be turned away at the border without a court hearing.

In 1996, Americans abandoned some of their more sensible, humane impulses toward foreigners. It may be that last week, we started to reclaim them.