Thursday, January 10, 2002
Ninth Circuit Strikes Down Ban on Bail for Deportable Aliens
By KENNETH OFGANG, Staff Writer/Appellate Courts
A provision of the 1996 immigration law eliminating bail for aliens awaiting deportation following conviction of an aggravated felony is unconstitutional, at least as applied to a permanent resident alien, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court affirmed U.S. District Judge Susan Y. Ilston’s ruling requiring the Immigration and Naturalization service to consider setting bail for Hyung Joon Kim, a Korean national convicted of recidivist petty theft. The INS complied with Ilston’s ruling in August 1999 by setting bail at $5,000, allowing Kim to be released pending a removal hearing scheduled for March of this year.
Kim has lived in the United States since 1984, when he was six years old, and has been a permanent resident since 1986. He was convicted of burglary in a California state court in 1996 and convicted of the theft charge the following year—resulting in a three-year prison term.
He was taken into INS custody a day after his release from prison, on the ground that the theft qualified as an aggravated felony under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. After being held without bail for more than three months, he brought a habeas corpus petition in the U.S. District Court for the Northern District of California.
The INS argued that given the virtually mandatory nature of deportation following conviction of an aggravated felony, aliens in that category represent an inherent flight risk and a danger to public safety.
Ilston rejected the contention, holding that 8 U.S.C. § 1226(c)—which permits bail only when the alien is a government witness or is participating in a government investigation—violates Fifth Amendment due process and is invalid on its face.
Deportable aliens who do not fall under that section are eligible for bail if a final order of removal has not been made by the INS, or if the final order is more than 90 days old.
Judge William Fletcher, writing yesterday for the Ninth Circuit, said the judge went too far in holding Sec. 1226(c) facially unconstitutional. There may be circumstances in which a no-bail hold is appropriate, even when the alien is not a flight risk or a danger to the community, the judge said.
Fletcher concluded, however, that when the alien is a permanent resident, due process requires that the INS consider bail on an individualized basis. Bail can still be denied, the judge noted, if there are facts showing that the alien is likely to flee or to endanger public safety.
Permanent resident aliens, the judge reasoned, have interests worthy of constitutional protection. Over 70 percent of them have family members in the country, he noted.
“The alien is facing the prospect of long-term separation, and if the no-bail provision is valid he or she will be unable to see his or her son, daughter, husband, wife, father, or mother except in detention facilities during the pendency of the removal proceedings,” the judge wrote.
Fletcher acknowledged a split among the circuits, with the Third Circuit having ruled last month that the section was unconstitutional but the Seventh Circuit having upheld the law earlier.
But the Seventh Circuit ruling predated a pair of U.S. Supreme Court decisions favoring aliens challenging deportation, the judge noted.
The case is Kim v. Ziglar, 99-17373.
Copyright 2002, Metropolitan News Company