[Ppnews] Supreme Court Rejects Mariel Cubans' Detention

[PPnews at freedomarchives.org]

One of the more amazing experiences for me was doing time with many of 
these Cubans. Many had families and connections in the u.s. and Cuba and 
couldn't  figure out any way to ever be released. Many had done close to 20 
years (more by now). They were "entitled" to hearings every 2 years in 
front of a special panel, but the panel had no intention of allowing most 
to "program out" so it was a farcical  formality. These indeterminate 
sentences effected people with either violating 'illegal entry' laws or 
those with minor felonies.
claude


Subject: Supreme Court Rejects Mariel Cubans' Detention [NYT 01/13/05]


http://www.nytimes.com/2005/01/13/politics/13immig.html

January 13, 2005
Supreme Court Rejects Mariel Cubans' Detention
By LINDA GREENHOUSE

WASHINGTON, Jan. 12 - The Supreme Court ruled on Wednesday that federal law
prohibits the open-ended detention of Cubans who entered the United States
during the Mariel boatlift in 1980 and who, despite crimes later committed
in the United States, cannot be deported because the Cuban government
refuses to take them back.

Voting 7 to 2, the court applied to the deportable group of Mariel Cubans
the same rights it found in federal law in a decision four years ago that
barred the indefinite detention of a stateless immigrant, lawfully admitted
to the United States, whose criminal record made him deportable but who had
no place to go.

The Bush administration had argued that the decision in the earlier case did
not apply to the Mariel group because, unlike the immigrant, Kestutis
Zadvydas, admitted as a refugee from post-World War II Europe, the Cubans
had never been granted formal admission to the United States. Instead, they
received a humanitarian parole, which the administration said did not
entitle them to the same protection when they violated the country's
hospitality by committing crimes.

But writing for the majority on Wednesday, Justice Antonin Scalia said that
because the immigration statute itself made no such distinction, the court
could not create one.

In Zadvydas v. Davis, the court held that because detention longer than six
months could raise serious constitutional problems, the statute should be
interpreted to avoid those problems by limiting detention of a deportable
alien who did not pose a risk to the community. Justice Scalia said the fact
that immigrants who had never been formally admitted into the country might
have a more tenuous constitutional claim did not change the analysis.

Addressing the government's argument, Justice Scalia said: "If we were, as
the government seems to believe, free to 'interpret' statutes as becoming
inoperative when they 'approach constitutional limits,' we would be able to
spare ourselves the necessity of ever finding a statute unconstitutional as
applied."

The decision, Clark v. Martinez. No. 03-878, applied to two cases of Cubans
found deportable. One, Sergio Suarez Martinez, convicted of burglary, theft
and assault, was taken into custody by immigration officials and ordered
removed from the country in January 2001. Eighteen months later, he filed a
habeas corpus petition based on the Zadvydas decision, which was granted by
a federal district court in Oregon in a decision that the United States
Court of Appeals for the Ninth Circuit, in San Francisco, affirmed. Another
federal appeals court, in Atlanta, reached the opposite conclusion in
denying release to Daniel Benitez, who had filed a habeas corpus petition
six months after he was detained and ordered deported for convictions for
assault and gun possession.

Some 125,000 Cubans entered the country during the Mariel incident. The
ruling on Wednesday will apply to as many as 1,000 who have been convicted
of crimes and are being held without a realistic prospect of repatriation.

The administration had also argued that a decision in the Cubans' favor
would raise national security concerns by making it more difficult to
control the country's borders. "If that is so, Congress can attend to it,"
Justice Scalia said in his opinion.

The two dissenters were Justice Clarence Thomas and Chief Justice William H.
Rehnquist, who said that the majority had mischaracterized the Zadvydas
decision as applying to the Mariel group. Justice Thomas, in a part of his
dissenting opinion that the chief justice did not join, said the Zadvydas
decision should be overruled.

The case had drawn considerable attention from international and human
rights groups. Deborah Pearlstein of the group Human Rights First, which had
filed a brief, praised the court for rejecting "one of the farther reaching
assertions of administrative power by the executive branch."

In another immigration decision on Wednesday, the court accepted the
administration's argument that the absence of a functioning central
government in Somalia did not prevent the deportation of Somalis to their
home country.

A Somali man, Kayse G. Jama, who entered the United States as a 17-year-old
refugee in 1996 and was later convicted of assault, argued that federal law
required the consent of the receiving country before deportation. He lost
his case in the United States Court of Appeals for the Eighth Circuit, in
St. Louis, while the Ninth Circuit in a separate case had issued an
injunction barring further deportations to Somalia.

The Supreme Court affirmed the Eighth Circuit's ruling by a 5-to-4 vote.
Justice Scalia wrote the majority opinion in Jama v. Immigration and Customs
Enforcement, No. 03-674. Justice David H. Souter wrote a dissenting opinion,
joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G.
Breyer.

The dispute on the court was over statutory interpretation. The question was
whether Congress, in a complex set of provisions dealing with deportation,
meant to require the receiving country's consent as a condition of
deportation for people in Mr. Jama's particular position. Some sections of
the law include such a provision, and the majority said that the court
should not find a "structural inference" that the requirement also applied
to Mr. Jama's category.

Copyright 2005 The New York Times Company

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