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<font size=3>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.<br>
claude <br><br>
<br>
Subject: Supreme Court Rejects Mariel Cubans' Detention [NYT
01/13/05]<br><br>
<br>
<a href="http://www.nytimes.com/2005/01/13/politics/13immig.html" eudora="autourl">http://www.nytimes.com/2005/01/13/politics/13immig.html<br><br>
</a>January 13, 2005<br>
Supreme Court Rejects Mariel Cubans' Detention<br>
By LINDA GREENHOUSE<br><br>
WASHINGTON, Jan. 12 - The Supreme Court ruled on Wednesday that federal
law<br>
prohibits the open-ended detention of Cubans who entered the United
States<br>
during the Mariel boatlift in 1980 and who, despite crimes later
committed<br>
in the United States, cannot be deported because the Cuban
government<br>
refuses to take them back.<br><br>
Voting 7 to 2, the court applied to the deportable group of Mariel
Cubans<br>
the same rights it found in federal law in a decision four years ago
that<br>
barred the indefinite detention of a stateless immigrant, lawfully
admitted<br>
to the United States, whose criminal record made him deportable but who
had<br>
no place to go.<br><br>
The Bush administration had argued that the decision in the earlier case
did<br>
not apply to the Mariel group because, unlike the immigrant,
Kestutis<br>
Zadvydas, admitted as a refugee from post-World War II Europe, the
Cubans<br>
had never been granted formal admission to the United States. Instead,
they<br>
received a humanitarian parole, which the administration said did
not<br>
entitle them to the same protection when they violated the
country's<br>
hospitality by committing crimes.<br><br>
But writing for the majority on Wednesday, Justice Antonin Scalia said
that<br>
because the immigration statute itself made no such distinction, the
court<br>
could not create one.<br><br>
In Zadvydas v. Davis, the court held that because detention longer than
six<br>
months could raise serious constitutional problems, the statute should
be<br>
interpreted to avoid those problems by limiting detention of a
deportable<br>
alien who did not pose a risk to the community. Justice Scalia said the
fact<br>
that immigrants who had never been formally admitted into the country
might<br>
have a more tenuous constitutional claim did not change the
analysis.<br><br>
Addressing the government's argument, Justice Scalia said: "If we
were, as<br>
the government seems to believe, free to 'interpret' statutes as
becoming<br>
inoperative when they 'approach constitutional limits,' we would be able
to<br>
spare ourselves the necessity of ever finding a statute unconstitutional
as<br>
applied."<br><br>
The decision, Clark v. Martinez. No. 03-878, applied to two cases of
Cubans<br>
found deportable. One, Sergio Suarez Martinez, convicted of burglary,
theft<br>
and assault, was taken into custody by immigration officials and
ordered<br>
removed from the country in January 2001. Eighteen months later, he filed
a<br>
habeas corpus petition based on the Zadvydas decision, which was granted
by<br>
a federal district court in Oregon in a decision that the United
States<br>
Court of Appeals for the Ninth Circuit, in San Francisco, affirmed.
Another<br>
federal appeals court, in Atlanta, reached the opposite conclusion
in<br>
denying release to Daniel Benitez, who had filed a habeas corpus
petition<br>
six months after he was detained and ordered deported for convictions
for<br>
assault and gun possession.<br><br>
Some 125,000 Cubans entered the country during the Mariel incident.
The<br>
ruling on Wednesday will apply to as many as 1,000 who have been
convicted<br>
of crimes and are being held without a realistic prospect of
repatriation.<br><br>
The administration had also argued that a decision in the Cubans'
favor<br>
would raise national security concerns by making it more difficult
to<br>
control the country's borders. "If that is so, Congress can attend
to it,"<br>
Justice Scalia said in his opinion.<br><br>
The two dissenters were Justice Clarence Thomas and Chief Justice William
H.<br>
Rehnquist, who said that the majority had mischaracterized the
Zadvydas<br>
decision as applying to the Mariel group. Justice Thomas, in a part of
his<br>
dissenting opinion that the chief justice did not join, said the
Zadvydas<br>
decision should be overruled.<br><br>
The case had drawn considerable attention from international and
human<br>
rights groups. Deborah Pearlstein of the group Human Rights First, which
had<br>
filed a brief, praised the court for rejecting "one of the farther
reaching<br>
assertions of administrative power by the executive
branch."<br><br>
In another immigration decision on Wednesday, the court accepted
the<br>
administration's argument that the absence of a functioning central<br>
government in Somalia did not prevent the deportation of Somalis to
their<br>
home country.<br><br>
A Somali man, Kayse G. Jama, who entered the United States as a
17-year-old<br>
refugee in 1996 and was later convicted of assault, argued that federal
law<br>
required the consent of the receiving country before deportation. He
lost<br>
his case in the United States Court of Appeals for the Eighth Circuit,
in<br>
St. Louis, while the Ninth Circuit in a separate case had issued an<br>
injunction barring further deportations to Somalia.<br><br>
The Supreme Court affirmed the Eighth Circuit's ruling by a 5-to-4
vote.<br>
Justice Scalia wrote the majority opinion in Jama v. Immigration and
Customs<br>
Enforcement, No. 03-674. Justice David H. Souter wrote a dissenting
opinion,<br>
joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen
G.<br>
Breyer.<br><br>
The dispute on the court was over statutory interpretation. The question
was<br>
whether Congress, in a complex set of provisions dealing with
deportation,<br>
meant to require the receiving country's consent as a condition of<br>
deportation for people in Mr. Jama's particular position. Some sections
of<br>
the law include such a provision, and the majority said that the
court<br>
should not find a "structural inference" that the requirement
also applied<br>
to Mr. Jama's category.<br><br>
Copyright 2005 The New York Times Company<br>
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