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More can be held { April 25 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A34890-2003Apr24.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A34890-2003Apr24.html
More Illegal Immigrants Can Be Held
Ashcroft's Ruling Cites National Security Issues
By George Lardner Jr.
Washington Post Staff Writer
Friday, April 25, 2003; Page A06
Broad categories of foreigners who arrive in this country illegally can be detained indefinitely without consideration of their individual circumstances if immigration officials say their release would endanger national security, according to a ruling by Attorney General John D. Ashcroft.
Ashcroft released the far-reaching decision yesterday in denying bond to an 18-year-old Haitian, David Joseph, who scrambled ashore at Key Biscayne, Fla., on Oct. 29 with more than 200 other refugees. Immigration judges had approved the release of about 100 of them.
The order means that groups of asylum seekers and other aliens -- in this instance Haitians -- can be locked up without hearings and without recourse to release on bond. Ashcroft rejected claims that denying them bail on broad national security grounds would violate their due process rights. He said it was not clear they had any such rights.
Until now, the government has jailed individuals or groups seeking asylum for long periods, but has not asserted the right to indefinitely detain whole classes of illegal immigrants as security risks.
In overruling an appellate panel of immigration judges, the attorney general said his decision was based on the danger that the release of Joseph and other Oct. 29 immigrants "would tend to encourage further surges of mass migration from Haiti by sea, with attendant strains on national and homeland security resources."
Ashcroft said such migrations have "heavily taxed Coast Guard capacity and capabilities," limiting its responsiveness in other mission areas."
He also invoked the Sept. 11, 2001, terrorist attacks, saying they had increased the necessity of preventing undocumented aliens from entering the United States "without the screening of the immigration inspections process."
Immigration advocates denounced the 19-page ruling as a huge stretch of the national security concept and a waste of the federal money that indefinite detentions would consume. Dated April 17, it overturned a decision of the Board of Immigration Appeals (BIA), which held last month that Joseph should be released to an uncle in this country on $2,500 bond because he did not pose either a danger to the community or a flight risk.
Homeland Security officials, who took over administration and enforcement of immigration law after the breakup of the Immigration and Naturalization Service, appealed that decision to Ashcroft. He pointed out that he retains his authority over "questions of law arising under those statutes."
A Justice Department spokesman said the decision "will serve as a binding precedent on BIA judges for other cases where national security interests are presented by the Department of Homeland Security."
"You would think the attorney general would have better things to do these days than target an innocent Haitian asylum seeker," said Cheryl Little, executive director of the Florida Immigrant Advocacy Center, which represented Joseph. "It is such a waste of precious resources."
She said detentions of an earlier boatload of Haitians, most now deported, had cost the government $12.5 million over a six-month period.
Eleanor Acer, director of the asylum program at the Lawyers Committee for Human Rights, called the decision "deeply disturbing" because it invoked national security to deprive "large numbers of asylum seekers of the chance to prove to an immigration judge that they, in their individual cases, present no risk to national security and merit release on bond."
She said the ruling affects not only asylum seekers, but also those others who might be picked up in this country as undocumented aliens, on a workplace raid, for example.
Ashcroft said his decision was "fortified by the State Department's assertion" that it has observed an increase in immigrants from countries, such as Pakistan, using Haiti as a staging point for entry into the United States.
He said the national security interests he was invoking were directed "at unlawful and dangerous mass migrations by sea, not the right to seek asylum."
In its March 13 ruling in Joseph's favor, the Board of Immigration Appeals said the likelihood of continued migrations from Haiti had been undercut by a new INS regulation adopted in November. It had no effect on Joseph, but it said that those who enter the country as he did, without being legally admitted, could be detained indefinitely and would no longer be able to have their cases heard by an immigration judge or the board.
"This largely addresses the . . .concern that granting of bond in this case will encourage other aliens to travel to the United States, under the assumption that they, too, will be granted release," the board said.
Ashcroft, however, said that while this new policy might reduce the number of Haitians being released on bond, "it hardly provides airtight assurance against future successful entries by such migrants through legal and extra-legal maneuvers." He said it also left the door open to release not only of Joseph, but also "hundreds of others" from the Oct. 29 boatload.
The attorney general also disputed the finding that Joseph, who is being held at the Krome Service Processing Center southwest of Miami, was not a flight risk. He said Joseph tried to evade capture after landing here and has since been denied his request for asylum.
Joseph is appealing that decision, but Little said that is probably his last hope of avoiding deportation.
"Since September 11th," she said, "it has been very difficult to challenge decisions like this that were allegedly made in the interests of national security." For instance, she said, when her center filed suit in Miami to contest the detention of a boatload of Haitians who had arrived in December 2001, "the judge dismissed the case without even holding an evidentiary hearing, and basically said it was up to the politicians in Washington, not the court, to make the decision."
Ashcroft ordered Joseph detained "pending decision on removal." As attorney general, he said, he has the broad authority to detain Joseph and deny him bond "based on any reasonable consideration, individualized or general."
"The authority to expel aliens," he added, "is meaningless without the authority to detain those who pose a danger or a flight risk."
© 2003 The Washington Post Company
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