When We Cannot Deport, Is It Fair to Detain?: An Analysis of the Rights of Deportable Aliens Under 8 U.S.C 1231(a)(6) and the 1999 INS Interim Procedures Governing Detention

I. INTRODUCTION As one author wrote, "America has been a nation of immigrants from the start."1 Indeed, for many years in its early history and still today, "[t]he United States [has been] a strong magnet for immigrants, offering them chances to take up farms in the country or jobs in the cities."2 In fact, between the years of 1820 and 1990, the Immigration and Naturalization Service ("INS") recorded the entry of more than one hundred and twelve million immigrants into the United States.3 Though many of these aliens welcomed to the United States gain citizenship and live productive lives after their arrival, some do not. One individual who has not led a productive life since coming to the United States is Kestutis Zadvydas. Zadvydas, an immigrant from Germany, came to the United States in 1956, at the age of eight, and shortly thereafter began building an extensive criminal record.4 During his first twenty years in the United States, Zadvydas was convicted of two serious offenses-attempted robbery and attempted burglary-as well as a number of less serious offenses.5 Based on these two convictions, the INS initiated deportation proceedings in 1977, but shortly before he was to appear in front of an immigration judge in 1982, Zadvydas disappeared.6 For the next five years, the INS was unable to find him. Then, in 1987, he was arrested in Virginia for possession of cocaine with intent to distribute but went into hiding again after jumping bail.7 It was not until 1992, when Zadvydas voluntarily turned himself over to authorities in Texas, then the INS was able to discover his whereabouts and take him into custody.8 He was tried and convicted on the 1987 narcotics distribution charge and was sentenced to sixteen years in prison with six years suspended; Zadvydas served two years before he was released on parole.9 Shortly after his release, the INS took him into custody and reinitiated deportation proceedings. In March of 1994, an immigration judge, based on Zadvydas' history of flight, ordered that he be detained without bond during deportation proceedings.10 He has been in INS custody since that time and for the past six years has been awaiting deportation.11 In many cases, the deportation of aliens is effected within a short period of time-most aliens are deported within just a few months of the entry of a final deportation order. However, not all aliens are easily deported. One such alien is Zadvydas, who, due to circumstances clearly beyond his control, is essentially "stateless" and thus has no country to which he can be deported.12 Another is Kim Ho Ma, "who left his native land, Cambodia, as a refugee at the age of two and has resided in the United States as a legal permanent resident since he was six."13 In 1997, as a result of his participation in a gangrelated shooting and a subsequent conviction for manslaughter, the INS began deportation proceedings against Ma. However, because the United States has no repatriation agreement with Cambodia, Ma is also undeportable.14 A number of other countries, such as Laos and Vietnam, also have no signed repatriation agreements with the United States; so aliens arriving from those countries similarly cannot be deported.15 The problem that arises in situations such as Ma's and Zadvydas's involves a decision of what to do with these unwanted yet undeportable aliens. Because the United States has no repatriation agreement with their respective nations, deportation is highly unlikely. Yet many of these aliens have extensive criminal records and are considered either dangers to the community, high risks of flight-meaning it is unlikely that, if ordered deported and then released, they will voluntarily stay in contact with the INS until deportation is made possible-or both.16 To protect the public from potential recidivism or, in the alternative, to make sure the alien ordered deported does not abscond, those aliens ordered deported who are found to be dangerous or flight risks are physically detained by the INS in local, state, or federal prisons. …