WASHINGTON, April 29 (UPI) -- A divided Supreme Court ruled Tuesday that the federal courts may constitutionally review the detention of criminal aliens being held without bail, despite a federal law that says they cannot.
But the ruling concedes that Congress may make laws for aliens that would be "unacceptable if applied to U.S. citizens."
Holding criminal aliens without bond pending "removal" or deportation hearings is constitutional, the majority said.
The ruling will be studied by the lower courts, immigration attorneys and the Justice Department to see how it affects different aspects of the government's current push to deport or detain aliens believed to be a terrorism risk.
Federal law says that the attorney general's designation that a criminal alien should be deported "shall not be subject to review," and, "No court may set aside any action or decision by the attorney general under this section regarding the detention or release of any alien."
The Supreme Court majority Tuesday said this still does not prevent federal judges from conducting a constitutional review of aliens' cases, even those criminal aliens being held without bond prior to deportation hearings.
The court majority said if Congress wants to keep the U.S. courts from conducting a constitutional review, it must say so more clearly.
Writing for the majority, Chief Justice William Rehnquist said though federal courts retained constitutional jurisdiction, the mere fact that an alien is held without bond pending removal proceedings is constitutional, and just makes common sense.
Congress enacted the current immigration law "against a backdrop of wholesale failure by the INS (Immigration and Naturalization Service) to deal with increasing rates of criminal activity by aliens," Rehnquist said.
One out of five criminal aliens released on bond prior to removal hearings fled, he added, before the law was changed.
The case which brought Tuesday's ruling involves Hyung Joon Kim, who was born in Korea and came to the United States when he was six. He became a lawful permanent alien two years later.
In 1986, at age 18, he was convicted of first degree burglary in California state court. In August 1997, he was convicted in state court of petty theft with priors, and was sentenced to three years in prison.
The day he got out of prison, the INS detained him on the grounds that his second conviction was an "aggravated felony."
Under U.S. law, resident aliens convicted of an "aggravated felony" are deportable.
After three months in INS custody, Kim filed a petition in U.S. court, saying the no-bail provision of federal law for detainees like him violated the due process, or fair hearing, guarantees of the Fifth Amendment.
A federal judge held the no-bail provision unconstitutional on its face and ordered the INS to hold a bail hearing on whether Kim was dangerous or a flight risk.
Instead of a hearing, the INS released Kim on $5,000 bond, and he has been free while the case works it way through the courts.
Eventually, a federal appeals court ruled that the no-bail provision was unconstitutional as it applied to resident aliens, as opposed to illegal aliens.
The Justice Department then asked the Supreme Court for review, saying the appeals court erroneously substituted its judgment for the judgment of Congress when dealing with deportable aliens.
Tuesday, the opinion by the Supreme Court majority reversed the court of appeals on the outcome of Kim's case.
Justice Sandra Day O'Connor, joined by Justices Antonin Scalia and Clarence Thomas, agreed with the majority on the disposition of Kim's case, but dissented in regard to federal jurisdiction over criminal alien removal hearings.
There is no such jurisdiction, O'Connor argued.
Current federal law "unequivocally deprives federal courts of jurisdiction to set aside 'any action or decision' by the attorney general in detaining criminal aliens ... while removal proceedings are ongoing," she said.
Justice David Souter, joined by Justices John Paul Stevens and Ruth Bader Ginsburg, agreed with the majority on the question of jurisdiction but dissented on the outcome of Kim's case.
The majority's "holding that the Constitution permits the government to lock up a lawful permanent resident of this country when there is concededly no reason to do so forgets over a century of precedent acknowledging the rights of permanent residents," Souter said, "including the basic liberty from physical confinement lying at the heart of due process."
(No. 01-1491, Director Demore vs. Kim)
