Justices Back Deportation of Somali

By Darryl Fears and Mary Beth Sheridan
Washington Post Staff Writers

The Supreme Court ruled yesterday that the government cannot continue to detain two Cuban illegal immigrants who have completed their sentences for felony convictions while it seeks to deport them back to a nation that refuses to accept them.

The court's 7 to 2 ruling could lead to the release of more than 700 Cuban nationals who are being held indefinitely, as well as of more than 170 immigrants from other nations around the world.

In a second immigration case, the court ruled 5 to 4 in favor of the government, determining that Department of Homeland Security officials can lawfully deport a Somali immigrant back to his native country even though it lacks a functioning government. The ruling could affect more than 4,000 Somalis around the country who are deportable.

The ruling in favor of Cubans Sergio Suarez Martinez and Daniel Benitez affirmed an earlier decision by the U.S. Court of Appeals for the 9th Circuit in San Francisco and reversed the 11th Circuit court in Atlanta, which had ruled against the men.

Martinez and Benitez came to the United States during the Mariel boatlift in 1980 and were eventually allowed to reside here. Both were later convicted of felonies, including armed robbery and burglary by Martinez and aggravated battery by Benitez. They served multi-year sentences before being processed for deportation by the Immigration and Naturalization Service, which was absorbed by the new Department of Homeland Security in 2003.

Writing for the majority, Justice Antonin Scalia noted that Martinez and Benitez were held beyond the 90 days allowed to process a typical deportee's removal, as well as the six months that the high court set in a prior immigration case, Zadvydas v. Davis, involving the removal of a convicted felon. In addition, Scalia wrote, a lower court had determined that deportation to Cuba is not reasonably foreseeable.

"The government [has] brought forward nothing to indicate that a substantial likelihood of removal subsists despite the passage of six months," Scalia concluded.

Manny Van Pelt, a spokesman for Homeland Security's Immigration and Customs Enforcement section, said authorities are still examining the rulings and how they might affect day-to-day operations.

"We're confident we will be able to continue our mission of restoring integrity to the nation's immigration system while complying with the high court's rulings," he said. He said the Benitez case could affect 747 Cubans who came in the Mariel boatlift and are still incarcerated in the United States, as well as 173 people from other countries who are still detained.

Anti-immigration groups condemned the court's decision in the case, saying that the justices are putting U.S. citizens in danger by allowing felons to be released into the general population.

"These are people who have no standing whatsoever to be inside the country at all," said Dan Stein, president of the Federation for American Immigration Reform. "These cases throw the control over repatriation of dangerous criminals to the country of origin. It gives the Castros of the world the opportunity to unload the really bad guys and stick it to us."

Immigration activists saw the ruling differently. "It is deeply unjust to leave people rotting indefinitely in prison long after they've finished paying their debt to society, simply because they are not citizens," said Susan Benesch, refugee advocate for Amnesty International USA. "Isn't it even more unfair to allow Castro to decide who is going to sit in prison for years at a time without any conviction?"

"The court's decision adds to a growing list of recent Supreme Court rulings affirming the rights of noncitizens and overturning the Bush administration's overreaching claims," added Lucas Guttentag, director of the American Civil Liberties Union's Immigrants' Rights Project. "These rulings underscore that checks and balances are essential to safeguarding both liberty and security."

In the case of the Somali, Jama v. Immigration and Customs Enforcement, the court decided against Keyse G. Jama, 25, a Minneapolis resident who lost his refugee status after pleading guilty to assault charges in 1999.

The U.S. government does not generally try to deport immigrants to countries that refuse to accept them because in most cases that would be literally impossible. However, the law is not clear on whether noncitizens can be sent back to countries without a government.

In Somalia there is no government to oppose deportation. In writing for the majority, Scalia concluded that the complex regulations governing deportation allow the United States to forcibly repatriate immigrants without their countries' acquiescence.

"To infer an absolute rule of acceptance where Congress has not clearly set it forth would run counter to our customary policy of deference to the president in matters of foreign affairs," he wrote.

Government attorneys had argued that curbing the government's ability to deport people to Somalia would be especially troubling because that African country has been linked to terrorism.

In the minority opinion, Justice David H. Souter argued that the regulations have previously been interpreted as requiring the receiving country to accept the deported immigrant.

The case has implications that go far beyond a single immigrant in Minneapolis. A class-action lawsuit on behalf of 4,000 Somalis that originated in Seattle is pending in an appellate court. It argues that they cannot be sent home without that nation's permission. Two years ago, a Seattle judge in that case issued an injunction halting the deportation. The U.S. government can now seek to have the injunction lifted.

"It would be our sincere hope that Homeland Security doesn't proceed to remove people to Somalia under the current conditions there," said Nick Gellert, a Seattle lawyer who represents the Somali nationals. "It's not just a matter of legal principle. It's a matter of humanitarian issues."

The Somalis face deportation because they are in the country illegally or are legal residents but have been convicted of a crime.

Yusuf Ahmed, a local Somali leader, said the decision would be disturbing to thousands of Somalis in the Washington area.

"There is no government back home. The refugees who come here run for their lives. I'm sure that when they go back, they will be facing harsh situations of killing, raping or bad things," he said.

© 2005