Court Rules Against Deportation Hold
By Perla Ni

Immigrants facing deportation cannot automatically be held until officials make up their mind, a federal district court in San Francisco ruled last week.

“This decision calls into serious question the constitutionality of thousands of aliens currently being held by the INS without bond as they challenge their removal,” said attorney Frank Tse of the Asian Law Caucus, which filed suit in January on behalf of a Vietnamese immigrant couple facing deportation over a welfare-fraud conviction.

“We hope that Congress will recognize the inhumanity and pointlessness of detaining individuals who are not a danger or a flight risk,” stated ACLU attorney Kathryne Palamountain, who filed an amicus brief on behalf of Uong Ly and her husband, Nhoc Dahn.

On May 28, a three-judge panel said noncitizens were still entitled to individualized bond hearings. The decision dents a law that went into effect last October requiring that noncitizens be detained during deportation proceedings, regardless of their risk of flight of danger to the public.

As a result of the decision, the Dahns walked out of jail June 2, almost six months after they were detained by the INS.

“They felt helpless and frustrated,” said their second eldest son, Tha Dahn, 20. “There was no point in keeping them in custody.”

While Ly and Dahn still face deportation as a result of a felony criminal conviction last year, they no longer face extended detention during the deportation process. After they got their bond hearing, the immigration judge released the Dahns without requiring any bond. “He found that they are not likely to flee the jurisdiction, no violent history, so they didn’t even have to post any bond,” Tse said.

According to February estimates, more than 16,000 aliens are in INS custody—90 percent of which were subject to deportation because of felony criminal convictions. In Northern California, one-third to one-half of the detainees are of Asian descent, Tse said.

The Dahns’ first-known brush with U.S. law came in 1997, when welfare officials suspected that the family of nine was underrepresenting its assets. Under the advice of their public defender in December 1998, the couple pleaded no contest to felony perjury charges. Under a plea bargain, they were sentenced in Martinez, Calif., to two years of probation and restitution.

Ly, a 54-year-old housewife, and Dahn, a 55-year-old auto mechanic, say they didn’t know that permanent residents with felony convictions run the risk of being deported; they have had “green-card” status in the United States for 15 years. Of their seven children, ranging from 8 to 22 years old, four are citizens.

“They were misinformed by the public defender because he didn’t understand much about immigration law, and he admitted that he had misinformed them. They were unaware they could be deported,” said Tha Dahn.

“A lot of attorneys go by the sentence ... if no actual jail time, then they are safe.”

But two weeks later, INS agents came to the family’s house in the East Bay, arrested the couple and began deportation proceedings.

The Dahns, who had no other criminal record, were taken into custody. While Ly was jailed in Oakland, Dahn was sent to a jail in Yuba County, north of Sacramento—more than three hours away from their children, who were allowed to visit their parents once a week. The eldest son dropped out of San Jose State University to take guardianship of his five minor siblings.

The decision not to detain the Dahns follows similar decisions in Oregon and Colorado. Lawyers for the plaintiff hope that the ruling will spur other INS detainees to challenge the constitutionality of the federal law. The ruling does not overturn the federal law because the Dahns filed habeus corpus, which was granted on an individual basis.

“This decision calls into serious question the constitutionality of thousands of aliens currently being held by the INS without bond as they challenge their removal,” Tse said. “We’re hoping that, based on this opinion that says this statute is unconstitutional, more lawyers will start raising similar challenges for their clients.”