The Washington Legal Foundation (WLF) this week urged the U.S. Court of Appeals for the Ninth Circuit in San Francisco to reconsider a recent decision that could result in the release from detention of hundreds of illegal aliens convicted of violent crimes.

In a brief filed in Kim Ho Ma v. Reno, WLF argued that society’s interest in being protected from violent criminals far outweighs any interest that illegal aliens may have in being free from detention during the time it takes to arrange their deportation.

“Congress has adopted numerous laws in recent years to ensure that the American public is protected from dangerous alien criminals; yet the appeals court’s holding results in a rule that provides the public with even less protection than it had prior to the adoption of those laws,” said WLF Chief Counsel after filing WLF’s brief. “Given the large number of aliens whose cases are affected by the Ninth Circuit’s holding, this case cries out for reconsideration on an expedited basis,” Samp said.

The case involves Kim Ho Ma, a Cambodian who came to this country in 1986. In 1995, Ma and four fellow gang members ambushed and shot another gang member and left him to bleed to death. Charged with first-degree murder, Ma pled guilty to first-degree manslaughter and was sentenced to three years in prison. He was released from state prison (in Washington State) in 1997 and handed into the custody of the Immigration and Naturalization Service (INS), which immediately began deportation proceedings. Ma’s deportation order became final in October 1998.

However, to date Cambodia has refused to accept Ma back into the country. A federal district court in Seattle ordered Ma’s release from detention in October 1999, on the ground that the indefinite detention of a criminal alien pending deportation violates the alien’s constitutional rights if there is no country willing to accept him. The INS appealed from that decision. A three-judge panel of the Ninth Circuit affirmed the decision in April, finding that Congress did not intend to permit the detention of illegal aliens who lack immediate prospects for deportation, for more than 90 days after the entry of a final deportation order.

In its brief asking that the decision be reconsidered, WLF argued that the Ninth Circuit totally misconstrued relevant immigration law. WLF argued that federal law explicitly permits the indefinite detention of aliens who have been ordered deported and whose release has been adjudged to constitute a threat to the community. WLF noted that “indefinite” detention does not mean life-long detention because Cambodia can be expected eventually to agree to take back its citizens and because the INS has a policy of reviewing all such cases every six months and releasing from custody those aliens who the INS determines pose no threat to society.

WLF also argued that the Ninth Circuit’s decision fails to take into account society’s strong interest in ensuring that violent criminals not be permitted to roam the streets freely. WLF noted that after his October 1999 release, Ma was arrested (and is free on bail awaiting trial) for a vicious assault.

The Ninth Circuit is likely to determine by summer whether it will agree to rehear the case. If rehearing is denied, WLF has pledged to do all it can to persuade the U.S. Supreme Court to agree to review the Ninth Circuit’s decision.

WLF is a public-interest law and policy center with supporters in all 50 states, including many in Washington State. It devotes a significant portion of its resources to combatting illegal immigration and ensuring that aliens who engage in criminal activities are excluded from American society. WLF filed its brief on behalf of itself and the Allied Educational Foundation.

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For further information, contact WLF Chief Counsel Richard A. Samp (202) 588-0302.