The Real Cost of Prisons Weblog

Washington, DC - A decision by the Supreme Court yesterday will affect thousands of immigrants who have been detained indefinitely because they have no country to which they can return. In Benitez v. Rozos, the Court decided by a 7-2 margin that all detained non-citizens under orders of removal, regardless if they have been legally admitted into the country or not, were protected by an earlier ruling stating that foreign nationals can not be held longer than six months if the government was unable to deport them.

In detention facilities throughout the country, thousands of foreign nationals under orders of removal have been held in legal and diplomatic limbo because they are considered stateless. In most cases, the U.S. does not have a repatriation agreement with their country of origin. With no country willing to accept them, they have remained incarcerated for years, with some having spent over a decade in detention. The bureaucratic barriers have made their prospects for release so bleak that they have been dubbed "lifers".

In 2001, the Supreme Court ruled in Zadvydas v. Davis that the government did not have the power to hold non-citizens indefinitely, even if there was no country to which they could be deported. After a six-month period, if the detainee had shown that there was no significant likelihood of removal in the foreseeable future and the government had failed to demonstrate otherwise, they were to be considered for supervised release.

However, the U.S. Attorney General quickly took the position that this decision did not apply to foreign nationals caught at U.S. borders who, under a legal fiction, were not considered to have been admitted into the country. The largest group that fell into this category were the over 600 Cubans being held in U.S. detention centers, many of whom were participants in the Mariel boatlift.

In 1980, the U.S. was inundated with thousands of refugees who fled Cuba through the seaport of Mariel. Prior to this exodus, President Carter publicly stated that Cubans fleeing Castro's regime would be welcomed with "open arms and an open heart." Unable to process the high volume of immigrants arriving from Cuba at the time, the government gave each so-called "Mariel" a brief investigation, and granted him or her temporary permission to remain in the U.S., but considered them as having been "paroled" rather than admitted into the country. This has resulted in an extended legal dilemma for those Cubans under orders of removal. Castro's government refuses to accept them, but the U.S. Attorney General views them as if they were still at the U.S. border seeking lawful entry and therefore not eligible for release under the Zadvydas decision.

Until yesterday's ruling, Circuit courts had been divided on this interpretation of the Zadvydas decision. Through Benitez v. Rozos, the Supreme Court has made it clear that any foreign national physically within the country is protected from being detained indefinitely, including Mariel Cubans and others not considered to have been "admitted" at the borders.

"After working to help Mariel Cubans and other indefinite detainees over the past ten years, we are extremely relieved by the Supreme Court's decision," says Donald Kerwin, Executive Director of the Catholic Legal Immigration Network, Inc. "Our concern now is the need to find pro bono representation for all those affected by this ruling. They will need help to navigate the complex system and apply today's ruling to their cases. Most do not have and cannot afford outside help, so they will have to rely on lawyers volunteering their services. Some thought also needs to be put into developing programs that will help these individuals reintegrate with society. Many have been incarcerated for years and will need to find a means to support themselves upon their release."

The Catholic Legal Immigration Network, Inc. (CLINIC), a subsidiary of the U.S. Conference of Catholic Bishops, is the nation's largest network of charitable immigration services with 148 affiliates in 242 field offices around the country. CLINIC advocates for transparent, fair and generous immigration policies.

Contact: Scot Christenson
202/635-5816