Local lawyer's effort will help free many detained immigrants

By Father Bill Pomerleau, The Catholic Observer, July 13, 2001, at 14.

SPRINGFIELD - Thanks in part to the efforts of a Catholic lawyer from Springfield, the U.S. Supreme Court has made two rulings that may free thousands of immigrants now held in jails, prisons and other detention facilities across the United States.

Attorney Michael Moore, a parishioner of St. Catherine of Siena Church in Springfield, is one of a handful of immigration attorneys in western Massachusetts, and the only one who routinely represents clients involved  in the criminal justice system.

Although he can draw on some resources from a New York law firm he visits once a month, he essentially practices alone at his Springfield and Hartford offices. But the case that has earned him just $750 since 1997 will have a major impact on how the nation treats immigrants who have been in trouble with the law.

Enrico St. Cyr, a native of Haiti who legally migrated to Bridgeport, Conn., in 1986, was arrested 10 years later for selling $75 worth of cocaine.

On March 8, 1996, the then-drug addict pled guilty to his crime and agreed to serve a five-year sentence in the Hartford Correctional Center.

Following standard legal advice, St. Cyr pled guilty in hopes of receiving a shorter sentence. He had some confidence that he could later argue to a judge that his rehabilitation made it unnecessary for the government to deport him once his prison term was finished.

Under the immigration laws then in effect, lawful permanent residents who had been in trouble with the law for relatively minor crimes could ask for a waiver of deportation if they demonstrated rehabilitation and/or strong family ties in the United States. About half of the applicants received waivers.

If an immigrant lost his appeal for a waiver, he or she could appeal to a federal judge, since immigration "judges" are actually administrators within the executive branch of government who were subject to review by the judiciary.

But months after St. Cyr's conviction, the U.S. Congress passed two laws which infringed on the constitutional rights of immigrants, according to the Supreme Court's June 25 ruling.

The Antiterrorism and Effective Death Penalty Act of 1996 limited the circumstances under which criminal immigrants would be eligible for waivers. The Justice Department under both the Clinton and Bush Administrations had maintained that waivers are now nearly unavailable under the law.

The Illegal Immigration Reform and Immigrant Responsibility Act provided that "no courts shall have jurisdiction to review any final order of removal."

While serving what turned out to be three years for his five-year sentence, St. Cyr addressed his substance abuse problems and met Moore, a former professor at Western New England College who was teaching a course in the prison for Asnuntuck Community College.

The pair filed for a waiver of deportation, which the INS rejected, maintaining that the tightening of waivers applied retroactively.

After St. Cyr's prison sentence was up and he was continuing to be detained in anticipation of deportation, they applied for a writ of habeas corpus, or determination that a prisoner is being held illegally, in federal court in Hartford and New York.

As expected, the Supreme Court agreed with a lower court ruling that Congress did intend to eliminate most waivers. But it ruled that it was unfair to apply the new laws retroactively, so immigrants like St. Cyr who pled guilty to a crime thinking that they had a good chance to get a waiver under the old law should receive a chance to plead their case for a waiver before the INS.

"We argued that that you can't change the rules of the game after the fact," Moore told The Catholic Observer in May.

The high court also ruled in a related case that there are serious constitutional problems when an order of deportation or other INS ruling cannot be reviewed by the courts.

On June 28, it also said that the government also cannot indefinitely detain immigrants who have been ordered deported.

The ruling in the cases of Kestutis Zadvydas and Kim Ho Ma said the INS was wrong to interpret the 1996 laws so that thousands of immigrants languish in detention when their native countries will not take them back.

In Ma's case, his homeland of Cambodia has no agreement with the United States to accept deportees. No country would recognize citizenship for Zadvydas, who was born in a refugee camp in Germany to Lithuanian parents and moved to the United States not long afterward.

In a 5-4 ruling, the court said the INS was wrong to treat immigrants with deportation orders as if they had lost all rights that are generally recognized for anyone within the U.S. borders.

The ruling set six months as the maximum amount of time the government can hold immigrants who can show there is no likelihood that they could be deported soon.

The ruling said immigrants released under those circumstances would continue to be supervised and could be detained again if they violate the terms of release or appear to present a danger to society.

Although it may be months before the overcrowded immigration system is able to review all potential cases, some advocates believe that up to 5,000 of the nation's 20,000 detainees may be released because of last week's court rulings.

Although the indefinite detention case received more nationwide publicity last week, the case developed by Moore and the American Civil Liberty Union's immigrants' rights project might eventually have an even greater impact.

Project director Lucas Guttentag, who actually argued St. Cyr's case before the Supreme Court, told The New York Times last week that the St. Cyr ruling is an important affirmation of the principle of judicial review. The ruling by the generally conservative high court means that other challenges to immigration policies by Congress and the administration are now possible, advocates believe.

Observer Editorial:  Fairness for immigrants

Catholic Observer, July 13, at 8

Should legal immigrants have many of the same rights that citizens have in the United States? Unfortunately, it took two U.S. Supreme Court decisions to answer what should have been an obvious question.

Yes, this country can pass laws to restrict immigration, and deport non-citizens who have violated the conditions of their visas. But the Republican-controlled Congress in 1996 decided that those laws, which are administered under the Immigration and Naturalization Service, would no longer be subject to court review. The court has now decided that non-citizens deserve their day in court when they think that the bureaucrats at a federal agency have misapplied the law.

The court also decided that six months is enough time for someone not serving a prison sentence to remain in government custody. The court ruled that if some non-deportable immigrants are really dangerous, then the government should figure out other ways to protect the public.

In other words, the court ruled, let's treat good and bad immigrants no better, but also no worse, than we treat citizens.