High Court Upholds I.N.S. Detention Of Suspected Illegal Alien Children

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WASHINGTON--The U.S. Supreme Court last week upheld the Immigration and Naturalization Service's policy of keeping children who are suspected illegal aliens in detention when legal guardians or close relatives cannot be found to take custody of the children.

In a 7-to-2 ruling on March 23, the Court said the detention policy does not violate the children's Fifth and 14th Amendment rights to due process of law. It overturned two lower federal courts' rulings that the I.N.S. should release the children to other responsible adults or child-welfare organizations when possible.

The Court's ruling in Reno v. Flores (Case No. 91-905) stems from a broader class action filed against the I.N.S. several years ago over the legality and conditions of detention for the increasing number of unaccompanied juveniles held by the agency for possible deportation as illegal aliens.

The I.N.S. arrests thousands of juvenile suspected aliens each year, many of them young men from Mexico and Central America. In 1990, some 70 percent of the more than 8,500 detainees were not accompanied by parents or other adults, according to court documents.

In 1988, a federal judge in California ordered the I.N.S. to release alien children to other adults when possible, even if no close relatives or guardians were available to take custody.

The judge also ordered that the detainees receive individual hearings before an immigration judge. The U.S. Court of Appeals for the Ninth Circuit affirmed the ruling in 1991.

Associate Justice Antonin Scalia, in the majority opinion overturning the lower courts, wrote that the I.N.S.'s blanket detention policy does not violate the Constitution's guarantees of due process of law.

"Where a juvenile has no available parent, close relative, or legal guardian,'' he wrote, "where the government does not intend to punish the child, and where the conditions of governmental custody are decent and humane, such custody surely does not violate the Constitution.''

"We think the I.N.S. policy now in place is a reasonable response to the difficult problems presented when the service arrests unaccompanied alien juveniles,'' Justice Scalia wrote. Perhaps other policies would be better, he added, but that is a policy matter, not a judicial question.

Chief Justice William H. Rehnquist and Associate Justices Byron R. White, Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, and Clarence Thomas joined Justice Scalia's majority opinion.

However, Justice O'Connor, joined by Justice Souter, wrote a separate concurrence to stress that children "have a core liberty interest in remaining free from institutional confinement.'' Although she reviewed the case with a heightened level of scrutiny, she still concluded that the I.N.S. policy does not violate the due-process clauses.

Dissenting Opinion

Associate Justice John Paul Stevens, joined by Associate Justice Harry A. Blackmun, pointed out in a dissent that the I.N.S.'s detention of juvenile aliens is indefinite and in some cases has approached one year.

"The right at issue in this case is not the right to be released to an unrelated adult,'' Justice Stevens wrote. "It is the right to be free from government confinement that is the very essence of the liberty protected'' by the Constitution.

Carlos Holguin, the general counsel of the Center for Human Rights and Constitutional Law in Los Angeles and the lawyer for the suspected alien children, said the ruling was especially "pernicious.''

"This is the first time since the Japanese internment cases in which the Supreme Court has approved of indefinite detention of anyone, and it used children to do it,'' he said.

He said that while a major portion of the class action, concerning the conditions of detention, was settled in 1987, the children's lawyers must still "put out fires'' over alleged lapses in treatment.

For example, some of the children in detention have gone without required educational services, he said.

"The I.N.S. really needs to bring its policies into line with contemporary juvenile-justice and child-welfare standards,'' he added.

Other Action

In separate action last week, the High Court upheld the federal criminal conviction of a dairy cooperative for rigging milk bids to Virginia school districts in the middle 1980's.

The dairy cooperative, convicted of rigging bids in the Tidewater area of Virginia from 1984 to 1986, sought High Court review of several federal criminal issues.

The Court without comment rejected the petition in Maryland and Virginia Milk Producers Cooperative Association v. U.S. (No. 92-1085).

Vol. 12, Issue 27

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