January 15, 2003

By Camille T. Taiara

HYUNG JOON KIM isn't your stereotypical ex-con. A middle-class 25-year-old student, Kim has held several jobs in Silicon Valley's computer industry and is three-quarters of the way through completing his bachelor of science degree in business administration at San Jose State University. But, like so many teens, he got into some trouble with the law toward the end of his high school years. Now he faces deportation for relatively harmless infractions that most people would chalk up to simple youthful indiscretion.

While Kim's predicament is anything but unusual these days, the ensuing legal battle has implications that reach far beyond Kim's individual case: Kim, who immigrated to northern California from South Korea at the age of six, is one of a handful of permanent residents in recent years to challenge the Illegal Immigration Reform and Immigrant Responsibility Act. Passed by Congress in 1996, IIRIRA greatly expanded the kinds of criminal convictions considered grounds for deportation and requires that immigrants awaiting trial on deportation charges be held in Immigration and Naturalization Service detention without so much as a bail hearing. Kim's case, DeMore v. Kim, has made its way through the federal justice system all the way to the United States Supreme Court.

Starting Jan. 15, attorneys with the American Civil Liberties Union representing Kim are facing off against the INS in the nation's top court to determine the constitutionality of IIRIRA's mandatory incarceration clause as it applies to green-card holders. The clause has resulted in the detention of tens of thousands of immigrants like Kim. According to Citizens and Immigrants for Equal Justice, the federal government detained an average of 6,000 immigrants a day in 1994. "By 2000 that number exploded to over 20,000," the CIEJ recounts in a report titled "Keeping America Together: American Families Sacrificed to Un-American Laws." "Mandatory detention has made noncitizens the fastest growing prison population in the country."

The Kim case grew out of an incident in 1996, when he and two of his high school friends broke into a toolshed. By Kim's account, the job wasn't exactly the mark of savvy thieves: his friends had broken the lock the day before and decided to return and sneak into the shed to see if there was anything worth taking. The three boys were caught on the spot after neighbors called the police. Because of the toolshed's proximity to a family dwelling, Kim explains, he was charged with first-degree robbery – an aggravated felony – and was sentenced to 180 days in Monterey County Jail.

The following year Kim had another run-in with the law. "I was at Costco with two of my buddies," a clean-cut and unassuming Kim explains over coffee at a Starbucks in Sunnyvale. "One of them ended up stealing. Me and my other friend, we didn't steal anything, but we knew of our other buddy stealing. We all walked out together."

Still on probation at the time, Kim was convicted of petty theft with priors – another felony – and sentenced to three years in the state penitentiary. He spent one and a half years in low-security prisons before being granted an early release for good behavior.

Looking back, Kim believes his search for acceptance led him down the wrong path. "When I first immigrated here, I had a hard time adjusting," explains Kim, who spoke no English when he first arrived and had to adapt to a drastically foreign environment and social order. "I didn't really start fitting in until high school. I think at that time the people I fit in with, the crowd wasn't too good." Now, he says, he's learned his lesson. "I was young and dumb. I really regret it now."

Had it not been for IIRIRA, Kim could have gone on to lead a normal life in the only country he can truly call home. Instead, he went straight from prison to INS detention, where he languished for six months.

Although Kim's deportation hearing is still pending, he was released Aug. 20, 1999, after the U.S. District Court for northern California ruled his mandatory detention unconstitutional and ordered the INS to grant him a bond hearing.

"The INS itself determined Kim posed no danger or flight risk," says Liliana Garces, an attorney with the ACLU's Immigrant Rights Project in Oakland who is working on the case. The agency didn't even bother to hold a hearing. Instead, it automatically released Kim on $5,000 bail. The INS appealed to the Ninth Circuit Court of Appeals, which upheld the lower court's ruling a year ago this month. Thanks to that decision, the INS must now grant individualized bond hearings to permanent residents facing deportation trials in nine Western states. The Supreme Court must decide whether to accept or override the circuit court's ruling.

The Bush administration's Justice Department is arguing that immigrants facing possible deportation must remain behind bars because they pose a danger to society and are more likely to disappear underground in order to avoid exile. Solicitor General Theodore Olsen, who is arguing the INS's case, didn't return Bay Guardian calls by press time. But in court documents, Olsen and his legal team contend Congress was within its legal rights in requiring the mandatory detention of all criminal immigrants awaiting deportation trial as part of IIRIRA. Kim's lawyers, on the other hand, say such a blanket ruling undermines the Fifth Amendment guarantee of due process – a right they say applies to immigrants as well as citizens. They say permanent residents like Kim have the right to individualized bond hearings, which allow immigration judges to consider particular circumstances such as the nature and severity of their crimes and family and economic ties to the United States.

Indeed, many deportation cases are far from cut-and-dried. According to a brief submitted on Kim's behalf by the CIEJ and 10 other organizations working directly with immigrant populations in the United States, it's not unheard of for the INS to detain immigrants who turn out to be U.S. citizens. In one case, the INS detained former Marine and decorated Vietnam vet Joe Van Eeten for five months before a judge ordered he be granted a bail hearing and he was released. Van Eeten had become a naturalized citizen in 1968. In another case, a pregnant woman by the name of Hawa Said was detained for six months. Said, also a U.S. citizen, came to the United States when she was one year old.

Many others have been detained although their convictions – some of which did not even require any jail time – have turned out to be for nondeportable offenses.

Yet many agree to deportation without a trial because of the excessive emotional and financial strain detention places on immigrants and their families, Garces explains. Indeed, CIEJ reports that out of 24 immigrants charged with deportation in California and Arizona following drunk-driving convictions, only two fought their deportations to the end. Later, the courts determined that drunk driving was not a deportable offense.

Because such determinations often involve complex legal issues, those who opt to fight their deportation from behind bars are at a disadvantage in building a defense, as the great majority don't have access to legal counsel or so much as a law library. They are often moved to INS detention facilities thousands of miles from home and cannot access crucial documents and witnesses. They can also expect to remain behind bars for longer periods of time: at least six months, according to ACLU estimates, and as much as two years. Permanent residents – most of whom have lived in the United States most of their lives, have families here, and have little remaining connection to their country of origin – are more likely to contest their deportation.

Three other Circuit Courts – those for the Third, Fourth, and 10th Circuits – have ruled against mandatory detention. (The Seventh Circuit Court has been the only one to uphold the requirement so far.) What's more, in a 2001 case, Zadvydas v. Davis, the Supreme Court ruled that the INS could not indefinitely detain immigrants whom it had already deemed deportable but whose country of origin would not take them back. As part of the decision, the ACLU says, the court recognized those immigrants' rights to due process accorded by the Fifth Amendment.

"We are at a historical crossroads," CIEJ researchers write in their report. "The Supreme Court will decide: does the Constitution protect all persons or just citizens?" In a post-Sept. 11 world marked by an increase in the scapegoating of immigrants, the outcome is more important than ever.