High court to rule on immigrant detention

WASHINGTON -- The Supreme Court agreed yesterday to rule on the government's power to detain indefinitely thousands of noncitizens who have been in the United States illegally for years and cannot be sent back to their home countries.

The justices will consider a Bush administration appeal complaining that some lower courts have "opened a back door into the US for aliens" and created "an obvious gap in border security that could be exploited by hostile governments or organizations that seek to place persons in the US for their own purposes."

The Supreme Court hinted at the importance attached to the case by agreeing to review it on an expedited schedule, even though the court's calendar for the current term is full.

At the latest count, the Justice Department told the court, federal officials are keeping in custody nearly 2,300 foreign nationals who did not enter the country legally and for that reason are subject to being deported, but cannot be sent home because the United States does not have full diplomatic ties with their countries, or because they will not accept the individuals.

Although the department warned that potential terrorists might gain entry to the United States under the lower court decisions at issue, it did not say that any of the current detainees fit that category.

They include 920 Cubans, who came into the country as part of a massive wave sent by Cuban officials to the United States in the Mariel "boat lifts" in order to relieve tension and dissent inside that country. Some 125,000 Cubans arrived in the first wave in 1980, and another 50,000 in 1994.

President Fidel Castro of Cuba initially would not accept their return but later changed his mind and allowed several thousand to return. When Castro was blocking their return, many of the "Mariel Cubans" gained temporary permission to continue living in this country, even though not legally admitted, for years. The Cuban whose case the Supreme Court will hear, Daniel Benitez, has been living in the United States for more than 20 years. Benitez, a resident of the Miami area, is subject to deportation partly because he did not enter legally and partly because he has been convicted of several crimes while living in the country.

Nearly two years ago, the Supreme Court ruled in another case that the federal government cannot hold indefinitely a noncitizen who is subject to deportation, even if no other country will accept that person. Detention in such a case, the court said, can last no more than six months, regardless of whether the individual is deportable because of criminal convictions.

That case, however, involved prolonged detention of noncitizens who had gained the legal right to remain in the United States as permanent residents. The new case involves those who were never formally admitted, and putting them in a category equivalent to people stopped at the border and refused entry.

Benitez's appeal argued that the 2001 decision by the justices changed the law on immigrant detention for all classes of individuals, and was not confined only to permanent residents. Lower courts have split on the issue.

The justices will hear the case in April, and decide it by early summer.

In another action, the justices cleared the way for Texas to use a Republican map of new congressional districts -- a plan designed to ensure that Republican candidates gain a majority of the state's House seats from Democrats.

Several Texas Democrats in the House and a group of state voters asked the court last week to block the plan's use in this fall's election, on the grounds that it discriminates against minorities and also that it is a "partisan gerrymander" tailored to assure Republican gains.

The justices offered no explanation for their refusal to delay the new map's implementation. The court would not be likely to hear an upcoming appeal of a lower court ruling upholding the Republican map until next fall.