U.S. Supreme Court

The U.S. Supreme Court has ruled that about 2,000 foreign nationals held in indefinite detention in U.S. jails must be freed. Most of those affected by the decision are Cuban migrants U.S. authorities have been unable to deport back to Cuba.

There are between 700 and 1000 Cubans held in U.S. jails in indefinite detention. Nearly all of them came to the United States in the 1980 Mariel boatlift when more than 100,000 Cubans fled the communist-run island from the port of Mariel in Cuba.

The Cubans, and other foreign nationals affected by the decision, were languishing in U.S. jails because their countries of origin refused to take them back. Nearly all had been convicted of crimes in the United States and deemed "excludable" by U.S. immigration authorities, making them ineligible to remain in the country once they had served their sentences.

John Mills is a Jacksonville, Florida attorney who argued against the practice of indefinite detention on behalf of Daniel Benitez, a Miami resident and a Mariel refugee who had been convicted of several felonies.

Mr. Mills says those affected by the ruling, like his client, were trapped in a cycle of perpetual incarceration.

"Anybody affected by this ruling would by definition be a person who, if they were convicted, and most of them were, had served out all of their sentence," Mr. Mills explained. "Mr. Benitez, my client in this case, for example completed his state sentence in 2001. When he finished that state sentence, he was immediately put into a federal penitentiary by the immigration service. That had the possibility of being for the rest of his life. Indeed many people have been in for more than 10 years."

In 2001, in a separate case, the Supreme Court ruled that the indefinite detention of a stateless individual was unconstitutional. But administration attorneys argued that case did not apply to the Mariel refugees because they had never been granted formal admission into the United States, but were admitted under so-called "humanitarian parole" rules.

The administration attorneys argued that when the refugees committed their various crimes they violated the terms of their "humanitarian parole" and became "inadmissible."

But writing for the majority in the 7 - 2 decision, Justice Antonin Scalia found that immigration statutes made no such distinction, and therefore the court could not create one.

In a dissenting opinion, Justice Clarence Thomas said that migrants classified as "inadmissible" do not have the same rights as other migrants. Justice Thomas also said that the 2001 decision rejecting indefinite detention was wrong.

Attorney John Mills says that with the exception of terrorism suspects, the Supreme Court decision largely brings the issue of indefinite detention of migrants to a close.

"I think it does close the issue," Mr. Mills said. "The one group of aliens that still have not been addressed by a court decision are aliens who enter without inspection, that is they sneak across the border or are smuggled in, and for whatever reason they do not show up at a checkpoint. There is no court decision on that, but the same statute applies to them and the government itself has taken the decision that they are covered by the same interpretation. So, it should wrap it, but subject to Congress, which always has the authority enact a new statute authorizing detention. In fact the opinion notes that they have done that with regard to aliens who are suspected of being terrorists and there are other detention provisions for those people."

While the Supreme Court has now ruled that indefinite detentions are unconstitutional, it is unlikely that the more than one thousand individuals currently held in indefinite detention will be released at once. Immigration officials have not said how the releases will proceed, but current procedures require that each case by handled on an individual basis, making it likely that the releases will take some time to complete.