Kevin Fagan, San Francisco Chronicle, March 28, 2012
Kestutis Zadvydas was the opposite of what most people would envision as an ideal immigrant to the United States. He was a convicted thief and cocaine dealer, and U.S. officials ordered him deported in 1994 to his native Germany.
But Zadvydas was never sent home.
Neither were, by some counts, thousands of other convicted criminals marked for deportation to their countries of origin in the past decade — including Binh Thai Luc, 35, who is accused in last week’s slayings of five people in a San Francisco row house.
The potential deportees were all held in prison for up to six months, then set free under a 2001 U.S. Supreme Court ruling barring immigrants from being locked up indefinitely while awaiting deportation. The trouble in all these instances was that their home countries would not take them back.
In Luc’s case, it was Vietnam in 2006. He’d just finished serving eight years in state prison for robbing a Chinese restaurant and trying to rob a car electronics store in San Jose, but after a federal judge ordered him kicked out of the country, his homeland refused to issue travel documents.
Six years later, he sits in San Francisco County Jail charged with five counts of murder with special circumstances. The victims — a couple in their 60s, their grown children and their son’s girlfriend — were bludgeoned and attacked with an unspecified sharp weapon, police said.
Outrage over the freeing of a man now accused of slaughtering a house full of people reached back to Washington, D.C., where Rep. Lamar Smith, R-Texas, is trying to pass a bill to peel back the 2001 mandate.
“Just because a criminal immigrant cannot be returned to their home country does not mean they should be freed into our communities,” said Smith, chairman of the House Judiciary Committee. “Dangerous immigrants need to be detained.”
Smith’s bill, awaiting a vote in the full House, would supersede the Supreme Court ruling and allow immigrants with criminal records whose home countries won’t take them to be held indefinitely by Homeland Security.
Detainees would be reassessed every six months for release and be able to fight for freedom through the courts.
The Supreme Court ruling that Smith’s bill would replace is called Zadvydas vs. Davis. In it, the justices held that Zadvydas’ convictions were no justification for incarcerating him indefinitely after Germany, Lithuania and his wife’s homeland, the Dominican Republic, refused to take him.
A complicating factor for Zadvydas was that he was stateless. He was born in a camp in U.S.-controlled Germany
Immigrant advocates said allowing the government to imprison people indefinitely after they’ve already paid for their offenses is wrong.
“The idea of trying to foresee who will commit crimes and lock them up before they commit them is unconstitutional,” said Julia Harumi Mass, staff attorney at the American Civil Liberties Union of Northern California.
“If a person can’t be removed from the United States but has served his or her criminal sentence, we should not create some kind of preventative detention program that tries to speculate about the risk this person may pose,” Mass said. “That’s just not the kind of country we want to live in.”