How long can the US Immigration and Naturalization Service (INS) imprison someone without charging them with a crime or at least holding a bail hearing? US District Court Judge Mary Lisi struggled with this question last month as she reviewed the case of Yelkis Jose Segura-Rosado, a Cuban immigrant who has been detained at the Adult Correctional Institutions in Cranston since February 2000.

On August 13, Lisi voiced her frustrations with the INS' slow administrative procedures and a federal law requiring mandatory detention of non-citizens convicted of felonies while they await deportation. Noting that Segura-Rosado may spend three years behind bars by the time the INS resolves his case, Lisi said, "Mandatory detention reaches a point where it crosses the line for liberties that are guaranteed for every human being." Turning to Robin Feder, chief of the US attorney's civil division, who represented the INS, Lisi asked whether Segura-Rosado can be held forever. "It may be," responded Feder.

Lisi didn't agree, ordering the INS to hold a bond hearing for Segura-Rosado. In late August, the INS agreed to release him from the ACI while the INS appeals a decision allowing him to stay in the US.

But as noted by Mimi Budnick, a community organizer who heads the prison campaign for Direct Action for Rights and Equality (DARE), INS detentions longer than two years are hardly unusual. Oleg Podoprigora, a Ukranian refuge, for example, has been detained at the ACI and other New England jails since February 5, 1999, according to court records. Errol Hall, a 51-year-old Jamaican immigrant who wrote the habeas corpus petition that ultimately freed Segura-Rosado, says he's been detained at the ACI since May 1999. And Angel Garcia, a Cuban immigrant who came to the US as part of the 1980 Mariel boat lift, says he has been detained at the ACI and other jails since January 2000.

Like Segura-Rosado, the three men were detained under a 1996 law, approved by Congress and President Bill Clinton, which requires almost all non-citizens convicted of felonies be deported after completing their prison sentences. The law requires that they be detained while appealing deportations and denies them the opportunity to be released on bond. To justify mandatory detention, Congress pointed to statistics indicating that most non-citizens released on bond flee, rather than appear for deportation hearings, and many commit new crimes following release from prison.

Three of the 13 US circuit courts of appeal have declared that mandatory detention and automatic denial of bail without a hearing violate the due process clause of the US Constitution. INS has appealed the cases to the US Supreme Court, which will hear the issue this fall. The First Circuit Court of Appeals, which includes Rhode Island, has not ruled on the question. That will soon change, however, since Podoprigora's case is currently before the panel, appealing US District Judge Ronald Lagueux's ruling that his detention "is lawful and proper pending a final order of deportation."

In a related case in 2001, a divided US Supreme Court ruled 5-4, that the INS can hold someone only six months while trying to make deportation arrangements after a deportation order becomes final.

Lisi's action in Segura-Rosado's case is particularly unusual because the 53-year old former Providence resident was never a legal permanent resident of the United States. In 1995, the INS paroled him into the US for two years because his daughter-in-law was about to give birth. But he didn't leave in 1997 and disappeared from the INS' radar screen until February 2000, when he was sentenced to time served (six months) for assault with a deadly weapon. Driving a motorcycle under the influence of alcohol, according to court records, he was found to be trying to kill his passengers.

This conviction triggered the INS to start a deportation proceeding to Cuba. But Segura-Rosado won relief in July 2001 when an immigration judge ruled that he'd probably be tortured if returned. Nothing happened for months and then in March, Segura-Rosado filed a writ of habeas corpus in federal court. The INS balked, insisting his appeal had been accidentally misplaced. Feder also argues that because he overstayed his two-year parole and is a convicted felon, Segura-Rosado has no legal right to stay in the US. But unlike Podoprigora, Hall, and Garcia, he's a free man while waiting for his hearing date.

Issue Date: September 13 - 19, 2002