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Ashcroft Decides U.S. May Detain Illegal Immigrants Without Bond

By George Lardner Jr.
THE WASHINGTON POST -- Broad categories of foreigners who arrive in this country illegally can be detained indefinitely without consideration of their individual circumstances if immigration officials say their release would endanger national security, according to a ruling by Attorney General John Ashcroft.

Ashcroft released the far-reaching decision Thursday in denying bond to Haitian David Joseph, 18, who scrambled ashore at Key Biscayne last Oct. 29 with more than 200 other refugees.

The order means that groups of asylum seekers and other aliens -- in this instance Haitians -- can be locked up without hearings and without recourse to release on bond. Ashcroft rejected claims that denying them bail on broad national security grounds would violate their due process rights. He said it wasn’t clear they had any such rights.

Until now, the government has jailed individuals or groups seeking asylum for long periods, but hasn’t asserted the right to indefinitely detain whole classes of illegal immigrants as security risks.

In overruling an appellate panel of immigration judges, the attorney general said his decision was based on the danger that release of Joseph and other Oct. 29 migrants “would tend to encourage further surges of mass migration from Haiti by sea, with attendant strains on national and homeland security resources.”

Ashcroft said such migrations have “heavily taxed Coast Guard capacity and capabilities,” limiting its responsiveness in other mission areas.

He also invoked the Sept. 11, 2001, terrorist attacks, saying they’d increased the necessity of preventing undocumented aliens from entering the United States “without the screening of the immigration inspections process.”

Immigration advocates denounced the 19-page ruling as a huge stretch of the national security concept and a waste of the federal money. Dated April 17, it overturned a decision of the Board of Immigration Appeals (BIA), which held last month that Joseph should be released to an uncle in this country on $2,500 bond since he didn’t pose a danger to the community or a flight risk.

Homeland Security officials, who took over administration and enforcement of immigration law after the breakup of the Immigration and Naturalization Service, appealed that decision to Ashcroft. He pointed out that he retains his authority over “questions of law arising under those statutes.”

A Justice Department spokesman said the decision “will serve as a binding precedent on BIA judges for other cases where national security interests are presented by the Department of Homeland Security.”

“You would think the Attorney General would have better things to do these days than target an innocent Haitian asylum seeker,” said Cheryl Little, executive director of the Florida Immigrant Advocacy Center, which represented Joseph. “It is such a waste of precious resources.”

She said detentions of an earlier boatload of Haitians, almost all of them deported by now, cost the government $12.5 million over a six-month period.

Eleanor Acer, director of the asylum program at the Lawyers Committee for Human Rights, called the decision “deeply disturbing” because it invokes national security to deprive “large numbers of asylum seekers of the chance to prove to an immigration judge that they, in their individual cases, present no risk to national security and merit release on bond.”