That legislation expanded the number of crimes for which a person can be deported to include a range of misdemeanors, as minor as jumping a turnstile or shoplifting, redefining them as "aggravated felonies." The law was made retroactive, meaning that even small infractions on a person’s record that happened years ago--before the law was enacted--could be used as the basis for deportation proceedings today. Immigrants who had been granted legal residency with the 1986 nationwide amnesty faced losing their legal status after the 1996 law was passed if they had a conviction on their records. While la migra has carried out factory raids to round up and deport undocumented workers, it has usually not sought out permanent residents who are in this situation. Instead, legal residents have been mostly victimized when they leave the country and try to return, when they went to immigration authorities for a change in their status or some other reason, or if they are subsequently arrested on a criminal charge.

An estimated 11 million immigrants currently living and working in the United States with a "green card" are also denied under the 1996 law the protection from being punished twice for the same offense--called double jeopardy. In addition, they are denied the right to a bail hearing, where the accused can ask the court to be released on bond.

It was this latter provision of the 1996 law that Hyung Joon Kim, a Korean immigrant, had challenged as unconstitutional in the case the Supreme Court just ruled on--DeMore v. Kim.

Kim, 25, a student at San Jose State University today, immigrated to northern California from south Korea in 1984 at age 6. While still a child, he became a permanent resident. In 1996, when he was a teenager, he was convicted for first-degree burglary for breaking into a toolshed and was sentenced to 180 days in jail. The following year, while still on probation, Kim was convicted for "petty theft with priors."

"I was at Costco with two of my buddies," Kim told The Guardian newspaper in an interview published January 15. "One of them ended up stealing. Me and my other friend, we didn’t steal anything, but we knew of our buddy stealing. We walked out together." The youth served two years of a three-year sentence in a state penitentiary in California and was released early for good behavior in 1999. Immigration and Naturalization Service agents then arrested Kim and began deportation proceedings against him based on the 1996 law. The INS held the south Korean immigrant without bail, like tens of thousands of others in similar situations.

After more than three months in custody, Kim filed a petition in court arguing that the 1996 immigration law’s no-bail provision violated his constitutional rights. A federal district court and then later the U.S. Court of Appeals in the Ninth Circuit in San Francisco agreed, and Kim was released Aug. 20, 1999, after six months in detention, pending the high court’s decision.

The Justice Department appealed the decision of the federal courts, echoing the arguments of the Clinton administration when the law was first passed in 1996. First, the Justice Department argued that it is necessary to deport foreign-born residents for even minor offenses in order to stem a "growing problem" of immigrants committing crimes. Secondly, the government claimed that immigrants facing deportation under the 1996 law should be automatically jailed during the process, regardless of the circumstances of their case, because there is a high risk that they will not show up for their hearings.

In a 5–4 vote, the Supreme Court sided with the government and overturned these decisions of the lower courts.

Chief Justice of the Supreme Court William Rehnquist, who wrote the majority decision, said that "Congress regularly makes rules that would be unacceptable if applied to citizens"--an argument that helps the ruling class justify codifying divisions between native- and foreign-born workers.

"We hold that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons... be detained from the brief period necessary for their removal proceedings," Rehnquist said.

In the case of Palestinian activist Farouk Abdel Muhti currently locked up without charges in the York County jail in Pennsylvania facing deportation--and many other immigrants languishing in la migra’s prisons--the "brief period" of imprisonment that Rehnquist refers to can last many months and even years.

Rehnquist added that the sharp increase in deportation and detentions is justified because immigrants are committing more and more crimes. The 1996 law, he said, was passed in the "backdrop of wholesale failure by the Immigration and Naturalization Service to deal with the increasing rates of criminal activity by aliens."

Justice David Souter, who wrote the minority opinion in the Kim case, stated, "This case is not about the national government’s undisputed power to detain aliens in order to avoid flight or prevent danger to the community. The issue is whether that power may be exercised by detaining a still lawful permanent resident alien when there is no reason for it and no way to challenge it."

Imprisonment of foreign-born residents in the United States has skyrocketed under the mandatory detention clause since passage of the 1996 law. Since the year 2000, more than 20,000 immigrants languish in U.S. jails at any given time while the government seeks their deportation. The immigrant prison population has more than tripled in the last eight years. According to a report published by Citizens and Immigrants for Equal Justice, "Mandatory detention has made noncitizens the fastest growing prison population in the country."

For Kim, and thousands of other legal residents who are subject to this law and have lived in the United States most of their lives, deportation to the country where they were born is more like exile. "Korea is more foreign to me than America," he said. "I speak Korean, but not to the point where I could get a job. I would have a very tough time over there."  
 
 
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