Court Orders Hearing For Unlawfully Imprisoned Deportee


For Immediate Release: July 14, 1999

Ruling that the Immigration and Naturalization Service has been unlawfully incarcerating Salvadoran immigrant Miguel Rivera for over a year, on July 13, U.S. District Court Judge Thelton Henderson ordered the San Francisco Office of the INS to grant Rivera a hearing within seven (7) days to determine whether the asylum applicant could be released while his immigration case is pending.

"Judge Henderson's decision is the first ruling in the Northern District of California to find that the INS is misinterpreting immigration detention statutes," said ACLU Immigrants' Rights Project attorney Chris Palamountain, one of the lawyers litigating the case on Rivera's behalf. "Now our client will finally enjoy the basic due process right to a hearing which he has been denied for so long."

The ACLU filed a lawsuit for Rivera on June 22, charging that INS officials and Attorney General Janet Reno violated Rivera's Fifth Amendment due process rights and the Immigration and Nationality Act (INA) Section 236 (c). Specifically, the ACLU argued that the INS misread the INA as mandating Rivera's detention without giving him any opportunity to demonstrate that his imprisonment serves no purpose because he is not a danger to the community or a flight risk.

"The Immigration and Nationality Act can not allow the government to strip people of their basic right to a hearing before being incarcerated, " said ACLU-NC managing attorney Alan Schlosser. "The Fifth Amendment still guarantees our client the right to a hearing, and every judge to review this case has found that Mr. Rivera is not a danger to the community."

In 1995, the INS initiated deportation proceedings against Rivera, an undocumented Salvadoran. Because of his affiliation with the ARENA party, Rivera applied for political asylum. While living in El Salvador, he had been abducted and beaten by opponents of ARENA, and his father was killed. Three other members of Rivera's family have disappeared and are presumed to have been killed by opponents of ARENA. In 1997 an immigration judge granted Rivera asylum in the United States, finding that he had a well-founded fear of persecution if he returned to El Salvador.

The judge who heard Rivera's asylum case carefully considered whether Rivera's six month jail sentence in 1994 might disqualify him from asylum and decided it did not, because of the highly favorable reports of his probation officer and his regular participation in Alcoholics Anonymous and an anti-domestic violence program. But only a few days after Rivera was granted asylum, President Clinton signed into law the Illegal Immigration Reform and Immigration Responsibility Act. As a result of the Act, the INS argues that Rivera is an "aggravated felon" and ineligible for asylum. Because a state court later vacated Rivera's sentence, his conviction can no longer be considered an "aggravated felony. " However, on April 3, 1998 the INS ordered him to report for deportation- three full years after his release from his jail sentence. Rivera complied and was incarcerated without a hearing at the Tehama County jail on May 4, 1998, where he has been ever since.

"This case proves, once again, that the federal courts are crucial to stopping the illegal practices of a federal agency with a sad history of ignoring the law and violating constitutional rights," said Lucas Guttentag, ACLU's National Immigrants' Rights Project Director. "Mr. Rivera has now spent more than twice as much time in jail waiting the INS than he did for his prior criminal conviction. Yet this man presents no danger to the community. His former employer has even promised him his old job back when he is released," said Robert Lewis, Mr. Rivera's attorney in the immigration proceedings.

Rivera is represented by Chris Palamountain, Judy Rabinovitz and Lucas Guttentag of the ACLU Immigrants' Rights Project, ACLU- NC managing attorney Alan Schlosser, and attorney Robert Lewis.