Two weeks ago, on Wednesday, March 22, Duy Dac Ho made two long-distance phone calls from his father's house in St. Paul's Midway neighborhood. The first was to his Denver attorney, Jim Salvator, who advised his client to turn himself over to the Immigration and Naturalization Service (INS) within the next two days. If he didn't, Salvator warned, a warrant would be issued for his arrest. Ho was argumentative at first but eventually promised Salvator he'd follow his advice.
Then Ho dialed another Denver number, that of his friend Loi Nguyen, who is also represented by Salvator and who was facing the same predicament: Turn himself in to the INS or go underground. He was terrified, Ho told Nguyen. He couldn't do it--couldn't wait while Salvator appealed his case to a higher court. He'd rather kill himself than face the prospect of spending the rest of his life in one of the windowless holding cells of the overcrowded INS detention center in Aurora, Colorado.
"Then he just hung up," Nguyen recalls. "And no one has heard from him since."
Nguyen and Ho were both born in Vietnam. Both are convicted felons who have served their time: Nguyen, now 23 years old, drove the getaway car in a Colorado restaurant heist when he was 15; Ho, who is 30, was one of six people convicted of stealing more than $1 million worth of jewelry from an Edina home in 1992. And both are in the same legal bind--one that is increasingly common, and potentially unconstitutional.
For decades the INS has deported ex-con immigrants. After serving their sentences, offenders like Nguyen and Ho have been sent to detention centers, where they're held for a few weeks, then shipped home. But there have always been a handful of nations--such as Vietnam, Laos, Cambodia, Somalia, Cuba, and Haiti--that have refused to take back their citizens. Before 1990 the INS could not detain any immigrant who couldn't be extradited within six months. If deportation was impossible in that time frame, the person would be freed until it could take place--in other words, indefinitely. During President Clinton's tenure, though, the government has changed the rules.
In 1990 Congress concluded that the six-month rule should apply only to immigrants convicted of lesser crimes, and that henceforth any noncitizen who'd been convicted of an aggravated felony could be held by the INS indefinitely after they'd served their time. Six years later Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which broadened the definition of "aggravated felony" and made the deportation automatic, no matter what the immigrant's residency status.
Loi Nguyen, who had permanent-resident status when he was arrested for aggravated robbery at age 15, was snared in the web of the 1996 legislation, while Duy Dac Ho, who had been convicted of robbery and aggravated assault before becoming a legal permanent resident, was caught in the net Congress cast when it nixed the six-month rule in 1990. Attorney Jim Salvator believed that both men, who had met in 1997 after they were sent to the INS facility in Colorado, were being denied their basic human rights. "The crimes these men committed are remote in history," Salvator contends. "They've both served their time. Loi has been a model parolee. Duy's not even on probation--he doesn't have any obligations to any court. And yet they're both facing an indefinite period of detention."
In 1998 Salvator filed a federal suit arguing that incarcerating Duy Dac Ho and Loi Nguyen was unconstitutional. A judge in the Tenth District Court found in their favor, and in April 1999 the men were released on bond pending deportation while the government appealed the case. Nguyen moved in with his grandmother in Denver. Ho returned to Minnesota to live with his father and got a job with a construction company.
"We weren't arguing that Duy couldn't be deported. We were arguing that no matter what, if someone can't be deported they can't be in jail," says American Civil Liberties Union attorney Judy Rabinovitz, who assisted Salvator with the appeal. "Our position is that everyone in the U.S. is protected by the Constitution. The notion that if you haven't been lawfully admitted to the United States you're a nonperson--that's a legal fiction."
On February 29, in a two-to-one decision, the Tenth U.S. Circuit Court of Appeals disagreed. The majority opined that Ho and Nguyen lost their constitutional rights when their deportation was ordered. In his dissent, Judge Wade Brorby wrote, "Governmental conduct that so reduces an individual to a 'non-person' to permit such imprisonment most assuredly shocks my conscience."
As a result of the decision, Nguyen's and Ho's bonds were set to be revoked on March 25, at which point they were to turn themselves in and await deportation--no matter how long it took--at the INS facility in Colorado. Figuring he'd be better off in Vietnam, Nguyen obtained a one-month travel visa, with which he hoped to gain entrance into the country and remain there unnoticed. But when he was turned back at the Los Angeles airport for carrying an expired green card, he flew back to Denver and turned himself in. He hoped his friend Ho would do the same, but that hasn't happened.