1 MILR (Rev.) 161

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 88-08
(High Ct. Civil No. 1987-159)

RENANDO NAVARRO and LEVI VELASCO,
Plaintiffs-Appellants,

-v-

CHIEF OF POLICE PAUL KIM and MINISTER OF FOREIGN AFFAIRS TOM KIJINER,
Defendants-Appellees.

APPEAL FROM THE HIGH COURT

AUGUST 2, 1989

KOBAYASHI, A.J. pro tem1 ASHFORD, C.J. and KING, A.J. pro tem2

SUMMARY:

A petition for Writ of Habeas Corpus was filed with the High Court to declare the detention and deportation proceedings in Section 32 of the Immigration Act unconstitutional. Although the outcome of this appeal has no consequence for Appellants because they have been deported, the Court concluded that the appeal was not moot and retained jurisdiction for the appeal based on "a recurring controversy of substantial public interest" rationale. Since the Court found that Section 32 of the Immigration Act lacked due process safeguards and failed constitutional muster, the High Court's denial of petition was reversed.

DIGEST:

1. IMMIGRATION AND EMIGRATION – Removal or Deportation – Due Process Requirements: Section 4(10) of Article II of the Constitution requires that a person be afforded the protection of procedural due process before he is detained.

2. IMMIGRATION AND EMIGRATION – Same – Same: The overwhelming weight of authority holds that an alien, once he has entered a country, is indeed entitled to due process of law before he may be detained and deported.

3. CONSTITUTIONAL LAW – Due Process – Procedural: Due process requires, at a minimum, that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing.

OPINION OF THE COURT BY KOBAYASHI, A.J.

This is an appeal from an order of the High Court denying Appellants' application for Writ of Habeas Corpus.

In its opinion the court found the Immigration and Emigration Act 1986 (hereinafter Immigration Act) constitutional – both the detention and the deportation – as provided in § 32 of the Immigration Act.

The Appellants contend that the Immigration Act, especially § 32 thereof, is unconstitutional.

The Appellees contend that the appeal should be dismissed as moot (Appellants having been deported).

STATEMENT OF THE CASE

Appellants were nationals of the Republic of the Philippines who had resided in the Marshall Islands for some length of time. The Minister of Foreign Affairs, Tom Kijiner, signed Deportation Orders 07-88 and 05-88 dated February 19, 1988, against Appellants respectively. These Deportation Orders were made pursuant to § 32 of the Immigration Act.

The Deportation Orders ordered the Marshall Islands Chief of Police to place the Appellants in solitary confinement at the Majuro prison until they could be deported. "Accordingly, they were taken into custody and placed under detention in solitary confinement."

It is unclear from the record but, by all indications, Appellants had entered the Republic lawfully. Appellees' counsel, in his arguments before this Court agreed that Appellants' entry into the Republic had been lawful. In his answering brief Appellees' counsel states that "it has never been alleged that any crime has been committed."

On February 24, 1988, Appellants filed an application for a writ of habeas corpus alleging illegal and unconstitutional detention. The hearing was held on February 25, 1988, and the application was denied. Appellants remained in solitary confinement in the Majuro prison until they were deported and on March 18, 1988, the High Court filed its written Order.

In determining whether § 32 of the Immigration Act is constitutional or not, we must seek guidance and direction from The Supreme Law of the Republic of the Marshall Islands (Republic hereinafter):

The Constitution of the Marshall Islands (hereinafter Constitution) is a beautifully crafted document!

Article I, § 1(1) states:

This constitution shall be the supreme law of the Marshall Islands; and all judges and other public officers shall be bound thereby (emphasis added).

Initially, however, a resolution of the threshold question of mootness must be made.

Though the outcome of this appeal, perhaps, has no consequence for Appellants, we conclude that this appeal is not moot and we shall retain jurisdiction because the appeal involves "a recurring controversy of substantial public interest." Roe v. Wade, 410 U.S. 113, 124-25 (1973).

As stated in Heine v. Radio Station WSZ0 and GM, 1 MILR (Rev.) 122 (Jun 6, 1988):

The State (United States) decisions on this question are unanimous in holding that an appellate court should retain jurisdiction in the face of mootness, when there is involved a recurring controversy of great public interest.

QUESTION OF THE CONSTITUTIONALITY OF SECTION 32 OF THE IMMIGRATION ACT:

Appellants were not detained pursuant to criminal statutes.

Appellants were detained pursuant to the Immigration Act, under which civil or administrative deportation proceedings are initiated.

The Supreme Law of the Republic governs the instant appeal.

The Constitution in Article II, § 4(1) states:

No person shall be deprived of life, liberty or property without due process of law.

[1] Section 4(10) of Article II of the Constitution specifically pertains to the rights of a person detained outside of the criminal process:

No person shall be preventively detained, involuntarily committed, or otherwise deprived of liberty outside the criminal process, except pursuant to Act, subject to fair procedures, and upon a clear showing that the person's release would gravely endanger his own health or safety or the health, safety, or property of others (emphasis added).

The foregoing constitutional provisions require that the Appellants be afforded the protection of procedural due process before they could be detained.

It is not disputed that no such protection was given. It is clear that the detention was a deprivation of liberty under Article II, § 4(1) and thus the absence of any procedural protections before detention constitutes a violation of said due process clause.

The detention of the Appellants further failed to meet the requirements of said § 4(10) of Article II of the Constitution.

Though the detention met one of three requirements, that is, "pursuant to Act," the detention failed to meet the requirements of "subject to fair procedures" and "upon a clear showing that the person's release would gravely endanger his own health or safety or the health, safety, or property of others."

Thus, § 32 of the Immigration Act, lacking due process safeguards, fails to pass constitutional muster.

The High Court clearly erred in concluding that the foregoing constitutional provisions have no application to a detention in a deportation proceeding. The Supreme Law of the Republic makes no such exception.

[2] Furthermore, the High Court's opinion is contrary to the overwhelming weight of authority. Landon v. Plasencia, 459 U.S. 21, 32-33 (1982); Jean v. Nelson 71 F.2d 1455, 1467 (CCA 11, 1983).

The authorities hold that an alien, once he has entered a country, is indeed entitled to due process of law before he may be detained and be deported. He is entitled to the due process protections afforded by the Constitution.

[3] Due process requires "at a minimum ... that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

In our opinion, the Immigration Act is constitutionally defective in another respect: 

Section 32(3) of the Act states:

Any order made by the Minister under this section shall be final and conclusive and shall not be questioned in any court of law in any manner whatsoever.

We hold that the above provision is violative of both the constitutional guarantee that the writ of habeas corpus shall not be suspended, Article II, § 7, as well as the supremacy clause, Article I, § 1(1).

We note that the High Court did recognize that an alien threatened with deportation retains the right to petition for a writ of habeas corpus. The High Court, however, made no mention of the infirmity in the Immigration Act.

We hold that § 32(3) of the Immigration Act must be considered as stricken from said Act.

Additionally, in the implementation of § 32 of the Immigration Act, the provisions of § 32 must be read to include, for the prospective detainee and deportee, notice and an opportunity for a hearing prior to detention and deportation.

The High Court should have granted the application for writ of habeas corpus. We reverse the High Court's order denying the application.

David Strauss for Plaintiffs-Appellants
Johnsay Riklon, Assistant Attorney General, for Defendants-Appellees

__________

1The Honorable Bert T. Kobayashi, Associate Justice Emeritus of the Supreme Court of the State of Hawaii, sitting by appointment of the Cabinet.

2The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by appointment of the Cabinet.