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Law without mercy or restraint

If you have tears, prepare to shed them. Not so much for the subject of the story that follows as for the humane tradition in our law, which is being sapped by Congress and the attorney general. Engin Yesil, a native of Turkey, came to the United States as a student in 1979. He married an American and in 1988 was granted lawful permanent residence. He lives in New York and has run a contact lens business.

In 1990 Yesil pleaded guilty to aiding the distribution of cocaine and was sentenced to six years in prison. After being sentenced _ not as part of a plea bargain _ he infiltrated a drug organization and, federal authorities said, helped bring about "many arrests and multi-kilogram drug confiscations." The U.S. attorney in charge of his case praised his "significant cooperation."

The drug conviction made Yesil subject to deportation. He asked for a waiver under a provision of law allowing the attorney general to show mercy when there are ameliorating circumstances.

The Immigration and Naturalization Service found that he was ineligible for a waiver because, under technical rules, he had not been a permanent resident long enough. The decision conflicted with a long-established interpretation of the law by the 2nd U.S. Circuit Court of Appeals in New York, so Yesil's lawyers petitioned for review there.

But in the anti-terrorism law enacted last year, and again in its immigration law, Congress provided that orders of deportation against people like Yesil, whether legally right or wrong, "shall not be subject to review by any court." The 2nd Circuit dismissed his petition.

Yesil's lawyers then sought habeas corpus in U.S. District Court in New York. Habeas corpus is an ancient writ that tests the lawfulness of anyone's detention. The Constitution says that the writ "shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." But the Justice Department argued that Congress had, lawfully, barred its use in these deportation cases.

Last month U.S. District Judge Denny Chin held that Yesil could test the legality of the INS decision by habeas corpus. He found that under the established law of the 2nd Circuit Yesil was eligible to apply for waiver of deportation.

Happy ending? No. The government is now trying to invoke against Yesil provisions of the anti-terrorism and immigration laws that wipe out the idea of waiver _ of mercy _ for those under deportation orders.

That raises another question: Do the new laws apply retroactively to people who were in the process of qualifying for waivers of deportation when Congress passed the new law? The Board of Immigration Appeals decided last year that they do not. But Attorney General Janet Reno, in a rare action, overruled that decision last month. She ruled that the new bar to waiver of deportation must be applied to all previously pending cases.

The usual principle in American law is that people's rights are not wiped out retroactively unless Congress says to do so, which it did not say here. In Reno's opinion there is no hint of understanding that what is at stake in taking a man from his family and home is, as Justice Brandeis said, "all that makes life worth living."

The new immigration provisions were pushed through Congress by people who do not like immigrants and want to punish them. But why is Janet Reno so relentless? My guess is that she wants to look tough these days _ but does not know the difference between being tough and being mean.

The Immigration Service is not an agency so respected that we want it to operate without any legal check. But Reno's fervor is more dangerous than that. Never before in peacetime has our government tried to eliminate habeas corpus. The next time it may not be an immigrant. It may be you.

New York Times News Service

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