Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Vijayakumar Thuraissigiam

No. 19-161

In the

Supreme Court of the United States

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

Petitioners,

v.

VIJAYAKUMAR THURAISSIGIAM,

Respondent.

On Writ of Certiorari to the

Ninth Circuit Court of Appeals

BRIEF FOR AMICI CURIAE THE STATES OF

ARIZONA, ALABAMA, ALASKA, ARKANSAS,

INDIANA, LOUISIANA, NEBRASKA, SOUTH

CAROLINA, SOUTH DAKOTA, AND TEXAS IN

SUPPORT OF PETITIONERS

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN III

Division Chief

ORAMEL H. (O.H.) SKINNER

Solicitor General

RUSTY D. CRANDELL

Deputy Solicitor General

Counsel of Record

KATE B. SAWYER

Assistant Solicitor General

KATHERINE H. JESSEN

Assistant Attorney General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

rusty.crandell@azag.gov

Counsel for Amici Curiae

Additional Counsel Listed on Inside Cover

STEVE MARSHALL

Attorney General of Alabama

KEVIN G. CLARKSON

Attorney General of Alaska

LESLIE RUTLEDGE

Attorney General of Arkansas

CURTIS T. HILL, JR.

Attorney General of Indiana

JEFF LANDRY

Attorney General of Louisiana

DOUGLAS PETERSON

Attorney General of Nebraska

ALAN WILSON

Attorney General of South Carolina

JASON RAVNSBORG

Attorney General of South Dakota

KEN PAXTON

Attorney General of Texas

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................3

I.

Expedited Removal Plays An

Important Role In Addressing The

Growing Immigration Crisis .........................3

A. The Ninth Circuit’s Decision

Upends A Key Aspect Of

Expedited Removal ..................................3

B. Expedited

Removal

Is

A

Measured Response To Address

The Mass Influx Of Inadmissible

Aliens ........................................................4

II.

Eliminating Expedited Removal

Will Significantly Burden States ..................9

A. States Expend Extraordinary

Resources In Addressing The

Immigration Crisis ...................................9

B. Granting

Federal

Habeas

Review To Rejected Asylum

Claimants Would Further Clog

Already-Congested Courts .....................12

CONCLUSION ..........................................................15

ii

TABLE OF AUTHORITIES

CASES

Arizona v. United States,

567 U.S. 387 (2012) ............................................2, 9

Funes Suazo v. McAleenan,

No. 19-cv-1882-LAB, 2019 WL 4849188

(S.D. Cal. Oct. 1, 2019).........................................14

Kaur v. Barr,

No. 19-cv-05306-PHX-MTL, 2019 WL

4974425 (D. Ariz. Oct. 8, 2019)............................13

Singh v. Barr,

No. 19-cv-05641-PHX-MTL, 2019 WL

6219315 (D. Ariz. Nov. 21, 2019) .........................14

Singh v. McAleenan,

No. 5:19-cv-02154-AB-SHK, 2019 WL

6053007 (C.D. Cal. Nov. 15, 2019) ......................14

Thuraissigiam v. U.S. Dep’t of Homeland

Sec.,

917 F.3d 1097 (9th Cir. 2019) ................................2

STATUTES

8 U.S.C. § 1182 ............................................................3

8 U.S.C. § 1225 .................................................... 3, 4, 5

8 U.S.C. § 1252 ............................................................4

REGULATIONS

8 C.F.R. § 208.30 .....................................................3, 4

OTHER AUTHORITIES

62 Fed. Reg. 10,312 (Mar. 6, 1997) .............................5

69 Fed. Reg. 48,877 (Aug. 11, 2004) ...........................5

iii

TABLE OF AUTHORITIES–Continued

84 Fed. Reg. 33,829 (July 16, 2019) .................. passim

84 Fed. Reg. 35,409 (July 23, 2019) ........................2, 6

Admin. Office of the U.S. Courts, Federal

Judicial Caseload Statistics 2018,

https://www.uscourts.gov/ statisticsreports/federal-judicial-caseloadstatistics-2018 ................................................ 12, 13

Arizona Department of Environmental

Quality, Waste (2016),

https://legacy.azdeq.gov/obep/waste.html ...........10

Congressional Border Security Briefing,

White House, A Border Security and

Humanitarian Crisis (Jan. 1, 2019),

https://www.whitehouse.gov/wpcontent/uploads/ 2019/01/BorderBriefing.pdf. .........................................................11

Deputy Attorney General Jeffrey A. Rosen

Delivers Remarks to the National

Sheriffs’ Association (June 17, 2019),

https://www.justice.gov/

opa/speech/deputy-attorney-generaljeffrey-rosen-delivers-remarks-nationalsheriffs-association ..............................................11

Homeland Security Advisory Council, Final

Emergency Interim Report CBP Families

and Children Care Panel Subcommittee

(Apr. 16, 2019) .............................................. 8, 9, 10

Letter from Kirstjen Nielsen, Secretary of

Homeland Security, and Mike Rogers,

Ranking Member of the House

Committee on Homeland Security (Mar.

28, 2019) .............................................................7, 8

iv

TABLE OF AUTHORITIES–Continued

Rafael Carranza, Migrant Families

Apprehended in El Paso Were

Transported, Released in Tucson,

azcentral.com (Mar. 7, 2019)

https://www.azcentral.com/story/news/po

litics/border issues/2019/03/07/migrantfamilies-apprehended-us-mexico-borderbeing-released-tucson-asylumseekers/2995413002/ ..............................................9

S. Rep. No. 104-249 (1996) ..........................................4

Stephen Dinan, Study Finds High Rates of

Prison, Jail for Illegals, A.P. News (Feb.

5, 2019), https://www.apnews.com

/b78a2a3c7b9d28c765ca3542e4581382 ...............11

The Case for Restructuring the Ninth

Circuit: An Inevitable Response to an

Unavoidable Problem: Hearing on

Oversight of the Structure of the Federal

Courts Before the S. Comm. on the

Judiciary, 115th Cong. (July 31, 2018)

(written testimony of U.S. Cir. Judge for

the Ninth Cir. Diarmuid F. O’Scannlain) ...........13

The Secure and Protect Act: a Legislative Fix

to the Crisis at the Southwest Border:

Hearing on S. 1494 Before the S. Comm.

On the Judiciary, 116th Cong. (2019)

(written testimony of Acting Secretary

U.S. Department of Homeland Security

Kevin McAleenan) .................................... 6, 7, 8, 10

U.S. Congressional Budget Office, The

Impact of Unauthorized Immigrants on

the Budgets of State and Local

Governments (Dec. 2007)............................... 11, 12

v

TABLE OF AUTHORITIES–Continued

U.S. Dep’t of Homeland Sec., Office of

Immigration Statistics, Immigration

Enforcement Actions: 2017 (Mar. 2019),

https://www.dhs.gov/sites/default/files/

publications/enforcement_actions_2017.

pdf .......................................................................5, 6

1

INTEREST OF AMICI CURIAE

Amici curiae, the States of Arizona, Alabama,

Alaska, Arkansas, Indiana, Louisiana, Nebraska,

South Carolina, South Dakota and Texas (“Amici

States”) file this brief in support of Petitioners.

The Ninth Circuit’s decision nullifies the critical

feature of expedited removal—the ability to

expeditiously remove aliens who are clearly

inadmissible.

Amici States, who are wholly

dependent upon the federal government to enforce

federal immigration law, have a critical interest in

the federal government’s ability to expeditiously

remove inadmissible aliens. This ability is vital to

keeping both Amici States and federal courts from

folding under the burdens generated by the evergrowing immigration crisis.

The Court should

reverse the Ninth Circuit’s decision.

SUMMARY OF ARGUMENT

There is a humanitarian and national security

crisis occurring at the southern border that is

worsening by the day. This crisis is fueled by the

ever-increasing numbers of inadmissible aliens

crossing U.S. borders every day. See 84 Fed. Reg.

33,829, 33,831 (July 16, 2019) (“The United States

has experienced a dramatic increase in the number

of aliens encountered along or near the southern

land border with Mexico.”).

At the core of this case is a challenge to “expedited

removal,” a measure Congress put in place to

alleviate the mounting challenges faced at the

border. Through the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA) of 1996, Pub.

L. 104–208, Congress provided authority to

2

expeditiously remove certain arriving aliens without

the extensive levels of review that are available in

other types of removal proceedings—levels of review

which often take years to complete. See 84 Fed. Reg.

35,409, 35,412 (July 23, 2019) (“[I]mmigration courts

nationwide are experiencing a historic backlog of

removal cases, and non-detained cases are taking

years to complete.”).

The Ninth Circuit’s opinion eliminates a critical

aspect of the expedited removal framework: the

limitation on habeas review. Thuraissigiam v. U.S.

Dep’t of Homeland Sec., 917 F.3d 1097, 1119 (9th Cir.

2019). By holding that, as applied to Thuraissigiam,

the limitation on habeas review under 8 U.S.C.

§ 1252(e)(2) violates the Suspension Clause,

“expedited” proceedings are no longer expedited,

effectively gutting the expedited removal framework.

This decision significantly impacts States, which

depend upon the federal government to enforce

federal immigration law. States bear “many of the

consequences of unlawful immigration.” Arizona v.

United States, 567 U.S. 387, 397 (2012). Eliminating

expedited removal will result in States having to

shoulder even greater costs. It will also impact the

ability of individuals to obtain timely relief in federal

courts, which are already suffering from an

unprecedented backlog of cases related to

immigration.

The Ninth Circuit’s decision threatens to eviscerate

the expedited removal process by undercutting the

entire premise of its existence. The Court should

reverse.

3

ARGUMENT

I.

EXPEDITED REMOVAL PLAYS AN IMPORTANT

ROLE

IN

ADDRESSING

THE

GROWING

IMMIGRATION CRISIS

A.

The Ninth Circuit’s Decision Upends A

Key Aspect Of Expedited Removal

By statute, the Secretary of the Department of

Homeland Security can apply a process, commonly

referred to as “expedited removal,” to arriving aliens

who lack proper documentation or who misrepresent

a material fact in the admission process. See 8

U.S.C. § 1225(b)(1)(A)(i); see also §§ 1182(a)(6)(C),

(a)(7). This process can also apply to aliens who have

“not been admitted or paroled into the United States,

and who ha[ve] not affirmatively shown … [physical

presence] in the United States continuously for the

2-year period immediately prior to the date of the

determination

of

inadmissibility[.]”

§ 1225(b)(1)(A)(iii).

Expedited removal, however, contains a limited

exception for aliens who indicate either “an intention

to apply for asylum” or “a fear of persecution.”

§ 1225(b)(1)(A)(ii). When this occurs, the alien’s

asylum claims are subject to a multi-level review

process, which includes review by an asylum officer,

as well as confirmation of the asylum officer’s

findings by a supervisory asylum officer.

§ 1225(b)(1)(A)(i)-(ii); 8 C.F.R. § 208.30(e)(7). If the

alien is found to have “a credible fear of persecution,”

the alien is taken out of the expedited removal

process and placed into full removal proceedings.

See § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(f). If the

asylum officers find no “credible fear of persecution,”

the alien is entitled to “prompt review” of that

4

determination

by

an

immigration

judge.

§ 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 208.30(g)(1).

But, after an immigration judge affirms what two

other asylum officers have concluded, Congress made

clear that “no court shall have jurisdiction to review”

a determination to place an individual into expedited

removal.

§ 1252(a)(2)(A).

After this process is

concluded, habeas review is only available to

consider (1) whether the petitioner is an alien, (2)

whether the petitioner was ordered removed through

expedited removal proceedings, and (3) whether the

petitioner can prove he or she is a Legal Permanent

Resident, a refugee, or has been granted asylum.

§ 1252(e)(2).

The Ninth Circuit dismantled these provisions.

The panel held that the habeas restriction in

§ 1252(e)(2) violates the Suspension Clause of the

U.S. Constitution. But, as this case illustrates,

granting habeas review to aliens subject to expedited

removal

significantly

delays

their

removal,

undermining the entire purpose of expedited

removal.

B.

Expedited Removal Is A Measured

Response To Address The Mass Influx Of

Inadmissible Aliens

Expedited removal has proven essential to the

continuation of a functioning border.

In 1996,

Congress enacted the expedited removal framework

to address an urgent need. At that time, Congress

expressed growing concern with the increasing

number of illegal entries. See S. Rep. No. 104-249, at

3 (1996) (bill “needed to address the high current

levels of illegal immigration”).

5

Since then, expedited removals have accounted for

a significant portion of all aliens removed during any

given year. For example, in 2016, the Department of

Homeland Security (“DHS”) removed 140,709 aliens

through expedited removal, accounting for ~41% of

removals that year; and in 2017, DHS removed

103,704

aliens

through

expedited

removal,

1

accounting for ~35% of removals that year.

Further illustrating the need for expedited

removal, DHS has expanded the classes of aliens

subject to expedited removal.

While Congress

provided authority under § 1225(b)(1)(A)(iii) to use

expedited removal proceedings when an alien could

not show that he or she was “physically present in

the United States continuously for the 2-year period

immediately prior to the date of the determination of

inadmissibility,” expedited removal was not initially

applied to the full extent allowed by the statute. See,

e.g., 62 Fed. Reg. 10,312 (Mar. 6, 1997) (defining

“arriving aliens” to include aliens arriving at a portof-entry and aliens interdicted at sea). Nevertheless,

the right was reserved “to apply the expedited

removal procedures to additional classes of aliens

within the limits set by the statute, if, in the

Commissioner’s

discretion,

such

action

is

operationally warranted.” 62 Fed. Reg. at 10,314.

Because of the unprecedented influx of illegal

entries, DHS has increasingly introduced rules

permitting expedited removal to the full extent of the

statute. See, e.g., 69 Fed. Reg. 48,877 (Aug. 11, 2004)

See U.S. Dep’t of Homeland Sec., Office of Immigration

Statistics, Immigration Enforcement Actions: 2017 at 9, 12 tbl.6

(Mar.

2019),

https://www.dhs.gov/sites/default/files/

publications/enforcement_actions_2017.pdf.

1

6

(expanding expedited removal to include aliens

encountered “within 100 air miles” of the border who

have not shown physical presence in the U.S. for at

least fourteen days); see also 84 Fed. Reg. 35,409

(July 23, 2019) (exercising authority to the full

extent of the statute).

Still, even with expedited removal broadened and

intact, the federal government lacks sufficient

resources to detain the surge of immigrants illegally

entering the U.S. through the southern border. 84

Fed. Reg. at 35,413 (“U.S. Border Patrol and ICE

lack sufficient detention capacity and resources to

detain the vast majority of aliens DHS apprehends

along the southern border.”); see also U.S. Dep’t of

Homeland Sec., Office of Immigration Statistics,

Immigration Enforcement Actions: 2017 at 9 (Mar.

2019),

https://www.dhs.gov/sites/default/

files/publications/enforcement_actions_2017.pdf

(320,000 aliens booked into detention during 2017).

Over the last ten years, the number of asylum

claims have spiked 1,883%. 84 Fed. Reg. at 33,838.

Further complicating the dramatic increase in

asylum claims is the demographic shift in the alien

population crossing the southern border toward

“predominantly Central American family units and

unaccompanied alien minors.” Id. It is difficult to

care for, process, and “expeditiously repatriate

[these] family units and unaccompanied alien

children.” Id.

The volume of asylum seekers arriving at the

southern border “is simply unsustainable” given

federal resources that “are stretched too thin.”2

2 The Secure and Protect Act: a Legislative Fix to the Crisis at

the Southwest Border: Hearing on S. 1494 Before the S. Comm.

7

“DHS facilities are overflowing, agents and officers

are stretched too thin, and the magnitude of arriving

and detained aliens has increased the risk of lifethreatening incidents.”3 For example, DHS lacks

sufficient beds and bed space, medical teams,

vehicles and transportation workers, and other

personnel required to provide humanitarian and

operational assistance, such as conducting welfare

checks, preparing meals, and accounting for personal

property. Nielsen Letter, supra at 2–3. The flood of

asylum applications—less than 15% of which are

granted—also occupies a large portion of limited

docket time and absorbs scarce government

resources, exacerbating the backlog of over 900,000

pending immigration court cases. 84 Fed. Reg. at

33,839. As then-Secretary of Homeland Security

Kirstjen Nielsen explained, “We are grappling with a

humanitarian and security catastrophe that is

worsening by the day, and the Department has run

out of capacity[.]” Nielsen Letter, supra at 1.

This crisis has “eroded the integrity of our borders.”

84 Fed. Reg. at 33,840. The overwhelming number of

aliens illegally entering the United States and

invoking asylum diverts “an ever-increasing amount”

of DHS resources that are necessary to “surveil,

apprehend, screen, and process the aliens.” Id. at

33,839. This in turn has resulted in “a massive

On the Judiciary, 116th Cong. (2019) (written testimony of

Acting Secretary U.S. Department of Homeland Security Kevin

McAleenan) (hereinafter, “McAleenan Testimony”) at 1–2.

3 Letter from Kirstjen Nielsen, Secretary of Homeland Security,

and Mike Rogers, Ranking Member of the House Committee on

Homeland Security (Mar. 28, 2019) (hereinafter, “Nielsen

Letter”); McAleenan Testimony, supra at 2 (accord).

8

increase in illegal crossings of our borders.”

Homeland Security Advisory Council, Final

Emergency Interim Report CBP Families and

Children Care Panel Subcommittee at 1 (Apr. 16,

2019) (hereinafter, “Advisory Council”). Because

DHS resources are being absorbed dealing with

aliens invoking asylum, DHS “is not able to

effectively manage its other border security

missions—apprehending migrants illegally seeking

to evade detection, including criminal aliens and

those who pose a public safety or national security

threat,

uncovering

instances

of

trafficking,

fraudulent family relationships and other criminal

activity among this population, and monitoring the

border for drug smuggling and other contraband.”

Id.

Simply stated, the magnitude of aliens seeking

asylum along the southern border has created a

humanitarian and security crisis that is preventing

DHS from “properly protect[ing] America’s territory,

enforc[ing] its immigration laws, and keep[ing]

criminals from exploiting our system.” McAleenan

Testimony, supra at 1; see also Nielsen Letter, supra

at 1 (DHS is “increasingly unable” to take

operational control of the southern border “given the

emergency situation.”). Granting asylum seekers—

who have failed to establish even preliminary

eligibility for asylum—the unrestricted ability to

seek habeas review effectively eliminates the ability

to expeditiously remove such aliens and will threaten

the stability of an already strained immigration

system.

9

II.

ELIMINATING EXPEDITED REMOVAL

SIGNIFICANTLY BURDEN STATES

WILL

A. States Expend Extraordinary Resources

In Addressing The Immigration Crisis

It is well-established that the federal government

“has broad, undoubted power over the subject of

immigration and the status of aliens.” Arizona, 567

U.S. at 394. Because of this, States depend on the

federal government both to formulate and to enforce

wise immigration policy. See id. at 403. As such, the

federal government’s ability to perform this

responsibility is critical to States, which bear “many

of the consequences of unlawful immigration.” See

id. at 397.

Even with expedited removal in place, States are

shouldering significant burdens because of the

already depleted federal resources. See Advisory

Council supra at 1, 7. These burdens “must not be

underestimated.” Arizona, 567 U.S. at 398. A few

illustrations are provided below:

 Lacking facilities, DHS has reverted to busing

and dropping off asylum seekers at local bus

stations or “already overwhelmed non-profit

shelters.” Advisory Council, supra at 1. Indeed,

DHS has affirmatively bused aliens apprehended

outside of Arizona into Arizona to utilize resources

within the State.4

4 Rafael Carranza, Migrant Families Apprehended in El Paso

Were Transported, Released in Tucson, azcentral.com (Mar. 7,

2019)

https://www.azcentral.com/story/news/politics/border

issues/2019/03/07/migrant-families-apprehended-us-mexicoborder-being-released-tucson-asylum-seekers/2995413002/.

10

 Lacking medical resources, DHS depends on

“community emergency rooms and other medical

facilities, as well as local emergency transport

systems,” to provide necessary medical treatment to

asylum seekers. Advisory Council, supra at 7.

 Lacking resources, DHS has released aliens

into communities “with unknown vaccination status

and without a standard medical examination for

communicable diseases of public health concern,”

creating significant public health risks. McAleenan

Testimony, supra at 3.

 It is believed that, lacking resources, DHS has

released aliens into local communities without

conducting criminal background checks, exposing

those local communities to heightened risks of crime

and forcing expenditure of resources to mitigate

public safety concerns.

 DHS’s inability to maintain operational

control of the southern border has resulted in

degradation of state environmental resources. For

example, the Arizona Department of Environmental

Quality estimates that over 2,000 tons of trash are

discarded at the Arizona border every year.5

 DHS’s inability to maintain operational

control of the southern border has resulted in states

having to expend significant resources to protect

their citizens and enforce their laws against

criminal elements. For example, according to a

recent survey, “nearly 3% of illegal immigrants in

Arizona end up in state prison or jail during the

5 Arizona Department of Environmental Quality, Waste (2016),

https://legacy.azdeq.gov/obep/waste.html.

11

course of a year—four times the rate of U.S. citizens

and legal residents.”6

 The diversion of resources caused by the

immigration crisis has contributed to a dramatic

spike in illegal drugs entering the U.S. through the

southern border. Deputy Attorney General Jeffrey

A. Rosen Delivers Remarks to the National Sheriffs’

Association (June 17, 2019), https://www.justice.gov/

opa/speech/deputy-attorney-general-jeffrey-rosendelivers-remarks-national-sheriffs-association

(“[T]he crisis at the [southern] border is a driver to

the drug crisis in our communities.”). For example,

between FY 2017 and FY 2018, there was a 38%

increase in methamphetamines, a 22% increase in

heroin, and a 73% increase in fentanyl at the

southern border. Congressional Border Security

Briefing, White House, A Border Security and

Humanitarian

Crisis

(Jan.

1,

2019),

https://www.whitehouse.gov/wp-content/uploads/

2019/01/Border-Briefing.pdf. These drugs destroy

lives, tear apart families, and have negative effects

that ripple through communities across the nation.

States expend large amounts of resources on illegal

immigration every year.7 Studies have shown that

“state and local governments spend more on

Stephen Dinan, Study Finds High Rates of Prison, Jail for

Illegals, A.P. News (Feb. 5, 2019), https://www.apnews.com

/b78a2a3c7b9d28c765ca3542e4581382.

6

7 In 2000, counties “that share a border with Mexico incurred

almost $190 million” in uncompensated health care costs for

illegal aliens. U.S. Congressional Budget Office, The Impact of

Unauthorized Immigrants on the Budgets of State and Local

Governments, at 8 (Dec. 2007). Law enforcement activities

related to illegal immigration cost counties bordering Mexico a

combined total of $108 million in 1999. Id. at 9.

12

unauthorized immigrants than they collect in

revenues from that population.” U.S. Congressional

Budget Office, The Impact of Unauthorized

Immigrants on the Budgets of State and Local

Governments, at 9 (Dec. 2007). “[E]ven though

unauthorized immigrants pay taxes and other fees to

state and local jurisdictions, the resulting revenues

offset only a portion of the costs incurred by those

jurisdictions for providing services related to

education, healthcare, and law enforcement.” Id. at

3. State resources are not unlimited and, by

undercutting a critical aspect of expedited removal,

the Ninth Circuit’s decision threatens to compound

the burdens of illegal immigration born by states.

B.

Granting Federal Habeas Review To

Rejected

Asylum

Claimants

Would

Further Clog Already-Congested Courts

The Ninth Circuit’s decision also undermines the

ability of individuals to have timely access to justice

in federal courts. Cases related to immigration

already occupy large portions of the limited docket

time available in federal courts. For example, in a

recent 12-month period, appeals from the Board of

Immigration Appeals to the circuit courts constituted

86 percent of all administrative agency appeals, “the

largest category of administrative agency appeals

filed in each circuit,” excluding the D.C. Circuit.

Admin. Office of the U.S. Courts, Federal Judicial

Caseload Statistics 2018, https://www.uscourts.gov/

statistics-reports/federal-judicial-caseload-statistics2018. And in that same time period, “[f]ilings for

defendants charged with immigration crimes …

constituted 29 percent of all criminal defendant

filings … [and] [s]eventy-seven percent of [these]

13

filings occurred in the five southwestern border

districts.” Id.8

The Ninth Circuit’s current caseload is a clear

example of the problems faced by federal courts as

the number of cases filed continues to increase.

Currently, the amount of cases filed in the Ninth

Circuit “exceeds those of the First, Third, Seventh,

Tenth, and D.C. Circuits, combined[,]” and its

backlog “is almost five times larger than the average

circuit’s.” See The Case for Restructuring the Ninth

Circuit: An Inevitable Response to an Unavoidable

Problem: Hearing on Oversight of the Structure of the

Federal Courts Before the S. Comm. on the Judiciary,

115th Cong. (July 31, 2018) (written testimony of

U.S. Cir. Judge for the Ninth Cir. Diarmuid F.

O’Scannlain) (hereinafter, “O’Scannlain Testimony”)

at 7. Even though the Ninth Circuit is staffed with

more judges than any other circuit, it still takes 30%

longer to dispose of appeals than the average of all

other circuits. O’Scannlain Testimony at Ex. 15. As

the number of cases filed in federal courts continues

to grow, “the Ninth Circuit’s problems will not go

away; rather they [will] continue to get worse.” Id. at

18.

And since the Ninth Circuit issued its decision in

the case below, expedited removal cases have already

been entering district courts. See, e.g., Kaur v. Barr,

No. 19-cv-05306-PHX-MTL, 2019 WL 4974425 (D.

Ariz. Oct. 8, 2019) (order granting temporary stay of

removal in light of Thuraissigiam); Singh v. Barr,

Furthermore, recent data shows that immigration courts are

experiencing a backlog of well over 900,000 pending cases. See

84 Fed. Reg. at 33,839.

8

14

No. 19-cv-05641-PHX-MTL, 2019 WL 6219315 (D.

Ariz. Nov. 21, 2019) (same); see also, e.g., Singh v.

McAleenan, No. 5:19-cv-02154-AB-SHK, 2019 WL

6053007 (C.D. Cal. Nov. 15, 2019) (denying writ of

habeas, but recognizing jurisdiction over petitioner’s

claim in light of Thuraissigiam); Funes Suazo v.

McAleenan, No. 19-cv-1882-LAB, 2019 WL 4849188

(S.D. Cal. Oct. 1, 2019) (same).

Allowing asylum seekers—who have already failed

three levels of review by DHS—to petition for habeas

review in federal courts will cause a new wave of

litigation in federal courts. Doing so not only delays

the removal of aliens, it will further exacerbate

federal caseloads and the staggering number of

backlogged cases. This undermines the ability of

individuals within states to have timely access to

justice in federal courts.

*

*

*

The habeas restriction in § 1252(e)(2) is a critical

component of the expedited removal framework

enacted by Congress. Eliminating this provision

nullifies the critical feature of expedited removal:

the ability to expeditiously remove aliens who are

clearly inadmissible. Doing so threatens the federal

government’s ability to maintain control over the

border and imposes significant burdens on the

States.

15

CONCLUSION

The decision below should be reversed.

Respectfully submitted.

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN III

Division Chief

ORAMEL H. (O.H.) SKINNER

Solicitor General

RUSTY D. CRANDELL

Deputy Solicitor General

Counsel of Record

KATE B. SAWYER

Assistant Solicitor General

KATHERINE H. JESSEN

Assistant Attorney General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

rusty.crandell@azag.gov

Counsel for Amici Curiae