Amicus Curiae Brief — Tae D. Johnson, Acting Director of U.S. Immigration and Customs Enforcement, et al., Petitioners v. Maria Angelica Guzman Chavez, et al.
Supreme Court briefNov 12, 2020
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No. 19-897
IN THE
Supreme Court of the United States
d
TONY H. PHAM , SENIOR OFFICIAL PERFORMING THE
DUTIES OF THE DIRECTOR OF U.S. IMMIGRATION
AND CUSTOMS ENFORCEMENT, ET AL .,
Petitioners,
—v.—
MARIA ANGELICA GUZMAN CHAVEZ , ET AL .,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF OF AMICI CURIAE HUMAN RIGHTS
FIRST AND INTERNATIONAL LAW SCHOLARS
IN SUPPORT OF RESPONDENTS
HARDY VIEUX
PATRICIA STOTTLEMYER
HUMAN RIGHTS FIRST
805 15th Street NW
Suite 900
Washington, DC 20005
(202) 547-5692
KENNJI KIZUKA
REBECCA GENDELMAN
HUMAN RIGHTS FIRST
75 Broad Street
New York, New York 10004
(212) 845-5200
EUGENE M. GELERNTER
Counsel of Record
DAKOTAH M. BURNS
BENJAMIN H. WEISSMAN
PATTERSON BELKNAP WEBB
& TYLER LLP
1133 Avenue of the Americas
New York, New York 10036
(212) 336-2000
emgelernter@pbwt.com
Counsel for Amici Curiae
TABLE OF CONTENTS
Page
INTEREST OF AMICI ................................................ 1
INTRODUCTION AND
SUMMARY OF ARGUMENT .......................... 4
I.
The INA Should Be Interpreted
Consistently with U.S. Treaty Obligations ..... 6
II.
U.S. Treaty Obligations Prohibit
Mandatory Detention Without
Case-by-Case Assessment ................................ 7
A.
The Government Must Provide
for an Individualized Determination
That a Non-Citizen’s Detention Is
Reasonable, Necessary and
Proportionate ....................................... 10
B.
International Law Imposes Special
Restrictions on the Detention of
Migrant Children ................................. 18
III.
The United States Has an Obligation
Under International Law to Provide
Prompt and Periodic Court Review
of All Detentions ............................................. 23
IV.
Arbitrary Detention Impedes Access to
Refugee Protection and Can Lead to
Refoulement .................................................... 28
CONCLUSION .......................................................... 33
TABLE OF AUTHORITIES
Page(s)
Cases
A v. Australia,
Communication No. 560/1993, U.N.
Human Rights Comm., U.N. Doc.
CCPR/C/59/D/560/1993
(Apr. 30, 1997) .................................... 11, 12, 14, 25
C. v. Australia,
Communication No. 900/1999, U.N.
Human Rights Comm., U.N. Doc.
CCPR/C/76/D/900/1999
(Nov. 13, 2002) ............................................... 13, 14
Chew Heong v. United States,
112 U.S. 536 (1884) ........................................ 6, 7, 8
Clark v. Allen,
331 U.S. 503 (1947) ................................................ 7
Damus v. Nielsen,
313 F. Supp. 3d 317 (D.D.C. 2018) ...................... 28
F. Hoffmann-La Roche Ltd v. Empagran
S.A.,
542 U.S. 155 (2004) ................................................ 6
Fong v. Australia,
Communication No. 1442/2005, U.N.
Human Rights Comm., U.N. Doc.
CCPR/C/97/D/1442/2005
(Nov. 23, 2009) ............................................... 14, 15
iv
James Terry Roach and Jay Pinkerton
v. United States,
Case 9647, Res. 3/87, Inter-Am.
Comm’n H.R. (Sept. 22, 1987) ............................... 9
Ma v. Ashcroft,
257 F.3d 1095 (9th Cir. 2001) ................................ 8
McCulloch v. Sociedad Nacional de
Marineros de Honduras,
372 U.S. 10 (1963) .................................................. 7
Mons v. McAleenan,
No. 19-CV-1593, 2019 U.S. Dist.
LEXIS 151174 (D.D.C. Sept. 5, 2019) ................. 28
Murray v. The Schooner Charming
Betsy,
6 U.S. (2 Cranch) 64 (1804) ............................... 4, 6
Roper v. Simmons,
543 U.S. 551 (2005) .............................................. 19
Sale v. Haitian Ctrs. Council,
509 U.S. 155 (1993) ................................................ 6
Shafiq v. Australia,
Communication No. 1324/2004, U.N.
Human Rights Comm., U.N. Doc.
CCPR/C/88/D/1324/2004
(Nov. 13, 2006) ..................................................... 15
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) ................................................ 8
v
Talbot v. Seeman,
5 U.S. (1 Cranch) 1 (1801) ..................................... 6
Torres v. Finland,
Communication No. 291/1988, U.N.
Human Rights Comm., U.N. Doc.
CCPR/C/38/D/291/1988
(Apr. 2, 1990) ........................................................ 25
Trans World Airlines, Inc. v. Franklin
Mint Corp.,
466 U.S. 243 (1984) ................................................ 7
United States v. Forty-Three Gallons of
Whisky,
108 U.S. 491 (1883) ................................................ 7
Van Alphen v. Netherlands,
Communication No. 305/1988, U.N.
Human Rights Comm., U.N. Doc.
CCPR/C/39/D/305/1988
(July 23, 1990) ...................................................... 12
Velez Loor v. Panama,
Preliminary Objections, Merits,
Reparations and Costs, Judgment,
Inter-Am. Ct. H.R. (ser. C) No. 218,
(Nov. 23, 2010) ..................................................... 14
Weinberger v. Rossi,
456 U.S. 25 (1982) .................................................. 6
Statutes
8 U.S.C. § 1231 ............................................................ 7
vi
Immigration and Nationality Act
8 U.S.C. § 1101 et seq. ................................. passim
Other Authorities
1 U.S. Comm’n on Int’l Religious
Freedom, Report on Asylum Seekers
in Expedited Removal (2005).............................. 28
A.C. Helton, Detention of Refugees and
Asylum Seekers, in Loescher, G. &
Monahan, L., “Refugee Issues in
International Relations,” Oxford
(1989) .................................................................... 18
Advisory Opinion OC-10/89, Inter-Am.
Ct. H.R. (July 14, 1989) ......................................... 9
Am. Coll. of Physicians, “The Health
Impact of Family Detentions in
Immigration Cases” (July 3, 2018) ........................... 31
Am. Pub. Health Assoc., “APHA
Opposes Separation and
Confinement to Detention Centers of
Immigrants” (Nov. 5, 2019) ................................. 31
American Convention on Human
Rights, Nov. 22, 1969, 1144 U.N.T.S.
123 (entered into force July 18, 1978) ..... 11, 22, 24
American Declaration of the Rights and
Duties of Man, O.A.S. Res. XXX
(1948), O.A.S. Off. Rec. OEA/Ser.
LV/I. 4 Rev. (1965) ..................................... 9, 10, 24
vii
American Immigration Council, “Access
to Counsel in Immigration Court”
(Sept. 2016) .................................................... 30, 31
Cathryn Costello, UNHCR, Article 31 of
the 1951 Convention Relating to the
Status of Refugees (July 2017) ............................ 16
David Hausman, Am. Civil Liberties
Union Found., Fact Sheet:
Withholding-Only Cases and
Detention (2015) .................................................. 27
Denise Gilman, Realizing Liberty: The
Use of International Human Rights
Law to Realign Immigration
Detention in the United States, 36
Fordham Int’l L.J. 243 (2013).......................... 9, 10
François Crépeau (Special Rapporteur
on the Human Rights of Migrants),
Rep. of the Special Rapporteur on
the Human Rights of Migrants, U.N.
Doc. A/HRC/20/24 (Apr. 2, 2012) ............. 12, 13, 25
G.A. Res. 43/173, Body of Principles for
the Protection of All Persons Under
Any Form of Detention or
Imprisonment (Dec. 9, 1988) ............................... 25
Gabriela Rodríguez Pizarro (Special
Rapporteur on the Human Rights of
Migrants), Rep. to the Commission
on Human Rights, U.N. Doc.
E/CN.4.2003/85 (Dec. 30, 2002) ........................... 16
viii
Guy S. Goodwin-Gill, Article 31 of the
1951 Convention Relating to the
Status of Refugees: NonPenalization, Detention and
Protection (2001) ............................................ 16, 18
Human Rights First, Lifeline on
Lockdown: Increased U.S. Detention
of Asylum Seekers (2016) .................................... 28
Human Rights First, Prisons and
Punishment: Immigration Detention
in California (2019) .............................................. 28
Implementation of Human Rights
Treaties, Executive Order No. 13107,
63 Fed. Reg. 68,991 (Dec. 10, 1998) ...................... 8
Ingrid Eagly et. al., Detaining Families:
A Study of Asylum Adjudication in
Family Detention, 106 Cal. L. Rev.
785 (2018) ........................................... 13, 30, 31, 32
Inter-Am. Comm’n H.R., Rep. on
Terrorism and Human Rights,
OEA/Ser/L/V/II.116, doc. 5, rev. 1
corr. (Oct. 22, 2002) .............................................. 14
Inter-Am. Comm’n H.R. Res. 1/08,
Principles and Best Practices on the
Protection of Persons Deprived of
Liberty in the Americas
(Mar. 13, 2008) ..................................................... 24
ix
Inter-Am. Comm’n H.R., Rep. on
Immigration in the United States:
Detention and Due Process,
OEA/Ser.L/V/II Doc. 78/10
(Dec. 30, 2010) ..................................................... 26
International Covenant on Civil and
Political Rights, Dec. 16, 1966,
999 U.N.T.S. 171, 138 Cong. Rec.
8070-71 (1992) (entered into force
Mar. 23, 1976) .............................................. passim
James C. Hathaway, The Rights of
Refugees Under International Law
(2005) .................................................................... 16
Jorge Bustamante (Special Rapporteur
on the Human Rights of Migrants),
Rep. to the Human Rights Council,
U.N. Doc. A/HRC/11/7
(May 14, 2009) ................................................ 16, 20
Jorge Bustamante (Special Rapporteur
on the Human Rights of Migrants),
Rep. to the Human Rights Council,
U.N. Doc. A/HRC/7/12/Add.2
(Mar. 5, 2008) ....................................................... 26
Juan Méndez (Special Rapporteur on
Torture and Other Cruel, Inhuman
or Degrading Treatment or
Punishment), Rep. to the Human
Rights Council, U.N. Doc.
A/HRC/28/68 (Mar. 5, 2015) ................................ 21
x
Julie M. Linton et al., “Detention of
Immigrant Children,” 139 Pediatrics 4
(Mar. 13, 2017) ..................................................... 22
Juvenile Reeducation Institute v.
Paraguay, Preliminary Objections,
Merits, Reparations, and Costs,
Judgment, Inter-Am. Ct. H.R.
(ser. C) No. 112 (Sept. 2, 2004) ............................ 19
Lindsay M. Harris, Withholding
Protection, 50.3 Columbia Human
Rights L. Rev. 1 (2019) ........................................ 27
Manfred Nowak, The United Nations
Global Study on Children Deprived
of Liberty (2019) ................................................... 22
Michael Kagan, Limiting Deterrence:
Judicial Resistance to Detention of
Asylum-Seekers in Israel and the
United States,
51 Texas Int’l L. J. 191 (2016) ............................. 18
Nils Melzer (Special Rapporteur on
Torture and Other Cruel, Inhuman
or Degrading Treatment or
Punishment), Rep. to the Human
Rights Council, U.N. Doc.
A/HRC/37/50 (Feb. 26, 2018) ............................... 29
Physicians for Human Rights, You Will
Never See Your Child Again: The
Persistent Psychological Effects of
Family Separation (Feb. 2020) ............................ 22
xi
Restatement (Third) of the Foreign
Relations Law of the United States
(1987) .................................................................. 6, 8
Riddhi Mukhopadhyay, Death in
Detention: Medical and Mental
Health Consequences of Indefinite
Detention of Immigrants in United
States, 7 Seattle J. for Social Justice
693 (2008) ............................................................. 32
Rights and Guarantees of Children in
the Context of Migration and/or in
Need of International Protection,
Advisory Opinion OC-21/14, InterAm. Ct. H.R. (ser. A) No. 21 (Aug.
19, 2014) ............................................................... 20
Southern Poverty Law Center Report,
“Detention system forces people to
give up claims to stay in U.S.”
(Oct. 4, 2018) .................................................. 32, 33
U.N. Comm. Against Torture, General
Comment No. 2, Implementation of
Article 2 by States Parties U.N. Doc.
CAT/C/GC/2 (Jan. 24, 2008) .................................. 8
U.N. Comm. on the Protection of the
Rights of All Migrant Workers and
Members of Their Families, Joint
General Comment No. 4 (2017), U.N.
Comm. on the Rights of the Child,
Joint General Comment No. 23
(2017), CMW/C/GC/4-CRC/C/GC/23
(Nov. 16, 2017) ..................................................... 20
xii
U.N. High Comm’r for Refugees,
UNHCR Emergency Handbook,
“Detention (and freedom of
movement) of persons of concern”
(2020) .................................................................... 31
U.N. High Comm’r for Refugees,
UNHCR’s Position Regarding the
Detention of Refugee and Migrant
Children in the Migration Context
(Jan. 2017) ...................................................... 20, 21
U.N. High Comm’r for Refugees,
Detention Guidelines, (2012) ....................... passim
U.N. Human Rights Comm., General
Comment No. 15: The Position of
Aliens Under the Covenant
(Sept. 30, 1986) .................................................... 11
U.N. Human Rights Comm., General
Comment No. 31: The Nature of the
General Legal Obligation Imposed
on States Parties to the Covenant,
U.N. Doc. CCPR/C/21/Rev.1/Add. 13,
(May 26, 2004) ...................................................... 11
U.N. Human Rights Comm., Concluding
Observations on the Fourth Periodic
Report of the United States of
America ¶ 15, U.N. Doc.
CCPR/C/USA/CO/4 (Apr. 23, 2014) ....................... 8
xiii
U.N. Human Rights Comm., General
Comment No. 35: Article 9 (Liberty
and Security of Person), U.N. Doc.
CCPR/C/GC/35 (Dec. 16, 2014) .................... passim
U.N. Refugee Agency Press Release,
“UNHCR stresses urgent need for
States to end unlawful detention of
refugees and asylum-seekers, amidst
COVID-19 pandemic” (July 24, 2020) ................. 21
U.N. Working Grp. on Arbitrary Det.,
Rep. of the Working Group on
Arbitrary Detention, U.N. Doc.
E/CN.4/1999/63 (Dec. 18, 1998) ........................... 12
U.N. Working Grp. On Arbitrary Det.,
Rep. of the Working Group on
Arbitrary Detention, U.N. Doc.
A/HRC/10/21 (Feb. 16, 2009) ............................... 30
U.N. Working Grp. on Arbitrary Det.,
Rep. of the Working Group on
Arbitrary Detention, U.N. Doc.
A/HRC/22/44 (Dec. 24, 2012) ............................... 11
U.N. Working Grp. on Arbitrary Det.,
Rep. of the Working Group on
Arbitrary Detention, U.N. Doc.
WGAD/CRP.1/2015 (May 4, 2015)................. 24, 25
U.N. Working Grp. on Arbitrary Det.,
Preliminary Findings from Its Visit
to the United States of America
(Oct. 24, 2016) ..................................................... 27
xiv
U.N. Working Grp. on Arbitrary Det.,
Rep. on Its visit to the United States
of America, U.N. Doc.
A/HRC/36/37/Add.2
(July 17, 2017) .................................... 17, 18, 22, 32
U.N. Working Grp. on Arbitrary Det.,
Revised Deliberation No. 5 on
deprivation of liberty of migrants,
U.N. Doc. A/HRC/39/45
(Feb. 7, 2018) ........................................................ 18
U.S. Comm’n on Int’l Religious
Freedom, Barriers to Protection
(2016) .................................................................... 28
U.S. Conference of Catholic Bishops et
al., Unlocking Human Dignity: A
Plan to Transform the U.S.
Immigrant Detention System (2015) .................. 13
United Nations Convention Against
Torture and Other Cruel, Inhuman
or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465
U.N.T.S. 85 (entered into force June
26, 1987) ....................................................... passim
United Nations Convention on the
Rights of the Child,
Nov. 20, 1989, 1577 U.N.T.S. 3
(entered into force Sept. 2, 1990)................... 19, 22
xv
United Nations Convention Relating to
the Status of Refugees, July 28,
1951, 189 U.N.T.S. 137 (entered into
force Apr. 22, 1954) ...................................... passim
United Nations Protocol Relating to the
Status of Refugees, Jan. 31, 1967,
606 U.N.T.S. 267 (entered into force
Oct. 4, 1967) ..................................................... 9, 29
United Nations Report of the Comm. on
the Rights of the Child, Report of the
2012 Day of General Discussion:
The Rights of All Children in the
Context of International Migration
(2012) ................................................................... 20
Vienna Convention on the Law of
Treaties, May 23, 1969, 1155
U.N.T.S. 331 (entered into force Jan.
27, 1980) .............................................................. 20
INTEREST OF AMICI1
Human Rights First is a non-governmental
organization established in 1978 that works to ensure
U.S. leadership on human rights globally and
compliance domestically with this country’s human
rights commitments. Human Rights First operates
one of the largest U.S. programs for pro bono legal
representation of refugees, working in partnership
with volunteer lawyers at leading law firms to provide
legal representation without charge to indigent
asylum applicants, including some detained in
immigration detention facilities across the United
States. Human Rights First has conducted research,
issued reports and provided recommendations to the
United States Government regarding compliance with
its legal obligations under international law with
respect to its use of immigration detention.
William J. Aceves is the Dean Steven R. Smith
Professor of Law at California Western School of Law.
He has appeared before the Inter-American
Commission on Human Rights, the United Nations
Special Rapporteur on Migrants, and the U.S.
Commission on Civil Rights. He has widely published
in the field of public international law.
Philip G. Alston is the John Norton Pomeroy
Professor of Law at New York University School of
Law. Since 2014, he has been United Nations Special
Rapporteur on extreme poverty and human rights,
and from 1986 to 1992 he was the United Nations
Counsel for both parties have consented in writing to the
participation of amici. No party in this case authored this brief
in whole or in part, or made any monetary contribution to its
preparation and submission.
1
2
Children’s Fund’s Senior Legal Adviser on children’s
rights, among other international law expert roles.
He has widely published in the fields of international
and human rights law.
Cathryn Costello is the Andrew W. Mellon
Professor of Refugee & Migration Law at Oxford
University. She currently serves as professor of
fundamental rights and co-director of the Centre for
Fundamental Rights at the Hertie School in Berlin.
Professor Costello has widely published on human
rights law, including on refugee law and immigration
detention.
François Crépeau is the Hans & Tamar
Oppenheimer Chair in Public International Law at
McGill University Faculty of Law. From 2011 to 2017,
he was the United Nations Special Rapporteur on the
Human Rights of Migrants. Professor Crépeau has
widely published in the field of international
migration law.
Denise Gilman is clinical professor and director of
the immigration clinic of the University of Texas at
Austin School of Law. From 1995 to 2000, Professor
Gilman served as Human Rights Specialist at the
Inter-American Commission of Human Rights at the
Organization of American States. She has written
and practiced extensively in the international human
rights and immigrants’ rights fields.
Guy Goodwin-Gill is a barrister and Emeritus
Professor of International Refugee Law at Oxford
University and Emeritus Fellow of All Souls College,
Oxford. He served as a Legal Adviser in the Office of
3
United Nations High Commissioner for Refugees from
1976-1988, and was President of the Media Appeals
Board of Kosovo from 2000-2003. He is the Founding
Editor of the International Journal of Refugee Law
and has written extensively on refugees, migration,
and matters related to public international law.
James C. Hathaway is the James E. and Sarah A.
Degan Professor of Law at the University of Michigan,
and Distinguished Visiting Professor of International
Refugee Law at the University of Amsterdam. He is
the author of The Rights of Refugees under
International Law (2005) and of The Law of Refugee
Status (2014, with Michelle Foster). He is the
founding director of the University of Michigan’s
Program in Refugee and Asylum Law.
Manfred Nowak is Professor of International
Human Rights Law at Vienna University and
Secretary General of the Global Campus of Human
Rights based in Venice. In 2016, he was appointed
Independent Expert leading the United Nations
Global Study on Children Deprived of Liberty, which
was presented to the United Nations General
Assembly in 2019. He is author of more than 600
books and articles in the field of public law,
international law and human rights.
Sarah Paoletti is practice professor of law and the
founder and director of the Transnational Legal Clinic
at the University of Pennsylvania Law School. She
has written extensively on the intersection of
migration and international human rights, and the
application of international human rights norms in
the United States.
4
Martin Scheinin is British Academy Global
Professor at Oxford University. He was a member of
the United Nations Human Rights Committee from
1997 to 2004. From 2005 to 2011, he was the first
United Nations Special Rapporteur on Human Rights
and Counter-Terrorism.
He has published
extensively on international human rights law.
INTRODUCTION AND
SUMMARY OF ARGUMENT
This amicus brief addresses the obligation of U.S.
courts to construe federal statutes, including the
Immigration and Nationality Act (“INA”), in a manner
consistent with the nation’s obligations under binding
international treaties. This has been an established
canon of statutory construction since Murray v. The
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64
(1804). Applying that canon here, this Court should
avoid an interpretation of the INA that allows for
detention
without
a
prompt
individualized
determination by a court, independent of the
detaining authorities and capable of ordering release,
that detention is reasonable, necessary and
proportionate under the facts of the particular case.
Pursuant to treaties, such as the International
Covenant on Civil and Political Rights (“ICCPR”), the
United States must protect individuals’ right to
liberty. It may not arbitrarily detain any person and
must provide certain safeguards against arbitrary
detention.
These protections, as well as those
contained in the United Nations Convention Relating
to the Status of Refugees (“Refugee Convention”) and
its Protocol, apply to individuals seeking refugee
protection held in U.S. immigration detention. In
5
particular, the United States must provide for prompt
review by a court of each individual’s detention, and
continuing detention must be subject to periodic
review. The Government must show the reviewing
court that the particular individual’s detention is, and
remains, reasonable, necessary and proportionate in
the circumstances of the individual’s case.
The Government’s interpretation of the INA
cannot be squared with U.S. treaty obligations under
international law. According to the Government, the
INA authorizes the detention of those seeking refugee
protection while denying them access to an
individualized immigration court custody hearing.
The Government’s interpretation, in short, would
deny to many individuals seeking refugee protection,
including families with children, the rights and
safeguards the United States is obligated to provide
under the ICCPR and other international treaties.
Further, detention impedes access to refugee
protection and increases the risk that individuals with
bona fide claims will abandon their cases, thus
undermining the United States’ compliance with the
principle of non-refoulement, which prohibits states
from returning refugees to countries where they may
be at risk of torture or persecution.
These considerations provide further reason why
this Court should reject the Government’s
construction of the INA and affirm the Court of
Appeals’ decision.2
Respondents’ brief invokes the canon of statutory
interpretation that a statute be interpreted, where possible, to
avoid potential constitutional concerns, and explains how the
INA should be construed to satisfy this principle.
2
6
I.
The INA Should Be Interpreted Consistently
with U.S. Treaty Obligations
Since the earliest days of the republic, this Court
has recognized that domestic statutes must be read in
light of this nation’s binding international treaty
obligations. See, e.g., Talbot v. Seeman, 5 U.S. (1
Cranch) 1, 43 (1801). “It has been a maxim of
statutory construction since the decision in
[Charming Betsy] that an act of congress ought never
to be construed to violate the law of nations, if any
other possible construction remains.” Weinberger v.
Rossi, 456 U.S. 25, 32 (1982) (internal quotation
marks omitted); accord F. Hoffmann-La Roche Ltd v.
Empagran S.A., 542 U.S. 155, 164 (2004); Sale v.
Haitian Ctrs. Council, 509 U.S. 155, 178 n.35 (1993);
Restatement (Third) of the Foreign Relations Law of
the United States § 114 (1987) [hereinafter
Restatement (Third)].
The United States is bound by the international
treaties to which it is a party. Restatement (Third)
§ 102. Under Charming Betsy and its progeny, this
Court must consider these sources of authority when
interpreting statutes that implicate the Government’s
obligations under international law. See Chew Heong
v. United States, 112 U.S. 536, 539-40 (1884)
(interpreting a statute so as not to violate terms of
treaty); Charming Betsy, 2 Cranch at 118
(interpreting a statute so as not to violate “the law of
nations”).
This Court has applied the Charming Betsy
doctrine for over two hundred years in a wide variety
of contexts. See, e.g., Weinberger, 456 U.S. at 32 (“We
think that some affirmative expression of
7
congressional intent to abrogate the United States’
international obligations is required in order to
construe” a statute as undermining international
agreements); Trans World Airlines, Inc. v. Franklin
Mint Corp., 466 U.S. 243, 251-53 (1984) (holding that
Warsaw Convention provisions were enforceable
despite a later conflicting statutory enactment, in part
because of considerations of international law);
United States v. Forty-Three Gallons of Whisky, 108
U.S. 491, 496 (1883) (“The laws of Congress are
always to be construed so as to conform to the
provisions of a treaty, if it be possible to do so.”); Clark
v. Allen, 331 U.S. 503, 517 (1947); McCulloch v.
Sociedad Nacional de Marineros de Honduras, 372
U.S. 10, 21 (1963);Chew Heong, 112 U.S. at 549.
This Court should thus avoid an interpretation of
the INA that would violate the Government’s treaty
obligations under international law.
II.
U.S. Treaty Obligations Prohibit Mandatory
Detention Without Case-by-Case Assessment
The Government’s practice of detaining noncitizens under 8 U.S.C. § 1231 without access to
immigration court review of their detention is at odds
with the ICCPR, a multilateral treaty that the United
States ratified without relevant reservation. See
International Covenant on Civil and Political Rights,
Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR];
138 Cong. Rec. 8070-71 (1992). As discussed below,
Article 9(1) of the ICCPR prohibits “arbitrary arrest
or detention.” In addition, Article 9(4) of the ICCPR
provides that anyone deprived of liberty by arrest or
detention “shall be entitled to take proceedings before
a court.” Pursuant to executive order, it is the
8
Government’s “policy and practice . . . fully to respect
and implement its obligations under the international
human rights treaties to which it is a party, including
the ICCPR.” Implementation of Human Rights
Treaties, Executive Order No. 13107, 63 Fed. Reg.
68,991 (Dec. 10, 1998).3 The U.N. Human Rights
Committee has specifically expressed concern that the
United States’ use of mandatory detention that
results in non-citizens being detained “without regard
to the individual case” raises concerns under Article 9
of the ICCPR.
U.N. Human Rights Comm.,
Concluding Observations on the Fourth Periodic
Report of the United States of America ¶ 15, U.N. Doc.
CCPR/C/USA/CO/4 (Apr. 23, 2014).
Other international instruments guarantee noncitizens’ rights that complement those in ICCPR
Article 9. The United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“Torture Convention”)
requires that “detainees and persons at risk of torture
and ill-treatment” have access to “judicial and other
remedies that will allow them to have their
complaints promptly and impartially examined, to
defend their rights, and to challenge the legality of
their detention or treatment.” U.N. Comm. Against
Torture, General Comment No. 2, Implementation of
Although the ICCPR is “not self-executing,” it nonetheless
“bind[s] the United States as a matter of international law,” Sosa
v. Alvarez-Machain, 542 U.S. 692, 735 (2004); see Restatement
(Third) § 111 cmt. h. Accordingly, it is a source of binding
obligations when construing a federal statute. See Chew Heong,
112 U.S. at 548-50; Ma v. Ashcroft, 257 F.3d 1095, 1114-115 (9th
Cir. 2001).
3
9
Article 2 by States Parties, ¶ 13, U.N.
CAT/C/GC/2 (Jan. 24, 2008) (emphasis added).
Doc.
The Refugee Convention further provides that
states parties “shall not impose penalties” on arriving
refugees “on account of their illegal entry or presence”
in the country or restrict “the movements of such
refugees” unless such restriction is “necessary.” See
United Nations Convention Relating to the Status of
Refugees art. 31, July 28, 1951, 189 U.N.T.S. 137
[hereinafter Refugee Convention]. Articles 2 through
34 of the Refugee Convention became binding on the
United States through its accession to the United
Nations Protocol Relating to the Status of Refugees
(“Refugee Protocol”). See United Nations Protocol
Relating to the Status of Refugees art. 1 ¶ 1, Jan. 31,
1967, 606 U.N.T.S. 267 [hereinafter Refugee
Protocol]. The American Declaration of the Rights
and Duties of Man (“American Declaration”) likewise
provides in Article XXV that “[e]very individual who
has been deprived of his liberty has the right to have
the legality of his detention ascertained without delay
by a court.”4 Further, as discussed in Section II.B
See art. XXV, O.A.S. Res. XXX (1948), O.A.S. Off. Rec.
OEA/Ser. LV/I. 4 Rev. (1965) (prohibiting arbitrary deprivations
of liberty and requiring review of detentions “without delay by a
court”). Although the American Declaration is not a binding
treaty, it is a source of legal obligation for every member of the
Organization of American States (OAS), and the United States
is a member of the OAS. See James Terry Roach and Jay
Pinkerton v. United States, Case 9647, Res. 3/87, Inter-Am.
Comm’n H.R. (Sept. 22, 1987) (finding United States legally
bound to the rights enumerated in the American Declaration);
accord Advisory Opinion OC-10/89, Inter-Am. Ct. H.R. (July 14,
1989); see also Denise Gilman, Realizing Liberty: The Use of
4
10
infra, international treaties—including the ICCPR
and Torture Convention—afford migrant children
special protections and restrict their immigrationbased detention.
Consistent with U.S. treaty obligations, the United
States may detain a person only after establishing, on
a case-by-case basis, that detention is reasonable,
necessary and proportionate under the particular
individual’s circumstances. Detention is only
permitted as a measure of last resort.
The
Government’s position runs counter to these
obligations.
A.
The Government Must Provide for an
Individualized Determination That a
Non-Citizen’s Detention Is Reasonable,
Necessary and Proportionate
The Government’s interpretation of the INA is at
odds with the United States’ obligation to assess on a
case-by-case basis whether an individual’s detention
is reasonable, necessary and proportionate.
Article 9(1) of the ICCPR provides that every
person “has the right to liberty” and “[n]o one shall be
subjected to arbitrary arrest or detention.” ICCPR
art. 9(1) (emphasis added). The American Declaration
similarly provides that all persons have the right to
liberty and that unlawful or arbitrary detention is
prohibited. American Declaration arts. I, XXV. The
prohibition against arbitrary detention “is recognized
in all major international and regional instruments
International Human Rights Law to Realign Immigration
Detention in the United States, 36 Fordham Int’l L.J. 243, 282
(2013).
11
for the promotion and protection of human rights,”
and it has been “widely enshrined in national
constitutions and legislation.” U.N. Working Grp. on
Arbitrary Det., Rep. of the Working Group on
Arbitrary Detention, ¶¶ 42, 43, U.N. Doc.
A/HRC/22/44, (Dec. 24, 2012) [hereinafter 2012
Arbitrary Detention Report].
As the U.N. Human Rights Committee, which
supervises and monitors the implementation of
ICCPR obligations, has explained, Article 9(1) of the
ICCPR applies to all deprivations of liberty, including
those related to immigration control. U.N. Human
Rights Comm., General Comment No. 35: Article 9
(Liberty and Security of Person), ¶¶ 3, 12, 18, U.N.
Doc. CCPR/C/GC/35 (Dec. 16, 2014) [hereinafter HRC
General Comment No. 35]. The rights espoused in the
ICCPR “must . . . be available to all individuals,
regardless of nationality or statelessness, such as
asylum seekers [and] refugees.” U.N. Human Rights
Comm., General Comment No. 31: The Nature of the
General Legal Obligation Imposed on States Parties
to
the
Covenant,
¶ 10,
U.N.
Doc.
CCPR/C/21/Rev.1/Add.13 (May 26, 2004). Parties to
the ICCPR, such as the United States, must also
ensure “in their legislation and in practice” that
immigrants are not denied their right to be free from
arbitrary detention. See HRC General Comment No.
15, ¶ 4.
Detention is arbitrary if it is not “reasonable,
necessary and proportionate in the light of the
circumstances.” HRC General Comment No. 35, ¶ 18.
To ensure these requirements are met, the decision to
detain a person “must consider relevant factors case
by case.” Id.; see also A v. Australia, Communication
12
No. 560/1993, U.N. Human Rights Comm., ¶¶ 9.2, 9.4,
U.N. Doc. CCPR/C/59/D/560/1993 (Apr. 30, 1997);
François Crépeau (Special Rapporteur on the Human
Rights of Migrants), Rep. of the Special Rapporteur on
the Human Rights of Migrants ¶ 53, U.N. Doc.
A/HRC/20/24 (Apr. 2, 2012) [hereinafter Rapporteur’s
2012 Report] (“States must take full account of
individual circumstances” when considering whether
detention is appropriate). That decision must also
take into account “all the circumstances” that bear on
the reasonableness, necessity and proportionality of
Van
Alphen
v.
Netherlands,
detention.
Communication No. 305/1988, U.N. Human Rights
Comm., ¶ 5.8, U.N. Doc. CCPR/C/39/D/305/1988 (July
23, 1990); see also HRC General Comment No. 35,
¶ 18.
The “necessity” principle allows states to resort to
detention “only as a last available measure.” U.N.
Working Grp. on Arbitrary Det., Rep. of the Working
Group on Arbitrary Detention, ¶ 78, U.N. Doc.
E/CN.4/1999/63 (Dec. 18, 1998) [hereinafter 1998
Arbitrary Detention Report]; see also U.N. High
Comm’r for Refugees, Detention Guidelines (2012)
[hereinafter UNHCR Detention Guidelines], ¶ 2
(noting that “detention . . . should normally be avoided
and be a measure of last resort”).5 It also requires
states to “take into account less invasive means of
achieving the same ends” before resorting to
detention. HRC General Comment No. 35, ¶ 18;
The UNHCR Detention Guidelines are issued in conjunction
with Article 35 of the Refugee Convention, and “reflect the state
of international law relating to detention – on immigration
related grounds – of asylum-seekers and other persons seeking
international protection.” UNHCR Detention Guidelines, ¶ 4.
5
13
accord C. v. Australia, Communication No. 900/1999,
U.N. Human Rights Comm., ¶ 8.2, U.N. Doc.
CCPR/C/76/D/900/1999 (Nov. 13, 2002).
A
determination that detention is necessary to protect
the public or prevent flight requires “case by case”
consideration of “less invasive means of achieving the
same ends, such as reporting obligations, sureties or
other conditions.”6 HRC General Comment No. 35,
¶ 18. A “mandatory rule for a broad category” of
Id.; accord A v.
individuals is impermissible.
Australia, ¶ 9.2 (noting that necessity must be
determined in light of “all the circumstances of the
case”).
The “proportionality” principle requires states to
balance the potential need for detention against the
effect that detention will have on each particular
detainee. As the U.N. Refugee Agency (“UNHCR”)
has explained, proportionality “requires that a
balance be struck between the importance of
respecting the rights to liberty and security of person
States have numerous alternatives to detention to manage
migration in ways that are consistent with international legal
obligations. See Rapporteur’s 2012 Report, ¶ 48 (“Research has
found that over 90 per cent compliance or cooperation rates can
be achieved when persons are released to proper supervision and
assistance. The alternatives have also proved to be considerably
less expensive than detention . . . .”); UNHCR Detention
Guidelines at Annex A; U.S. Conference of Catholic Bishops et
al., Unlocking Human Dignity: A Plan to Transform the U.S.
Immigrant Detention System 28-29 (2015) (outlining
effectiveness of alternatives to detention in the United States in
securing
appearance
for
hearings
and
immigration
appointments); Ingrid Eagly et. al., Detaining Families: A Study
of Asylum Adjudication in Family Detention, 106 Cal. L. Rev.
785, 815-16 (2018) (citing study showing that 96% of families
who applied for asylum attended “all their hearings”).
6
14
and freedom of movement, and the public policy
objectives of limiting or denying these rights.”
UNHCR Detention Guidelines, ¶ 34. The principle
also requires the state to balance the need for
detention against the effect that detention will have
on an individual detainee’s “physical or mental
health.” See HRC General Comment No. 35, ¶ 18.
Assessing
reasonableness,
necessity
and
proportionality requires an individualized assessment
of the unique circumstances concerning each nonSee Velez Loor v. Panama,
citizen detainee.
Preliminary Objections, Merits, Reparations and
Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 218,
¶ 171 (Nov. 23, 2010); Inter-Am. Comm’n H.R., Rep.
on Terrorism and Human Rights, OEA/Ser/L/V/II.116,
doc. 5, rev. 1 corr., ¶ 409 (Oct. 22, 2002). For that
reason, the Human Rights Committee has repeatedly
found that a non-citizen’s detention was arbitrary
under Article 9(1) of the ICCPR where the state failed
to justify the detention in light of the individual’s
particular circumstances. In Kwok Yin Fong v.
Australia, for example, the Human Rights Committee
concluded that Australia had violated Article 9(1) of
the ICCPR where it put forward only “general
reasons” to justify the prolonged detention of a noncitizen and failed to justify the detention based on
“grounds particular to her case.” Fong v. Australia,
Communication No. 1442/2005, U.N. Human Rights
Comm., ¶ 9.3, U.N. Doc. CCPR/C/97/D/1442/2005
(Nov. 23, 2009). Similarly, the Committee has found
a violation of Article 9(1) where the state tried to
justify an asylum seeker’s prolonged detention on the
ground that its “general experience” was that “asylum
seekers abscond if not retained in custody.” Shafiq v.
15
Australia, Communication No. 1324/2004, U.N.
Human
Rights
Comm.,
¶ 7.3,
U.N.
CCPR/C/88/D/1324/2004 (Nov. 13, 2006).
Doc.
i. Mandatory Detention Is an Impermissible
Penalty and Restriction on Movement of
Refugees
The Government’s interpretation of the INA also
conflicts with the United States’ obligation under the
Refugee Convention to avoid unnecessary restrictions
on the movement of individuals seeking refugee
protection and to avoid punishing such persons for
their unlawful entry or presence.
Mandatory detention—applied without regard to
reasonableness, necessity or proportionality—serves
no governmental purpose other than to punish those
seeking refuge in the United States. Such arbitrary,
punitive detention amounts to an unlawful penalty
under international law. See, e.g., UNHCR Detention
Guidelines, ¶ 32 (explaining that “detention for the
sole reason that the person is seeking asylum”
constitutes a “penalty . . . in violation of international
law”); see also Refugee Convention art. 31(2)
(prohibiting contracting states from imposing
restrictions on the movements of refugees “other than
those which are necessary”); UNHCR Detention
Guidelines, ¶¶ 21-30; Gabriela Rodríguez Pizarro
(Special Rapporteur on the Human Rights of
Migrants), Rep. to the Commission on Human Rights,
¶ 73, U.N. Doc. E/CN.4.2003/85 (Dec. 30, 2002)
(“Detention of migrants on the ground of their
irregular status should under no circumstance be of a
punitive nature.”) These concerns extend with equal,
if not greater, force to migrant children. Jorge
16
Bustamante (Special Rapporteur on the Human
Rights of Migrants), Rep. to the Human Rights
Council, ¶ 105, U.N. Doc. A/HRC/11/7 (May 14, 2009)
[hereinafter
Rapporteur’s
2009
Report]
(“[D]eprivation of liberty of children in the context of
migration should never have a punitive nature.”).
The Refugee Convention specifically prohibits the
use of detention as a penalty or sanction for illegal
entry or presence in a country where refuge is sought.
See UNHCR Detention Guidelines, ¶¶ 11, 14, 32,
48(iii) (“Detention of asylum-seekers for immigrationrelated reasons should not be punitive in nature.”);
Cathryn Costello, UNHCR, Article 31 of the 1951
Convention Relating to the Status of Refugees, (July
2017), PPLA/2017/01, at 32; James C. Hathaway, The
Rights of Refugees Under International Law 421-23
(2005) (Article 31(2) enjoins states “from detaining
refugees on the basis of general rules that authorize
prolonged detention as a response to unauthorized
entry”); Guy S. Goodwin-Gill, Article 31 of the 1951
Convention Relating to the Status of Refugees: NonPenalization, Detention and Protection, ¶¶ 108, 111
(2001) [hereinafter Goodwin-Gill] (penalizing those
viewed as illegal entrants without regard to the
circumstances of flight in each individual case
amounts to a breach of state’s obligation).
In this case, the Government seeks to detain those
who seek refugee protection for the duration of their
immigration proceedings due to the manner of their
entry and without allowing an immigration court to
review their detention. The U.N. Working Group on
Arbitrary Detention has specifically expressed
concern regarding the United States’ detention of
immigrants subject to mandatory detention. Upon
17
visiting the United States, the Working Group
observed that immigrants in U.S. “holding facilities .
. . were subject to mandatory detention under punitive
conditions that were often indistinguishable from
those applicable to persons who had been sentenced to
punishment in the criminal justice system.” U.N.
Working Grp. on Arbitrary Det., Rep. on Its Visit to
the United States of America, ¶ 27, U.N. Doc.
A/HRC/36/37/Add.2 (July 17, 2017) [hereinafter 2017
Working Group Report]. These conditions were, “in
many cases, . . . unreasonably long, unnecessary,
[and] . . . carried out in degrading conditions.” Id.
¶ 87. Mandatory detention substantially increases
the likelihood that individuals seeking refugee
protection will be subjected to such unlawful
treatment.
ii. Detention as a Method of Deterrence Is
Impermissible
International law likewise prohibits the use of
detention as a method of deterring unlawful entry or
presence of persons seeking international protection.
A.C. Helton, Detention of Refugees and Asylum
Seekers, in Loescher, G. & Monahan, L., “Refugee
Issues in International Relations,” Oxford (1989)
(“Detention for purposes of deterrence is a form of
punishment, in that it deprives a person of their
liberty for no other reason than their having been
forced into exile . . . .”); U.N. Working Grp. on
Arbitrary Det., Revised Deliberation No. 5 on
deprivation of liberty of migrants, ¶¶ 21-22, U.N. Doc.
A/HRC/39/45 (Feb. 7, 2018) (“The element of
reasonableness requires that the detention be
18
imposed in pursuance of a legitimate aim in each
individual case.”).
Detention “as part of a policy to deter future
asylum seekers, or to dissuade those who have
commenced their claims from pursuing them, is
contrary to the norms of refugee law.” Goodwin-Gill
at 54; see also UNHCR Detention Guidelines, ¶ 32;
Michael Kagan, Limiting Deterrence: Judicial
Resistance to Detention of Asylum-Seekers in Israel
and the United States, 51 Texas Int’l L. J. 191, 195
(2016) (detention for the purpose of general deterrence
“focus[es] on deterring people who are not even parties
to the proceedings”). The Working Group on Arbitrary
Detention has further observed that the “degrading
conditions” to which many detained immigrants are
subjected in the United States are an unlawful
“deterrent to legitimate asylum claims.”
2017
Working Group Report, ¶ 87. Mandatory detention,
which often functions solely as a punitive deterrent to
legitimate claims for refugee protection, is thus
contrary to international law.
B.
International Law Imposes Special
Restrictions on the Detention of
Migrant Children
The Government’s unsupportable interpretation of
the INA further ignores the special protections
afforded to children under binding international
treaties. These safeguards prohibit the detention of
children for reasons related to their immigration
status in almost all cases. In those rare circumstances
where detention of a child for immigration purposes
19
may be necessary, it should be used only as a last
resort and for the shortest possible measure of time.
Article 24 of the ICCPR mandates that every child
has “the right to such measures of protection as are
required by [his or her] status as a minor.” See also
Juvenile Reeducation Institute v. Paraguay,
Preliminary Objections, Merits, Reparations, and
Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 112,
¶¶ 147, 225-28 (Sept. 2, 2004) (explaining that “it is
the child’s vulnerability that necessitates special
measures of protection”); see also Roper v. Simmons,
543 U.S. 551, 553 (2005) (recognizing children’s
special vulnerability due to their age).
These protections are rooted in the principle that,
“[i]n all actions concerning children, whether
undertaken by public or private social welfare
institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child
shall be a primary consideration.” United Nations
Convention on the Rights of the Child (“CRC”) art. 3,
Nov. 20, 1989, 1577 U.N.T.S. 3 (emphasis added).7
International bodies and courts have consistently
recognized that immigration-based detention is never
in a child’s best interest. See, e.g., Rights and
Guarantees of Children in the Context of Migration
and/or in Need of International Protection, ¶ 154,
Advisory Opinion OC-21/14, Inter-Am. Ct. H.R. (ser.
A) No. 21 (Aug. 19, 2014) (finding that the
“deprivation of liberty of a child” based “exclusively on
migratory reasons” can “never be understood as a
The United States has signed, but not ratified, the CRC.
Nevertheless, as a signatory to the CRC, the United States is
bound not to “defeat” the CRC’s “object and purpose.” Vienna
Convention on the Law of Treaties, Art. 18, 1155 U.N.T.S. 331.
7
20
measure that responds to the child’s best interest”);
Rapporteur’s 2009 Report, ¶ 62; United Nations
Comm. on the Rights of the Child, Rep. of the 2012
Day of General Discussion: The Rights of All Children
in the Context of International Migration, ¶ 78 (“The
detention of a child because of their or their parent’s
migration status constitutes a child rights violation
and always contravenes the principle of the best
interests of the child.”).
For these reasons, international bodies have
concluded that the immigration-based detention of
children is generally prohibited under international
law. See, e.g., U.N. Comm. on the Protection of the
Rights of All Migrant Workers and Members of Their
Families, Joint General Comment No. 4 (2017), U.N.
Comm. on the Rights of the Child, Joint General
Comment No. 23 (2017), ¶¶ 10-12 CMW/C/GC/4CRC/C/GC/23 (Nov. 16, 2017) (finding that detention
of children for immigration purposes “conflict[s] with
the principle of the best interests of the child”); U.N.
High Comm’r for Refugees, UNHCR’s Position
Regarding the Detention of Refugee and Migrant
Children in the Migration Context (Jan. 2017)
(concluding “that children should not be detained for
immigration related purposes” because “detention is
never in their best interests.” (emphasis in original));
see also U.N. Refugee Agency Press Release, “UNHCR
stresses urgent need for States to end unlawful
detention of refugees and asylum-seekers, amidst
COVID-19 pandemic” (July 24, 2020), available at,
https://www.unhcr.org/enus/news/press/2020/7/5f156
9344/unhcr-stresses-urgent-need-states-endunlawful-detention-refugees-asylum.html (“Children
should never be held in immigration detention.”).
21
Due to the exceptional vulnerability of child
detainees, the detention of children can even amount
to torture, thereby violating the Torture Convention,
to which the United States is a party. See, e.g., Juan
Méndez (Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment), Rep. to the Human Rights Council,
¶ 80, U.N. Doc. A/HRC/28/68 (Mar. 5, 2015) (“[T]he
deprivation of liberty of children based on their or
their parents’ migration status is never in the best
interests of the child, exceeds the requirement of
necessity, becomes grossly disproportionate and may
constitute cruel, inhuman or degrading treatment of
migrant children.”); U.N. Gen. Assembly, Report of
the Independent Expert Leading the United Nations
Global Study on Children Deprived of Liberty, ¶ 6,
U.N. Doc. A/74/136 (July 11, 2019) (“[T]he available
evidence shows that immigration detention is harmful
to a child’s physical and mental health and exposes
the child to the risk of sexual abuse and
exploitation.”); Julie M. Linton et al., “Detention of
Immigrant Children,” 139 Pediatrics 4, 6 (Mar. 13,
2017) (“[E]ven brief detention can cause psychological
trauma and induce long-term mental health risks for
children”).8
Additionally, mandatory detention of asylum seekers with
reinstated removal orders may result in family separation,
where, for instance, a parent is subjected to mandatory detention
because of a prior removal order, but the child is entitled to a
custody hearing. Family separation is also prohibited under
international law. See ICCPR Article 17; Convention on the
Rights of the Child Articles 7 and 9; American Convention on
Human Rights Article 11. Family separation also violates the
Torture Convention and the ICCPR because it amounts to
8
22
In those rare circumstances where brief detention
of a child may be necessary, the detention must be
carried out “only as a measure of last resort and for
the shortest appropriate period of time.” UNHCR
Detention Guidelines, ¶ 51. Some experts, however,
have concluded that detention of children for
migration purposes cannot be justified as a measure
of last resort given the availability of non-custodial
alternatives. Manfred Nowak, The United Nations
Global Study on Children Deprived of Liberty 448-51
(2019). The Working Group on Arbitrary Detention—
after observing children in the United States, “some
only a few days old,” in detention “despite the
availability of less restrictive measures”—has
likewise noted that children should never be detained
“except as a measure of last resort and for the shortest
appropriate period of time, taking into account their
best interests as a primary consideration.” 2017
Working Group Report, ¶¶ 42, 44.
The Government’s interpretation of the INA would
deprive a child subject to reinstatement of removal
with his or her parent(s) of the individualized hearing
necessary to make certain that the child’s best
interests, in light of his or her unique circumstances,
are taken into account. At a minimum, a case-by-case
inquiry is essential to ensure that the child is detained
only as a last resort and for the shortest possible
period of time. The Government’s interpretation
would make this assessment impossible and, as such,
torture. See Physicians for Human Rights, You Will Never See
Your Child Again: The Persistent Psychological Effects of
Family Separation 5 (Feb. 2020), https://phr.org/wpcontent/uploads/2020/02/PHR-Report-2020-Family-SeparationFull-Report.pdf.
23
it cannot be squared with the United States’
obligations under international law.
III.
The United States Has an Obligation Under
International Law to Provide Prompt and
Periodic Court Review of All Detentions
The United States’ international treaty obligations
further require the Government to provide all those
who seek refugee protection with prompt and periodic
court review of their detention. ICCPR Article 9(4)
provides:
Anyone who is deprived of his liberty by
arrest or detention shall be entitled to
take proceedings before a court, in order
that that court may decide without delay
on the lawfulness of his detention and
order his release if the detention is not
lawful.9
Similarly, the American Declaration provides that
“[e]very individual who has been deprived of his
liberty has the right to have the legality of his
detention ascertained without delay by a court.”
American Declaration art. XXV; see also American
Convention art. VII; Inter-Am. Comm’n H.R. Res.
1/08, Principles and Best Practices on the Protection
See also, e.g., UNHCR Detention Guidelines, ¶ 2 (“As seeking
asylum is not an unlawful act, any restrictions on liberty imposed
on persons exercising this right need to be provided for in law,
carefully circumscribed and subject to prompt review.”);
Comment 35 to the ICCPR, ¶ 33 (explaining that, in the context
of criminal charges, “delay longer than 48 hours must remain
absolutely exceptional and be justified under the
circumstances”).
9
24
of Persons Deprived of Liberty in the Americas, at
Principle III(1) (Mar. 13, 2008).
The right of detainees to prompt court review of
their detention is binding on the United States
through the ICCPR. See also U.N. Working Grp. on
Arbitrary Det., Rep. of the Working Group on
Arbitrary
Detention,
¶ 19,
U.N.
Doc.
WGAD/CRP.1/2015 (May 4, 2015) [hereinafter May
2015 Arbitrary Detention Report]; id. ¶ 19 n.35 (“The
right to bring such proceedings before a court is well
enshrined in treaty law[.]”). This is a “self-standing
human right, the absence of which constitutes a
human rights violation.” Id. ¶ 2.
The review proceedings guaranteed by the ICCPR
must also be conducted by a court that is independent
of the detaining authority. See id. ¶ 69 (the reviewing
court “must be a different body from the one that
ordered the detention”); UNHCR Detention
Guidelines, ¶ 47(iii) (“[T]he reviewing body must be
independent of the initial detention authority, and
possess the power to order release or to vary any
conditions of release.”).
The U.N. Human Rights
Committee has explained that the ICCPR “envisages
that the legality of detention will be determined by a
court so as to ensure a higher degree of objectivity and
independence in such control.” Torres v. Finland,
Communication No. 291/1988, U.N. Human Rights
Comm.,
¶ 7.2,
U.N.
Doc.
CCPR/C/38/D/
291/1988 (Apr. 2, 1990) [hereinafter Torres v.
Finland]; accord G.A. Res. 43/173, Body of Principles
for the Protection of All Persons Under Any Form of
Detention or Imprisonment (Dec. 9, 1988).
25
Moreover, the reviewing court must have the
authority to order release. See A v. Australia, ¶ 9.5
(stating that court review under ICCPR art. 9(4)
“must include the possibility of ordering release”);
May 2015 Arbitrary Detention Report, ¶ 27.
Court review of detention must also be provided
periodically or regularly. See HRC General Comment
No. 35, ¶ 18 (detention “must be subject to periodic reevaluation and judicial review”). Periodic review is
necessary to prevent arbitrary detention because
“detention should not continue beyond the period for
which the State can provide appropriate justification.”
A v. Australia, ¶ 9.4; accord HRC General Comment
No. 35, ¶ 12 (“[D]etention is arbitrary if it is not
subject to periodic re-evaluation of the justification for
continuing the detention.”); Rapporteur’s 2012
Report, ¶ 21; May 2015 Arbitrary Detention Report,
¶ 61 (non-nationals should have access to “regular
periodic reviews of their detention to ensure it
remains necessary, proportional, lawful and nonarbitrary”); id. ¶ 82; id. ¶ 104(b) (court is empowered
to “consider whether the detention remains justified,
or whether release is warranted in light of all the
changing circumstances of the detained individual’s
case”).
The system the Government advocates—in which
those who seek refugee protection would be subject to
mandatory detention on the decision of U.S. Customs
and Border Protection or Immigration and Customs
Enforcement (“ICE”) to reinstate a removal order
depriving them of an immigration court custody
hearing—is at odds with these requirements. Even if
ICE did fairly exercise its discretion to release some
asylum seekers, the United States’ international law
26
obligations require that review of detention be
conducted by a different body from the one that orders
detention.
Accordingly, the Government must
“ensure that the decision to detain a non-citizen is
promptly assessed by an independent court” and
guarantee that “immigration detainees are given the
chance to have their custody reviewed in a hearing
before an immigration judge.” Jorge Bustamante
(Special Rapporteur on the Human Rights of
Migrants), Rep. to the Human Rights Council ¶¶ 122,
123, U.N. Doc. A/HRC/7/12/Add.2 (Mar. 5, 2008). The
Inter-American Commission on Human Rights
recommends that U.S. detention determinations be
conducted on a case-by-case basis, subject to judicial
review, and that immigrants be permitted to appeal
detention decisions to an immigration court. InterAm. Comm’n H.R., Rep. on Immigration in the United
States: Detention and Due Process, ¶¶ 429, 431,
OEA/Ser.L/V/II Doc. 78/10 (Dec. 30, 2010). The U.N.
Working Group on Arbitrary Detention has similarly
stated that “[i]ndividualised review should comply
with procedural requirements of international law,
including: the requirement that the State bear the
burden of proof to demonstrate that it has a legitimate
interest in detention, the provision of automatic and
periodic bond hearings, and the requirement that
immigration judges consider the accrued length of
detention in deciding whether to release an
individual.” U.N. Working Grp. on Arbitrary Det.,
Preliminary Findings from Its Visit to the United
States
of
America
(Oct.
24,
2016),
http://www.ohchr.org/EN/NewsEvents/Pages/Display
News.aspx?NewsID=20746&LangID=E.
27
The Government argues that “aliens detained
under Section 1231(a) retain substantial protection
from unwarranted detention.” Pet’rs Br. 34-36. But
in reality, the Government has, as a general matter,
chosen not to exercise discretion to release those
seeking refugee protection from detention. A 2015
analysis of data obtained through the Freedom of
Information Act revealed that “in over 85% of
withholding-only cases, respondents remained
detained throughout the adjudication of their claims.”
Lindsay M. Harris, Withholding Protection, 50.3
Columbia Human Rights L. Rev., 12 n.27 (2019)
(citing David Hausman, Am. Civil Liberties Union
Found., Fact Sheet: Withholding-Only Cases and
Detention 2 (2015)). In addition, various reports
indicate that ICE’s detention decisions have in many
cases been inconsistent, arbitrary, and/or not actually
based on assessments of the particular individual’s
circumstances: for example, ICE parole decisions for
“arriving asylum seekers” often fail to actually involve
assessments of the necessity of detention in each
particular individual’s case; ICE officers often fail to
parole asylum seekers who meet the criteria detailed
in ICE’s own parole directive applicable to “arriving
asylum seekers”; and these problems have worsened
in recent years. See, e.g., Damus v. Nielsen, 313 F.
Supp. 3d 317, 339-42 (D.D.C. 2018) (finding that
“individualized parole determinations are likely no
longer par for the course” based in part on an observed
“drastic decline in parole-grant rates”); Mons v.
McAleenan, No. 19-CV-1593, 2019 U.S. Dist. LEXIS
151174, at *31-35 (D.D.C. Sept. 5, 2019) (noting
“substantial body of evidence” that ICE New Orleans
Field Office was not following agency guidance
regarding parole for asylum seekers); Human Rights
28
Increased U.S.
Lifeline on Lockdown:
Detention of Asylum Seekers 103, 13-19 (2016)
First,
[hereinafter HRF Report]; Human Rights First,
Prisons and Punishment: Immigration Detention in
California (2019) [hereinafter California Report]
(describing how, despite ICE parole guidelines,
California immigration detention has seen great
increases in “both the number of asylum seekers and
immigrants held in detention and the length of time
they spend in these prison-like facilities”); 1 U.S.
Comm’n on Int’l Religious Freedom, Report on
Asylum Seekers in Expedited Removal 60-62 (2005)
(finding that asylum parole guidelines for “arriving”
asylum seekers were “not being consistently
applied”).10
IV.
Arbitrary Detention Impedes Access to
Refugee Protection and Can Lead to
Refoulement
Under binding international treaties, the United
States must not return those seeking refugee
protection to countries where they face persecution or
torture. This prohibition, known as the principle of
non-refoulement, is codified in treaties to which the
United States is bound as a party. See, e.g., Refugee
10 As these reports indicate, in many cases parole decisions
are not actually based on an individualized assessment, but
instead on factors such as the availability of bed space in
detention facilities, local ICE detention policies, and/or a desire
to deter other asylum seekers from seeking refugee protection in
the United States. See California Report at 5-6; HRF Report at
2-3, 14-17, 22-24, 30-31; see also U.S. Comm’n on Int’l Religious
Freedom, Barriers to Protection 47-48 (2016) (parole bond rates
reported based on availability of detention beds).
29
Convention art. 33.1 (incorporated by the Refugee
Protocol, to which the United States is a party) (“No
Contracting State shall expel or return [] a refugee in
any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on
account of his race, religion, nationality, membership
of a particular social group or political opinion.”);
Torture Convention art. 3 (“No State Party shall
expel, return [] or extradite a person to another State
where there are substantial grounds for believing that
he would be in danger of being subjected to torture.”).
Arbitrary detention of people seeking refugee
protection frustrates the Government’s ability to
comply with this principle and, in many cases, leads
to “refoulement in disguise.” Nils Melzer (Special
Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment), Rep. to the
Human Rights Council, ¶ 45, U.N. Doc. A/HRC/37/50
(Feb. 26, 2018). Even where legal safeguards are
available in theory to prevent unlawful detention,
many detained non-citizens simply do not have a
means “to access [] such substantive, procedural, and
institutional guarantees.” U.N. Working Grp. on
Arbitrary Det., Rep. of the Working Group on
Arbitrary Detention, ¶¶ 42, 43, U.N. Doc.
A/HRC/10/21 (Feb. 16, 2009).
Detention impedes access to legal assistance,
which is among the most important factors in
determining the outcome of an immigrant’s case.
“Having a lawyer is associated with better outcomes
at every stage in the immigration court process,” and
it “is particularly vital to ensuring a fair court process
for parents and children who have endured violence in
their countries and during their journeys.” Eagly et.
30
al., 106 Cal. L. Rev. at 815-16. In one recent study of
U.S. immigrants who challenged their removal, “49%
of released family members with counsel were
successful, as were 37% of represented detained
family members. In comparison, for those without
counsel, only 7% of released family members and 8%
of detained family members had success” in avoiding
removal.” Id. at 846. Unrepresented detainees are
not only less likely to succeed in court but are also far
less likely to apply for relief in the first place. Another
recent study found that “[d]etained immigrants with
counsel were nearly 11 times more likely to seek relief
such as asylum than those without representation (32
percent with counsel versus 3 percent without).”
American Immigration Council, “Access to Counsel in
Immigration
Court”
(Sept.
2016),
https://www.americanimmigrationcouncil.org/sites/de
fault/files/research/access_to_counsel_in_immigratio
n_court.pdf.
Despite the critical impact of representation on the
likelihood of success in immigration proceedings,
detained immigrants are “the least likely [of all
immigrants] to obtain representation.” Id. The same
study, for example, found that “[o]nly 14 percent of
detained immigrants acquired legal counsel,
compared
with
two-thirds
of
non-detained
immigrants.” Id.; see also Eagly et. al., 106 Cal. L.
Rev. at 790–91.
Non-citizens without legal
representation are thus at much greater risk of
refoulement.
In addition to hindering access to representation,
immigration-based
detention
“increases
the
vulnerability of” immigrants, causing many to “face
increased risks to their health and wellbeing and to
31
their psychological or mental state.” U.N. High
Comm’r for Refugees, UNHCR Emergency Handbook,
“Detention (and freedom of movement) of persons of
concern,”
https://emergency.unhcr.org/entry/44484/detentionand-freedom-of-movement-of-persons-of-concern.
Numerous medical associations have recognized the
severe physical and psychological toll that detention
takes on immigrant populations.11
Some non-citizens give up on their claims for
refugee protection and return to the countries from
which they fled, rather than subject themselves to
continued physical and psychological suffering in
detention. See, e.g., 2017 Working Group Report, ¶ 87
(“[T]he current system of detaining immigrants and
asylum seekers is, in many cases . . . a deterrent to
legitimate asylum claims.”); Riddhi Mukhopadhyay,
Death in Detention: Medical and Mental Health
Consequences of Indefinite Detention of Immigrants
in United States, 7 Seattle J. for Social Justice 693,
714 (2008) (“Others, unable to bear the pain and
degradation of further detention, have abandoned
11 See, e.g., Am. Coll. of Physicians, “The Health Impact of Family
Detentions in Immigration Cases” (July 3, 2018),
https://www.acponline.org/acp_policy/policies/family_detention_
position_statement_2018.pdf (finding detention of children and
families “can be expected to result in considerable adverse harm
. . ., including physical and mental health, that may follow them
through their entire lives”); Am. Pub. Health Assoc., “APHA
Opposes Separation and Confinement to Detention Centers of
Immigrants” (Nov. 5, 2019), https://www.apha.org/policies-andadvocacy/public-health-policy-statements/policydatabase/2020/01/15/apha-opposes-separation-and-confinementto-detention-centers-of-immigrants (“Even with improved living
standards in these detention centers . . . detainees’ mental health
is negatively impacted by disempowerment and lack of control.”).
32
their claims for release . . . despite the fear of
persecution or no knowledge of the place to which they
are being deported.”); Eagly et. al., 106 Cal. L. Rev. at
714–15 (“[A]fter being separated from their young
children during mandatory detention, many parents
have abandoned their asylum claim and returned to
countries they had escaped, despite fearing for their
own safety.”).
A recent story offers a vivid example of the
impediments that detainees encounter in pursuing
legitimate claims for refugee protection. A teacher
from Somalia, Yuusuf (a pseudonym used to ensure
his safety), fled to the United States after extremist
groups murdered his daughter, sister, and fellow
teachers. Southern Poverty Law Center Report,
“Detention system forces people to give up claims to
stay
in
U.S.”
(Oct.
4,
2018),
https://www.splcenter.org/news/2018/10/04/splcreport-detention-system-forces-people-give-claimsstay-us. Yuusuf sought asylum upon entry and
endured “more than two years in inhumane
conditions” in immigration detention, on top of “a
long, grueling legal process.” Id. Having lost his
ability to cope with the conditions of his confinement,
Yuusuf ultimately stopped fighting his unlawful
detention and was deported. Reflecting on the time
he spent seeking refuge in the United States, Yuusuf
observed: “This is more than jail . . . . In jail, you get
your sentence and you know when you are free, but
detention is endless.” Id.
Combined, the institutional constraints, physical
confinement and emotional trauma caused by
immigration-based detention greatly reduce the
likelihood that non-citizens will successfully obtain
33
refugee protection in the United States—regardless of
whether they have a legitimate fear of persecution if
returned to their home countries. The Government’s
interpretation of the INA, which would result in
arbitrary and indefinite detention of those who seek
refuge in this country, therefore violates the United
States’ obligation to respect the principle of nonrefoulement.
CONCLUSION
For the reasons set forth above, this Court should
affirm the Court of Appeals’ decision in this case.
Hardy Vieux
Patricia Stottlemyer
HUMAN RIGHTS FIRST
805 15th Street NW
Suite 900
Washington, DC 20005
(202) 547-5692
Kennji Kizuka
Rebecca Gendelman
HUMAN RIGHTS FIRST
75 Broad Street
New York, NY 10004
(212) 845-5200
Eugene M. Gelernter
Counsel of Record
Dakotah M. Burns
Benjamin H. Weissman
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the
Americas
New York, NY 10036
(212) 336-2000
emgelernter@pbwt.com
Attorneys for Amici Curiae
Date: November 12, 2020
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