Amicus Curiae Brief — Ded Rranxburgaj, Petitioner v. Alejandro N. Mayorkas, Secretary of Homeland Security, et al.

No. 20-1010

IN THE

Supreme Court of the United States

DED RRANXBURGAJ, PETITIONER,

VU.

ALEJANDRO MAYORKAS, U.S. SECRETARY OF

HOMELAND SECURITY, ET AL., RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RUTHERFORD INSTITUTE

AMICUS CURIAE IN SUPPORT OF PETITIONER

JOHN W. WHITEHEAD PAULJ. KIERNAN

Counsel of Kecord JONATHAN B. SPITAL

DOUGLAS R. MCKUSICK of Counsel

The Rutherford Institute Holland & Knight, LLP

109 Deerwood Road 800 17th Street, N.W.

Charlottesville, VA 22911 Suite 1100

legal@rutherford.org Washington, D.C. 20006

(434) 978-3888 (202) 663-7276

CURRY & TAYLOR ¢ (202) 350-9073

i

TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS uuu cccccccsssssssssssesseeees 1

TABLE OF AUTHORITIES... ee cecccceeeees li

INTEREST OF AMICUS CURIAE..... 1

SUMMARY OF ARGUMENT... tcccccceeeeees 2

ARGUMENT wie ecccccsssssssssssssscsccccecccsssssssssssssseses 3

I. THE SIXTH CIRCUIT’S BROAD

INTERPRETATION OF 8 U.S.C. § 1252(G)

IS INCONSISTENT WITH THIS COURT'S

PRECEDENTS AND WITH CORE

PRINCIPLES OF SEPARATION OF

POWERS. .... oe eeessecesecescescccscceseceseeeseceseeeseceseeees 5)

A. THE SIXTH CIRCUIT DID NOT APPLY

THE PLAIN LANGUAGE OF THE

STATUTE. woe ccsssesceseeeseeesccescceseeeseeeseeees 5)

B. THE SIXTH CIRCUIT DECISION IS

INCONSISTENT WITH PRECEDENT...5

C. THE SIXTH CIRCUIT DECISION IS

INCONSISTENT WITH SEPARATION-

OF-POWERS PRINCIPLES. .... 9

Il. JUDICIAL REVIEW OF AGENCY

ACTIONS MUST BE PRESERVED IN

ORDER TO PREVENT EXECUTIVE

OVE RREACHE. oo ccccseccseceseeseeeseeeeeees 15

A. ROLE OF SEPARATION OF POWERS IN

PRESERVING DUE PROCESS. ............. 15

B. PROPER LIMITS ON JURISDICTION-

STRIPPING LAWS... esecesseeseseceeseeeeees 17

CONCLUSION 2... ccecesceesceesceescescesecesscessessceeseeeeees 22

il

TABLE OF AUTHORITIES

Page(s)

CASES

Agosto v. Immigration & Naturalization Serv.,

A836 U.S. 748 (1978).......csccccsscccsssscsssscceseecesseecesseeesseceess 19

Bowen v. Michigan Acad. of Family Physicians,

AT6 U.S. 667 (1986)........sccsscccsssscsssrcceseecesseecessecesseeeees 11

Bowsher v. Synar,

ATS U.S. 714 (1986)........sccssccsssscsssrecessecesseecessecesseeeeess 10

Clinton v. City of New York,

DZA U.S. 417 (1998)... eccseccssssscsssecesssecessecessecesseeeeees 10

Cohens v. State of Virginia,

19 U.S. 264 (1821)... eeccssscesssccessecesseccessecesssecesseeeeees 6

Dep't of Transp. v. Ass’n of Am. Railroads,

575 U.S. 48 (2015) (Thomas, J., concurring)......... 9,10

Elgin v. Dep't of Treasury,

DOT U.S. 1 (2012)... eccsetessseccssseceesccesseceessecesseeeeees 19

Free Enter. Fund v. PCAOB,

DG1 U.S. 477 (2010)... ccssscssssccssseceeseecesseccessecessseeessees D

Gao v. Gonzales,

A81 F.8d 178 (2d Cir. 2007) ..........cccccssscsssrecessecessceeseees 8

Glidden Co. v. Zdanok,

370 U.S. 580 (1962)... ccsscccsssscsssrecessecesseecessecesseceees 15

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020)...........csccsssccesecssseccessccssseceeseeees 11

kucana v. Holder,

DD8 U.S. 238 (2010)... ecesecesssrcesssecessecesssecessecesseees 5, 11

Loving v. United States,

DT U.S. 748 (1996)........cccssscssssccsssrcceseecessccesseccssecessees 9

Marbury v. Madison,

D U.S. 187 (1808)..........ceeccesssccessecsssccesseceeseeeeees 13, 16, 18

Mathews v. Eldridge,

A2Z4 U.S. 319 (1976)... eesesscesceseccssceescesscescesecsseeeseees 11

iti

McNary v. Haitian Refugee Ctr., Inc.,

A98 U.S. 479 (1991)... ccsscsscsscsscessesscessesresscesesees 10, 20

Mistretta v. United States,

A88 U.S. 361 (1989)... cesssecsscessesesesseseesscesesees 10, 14

N.L.R.B. v. Catholic Bishop of Chicago,

AAO U.S. 490 (1979).......ccsscssscsscesscsscssccsssesecssccsssesnsesees 15

Nasrallah v. Barr,

140 S. Ct. 1688 (2020)..........eccssscsrsercessssscensessesreencenes 20

Ng Fung Ho v. White,

259 U.S. 276 (1922)........scsscsssescesccsecercssscsssencscssesensenses 20

Plaut v. Spendthrift Farm, Inc.,

B14 U.S. 211 (1995)... ccsscssssrcesessncssccesesssrsscesesessees 13

Reno v. American-Arab Anti-Discrimination Comm..,

525 U.S. 471 (1999)... cccssscsesscccecsssssssesceceees passim

Reno v. Flores,

BOT U.S. 292 (1998).......csscssccsssssscssccsssescssecssscssseseseseees 11

Smith v. Meese,

821 F.2d 1484 (11th Cir. 1987)... escsscesseeseetseseees 18

Stern v. Marshall,

564 U.S. 462 (2011)... eccsesccesccescesecsscsssscssscsnseseees 13

Sun v. Mukasey,

555 F.3d 802 (Oth Cir. 2009).........cscsscesssesecsrcesseseeeees 7

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994)... ccsssesceecesccscsersessssseereens 17, 19

Traynor v. Turnage,

A85 U.S. 585 (1988).......ccscsssssscesscssresssessesscesecssessecesees 18

Trump v. District of Columbia, 958 F.3d 274 (4th Cir.

2020), cert. granted, judgment vacated as moot 2021

WL 281542 (US. Jan. 25, 2021)....... ce cescescensssseeneenees 14

United Elec., Radio & Mach. Workers of Am. v. 163

Pleasant St. Corp.,

960 F.2d 1080 (1st Cir. 1992) 0... ee eesceecseceserenees 7,17

United States v. Hovsepian,

359 F.3d 1144 (9th Cir. 2004)... eecssceseceeeeeceeeeeees 8

IV

United States v. Nixon,

418 U.S. 688 (1974)... ecsccccccccccccsssssssscccccccccsscesssecs 13

STATUTES

8 U.S.C. § 1252(a)(2)(C)....ccccccccccccccssssssssccccccccccccsssssssceeeees 20

8 U.S.C. $1252(g)......ccscscsssssssessssessessceesseesssessceesesenss passim

REGULATIONS

8 C.F LR. § 241.6 wii ccccccccsssccccsssscccccsssscccccsssscccccsscccccssscess 6

8 C.F LR. § 241.68)... eeecssscccccccccccsssssssssccccccccccecsssecs 6, 11

OTHER AUTHORITIES

Nathan 8S. Chapman, Michael W. McConnell, Due

Process As Separation of Powers, 121 YALE LJ.

1672, 1682 (2012)... .ccssscsssscceseecessccesseccsssecesseeeeees 9,10

Patrick J. Glen, The Fugitive Disentitlement Doctrine

and Immigration Proceedings, 27 GEO. IMMIGR. L.J.

TAO, T51 (2018)... cccccccsssscccsscsscceccescsssseessssssssesesssscsnes 7

The Federalist NO. 22............cccccscccccsssssccccsssscccccssssccccsescees 15

The Federalist No. 47 .........ccccccsssccccsssssccccsssscccccssscccccsessees 16

The Federalist No. 51............cccccccscccccssssccccsssccccccssscccccsessees 9

The Federalist No. 78 ........ccccccssssccccsssssccccsssscccccssscccccsescees 13

The Federalist No. 80............cccccssccccsssscccccsssscccccssssccccsescees 15

1

INTEREST OF AMICUS CURIAE’

The Rutherford Institute is an international

nonprofit organization headquartered in Charlottesville, Virginia. Founded in 1982 by John W. Whitehead,

the Rutherford Institute provides legal representation

without charge to individuals whose civil liberties are

threatened or infringed, and educates the public about

constitutional and human-rights issues. The Rutherford

Institute is interested in the resolution of this case because the case is about shutting the courthouse door to

someone who is entitled to judicial review of legal issues that are outside the proper purview of the administrative agency. Everyone’s civil liberties are at risk

when agency authority is allowed to exceed the

agency’s proper limited role and when a jurisdictionstripping statute is construed broadly to expand an

agency’s unreviewable authority. The Rutherford Institute files in support of a grant of certiorari and for

reversal of the decision below.

‘ Counsel of record to the parties in this case have consented to the

filing of this amicus brief. Under Rule 37.6, amicus certifies that no

counsel for any party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amicus or its counsel made a monetary contribution to the brief’s

preparation or submission.

2

SUMMARY OF ARGUMENT

1. The Sixth Circuit’s broad interpretation of

“arising from” in 8 U.S.C. §1252(g¢) is inconsistent with

this Court’s precedents and core principles of separation of powers.

First, the plain meaning of “arising from” is that

the challenged action was the consequence of another

action, not the antecedent of that other action. That important limitation on the stripping of jurisdiction should

not be ignored.

Second, in Reno v. American-Arab Anti-

Discrimination Comm., 525 U.S. 471, 482, 486 (1999),

the Court wrote that Section 1252(¢) was narrowly targeted to limit judicial interference with prosecutorial

discretion. The Court did not suggest that the statute

could or would remove the ability to secure judicial review of a decision made before the agency could exercise prosecutorial discretion.

Third, a broad interpretation of Section 1252(¢)

fosters a blurring of the separation of powers between

the executive and judicial functions. If an agency’s decision to create a new categorical exclusion—here under

the name “fugitive’—is not reviewable by a court, then

the executive agency is the sole determinant of its own

authority, regardless of statutory or regulatory restraints on its conduct.

2. Allowing the broad interpretation of “arising

from” to stand would foster unaccountable agency determinations in violation of fundamental principles of

due process and separation of powers.

The executive is charged with seeing that the

laws are implemented, and it is not charged with creating laws. If an agency is allowed to determine whether

the application of law is “moot” as to a category of peo-

5)

ple who are entitled to due process under that law, and

if that agency determination cannot be reviewed by a

court, then the agency will be usurping the judicial

function. An affected individual has due-process rights

to have that agency determination reviewed by the

court.

ARGUMENT

I. The Sixth Circuit’s Broad Interpretation of 8 U.S.C. § 1252(g) is Inconsistent With This Court’s Precedents and

With Core Principles of Separation of

Powers.

A. The Sixth Circuit Did Not Apply the

Plain Language of the Statute.

The Sixth Circuit’s decision does not honor the

plain meaning of Section 1252(¢). By its terms, the

statute strips the courts only of jurisdiction “to hear

any cause or claim by or on behalf of any alien arising

from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute

removal orders against any alien under this chapter.”

The phrase “arising from’ necessarily connotes that the

challenged action comes after and because of another

action. It includes the concept of derivation, causality,

sequence.

The claim asserted by Mr. Rranxburgaj was that

ICE's decisions (a) classifying him as a “fugitive” and

(b) announcing that an application filed by a “fugitive”

was moot were decisions that are challengeable under

the Constitution, the immigration statutes, and the

Administrative Procedure Act. As a matter of syntax,

4A

those challenged decisions did not arise from a discretionary decision to execute a removal order against Mr.

Rranxburgaj; the decision to remove came only after

the agency made its decisions about the “fugitive.”

Individual liberties are best protected when

courts apply the terms of statutes as written and do not

urge overly broad interpretations. The courts below

took the concept of sequence out of ”arising from,” and

thereby exposed Mr. Rranxburgaj to an unreviewable

determination. The district court below, for example,

described the statute not with reference to the actual

statutory language but rather with paraphrases that

improperly expanded the scope of the jurisdictionstripping provision of Section 1252(¢): “The stay of removal is directly related to Rranxburgaj’s final removal

order. Since Rranxburgaj’s claim pertains to a final removal order, he must pursue his claim with the Court of

Appeals.” (App. 20a-21a, emphasis added, citation omitted.) “Pertains to” and “is directly related to” are not

synonymous with “arising from.” Likewise, the Sixth

Circuit eliminated the critical sequencing embodied in

“arising from” when it held that there was “no principled difference between the denial of an application for

a stay of removal on the merits and a denial on procedural grounds.” (App. lla.) ICE determined that because Mr. Rranxburgaj was a “fugitive,” it was as if he

had not filed an application for stay and his claim was

“moot.” That precedent legal conclusion about “fugitive” status led to the denial of the pending application,

not the other way around—which is the sequence that

would apply if the claim about erroneous treatment as a

fugitive was “arising from” the denial. By not adhering

to the statutory language, the courts below impaired

the rights which Mr. Rranxburgaj has under the law.

Had the plain statutory language been applied, it would

D

have been clear that Congress did not strip the courts

of jurisdiction to decide the claims Mr. Rranxburga]

raised.

B. The Sixth Circuit Decision is Inconsistent with Precedent.

This Court has previously explained that Section

1252(g) is a narrow provision, applicable “only to three

discrete actions that the Attorney General may take:

her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.” Reno v.

American-Arab Anti-Discrimination Comm.

(“AADC”), 525 U.S. 471, 482 (1999) (quoting 8 U.S.C.

§ 1252(¢)) (emphasis in original). In other words, the

jurisdiction-stripping provision in Section 1252(¢) was

narrowly targeted “against a particular evil: attempts

to impose judicial constraints upon prosecutorial discretion.” Id. at 486, n.9 (emphasis added). The AADC

analysis is in line with the general proposition that jurisdiction-stripping statutes are to be narrowly construed. See, e.g., Kucana v. Holder, 558 U.S. 288, 252

(2010) (evidence should be “clear and convincing” that

the legislature intended to restrict access to judicial review). See discussion in Section I(C) below at 10-11.

Mr. Rranxburga)’s district-court complaint was

not challenging the decision to “execute a removal order.” Rather, he challenged ICE’s antecedent determinations that he was a “fugitive” and that a fugitive’s

application for relief was categorically “moot.” ICE’s

determinations created new standards; they were not

determinations based on existing regulations or statutes. First, there was no definitive guidance in the

Sixth Circuit as to whether a person is deemed a “fugitive” when his location is known to the INS. See discus-

6

sion in Pet. for Cert. at 20. It is undisputed that the day

before the January 17, 2018 meeting at the ICE field

office, Mr. Rranxburgaj advised ICE that he had

sought sanctuary at a church less than three miles from

the ICE office.

Second, ICE applied the “fugitive disentitlement

doctrine” to Mr. Rranxburgaj even though the regulations regarding review of an application for stay do not

authorize using the “fugitive disentitlement doctrine.”

The regulations state that a decision regarding a stay

application is made in the agency’s discretion “and in

consideration of” factors identified in statute and regulation. Under 8 C.F.R. § 241.6:

The Commissioner [or other designated officials

or directors] in his or her discretion and in consideration of factors listed in8 CFR 212.5 and

section 241(c) of the Act, may grant a stay of removal or deportation for such time and under

such conditions as he or she may deem appropriate.

8 C.F.R. § 241.6(a) (emphasis added). The regulation, in

other words, cabins ICE’s discretion by requiring consideration of specified factors. Yet here ICE determined that “fugitive status”—not identified as a factor

in either regulations or statutes—excused ICE from

exercising discretion altogether. That categorical exclusion from the right to individualized discretionary

consideration must be reviewable notwithstanding Section 1252(¢)’s stripping of jurisdiction to review discretionary decisions about removal after those decisions

are made.

7

Determining that Mr. Rranxburgaj may properly be classified as a “fugitive” is not an exercise of

discretion entrusted to ICE. The characterization of

someone as a fugitive is a legal determination or possibly a mixed question of law and fact. But it is certainly

not a determination “arising from” a decision to execute

a removal order. Moreover, there is no definitive determination under Sixth Circuit law about whether a

person who does not appear for a hearing but whose

nearby whereabouts are known to ICE automatically is

deemed a “fugitive.” Cf. Sun v. Mukasey, 555 F.3d 802,

805 (9th Cir. 2009) (applying doctrine to “aliens who

have fled custody and cannot be located when their appeals come before this court”).

ICE also applied against Mr. Rranxburgaj the

“fugitive-disentitlement doctrine” to render his application for a stay “moot.” This doctrine arose in the context of criminal law as “a prudential device which [appellate] courts may invoke to estop fugitives from challenging criminal convictions in absentia.” United Elec.,

Radio & Mach. Workers of Am. v. 163 Pleasant St.

Corp., 960 F.2d 1080, 1097 (1st Cir. 1992). The fugitivedisentitlement doctrine is grounded in the inherent authority of the court of appeals to place conditions on the

exercise of its appellate jurisdiction in order to regulate

pending proceedings and encourage judicial efficiency.

Patrick J. Glen, The Fugitive Disentitlement Doctrine

and Immigration Proceedings, 27 GEO. IMMIGR. L.J.

749, 751 (2018). “The doctrine is therefore a tool of case

management whereby appeals may be dismissed if the

appellant becomes a fugitive while the appeal is pending. Although initially confined to criminal cases, . . . it

has subsequently been extended to civil cases, including immigration cases, where the appellant qualifies as

a fugitive.” Id. at 752. But the doctrine is an equitable

8

one, grounded in the “inherent power of the court to

manage its own affairs.” Gao v. Gonzales, 481 F.3d 178,

176 (2d Cir. 2007).

ICE categorized the absent Mr. Rranxburgaj as

a fugitive and then categorically treated his application

for a stay as being “moot” because he was disentitled

from pursuing relief. Such determinations would ordinarily be reviewable under the APA and Title 8 but for

the expansive reading of Section 1252(¢) endorsed by

the Sixth Circuit.

When this Court construed Section 1252(¢) to be

narrowly targeted “against a particular evil—attempts

to impose judicial constraints upon prosecutorial discretion,” AADC, 525 U.S. at 486, n.9—the Court could not

have meant that Section 1252(¢) removed from judicial

scrutiny an agency’s determination not to apply standards set forth by regulation. ICE determined that a

“fugitive” was not entitled to an exercise of discretion—a determination that not only did not follow the

exercise of prosecutorial discretion but, indeed, precluded the exercise of discretion. As the Ninth Circuit

correctly recognized, “[t]he district court may consider

a purely legal question that does not challenge the Attorney General’s discretionary authority, even if the

answer to that legal question—a description of the

relevant law—forms the backdrop against which the

Attorney General later will exercise discretionary authority.” See United States v. Hovsepian, 359 F.3d 1144,

1155 (9th Cir. 2004)).

The Sixth Circuit’s decision is inconsistent with

AADC. The Court should grant this petition not only to

reverse this decision but also as a vehicle to restore to

this area of law the proper limited scope of Section

1252(g¢) which was discussed in AADC.

9

C. The Sixth Circuit Decision is Inconsistent with Separation-of-Powers Principles.

“Even before the birth of this country, separation of powers was known to be a defense against tyranny.” Loving v. United States, 517 U.S. 748, 756 (1996)

(citing Montesquieu, The Spirit of the Laws, 151-52; 1

W. Blackstone, Commentaries 146-47, 269-70). The

Constitution’s separation of powers is based on traditions dating back at least to the Magna Carta, traditions which prohibit the government from depriving

individuals of life or liberty except by the law of the

land or with due process of law. Nathan 8. Chapman,

Michael W. McConnell, Due Process As Separation of

Powers, 121 YALE L.J. 1672, 1682 (2012); see also Dep’t

of Transp. v. Ass’n of Am. Railroads, 575 U.S. 48, 74

(2015) (Thomas, J., concurring) (“No political truth is

certainly of greater intrinsic value, or is stamped with

the authority of more enlightened patrons of liberty

than' the separation of powers.”) (quoting THE

FEDERALIST NO. 47, p. 301 (James Madison) (C. Rossiter ed. 1961)).

Indeed, the Framers specifically sought to prevent “the ‘gradual concentration of the several powers

in the same department.’ It was this fear that prompted

the Framers to build checks and balances into our constitutional structure, so that the branches could defend

their powers on an ongoing basis.” Dep't of Transp., 575

U.S. at 74 (Thomas, J., concurring) (quoting THE

FEDERALIST NO. 51, at 321). And the Supreme Court

“consistently has given voice to, and has reaffirmed, the

central judgment of the Framers of the Constitution

that, within our political scheme, the separation of governmental powers into three coordinate Branches is es-

10

sential to the preservation of liberty.” Mistretia v.

United States, 488 U.S. 361, 380 (1989); see also Clinton

v. City of New York, 524 U.S. 417, 450 (1998) (“Liberty

is always at stake when one or more of the branches

seek to transgress the separation of powers.”) (Kennedy, J., concurring); Bowsher v. Synar, 478 U.S. 714,

721 (1986) (the “declared purpose of separating and dividing the powers of government, of course, was to diffuse power the better to secure liberty.”) (cleaned up).

“The ‘check’ the judiciary provides to maintain our

separation of powers is enforcement of the rule of law

through judicial review.” Dep’t of Transp., 575 U.S. at

76 (Thomas, J., concurring) (citing Perez v. Mortgage

Bankers Ass’n, 575 U.S. 92, 123 (2015)).

Our concept of “due process of law” has evolved

in part to reflect “the increasing institutional separation of law-making from law enforcing and law interpreting.” Chapman, supra, at 1679. “Due process” has

“consistently referred to the guarantee of legal judgment in a case by an authorized court in accordance

with settled law.” Id. “It entailed an exercise of what

came to be known as the judicial power to interpret and

apply standing law to a specific legal dispute.” Jd. When

the Fifth Amendment was adopted, it was understood

that due process applied to “executive officials and

courts. It meant that the executive could not deprive

anyone of a right except as authorized by law, and that

to be legitimate, a deprivation of rights had to be preceded by certain procedural protections. ...” Id.

The importance of the judicial “check” in preventing executive overreach has given rise to a “strong

presumption” in favor of judicial review of agency action. McNary v. Haitian Refugee Ctr., Inc., 498 U.S.

479, 496, 498 (1991) (narrowly interpreting jurisdictional limitations because otherwise “meaningful judi-

11

cial review of [immigrants’] statutory and constitutional claims would be foreclosed.”); see also Bowen v.

Michigan Acad. of Family Physicians, 476 U.S. 667,

681 (1986) (noting “the strong presumption that Congress did not mean to prohibit all judicial review of executive action.”) (quotations omitted). This “presumption of reviewability” has been “consistently applied” to

immigration statutes. Guerrero-Lasprilla v. Barr, 140

S. Ct. 1062, 1069 (2020) Gnternal citation omitted). And

because this presumption is “well-settled, the Court assumes that Congress legislates with knowledge of it.”

Kucana, 558 U.S. at 251-52 (internal citations and quotations omitted). “It therefore takes clear and convincing evidence to dislodge the presumption.” Jd. at 252

(internal quotations omitted; emphasis added); see also

Bowen, 476 U.S. at 670 (“[Jjudicial review of a final

agency action by an aggrieved person will not be cut off

unless there is persuasive reason to believe that such

was the purpose of Congress.”) (internal quotations

omitted).

Here, Mr. Rranxburgaj was entitled to due

process with respect to his removal proceedings. See

Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles aliens to

due process of law in deportation proceedings.”’). This

Court has emphasized that the “fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Mathews

v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotations omitted). He was certainly entitled, at the least, to

have his application considered under the regulatory

standards in 8 C.F.R. § 241.6(a), which includes an exercise of discretion and consideration of listed factors.

Despite Mr. Rranxburgaj’s right to be heard and

the “strong presumption” in favor of judicial review,

12

the Sixth Circuit found that no court had jurisdiction to

hear his claim pursuant to Section 1252(¢). That overbroad reading of Section 1252(¢) leaves ICE with the

unchallenged authority to decide whether to apply

standards that are inconsistent with statute or regulations. That reading would logically allow ICE to use

any categorical reason—even if not facially legitimate—

to avoid the requirements of the statute and regulations. Suppose ICE determined that applications for

stays filed by anyone from Albania will be deemed

“moot” and therefore denied? Would that be a claim

“arising from” a removal decision and therefore beyond

judicial review? What about an ICE policy that an application filed by a person from a predominantly Muslim country will be deemed “moot”? Under the Sixth

Circuit’s interpretation of Section 1252(¢), such categorizations are not judicially reviewable. Needless to add,

such an expansion of agency authority is a grave threat

to the rights of anyone caught up in the immigration

system.

It was error for the Sixth Circuit to interpret

the phrase “arising from” so broadly as to insulate from

judicial review any antecedent legal determination

which in some way happens to be connected later to the

execution of a removal order. If anything, Mr. Rranxburgaj’s right to judicial review only strengthened once

ICE declared his application “moot” because of his alleged “fugitive” status.

If allowed to stand, the Sixth Circuit’s decision

would cede to ICE the unchecked power to make legal

determinations with any articulable connection to a removal order—which, of course, would be every determination made by ICE. But “the power of the interpretation of the laws [is] the proper and peculiar province

of the courts.” Plaut v. Spendthrift Farm, Inc., 514 U.S.

13

211, 222 (1995) (quoting THE FEDERALIST NO. 78 at

523-25 (Alexander Hamilton) Ginternal quotations omitted); see also Marbury v. Madison, 5 U.S. 137, 177

(1803) (“It is emphatically the province and duty of the

judicial department to say what the law is.”) As this

Court has explained:

[T]he ‘judicial Power of the United States’

vested in the federal courts by Art. III, s 1, of

the Constitution can no more be shared with the

Executive Branch than the Chief Executive, for

example, can share with the Judiciary the veto

power, or the Congress share with the Judiciary

the power to override a Presidential veto. Any

other conclusion would be contrary to the basic

concept of separation of powers and the checks

and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p.

313 (S. Mittell ed. *705 1988). We therefore reaffirm that it is the province and duty of this Court

‘to say what the law is’...

United States v. Nixon, 418 U.S. 688, 704-05 (1974); see

also Stern v. Marshall, 564 U.S. 462, 484 (2011) (“Article III could neither serve its purpose in the system of

checks and balances nor preserve the integrity of judicial decision making if the other branches of the Federal Government could confer the Government’s ‘judicial Power’ on entities outside Article ITI.”).

In particular, allowing an executive branch

agency to serve as both the interpreter and enforcer of

the law would be especially damaging to the Constitution’s carefully crafted system of checks and balances:

14

Although the Constitution entrusts the President with the enormous responsibility of faithfully executing the law, the notion that the

President is vested with unreviewable

power to both execute and interpret the

law is foreign to our system of government.

The Framers, concerned about the corrosive effect of power and animated by fears of unduly

blending government powers, dispersed the authority to enforce the law and the authority to

interpret it. To hold otherwise would mean that

the President alone has the ultimate authority

to interpret what the Constitution means. Allowing the President to be the final arbiter

of both the interpretation and enforcement

of the law...would gravely offend separation of powers.

In re Trump, 958 F.3d 274, 288-89 (4th Cir. 2020), cert.

granted, judgment vacated as moot following the end of

the president’s term sub nom. Trump v. District of Columbia, No. 20-331, 2021 WL 231542 (U.S. Jan. 25,

2021) (emphasis added; internal citation omitted). In

the past, this Court has “not hesitated to strike down

provisions of law that either accrete to a single Branch

powers more appropriately diffused among separate

Branches or that undermine the authority and independence of one or another coordinate Branch,” see

Mistretta, 488 U.S. at 382, and it should not hesitate to

do so here.

While Congress may have a legitimate interest

in protecting ICE from excessive review of determinations within the unique purview of agency discretion, it

is also true that just because “a given law or procedure

is efficient, convenient, and useful in facilitating func-

15

tions of government, standing alone, will not save it if it

is contrary to the Constitution,” for “convenience and

efficiency are not the primary objectives—or the hallmarks—of democratic government.” Free Enter. Fund

v. PCAOB, 561 U.S. 477, 499 (2010) (cleaned up).

This Court should grant certiorari and reverse

the Sixth Circuit in order to reaffirm its previous interpretation of Section 1252(¢)—that it narrowly applies

only to the commencement of proceedings, the adjudication of cases, and the execution of removal orders.

See AADC, 525 U.S. at 482; N.L.R.B. v. Catholic

Bishop of Chicago, 440 U.S. 490, 500 (1979) (‘an Act of

Congress ought not be construed to violate the Constitution if any other possible construction remains available.”). The Court should also make clear that the purpose of Section 1252(g) is to restrain judicial review after the agency exercises its discretion (“arising from’’)

not before that exercise.

II. Judicial Review of Agency Actions

Must Be Preserved in Order to Prevent Executive Overreach.

A. Role of Separation of Powers in Preserving Due Process.

Laws are meaningless without a strong judiciary

empowered to enforce them. See Glidden Co. v. Zdanok, 370 U.S. 530, 558 (1962) (“Laws are a dead letter

without courts to expound and define their true meaning and operation.”) (quoting THE FEDERALIST, No. 22,

at 197 (Alexander Hamilton); see also THE FEDERALIST

No. 80 at 475-76 (Alexander Hamilton) (“there ought

always to be a constitutional method of giving efficacy

to constitutional provisions. .. No man of sense will be-

16

lieve that such prohibitions would be scrupulously regarded without some effectual power in the government to restrain or correct the infractions of them.”).

Accordingly, Article III granted federal courts broad

authority to “decide all cases of every description, arising under the constitution or laws of the United

States,” (Cohens v. State of Virginia, 19 U.S. 264, 382

(1821)), so that the courts may serve as “the guardians

of [Constitutional] rights ... an impenetrable bulwark

against every assumption of power in the legislative or

executive.” 1 Annals of Cong. 489 (1789) (Joseph Gales

ed., 1834).

But the broad reading of Section 1252(¢) adopted

by the Sixth Circuit would prohibit courts from fulfilling their unique role as “guardians” of liberty because

that reading allows an agency to expand its own jurisdiction. An agency could choose not to act as required

by law simply by “defining away” the applicant as outside the agency’s processes. Contrary to the consideration required by the regulations, ICE declared that Mr.

Rranxburgaj was a “nonperson,” or at least someone

whose application the agency was not required to review under the applicable regulations.

In the absence of judicial review, neither Congress nor the Executive can be expected to serve as an

adequate check on ICE’s legal determinations. Moreover, separation-of-power principles prohibit either

Congress or the President from “say[ing] what the law

is,” a role uniquely reserved for the judicial branch. See

Marbury, 5 U.S. at 177; see also THE FEDERALIST NO.

47, at 299 (James Madison) (“There can be no liberty. . .

if the power of judging be not separated from the legislative and executive powers.”) (quotations omitted).

17

B. Proper Limits on _ Jurisdiction-

Stripping Laws.

This Court considers three factors in determining whether Congress intended that a statute should

limit federal-court jurisdiction. Specifically, it is presumed that Congress did not intend to limit jurisdiction

if (1) the suit is “wholly collateral to a statute’s review

provisions”; (2) the claims are “outside the agency’s expertise”; and (8) “a finding of preclusion could foreclose

all meaningful judicial review.” Thunder Basin Coal

Co. v. Reich, 510 U.S. 200, 212-13 (1994) (internal quotations omitted). Those three factors weigh heavily

here in favor of the district court having jurisdiction

over Mr. Rranxburgaj's claim.

First, while Section 1252(g) bars judicial review

of claims challenging the “decision” to “execute” a removal order, Mr. Rranxburgaj seeks to challenge the

antecedent legal determination classifying him as a “fugitive.” These are separate and distinct issues, governed by different laws and different factual predicates.

Second, ICE cannot claim any special or unique

expertise in applying the fugitive-disentitlement doctrine. The doctrine arose in the context of criminal law

as “a prudential device which [appellate] courts may

invoke to estop fugitives from challenging criminal

convictions in absentia.” United Elec., Radio & Mach.

Workers of Am., 960 F.2d at 1097 (emphasis added).

And while it has since been extended to civil and immigration court cases, the fugitive-disentitlement doctrine

is one of general application and does not relate specifically to the enforcement of any immigration statute.

Indeed, it is a doctrine regarding the authority of

courts to control their dockets—a consideration not

shared by an administrative agency charged to rule on

18

applications under an express regulatory framework.

Accordingly, ICE does not have any particular expertise in the doctrine’s application. See Traynor v. Turnage, 485 U.S. 535, 544 (1988) (Veterans’ Administration did not have “special expertise in assessing the validity of its regulations construing veterans’ benefits

statutes under a later passed statute of general application”).

Third, the Sixth Circuit’s broad interpretation of

Section 1252(¢) would foreclose not just “meaningful

judicial review,” but all judicial review of Mr. Rranxburgaj’s claim. Such an absolute jurisdictional bar could

make sense for cases involving discrete exercises of

“prosecutorial discretion.” See AADC, 525 U.S. at 482.

After all, courts generally lack authority to review or

override decisions committed to the sole discretion of

the executive branch. See Smith v. Meese, 821 F.2d

1484, 1491 (11th Cir. 1987) (“The prosecutorial function,

and the discretion that accompanies it, is thus committed by the Constitution to the executive, and the judicial branch’s deference to the executive on prosecutorial decision making is grounded in the constitutional

separation of powers.”); Marbury, 5 U.S. at 165-66

(“[T]he President is invested with certain important

political powers, in the exercise of which he is to use his

own discretion. .. whatever opinion may be entertained

of the manner in which executive discretion may be

used, still there exists, and can exist, no power to control that discretion.”’).

But the Sixth Circuit’s order insulated from judicial review not just exercises of “prosecutorial discretion,” but all legal determinations connected thereto.

This case is thus distinguishable from other decisions

upholding limited statutory review provisions because

Section 1252 (g¢) does not simply call for “delayed judi-

19

cial review of final agency actions,” it eliminates judicial

review entirely. Cf. Thunder Basin Coal Co., 510 U.S.

at 207-08 (although Mine Act precluded jurisdiction

over a pre-enforcement challenge, the Act “establishe[d] a detailed structure for reviewing violations”

thereunder, including review before an administrative

law judge, the Federal Mine Safety and Health Review

Commission, and the Court of Appeals); see also Elgin

v. Dep’t of Treasury, 567 U.S. 1, 5-6 (2012) (although the

Civil Service Reform Act of 1978 provides the exclusive

avenue to judicial review, employees have the right to

be heard before a covered agency action is taken

against them, the right to contest a final adverse

agency action before the Merit Systems Protection

Board, and the right to appeal an adverse determination to the Court of Appeals).

By contrast, this Court has previously recognized the necessity of judicial review for legal determinations and other challenges collateral to the execution

of a removal order. For example, “the Constitution requires that there be some provision for de novo judicial

determination of claims to American citizenship in deportation proceedings.” Agosto v. Immigration &

Naturalization Serv., 486 U.S. 748, 753 (1978). That is

because a citizen’s liberty interest in being protected

from improper removal is too important to be left unchecked in the hands of an administrative agency:

To deport one who so claims to be a citizen obviously deprives him of liberty. . . It may result

also in loss of both property and life, or of all

that makes life worth living. Against the danger

of such deprivation without the sanction afforded by judicial proceedings, the Fifth

Amendment affords protection in its guarantee

20

of due process of law. The difference in security

of judicial over administrative action has been

adverted to by this court.

Ng Fung Ho v. White, 259 U.S. 276, 284-85 (1922).

Last Term, this Court held that even when a

statute limits the judicial review of certain immigration

decisions, the statute should not be stretched to reach

other immigration-related determinations. In Nasrallah v. Barr, 140 8. Ct. 1683 (2020), the Court held that

although the provisions of 8 U.S.C. § 1252(a)(2)(C) precluded judicial review of the factual determinations undergirding a final removal order, the statute did not

preclude judicial review of the factual determinations

undergirding a concurrent order under the Convention

Against Torture. As a matter of “straightforward

statutory interpretation,” the CAT order did not merge

into the final removal order: “It would be easy enough

for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded

judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is

not the proper role of the courts to rewrite the laws

passed by Congress and signed by the President.” 140

S.Ct. at 1692.

Similarly, this Court has also held that statutes

limiting review of discretionary decisions by the Attorney General do not bar challenges collateral to that exercise of discretion. See McNary, 498 U.S. 479 (alien

could bring due process challenge to INS amnesty determination procedures, despite provision expressly

limiting judicial review to orders of exclusion or deportation, because statute did not evidence an intent to

preclude broad “pattern and practice” challenges, and

because if the aliens were “not allowed to pursue their

21

claims in the District Court, respondents would not as a

practical matter be able to obtain meaningful judicial

review.”).

This Court should grant certiorari in order to

ensure that Section 1252(g¢) is not construed more

broadly than Congress intended. The purpose of Section 1252(¢) was to protect ICE from being flooded

with lawsuits challenging its “discretionary determinations” (AADC, 525 U.S. at 485), and there is no basis for

expanding the statute's reach to shield antecedent legal

determinations from judicial review, particularly where

those determinations are collateral to ICE's exercise of

discretion and outside of the agency's expertise.

22

CONCLUSION

Keeping agency authority within the bounds established by statute and subject to judicial review is

essential to the preservation of civil rights. An untrammeled administrative authority—an unreviewable

“fourth branch”—puts the rights of citizens and noncitizens at risk. The courthouse door must remain open

for review by the courts of legal decisions not statutorily entrusted to an agency. Mr. Rranxburga)’s unfortunate experience is the perfect vehicle for the Court to

level-set the proper role of the agency and the courts

under Section 1252(¢).

Respectfully submitted,

John W. Whitehead Paul J. Kiernan

Counsel of Record Jonathan Bradley Spital

Douglas R. McKusick (of counsel)

The Rutherford Institute Holland & Knight, LLP

109 Deerwood Road 800 17th Street, N.W.

Charlottesville, VA 22911 Suite 1100

(434) 978-8888 Washington, D.C. 20006

(202) 663-7276

Counsel for Amicus Curiae The Rutherford Institute