Amicus Curiae Brief — Demore v. Kim

No. 01-1491 OCI 28

IN THE

Supreme Court of the United States

CHARLES DEMORE, DISTRICT DIRECTOR, et al.,

Petitioners,

v.

HYUNG JOON KIM,

Respondent.

On Wait oF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE SUPPORTING

RESPONDENT

ALFRED P. Carton, JR.*

President, American Bar Association

750 North Lake Shore Drive

Chicago, IL 60611

(312) 588-5000

Of Counsel:

JerFrRey L. BLEICH

DEBORAH N. PEARLSTEIN

Attorneys for Amicus Curiae

* Counsel of Record

177056

i

QUESTION PRESENTED

Whether the mandatory detention of lawful permanent

residents under 8 U.S.C. § 1226(c), without an individualized

determination of flight risk or dangerousness, violates the

Due Process Clause of the Fifth Amendment.

li -

ill

TABLE OF CONTENTS

TABLE OF CITEDAUTHORITIES

Page ties

QUESTION PRESENTED .............0.00ees i CASES:

TABLE OF CONTENTS .........-0eccceeeeee: ii | Addington v. Texas,

rs os eee oeeees 12, 13, 14

TABLE OF CITED AUTHORITIES ............ ili

Albillo-Figueroa v. INS,

STATEMENT OF INTEREST ..............-:- 1 221 F.3d 1070 (9th Cir. 2000) ............... 5

STATEMENT OF THE CASE AND SUMMARY OF Almendarez-Torres v. United States,

(0, eT a EE 11

ARGURGEINT ....000sv00ceesueneeneeel 9 Apprendi v. New Jersey,

es are cece eces 11

I. Lawful Permanent Residents are Entitled to

the Individualized Determination Tradi- Aragon-Ayon v. INS, _

tionally Afforded by U.S. Criminal and Civil 206 F.3d 847 (9th Cir. 2000) ................ 5

Detention Spates ...ccccccesscceensunn 9

Bell v. Reno,

Il. There Is No Reasonable Basis Here for an 218 F.3d 86 (2nd Cir. 2000), cert. denied,

Exception to the Due Process Rule cones 20 2001 WL 12704 (U.S. 2001) TT TrVTrTUTerrrerree 5

A. Numerous Less Restrictive Alternatives Bell v. Wolfish,

Can Guard Against Flight and Threats to 441 U.S. 520 (1979) COeeercoreseeeoeceoooes 10

Publis Seay . wc ccccecccunessseuue 21

Caballero v. Caplinger,

B. Congress Did Not Review the “Actual 914 F. Supp. 1374 (E.D. La. 1996) eeecccccees 8

Consequences” of Discretionary

Watenee . . osc vcccencenuuneue 25 Camacho-Marroquin v. INS,

188 F.3d 649 (Sth Cir. 1999) ................ 5

CORTCE TINS wc cccousscusestueheneeee 30

Cardoso v. Reno,

127 F. Supp.2d 106 (D. Conn. 2001) .......... 27

iv

Cited Authorities

Page

Carlson v. Landon,

De , SED cdicbocccssnsedecedsnas 19

Castro-Baez v. Reno,

217 F.3d 1057 (9th Cir. 2000) ............... 5

Chowdhury v. INS,

249 F.3d 970 (9th Cir. 2001) .............44.. 5

Cleveland Board of Education v. Loudermill,

Ge as SEED npcbhens dacédasdtascecs 17

County of Riverside v. McLaughlin,

Sa ED db idoodtousewededcanese 12

Cupp v. Murphy,

Se UE bc scctuncstesencasatede 11

Ex parte Bollman,

BE CED babobdncccccotedasnckeds 11

Ex Parte Burford,

DG SE 6 ho vcoccccsscéaccnvees 11

Foucha v. Louisiana,

,. §& ll ee 10, 13, 14, 20

Fuentes v. Shevin,

Gy Ce OF IED decctcedsédcccsaseeesoe 17

Gagnon v. Scarpelli,

GEE Gel VOREGED cccevacecdedcanccesenee 17

v

Cited Authorities

Page

Gerstein v. Pugh,

EET AES TN ee 11,12

Goldberg v. Kelly,

I i a 17

Goss v. Lopez,

I a i ak nk ui 17

Herrerta-Soto v. INS,

175 F.3d 1024 (8th Cir. 1999) ............... 5

In re Joseph,

22 I. & N. Dec. 799, 1999 WL 339053 (BIA

I Nth ale el a ae ee cle at led 10, 20

Ingraham v. Wright,

ee a oe 10

INS v. St. Cyr,

a no 5, 6, 27

Jackson v. Indiana,

i enue 12, 14

Jones v. United States,

gk nn nd dececosecese 14, 15

Kamalthas v. INS,

251 F.3d 1279 (9th Cir. 2001) ............... 6

Kansas v. Crane,

SE a ee 15

vi

Cited Authorities

Page

Kansas v. Hendricks,

SBE UD. BEB CISSFD co ccsccnccccccccceces 15, 16, 20

Kellman v. District Director,

750 F. Supp. 625 (S.D.N.Y. 1990) ............ s

Kennedy v. Mendoza-Martinez,

ER err TTT Ty ore 10

Kim v. Ziglar,

SE PEED 6.0.6.00.000600005 600660600 27

Leon v. I.N.S.,

27 Fed. Appx. 868 (9th Cir. 2001) ............ 5

Lettman v. Reno,

207 F.3d 1368 (11th Cir. 2000) .............. 5

Leyva-Licea v. I.N.S.,

187 F.3d 1147 (9th Cir. 1999) ............... 5

Lopez-Elias v. Reno,

209 F.3d 788 (Sth Cir. 2000) ..............5. 5

Matter of Patel,

15 1. &N. Dec. 666, 1976 WL 32348 (BIA 1976)

Denes ab edacabatadioled Sanaa. ‘

Memphis Light, Gas and Water Div. v. Craft,

GEE: BGG 0b ede ceccctce recess dececss 17

Morrissey v. Brewer,

408 U.S. 471 (1972) ............ tet eeeeeees 16

vii

Cited Authorities

Page

Parham v. J. R..,

CR re re eee 12

Reno v. Flores,

pin. otceceuaueadwdueees 18, 19

Rivera-Sanchez v. Reno,

Se ee GE BOD cccccvccvcoctess 5

Santos v. Reno,

ee ee re GG SED cccccccecccccess 5

Sareang Ye v. INS,

214 F.3d 1128 (9th Cir. 2000) ............... 5

Schall v. Martin,

éocin cide ccenvetes 17, 18, 20

Serrano v. Estrada,

201 F. Supp.2d 714 (N.D. Tex. 2002) ......... 28

Solorzano-Patian v. I.N.S.,

207 F.3d 869 (7th Cir. 2000) ................ 5

United States v. Salerno,

ED od ocknn ceeues 10, 12, 14, 19, 21

Vargas v. Reno,

966 F. Supp. 1537 (S.D. Cal. 1997) ........... 6

Vitek v. Jones,

ED Sen giuesdavéesesesacéa 12, 17

viii

Cited Authorities

Page

Walpole v. Hill,

iT eee 17

Welch v. Ashcroft,

293 F.3d 213 (4th Cir. 2002) ................ 4

Wireko v. Reno,

211 F.3d 833 (4th Cir. 2000) ................ 5

Wolff v. McDonnell,

Ss ED Cb dcwecesdetéacecdeseds 17

Wong Wing v. United States,

SP Ee: GEE cd cusecdiaddenncescéees 10

Xiong v. INS,

173 F.3d 601 (7th Cir. 1999) ................ 5

Young v. Harper,

PP ED 6-64 0ec tence déacudausdass 17

Zadvydas v. Davis,

ee eer passim

UNITED STATES CONSTITUTION:

oo dh eed anabiiones i, 1,3, 10

10

ix

Cited Authorities

Page

STATUTES:

8 U.S.C.

I ns es cee cuipetele 5

B REDRANES) nc ccccccscecccccccscccccnvcs 4,5,8

ESTORIL, SOPRA TOPE: 4

lie in eu enadnans ._ passim

Se ne 5

ee 4

ee 4, 6

EE EO OO TE 6

§ 1227(aN2B)ii) 6... cece eee eee eee 4

SESE RE IEE OO EE 6

DB ERPCROEED caccccccccccescccccccccccens 8

NN ea aac iake 8

Nn eecenas 22

x

Cited Authorities

RULES:

Rules of the Supreme Court 37.3 .........-.++::

Rules of the Supreme Court 37.6 .........---++:

REGULATIONS:

8 C.F.R.

SE, nits ccnnv tetas

OTHER AUTHORITIES:

Burger, Introduction: The ABA Standards for

Criminal Justice, 12 Am. Crim. L.Rev. 251

CIDPED oc cccccceccvicsecescsccosvedesegens

Hearing on H.R. 3333 Brief the Subcomm. On

Immigration, Refugees, and International Law of

the House Comm. On the Judiciary, 101* Cong.,

1 Sess. 71-72 (1989) ...... cc eeeeeeeecceees

Statistics from Criminal Aliens in the United States:

Hearings Before the Permanent Subcomm. On

Investigations of the Senate Comm. On

Governmental Affairs, 103" Cong., 1* Sess. 21

(19D3) . .cccccccccccccccccccccesccccsecece

Page

19

26

xi

Cited Authorities

Page

Statement of Joseph Greene, Acting Deputy Executive

Associate Commissioner for INS Field

Operations, Hearing Before the Subcommittee on

Immigration and Claims of the Committee on the

Judiciary, House of Representatives, 107" Cong.,

Pe I ED (odie 6 bs dd endvtecev aes 28

Elizabeth Rapaport, The Georgia Immigration

Pardons, 13 Fed. Sent. Rptr. 184 (2001) ....... 6

Inspector General, U.S. Dep’t. of Justice, Inspection

Report, Immigration and Naturalization Service

Deportation of Aliens After Final Orders Have

Been Issued, Rep. No. I-96-03 (Mar. 1996) .... 27

Letter to the Honorable John Ashcroft, Attorney

General, from Senators Leahy, Kennedy, Hatch,

and Brownback (Aug. 16, 2002) ............. 23, 24

National Institute of Justice Issues and Practices,

Pretrial Services Programs: Responsibilities and

Potential, NCJ 181939 (March 2001) .....=-...21, 22

Office of Juvenile Justice and Delinquency

Prevention, U.S. Dept. of Justice, Desktop Guide

to Good Juvenile Detention Practice (Oct.

EE tee ied ae bbe oN eed edkene bs 64 18

kk a ae tee ed aie inn 21, 22

xii

Cited Authorities

Page

Senate Appropriations Report 107-42, “Department

of Commerce, Justice, and State, the Judiciary, and

Related Agencies Appropriation Bill, 2002,”

POT ee Tee rE EP ee ry ae 24

Testimony of Doris Meissner, Commissioner,

Immigration and Naturalization Service, before

the Subcommittee on Immigration Committee on

the Judiciary, U.S. Senate (Sept. 16, 1998) .... -29

The National Association of Pretrial Services

Agencies NAPSA Performance Standards and

Goals for Pretrial Release (2d ed. 1998) ....... 22

U.S. General Accounting Office, Criminal Aliens:

INS’ Efforts to Identify and Remove Imprisoned

Aliens Continue to Need Improvement (Feb. 1999)

ee ee re 4,24

U.S. General Accounting Office, Jllegal Aliens:

Opportunities Exist to Improve the Expedited

Removal Process (Sept. 2000) ............... 27, 29

Vera Institute of Justice, Testing Community

Supervision for the INS: An Evaluation of the

Appearance Assistance Program (August 1,

DEED Rkncct abet éencevnsceduueasteecests 9, 23

l

INTEREST OF THE AMERICAN BAR ASSOCIATION

Pursuant to this Court’s Rule 37.3, amicus curiae American

Bar Association (“ABA”) respectfully submits this brief urging

this Court to hold that Section 1226(c) of Title 8 of the United

States Code as applied to lawful permanent residents violates

the Due Process Clause of the Fifth Amendment to the

Constitution.'

STATEMENT OF INTEREST

The American Bar Association (“ABA”) respectfully

submits this brief as amicus curiae pursuant to Rule 37.3 of the

Rules of this Court. The ABA is a voluntary, national

membership organization of the legal profession. Its more than

410,000 members, from each state and territory and the District

of Columbia, include prosecutors, public defenders, private

lawyers, legislators, law professors, law enforcement and

corrections personnel, law students and a number of non-lawyer

associates in allied fields.

The ABA is committed to protecting the constitutional and

statutory rights of immigration detainees. Since 1990, the ABA

House of Delegates has maintained support for facilitating

exercise of the right to counsel; for detaining asylum seekers

only in extraordinary circumstances and only in the least

restrictive environment necessary; and for exploring alternative

means of ensuring appearance at immigration proceedings.

In August 2002, the ABA reaffirmed its commitment to these

1. This brief is filed with the consent of both petitioners and

respondent, and letters reflecting those consents have been lodged with

the Clerk of this Court. Pursuant to the Court’s Rule 37.6, the ABA

states that this brief has not been authored in whole or in part by counsel

for a party and that no person or entity, other than Amicus, its members

or its counsel has made a monetary contribution to the preparation or

submission of this brief. Neither this brief nor the decision to file it

reflects the views of any judicial member of the ABA. No member of

the Judicial Division Council participated in the adoption of the positions

in this brief or reviewed the brief prior to filing.

2

principles in a resolution adopted by the House of Delegates

calling for the provision of prompt custody hearings for

immigration detainees before immigration judges, accompanied

by meaningful administrative review and judicial oversight.

These principles are also reflected in the ABA’s strong

support for procedural safeguards in the criminal justice context,

where the ABA has long been active. Among its most recent

efforts, the ABA House of Delegates promulgated the latest

edition of its Criminal Justice Standards on Pretrial Release

(3d ed. 2002) (hereinafter “Pretrial Release Standards”), which

represent a consensus of the legal community and contain a

comprehensive set of guidelines intended to help promote

fairness and balance in the criminal justice system. The first

edition of the Standards was described by former Chief Justice

Burger as the “single most comprehensive and probably the most

monumental undertaking in the field of criminal justice ever

attempted by the American legal profession in our national

history.” Burger, Introduction: The ABA Standards for Criminal

Justice, 12 Am. Crim. L. Rev. 251 (1974).

These Standards are guided by the recognition that

deprivation of liberty while awaiting a final determination of

an individual’s fate is “harsh and oppressive, subjects

[individuals] to economic and psychological hardship, interferes

with their ability to defend themselves, and, in many instances,

deprives their families of support.” Pretrial Release Standards,

10-1.1. While the Standards are addressed principally to criminal

detention, the ABA believes that procedural safeguards are also

critical where, as here, lawful permanent residents are awaiting

a civil proceeding — often housed in criminal detention facilities?

— to determine whether or not they may be removed permanently

from this country.

2. The INS uses hundreds of facilities for immigration detention,

the majority of which are state and local jails and correctional institutions

where the INS contracts for bed space. This creates the anomaly of civil

administrative detainees being incarcerated alongside criminal

ee ee

3

The ABA appears as amicus curiae in this proceeding

because the question presented herein has serious implications

for the administration of justice and, in particular, for the

constitutional right of lawful permanent residents to a forum in

which their challenge to the need for detention may be heard.

STATEMENT OF THE CASE AND

SUMMARY OF ARGUMENT

This case presents the narrow question whether the

mandatory detention of lawful permanent residents under

8 U.S.C. § 1226(c), without an individualized determination of

flight risk or dangerousness, violates the Due Process Clause

of the Fifth Amendment. The sole relief Respondent Mr. Kim

seeks is an individualized hearing in which he may demonstrate

that his detention is not necessary to ensure his appearance at

subsequent proceedings or to protect the community. Mr. Kim

asserts only that due process entitles him to a demonstration

that the Government has some particularized reason why

depriving him of his liberty is necessary to secure the legitimate

state interests the Government says it seeks. As this Court has

recognized time and again, lawful permanent residents in this

country enjoy the protection of the Fifth Amendment to the

Constitution: no “person” in this country may be deprived of

physical liberty without due process of law. By denying lawful

permanent residents a meaningful opportunity io be heard before

detaining them for an unspecified period, Section 1226(c)

deprives these individuals of a liberty interest that the

Constitution presumes they retain.

At the same time, this case does not require the Court to

test the Government’s power to detain those individuals who

are found to pose a danger to the community or present a

particular risk of flight. Mr. Kim has resided in the United States

since he was a chiid. Petitioner’s Brief (“Petr. Br.”), 3. Under

(Cont’d)

the procedural safeguards that are the norm in the criminal justice context.

The ABA estimates that more than 55% of immigration detainees are

incarcerated in penal facilities while awaiting their immigration hearings.

4

the challenged statute, Mr. Kim may be subject to mandatory

detention for committing an offense no more inherently

“dangerous” than tax evasion or shoplifting. 8 U.S.C. § 1226(c);

8 U.S.C. § 1101(a)(43). Indeed, because what counts as a

“conviction” or “term of imprisonment” is uniquely defined

under the 1996 immigration law (for example, a “term of

imprisonment” can include a suspended sentence), an immigrant

like Mr. Kim who is mandatorily detained under Section 1226(c)

may never previously have spent a day in jail. See 8 U.S.C.

§ 1101(a)(48).° Moreover, contrary to the Government’s

assertion, only a tiny fraction of immigrant “aggravated felons”

like Mr. Kim released under the discretionary provision that

preceded Section 1226(c) ever engaged in felony activity again.

According to the INS Law Enforcement Support Center, of

nearly 1200 potentially removable “aggravated felons” who were

released from prison, only 15 were subsequently convicted of

additional felony charges — a recidivism rate of just 1.25%.‘

And detention may extend for years because, while there is a

“clearly identifiable event marking completion of the detention

period (i.e. issuance of a final order),” there is no “clearly

identifiable deadline by which that event must take place.” Welch

v. Ashcroft, 293 F.3d 213, 227 (4th Cir. 2002).

This case likewise does not involve individuals who have

been finally determined to be subject to removal. Mr. Kim has

a right under federal law to reside permanently in the United

States, and to remain in this country until a final order of removal

3. Mr. Kim was detained under the portion of the statute mandating

detention for individuals who are facing deportation for a wide variety

of offenses, including drug addiction, 8 U.S.C. § 1227(a)(2)(B)(ii);

“moral turpitude crimes,” id. § 1227(a)(2)(A)(i); and “convictions” for

offenses classified as “aggravated felonies,” id. § 1227(aX2)(A)(iii).

Under 8 U.S.C. § 1101(a)(43), an “aggravated felony” includes offenses

that are typically considered misdemeanors or minor crimes.

4. U.S. General Accounting Office, Criminal Aliens: INS’ Efforts

to Identify and Remove Imprisoned Aliens Continue to Need

Improvement, at 3 (Feb. 1999).

5

has been entered. 8 U.S.C. § 1101(a)(20); 8 C.F.R. § 1.1(p).

Courts have uniformly recognized their jurisdiction to determine

whether the conviction for which the INS seeks removal was

an “aggravated felony” under 8 U.S.C § 1227(a),° and many

like Mr. Kim have successfully disputed the classification of

their convictions under 8 U.S.C. § 1101(a)(43).° Moreover, as

this Court has made clear, a “great number” of individuals

convicted of “aggravated felonies” remain eligible for

discretionary relief after the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”). JNS v. St.

Cyr, 533 U.S. 289, 323 (2001).’ And the statute itself provides

5. See, e.g., Bell v. Reno, 218 F.3d 86 (2nd Cir. 2000), cert. denied,

2001 WL 12704 (U.S. 2001); Wireko v. Reno, 211 F.3d 833 (4th Cir.

2000); Camacho-Marroquin v. INS, 188 F.3d 649 (Sth Cir. 1999), opinion

withdrawn on other grounds, reh'g dismissed, 222 F.3d 1040 (Sth Cir.

2000); Herrerta-Soto v. INS, 175 F.3d 1924 (8th Cir. 1999); Albillo-

Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000); Aragon-Ayon v. INS,

206 F.3d 847 (9th Cir. 2000); Castro-Baez v. Reno, 217 F.3d 1057 (9th

Cir. 2000); Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000).

6. See, e.g., Lopez-Elias v. Reno, 209 F.3d 788 (Sth Cir. 2000);

Santos v. Reno, 228 F.3d 591 (Sth Cir. 2000); Rivera-Sanchez v. Reno,

198 F.3d 545 (Sth Cir. 1999); Xiong v. INS, 173 F.3d 601 (7th Cir. 1999);

Solorzano-Patian v. I.N.S., 207 F.3d 869 (7th Cir. 2000); Chowdhury v.

INS, 249 F.3d 970 (9th Cir. 2001); Sareang Ye v. INS, 214 F.3d 1128

(9th Cir. 2000); Leyva-Licea v. I.N.S., 187 F.3d 1147 (9th Cir. 1999);

Leon v. ILN.S., 27 Fed. Appx. 868 (9th Cir. 2001).

7. St. Cyr carves out a significant exception to I[RIRA’s denial of

discretionary relief for aggravated felons by preserving discretionary

relief for aliens “whose convictions were obtained through plea

agreements and who, notwithstanding those convictions, would have

been eligible for § [1226 (c)] relief at the time of their plea under the

law then in effect.” 533 U.S. at 326. By the Court’s own estimation, the

impact of its decision is sweeping, since the number of aliens who relied

on Section 1226(c) prior to the passage of IIRIRA “is extremely large,”

id. at 295-96 (noting that in years immediately prior to the statute's

passage more than 50% of the applicants under Section 1226(c) were

ee ee ae any em 2

(Cont’

6

several avenues by which immigrants who have been convicted

of an aggravated felony under section 1227(a)(2)A){ili) may

avoid removal altogether.’ In short, the fact that a lawful

permanent resident has a prior “conviction” does not, of itself,

establish that he is subject to deportation or will be ordered

deported.

In view of the limited nature of the case presented, Amicus

confines its discussion here to two key points supporting the

Court of Appeals’ decision: (1) an individualized determination

of the reasons why the absolute deprivation of liberty is necessary

is the touchstone of U.S. civil and criminal detention systems,

and (2) mandatory detention for every immigrant pending a

deportation determination is both unnecessary and grossly out

of step with standard methods for ensuring appearance and

protecting the public in analogous civil or criminal detention

systems in the United States.

(Cont'd)

at 323-25, n.51, n.54. Moreover, because ITRIRA “expanded the

definition of ‘aggravated felony’ substantially” to include “more minor

crimes which may have been committed many years ago,” an “increased

percentage of applicants will meet the stated criteria for § [1226(c)]

relief.” Jd. at 296 n.6. Finally, an individual may avoid deportation if he

has been pardoned for his offense. 8 U.S.C. § 1227(a)(2)(A)(v);

see also Elizabeth Rapaport, The Georgia Immigration Pardons, 13 Fed.

Sent. Rptr. 184 (2001).

8. An immigrant may not be removed if the Attorney General

decides (1) that removal to a particular country might threaten the alien’s

life or freedom because of the alien's race, religion, nationality,

membership in a particular social group, or political opinion, and (2)

the alien has not participated in persecution, has not committed a

particularly serious crime, and does not pose a danger to the United

States. 8 U.S.C. § 1231(b)(3). Removal may also be avoided through

private legislation from Congress, see Vargas v. Reno, 966 F. Supp. 1537,

50 (BD. Cal. 1997), or under international treaties, such as the

Convention Against Torture and Other Cruel, Inhuman or Degrading

Teenneet or CUNARMNNE, Sy CED © 251 F.3d 1279

(9th Cir. 2001).

7

Where the Government seeks to deprive an individual of a

significant liberty interest, this Court has left no question that

due process demands a determination that the Government’s

legitimate purposes are served by the deprivation in the

individual case. This rule is past question when the

Government’s purpose in detention is punitive. It is equally

essential when the Government’s purpose is preventive. This

principle is borne out in this Court’s due process jurisprudence

governing pretrial detention of arrestees; post-conviction

termination of parole rights; the civil system of juvenile

detention (for citizens and immigrants alike); and civil

commitment of the mentally ill — even when commitment

follows a jury finding of not guilty by reason of insanity. Without

exception, the same rule has governed this Court’s decisions

regarding immigrants present in the United States. The insistence

on individualized determinations in all of these contexts is with

good reason. As the Court has recently emphasized, absent a

statement of particular reasons why detention in the individual

case is necessary, preventive detention related to immigration

proceedings could become simply an easier mechanism for the

Government to inflict punishment.

As the Court has also made clear, a legitimate purpose alone

is not enough to justify the absolute deprivation of liberty when

alternative, less restrictive methods are available that serve the

Government’s asserted interests equally well. Here, there is no

basis for a conclusion that detention is the sole solution. Despite

the Government’s heavy reliance on categorical statistics —

suggesting that immigrants invariably pose a risk of flight or

danger — the evidence regarding lawful permanent residents in

this country points to just the opposite conclusion.

The categories of individuals subject to detention pending

the outcome of deportation proceedings have changed repeatedly

in the past fifteen years. As a result, statistics and legislative

history purporting to describe the “actual consequences” of

discretionary release during this period cannot be readily

compared, and until 1996, demonstrate nothing about the

consequences of discretionary release of lawful permanent

residents following a bond hearing. Before 1988, everyone

subject to deportation hearings was entitled to a bond hearing

and was presumptively eligible to be released. Matter of Patel,

15 L. & N. Dec. 666, 1976 WL 32348 (BIA 1976). Between

1988 and 1990, any immigrant (legal or illegal) who had been

convicted of an “aggravated felony” — then defined narrowly to

include only murder, drug trafficking, and trafficking in

firearms — was to be detained without bond. Former 8 U.S.C.

§ 1101(a)(43), § 1252 (1988). Courts soon concluded that this

restriction was unconstitutional. See, e.g., Kellman v. District

Director, 750 F. Supp. 625, 626-27 (S.D.N.Y. 1990); Caballero

v. Caplinger, 914 F. Supp. 1374, 1376-77 (E.D. La. 1996)

(citing cases). Accordingly, in 1990, Congress amended the law

again to expand eligibility for bond — lawful permanent residents

were again eligible for custody hearings and release. Just a year

later, “lawfully admitted” immigrants were added to those

eligible for release (even if currently in unlawful status). Former

8 U.S.C. § 1252 (1991). In 1996, Congress substantially

expanded the types of crimes deemed to be “aggravated

felonies,” but the INS retained discretion to release “lawfully

admitted” immigrants after a bond hearing until 1998.

Because of these numerous changes, statistics purporting

to describe recidivism or absconding by “aliens” during this

period in fact describe widely differing groups of immigrants.

They provide no basis for demonstrating that, as the Government

release does not. As important, only recently has there been any

information about what happens to the current class of

“aggravated felons” when released following an individual

determination of flight risk or dangerousness. The single study

during the relevant period that does examine how lawful

release pending deportation hearings found appearance rates of

9

90% or better. Vera Institute of Justice, Testing Community

Supervision for the INS: An Evaluation of the Appearance

Assistance Program (August 1, 2000).°

Likewise, for lawful permanent residents, any number of

conditioned or supervised release programs can more than

adequately satisfy the Government's interests in ensuring court

appearances and protecting the public. Indeed, immigration

detention is the only context in the United States in which such

conditional release programs are not employed as a matter of

course. Pretrial services programs in the criminal justice system

have been the norm for the past four decades — to enormously

beneficial effect. Moreover, the single such pilot program that

has been conducted in the immigration context has demonstrated

the overwhelming effectiveness of even a modicum of post-

release supervisory assistance.

Everything that has been learned from conditional or

supervised release programs in these contexts points to the same

conclusion: long-term members of a community, who have close

ties to that community, are overwhelmingly likely to satisfy all

conditions of release and appear at court proceedings as

scheduled. Despite the Government’s suggestion otherwise,

there is no evidence reasonably supporting the conclusion that

immigration detention alone must operate outside the bounds

of standard practice in the United States. Rather, the INS, like

every other law enforcement body, should employ conditions

of release that are no more extensive than necessary to

accomplish the Government’s stated goals.

ARGUMENT

I. Lawful Permanent Residents are Entitled to the

Individualized Determination Traditionally Afforded By

U.S. Criminal and Civil Detention Systems

Freedom from physical detention “lies at the heart” of the

liberty interest that the Due Process Clause protects. Zadvydas

9. The Vera Institute study is discussed in greater detail below.

10

v. Davis, 533 U.S. 678, 690 (2001); Foucha v. Louisiana, 504

U.S. 71, 80 (1992); United States v. Salerno, 481 U.S. 739, 750

(1987). Because detention involves a complete deprivation of

all personal liberty, due process requires that it may be imposed

only through a process that affords considerable procedural

protections. While the scope of procedures afforded may vary

depending on the length and nature of the detention at issue,

due process has always required some independent arbiter to

determine that the Government’s legitimate purposes justify the

deprivation of liberty in the individual case.

In this case, the Government asserts two interests supporting

the detention of lawful permanent residents who have not yet

been found deportable: (1) the risk that they will fail to appear

for subsequent court proceedings (“flight risk”’); and (2) the risk

that, if released, they will pose a danger to the public. Petr. Br.

at 12. While insisting that such individuals are afforded ample

hearing prior to their detention under Section 1226(c), Petr. Br.

at 26-27 (citing Jn re Joseph, 22 I. & N. Dec. 799, 1999

WL 339053 (BIA 1999)), the Government can point to no

determination at any stage as to whether the individual is in

fact a flight risk or a danger. Indeed, there is no individual hearing

evaluating whether there is any relationship between the

Government’s asserted interests and the deprivation to be

inflicted. In this respect, Section 1226(c) falls short of every

other detention scheme this Court has approved.

Due process requirements are stringent and unconditional

where the state seeks to detain an individual as punishment for

a crime. The Government may not sentence a person to

imprisonment absent a finding of guilt. Bell v. Wolfish, 441 U.S.

520, 535-36 (1979); see also Ingraham v. Wright, 430 U.S. 651,

671-672 n. 40, 674 (1977); Kennedy v. Mendoza-Martinez,

372 U.S. 144, 165, 167, 186 (1963); Wong Wing v. United States,

163 U.S. 228, 237 (1896). Indeed, between the “Due Process

Clause of the Fifth Amendment and the notice and jury trial

guarantees of the Sixth Amendment, any fact (other than prior

conviction) that increases the maximum penalty for a crime must

11

be charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S.

466, 476 (2000).'° Punitive detention outside the strictures of

these protections may not be imposed.

Where the Government’s asserted interest is preventive,

rather than punitive, the procedural safeguards required are only

slightly less exacting. But they invariably include the

requirement that detention of an individual serves the purposes

the Government seeks to advance. Thus, the Government may

not detain a person on suspicion of having committed a

crime for any substantial period absent an individualized

showing that there is reason to believe that the person

committed the crime. See, e.g., Cupp v. Murphy, 412 U.S. 291,

294-95 (1973); Ex parte Bollman, 4 Cranch 75 (1807); Ex parte

Burford, 3 Cranch 448 (1806). Recognizing the “necessary

accommodation between the individual’s right to liberty and

the State’s [regulatory] duty to control crime,” this Court

determined that arrest by an officer on the street could be

accompanied by a simple finding of probable cause to believe

that the individual to be detained “had committed or was

committing an offense.” Gerstein v. Pugh, 420 U.S. 103,

111-12 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

But once the individual has been detained, the Government’s

reasons for avoiding the delay of an individualized hearing lest

a crime be committed no longer apply, and a prompt judicial

determination is required. “The consequences of prolonged

detention may be more serious than the interference occasioned

by arrest, . . . imperil[ing] the suspect’s job, interrupt[ing] his

source of income, and impair[ing] his family relationships.” /d.

at 114. Indeed: “When the stakes are this high, the detached

10. Almendarez-Torres v. United States, 523 U.S. 224 (1998), which

remains a narrow exception to the Apprendi rule, does not alter the

analysis. There, the fact that the defendant had a prior conviction was

itself sufficient to increase his sentence. The fact of prior conviction

was not used as an irrebuttable proxy for a determination that defendant

was dangerous or posed a risk of flight.

12

judgment of a neutral magistrate is essential” to justify an

“extended restraint of liberty.” /d. at 114; see also County of

Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (probable cause

hearing must be held within 48 hours of arrest).

Likewise, in upholding the 1984 Bail Reform Act, the Court

relied on the existence of an individualized process for

considering whether to permit release on bail before allowing a

federal court to detain an arrestee pending trial. Balancing the

same set of interests — individual liberty against the

Government’s “regulatory” goal of preventing danger to the

community — this Court upheld the Act based on its series of

strict procedural protections. Salerno, 481 U.S. at 747.

Among other things, the Government was required to

demonstrate by clear and convincing evidence after a

“full-blown” adversarial hearing that no conditions of release

could “reasonably assure the safety of the community or any

person.” Jd. at 742-51. Further, the Act operated only on arrestees

charged with “extremely serious offenses,” and detention was

subject to the “stringent time limitations” of the Speedy Trial

Act. Id. at 747-50. As the Court explained, the “extensive”

procedural safeguards set forth by the Act were “specifically

designed to further the accuracy of [the] determination” in the

individual case. Jd. at 751.

Because civil commitment implicates precisely the same,

powerful liberty interest as imprisonment, this Court has

repeatedly recognized that an individualized determination of

reasons is precisely as essential. There is plainly a substantial

liberty interest in avoiding confinement in a mental hospital.

Vitek v. Jones, 445 U.S. 480, 491-92 (1980) (commitment entails

“a massive curtailment of liberty,”); Parham v. J. R., 442 US.

584, 600 (1979); Addington v. Texas, 441 U.S. 418, 425 (1979);

Jackson v. Indiana, 406 U.S. 715, 738 (1972) (due process

requires at least that the nature and duration of commitment to

a mental hospital “bear some reasonable relation to the purpose”

of the commitment). Accordingly, the Court has required the

use of exacting — and manifestly individualized — procedural

13

protections to guard against error in allowing for civil detention

of the mentally ill.

Thus, in Addington v. Texas, this Court invalidated a Texas

civil commitment statute because it lacked a sufficiently

demanding standard of proof to justify depriving an individuai

of his liberty. Addington arose from a petition by the appellant’s

mother for his involuntary commitment. Under Texas law, the

son was entitled to retain counsel, and trial was held before a

jury to determine whether he could be committed. Addington,

441 U.S. at 420. Despite the substantial procedural protections

Texas law already provided, this Court held that the standard of

proof the state Supreme Court accepted, a “preponderance of

the evidence,” was insufficiently strict given the magnitude of

the liberty interest involved. While the state “has a legitimate

interest” in providing care to its citizens, and in protecting the

community from those who may pose a danger, “the State has

no interest in confining individuals involuntarily if they are not

mentally ill or if they do not pose some danger to themselves or

others.” Jd. at 426. As this Court explained: “The individual

should not be asked to share equally with society the risk of

error when the possible injury to the individual is significantly

greater than any possible harm to the state.” Jd. at 427.

Accordingly, states must meet a burden “equal to or greater than

the ‘clear and convincing’ standard” to satisfy due process

constraints. /d. at 433.

Particularly when commitment is employed as an alternative

to criminal detention, procedural protections must include an

individualized finding to support it. In Foucha v. Louisiana,

504 U.S. 71, 81-82 (1992), the Louisiana law at issue

automatically committed defendants found not guilty by reason

of insanity on the grounds that such a verdict established that

the defendant was dangerous. The state could then continue to

detain such defendants indefinitely without any adversarial

hearing in which the state was required to demonstrate that the

defendant was actually dangerous. Jd. The Court held the

Louisiana law unconstitutional, finding that the law did not even

14

approach the Bail Reform Act requirement upheld in Salerno,

which provision required the Government to show that the

“arrestee presents an identified and articulable threat to an

individual or the community.” Jd. at 81; see also Addington,

441 U.S. at 425-26; Jackson, 406 U.S. at 738 (state may not

detain defendant who lacks capacity to stand trial without

satisfying procedures for civil commitment). Among other

things, Foucha plainly rejects the notion that because a finding

in a criminal proceeding might logically support administrative

detention, such detention is, irrebuttably, justified in every case.

Jones v. United States, 463 U.S. 354 (1983), demonstrates

precisely the same point. There, the Court held that a state may

commit a defendant to a mental hospital upon a verdict of not

guilty by reason of insanity. At the very outset of its discussion,

the Court made clear that such a verdict was sufficiently

probative of mental illness justifying institutionalization because

the verdict itself established the fact that defendant “committed

the act because of mental illness.” Jd. at 363-64. While the Jones

Court also found that evidence of “violence” per se was not a

“prerequisite for a constitutional commitment,” id. at 365

(suggesting that petitioner’s conviction itself was probative of

dangerousness), the Court has since emphasized that it would

not be permissible to assume this in every case “without regard

for [the individual’s} particular crimes.” Foucha, 504 U.S. at

88 (O’Connor, J., concurring) (“[T]he strong interest in liberty

of a person acquitted by reason of insanity but later found sane

might well outweigh the governmental interest in detention

where the only evidence of dangerousness is that the acquittee

committed a non-violent or relatively minor crime.”). In this

case, Mr. Kim’s simple verdict of theft with priors establishes

no fact relating to his flight risk, no fact demonstrating his

deportability, and no evidence supporting a finding of

dangerousness."'

11. In any event, the insanity acquittees subject to the District of

Columbia detention scheme in Jones were at least entitled by law to a

(Cont'd)

15

The Court again highlighted the importance of this principle

in the context of civil commitment just last Term in Kansas v.

Crane, 534 U.S. 407 (2002) (Constitution prohibits civil

commitment of a convicted sexual offender absent some specific

finding that the offender lacked the ability to control his

behavior). In reaching its conclusion, the Court followed closely

the guidance of Kansas v. Hendricks, 521 U.S. 346 (1997), which

upheld a civil commitment statute targeting sexual offenders.

As the Court explained: “Hendricks underscored the

constitutional importance of distinguishing a dangerous sexual

offender subject to civil commitment ‘from other dangerous

persons who are perhaps more properly dealt with exclusively

through criminal proceedings.’” Crane, 534 U.S. at 412 (quoting

Hendricks, 521 U.S. at 360). That distinction, the Court

emphasized, “is necessary lest ‘civil commitment’ become a

‘mechanism for retribution or general deterrence.” Jd.

The distinction — and the‘requirement that a court make a

specific finding of flight risk or dangerousness despite a prior

conviction — is just as essential in the ostensibly non-punitive

context of immigration detention. “Whether a due process right

is denied when [here, potentially] removable aliens who are

flight risks or dangers to the community are detained turns,”

at least in part, “on whether there are adequate procedures to

review their cases, allowing persons once subject to detention

to show that through rehabilitation, new appreciation of their

responsibilities, or under other standards, they no longer present

special risks or danger if put at large.” Zadvydas, 533 U.S. at

721 (Kennedy, J., dissenting). Government detention violates

due process unless there exists, at a minimum, some “special

justification” for detention that “outweighs the ‘individual’s

constitutionally protected interest in avoiding physical

(Cont’d)

hearing within 50 days of commitment at which they would have an

opportunity to demonstrate that they were no longer mentally ill or

dangerous. 463 U.S. at 357-58. The immigration statute here promises

no such assessment — of flight risk or dangerousness — at any point.

16

restraint.’”” Zadvydas v. Davis, 533 U.S. 678, 690 (quoting

Hendricks, 521 U.S. at 356). To determine whether such a

“special justification” exists, this Court has always required that

non-punitive detention be based on a “special,” individual

assessment.

The liberty interest of a lawful permanent resident in such

an individual determination is no weaker because he may, as a

result of his prior conviction, be deportable. Just as the liberty

interest of a parolee is still cognizable even though he may well

be subject to re-incarceration, the mere possibility of deportation

that exists here does not of itself suffice to eliminate respondents’

powerful interest in living at liberty in this country for as long

as they may remain.

The liberty of a parolee enables him to do a wide

range of things open to persons who have never been

convicted of any crime. The parolee has been

released from prison based on an evaluation that he

shows reasonable promise of being able to return to

society and function as a responsible, self-reliant

person. Subject to the conditions of his parole, he

can be gainfully employed and is free to be with

family and friends and to form the other enduring

attachments of normal life. Though the State properly

subjects him to many restrictions not applicable to

other citizens, his condition is very different from

that of confinement in a prison . . . We see, therefore,

that the liberty of a parolee, although indeterminate,

includes many of the core values of unqualified

liberty and its termination inflicts a “grievous loss”

on the parolee and often on others.

Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Accordingly,

even where an individual’s liberty interest is arguably weakened,

due process requires a case-by-case determination — not that

the individual committed a crime in the first instance — but that

the current deprivation of liberty is justified anew. That rule

17

holds for the termination of pre-parole condit; onal supervision

programs, Young v. Harper, 520 U.S. 143 (1997) (opinion of

unanimous Court); the revocation of probation, Gagnon v.

Scarpelli, 411 U.S. 778 (1973); the revocation of prison good-

time credits, Walpole v. Hill, 472 U.S. 445, 454 (1985); and for

involuntary transfer from a prison to a mental institution,

Vitek v. Jones, 445 U.S. 480, 491 (1980) (inmate’s “residuum

of liberty” demands that the state satisfy “minimum requirements

of due process” before proceeding with transfer).'”

The requirement of an individualized assessment of the need

for detention likewise applies without exception in the context

of civil juvenile detention — where, as this Court has asserted,

due process liberty interests may also be diminished. In Schall

v. Martin, 467 U.S. 253 (1984), this Court upheld a New York

statute allowing for pretrial detention of a juvenile after an

individualized finding that the arrested juvenile posed a “serious

risk” of committing a crime before his return date. Jd. at 255.

The Schall Court emphasized that the important risk of

“erroneous and unnecessary deprivations of liberty” was checked

by the fact that “notice, a hearing, and a statement of facts and

12. Even where the individual due process interest is significantly

less than the total deprivation of liberty effected by detention, the

Constitution affords individuals, at a minimum, an “opportunity to

present reasons ... why proposed action should not be taken.”

See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532,

542 (1985) (“‘[T]he root requirement’ of the Due Process Clause” is

“*that an individual be given an opportunity for a hearing before he is

deprived of any significant property interest’”; hearing required before

termination of employment); Memphis Light, Gas and Water Div. v. Craft,

436 U.S. 1, 18 (1978) (hearing required before cutting off utility service);

Goss v. Lopez, 419 U.S. 565, 579 (1975) (at minimum, due process

requires “some kind of notice and . . . some kind of hearing” before

suspension of students from public school); Wolff v. McDonnell,

418 U.S. 539, 557-58 (1974) (hearing required before forfeiture of

prisoner’s good-time credits); Fuentes v. Shevin, 407 U.S. 67, 80-84

(1972) (hearing required before issuance of writ allowing repossession

of property); Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (hearing

required before termination of welfare benefits).

18

reasons are given prior to any detention. . . . [and a] formal

probable-cause hearing is then held within a short while

thereafter, if the factfinding hearing is not itself scheduled within

three days.” Jd. at 274, 277. Since Schall, virtually all state

juvenile court acts have adopted specific requirements about

who may be detained pending adjudication; have required a

judicial detention hearing following soon after admission to

detention; and have strictly limited the duration of pretrial

detention. Indeed, under most state codes, only those charged

with criminal offenses may be detained pre-adjudication for any

length of time. At the detention hearing, the state bears the

burden of proving reasonable cause for believing that the minor

has committed an offense, and that detention — as opposed to

any other less restrictive alternative — is necessary. Office of

Juvenile Justice and Delinquency Prevention, U.S. Dept. of

Justice, Desktop Guide to Good Juvenile Detention Practice,

at 27-28 (Oct. 1996)."°

In Reno v. Flores, 507 U.S. 292, 297 (1993), the Court

reaffirmed these principles in the context of immigration

proceedings involving juveniles. There, the Court considered

INS regulations permitting juveniles who are detained pending

deportation hearings to be released only to their parents, close

relatives, or legal guardians. In contrast to this case, the Flores

regulations preserved the INS district director’s discretion in

“unusual and compelling circumstances” to release the juvenile

to some other adult and the juvenile was entitled to appeal a

refusal of release. Jd. at 310. While concluding that juveniles’

interest in “freedom from physical restraint” was less powerful

13. The ABA’s Standards Relating to Interim Status:

The Release, Control, and Detention of Accused Juvenile Offenders

Between Arrest and Disposition likewise recognize the importance of

such procedural protections. Under these standards, an accused juvenile

taken into custody should be accorded a hearing in court within a day of

the filing of a petition for a release hearing. The burden is on the state to

show probable cause to believe that the juvenile has committed an offense

charged, and the juvenile is entitled to actual notice of the hearing and

the presence of an attorney. /d., Standard 7.6.

19

than adults’, id. at 302, the Flores Court emphasized that the

regulations afforded juveniles substantial protection: the INS

district director had discretion, subject to review in a hearing

before an immigration judge, to release a juvenile to an

unspecified custodian, id. at 313-14; 8 C.F.R. § 263.3(c)(4).

Under these circumstances, the Government’s suggestion that

Flores somehow approves non-discretionary, mandatory

detention of adults in the same context cannot withstand scrutiny.

In contrast to all of the foregoing, the cases cited by the

Government do not suggest that an irrebuttable presumption of

flight risk or dangerousness can justify non-punitive detention.

Particularly in Carlson v. Landon, the Court upheld the Attorney

General’s authority to detain Communist aliens pending

hearings, but emphasized that he retained discretion, subject to

judicial review, to grant bail when appropriate. 342 U.S. 524,

544 (1952) (“Of course purpose to injure could not be imputed

generally to all aliens subject to deportation, so discretion was

placed by the 1950 Act in the Attorney General to detain aliens

without bail. . . .”); id. at 543-44 (“[T]he Attorney General is

not left with untrammeled discretion as to bail. Courts review

his determination. Hearings are had, and he must justify his

refusal of bail by reference to the legislative scheme to eradicate

the evils of Communist activity.”). A presumption against

granting bail to certain classes of persons must be distinguished

from a categorical refusal even to evaluate a person’s flight risk

and dangerousness. '*

Finally, the Government’s suggestion that a pre-detention

determination of deportability satisfies any constitutional

14. See Salerno, 481 U.S. at 765 n.6 (Marshall, J., dissenting)

The majority states that denial of bail in capital cases has

traditionally been the rule rather than the exception. And

this of course is so, for it has been the considered

presumption of generations of judges that a defendant in

danger of execution has an extremely strong incentive to

flee. If in any particular case the presumed likelihood of

flight should be made irrebuttable, it would in all probability

violate the Due Process Clause.

20

requirement relating to detention misses the point. Petr. Br.

at 26-27 (citing Jn re Joseph, 22 1. & N. Dec. at 806, 1999

WL 339053, at *6-7). Whether a person falls within the class of

immigrants who may be deportable under Section 1226(c) does

not resolve whether they should be detained — based on flight

risk or dangerousness — while the Government determines

whether or not they may be deported. As this Court has

recognized, even an immigrant who has been ordered deported

(which Mr. Kim has not) retains a cognizable liberty interest.

See Zadvydas, 533 U.S. at 679-80, 696. Thus, regardless of

whether an immigrant may be deportable, the Government may

not detain him pending further proceedings unless the

Government also has a “special,” particularized reason for

doing so. See Foucha, 504 U.S. at 81-82.

Il. There Is No Reasonable Basis Here for an Exception to

the Due Process Rule

The ABA agrees that ensuring appearances in immigration

interests. But “the mere invocation of a legitimate purpose,”

Schall, 467 U.S. at 269, is not enough to justify the mandatory

detention, for an unknown period of time, of lawful permanent

residents who are not being punished for a crime. Rather, when

less restrictive alternatives are equally c2pable of serving the

Government’s interests in public safety and speedy process, due

process plainly favors their use. Zadvydas, 533 U.S. at 690

(Government must present “special justification” for detention

that “outweighs the ‘individual’s constitutionally protected

interest in avoiding physical restraint’”” (quoting Hendricks,

521 U.S. at 356)); Salerno, 481 U.S. at 747 (detention for a

non-punitive purpose must not be “excessive” means of fulfilling

Government purpose); id. at 750 (upholding federal pretrial

detention scheme only in the “narrow circumstances” where a

neutral magistrate had found that “no conditions of release can

reasonably assure the safety of the community”) (emphasis

added). This disposition toward liberty rather than detention

21

unless necessary is part of the fabric of the U.S. judicial system."

As this Court has very recently emphasized: “The choice .. .

is not between imprisonment and the alien ‘living at large.’ It is

between imprisonment and supervision under release conditions

that may not be violated.” Zadvydas, 533 U.S. at 696 (citations

omitted).

A. Numerous Less Restrictive Alternatives Can Guard

Against Flight and Threats to Public Safety

Any number of “conditions of release” can more than

adequately satisfy the Government’s asserted interests here.

Indeed, such conditioned release programs have long been the

norm in United States criminal and civil detention schemes.

Limited by continually strained resources, and driven by the

same due process concerns that have animated the Court’s

jurisprudence in this area, jurisdictions throughout the country

make it standard practice to avoid unnecessary detention and to

conduct individual assessments of individuals’ suitability for

some form of release. Pretrial release programs for criminal

suspects awaiting trial have been implemented in more than

300 counties and in all 94 districts in the federal court system.

National Institute of Justice Issues and Practices, Pretrial

Services Programs: Responsibilities and Potential, NCJ 181939,

at 8 (March 2001) (hereinafter “DOJ Pretrial Services Survey”).

In fact, immigration detention is the only area in which

supervised release programs are not pursued as a matter of

course.

To ensure that courts reach objective and consistent

decisions regarding release, the ABA has urged that every

jurisdiction establish a pretrial services agency to collect

information and risk assessments, to monitor and assist released

15. The reasons for this presumption are plain: “Deprivation of

liberty pending trial is harsh and oppressive, subjects defendants to

economic and psychological hardship, interferes with their ability to

defend themselves, and, in many instances, deprives their families of

support.” Pretrial Release Standards, Standard 10-1.1.

22

defendants, and to review the status (and eligibility for release)

of detained defendants. Pretrial Release Standards, Standard

10-1.10."*

In keeping with these standards, pretrial services programs

have been operating for the past four decades and now vigorously

perform two key functions: supervising defendants who are

released from custody while awaiting trial, and gathering

information about newly arrested defendants and available

release options for use by a judicial officer who will be

determining the defendant’s custody or release status.

See generally DOJ Pretrial Services Survey. Most programs

manage the risk of harm to the public ur nonappearance in court

by monitoring defendants’ compliance with conditions of release

(such as regular phone or in-person check-ins, movement

restrictions, or electronic monitoring, and, in certain cases,

confinement). Jd. at 37-48. Through their decades of

accumulated experience, these programs have taught law

enforcement a great deal about strategies that can dramatically

improve appearance rates (including numerous steps as simple

as reminding defendants of upcoming court appointments) and

manage risk to the public. /d.

16. The ABA maintains that courts should employ “the least

restrictive condition(s) of release that will reasonably ensure a

defendant's attendance at court proceedings and protect the community,

victims, witnesses or any other person.” Jd. Standard 10-1.2. Only if it

can be determined that “no conditions of release” would satisfy these

needs may defendants be detained. /d.; see also 18 U.S.C. § 3142(e)

If, after a hearing pursuant to the provisions of subsection

(f), ... the judicial officer finds that no condition or

combination of conditions will reasonably assure the

appearance of the person as required and the safety of any

other person and the community, such judicial officer shall

order the detention of the person before to trial.

The National Association of Pretrial Services Agencies (NAPSA)

Performance Standards and Goals for Pretrial Release, Standard I &

comm. at 4 (2d ed. 1998).

23

Recognizing that such programs had tremendous potential

for relieving its perennially overburdened detention system, the

INS commissioned a study by a well-known nonprofit research

organization to determine whether various supervised release

techniques — from monitoring through regular phone and in-

person appearances before program staff to providing regular

reminders of court hearings and referrals to relevant services —

could boost appearance rates at deportation proceedings.

Vera Institute of Justice, Testing Community Supervision for

the INS: An Evaluation of the Appearance Assistance Program

(August 1, 2000).'’ Although the appearance rates of the lawful

permanent residents who had served criminal sentences was

already quite high (89%) without any supervisory assistance,

when these individuals were given the benefit of even limited

appearance assistance support, their appearance rate exceeded

94%. Id. at 33-36."* In the end, about 90% of all of the supervised

immigrants participating in the program appeared at all court

hearings. As the bipartisan leadership of the Senate Judiciary

Committee recognized, “[t]he results from the Vera Institute’s

program exceeded expectations, resulting in . . . an impressive

appearance rate at court hearings.” Letter to the Honorable John

Ashcroft, Attorney General from Senators Leahy, Kennedy,

Hatch, and Brownback (Aug. 16, 2002) (hereinafter “Ashcroft

Letter”).

Because the pilot program so exceeded expectations,

Congress last year allocated $3 million for the implementation

17. The Vera Institute Appearance Assistance Program study was

conducted between 1997 and 2000, and involved 534 participants, 127

of whom were presumptively subject to removal and detention based

on their criminal convictions. Of this 127, all but six were lawful

permanent residents. The Vera Institute study remains, to the ABA’s

knowledge, the sole effort to examine the appearance rates of the class

of immigrants at issue in this case.

18. Indeed, the lawful permanent residents involved in the study

consistently demonstrated a higher appearance rate (with assistance or

asylum seekers and undocumented immigrant workers.

24

of “alternatives to detention” programs. Senate Appropriations

Report 107-42, “Department of Commerce, Justice, and State,

the Judiciary, and Related Agencies Appropriation Bill, 2002,”

p. 40. As a recent letter from the members of the Senate Judiciary

Committee responsible for adding these appropriations makes

clear, P.L. 107-77 “specially directed” the Department of Justice

to devote these funds to using “community-based organizations

to screen asylum seekers and other INS detainees for community

ties, provide them with necessary services and help to assure

their appearance at court hearings.” Ashcroft Letter.

In all events, the INS could fail to pursue the release program

Congress has authorized and still employ a far less restrictive

approach to determining removability — an approach that

imposes no additional burden on the liberty of the individual

potentially subject to removal. As the INS has long recognized,

unnecessary detention can be avoided entirely simply by

identifying those who are potentially deportable and conducting

deportation hearings while they are still incarcerated for a

criminal offense. U.S. General Accounting Office, Criminal

Aliens: INS’ Efforts to Identify and Remove Imprisoned Aliens

Continue to Need Improvement (Feb. 1999); see also id.

(Oct. 1998 edition); id. (July 1997 edition). Faced with concerns

that it was failing to identify potentially deportable immigrants

while they were still in prison, the INS began efforts to

implement an “Institutional Hearing Program” (“IHP”’) — an

effort to ensure that potentially deportable immigrants were

identified while still incarcerated, and subject to removal

hearings during that same period, without the need for indefinite

detention past the expiration of their sentences. The GAO found

repeatedly that the INS had simply failed to identify these

As a result, the INS was forced to detain immigrants who did

not complete the removal hearing process in prison (incurring

on the order of $40 million in avoidable detention costs in the

process). Perhaps worst of all, those immigrants whose

deportation hearings happened to start before they were released

25

from prison faced an average of 23 additional days in detention;

for those whose hearings were commenced after their release,

individuals were subject to an average of 88 additional days in

detention. Jd. (Oct. 1998 Edition) at 36.

Taking into account the INS’ ongoing IHP program,

the Vera Institute’s pilot Appearance Assistance Program, and

Congress’ own insistence that the INS pursue such alternatives

to detention with the money Congress expressly earmarked for

that purpose, there can be no justification for insisting upon

mandatory detention of the class of immigrants here — lawful

permanent residents — who are most likely to appear in court of

their own accord.

B. Congress Did Not Review the “Actual Con-

sequences” of Discretionary Release

The Government maintains that “(t]he mandatory detention

requirement of 8 U.S.C. § 1226(c) is the product of Congress’s

close scrutiny of the actual consequences of allowing release of

criminal aliens.” Petr. Br. at 8. In fact, the Government presents

no “actual” support for the conclusion that immigrants who fall

within the definition of Section 1226(c) must be detained in

order to protect the public or to guard against the risk of flight.

On the contrary, as discussed above, the statistical and

experiential evidence that does exist supports just the opposite

conclusion.

The vast majority of the evidence in legislative history cited

by the Government in support of its description of the “scrutiny”

Congress applied was not in fact before the Congress that passed

Section 1226(c) in 1996. As has been noted, supra at 7-8,

the mandatory detention policy challenged here was adopted in

1996 and put into effect for the first time in 1998. Before that,

policy regarding the disposition of immigrants pending

deportation hearings changed repeatedly — sometimes annually

— with successive new enactments. The evidence cited by the

Government from legislative history preceding earlier

amendments to the Immigration and Naturalization Act cannot

26

be said to have led the 1996 Congress to an “ineluctabl[e]

conclu{sion],” Petr. Br. at 21, about anything, much less about

the need for the particular mandatory detention provision then

enacted and now at issue in this case.'? Worse, the evidence

cited that was before these earlier congresses vacillates randomly

between statistics describing the behavior of illegal entrants to

the United States (only /ega/ permanent residents are at issue in

this case), and “aliens” generally without any description of

whom this category includes.” Much of the rest of the legislative

history cited by the Government is either inapposite (speaking

to Congress’ concern generally about the slow pace of removal,

not the need for mandatory detention to speed things up),

or would tend to lead Congress to just the opposite conclusion

as the one the Government now maintains it reached. See, e.g.,

Petr. Br. at 18 (citing high costs of incarceration and contribution

to prison overcrowding resulting from detention of immigrants).

Most striking in the Government’s catalog of legislative history

is the complete absence of any evidence that the Congress,

in enacting the latest Section 1226(c), devoted any time to

weighing the necessity of mandatory detention for a// immigrants

potentially subject to deportation.

Having found no comfort in the record actually before

Congress when Section 1226(c) was enacted, the Government

19. See, e.g., Petr. Br. at 13 (quoting reasoning from 133 Cong.

Rec. 28,840-41 (1987)); id. at 16-17, 20 (studies cited in Hearing on

H.R. 3333 Brief the Subcomm. On Immigration, Refugees, and

International Law of the House Comm. On the Judiciary, 101* Cong.,

1* Sess. 71-72 (1989)); id. at 17-21 (Statistics from Criminal Aliens in

the United States: Hearings Before the Permanent Subcomm.

On Investigations of the Senate Comm. On Governmental Affairs, 103™

Cong., 1" Sess. 21 (1993)).

20. Compare, e.g., Petr. Br. at 13 (citing 1987 testimony by then-

pending legislation sponsor regarding arrest rates of “illegal aliens”),

with id. at 19 (citing statistics of number of “aliens” in 1992 who had

committed an aggravated felony (presumably, as then quite narrowly

defined) and then failed to appear for hearings).

27

turns to a 1996 study — apparently cited nowhere in the legislative

history — purporting to show that fully 90% of immigrants

like Respondent abscond. Petr. Br. at 23-25. (citing Office of

the Inspector General, U.S. Dep’t. of Justice, Inspection Report,

Immigration and Naturalization Service Deportation of Aliens

After Final Orders Have Been Issued, Rep. No. I-96-03

(Mar. 1996) (hereinafter “OIG Report”). Even a passing look at

the OIG Report reveals that the study does not address the

question at issue in this case: whether it is reasonable to presume

— irrebuttably — that lawful permanent residents pose such a

flight risk or danger that they must be detained, for an arbitrary

period, until the Government gets around to determining their

removability.

The OIG Report found, simply, that 89% of non-detained

aliens subject to a final removal order were never deported.

This finding does not purport to address, in particular, the flight

risk of immigrants subject to Section 1226(c), immigrants who

have not yet been issued final orders of removal, immigrants

released on bail after a hearing, or lawful permanent residents.

At a minimum, as this Court is well aware, “[t]here is a clear

difference . . . between facing possible deportation and facing

certain deportation.” St. Cyr, 533 U.S. at 325; see also Kim v.

Ziglar, 276 F.3d 523, 535 (“[t]he incentives to flee are greater

for an alien already ordered removed than for an alien still in

removal proceedings”); Cardoso v. Reno, 127 F. Supp. 2d 106,

114 (D. Conn. 2001) (“applying a presumption of flight risk to

aliens such as Ms. Cardoso is, in fact, counter-intuitive, because

as her last opportunity to remain lawfully in the United States,

Ms. Cardoso has every incentive to attend the . . . hearing at

which her removability will be determined”); General

Accounting Office, //legal Aliens: Opportunities Exist to

Improve the Expedited Removal Process (Sept. 2000).

Further, the reason given in the OIG Report as to why 89%

of “non-detained” aliens are never deported after receiving final

orders of removal has nothing to do with a finding that these

individuals invariably pose a risk of danger or flight. Rather,

28

the OIG Report concludes that the INS has simply failed to

enforce final orders of deportation. The OIG Report repeatedly

emphasizes that such factors as the lack of detention and

transportation resources, delays in receipt of final orders by the

detention and deportation centers, failure to send surrender

requests, and failure to pursue or investigate abscondees

contributed significantly to the low deportation rate. Jd. at 5-

11; see also Serrano v. Estrada, 201 F. Supp. 2d 714, 726 n. 53

(“citing a ‘shortage of investigative resources’ the report noted

that ‘[nJondetained aliens who do not comply with a surrender

request [we]re rarely pursued actively””’) (citations omitted). The

OIG Report thus proposes reforms aimed at more “efficient use

of detention resources,” including “moving more quickly to

present surrender notices to aliens after receiving final orders,”

“delivering surrender notices instead of mailing them,” actually

“pursuing aliens who fail to appear,” “coordinating with other

governmental agencies to . . .track[ ] aliens who fail to appear,”

and “taking aliens into custody... when final orders are issued.

Id. at 14.

In contrast to the scant evidence supporting mandatory

detention for all lawful permanent residents, there is no question

that the “actual consequences” of mandatory detention of

immigrants like Mr. Kim have been to overwhelm INS detention

resources to the breaking point. This outcome is not surprising.

As of December 2001, the INS had access to 21,304 beds in

federal, state and local facilities to detain legal and illegal

immigrants. In Fiscal Year 2000 alone, the INS admitted more

than 188,000 aliens into custody for some period of time.

Statement of Joseph Greene, Acting Deputy Executive Associate

Commissioner for INS Field Operations, Hearing Before the

Subcommittee on Immigration and Claims of the Committee on

the Judiciary, House of Representatives, 107th Cong., Ist Sess.,

at 18 (Dec. 19, 2001).

Since the INS began asking Congress to reconsider

implementing Section 1226(c)’s mandatory detention

requirement (which took effect in 1998), the INS has maintained

29

that it “will be unable to meet the custody requirements of

IIRIRA.” Testimony of Doris Meissner, Commissioner,

Immigration and Naturalization Service, before the

Subcommittee on immigration Committee on the Judiciary,

U.S. Senate (Sept. 16, 1998). Justice Department studies

conducted since then have in fact found resources deeply

strained. Indeed, one INS district office reported that it was

releasing aliens — not because the local officials wanted to

authorize release, but because of lack of detention space.

U.S. General Accounting Office, Illegal Aliens: Opportunities

Exist to Improve the Expedited Removal Process, at 64-65 (Sept.

2000).

Whatever the formal strictures of due process, the system

that produces such results — that detains and releases individuals

on the basis of whether or not a bed happens to be available,

and whether or not their detention actually serves the

Government’s purposes — is arbitrary at best. Even “removable

and inadmissible aliens are entitled to be free from detention

that is arbitrary or capricious.” Zadvydas, 533 U.S. at 721

(Kennedy, J., dissenting). The liberty interests, and

accompanying procedural safeguards, afforded to “persons” in

this country are surely at least equal to this.

30

CONCLUSION

For the foregoing reasons, amicus American Bar

Association urges that the decision of the Court of Appeals for

the Ninth Circuit be affirmed.

Respectfully submitted,

ALFRED P. Carton, JR.*

President, American Bar Association

750 North Lake Shore Drive

Chicago, IL 60611

(312) 588-5000

Of Counsel:

JerrreY L. BLEICH

DEBORAH N. PEARLSTEIN

Attorneys for Amicus Curiae

* Counsel of Record