Amicus Curiae Brief — Demore v. Kim

IN THE SUPREME COURT OF THE UNITED

STATES OCT 2g om.

OCTOBER TERM, 2002

at Cj

OR aye,

No. 01-1491

CHARLES DEMORE, DISTRICT DIRECTOR, SAN

FRANCISCO DISTRICT OF IMMIGRATION AND

NATURALIZATION SERVICE, ET AL.,

Petitioner,

Vv.

HYUNG JOON KIM,

Respondent.

BRIEF FOR AMICI CURIAE LAW FACULTY IN

SUPPORT OF RESPONDENT

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

DANIEL KANSTROOM,

Boston College Law School,

885 Centre Street,

Newton, Massachusetts 02459

617-552-0880

Attorney for Amici Curiae Law Professors

{Names of individual amici are listed at the conclusion of

this brief]

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE.. |

STATEMENT OF THE CASE. sesunessscssenecsessssnseneese

SUMMARY OF ARGUMENT ..... ecccecccsece &

ARGUMENT ..... . 2 sven

I. ALL NON-CITIZENS WITHIN THE UNITED

STATES ARE PROTECTED BY THE

CONSTITUTION WHEN THE GOVERNMENT

ACTS TO DETAIN OR TO REMOVE THEM

Ll

A. The Plenary Power Doctrine Was First

Developed in a Largely Discredited Case

Involving the Exclusion of Non-citizens ....

, oe 8 |

B. There is a Well-Recognized Distinction

Between the “Plenary Power” of Congress

as to Substantive Immigration Laws and

the Constitutional Limits on that Power to

Detain Individuals Within the United

States..... - - 16

Il. THIS COURT HAS APPLIED THE PLENARY

POWER DOCTRINE TO THE DETENTION OF

LAWFULLY ADMITTED PERMANENT

RESIDENTS DURING REMOVAL

PROCEEDINGS TO A MUCH LESSER

EXTENT THAN TO NON-CITIZENS SEEKING

ADMISSION... , sescensennesessvensense SD

ll. THE PLENARY POWER DOCTRINE

DERIVES FROM THE COURT'S

RECOGNITION OF THE EXECUTIVE'S

AUTHORITY OVER FOREIGN AFFAIRS, A

CONSIDERATION WITH VIRTUALLY NO

RELEVANCE TO THIS CASE 26

IV. CONCLUSION 28

TABLE OF AUTHORITIES

FEDERAL CASES

Addington v. Texas, 441 U.S. 418 (1979).....cccccccsesscesseseseeees 19

Almeida-Sanchez v. United States, 413 U.S. 266 (1973)..... 16

Baker v. Carr, 369 U.S. 186 (1962) ...cccccccccscsesessccsssesesececeee. 26

Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir.; en

banc), cert. denied, 516 U.S. 976 (1995).......cccccseee. 27

Bridges v. Wixon, 326 U.S. 135 (1945) ..c.cccccccccssesesseesees 10, 21

Carlson v. Landon, 342 U.S. 524 (1952) v.ccccccccscssecseseeee 22, 23

Chae Chan Ping v. United States (The Chinese Exclusion

Cass) 130 U.S. SB8 ncncccsccasscsstemesammannel 5, 11, 13 26

Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001) ....ccccccscsseees 9

Ekiu v. United States, 142 U.S. 651 (1892).....ccececesceseses 11,12

Fiallo v. Bell, 430 U.S. 787 (1977) ..ccccccccccscsesesesessesseseseesenes 26

Fong Yue Ting v. United States, 149 U.S. 698 (1893) ... 14, 15

Foucha v. Louisiana, 504 U.S. 71 (1992) ..ccccccccccssscssseesssees 18

Galvan v. Press, 347 U.S. 522 (1954) ....ccccccccecceeseeeeeeeeneees 17

Gisbert v. U.S. Attorney General, 988 F.2d 1437 (5™ Cir.

DIIBD ccecccceccscscnscccecssecccessessnsescscoscsescoscssssoccsoosocsoncooses 27

INS v. Aguirre-Aguirre, 526 U.S. 415 a 26, 27

INS v. Chadha, 462 U.S. 919 (1983).....cccccccceeeeeeeeeeneensenees 27

INS v. St. Cyr, 533 U.S. 289 (2001) ......ccccccecereeeceeeseeseresnnenees 9

Jackson v. Indiana, 406 U.S. 715 (1972) ....ccccccccceeeeeeeeeeeeeees 19

Jean v. Nelson, 472 U.S. 846 (1985).......ccccccceeceeeeeeeeeeeeeeenenes 17

Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) aff'd, 472 U.S.

BI. ccccncocssecssssssecossssesevessesesscesscsenssscsescsocconcsecsoceee 14, 27

Johnson v. Eisentrager, 339 U.S. 763 (1950) ........00000 10, 21

Kamalthas v. INS, 251 F.3d 1279 (9" Cir. 2001).......+ssse00 u

Kansas v. Hendricks, 521 U.S. 346 (1997) .......c0cccceeeeeeeeeees 18

Kleindienst v. Mandel, 408 U.S. 753 (1972) .......:-sseeseeeeeeees 26

Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) .....--+0++ 27

Landon v. Plasencia, 459 U.S. 21 (1982)........00008 8, 9, 13, 24

Leng May Ma v. Barber, 357 U.S. 185 (1958) ....ssss»s0sseeeeee 24

Lochner v. New York, 198 U.S. 45 (1905).......ccccccceeseeeeeeeeeeees 5

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). .......+2+++ 3,24

Plessy v. Ferguson, 163 U.S. 567 (1896) ......:c-.0eceereeeeneneees 5

Plyler v. Doe, 457 U.S. 202 (1982) ........c.cccsscsccsesecesseceeseseeee 19

Reid v. Covert, 354 U.S. 1 (1957) ...ccccccccccccceccccceesceeeececereneee 13

Reno v. Flores, 507 U.S. 292 (1993) .....cccccccccccceseeeee 22, 23, 24

Sareang Ye v. INS, 214 F.3d 1128 (9™ Cir. 2000) ..........ccce00e. 9

Scott v. Sanford, 60 U.S. 393 (1856).......ccccccccccceesesceeeeeeeeeeees 5

Shaugnessy v. Mezei, 345 U.S. 206 (1953)....9, 14, 18, 21, 26

United States v. Salerno, 481 U.S. 739 (1987)....3, 4, 7, 18,21

United States ex rel. Knauff v. Shaughnessy,

a ee icant iach 29

United States v. Hare, 873 F.2d 796 (5™ Cir. as 18

United States v. Theron, 782 F.2d 1510 (10" Cir. 1986)..... 18

Wong Wing v. United States, 163 U.S. 228

GERD ccnsasnssssresencsnsncsnstiteenmiiiainasiats 4, 15, 16, 17, 19

Yamataya v. Fisher, 189 U.S. 86 (1903) ...........cccccccee. 5, 20,21

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............ 4, 16, 20, 22

Zadvydas v. Davis, 533 U.S. 678 (2001).......... 4,9, 10, 19, 21

STATUTES & REGULATIONS

Of Se 21

GUD..G, G BoE, D ccnncnscsnntnarsncsiainnciitsinnsianitiniiintiniiniiaiitiiaiasaiin 21

iv

id AT iin itisiedsdetaesiasbiiniiitamneasaniiiis 21

a I . crsisegninsiamnitiiiainnitiinii 2, 11, 25, 28

NT eI ccssensnserenmsceminennaneitinninisiniaiciaia 2,8

ns cccmnannenl 2, 4, 8, 9, 17, 22

Re Oe a etailaetidaneiineniaiaanat 2

Oe I... snsninicecasipnieniiaiiiaamaniainiedl 8

ee eT 3

NE A... snsasimsiiiesiaiiiniiaibundinicaniniinienittin 25

SI OI... carscctsinensieiiiitsheiaiinanatitabesianicsiaiinal il

Alien Enemies Act, ch. 66, 1 Stat. 577.....cccsssssssssssssssssssssee 23

Alien Friends Act, ch. 58, 1 Stat. 570, 571 (1798)........0000 23

Il Immigration Reform and Immigrant Responsibility

- Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat.

BOD acecccccsccssccsesssessecsscesscsssssssosessossssssocssonssssosseensees 2,5

Sedition Act, ch. 74, 1 Stat. 596 (1798) .........ccseseeseesereeennes 23

OTHER AUTHORITIES

T. Alexander Aleinikoff, Detaining Plenary Power: The

Meaning and Impact of Zadvydas v. Davis, 16 Geo.

Pe EE 12

T. Alexander Aleinikoff, Federal Regulation of Aliens and

the Constitution, 83 Am. J. Int'l L. 862, 864-69....... 12

Louis Henkin, The Constitution and United States

Sovereignty: A Century of Chinese Exclusion and its

Progeny, 100 Harv.L.Rev. 853, 862..............c0000000 12

David M. Hudson, Tax Problems for Departing Aliens, 97-03

Immigration Briefings 1-3 ...................csseseseesseeeeees 25

Daniel Kanstroom, Deportation, Social Control, and

Punishment: Some Thoughts About Why Hard Laws

Make Bad Cases, 113 Harv.L.Rev. 1890................. 12

Daniel Kanstroom, St. Cyr or Insincere: The Strange Quality

of Supreme Court Victory, 16 Geo. Imm. L.J. 413.....9

Stephen H. Legomsky, /mmigration Law and the Principle of

Plenary Congressional Power, 1984 Sup. Ct. REV.

ee a el arerrictiiecietnnnenitsinennesinsaiiiiaaninaiaiisinisitdesinn 5, 12, 28

James Madison, Report on the Virginia Resolutions, 4

Debates, Resolutions and Other Proceeding, In

Convention on the Adoption of the Federal

ConstituionS56 (Jonathan Elliot, 2d ed., 1836).......... 6

David A. Martin, Due Process and Membership in the

National Community: Political Asylum and Beyond,

44 U. Pitt. L. Rev.. 165, 166-80 .......cccccccccccccsseeseeees 12

David A. Martin, Graduated Application of Constitutional

Protections for Aliens: The Real Meaning of

Zadvydas, 2001 Sup. Ct. Rev. 47 .........cccccccceeeeeee 7, 25

Hiroshi Motomura, /mmigration Law After a Century of

Plenary Power: Phantom Constitutional Norms and

Statutory Interpretation, 100 Yale L.J. 545 ....... 12,14

Hiroshi Motomura, The Curious Evolution of Immigration

Law: Procedural Surrogates for Substantive

vi

Constitutional Rights, 92 Colum.L.Rev. 1625, 1632- :

9D ....ccccccosscecesescesccoseecssscssscossssssnssssnsonssosssessesssesseneneens l

Gerald Neuman, Strangers to the Constitution, (Princeton

University Press 1996) ...........csssssseeseessenseeneennennens 12

Margaret H. Taylor, Detained Aliens Challenging Conditions

of Confinement and the Porous Border of the Plenary

Power Doctrine, 22 Hastings Const.L.Q. 1087........ 15

Peter H. Schuck, The Transformation of Immigration Law,

84 Colum.L.Rev. 1, 14-18 .......ccccecseeeseeeeeeeseeennnnsnes 12

Charles D. Weisselberg, The Exclusion and Detention of

Aliens: Lessons from the Lives of Ellen Knauff and

Ignatz Mezei, 143 U. PA. L. Rev.. 933, 939-951 ..... 12

The Kentucky Resolution, Documents of American History

181 (Henry Steele Commanger ed., 6" ed. 1958)....20

8 Annals of Cong. 2012........:cceseseessrerennernensensensnensnennennes 24

INTEREST OF AMICI CURIAE

Amici Curiae are law professors whose individual

names appear at the conclusion of this brief. Many of.us

have written about the principles that the government

invokes in this appeal. Although there may be some

differences among vs about the precise origins and certain

aspects of what is generally referred to as “the plenary power

doctrine,” all conclude that, whatever may be the outer limits

of the government’s substantive authority to regulate

immigration, there is absolutely no question that the removal

power of the government, especially the power to detain

lawful permanent resident non-citizens, is meaningfully

limited by the requirements of due process. Amici support

affirmance, and write to situate the issues raised by this case

within the broader context of constitutional immigration law.

In particular, amici disagree with the government’s

contention that judicial deference is appropriate in this case

due to the plenary power doctrine.

Pursuant to Supreme Court Rule 37.6, no counsel for

any party authored this brief in whole or in part. The brief

was written by counsel for Amici Curiae with the assistance

of Anaysa Gallardo, Rita Kraner, and Elizabeth Weir,

students at Boston College Law School. No one other than

Amici Curiae, Boston College Law School, or counsel for

Amici Curiae has made a monetary contribution to the

preparation or submission of the brief.

Both Petitioner and Respondent have consented to

the filing of this brief. Letters of consent have been lodged

with the clerk.

STATEMENT OF THE CASE

Respondent Hyung Joon Kim, a citizen of the

Republic of Korea, entered the United States legally as a six

year old child in 1984. (Pet. App. 2a). He became a lawful

permanent resident of the United States in 1986, at the age of

eight. (/d. at 3la-32a). A decade later, in 1996, at the age

of eighteen, Mr. Kim was convicted of a crime for which he

received a suspended sentence. (/d. at 32a). In April 1997, he

was convicted of “petty theft with priors,” and sentenced to

three years’ in prison. (/d.) Despite his long residence, entry

as a child, family ties, and various other humanitarian

factors, Mr. Kim was charged by the U.S. Immigration and

Naturalization Service (INS) with being subject to removal

due to his 1997 conviction for an “aggravated felony.”' (/d.

). See 8 U.S.C. §§ 1101(a)(43)(g), 1227(a)(2)(A)(iii(2002).

He was taken into custody by INS on February 9, 1999. Due

to the requirements of 8 U.S.C. 1226(c),”? INS refused to

' i August 2002, Mr. Kim was charged as subject to removal on additional

grounds, arising from the 1996 and 1997 convictions. See 8 US.C.

1227(aX2MA ii) (stating “two or more crimes involving moral turpitude, not

arising out of a single scheme of criminal misconduct.”) These additional charges

do not affect the constitutional issues presented to the Court in this case. Amici

also understand that Mr. Kim may contest all asserted grounds in proceedings

before the Immigration Court.

* The INS detained Mr. Kim pursuant to 8 U.S.C. § 1226(c), part of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.

L. No. 104-208, ! 15 Stat. 3009. The section as a whole is entitled “Detention of

criminal aliens.” Section 1226(c)(1) provides, in relevant part,

“The Attorney General shall take into custody any alien who--

(A) is inadmissible by reason of having committed any offense covered

in section | 182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in

section 1227(a 2A ii), (A)iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)i) of this title on the basis

of an offense for which the alien has been sentenced to a term of

imprisonment of at least | year, or

(D) is inadmissible under section 1182(aX3\B) of this title or

deportable under section 1227(a4)(B) of this title, when the alice &

released, without regard to whether the alien is released on paro.:,

supervised release, or probation, and without regard to whether the

alien may be arrested or imprisoned again for the same offense.”

release him on bond or even to grant him a meaningful bond

hearing. (See Pet. App. at 33a).

Mr. Kim sought judicial relief in the form of a habeas

corpus action brought pursuant to 28 U.S.C. § 2241 in the

United States District Court for the Northern District of

California. (Pet. App. at 2a, 31a, 33a). He challenged §

1226(c) as facially unconstitutional because it precludes an

individualized bond hearing in violation of both substantive

and procedural guarantees of due process under the Fifth

Amendment. The District Court declared §1226(c)

unconstitutional on its face and ordered a meaningful,

individualized bond hearing at which assessment could be

made whether Mr. Kim presented either a flight risk or a

danger to the community. (/d. at 31a-5 la). The district court

held specifically that “lawful resident aliens” possess both

substantive and procedural due process rights and the §

1226(c) scheme failed on both counts, pursuant to United

States v. Salerno, 481 U.S. 739, 747 (1987) and Mathews v.

Eldridge, 424 U.S. 319, 335 (1976). (Pet. App. at 39a-S0a).

The court of appeals affirmed on the specific ground

that § 1226(c) violated due process as applied to Mr. Kim, a

lawful permanent resident. (Pet. App. at 30a). The court

held that “a lawful permanent resident in removal

proceedings cannot constitutionally be deprived of ’a bail

hearing with reasonable promptness to determine whether

the alien is a flight risk or a danger to the community. (Id. at

30a).

SUMMARY OF ARGUMENT

The fundamental protections of the Fifth Amendment

“are universal in their application, to all persons within the

territorial jurisdiction” of the United States. Yick Wo v.

Hopkins, 118 U.S. 356, 369 (1886). As this Court has

recently noted, “[o]nce an alien enters the country, the legal

circumstances change, for the Due Process Clause applies to

all 'persons' within the United States, including aliens,

whether their presence here is lawful, unlawful, temporary,

or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

The mere fact that a non-citizen has been arrested and

charged as ‘subject to removal’ does not strip a person, even

one who may have been convicted of a crime, of the right to

be free of unconstitutional detention. Wong Wing v. United

States, 163 U.S. 228, 236-38 (1896). This is especially true

in the case of a lawfully admitted permanent resident with

long residence in the United States since childhood and

extensive family and community ties, such as the

Respondent, Hyung Joon Kim. In our society, liberty is the

norm, and detention prior to trial is the carefully limited

exception. United States v. Salerno, 481 U.S. 739, 755

(1987). This Court has repeatedly confirmed the “general

rule” of substantive due process that the government may not

detain a person prior to a judgment of guilt in a criminal trial.

Id. at 749.

Among other arguments made by Petitioners in this

case is the general claim that the “policy judgments that

Congress made when it enacted § 1226(c) are within its

plenary power over the admission and expulsion of aliens

and deserve judicial deference.” (U.S. Petitioner’s Brief at

13, DeMore v. Kim, 2002 WL 31016560 (9th Cir. 2002) (No.

01-1491)). This argument -- when applied to ce

rests upon a series of implicit omissions and fun on “

misunderstandings about the so-called plenary = a

doctrine.’ It should not be overlooked that the doctrine a -

root of Petitioner’s deference arguments had its ~— be

what--apart from Scott v. Sanford, 60 U.S. 393 ( i

Plessy v. Ferguson, 163 U.S. 567 (1896) and ager Be Pw

York, 198 U.S. 45 (1905) -- may be the most critic eo

in all of U.S. jurisprudence, Chae Chan Ping v. “ 7

States, (The Chinese Exclusion Case) 130 USS. ea "4

That case has been well-described as “a constitutio a ‘

a remnant of pre-rights jurisprudence that we have proudly

rejected in other respects.” Louis Henkin, The pony

and United States Sovereignty: A Century of , : a.

Exclusion and its Progeny, 100 Harv. L.Rev. the 7

(1987).? While the present case does not require the c “hie

re-examine the plenary power doctrine entirely, a wen po

such dubious parentage that is so deeply ae ~ ~

better norms of our constitutional legal system s . he

invoked, if at all, with great care and in the ef ae

ways possible. It should certainly not be extended in a

realm of constitutional consideration of the mandatory

detention of lawful permanent residents.

Indeed, for nearly a century, this soe -

recognized the inapplicability of the plenary power ny

to the rocedanes {89 £15, 86, 100 (1908), “this court has

j 9 US. 86, ‘

roennnr 2 OM ae red officers, when executing

the provisions of a statute involving the liberty of genet

may disregard the fundamental principles that age & “4 7

process of law.”” The governmen t’s assertion Pa ad

deferential judicial review is required when detention o

i to have

3 Moreover, as one scholar has demonstrated, the doctrine appears

nadvertent i i that meant merely to

i out of misplaced reliance on cases

peer ; the eA of the federal government. See generally, Stephen H.

Legomsky IMMIGRATION AND THE JUDICIARY, (Oxford University Press

1984).

citizens is at issue is an incorrect overgeneralization. (Pet.

Br. 14). To the contrary, the doctrine has never been held

dispositive as to the issue presented by this case: the

constitutionality of executive detention of lawful permanent

residents within the United States without time limit and

without a meaningful individualized hearing. Indeed, to so

hold would be to overrule some of the deepest and best

constitutional traditions of our nation. As James Madison

once noted, “[even if] aliens are not parties to the

Constitution, it does not follow that the Constitution has

vested in Congress an absolute power over them...” James

Madison, Report on the Virginia Resolutions, 4 Debates,

Resolutions and Other Proceedings, in Convention on the

Adoption of the Federal Constitution 556 (Jonathan Elliot,

2d ed. 1836).

More specifically, the government also asserts that,

“Congress acted within the scope of its plenary immigration

powers” when it used a “categorical approach” in the

detention context. (Pet. Br. 14, 32-33). The government

suggests that the judiciary should defer to the choices made

by the political branches as to mandatory detention of non-

citizens. This suggestion overstates both the meaning of the

term ‘plenary’ in the immigration context and the possible

significance of a ‘categorical approach.” The former is

irrelevant in the context of detention of lawful permanent

residents and the latter cannot override due process

protections. While Congress’ substantive judgments about

who should be admitted into or deported from the United

States may be entitled to deference because of the plenary

power doctrine, this deference does not extend in any

meaningful way to detention. The Court’s immigration

detention decisions have reflected essentially the same focus

on individualized determinations as have detention decisions

in other areas of law. To permit ‘categorical’ exceptions to

due process based solely upon the citizen/non-citizen line

would eviscerate over a century of due process precedent and

usher in a radical regime of unfettered government power

over millions of legal permanent residents and others within

the United States. See Margaret H. Taylor, Detained Aliens

Challenging Conditions of Confinement and the Porous

Border of the Plenary Power Doctrine, 22 Hastings Const.

L.Q. 1087 (1995) (describing how certain judicial

approaches to the detention of aliens have ‘infiltrated’ other

areas of constitutional law).

The plenary power doctrine has also never been heid

dispositive as to the due process protections of persons, such

as Mr. Kim, who are lawful permanent residents of the

United States. See generally, David A. Martin, Graduated

Application of Constitutional Protections for Aliens: The

Real Meaning of Zadvydas, 2001 Sup. Ct. Rev. 47 (2002)

(noting how the mix between concerns of social reality and

legal status is intricate and highlighting, “the premier status

given in law and social reality to lawful permanent resident

status.”) Whatever may be the outer boundaries of due

process protections, the most basic, long-standing distinction

in all of this Court's jurisprudence about the Constitutional

status of non-citizens is that between the government’s broad

authority to determine who may enter the United States

versus its more limited power to detain and remove people.

The government's interest in detaining people, such as Mr.

Kim, who have already been admitted to this country,

differs markedly from its stake in refusing to admit large

numbers of first-time applicants for admission. The

invocation of plenary power by the government in the

context of this case is at best a make-weight or a

smokescreen. At worst, it is an invitation to an

unconscionable retrenchment on the constitutional protection

of liberty for all persons within the United States.

Amici are concerned that the government makes

rather sweeping generalizations about the relationship

between ‘plenary power’ and individual rights that range

from the completely incorrect:

(an alien who was stopped at the border has

no due process claim to be released from

detention”

(Pet. Br. at 10).)

But see, Landon v. Plasencia, 459 U.S. 21, 41 (1982)

(returning lawful permanent residents stopped at the border

retain procedural due process protections),

to the hyperbolic:

(“[a]liens detained under 8 U.S.C. § 1226(c)

have committed crimés that terminate their

entitlement to remain in the United States.”’)

(Pet. Br. 16).

Contrary to this assertion, no administrative order of

removal could be entered against Mr. Kim until, at the

earliest, an Immigration Judge were to find him subject to

removal. That order would not be final until affirmed by the

Board of Immigration Appeals (BIA) or until the period for

seeking BIA review passed. See 8 U.S.C. § 1101(a)(47)(B).

Absent a fir.al removal order, Mr. Kim's right to remain in

the United States is established as a matter of law. See §

C.F.R. § 1.1(p) (“The term lawfully admitted for permanent

residence means the status of having been lawfully accorded

the privilege of residing permanently in the United States as

an immigrant in accordance with the immigration laws, such

status not having changed. Such status terminates upon entry

of a final administrative order of exclusion or deportation.”)*

* Moreover, apart from procedural rights, it is definitively not the law that being

charged or even found subject to removal terminates one’s lawful residence.

First, IIRIRA did not eliminate all avenues of relief for persons subject to

§1226(c). A non-citizen convicted of an aggravated felony may be eligible for

withholding of removal. See 8 U.S.C. § 1231(b)(3)A), (B). A non-citizen may

—

The government also argues that, because § 1226(c)

mandates detention in aid of removal (as compared to

detention where removal is “no longer practically

attainable”), it more directly implicates Congress’ “plenary

authority over matters of immigration policy” than did the

post-final-order detention regime considered in Zadvydas.

(Pet. Br. at 10). On its face this seems an astonishing

assertion: those who are merely accused should have fewer

protections than those against whom a final determination

has been rendered. It also ignores the two most important

limitations on the plenary power doctrine: (1) procedural due

process always applies during deportation proceedings,

Zadvydas, 533 U.S. at 693 (“Aliens who have once passed

through our gates, even illegally, may be expelled only after

proceedings conforming to traditional standards of fairness

in due process of law”) (quoting Shaugnessy v.

Mezei, 345 U.S. 206, 212 (1953)); and (2) that lawful

permanent residents receive heightened constitutional

protection by virtue of their status and ties to the community.

See Landon v. Plasencia, 459 U.S. 21, 32 (1982)("“[O}nce an

alien gains admission to our country and begins to develop

the ties that go with permanent residence, his constitutional

government's assertion that such relief is merely a “matter of grace” significantly

undervalues the extensive rule of law attributes of so-called “discretionary’ evtiet

from deportation. (Pet. Br. at 38); see generally, Kanstroom, Si. ryt

The Strange Quality of Supreme Court Victory, 16 Geo. Imm. L.J. 413 ( .

Finally, some persons detained under the statute may be able to demonstrate after

a full hearing that the conviction for which the INS seeks to remove them was not

an aggravated felony. See, e.g., Chowdhury v. INS, 249 F.3d 970 (9th Cir.

2001(holding that conviction for laundering $1,300 was not an aggravated

felony); Sareang Ye v. INS, 214 F.3d 1128 (9th Cir. 2000) (holding that state-law

offenses of vehicle burglary did not make alien eligible for removal because they

were neither “burglaries” nor “crimes of violence” under the INA).

status changes accordingly.”); see also Zadvydas, 593 U.S. at

694, ([T]he nature of [due process] protection may vary

depending upon status and circumstance”).’ Because this

case involves both a challenge to pre-hearing deportation

procedures and a long-term lawful permanent resident, the

government's plenary power argument is in fact significantly

less persuasive than it was in Zadvydas.°

In sum, the government has its basic constitutional

principles exactly wrong. There has been no question for

more than a century, and there is surely no question today,

that all non-citizens within the United States are ‘persons’

fully protected by the Fifth Amendment. This principle is

especially clear as to legally-admitted permanent residents

such as Mr. Kim. When the United States screened and

admitted Mr. Kim as a young child, it relinquished whatever

residual authority’ it might have had to treat him as someone

*See also Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (“The alien, to

whom the United States has been traditionally hospitable, has been accorded a

generous and ascending scale of rights as he increases his identity with our

society.”); Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring)

(“Once an alien lawfully enters and resides in this country he becomes invested

with the nghts guaranteed by the Constitution to all people within our borders.”’)

* As the Court of Appeals recognized, this case involves an individual who

retains his lawful permanent resident status and his nght to live and work in this

country. In contrast, Zadvydas involved a challenge by former lawful permanent

residents who had already been ordered removed and had thereby lost any night to

remain. See Zadvydas, supra at 720 (Kennedy, J., dissenting) (“[{I}t must be made

clear these aliens are in a position far different from aliens with a lawful night to

remain here.”). Thus, the government's argument as to plenary power in this

case is backward. If anything, the concerns of which gave rise to the plenary

power doctrine are implicated more by the persons at issue in Zadvydas—those

found to be subject to removal—than to those merely accused. In addition, the

detention scheme in Zadvydas provided a procedure, albeit an informal one,

through which persons who had been ordered removed could demonstrate lack of

danger and flight risk and perhaps qualify for release. In contrast, the statute at

issue here provides no such possibility.

” Amici do not concede that any person is completely outside the protections of

the constitution when the U.S. government seeks to act to detain or prevent entry

into U.S. territory. This question, however, is well beyond the scope of what is

presented by this case.

10

eee

outside of the protections of our Constitution. There is no

basis in logic, justice or precedent for the proposition that the

‘plenary power’ of the government overrides due process

protections for lawful permanent residents. Nor does it

mandate deferential review of detention laws.

ARGUMENT

I. ALL NON-CITIZENS WITHIN THE UNITED

STATES ARE PROTECTED BY THE

CONSTITUTION WHEN THE GOVERNMENT

ACTS TO DETAIN OR TO REMOVE THEM

A. The Plenary Power Doctrine Was First

Developed in a Largely Discredited Case

Involving the Exclusion of Non-citizens

The ‘plenary power doctrine’ originated in The

Chinese Exclusion Case (Chae Chan Ping v. United States),

130 U.S. 581 (1889). That case involved a Chinese laborer

who, in 1887, had obtained a certificate permitting him to re-

enter the United States. The Court held that he had no right

to challenge his subsequent exclusion from the country as a

result of an 1888 statute that voided previously obtained

certificates. As articulated by Justice Field, writing for the

majority, Congress’ ability to pass legislation to exclude non-

citizens, “is a proposition which we do not think open to

controversy.” Jd. at 603. More broadly, the Court concluded

that the federal power to exclude non-citizens was an

inherent attribute of sovereignty, extra-constitutional,

essentially unchallengeable by anyone, and unreviewable by

the judicial branch. /d. at 604, 609.

The Court reasoned similarly in another case from

the same era: Nishimura Ekiu v. United States, 142 U.S. 651

(1892), again affirming the federal government's plenary

power to exclude without judicial intervention. The Court

found that it was not “within the province of the judiciary”

to order the entry of foreigners who are not residents of the

United States. For such people, “the decisions of executive

or administrative officers, acting within powers expressly

conferred by Congress, are due process of law.” /d. at 660.

With important limitations described below, the Court has

generally adhered to this rule - declining to intervene in

cases involving the determination of whether a particular

non-citizen will be admitted or excluded from the country,

except as authorized by statute or regulations.

The doctrine reduces to the idea that because

authority over immigration into the United States flows from

sovereignty itself -- particularly the need for the sovereign to

control relations with other nations -- certain decisions

implementing the immigration power may receive at most

highly deferential judicial review.‘

° For descriptions of the plenary power doctrine and its limitations, see generally

T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of

Zadvydas v. Davis, 16 Geo. Imm. L. J. 365 (2002); Daniel Kanstroom,

Deportation, Social Control, and Punishment: Some Thoughts About Why Hard

Laws Make Bad Cases, 113 Harv. L. Rev. 1890 (2000); Margaret Taylor,

Detained Aliens: Challenging Conditions of Confinement and the Porous Border

of the Plenary Power Doctrine, 22 Hastings Constit.. L.Q. 1087, 1128-39 (1995);

Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the

Lives of Ellen Knauff and Ignatz Mezei, 143 U. PA. L. Rev.. 933, 939-951

(1995); T. Alexander Aleinikoff, Federal Regulation of Aliens and the

Constitution, 83 Am. J. Int'l L. 862, 864-69 (1989); Gerald Neuman,

STRANGERS TO THE CONSTITUTION,(Princeton University Press 1996);

Louis Henkin, The Constitution and United States Sovereignty: A Century of

Chinese Exclusion and Its Progeny, 100 Harv. L. Rev.853, 854-63 (1987);

Stephen H. Legomsky, /mmigration Law and the Principle of Plenary

Congressional Power, 1984 Sup. Ct. REV. 255, 256-78; David A. Martin, Due

Process and Membership in the National Community: Political Asylum and

Beyond, 44 U. Pitt. L. Rev.. 165, 166-80 (1983); Hiroshi Motomura, The Curious

Evolution of Immigration Law: Procedural Surrogates for Substantive

Constitutional Rights, 92 Colum. L. Rev. 1625, 1632-50 (1992); Hiroshi

12

a

ae Cie

As its name suggests, The Chinese Exclusion Case

involved a law with ugly racial undertones. More

specifically, however, it concerned the government's

exclusion of a non-citizen at the border. Although Chae Chan

Ping had previously resided in the United States, the Court at

this time treated him as a first-time entrant without

constitutional status.’ Justice Field, using rather

inflammatory discourse, reasoned that the exclusion of

foreigners was an “incident of sovereignty:”

To preserve its independence, and give

security against foreign aggression and

encroachment, is the highest duty of every

nation, and to attain these ends nearly all

other considerations are to be subordinated.

It matters not in what form such aggression

and encroachment come, whether from the

foreign nation acting in its national

character, or from vast hordes of its people

crowding in upon us.

Id. 130 U.S. at 606

For various reasons, since its first enunciation, the

plenary power doctrine has proven controversial, generating

strong dissents and significant limitations in virtually every

case in which the government has sought for it to be applied.

See also Reid v. Covert, 354 U.S. 1, 5-7 (1957) (stating that

the United States is “entirely a creature of the Constitution.

Its power and authority have no other source. It can only act

in accordance with all the limitations imposed by the

Constitution. .“) (footnotes omitted). As many

Motomura, igration Law A a Century Plenary Power: Phantom

Ss te and on p Aten 100 Yale LJ. 545, 550-60

(1990); Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L.

Rev. 1, 14-18 (1984). .

* This aspect of the case as to lawful permanent residents has been definitively

rejected by Landon v. Plasencia, supra.

13

commentators have noted, the plenary power doctrine has

impeded the development of coherent principles of

constitutional immigration law. See e.g., Hiroshi Motomura,

Immigration Law After a Century of Plenary Power:

Phantom Constitutional Norms and Statutory Interpretation,

100 Yale L.J. 545 (1990) (suggesting that the plenary power

doctrine has prevented the growth of a _ coherent

constitutional framework for immigration law, within which

its sub-constitutional levels: statutes, regulations, agency

directives, etc, can develop and be administered fairly and

predictably.)

The doctrine became most controversial in the

context of deportation. In Fong Yue Ting v. United States,

149 U.S. 698, 707 (1893), the Court majority stated that “the

right of a nation to expel or deport foreigners...rests upon

the same grounds, and is as absolute and unqualified as the

right to prohibit and prevent their entrance.” The case

involved the deportation of Chinese persons who could not

meet a statutory requirement of a “credible white witness.”

Within a decade, however, the basic position advocated by

the dissenters generally prevailed and has been the law ever

since.

The notion of ‘plenary power’ within U.S. territory,

especially as applied to lawful permanent residents, had

proved deeply troubling from its earliest assertions. As

Justice Brewer asked in dissent in Fong Yue Ting:

Where are the limits to such powers to be

found, and by whom are they to be

pronounced? Is it within legislative capacity

to declare the limits? If so, then the mere

assertion of an inherent power creates it, and

despotism exists.

14

149 U.S. 698, 737 (1893). "°

The language of the Fong Yue Ting majority - that

the power to deport was as “absolute and unqualified” as the

power to exclude - was dramatic, if not shocking. Taken

literally, it could have meant that non-citizens, legally

resident or not, have no constitutional rights at all in

deportation proceedings. The Court, however, tested and

rejected this extreme proposition three years later in Wong

Wing v. United States. The 1892 Act at issue in Fong Yue

Ting also contained a section that provided for the

imprisonment at hard labor for up to a year of any Chinese

citizen judged to be in the U.S. illegally. The statute

provided no right to trial by jury. The Court held this

provision unconstitutional, even though detention or

temporary confinement was permissible “as part of the

means necessary to give effect to the provisions for the

exclusion or expulsion of aliens.” /d. at 235. When Congress

pursues deportation policy by subjecting non-citizens to

“infamous punishment at hard labor, or by confiscating their

property,” however, then “such legislation, to be valid, must

provide for a judicial trial to establish the guilt of the

accused.” /d. at 237

Although the Wong Wing Court generally reaffirmed

aspects of the holding of Fong Yue Ting, it seems to have

viewed the constitutional civil/criminal line as more

important than the “plenary power” doctrine that had

previously been applied to deportation. The Court in Wong

Wing sought a consistent ‘theory of our government’ with

© See also, Mezei, supra, 345 U.S at 226 (Jackson, J., dissenting) (“Does the

power to exclude mean that exclusion may be continued or effectuated by any

means which happen to seem appropriate to the authorities?”); Jean v. Nelson,

472 U.S. 846, 874 (1985) (Marshall J., dissenting) (“Only the most perverse

reading of the Constitution would deny detained aliens the right to bring

constitutional challenges to the most basic conditions of their confinement.”)

15

which to distinguish deportation from punishment. 163 U.S.

at 238. See generally, Kanstroom, Deporiation, Social

Control, and Punishment, supra. It did not seek an

overarching extra-constitutional principle based upon the

status of alienage to avoid the apparent dilemma presented

by the 1892 law:

But to declare unlawful residence within the

country to be an infamous crime, punishable

by deprivation of liberty and property,

would be to pass out of the sphere of

constitutional legislation, unless provision

were made that the fact of guilt should first

be established by a judicial trial. It is not

consistent with the theory of our government

that the legislature should, after having

defined an offense as an infamous crime,

find the fact of guilt and adjudge the

punishment by one of its own agents.

Id. at 237.

The Court in Wong Wing thus made it very clear

more than a century ago that the implications of Yick Wo v.

Hopkins were powerful, even in the deportation context. All

persons in the United States are entitled to the protections of

the Fifth and Sixth Amendments. Generalizations about

plenary power and deference cannot override those basic

rights.

B. There is a Well-Recognized Distinction Between

the “Plenary Power” of Congress as _ to

Substantive Immigration Laws and _ the

Constitutional Limits on that Power to Detain

Individuals Within the United States

This Court, as noted above, has long held that non-

citizens within our physical borders are persons within the

meaning of the Due Process Clause. See, e.g.. Yick Wo, 118

16

U.S. at 369; Wong Wing, 163 U.S. at 238; Plyler v. Doe, 457

U.S. 202, 210 (1982) (“Aliens, even aliens whose presence

in this country is unlawful, have long been recognized as

‘persons' guaranteed due process of law by the Fifth and

Fourteenth Amendments”). See also Almeida-Sanchez v.

United States, 413 U.S. 266, 272-74 (1973) (Fourth

Amendment protects as to searches and seizures within the

United States). This is no less true when persons are placed

in removal proceedings. Concurring in Wong Wing, Justice

Field, the original author of the ‘plenary power doctrine,” put

the matter as follows:

The term ‘person,’ used in the Fifth

Amendment, is broad enough to include any

and every human being within the

jurisdiction of the republic . . . This has been

decided so often that the point does not

require argument.

163 U.S. at 242 (Field, J., concurring in part and dissenting

in part).

The Government has suggested in this case that §

1226(c) is subject to deferential or at most “rational basis”

review because it arises in the context of immigration, an

area in which Congress has traditionally been afforded

“plenary” authority. (Pet. Br. at 32-33). This Court has

repeatedly emphasized, however, that there is a profound

difference between Congress’ authority as to substantive

immigration policy choices, such as visa categories, and the

means chosen to implement and enforce those choices.'' This

dichotomy in constitutional immigration law, though hardly

unproblematic, makes some sense in light of the underlying

premises that gave rise to the plenary power doctrine. The

distinction preserves the power of the political branches to

'! As this Court noted in Galvan v. Press, “policies” are entitled to judicial

deference, but “the government must respect the procedural safeguards of due

process.” 347 U.S. 522, 742 (1954).

17

control entry inte and lawful status within the United States,

as well as substantive naturalization authority. Matters of

procedure, conversely, concern questions that are

traditionally recognized as within judicial competence and

expertise. This is particularly true as to procedural matters

that arise pending the final resolution of a removal

proceeding.

The constitutional question in this case in no way

implicates substantive immigration policy choices. The grant

of a bond hearing or even release from detention does not

grant to the non-citizen the lawful status that under the

plenary power doctrine is held to be under the control of the

politicai branches. The constitutionality of mandatory

detention without any time limit and without any

individualized determination of danger or flight risk is a

question that is well within the authority of the judicial

branch. As Justice Jackson noted in Mezei, supra, “Under the

best tradition of Anglo-American law, courts will not deny

hearing to an unconvicted prisoner just because he is an alien

whose keep, in legal theory, is outside our gates.” Jackson, J.

dissent 345 U.S. at 218.

Moreover, although detention is a procedural aspect

of the deportation process, it raises basic constitutional issues

whenever and against whomever it is used.’ See, e.g.,

Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (“A finding

of dangerousness, standing alone, is ordinarily not a

sufficient ground upon which to justify indefinite involuntary

commitment. [therefore] we have sustained civil

commitment statutes when they have coupled proof of

'? See e.g., United States v. Hare, 873 F.2d 796, 801 (Sth Cir. 1989) holding,

post-Sa/erno, that “in determining whether due process has been violated, a court

must consider not only factors relevant in the initial detention decision{ ] . . . but

also additional factors such as the length of the detention that has in fact occurred

or may occur in the future”); United States v. Theron, 782 F.2d 1510, 1516 (10th

Cir. 1986) (“Although pretrial detention is permissible when it serves a

regulatory rather than a punitive purpose, we believe that valid pretrial detention

assumes a punitive character when it is prolonged significantly.”)

wer + s

te ae

dangerousness with the proof of some additional factor, such

as a mental illness or mental abnormality.”) (citations and

quotations omitted); Foucha v. Louisiana, 504 U.S. 71, 79

(1992) (“Due process requires that the nature of commitment

bear some reasonable relation to the purpose for which the

individual is committed”); United States v. Salerno, 481 U.S.

739, 747 (1987) “general rule” of substantive due process is

that the government may not detain a person prior to a

judgment of guilt in a criminal trial); Addington v. Texas,

441 U.S. 418, 425 (1979) (“civil commitment for any

purpose constitutes a significant deprivation of liberty that

requires due process protection”); Jackson v. Indiana, 406

U.S. 715, 738 (1972) (an individual held as unfit to stand

trial cannot be committed for more than a reasonable period

necessary to determine whether he will become competent in

the foreseeable future). As this Court recently noted, it has

“upheld preventive detention based on dangerousness only

when . . . subject to strong procedural protections,”

including, “proof of dangerousness by clear and convincing

evidence, and the presence of judicial safeguards” See

Zadvydas, 533 U.S. at 678 (citing Salerno).

Though it is a means to the end determined by

substantive immigration policy, the means itself is subject to

close constitutional scrutiny. See Wong Wing, (stating that

detention or temporary confinement by immigration

authorities constitutes, “part of the means necessary to give

effect to” substantive decisions about exclusion or

deportation). Indeed, Wong Wing involved a statute that

authorized executive imprisonment of certain non-citizens

for one year after the entry of a final order of deportation.

Id. This Court, while acknowledging the government's broad

power over immigration and the permissibility of “temporary

confinement . . . while arrangements [are] being made for

their deportation” nevertheless struck down the statute. /d.

Quoting Yick Wo's holding that the Fourteenth Amendment

is “universal in [its] application to all persons within the

19

territorial jurisdiction, without regard to . . . nationality,” the

Court continued:

All persons within the territory of the United

States are entitled to the protection

guaranteed by [the Fifth and Sixth]

amendments, and . . . even aliens shall not

be held to answer for a capital or other

infamous crime, unless on a presentment or

indictment of a grand jury, nor be deprived

of life, liberty or property without due

process of law.

Id. at 238; Yick Wo, 118 U.S. at 369.

As the Due Process Clause protected Wong Wing

against arbitrary detention, it surely protects those who, like

Mr. Kim, were lawfully admitted to the United States, during

proceedings to determine whether they are even subject to

removal.

Among the many reasons to support such a protective

rule is a basic concern with the dangerous precedent that

would be set by the allowance of government power to

incarcerate anyone without a bail hearing, based solely on an

accusation. As Thomas Jefferson --writing particularly to

oppose the Federalists’ Alien Friends Act, Alien Enemies

Act, and Sedition Act ' --warned, in 1798: “The friendless

alien has indeed been selected as the safest subject of a first

experiment, but the citizen will soon follow. .. .” '

'? Alien Friends Act, ch. 58, 1 Stat. 570, 571 (1798) (expired June 25, 1800)

(permitting the President to order any alien whom he judges “dangerous to the

peace and safety of the United States” to leave the country without a hearing);

Alien Enemies Act, ch. 66, | Stat. 577 (1798) (codified at 50 U.S.C. §§ 21-23

(1999)) (permitting the President during war to apprehend, restrain, secure, and

remove all enemy aliens without a hearing); Sedition Act, ch. 74, | Stat. 596

(1798) (expired Mar. 3, 1801).

'* See The Kentucky Resolution, Documents of American History 181 (Henry

Steele Commager ed., 6th ed. 1958).

20

Moreover, the Wong Wing principle of constitutional

limitations on government power was and is completely

consonant with the evolving jurisprudence of this Court as to

the rights of non-citizens in deportation proceedings. As the

Court stated seven years later, in Yamataya v. Fisher, “this

court has never held . . . that administrative officers, when

executing the provisions of a statute involving the liberty of

persons, may disregard the fundamental principles that

inhere in ‘due process of law.” 189 U.S. at 100. In

Yamataya, a non-citizen was arrested after entering the

United States on the ground that she was a pauper and

therefore ineligible to become a permanent resident. The

government insisted, with arguments not dissimilar to those

presented in this case, that its plenary power over

immigration overrode the protections of the Fifth

Amendment. The Court, however, rejected that argument,

holding that the statute being reviewed must be interpreted to

“bring [it] into harmony with the Constitution” and its due

process guarantees. /d. at 101.

Since Yamataya, the Court has reiterated repeatedly

that non-citizens are entitled to due process during

deportation proceedings. See e.g., Mezei, 345 U.S. at 212

(“[A]liens who have once passed through our gates, even

illegally, may be expelled only after proceedings conforming

to traditional standards of fairness encompassed in due

process of law.”); Johnson v. Eisentrager, 339 U.S. 763,

770-71 (1950) (recognizing that aliens are protected “against

Executive deportation except upon full and fair hearing”);

Bridges v. Wixon, 326 U.S. 135, 150-57 (1945); see also

Zadvydas, 533 U.S. at 721 (Kennedy, J., dissenting) (“[B]Joth

removable and inadmissible aliens are entitled to be free

from detention that is arbitrary or capricious”). Plenary

power, in sum, has nothing to do with the due process

calculus required in this case.

21

Nor should this Court apply a ‘categorical’ model

that would dramatically differentiate the due process rights

of citizens from those of non-citizens. The Constitution,

though it makes some categorical distinctions between

citizens and non-citizens, surely does not leave the latter

rightless. Most of the textual distinctions involve political

rights such as election to federal office and voting. '° The

Bill of Rights, however, uses non-categorical, broader terms

such as “person” and “the accused” that have long been

construed to protect non-citizens. See e.g., Wong Wing v

United States, supra, Yick Wo, supra. Thus, although certain

constitutional entitlements may be subject to categorical

limitations, “categorical distinctions, founded on legal status,

cannot overwhelm the proud tradition of Yick Wo and Wong

Wing.” See Martin, supra.

It was for this reason that the Court in Carlson v.

Landon, 342 U.S. 524 (1952) upheld the Attorney General's

discretionary authority to detain some deportable non-

citizens deemed to be Communists, while expressly noting

that “[o]f course purpose to injure could not be imputed

generally to all aliens subject to deportation...” Detention at

that time was based on a system, unlike § 236(c), that

included an individualized determination that release of the

particular non-citizen posed a danger to the public. See id. at

538, 541-42. Even though deportation in 1952 could be

premised on party membership alone—a regime that would

likely be found unconstitutional today--the order to detain a

person pending deportation proceedings required

significantly more than that. Jd. at 541. Detention was

permissible based on “evidence of membership p/us personal

activity in supporting and extending the Party’s philosophy

concerning violence.”) /d. (emphasis added).

'S See e.g., Art I, § 2, cl 2 (members of the House of Representatives must have

been U.S. citizens for seven years); Art I, § 3, cl 3 (Senators must have been U.S.

citizens for nine years); Art Il, § 1, cl 5 (President must be a natural bor citizen).

22

Reno v. Flores does not establish a contrary

constitutional rule. (See Pet. Br. at 33). First, as a threshold

matter, the Flores Court described the issue in that case as

one of “custody” over non-citizen juveniles, rather than

incarceration or detention. See Flores (emphasizing that the

juveniles were held in licensed juvenile care facilities, not in

“shackles, chains or barred cells,” and that, for this reason

alone, “freedom from physical restraint” was “not at issue”

in the case.) 507 U.S. 292 (1993). Moreover, as in Carlson,

the regulation in question specifically “maintain[ed] the

discretion of local INS district directors to release detained

minors to other custodians in unusual and compelling

circumstances.” /d. at 310 (citing 57 Fed. Reg. 17449

(1988); see also id. at 313-14 (noting that among the

determinations INS made in each individual case was

whether “the alien's case [was] so exceptional as to require

consideration of release to someone else”). Most

importantly, the agency discretionary determination was

itself subject to review by an immigration judge, the BIA

and, ultimately, the federal courts. /d. at 308. As this Court

stated, “due process is satisfied by giving the detained alien

juveniles the right to a hearing before an immigration judge.”

Id. at 309

Il. THIS COURT HAS APPLIED THE PLENARY

POWER DOCTRINE TO THE DETENTION OF

LAWFULLY ADMITTED PERMANENT

RESIDENTS DURING REMOVAL

PROCEEDINGS TO A MUCH LESSER

EXTENT THAN TO NON-CITIZENS SEEKING

ADMISSION

Even in matters relating to their removal, non-

citizens lawfully admitted to our country have long been

treated differently than those at the border seeking first-time

admission. This distinction runs deep in our constitutional

history. As Edward Livingston put it, more than two

centuries ago:

[A]lien friends...residing among us, are

entitled to the protection of our laws,

and...during their residence they owe a

temporary allegiance to our government. If

they are accused of violating this allegiance,

the same laws which interpose in the case of

a citizen must determine the truth of the

accusation, and if found guilty they are

liable to the same punishment.

8 Annals of Cong. 2012. (1798).

Since Yamataya, for nearly a full century, this Court

has consistently differentiated the rights of non-citizens who

have been admitted as permanent residents from those who

have not. This differentiation reflects, among other things,

the legality of the person’s admission, the formality with

which the nation recognizes status, mutuality of obligation,

allegiance, and, often, the length of time of residence and the

likelihood of family and other social ties. /d. (“aliens receive

constitutional protections when they have come within the

territory of the United States and developed substantial

connections with this country”); Leng May Ma v. Barber,

357 U.S. 185, 187 (1958) (“our immigration laws have long

made a distinction between those aliens who have come to

the United States after an entry, irrespective of its legality”);

Plasencia, 459 U.S. at 32 (adopting and applying Mathews

standard for evaluating whether deportation procedures

satisfy due process for returning lawful permanent residents.)

Plasencia demonstrates that this distinction is

generally based both on the location of the non-citizen and

the special protection afforded to lawful permanent residents.

459 U.S. at 30-32. Plasencia, a resident alien who had

24

COP Ee

briefly left the United States for Mexico, was caught

smuggling aliens upon her return. /d. at 23. The

government argued that she should be treated as an

“excludable alien,” with no due process rights. But in an

opinion for eight members of the Court (and with Justice

Marshall concurring), Justice O'Connor disagreed and held

that Plasencia was protected by the Due Process Clause. /d.

at 32. “Once an alien gains admission to our country and

begins to develop the ties that go with permanent residence,

his constitutional status changes accordingly.” /d.; see also

Reno v. Flores, 507 U.S. 292, 306-07 (1993) (holding that

detention of aliens during the deportation process must be

measured by the Due Process Clause).

This approach involves recognition by this Court of

long-standing aspects of the U.S. immigration system. Since

the 1920s, U.S. law has been characterized by administrative

practices that distinguish admission for permanent residence

from that for a temporary stay. Lawful permanent residents--

green card holders--have wide access to employment and are

generally as protected as citizens in their rights to enter into

contracts and to acquire property. They are the only group of

non-citizens directly eligible to apply for citizenship. Lawful

permanent residents are also subject to some obligations

quite comparable to those imposed on citizens. In general,

they are taxed as are citizens, based on their worldwide

income." They are subject to conscription.'’ These legal

protections reflect deep emotional and psychological

realities. As one commentator has noted of lawful permanent

residents: “In general, they come to stay, they shift their

expectations about where home is, and they sink roots they

'*See David M. Hudson, Tax Problems for Departing Aliens, 97-03 Immigration

Briefings 1-3 (March 1997).

"” See, e.g., Selective Service Act of 1948, c 625, Title I, § 3, 62 Stat 604, 605.

Although no conscription currently takes place, resident aliens must register for

the draft, while non-immigrants are expressly exempt from registration. 50 USC

App § 453 (2000). Unlike citizens, LPRs have been permitted to opt out of

subjection to conscription, but only at the cost of becoming ineligible for

naturalization. See INA §§ 101(a\ 19), 315, 8 USC §§ 110 1(aM 19), 1426 (2000).

25

rely on to be durable.” Martin, 2001 Sup. Ct. Rev. at 104.

This understanding “does not rest only on idiosyncratic

expectations or exaggerated hopes adopted by the [lawful

permanent residents] themselves.” Instead it is anchored in a

whole host of social and cultural expectations on the part of

those around them about what it means to be a U.S. lawful

permanent resident, “manifested in seventy-five years of

consistent governmental practices.” /d. Notwithstanding the

government’s apparent invitation to do so, this Court should

not over-ride these considerations by disparaging the well-

recognized rights of lawful permanent residents.

lil. THE PLENARY POWER DOCTRINE DERIVES

FROM THE COURT’S RECOGNITION OF

THE EXECUTIVE'S AUTHORITY OVER

FOREIGN AFFAIRS, A CONSIDERATION

WITH VIRTUALLY NO RELEVANCE TO

THIS CASE

The government claims ‘plenary’ power to

incarcerate Mr. Kim without even granting him a hearing to

determine whether he is a flight risk or a danger to the

community. To do so, it implicitly invokes the political

branches control over foreign affairs, from which the plenary

power doctrine is iargely derived. This foreign affairs

interest, however, has virtually no conceivable relevance to

Mr. Kim, whom the government has already screened and

admitted to our country as a young child. As this Court has

previously noted, “Not every case that ‘touches foreign

relations lie beyond judicial cognizance.” Baker v. Carr,

369 U.S. 186, 211 (1962).

A recurring /eitmotif in the Court's plenary power

decisions is the relationship between the political branches’

control over immigration and their ability to conduct foreign

affairs. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 424-

25 (1999); Fiallo v. Bell, 430 U.S. 787, 796 (1977);

Kleindienst v. Mandel, 408 U.S. 753, 765-67 (1972); United

States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542

(1950); The Chinese Exclusion Case, 130 U.S. at 604-07.

The foreign policy concerns that animated cases involving

the detention of excludable or inadmissible non-citizens are

absent here. Indeed, the underlying reasons for the

development of the plenary power doctrine seem less

applicable here—where a person has merely been accused of

an immigration law violation—than they were in Zadvydas,

supra, which involved persons who had previously been

found subject to removal.

Mr. Kim was screened by immigration officials,

admitted lawfully for residence, has remained in the United

States and has developed substantial ties with and in our

society. Unfortunately, he now faces removal proceedings

due to his conviction of certain crimes. But according Mr.

Kim basic constitutional rights surely does not “leave an

unprotected spot in the Nation's armor.” Kwong Hai Chew v.

Colding, 344 U.S. 590, 602 (1953). This is certainly not a

case where foreign nations threaten our sovereignty by

forcing large numbers of would-be immigrants upon us."

Nor is this a case like Aguirre-Aguirre where the question

was whether the non-citizen's conduct in his home country

was politically motivated. 526 U.S. at 423-32. Here, the

only grounds for deportation and detention relate to

Respondent's past conduct wholly within the United States.

Unlike Aguirre-Aguirre, the legal issue in this case does not

'® Decisions upholding the detention of excludable non-citizens often rest upon

the claim--wholly inapplicable here--that detention 1s necessary to protect our

nation from the influx of large numbers of unwanted immigrants. See, e.g., Jean

v. Nelson, 727 F.2d 957, 975 (ilth Cir. 1984) affd, 472 U.S. 846 (1985)

(asserting that release of excludable aliens “would ultimately result in our losing

control over our borders. A foreign leader could eventually compel us to grant

physical admission via parole to any aliens he wished by the -imple expedient of

sending them here and then refusing to take them back”); Barrera-Echavarria v.

Rison, 44 F.3d 1441, 1448 (9th Cir.; en banc), cert. denied, 516 U.S. 976 (1995)

(quoting Jean); Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1447 (Sth Cir.

1993) (same).

involve foreign affairs at all. Indeed, the government does

not seriously advance any meaningful foreign policy

consideration justifying unlimited detention of Mr. Kim.

Amici submit that this Court marked the proper

bounds of plenary power in JNS v. Chadha, when it properly

refused to apply that doctrine where no _ significant

connection to foreign affairs had been demonstrated. 462

U.S. 919. While noting the existence of the plenary power

doctrine, the Court struck down a statute permitting a

legislative veto of the Attorney General's decision to

withhold individuals’ deportations because Congress had

chosen a constitutionally impermissible means to implement

its power. See id. at 940-41, and Legomsky, supra, at 299-

303 (discussing Chadha).

CONCLUSION

Careful judicial review of statutes that provide for

mandatory detention of lawful permanent residents without

time limit or meaningful individualized hearing do not

intrude upon the legitimate authority of the political

branches. Indeed, the decision of the Court of Appeals

upholds the basic principle--first expressed in Wong Wing,

supra, and never doubted since--that so long as he remains

within the territory of the United States, even a deportable

non-citizen remains entitled to the protections of the Fifth

Amendment. The judgment below should be affirmed.

Respectfully submitted,

Daniel Kanstroom,

Counsel of Record

Boston College Law School

885 Centre Street

Newton, MA 02459

(617)552-0880

LIST OF AMICI

Susan Akram, Boston University School of Law

Filippa Anzalone, Boston College Law School

Arthur Berney, Boston College Law School

Eric D. Blumenson, Suffolk Law School

Richard A. Boswell, University of California Hastings

College of Law

Mark Brodin, Boston College Law School

Gabriel J. Chin, University of Cimcinnati College of Law

Michael J. Churgin, University of Texas School of Law

Valerie C. Epps, Suffolk Law School

Ed Fallone, Marquette University Law Schoo!

Anthony Farley, Boston College Law School

Taylor Flynn, Western New England College School of Law

Niels W. Frenzen, University of Southern California Law

School

Phillis Goldfarb, Boston College Law School

H. Kent Greenfield, Boston College Law School

Dean Hashimoto, Boston College Law School

Michael G. Heyman, John Marshall School of Law

Kevin Johnson, University of California, Davis, School of

Law

Karl Klare, Northeastern University School of Law

Michael M. Levy, College of William & Mary

Stephen H. Legomsky, Washington University

Peter Margulies, Roger Williams School of Law

M. Isabel Medina, Loyola University, New Orleans, School

of Law

Jennifer Moore, University of New Mexico School of Law

Hiroshi Motomura, University of Colorado

Lori Nessel, Seton Hall University of Law

Nancy K. Ota, Albany Law School

Margaret Taylor, Wake Forest University School of Law

Natsu Taylor Saito, Georgia State University College of Law

Alexander Tallchief Skibine, University of Utah College of

Law

Aviam Scifer, Boston College Law School

Peter J. Spiro, Hofstra University School Law School

Michael Wishnie, New York University Law School

Arthur D. Wolf, Western New England College of Law