Amicus Curiae Brief — Benitez v. Rozos, Field Office Director, Miami, Immigration and Customs Enforcement

e_™ Suprame Count. U.S

(3) : FILED

| FEB 25 2004

No. 03-7434

IN THE

Supreme Court of the Anited States

DANIEL BENITEZ,

Petitioner,

V.

JOHN MATA, INTERIM FIELD OFFICE DIRECTOR, MIAMI BUREAU

OF IMMIGRATION AND CUSTOMS ENFORCEMENT

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

MOHORFPOR LEAVE TO TTe a ere

AMICI CURIAE OF REGINA GERMAIN AND

IRA KURZBAN IN SUPPORT OF PETITIONER

DAVID J. BODNEY

Counsel of Record

STEPTOE & JOHNSON LLP

201 East Washington Street

Suite 1600

Phoenix, AZ 85004

602-257-5212

KATHRYN J. GAINEY

STEPTOE & JOHNSON LLP

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-6252

Attorneys for Amici Curiae Regina

Germain and Ira Kurzban

a a PC CT AI EOD

WILSON-EPES PRINTING COo., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

IN THE

Supreme Court of the United States

DANIEL BENITEZ,

Vv.

JOHN MATA, INTERIM FIELD OFFICE DIRECTOR, MIAMI

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT

Respondent

On Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE OF ,

REGINA GERMAIN AND IRA KURZBAN |

IN SUPPORT OF PETITIGNER

Amici respectfully move this Court for leave to file the

attached brief amici curiae in support of petitioner.

requested consent to file this brief from counsel for all parties

on February 23, 2004. Amici received consent from

petitioner. Counsel for respondent had not responded to the

request for consent as of the time this brief was being printed.

Amici are academics who teach and write about

immigration law. They specialize in immigration law and

have followed immigration issues throughout their careers.

They have written extensively on topics pertaining to

immigration and asylum law. They have knowledge of the

effect of the Eleventh Circuit decisions upon excludable

aliens subject to post-removal detention.

Professor Regina Germain is a visiting professor at the

University of Denver College of Law in the Civil Clinic.

Previously, she taught as a Fellow at Georgetown University

Law Center. From 1995 through 2001, she served as Senior

Legal Counselor in the Washington Office of the United

Nations High Commissioner for Refugees. In this capacity,

she monitored United States compliance with international

obligations relating to the treatment of refugees, including

site visits to detention centers and immigration courts.

Additionally, she made presentations at immigration law

conferences and drafted comments on legislation and INS

policies impacting refugees. She is the author of AILA’s

Asylum Primer: A Practical Guide to U.S. Asylum Law and

Procedure.

Mr. Ira Kurzban is the author of Kurzban’s Immigration

Law Sourcebook, the most widely used one-volume

immigration source in the United States. He is an adjunct

faculty member at two law schools, and has lectured and

published extensively in the field of immigration law,

including articles in the Harvard Law Review. In addition,

Mr. Kurzban is a partner in the law firm of Kurzban,

_Kurzban, Weinger & Tetzeli, P.A.

Amici have no financial or other similar interest in the

outcome of this lawsuit or any suits raising similar issues.

Their sole interest in this case is to encourage the proper

unfolding of law in their areas of specialty.

From their academic and professional backgrounds, amici

are aware of consequences upon immigration law if the could

government may detain indefinitely excludable aliens

because no foreign country will accept the alien. Such

detention is not related to the government’s goal in

regulation, which is to effectuate the removal order. Without

another purpose of the confinement, the government’s

ongoing civil detention of aliens becomes punishment.

Additionally, the amici have observed lower courts and the

government rely upon vague and attenuated national security

concerns in justifying civil detention. The Eleventh Circuit

discussed national and border security concerns in upholding

indefinite detention, even though there is no finding in the

record that Mr. Benitez presents a threat to national security.

Under this reasoning, any excludable alien could be subject

to indefinite detention based upon unsubstantiated references

to national security. This would be detrimental to the

development of immigration law.

Because the government’s regulatory purpose is thwarted

when removal cannot be effectuated, indefinite detention is

not permissible without a judicial proceeding. Yet the

government is detaining indefinitely excludable aliens who

cannot be removed to another country. This ongoing

detention is based solely upon an _ administrative

determination that the aliens might be criminal recidivists. It

is not subject to judicial review. The only judicial oversight

occurs during habeas proceedings. Excludable aliens who

are being indefinitely detained have limited access to the

judicial system. Hence, the amici have an interest in

articulating the effects upon excludable aliens from the

Eleventh Circuit’s decision.

For the foregoing reasons, amici respectfully request

leave to file the accompanying brief amici curiae in support

of petitioners.

Respectfully submitted,

DAVID J. BODNEY

Counsel of Record

STEPTOE & JOHNSON LLP

201 East Washington Street

Suite 1600

Phoenix, AZ 85004

602-257-5212

February 25, 2004

KATHRYN J. GAINEY

STEPTOE & JOHNSON LLP

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-6252

Attorneys for Regina Germain

and Ira Kurzban

TABLE OF CONTENTS

Page

INTEREST OF THE AMICT CURITAE ..............cccceeeeeeeeeeeeeees l

ee ST. anraananiaeltalicetiesindetnd l

Cg TRE TITLE TINT 2

FEA TT LETTS AE ITT ATT ORR NOT T 3

I. NATIONAL SECURITY IS NOT THREATENED

BY THE RELEASE OF INADMISSIBLE ALIENS

WHO CANNOT BE REMOVED TO THEIR HOME

TUNIS crentncennenentninensintimeesnivatianemaneninnenniniitiontite 3

A. THE AGENCY’S REGULATORY

INTERESTS CAN BE SUFFICIENTLY

ADDRESSED THROUGH SUPERVISED

IIIT sccoscesnsiiiinsiiiitieisiesieniiaibacieiniasedtaditiaaiinnie 4

l. Zadvydas Applies To A Small Group

Ce ei iiicnisisninisteminseinenistieenaseiiin 4

2. Supervised Release Is Not Release At

I crcncciccenicnnintittaininnliinnoommiagimente 6

3 An Alien Cannot Thwart His Removal

Through Zadvyda ...........c00ccceeeeeeeeees 7

B. THE GOVERNMENT HAS NOT

EXPLAINED WHY OTHER STATUTES

ARE INSUFFICIENT TO ADDRESS

NATIONAL SECURITY CONCERNS ......... 7

1. Detention Authority Before September

BG, Sane voncininesicsssennttnnsinseananeuitnasensajaipiies 7

2. Detention After September 11, 2001..8

3. Detention of Admitted Aliens After

il

TABLE OF CONTENTS—Continued

Il. THE ELEVENTH CIRCUIT ERRED IN RELYING

EXCLUSIVELY UPON BORDER AND

NATIONAL SECURITY CONCERNS TO JUSTIFY

INDEFINITE DETENTION ....0..........ccccssesseeseeseeeees 13

A. MARIEL CUBANS, SUCH AS MR.

BENITEZ, ARE NOT A THREAT TO

NATIONAL SECURITY ............cccccsesseeees 13

B. UNSUBSTANTIATED BORDER

SECURITY CONCERNS CANNOT

JUSTIFY INDEFINITE DETENTION........ 15

c. MEZEI AND CARLSON DO NOT JUSTIFY

INDEFINITE DETENTION HERE............. 17

lll. ©EXCLUDABLE ALIENS ARE BEING

INDEFINITELY DETAINED WITH NO

SIGNIFICANT POSSIBILITY OF REMOVAL..... 20

A. POST-ORDER DETENTION ON

CRIMINAL RECIDIVISM GROUNDS

VIOLATES ZADVYDAS..........cc0ccccceseeeeseeeees 20

B. ADOPTION OF THE INS’S READING

WOULD HAVE BROAD

RAMIFICATION G.............:cccsccssssseeesesseeeeees 22

C. PROLONGED DETENTION IS

WARRANTED ONLY BY SPECIAL

CIRCUMSTANCES, WHICH ARE NOT

PUREENOE DRRIIIIET ccrcnrsscnssentonsanenemnienniepencenen 23

Se EINT nccccnnsicusinndiinenstaninnnssenatnienienmninntemenniisciigte 30

TABLE OF AUTHORITIES

CASES

Page

Ali v. Aschcroft, 213 F.R.D. 390 (W.D. Wash. 2003),

aff'd, 346 F.3d 873 (9th Cir. 2003).............sscescesseeeeeeee 4

Armentero v. INS, 340 F.3d 1058 (9th Cir. 2003)................ 26

Balogun v. INS, 9 F.3d 347 (Sth Cir. 1993).........cccceceeeeeeees 7

Bay Area Peace Navy v. United States, 914 F.2d

Ss. BR cccsiccntctsnsvintensentananiunnpesien -. 16

Bell v. Wolfish, 441 U.S. 520 (1979) 0... .ecccccseeeseeeeeteeeeneees 26

Bezman v. Ashcroft, 245 F. Supp. 2d 446 (D. Conn.

SUE scrcstencdacesccnetovesiiniitsissiismlucinasiniamenbibapieshiinamniiomaiaibiiiis 19

Bini v. Aljets, 36 Fed. Appx. 868, 869 (8th Cir. 2002).........22

Borrero v. Aljets, 325 F.3d 1003 (8th Cir. 2003)................. 22

Caranica v. Nagle, 28 F.2d 955 (9th Cir. 1928) «0.0.0.0... 5

Carlson v. Landon, 342 U.S. 524 (1952) .............022. 17, 18,27

Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir. 1999).......... 4, 25

Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Ci

SED intenssccnninicsinnsaniasinininiomnsinunniastineitinmiaiasnaaiiaigaidstia 16

iv

Elkins v. Comfort, 245 F. Supp. 2d 1161 (D. Colo.

SITET arsssusninncnteeitanisncsnidiapenuiniditenesasatennsatnnniaaninideteteentel

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

Gonzalez v. Ashcroft, 278 F. Supp. 2d 402 (D.N.J.

—_ ssl 2h cansionaneinsnintianigaieieniasadesibeteiecsintabes

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

Kansas v. Crane, 534 U.S. 407 (2002)............ccccccecceeeeeeeeeees

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

Lynch vy. Cannatella, 810 F.2d 1363 (Sth Cir. 1987)............

N.Y. Times Co. v. United States, 403 U.S. 713 (1971).........

North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d

Be cceccinscicinisnitilinnsieinsiniitcmmenianiiie

O'Rourke v. Warden, 539 F. Supp. 1131 (S.D.N.Y.

ID cenenindnnnnonsss Daesiieaindiigetetiiniainpaiiitebdsemgiiiipaniacnieeiaetioiiten

Pelich v. INS, 329 F.3d 1057 (9th Cir. 2003)... cc cceeeeeeee

People’s Mojahedin Org. of Iran v. Dep't of State,

Bee ee Ne ie Ges BD cicvictccssicniscstiiccsnninssonnien

Petition of Brooks, 5 F.2d 238 (D. Mass. 1925)...............00+

Postar v. Dae, 437 USB. BOB (IGBZ) ..ccccnccccsscccescesccccssssssoccsses

Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382

SETI STE icihienieniiesneslibiapitesidileibaieisantaneiiiietiaiaiaiiaane 18, 28

Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir.

ITD ssccsinsecssdensicingthipedcnsisnimencndtesiaiipiuiesieiumetesiaataies 18

Schall v. Martin, 467 U.S. 253 (1984) .0........cccccceeeeeeeeceeeeeeee 27

Seretse-Khama v. Ashcroft, Civ. No. 02-0955, 2002

U.S. Dist. LEXIS 13547 (D.D.C. July 22, 2002).......... 24

Shaughnessy v. United States ex rel. Mezei, 345 U.S.

EE cchishinsscindssitatabisnieiaiinlaihiiiaaiatblinasiileetitiisialia dais 17, 18

United States ex rel. Janavaris v. Nicolls, 47 F. Supp.

ee Ie Ns Ha errs ssiensntetcnienensctifeinnsinisiniisninnianinies 4

United States ex rel. Ross v. Wallis, 279 F. 401

SEN Wt ciseiniinisicssinsnictnstiideciempeiesadiuniiidiemsinimidibnienis 5, 25

United States v. McVeigh, 153 F.3d 1166 (10th Cir.

1998), limited on other grounds, United States v.

Lazcano-Villalobos, 175 F.3d 838 (10th Cir

SUITED sccnsssasctnccaiunnitibidininsmnaniniesnnenianmuieciniinpeincesiaiots 16

United States v. Salerno, 481 U.S. 739 (1987)......... 23, 28, 29

United States v. Witkovich, 140 F. Supp. 815 (N.D.

Ill. 1956), aff'd, 353 U.S. 194 (1957)... eeeeseeseeseeeees 19

Wong Wing v. United States, 163 U.S. 228 (1896)......... 25, 26

Yick Wo v. Hopkins, 118 U.S. 356 (1886).............cccccseseees 25

Zadvydas v. Davis; 533 U.S. 678 (2001)..............0004. 3, passim

vi

STATUTES

eee MUR cictsiscssinteciticignteheeltedeesleninieancetianteniaasetiaiiaseil 8

BS U.S.C. § 1Z2G(C)...0.<0000002- ssiinitiabeiapdiidaslasaneanuasiaisiatides 8, 11,22

Rn, i aac 6

eee 0 SUED inisiniisiicsiitnicdiascinssensissetinlnaiondanecnginesiieien 2, passim

| Gt SESE eis e eto pn ane eao anne Doran ol 11

eas: Ti aD sisiianlinesicasciesitisibcidaipasiiniiaadiiaadaieinaciaiiaaalamamdinnndinenendti 8

Alien Registration Act of 1940, 54 Stat. 671-672

a 8

Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

Rae eT ininscisieicinseletiidbinintchasiabaisitiiaiaaniatasiiadiiaataiitinianttiiiacs 8

Continued Detention of Aliens Subject to Final

Orders of Removal, 66 Fed. Reg. 56,967 (Nov.

vt, SEITE escchtninneibieetntsinaeetibindereaibeapantadehialannaitdeseiiininied 6, 12

Enemy Alien Acts of 1796, 1 Stat. 577 ...........cccccccssscsesscesesees 8

Immigration Act of 1917, 39 Stat. 874, 889.0000 8

Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and

Obstruct Terrorism Act of 2001 (“USA

PATRIOT Act”), Pub. L. No. 107-56, 115 Stat.

EE iicincecssisiteapittianasicchpiiniaeanitaniiiciuestiiiiitapiiniitiiaiaaalaniiiaias

Vii

LEGISLATIVE MATERIALS

S. Rep. No. 1515, at 637, 639 (1950)... ceeeeseeseeeeeseeeeees 18

Civil Liberties and Proposed Anti-Terrorism

Legislation: Hearings Before the Subcomm. On

the Constitution, Federalism, and Property

Rights of the Senate Comm. On the Judiciary,

107th Cong. 6 (2001) (statement of Prof. David

Cole), available at 2001 WL 1171720 ....................eeeee 10

DOJ Oversight: Preserving Our Freedoms While

Defending Against Terrorism: Hearings Before

the Senate Comm. On the Judiciary, 107" Cong.

(Dec. 6, 2001) (testimony of Ali-Al-Magtari) ................ 9

REGULATORY MATERIALS

Fie Bee ie Ctl cccerensinaisiviannineiinmnaiiiiinin 23

a Be a erieestetieseicnsiisaiisinhaniiniaaiintaniiin 12

ir ike Oe eR rcnenttrcstsiemenenevinniniccnmumenimnnsinians 23

65 Fed. Reg. at 80,297 (Dec. 21, 2000)............eceeseeeeeeeeeeee 11

Custody Procedures, 66 Fed. Reg. 48,334, 48,334

Ts. NG A esrcnnsciivensccnccssesstnsctinniosimaeeneienieii 9, 10, 11

United States General Accounting Office, Homeland

Security: Challenges to Implementing the

Immigration Interior Enforcement Strategy...............++- 14

Vili

ADMINISTRATIVE DECISIONS

In re D-J, 23 1. & N. Dec. 572 (BIA 2003) ..........ccceccceeeeeees 12

In re Patel, 15 1 & N. dec. 666 (BIA 1976) ..........ccccceeeeeeeees 5

ARTICLES

Administrative Comment, Indefinite Detention

without Probable Cause: A Comment on the INS

Interim Rule 8 C.F.R. 287.3, 26 N.Y.U. Rev. L.

Be Bee. CHRD FOF CGE ccccccesesescccccscrssarccsoscesscssecce 9

79 Interpreter Releases 811 (May 24, 2002) ...........cccccesseeeees 4

David Cole, /n Aid of Removal: Due Process Limits

on Immigration Detention, 51 Emory L.J. 1003,

Pe icthicnssncencinisintadiinnenienaianiniianinidenatnindinneaeiiees 28

Developments in the Law: The Law of Prisons: V.

Plight of the Tempest-Tost: Indefinite Detention

of Deportable Aliens, 115 Harv. L. Rev. 1915,

TE vintnstccionscisitiiniiscneiniciiaantensasinediniaiinabailidiisiiimneniinibiin 9

Human Rights Watch, World Report 2002: Events of

2001, November 2000-November 2001, at 487-

ETI Cs cisisicianichiesisicianialiaghiaieliishiitebaiei aia hacia a aliciiais i)

Richard Lewis, Cambodians Decry Deportation

During Providence March, Associated Press

Newswires, Aug. 5, 2002 .............ccssscssscscssrssesenrecsersees 6

ix

Robyn E. Blumner, Ashcroft'’s Power to Detain

Without Charges Continues without Oversight,

St. Petersberg Times, May 5, 2002, at D6 ................ 9,11

Elizabeth Amon, /NS Flouts High Court on

Prisoners, Critics Say, Nat’! L.J., Aug. 15, 2002,

http://www.law.com/jsp/article.jsp?id=10289063

INTEREST OF THE AMICI CURIAE

The interest of the amici curiae is set forth in the

accompanying motion for leave to file this brief.'

STATEMENT OF THE CASE

In 1980, an estimated 125,000 Cubans came to the United

States from Port Mariel subject to the invitation by President

Carter. See Benitez v. Wallis, 337 F.3d 1289, 1290 n.1 (11th

Cir. 2003) (per curiam). The Immigration and Naturalization

Service (“INS”) paroled Mr. Benitez into the United States.”

As one of the Mariel Cubans, he physically entered the

United States in 1980. /d. at 1290. Mr. Benitez was never

admitted to the United States; he is an excludable alien.

While in the United States, Mr. Benitez was convicted of

crimes on two occasions. /d. at 1290-91. He completed his

criminal sentence before INS took him into civil custody in a

federal prison. See id. at 1291. Upon serving his criminal

sentence, INS detained Mr. Benitez and entered an order for

his removal to Cuba. Jd. An alien cannot be removed from

the United States unless a foreign county issues travel

documents. Under Fidel Castro’s reign, however, Cuba has

refused to accept the Mariel Cubans generally and has

rejected Mr. Benitez in particular. Thus, since 2001, Mr.

Benitez has remained in detention, with no significant

possibility of removal.

' The brief was not authored in whole or in part by counsel

for a party to this proceeding, and no person or entity other than

the amici curiae made a monetary contribution for preparation of

this brief.

? For convenience, amici refer to the INS under its former

name even though the agency’s functions were recently transferred

to the Department of Homeland Security.

2

The Eleventh Circuit found this detention to be indefinite.

“(W]e accept Mr. Benitez’s claim that he, at present, is

subject to indefinite detention.” /d. at 1293 n.12. There was

no finding that Mr. Benitez presented a threat to national

security or was a suspected terrorist. The Eleventh Circuit

upheld Mr. Benitez’s indefinite detention under Section

1231(a)(6).

SUMMARY OF ARGUMENT

The Eleventh Circuit erred in upholding indefinite

detention for inadmissible aliens when there is no significant

possibility of effectuating his removal to Cuba. The court

relied upon attenuated national and border security concerns

in upholding indefinite detention. Such concerns do not

justify indefinite detention of inadmissible aliens under

Section 1231(a)(6), for several reasons.

First, the INS’s regulatory interests are protected because

release of post-order aliens is subject to supervision.

Furthermore, release does not alter an alien’s status, and the

government may re-detain an alien once a foreign country

agrees to accept him because the purpose of the detention

would be to effectuate the removal order. To the extent there

are broader border interests at stake, the government has not

explained why those interests are not protected under other

statutes.

Second, the Eleventh Circuit cited national and border

security concerns as a reason to grant the government the

authority to detain indefinitely excludable aliens under

Section 1231(a)(6). Yet, even though the government has

not argued that national security concerns were present in

this case, the Eleventh Circuit upheld Mr. Benitez’s

indefinite detention. Under this reasoning, any excludable

alien would be subject to indefinite detention, whether or not

there is a finding that he threatened to national security. This

result conflicts with precedents that granted greater deference

3

to administrative determinations concerning prolonged

detention only when national security concerns were present.

Third, indefinite detention of excludable aliens, such as

Mr. Benitez, violates Zadvydas v. Davis, 533 U.S. 678

(2001), as long as the government cannot effectuate his

removal order. Such detention is neither for a limited time

period, nor based upon a judicial finding of special

circumstances. Like the aliens in Zadvydas, civil detention is

indefinite and based solely upon an administrative

determination of potential criminal recidivism. The Eleventh

Circuit erred in distinguishing Zadvydas, which is binding

precedent for statutory interpretation of authority to detain

excludable aliens under Section 1231(a)(6).

ARGUMENT

I. National Security Is Not Threatened By The

Release Of Inadmissible Aliens Who Cannot Be

Removed To Their Home Country

The government’s statutory argument is based largely on

a policy justification, rather than the statute. It argues that

_ the detention of inadmissible aliens is justified on national

security grounds. However, Zadvydas only applies to a small

group of aliens, and the INS can address its genuine

regulatory interests through supervised release. To the extent

there are any larger national security concerns, the

government has not explained why its authority under other

statutes would be insufficient to address those concerns.

Applying Zadvydas to excludable aliens will not-leave an

“unprotected spot in the Nation’s armor.” Zadvydas, 533

U.S. at 695-96 (internal quotations and citation omitted).

4

A. The Agency’s Regulatory Interests Can Be

Sufficiently Addressed Through Supervised

Release

1. Zadvydas Applies To A Small Group

Of Aliens

Section 1231(a)(6) and Zadvydas only apply to a narrow

category of inadmissible aliens: those who have no

significant likelihood of removal to a foreign country. For

instance, a few countries, including Cuba and Vietnam, do

not have a repatriation agreement with the United States.

E.g., Zadvydas v. Davis, 533 U.S. at 686 (observing that Ma

cannot be removed because the United States does not have a

repatriation agreement with Cambodia). Of the detainees

who cannot be removed, most are citizens of Laos, Cuba, and

Vietnam. 79 Jnterpreter Releases 811 (May 24, 2002). In

addition to Benitez, more than 1,750 Mariel Cubans are

detained in prison facilities; they are not deportable because

Cuba will not accept them. See Chi Thon Ngo v. INS, 192

F.3d 390, 395 (3d Cir. 1999). As another example, some

excludable aliens are stateless individuals--they claim

citizenship of no country. E.g., Zadvydas, 533 U.S. at 684

(2001). Some countries do not have an effective government

which can accept removal authority. Ali v. Aschcroft, 213

F.R.D. 390 (W.D. Wash. 2003) (removal to Somalia in the

reasonably foreseeable future is not likely), aff'd, 346 F.3d

873 (9th Cir. 2003).

When a foreign country agrees to accept the excludable

alien, then the executive branch has authority to re-detain the

alien. Because removal is now possible, the detention is

limited in duration and for the purpose of effectuating the

removal order. Because diplomatic relations are continually

evolving, release under Zadvydas is not release at large. E.g.,

United States ex rel. Janavaris v. Nicolls, 47 F. Supp. 201,

203 (D. Mass. 1942) (threatening to grant habeas petition of

Greek cabin boy insofar as the government could not ensure

5

the deportation to Greece when the “matter depends on future

successful military campaigns”). When removal became

reasonably likely the government could then detain the

inadmissible alien in order to effectuate the removal order

under Section 1231(a)(6).

Historically, the courts have placed limits upon post-

deportation detention of aliens, and United States sovereignty

has not suffered as a result. Zadvydas, 533 U.S. at 697-98

(recognizing that lower courts interpreted statutory silence of

the Immigration Act of 1917 to limit detention to a

reasonable period). Lower courts have construed the

provision of the Immigration Act of 1917, 39 Stat. 874, ch.

29, that aliens were to be “taken into custody and deported,”

holding that detention was allowed only for a reasonable

period of time. E.g., Caranica v. Nagle, 28 F.2d 955, 957

(9th Cir. 1928) (observing that the courts will “discharge the

appellant from further imprisonment if the government fails

to execute the order of deportation within a reasonable

time”); United States ex rel. Ross v. Wallis, 279 F. 401, 403

(2d Cir. 1922) (limiting detention to a reasonable period).

The political branches concurred in the historical

interpretation by the courts. Detention during deportation

proceedings should be reserved only for those aliens who

posed a threat to national security. Jn re Patel, 151 & N.

Dec. 666, 666 (BIA 1976) (interpreting 8 U.S.C. § 1252(a) to

require release of the alien unless “he is a threat to the

national security”); see also O’Rourke v. Warden, 539 F.

Supp. 1131, 1135 (S.D.N.Y. 1982) (describing BIA

interpretation that an “alien should be detained or required to

post a bond, only if he is a threat to national security”).

Zadvydas continues this historical trend in limiting post-

removal detention to a reasonable time period. Thus, the

Court did not impede the -~'*tical branches’ sovereignty in

Zadvydas though its interpret: ..on of Section 1231(a)(6).

6

2. Supervised Release Is Not Release At

Large

Instead of being indefinitely detained, inadmissible aliens

who cannot be removed are subject to supervised release.

This: is not release at large, and it does not change an alien’s

immigration status. Zadvydas, 533 U.S. at 696. “Supervised

release” is subject to tight restrictions, including compliance

with the law, continued efforts to obtain travel documents,

participation in rehabilitative programs, or submission to

medical exams. 8 U.S.C. § 1231(a)(3) (2000); see also

Zadvydas, 533 U.S. at 699; 66 Fed. Reg. 56,967, 56,978-79

(Nov. 14, 2001) (codified at 8 C.F.R. 241.13(h)). The

government has imposed, and courts have upheld, tight .

restrictions upon release from post-removal detention.

Furthermore, an alien would be subject to criminal sanctions

if he violated the conditions attached to his parole.

Zadvydas, 533 U.S. at 700. If they violate the conditions of

their supervised release, aliens can even be re-detained.

Release does not change an alien’s status; the alien

remains subject to a removal order. For example, Mr.

Benitez is an excludable alien subject to removal (as soon as

Cuba or another country accepts him). Once the State

Department obtains travel documents from a foreign country,

then it may re-detain the alien pending removal. For

example, the United States negotiated an agreement with

Cambodia in 2002 to accept the return of deportees. After

negotiating the agreement, the INS re-detained many of the

Cambodians released under Zadvydas.*> When there is no

significant possibility of executing a removal order,

* See Richard Lewis, Cambodians Decry Deportation

During Providence March, Associated Press Newswires, Aug. 5,

2002.

7 -

supervised release presents a non-punitive alternative to

indefinite detention. Such release is subject to tight

restrictions, and does not transform the alien’s immigration

status: if Mr. Benitez were subject to supervised released, he

would remain an excludable alien subject to a removal order.

3. An Alien Cannot Thwart His Removal

Through Zadvydas

The six-month presumption from Zadvydas does not

apply if the alien has thwarted his own removal. Before

Zadvydas, courts tolled the limit on the detention period

when the alien intentionally prevented the INS from effecting

the deportation. Balogun v. INS, 9 F.3d 347, 351 (Sth Cir.

1993). After Zadvydas, courts have continued to follow this

line of cases. Pelich v. INS, 329 F.3d 1057, 1060 (9th Cir.

2003) (upholding indefinite detention because alien failed to

meet burden under Zadvydas when the alien refused to

cooperate with the INS in the removal process).

B. The Government Has Not Explained Why

Other Statutes Are Insufficient To Address

National Security Concerns

As the preceding section demonstrates, the INS’s

regulatory interests with respect to post-order aliens can be

sufficiently protected through supervised release. To the

extent the INS justifies its reading of Section 1231(a)(6) on

larger national security concerns, it has not explained why

such concerns are not protected through more specific

statutes enacted for that purpose.

1. Detention Authority Before September

11, 2001

The political branches have had authority to detain aliens

who presented threats to national security. Section

1231(a)(6) grants authority to the executive branch to detain

all aliens subject to removal, including those who are

8

suspected of terrorism. Historically, Congress has authorized

additional detention provisions that are specifically tailored

to protect national security. These specific provisions are in

addition to general detention provision of Section 1231(a)(6).

For example, Congress authorized detention of aliens who

were suspected terrorists. 8 U.S.C. §§ 1226(a), (c); see

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(codified in scattered sections of the U.S.C.). Such authority

was also granted to detain alien enemies. E.g., Enemy Alien

Acts of 1798, 1 Stat. 577, derived from act of July 6, 1798

(codified as 50 U.S.C. § 21); 2 Stat. 781, act of July 6, 1812;

Alien Registration Act of 1940, 54 Stat. 671-672 (June 28,

1940) (deportation of subversives). These immigration

provisions were separate from the detention and removal

provision that applied to all aliens subject to deportation.

E.g., Immigration Act of 1917, 39 Stat. 874, 889 (providing

general detention provisions for aliens subject to

deportation); 8 U.S.C. § 1231(a)(6). Thus, the political

branches have had separate authority to detain aliens who

pose threats to national security.

2. Detention After September 11, 2001

After September 11, 2001, the political branches enacted

additional specific statutes and administrative regulations to

protect national security. These provisions authorized

detention of aliens suspected of terrorism, and they did not

amend Section 1231(a)(6), which applies generally to aliens

subject to removal. Hence, in fighting the war on terror, the

government has detained or arrested aliens suspected of

terrorism or terrorist affiliations for questioning under

criminal laws or statutes other than § 1231(a)(6).

For example, immediately after September 11, 2001, the

federal government detained hundreds of aliens residing

within the United States, holding many on criminal charges

-+ ne at ee ae een

SS eh tea

9

unrelated to terrorist activity, including credit card fraud or

minor immigration violations.‘

Most of these detentions occurred pursuant to an interim

regulation issued by the Attorney General after September

11, 2001, which allowed detention without charge of aliens

for forty-eight hours. These regulations authorized further

detention for an “additional reasonable period of time” under

“emergency or other extraordinary circumstances.” Custody

Procedures, 66 Fed. Reg. 48,334, 48,334 (Sept. 20, 2001) (to

be to be codified at 8 C.F.R. § 287.3(d)). The regulation

does not define “emergency or other extraordinary”

circumstances, and the detention can be unrelated to such

circumstances. Administrative Comment, Indefinite

Detention Without Probable Cause: A Comment on the INS

Interim Rule 8 C.F.R. 287.3, 26 N.Y.U. Rev. L. & Soc.

Change 397 (2000-01). Notably, the PATRIOT Act does not

displace these interim regulations. Under these regulations,

the executive branch may indefinitely detain an alien without

certifying that the alien is a suspected terrorist. Custody |

Procedures, 66 Fed. Reg. 48,334, 48,334-35 (Sept. 20, 2001)

(to be to be codified at 8 C.F.R. § 287.3(d)); see also

Developments in the Law: The Law of Prisons: V. Plight of

* Human Rights Watch, World Report 2002: Events of

2001, November 2000-November 2001, at 487-88 (2002),

available at http://www.hrw.org /wr2k2/pdf/usa.pdf; see also DOJ

Oversight: Preserving Our Freedoms While Defending Against

Terrorism: Hearings Before the Senate Comm. on the Judiciary,

107th Cong. (Dec. 6, 2001) (testimony of Ali-Al-Magtari, a

French teacher from Yemen who was arrested on September 15th

and detained for eight weeks), at http://www.aia.

org/newsroom/23ts1001.html; Robyn E. Blumner, Ashcroft’s

Power to Detain Without Charges Continues without Oversight,

St. Petersberg Times, May 5, 2002, at D6 (noting that 104

immigrants remained detained).

10

the Tempest-Tost: Indefinite Detention oj Deportable Aliens,

115 Harv. L. Rev. 1915, 1938 (2002) (“[T]he interim

regulation allows the INS to detain indefinitely aliens not

certified as terrorists, if it determines that emergency

circumstances exist.”); Cyrus D. Mehta, Beware of Indefinite

Detention under the USA PATRIOT Act, Immigration Daily,

available at http://www.il.com/lawyers/articles/2001,1130-

Mehata.shtm.

Furthermore, after September 11, 2001, Congress

conferred substantial authority concerning national security

upon the executive branch. Uniting and Strengthening

America by Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism Act of 2001 (“USA

PATRIOT Act”), Pub. L. No. 107-56, 115 Stat. 272 (2001);

66 Fed. Reg. 48,334-35 (Sept. 20, 2001). Under the

PATRIOT Act, the Attorney General is authorized to certify

that he “has reasonable grounds to believe” that an alien is

engaged in terrorist activity or-in any other activity

endangering the national security.” PATRIOT Act, § 412(a),

115 Stat. 350. An alien suspected of terrorist activity must

be taken into custody and may be held without charge for up

to seven days, after which the government must begin

deportation proceedings or bring criminal charges against the

> The definition of “terrorist activity” includes the use of a

“firearm, or other weapon or dangerous device.” 115 Stat. 345

§ 411(a)(1)(E)(ii); Civil Liberties and Proposed Anti-Terrorism

Legislation: Hearings Before the Subcomm. On the Constitution,

Federalism, and Property Rights of the Senate Comm. on the

Judiciary, 107th Cong. 6 (2001) (statement of Prof. David Cole)

(observing that the definition of “terrorist activity” might

encompass the action of a “bar room brawl in which one party

threatens another with a broken beer bottle”), available at 2001

WL 1171720.

11

alien. Jd. § 412(a). Detention continues until the

government decertifies the alien, even if he is granted relief

from removal. /d.

If removal is unlikely in the “reasonably foreseeable

future,” the alien may be detained for additional periods of

up to six months if his release would “threaten the national

security of the United States or the safety of the community

of any person.” Jd. The Attorney General must review the

detention of the aliens certified under the PATRIOT Act

every six months and report to Congress the number of aliens

certified, grounds for certification, and duration of detention.°

Id. § 412(c). In April of 2002, the Attorney General reported

to Congress that not a single immigrant was certified as an

alien terrorist. Robyn E. Blumner, Ashcroft’s Power to

Detain Without Charges Continues without Oversight, St.

Petersberg Times, May 5, 2002, at D6. The administrative

regulations to enact the PATRIOT Act permit the indefinite

detention of aliens who are suspected of terrorist activity or

who are taken into custody during a time of emergency. 66

Fed. Reg. 48,334-35 (Sept. 20, 2001) (to be codified at

8 C.F.R. 287.3).

Even after the creation of the Department of Homeland

Security (which now maintains responsibility for most

immigration law enforcement functions), the Attorney

General retains discretionary authority to detain inadmissible

aliens under carefully defined circumstances. E.g., 8 U.S.C.

§ 1226(c) (Attorney general is required to detain and has the

power to release certain criminal aliens); 8 U.S.C.

§ 1231(a)(6) (2000) (detention of inadmissible aliens); 8

° According to administrative regulations, an inadmissible

alien’s detention under Section 1231(aX6) is reviewed annually.

65 Fed. Reg. at 80,297 (Dec. 21, 2000).

12

U.S.C. § 1537(b)(2)(C) (2000) (concerning post-removal

detention of aliens who cannot be removed). Recently, the

Attorney General claimed broad authority “controlling legal

and policy determinations regarding whether individual

aliens should be detained.” Jn re D-J, 23 I. & N. Dec. 572,

573-74 (BIA 2003) (citing “considerations of sound

immigration policy and national security” to deny bond to a

detained alien and asserting that the Attorney General

“retains his authority to make controlling determinations with

respect to questions of law,” even though authority to

administer the INA was transferred to the Secretary of

Homeland security). These examples reveal that applying

Zadvydas to excludible aliens will not impede the

government’s efforts to protect national security.

3. Detention of Admitted Aliens After

Zadvydas

Even the regulations implemented in response to

Zadvydas afford the political branches ample authority to

protect national security and prevent terrorism. The Attorney

General has enacted specific administrative regulations to

guide immigration officials in implementing the Zadvydas

decision for admitted aliens. 8 C.F.R. §§ 241.12-.13 (2003);

Continued Detention of Aliens Subject to Final Ozders of

Removal, 66 Fed. Reg. 56,967 (Nov. 14, 2001) (considering

factors for the likelihood of removal to include immigrant’s

prior efforts to comply with the removal order) (to be

codified at 8 C.F.R. pt. 3, 241). These regulations authorize

detention for “special circumstances,” which are defined as

(1) aliens with highly contagious disease; (2) “specially

dangerous” removable aliens; (3) aliens whose release would

have “serious adverse foreign policy consequencés;” and (4)

aliens .etained due to “security or terrorism concerns.” 66

Fed. Reg. at 56,979-82 (Nov. 14, 2001) (to be codified at

8 C.F.R. § 241.14). Immigration judges and the Board of

Immigration Appeals may review whether continued

ane 2200

oo

13

detention upon these grounds is appropriate. No such

review, however, is permitted if the Attorney General

certifies that an alien should not be released for reasons,

including foreign policy consequences, terrorism, or security

concerns. Just as Zadvydas did not impinge the ability of the

political branches to protect national security as applied to

admitted aliens, neither will it as applied to excludable aliens,

such as Mr. Benitez.

Il. The Eleventh Circuit Erred In _ Relying

Exclusively Upon Border and National Security

Concerns To Justify Indefirite Detention

The Eleventh Circuit erred in considering attenuated

border security concerns to uphold Mr. Benitez’s indefinite -

detention when his case presented no national security

concerns. Benitez, 337 F.3d at 1300. In limiting Zadvydas,

the lower court reasoned that “the government historically

has enjoyed broad latitude in detaining those aliens until their

security threat can be fully ascertained” and concluded that

“(rjemoving this important tool from the government’s

arsenal undoubtedly would subject the residents of this

nation to greater security risks.” /d. The record included no

suggestion that Mr. Benitez’s indefinite detention is

warranted by concerns for national security or border

security. Instead, the Eleventh Circuit referred only to vague

and indirect benefits upon “security” in justifying Mr.

Renitez’s indefinite detention. See id. (discussing Mr.

Benitez’s potential for recidivism and concluding generally

that he “poses a danger to the community and is likely to

engage in further violent behavior, and therefore is a security

threat”).

A. Mariel Cubans, Such As Mr. Benitez, Are

Not A Threat To National Security

Current threats to national security do not include

inadmissible aliens such as Mr. Benitez. The government

14

does not perceive Mr. Benitez as a threat to national security

or a suspected terrorist. After September 11, 2001, the

political branches have enacted numerous systems to identify

and monitor individuals who may be threats to national

security, including the National Security Entry/Exit

Registration System (NSEERS), Student and Exchange

Visitor Information System (SEVIS), and the United States

Visitor and Immigrant Status Indication Technology (US

VISIT).’

For example, as part of its efforts to enhance national

security, the INS required foreign males from eighteen

countries to register with the INS as part of the NSEERS.

This registration requirement applied to males of age sixteen

or older.® In recognition that aliens emigrating to the United

” See US. Immigration and Customs Enforcement (ICE),

Investigations: National Security (last modified Feb. 5, 2004),

available at http://www.ice.gov/graphics /enforce/invest/index.

htm; see also Department of Homeland Security, Press Room:

Changes to the NSEERS Process, (Dec. 1, 2003), available at

http://www.dhs.gov/dhspublic/ theme_home8.jsp (“We have

caught suspected terrorists under NSEERS. While they may not

be charged with terrorism grounds of inadmissibility or

removability, that is not an indication of whether terrorists were

caught.”); United States General Accounting Office, Homeland

Security: Challenges to Implementing the Immigration Interior

Enforcement Strategy, at 11 Apr. 10, 2003 (GAO-03-660T),

available at http://www.gpoaccess.gov/gaoreports/index. html.

* U.S. Citizenship and Immigration Services, Statement:

INS Reminds Certain Temporary Foreign Visitors of Eighteen

Countries of Registration Requirement (Dec. 6, 2002), available at

http://uscis.gov/graphics /publicaffairs/pachron.htm (describing the

goals of NSEERS as “helping the U.S. to identify wanted criminals

and knowa terrorists entering our borders”).

15

States are not threats to national security, the registration

requirement does not apply to lawful permanent residents or

asylum applicants. Jd. Of those who registered for

NSEERS, 2,870 were detained and 23 were placed in

custody.” These individuals were detained under authority

other than Section 1231(a)(6).

Finally, of the eighteen countries listed in NSEERS,

Cuba was not one of the countries listed.'° These executive

regulations and practices reveal that Mariel Cubans, such as

Mr. Benitez, do not constitute threats to national security.

B. Unsubstantiated Border Security Concerns

Cannot Justify Indefinite Detention

Under the Eleventh Circuit’s rationale, vaguely alleged

and unsubstantiated border security concerns could justify

indefinite detention of all inadmissible aliens, many of whom

do not pose a threat to national security. The Eleventh

Circuit relied partly upon concerns over border security to

uphold Benitez’s indefinite detention. Benitez, 337 F.3d at

1300. Nonetheless, these concerns are clearly not present in

this case. By upholding Mr. Benitez’s indefinite detention

when no national security concerns were present or even

suggested, the Eleventh Circuit’s decision implies that any

inadmissible alien could be detained upon _ these

unsubstantiated grounds.

In other areas of constitutional law, the government’s

reference to vague national security justifications were

insufficient to justify governmental action. See N.Y. Times

* Department of Homeland Security, Changes to National

Security Entry/Exit Registration System (NSEERS) (Dec. 1, 2003),

available at http://www.dhs.gov /dhspublic/theme_home®8.jsp.

10 Id

16

Co. v. United States, 403 U.S. 713, 719 (1971) (observing

that “[t/he word ‘security’ [in a discussion about national

security] is a broad, vague generality whose contours should

not be invoked to abrogate the fundamental law embodied in

the First Amendment”); see also People’s Mojahedin Org. of

Iran v. Dep't of State, 327 F.3d 1238, 1243 (D.C. Cir. 2003);

North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198,

204, 219 (3d Cir. 2002) (“We defer only to the executive

insofar as it is expert in matters of national security, not

constitutional liberties.”); Detroit Free Press v. Ashcroft, 303

F.3d 681, 705 (6th Cir. 2002) (determining that courts must

require particularized evidence supporting the assertion that

national security is implicated in a particular First

Amendment case); United States v. McVeigh, 153 F.3d 1166,

1176 (10th Cir. 1998), limited on other grounds, United

States v. Lazcano-Villalobos, 175 F.3d 838, 847 (10th Cir.

1999); Bay Area Peace Navy v. United States, 914 F.2d

1224, 1228 (9th Cir. 1990) (fear of terrorist threat without

evidence not sufficient to restrict speech).

Zadvydas recognized instances of suspected terrorism as

one instance when determinations of the national government

~ would have receive more deference from courts. 533 US. at

696. The heightened deference, however, was limited to

cases where the alien posed a genuine threat to national

security. Here, the Eleventh Circuit cited generally to

national security concerns, but then upheld Mr. Benitez’s

detention without any evidence or even suggestion by the

government that Mr. Benitez was a suspected terrorist. See

Benitez, 337 F.3d at 1300. In upholding indefinite detention

of an excludable alien »vho does not pose a threat to national

security, the Eleventh Circuit eviscerated the narrow

exception, recognized in Zadvydas, when governmental

determinations concerning prolonged detention would be

entitled to greater deference.

17

C. Mezei and Carlson Do Not Justify Indefinite

Detention Here

This Court has upheld prolonged dete: on of

inadmissible aliens, but only upon a finding that the alien

was a suspected terrorist or national security risk. It has

never expressly authorized post-removal indefinite detention

of excludable aliens when national security concerns or other

special circumstances were not present. In these cases, the

Court accepted the government’s contention that the alien

presented a threat to national security, and upheld the

detention. Shaughnessy v. United States ex rel. Mezei, 345

U.S. 206, 216 (1953) (upholding post-removal detention

without a hearing when exclusion was “grounded on danger

to the national security”); Carlson v. Landon, 342 U.S. 524,

534-35 (1952) (detention of Communists during deportation

proceedings without bail).

In Mezei, the Court considered whether the government

was required to provide a hearing concerning reentry when

the government alleged Mezei was a threat to national

security. Mezei, 345 U.S. at 216, 227. Here, the Court

divided over the evidence necessary for demonstrating that

an alien constitutes a threat to national security. The

majority accepted the government’s allegations on their face,

upholding the alien’s detention without a hearing on national

security grounds. /d. at 214 (stating that Mezei “simply left

the United States and remained behind the Iron Curtain for

19 months”). In contrast, the dissenting opinion recognized

the “Communist evil,” but concluded that detention of an

alien was no longer warranted when removal was not

possible. /d. at 227.

In Carlson, the Court upheld the Attorney General’s

authority to detain aliens who participated in Communist

activities. Here, release of the alien during deportation

proceedings could result in “opportunities to hurt the United

States during the pendency of deportation proceedings.”

18

Carlson, 342 U.S. at 538, 542 (“There is no denial of the due

process of the Fifth Amendment under circumstances where

there is a reasonable apprehension of hurt from aliens

charged with a philosophy of violence against this

Government.”) (emphasis added).

Both Mezei and Carlson occurred during a time when the

political branches made a determination, as a matter of

immigration policy, that Communists were a threat to

national security. As of 1949, a Congressional report

estimated that 3,278 could not be deported because a foreign

country refused to issue travel documents. Of these

“undeportables,” 2,147 were “iron-curtain nationals,

including 1,180 Russians.” S. Rep. No. 1515, at 637, 639

(1950); see also Rodriguez-Fernandez v. Wilkinson, 654 F.2d

1382, 1389 (10th Cir. 1981) (discussing the Internal Security

Act of 1950 and the Immigration Naturalization Act of 1952,

which limited post-deportation order detention to six months

even though they were passed during a time when “Congress

was painfully aware” of the undeportables). In upholding

detentions at issue in Mezei and Carlson, the Court deferred

to the political branches’ determinations that aliens affiliated

with Communism constituted a threat to national security.

Although cases such as Mezei and Carlson have been

cited to uphold indefinite detention of inadmissible aliens,

they are actually cases concerning deference to the

government on matters of national security. In these cases,

the Court upheld the government’s _ individualized

determination that the particular alien at issue actually

constituted a threat: specifically, that the alien could be a

terrorist or serious threat to national security. See Mezei, 345

U.S. at 216; see also Rosales-Garcia v. Holland, 322 F.3d

386, 413-14 (6th Cir. 2003) (en banc) (“[T]he Mezei Court

explicitly grounded its decision in the special circumstances

of a national emergency.”); Rodriguez-Fernandez, 654 F.2d

19

at 1388 (distinguishing Mezei on grounds of national

security).

In this same vein, Zadvydas recognized two instances

when the government would be entitled to more deference in

prolonged detention. Zadvydas, 533 U.S. at 696. Under -

these exceptions, detention of an alien who is a suspected

terrorist or a person with a serious mental illness would be

permissible under Zadvydas. Such a detention would also be

permissible under provisions separate and independent from

Section 1231(a)(6), which pertain to suspected terrorists. See

id. Absent an individualized determination that an alien is a

threat to national security, indefinite detention is not

appropriate. Bezman v. Ashcroft, 245 F. Supp. 2d 446, 450-

51 (D. Conn. 2003) (civil confinement pending appeal on

bond determination). Although upholding prolonged

detention of aliens upon grounds of national security, this

Court has not sanctioned indefinite detention of aliens, such

as Mr. Benitez, who were not national security threats. Thus,

the Eleventh Circuit erred in basing its decision upon

attenuated security concerns when this case presents no

finding or suggestion of a threat to national security.'!

_

'' Even if the Attorney General argues that the current

statutory and administrative regimes are not effective for

protecting border security after Zadvydas, then the proper forum

for resolving the Government’s concerns regarding national

security is Congress — not the courts. See United States v.

Witkovich, 140 F. Supp. 815, 820 (N.D. Ill. 1956) (“{Ijf it is

physically impossible to deport him, and if increasing numbers of

aliens in this situation has created a serious problem, then

Congress may solve it.”), aff'd, 353 U.S. 194 (1957).

20

III. Excludable Aliens Are Being Indefinitely

Detained With No Significant Possibility of

Removal

A. Post-Order Detention On Criminal

Recidivism Grounds Violates Zadvydas

Based solely upon an administrative determination that

an excludable alien, such as Mr. Benitez, has criminal

tendencies, the Eleventh Circuit upheld the government’s

authority to indefinitely detention such aliens under Section

1231(a)(6). In its decision, the court distinguished Zadvydas,

which disallowed indefinite detention under the exact same

statutory provision used to detain excludable aliens. Section

1231(a)(6) applies to inadmissible aliens, which encompasses

excludable aliens such as Mr. Benitez. Contrary to the

Eleventh Circuit’s decision, Zadvydas is binding precedent

for the statutory interpretation of the permissible length of

detention.

The Eleventh Circuit described the issue as whether an

excludable alien has a “right to parole.” Benitez, 337 F.3d at

1300. This fundamentally misunderstands the Court’s

holding in Zadvydas and the constitutional concerns raised

by indefinite detention based upon an informal administrative

proceeding. Like Zadvydas, this case addresses whether an

administrative decision may require post-removal indefinite

detention of an excludable alien: there is no significant

possibility of the aliens’ removal, there has been no

adjudicative determination of his future dangerousness, and

there has been no criminal proceedings charging him with

suspected terrorism. Also like Zadvydas, this case does not

involve border security concerns when the government has

particular information concerning the excludable aliens. See

Zadvydas, 533 U.S. at 695-96 (commenting that the case did

not involve the “political branches’ authority to control entry

into the United States”). Finally, this case does not present

the question of the national government’s authority to detain

21

aliens for a reasonable time pending their removal. Like

other aliens subject to indefinite detention, Mr. Benitez is

challenging neither the removal order, nor INS authority to

detain aliens during removal proceedings. Benitez, 337 F.3d

at 1292-93,"

Mr. Benitez epitomizes the group of inadmissible aliens

who cannot be removed from the United States because no

foreign country will accept them. An administrative

determination, without judicial review, subjects these aliens

to post-removal indefinite detention under Section

1231(a)(6). Because there is no significant likelihood of

removing such an alien to a foreign country, the purpose of

continued detention is clearly not to effectuate the removal

order. Rather, like the detention in Zadvydas, the purpose of

this detention can only be preventive: either to prevent flight

or protect the community from a criminal who has already

served his time. As the Court recognized in Zadvydas, the

government’s interest in preventing flight diminishes as a

grounds for detaining the alien when it is not possible to

effectuate his removal. Zadvydas, 533 U.S. at 690. Thus, the

only grounds for detaining Mr. Benitez is that he might pose

a risk of criminal recidivism.

Mr. Benitez’s indefinite detention is not justifiable on

grounds other than potential recidivism. For example, the

record does not include any finding of special circumstances,

2 The Eleventh Circuit cited cases in which admitted or

resident aliens are entitled to greater procedural protections than

excludable aliens in determining whether they are entitled to

remain in the country. Benitez, 337 F.3d at 1296-97. These cases

are inapposite, however, because Mr. Benitez is not challenging

the procedures used to enter his removal order. The only issue is

whether the government may subject excludible aliens to indefinite

post-removal detention.

22

such as serious mental iliness, that would satisfy the criteria

for civil commitment. Additionally, the government has

offered no argument that he constitutes a threat to national

security. Nor is there any evidence to imply that he is a

suspected terrorist. Like the detention prohibited in

Zadvydas, Mr. Benitez is being indefinitely detained because

of an administrative determination that he poses a danger to

the local community. With no significant possibility of

removal to Cuba or any other country, Mr. Benitez’s

continued detention under Section 1231(a)(6) violates

Zadvydas.

B. Adoption Of the INS’s Reading Would Have

Broad Ramifications

The Eleventh Circuit’s decision permits indefinite

detention of excludable aliens, even it they have not

committed a serious offense. When a foreign country refuses

to accept an excludable alien, such as Mr. Benitez, the only

purpose of his ongoing indefinite detention is preventive: to

protect the local community from a potential criminal

recidivist.

Yet, in upholding indefinite detention of excludable

aliens on these grounds, the Eleventh Circuit’s decision has

broad ramifications. It sanctions authority for the executive

branch to detain indefinitely inadmissible aliens, even ones

who have not committed a serious offense. A broad category

of aliens are subject to removal, including aliens who are

convicted of crimes of moral turpitude or of “miscellaneous

crimes.” 8 U.S.C. § 1226(c) (2000). After a removal order

has been entered, inadmissible aliens are detained under

Section 1231(a)(6). Thus, the Attorney General may impose

post-removal detention on aliens who were ordered removed

for many reasons, including tourist visa violations. E.g.,

Borrero v. Aljets, 325 F.3d 1003, 1006 (8th Cir. 2003); Bini

v. Aljets, 36 Fed. Appx. 868, 869 (8th Cir. 2002) (upholding

continued detention for alien who committed two crimes-of

23

moral turpitude); Elkins v. Comfort, 245 F. Supp. 2d 1161,

1163 (D. Colo. 2003) (alien was excludable partly for lacking

an immigrant visa, even though the alien was married to a

United States serviceman).

Section 1231(a)(6) is distinguishable from the statute

upheld in United States v. Salerno, 481 U.S. 739 (1987),

which provided for detention limited to a finite time period

and was confined to people who were involved in serious

crimes. Jd. at 747. In contrast, under the Eleventh Circuit’s

decision, aliens convicted of a non-serious crime could be

subject to indefinite detention.

C. Prolonged Detention Is Warranted Only By

Special Circumstances, Which Are Not

Present Here

This Court has upheld prolonged detention only upon

judicial determination of special circumstances warranting

detention. Under the lower court’s decision, an excludable

alien may be indefinitely detained under Section 1231(a)(6)

with no judicial proceeding and no judicial review of the

administrative decision. Administrative regulations generally

govern post-removal detention of excludable aliens beyond

the ninety-day removal period. 8 C.F.R. § 241.4 (2603)

(regulations concerning when the Attorney General exercises

discretion to detain under Section 1231(a)(6)). Separate

administrative regulations, however, apply to Mariel Cubans.

8 C.F.R. § 212.12 (2003) (Cuban Review Plan). Although

the Cuban Review Plan provides seven factors to be

considered in the administrative parole determination, the

administrative regulations do not require a finding of special

circumstances to uphold indefinite detention. Furthermore,

neither possibility of repatriation nor length of detention is

listed in the Cuban Review Plan, both of which were crucial

factors discussed in Zadvydas. See id. § 212.12(d)(3).

Hence, the administrative decision-maker may indefinitely

24

detain inadmissible aliens without analyzing the very factors

that made the detention impermissible in Zadvydas.

Even in the immigration context, there is an arbitrariness

limit to government treatment of aliens, which applies to

post-removal detention. Zadvydas, 533 U.S. at 721

(Kennedy, J., dissenting). Lower court cases suggest that

some administrative determinations arbitrarily impose post-

removal indefinite detention. E.g., Gonzalez v. Ashcroft, 278

F. Supp. 2d 402, 416 (D.N.J. 2003) (holding that detention

for more than one year without parole review violates Cuban

Review Plan). Even post-Zadvydas cases suggest agency

reluctance to implement this Court’s decision as applied to

admitted aliens.’ For example, in one case, the INS

repeatedly recommended release of a Liberian national

during his four-year detention until he filed a habeas petition,

at which time the INS revoked its recommendation. F£.g.,

Seretse-Khama v. Ashcroft, Civ. No. 02-0955, 2002 U.S.

Dist. LEXIS 13547, **12, 33 (D.D.C. July 22, 2002)

(describing the INS response as “woefully short” to the

alien’s showing that he was not likely to be removed). The

court held that nothing in the record explained why the alien

was not released. /d.

Outside of the context of immigration policy, courts have

found excludable aliens fall within the protection of the

Constitution, including protections during a criminal trial.

E.g., Plyler v. Doe, 457 U.S. 202 (1982) (alien children may

'? Elizabeth Amon, JNS Flouts High Court on Prisoners,

Critics Say, Nat’! L.J., Aug. 15, 2002, http://www.law.com/jsp

/article.jsp?id=1028906395219 (discussing Kasarov et al. vy.

Ashcroft, No. 1:02-CV-5097 (N.D. Ill. July 25, 2002), which is a

class action suit alleging that the government “has implemented

regulations that have the effect of obstructing and hindering the

Supreme Court’s decision” in Zadvydas).

25

claim benefit of the Equal Protection Clause of the

Fourteenth Amendment); Wong Wing v. United States, 163

U.S. 228, 237-38 (1896) (substantive due process); Yick Wo

v. Hopkins, 118 U.S. 356, 369 (1886); see also Lynch v.

Cannatella, 810 F.2d 1363, 1375 (Sth Cir. 1987) (noting

excludable aliens are persons under the Fourteenth

Amendment). When no foreign country will accept the alien,

post-removal detention is not solely in the immigration

context, and other constitutional concerns apply to determine

whether the indefinite detention is permissible. Even within

the immigration context, excludable aliens possess some due

process rights concerning their physical liberty in the means

of implementing immigration policy. E.g., Ngo v. INS, 192

F.3d 390, 399 (3d Cir. 1999) (excludable aliens are entitled

to periodic review of their continued detention if they cannot

be removed); see also Lynch v. Cannatella, 810 F.2d 1363,

1374 (Sth Cir. 1987) (excludable aliens have protection under

due process clause from intentionally abusive detention

conditions).

The Eleventh Circuit erred in upholding indefinite civil

“etention of an excludable alien under Section 1231(a)(6).

Unless warranted by special circumstances, such indefinite

detention does not effectuate an alien’s removal when a

foreign country refuses to accept an alien in detention. Thus,

detention must be justified on other grounds, but the

Eleventh Circuit fails to do so. E.g., United States ex rel.

Ross v. Wallis, 279 F. 401, 403-04 (2d Cir. 1922) (“[T]}he

right to deport does not include any nght of indefinite

imprisonment under the guise of awaiting an opportunity for

deportation.”); Petition of Brooks, 5 F.2d 238, 239 (D. Mass.

1925) (“The right to arrest and hold or imprison an alien is

nothing but a necessary incident of the mght to exclude or

deport. There is no power in this court or in any other

tribunal in this country to hold indefinitely any sane citizen

or alien in imprisonment, except as punishment for a

26

crime.”). To be upheld, indefinite civil detention must be

non-punitive and justified by special circumstances, such as

serious mental illness. Zadvydas, 533 U.S. at 678 (assuming

that the objectives for detaining Zadvydas and Ma were non-

punitive and concluding that no special justification was

present). If an excludable alien is indefinitely detained under

Section 1231(a)(6) without a finding of special

circumstances, then his detention is punitive.

Congress may not enact legislation that punishes aliens

without providing for a criminal trial--this principle applies

to excludable aliens in post-removal detention. See

Zadvydas, 533 U.S. at 704 (Scalia, J., dissenting) (aliens

cannot be tortured); Bell v. Wolfish, 441 U.S. 520, 535 (1979)

(holding detainee may not be punished without an

adjudication of guilt per the due process clause); Wong Wing

v. United States, 163 U.S. 228, 237-38 (1896) (striking

statute that imposed hard labor on aliens tn detention after

deportation order issued). When an alien is subject to post-

removal indefinite detention with no significant possibility of

removal, that detention constitutes punishment unless

justified on other grounds. Because INS does not have

‘ adequate detention facilities, many aliens, including Mr.

Benitez, are detained in federal and state prison facilities.

Armentero v. INS, 340 F.3d 1058, 1068 (9th Cir. 2003)

(reporting that more than 10,000 immigrants are detained in

local jails and state prisons) (citing Michael Welch,

Detained: Immigration Laws and the Expanding INS Jail

Complex 108 (2002)). Because the INS cannot effectuate his

removal to another country, an excludable alien’s ongoing

indefinite detention becomes impermissible punishment,

which may be justified only in a judicial proceeding.

Rather than release excludable aliens under orders of

supervision, the government continues to detain them even

though they cannot be removed. This indefinite detention is

based solely upon an informal administrative dciermination

27

that they presents a danger to the community as potential

recidivist. In Zadvydas, the Court rejected potential criminal

recidivism as a sufficient basis for indefinite detention of

inadmissible aliens. This Court explicitly distinguished such

indefinite detention from two cases in which prolonged

detention would be authorized on grounds other than Section

1231(a)(6). ‘First, terrorism is a case when “special

arguments might be made for forms of preventive detention

and for heightened deference to the judgments of the political

branches with respect to matters of national security.”

Zadvydas, 533 U.S. at 696. Second, the Court has upheld

prolonged civil commitment when such detention is “limited

to specially dangerous individuals and subject to strong

procedural protections,” which capture only those cases

where there is a “special justification” such as a “harm-

threatening mental illness.” Zadvydas, 533 U.S. at 690-91;

see also Kansas v. Hendricks, 521 U.S. 346, 368 (1997)

(upholding detention scheme with stringent procedural

protections that confines “a small segment of particularly

dangerous individuals” who had a mental abnormality);

Foucha v. Louisiana, 504 U.S. 71, 82-83 (1992) (holding due

process prohibits indefinite detention of an insanity acquittee

and determining state failed to establish danger to society by

clear and convincing evidence).

Because there is no reasonable possibility of removing

excludable aliens, such as Mr. Benitez, the government

cannot claim that he is being detained for a limited period to

effectuate the removal order. In other cases, the Court has

upheld detention when it is of limited duration. E.g., Schall

v. Martin, 467 U.S. 253, 269 (1984) (upholding pretrial

detention of juvenile, which is “strictly limited in time”);

Jones v. United States, 463 U.S. 354, 368, 370 (1983)

(authorizing civil commitment of a person, who receives an

insanity judgment, only for the period during which the

person was both mentally ill and dangerous); Carlson v.

28

Landon, 342 U.S. 524 (1952) (considering detention of

potentially dangerous aliens during period pending

determination of deportability, which is typically short time

period); see also Rodriguez-Fernandez v. Wilkinson, 654

F.2d 1382, 1387 (10th Cir. 1981) (upholding detention

pending deportation because it is “justifiable only as a

necessary, temporary measure’’). In contrast, detention is not

limited in duration when the excludable alien cannot be

removed.

Furthermore, in cases upholding “preventive detention . .

. of potentially indefinite duration,” however, the potential

for recidivism has never been enough, and the Court required

“some other special circumstance, such as mental illness, that

helps to create the danger.” Zadvydas, 533 U.S. at 691; see

also Kansas v. Crane, 534 U.S. 407, 412 (2002) (requiring a

lack of control determination “lest ‘civil commitment’

become a ‘mechanism for retribution or general deterrence’ -

- functions properly those of criminal law, and not civil

commitment”) (quoting Kansas v. Hendricks, 521 U.S. 346,

358 (1997) (Kennedy, J., concurring)). Moreover, in each of

these cases, a judicial proceeding determined the special

circumstances and limited time period. David Cole, /n Aid of

Removal: Due Process Limits on Immigration Detention, 51

Emory L.J. 1003, 1014 (2002) (recognizing that “with the

exception of enemy aliens during wartime, the Supreme

Court has upheld civil detention” only after a judicial

proceeding to determine individualized need).

Unlike the cases in which the Court has upheld

confinement, Mr. Benitez’s detention is of unlimited duration

and imposed by an administrative determination, which did

not require special circumstances. Thus, this case is unlike

United States v. Salerno, which upheld pretrial preventative

detention because there was a short time until tral, detention

was reserved for the “most serious of crimes,” and detention

was imposed only after complying with judicial protections,

29

including proof of dangerousness by clear and convincing

evidence. 481 U.S. 739, 747, 750-52 (1992). Civil detention

of a limited time period has been upheld only under judicial

determination of special circumstances, such as severe

mental illness. Unlike the detention at issue in Salerno,

indefinite detention under Section 1231(a)(6) is neither

limited in time period nor reserved to the most serious

criminals. It is undisputed that no judicial proceeding or

finding of special circumstances occurred here. The only

ground to justify Mr. Benitez’s detention under Section

1231(a)(6) is preventative: to protect the local community

from the mere hunch that he is a criminal recidivist. This

does not satisfy the doctrinal requirements for upholding

civil detention. Such ongoing detention of excludable aliens

becomes punishment, which is prohibited without a judicial

proceeding.

30

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

DAVID J. BODNEY

Counsel of Record

STEPTOE & JOHNSON LLP

201 East Washington Street

Suite 1000

Phoenix, AZ 85004

602-257-5212

a ee ee em eee me

KATHRYN J. GAINEY

STEPTOE & JOHNSON LLP

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-6252

Attorneys for Amici Curiae Regina

Germain and Ira Kurzban

February 25, 2004