Amicus Curiae Brief — Jennings v. Rodriguez, 136 S. Ct. 2489 (2016) (No. 15-1204)

No. 15-1204

FILED

OCT 24 2016

fre

OFFICE OF THE CLERK

IN THE

Supreme Court of the United

DAVID JENNINGS, et al.,

Petitioners,

v.

ALEJANDRO RODRIGUEZ, et al.,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES Court

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE IN SUPPORT

OF RESPONDENTS

Of Counsel: LinbA A. KLEIN

JEFFREY L. BLEICH Counsel of Record

IAN R. BARKER AMERICAN Bar ASSOCIATION

PETER Z. STOCKBURGER 321 North Clark Street

BENJAMIN P. HARBUCK Chicago, IL 60654

ANDREW M. LEGOLVAN (312) 988-5000

Dentons US LLP abapresident@americanbar.org

Counsel for Amicus Curiae

American Bar Association

;

TABLE OF CONTENTS

Page

Ee i

TABLE OF CITED AUTHORITIES .............. iii

INTEREST OF THE AMERICAN BAR

re oe seb ensécetees 6 1

STATEMENT OF INTEREST .................... 1

SUMMARY OF ARGUMENT..................... 6

Cece id ics cece esdabesedcceccess 10

I. ToAvoid Serious Due Process Concerns, The

Immigration Detention Statutes At Issue

Must Be Read To Require A Hearing ToJustify

Detention Within A Reasonable Period....... 10

Il. A Temporal Bright-Line Rule Is Necessary

And Appropriate To Provide Uniformity And

Clear Instruction On When The Government

Must Conduct A Bond Hearing.............. ll

A. Because The Case-By-Case

Approach Gives Lise To Inconsistent

Determinations, It Results In Arbitrary

ES re ;aseone

Bb. The Court Has Recognized That

Bright-Line Rules Best Protect

Detainees’ Constitutional Rights ........ 18

a

Table of Contents

Page

Ill. Possible Habeas Relief Does Not

Ameliorate The Government’s Due Process

WE occ ic ccredccie dade adeintieawat 22

A. Government Administrative

Proceedings Must Afford Due

Process Regardless Of Whether

Habeas Is Also Available............... 23

B. Habeas Has Proved To Be An

I on b vv cnccdscdvcoeses 25

SED s:6 ev cdesedéccuaenesdnedesaewatesite 31

wt

TABLE OF CITED AUTHORITIES

Page

CASES

Arizona v. United States,

Se Se, , Cs ED oo ct ccccececic 5

Baldwin v. New York,

i ee anivewnte 22

Benitez v. Mata,

i i ee cn ed eaek eaeavcwlueeds 5

Boumediene v. Bush,

IE ba eee wen 24, 30

Calcano-Martinez v. INS,

i ewe cuuseii 5

Casas-Castrillon v. Dep’t of Homeland Sec.,

535 F.3d 942 (9th Cir. 2008) ...............0000. 28

Cheff v. Schnackenberg,

sn ccacewacedGausewesedi 8, 21

Clark v. Martinez,

ee Ce EE, Sv ow bdviwsvcveccuces 8, 18, 19, 20

County of Riverside v. McLaughlin,

ee Ge Gn co cécncodesccecwe 8, 18, 20-21, 22

County of Sacramento v. Lewis,

REN i Pee OE 17

w

Cited Authorities

Page

Demore v. Kim,

a. Sens b ea binesbeuen' es passim

Diop v. ICE/Homeland Sec.,

ee EL ED ond a cc avacedecensetes 28

Doe v. Gallinot,

ee eee Ee GGG BD ook ces scedcceceuvens 25

Duncan v. Louisiana,

I a as eh rg eb inietie 22

Duncan v. Walker,

I a a ee cc eciwesiny seine 24

Foucha v. Louisiana,

I a ea a da niet 17

Gerstein v. Pugh,

os on ok bos ea be i eaw a's 21

Hamdi v. Rumsfeld,

RS eT eae | 24

INS v. Nat'l Ctr. for Immigrants’ Rights,

I cr ee Oa oad cae at 5

INS ». St. Cyr,

ge RE ECR ESE ie SEY en ee 11

Vv

Cited Authorities

J.R. v. Hansen,

803 F.3d 1315 (11th Cir. 2015)..........

Jackson v. Indiana,

ik | Ree eee

Khalafala v. Kane,

836 F. Supp. 2d 944 (D. Ariz. 2011) .....

Lora v. Shanahan,

804 F.3d 601 (2d Cir. 2015) ............

Ly v. Hansen,

351 F.3d 263 (6th Cir. 2003) ...........

Martin-Trigona v. Shiff,

702 F.2d 380 (2d Cir. 1983) ............

McNary v. Haitian Refugee Center, Inc.,

Se Ws Se GE vc cece eisentcceres

McNeil v. Director, Patuxent Inst.,

Cee Ce IP EIUEs vo cv neecesticeviecs

Parham v. J.R.,

GE UT. GG Tee occ cccnccccsccnss

Reid v. Donelan,

819 F.3d 486 (1st Cir. 2016) ............

vr

Cited Authorities

Page

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

Se EE IG oa cove ceVacebancadepbacevcds 5

Reno v. Flores,

er i ee de ee 5

Rodriguez v. Robbins,

804 F.3d 1060 (Oth Cir. 2015) ...............0.. 20

Sopo v. U.S. Attorney Gen.,

825 F.3d 1199 (11th Cir. 2016).............. passim

United States v. Salerno,

en adie g 5

Wolff v. McDonnell,

I i a ho eed a 17

Zadvydas v. Davis,

EEL, cen ke sbue-tasewevaseke passim

STATUTES AND OTHER AUTHORITIES

Fourth Amendment to the U.S. Constitution ...... 8, 21

Fifth Amendment to the U.S. Constitution........... 1

Sixth Amendment to the U.S. Constitution.......... 21

Fourteenth Amendment to the U.S. Constitution. . 21-22

vii

Cited Authorities

Page

a's ou avd neeus abe wi ena nent 1, 6, 10

eS b's Sw ch pwn wed es bas bon ewe 1, 6, 10

ee os da ge Keke Sues weures wer 1, 6, 10

os vende gahwekeee bene eh ds den 11

Eh SE MD Shida > ou eb ace cee-eo (Ceenthensencnee' J

EE OE NE cs we ate a pdb ee OEREROWASE SAS DO TEES 1

ABA Model Rules of Professional Conduct,

EE Siald hea eliag ose Be 6 aln Oia ge hbase Soe Aa 16

ABA Model Rules of Professional Conduct,

IE he? tthe eee We eee ek ae a 16

ABA Standards for Criminal Justice:

Pretrial Release (8d ed. 2007) ................... 2

Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989). ............ 17

Detention Facility Locator, U.S. Immigration

and Customs Enforcement...................+. 28

EOIR, Certain Criminal Charge Completion

ee ele das cb tab sek sees cSeeKp neue sa 9

virt

Cited Authorities

Page

Farrin R. Anello, Due Process and Temporal

Limits on Mandatory Detention, 65 Hastings

Sid I Ca bevesdeencasdsceeers 14, 15, 16, 17

Habeas Corpus and Due Process, Brandon L.

Garrett, 98 Cornell L. Rev. 47 (2012)............. 24

Ingrid V. Eagly & Steven Shafer, A Natiow«/

Study of Access to Counsel tit Imonigration

Court, 164 U. Pa. L. Rev. 1 (2015) ........... 8-9, 27

Institute of Judicia] Administration, American

Bar Association, Juvenile Justice Stanclards:

Standards Relating to Interim Status 12

ae Ou C6 eo SORE CEE ESA ERASER REOUS DAS aes 13

Lee Kovarsky, Custodial and Collateral Process:

A Response to Professor Garrett, 98 Cornel]!

SS cs ecehsGawetcd i wads vases 24

Judicial Emergencies, United States Courts,

http:/www.uscourts.gov/judges-judgeships/

jucicial-vacancies/judicial-emergencies .......... 28

Martin Mareus, The Making of the ABA

Criminal Justice Standards: Forty Yeurs of

Excellence, 23 Crim. Just. 10(2009) .............. 3

Patricia Wald, Pretrial Detention for Jrnveniles,

in PURSUING JUSTICE FOR THE CHILD 119

(Margaret K. Rosenheim ed., 1976).............. 13

ww

Cited Authorities

Page

Warren E. Burger, /ntroduction: The ABA

Standards for Criminal Justice, 12 Am.

Cs ie PE SMU 6 co bcccsecdviceves en 3

1

INTEREST OF THE

AMERICAN BAR ASSOCIATION

Pursuant to this Court’s Rule 37.3, amicus curiae

American Bar Association (“ABA”) respectfully submits

this brief recommending that this Court affirm the

determination below that, to ensure the Government’s

compliance with the Immigration and Nationality Act

and the Due Process Clause of the Fifth Amendment

to the Constitution, persons subject to detention under

$§ 1225(b), 1226(), or 1226(a) of Title 8 of the United

States Code must be afforded individualized bond

hearings after they have been detained for a prolonged

period to determine whether they present a danger or

flight risk, and that such hearings must occur periodically

thereafter where detention continues.’

STATEMENT OF INTEREST

The ABA respectfully submits this brief as amicus

curiae pursuant to Rule 37.3 of the Rules of this Court.

The ABA is a voluntary, national membership organization

of the legal profession. Its more than 400,000 members,

from each state and territory and the District of

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

respondents, and letters reflecting those consents have been lodged with

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

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

a party and that no person or entity, other than the ABA, its members,

or its counsel has made a monetary contribution to the preparation

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

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

Judicial Division Council participated in the adoption of the positions in

this brief or reviewed the brief prior to filing.

2

Columbia, include prosecutors, public defenders, private

lawyers, legislators, law professors, law enforcement and

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

lawyer associates in allied fields.

The ABA is committed to protecting the constitutional

and statutory rights of immigrant detainees. Since 1990,

the ABA House of Delegates has maintained support

for facilitating the exercise of the right to counsel; for

detaining noncitizens only in extraordinary circumstances

and only in the least restrictive environment necessary;

and for considering alternative means of ensuring

appearance at immigration proceedings. In August 2002,

the ABA reaffirmed its commitment to these principles in

a resolution adopted by the House of Delegates calling for

the provision of prompt custody hearings for immigrant

detainees before immigration judges, accompanied by

meaningful administrative review and juclicia) oversight.

These principles are also refiected in the ABA’s strong

support for procedural! safeguards in the criminal justice

context, where the ABA has long been active. Among

its most recent efforts, the ABA House of Delegates

promulgated the latest edition of its Criminal] Justice

Standards on Pretrial Release (hereinafter “Pretrial

Release Standards”), which represents a consensus of

the legal community and contains a comprehensive set

of guidelines intended to help promote fairness and

balance in the criminal justice system. ABA Standards

for Criminal Justice: Pretrial Release (8d ed. 2007),

available at http://www.americanhbar.org/content/dam/

aba/publications/eriminal justice standards/pretrial

release.authcheckdam.pdf. The first eclition of the Pretrial!

Release Standards was described by former Chief Justice

3

Burger as the “single most comprehensive and probably

the most monumental] undertaking in the field of criminal

justice ever attempted by the American legal profession

in our national] history.” Warren E. Burger, /ntrodnction:

The ABA Standards for Criminal Justice, 12 Am. Crim.

L. Rev. 251 (1974), quoted in Martin Marcus, The Making

of the ABA Criminal Justice Standards: Forty Years of

Excellence, 23 Crim. Just. 10, 10 (2009).

These Pretrial Release Standards are guided by the

recognition that deprivation of an individual’s liberty

while awaiting a final determination of his or her fate is

“harsh and oppressive, subjects [individuals] to economic

and psychological hardship, interferes with their ability

to defend themselves, and, in many instances, deprives

their families of support.” Pretrial Release Standards, 10-

1.1. While the Pretrial Release Standards are addressed

principally to criminal detention, the ABA believes that

procedural safeguards are also critical where, as here,

immigrants are awaiting a civil proceeding—often housed

in criminal detention facilities*—to determine whether or

not they may be removed from this country.

In 2006, the ABA House of Delegates adopted a

resolution opposing the detention of immigrants in removal

proceedings except in extraordinary circumstances,

which would require a specific determination of a threat

2. United States Immigration and Customs Enforcement (“ICE”)

uses hundreds of facilities for immigration detention, the majority of which

are state and local jails and correctional institutions where ICE contracts

for bed space. This creates the anomaly of civil administrative detainees

incarcerated alongside criminal defendants and inmates serving

criminal sentences but without any of the procedural safeguards

that are the norm in the criminal justice context.

4

to national] security, another person, or public safety, or

that the immigrant presents a substantia) flight risk. See

ABA Report 107E, adopted February 2006 (hereinafter

“Report LO7E”), available at http://www.americanhar.

org/content/dam/aba/directories/policy/2006_my_107e.

suthcheckdam.pdf, Additionally, the ABA recommended in

Report 107E that ICE implement alternatives to detention

to ensure that immigrants appear in court; develop a

process for appeals of ICE officers’ determination of

whether immigrants may be released from detention;

and establish mechanisms to ensure full compliance

with the law regarding post-order custody review and

proper administrative review and judicial oversight of all

detention cases, /d.

Most recently, in 2012, the ABA House of Delegates

approved the ABA Civil Immigration Detention Standards

(“Detention Standards”). See ABA Civ. Immigr. Det.

Standards, 12A102, adopted August 2012, as amended

in August 2014 by Res. 111, available at http://www.

americanbar.org/content/dam/aba/administrative/

immigration/abaimmdetstds.authcheckdam.pdf. These

describe guiding principles for immigration detention,

consistent with due process and principles of justice and

fairness. They include that restrictions or conditions

placed on immigrants should be non-punitive and the least

restrictive means required to further the goals of ensuring

the appearance of the immigrant in immigration court or

effectuating removal. Detention Standards, § VII.C. To

that end, the Detention Standards recommend requiring

both prompt initial and continuing periodic objective

determinations that the immigrant either presents a

threat to national security or public safety, or that the

immigrant presents a substantial flight risk that cannot

5

be mitigated through parole, bond, or a less restrictive

form of custody or supervision. See Detention Standards,

§ IL.C. The Detention Standards further encourage ICE

to review detention placements regularly to ensure that

individuals are detained for the minimum time necessary

and are not detained indefinitely. Detention Standards,

§ III.D.

In addition to promulgating effective standards for

immigration detention, the ABA has an extensive history

of appearing as amicus curiae in immigration- and

detention-related cases before this Court, including in

the following cases: Arizona v. United States, 567 U.S.

__, 182 S. Ct. 2492 (2012); Benitez v. Mata, 540 U.S. 1147

(2004); Demore v. Kim, 5388 U.S. 510 (2001); Calcano-

Martinez v. INS, 533 U.S. 348 (2001); Reno v. Flores, 507

U.S. 292 (1993); United States v. Salerno, 481 U.S. 739

(1987); McNary v. Hartian Refugee Ctr., Inc., 498 U.S. 479

(1991); INS v. Nat'l Ctr. for Immigrants’ Rights, 502 U.S.

183 (1991); and Reno v. Arab-Am. Anti-Discrimination

Comm., 525 U.S. 471 (1999).

The ABA appears as amicus curiae in this proceeding

because the questions presented have serious implications

for the fair administration of justice and, in particular,

for the constitutional and statutory rights of respondents

to a timely determination of the reasonableness of their

detention. Because these constitutional and legal questions

are significant and substantially impact the legal justice

system---in which the ABA maintains a fundamental

interest—the ABA respectfully submits this brief.

6

SUMMARY OF ARGUMENT

The ABA submits this amicus brief for the limited

purpose of describing its experience and that of the

federal courts regarding efforts to protect immigrant

detainees from unconstitutionally prolonged detention,

and why this experience supports the Court of Appeals’

determination to interpret the relevant statutes as

fixing a time limit by which hearings must be conducted.

The ABA agrees with the Court of Appeals that the

status quo of relying on immigrants to challenge their

detention period case-by-case—-typically through habeas

petitions—has led to serious due process problems. Many

immigrants have been detained for years under 8 U.S.C.

§§ 1224(b), 1226(c), or 1226(a) without a bond hearing to

determine the lawfulness of their detention. The Court of

Appeals’ approach of interpreting the statutes to inelude

a time limit by which the Government must conduct such

hearings after the immigrant is first detained best avoids

detention that violates an immigrant’s due process rights.

Decades of experience with individual cases in the Ninth

‘ireuit have confirmed that—absent a temporal limit—

the Government has not provided immigrants a timely

hearing on whether their continued confinement was

justified based on flight risk and danger.

Because due process protections apply to immigration

detention, the Government must, within a reasonable time,

justify continued confinement. Specifically, it must show,

at a hearing before a neutral decision maker, that the

particular detainee presents a sufficient risk of danger

or flight to outweigh their constitutionally protected

liberty interests. Where, as here, Congress does not

expressly provide the specific timing and method by which

7

detained immigrants can test the legal basis for their

detention, the canon of constitutional! avoidance requires

the Court to construe the applicable statutes to provide

some means of testing whether detention is justified.

Under the doctrine of constitutional avoidance, the Court

interprets an ambiguous statute in a manner that avoids

serious constitutional problems. Where Congress does

not expressly set a time limit or establish a procedure

for the Government to justify continued detention, the

courts must construe the statutes in a manner that

ensures compliance with the Constitution’s due process

requirements.

The Court of Appeals correctly determined that the

rules of statutory construction, as informed by the Due

Process Clause and prior case law, require that a hearing

be granted to respondents within six months of their

detention to determine whether they present a danger or

a flight risk. The extensive history of these proceedings

confirms that, absent such a deadline for the Government

to conduct a hearing, individuals who may well be entitled

to release are confined to languish in prison-like conditions

for years. The Due Process Clause requires a bright-line

rule fixing the period by which the Government must

demonstrate at a bond hearing that continued detention

is required because of an issue of safety or because the

detainee presents an ongoing flight risk.

The case-by-case approach for evaluating the

reasonableness of an immigrant’s detention has resulted

in unreasonably long and unpredictable detentions in

the circuits that have adopted this kind of rule. These

decisions typically depend more on the detention location

and docket size of the court rather than on any consistent

set of principles.

8

This Court has previously approved a bright-line

rule for assessing when detention of individuals with final

orders becomes presumptively unreasonable, and has also

approved bright-line rules in other contexts. Zadvydas v.

Davis, 533 U.S. 678, 699-701 (2001); Clark v. Martinez,

543 U.S. 371, 386 (2005); see e.g., Cheff v. Schnackenberg,

384 U.S. 373, 380-81 (1966) (““Schnackenberg”) (plurality

opinion). The ABA thus urges this Court to affirm the

use of a bright-line rule here to require bond hearings

whenever detention under the relevant statutes exceeds

a specific timeframe, and conduct periodic bond hearings

thereafter. Such bright-line rules “provide some degree

of certainty” and “articulate more clearly the boundaries

of what is permissible” under the Constitution. Cornty

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

(“MeLaughiin”) (announcing bright-line presumption

that probable cause hearing within 48 hours is generally

timely under the Fourth Amendment).

Finally, the Government does not meet its due process

obligations by requiring detainees to file petitions for

habeas corpus following their unduly lengthy confinement.

Due process rights and the habeas privilege are distinct.

Indeed, this Court has held that due process requires an

administrative hearing to test detention without regard

to whether a habeas remedy is also available. Even apart

from the objectively inconsistent outcomes resulting from

the case-by-case habeas approach, habeas procedures are

particularly ill-suited to these circumstances for three

reasons. First, ABA practitioners’ experience as wel) as

court data confirm that requiring detained immigrants

to initiate habeas proceedings dramatically reduces their

ability to obtain relief, because they rarely have access to

counsel! to navigate complex habeas procedures. Ingrid

9

V. Eagly & Steven Shafer, A National Study of Access

to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1,

32 (2015) (showing that only 14% of detained immigrants

were represented by counsel). Second, because detainees

cannot file habeas petitions until their claims are ripe,

immigrants must wait until their detention has already

become unreasonable before even beginning the lengthy

habeas process—thus further compounding the delay.

Lastly, as the lower courts have themselves made clear,

reliance on federal courts with crowded dockets necessarily

prolongs detention, given the numbers of detainees and

the cumbersome nature of habeas proceedings.

Absent a bright-line rule requiring a hearing before

an immigration judge automatically after a fixed period

of time, both Government officials and federal courts

will be required to speculate regarding the point at

which any immigrant’s detention has likely become

unreasonable. In Demore, a member of the Court’s

majority observed that an immigrant “could be entitled

to an individualized determination as to his risk of flight

and dangerousness if the continued detention became

unreasonable or unjustified.” Demore, 538 U.S. at 532

(Kennedy, J., concurring). Current U.S. Department

of Justice Executive Office of Immigration Review

(“EOIR”) statistics reveal that, in the thirteen years since

Demore, thousands of immigrants have been subjected

to detention for years, without any determination that

they presented a danger or flight risk. See EOIR, Certain

Criminal Charge Completion Statistics (2016), available

at https://www.justice.gov/sites/default/files/pages/

attachments/2016/08/25/criminal-charge-completion-

statistics-201608.pdf (showing thousands of detainee

removal cases that lasted over 24 months from receipt

10

ty initial case compietion/decision, including in the

period from 2003 to 2015). The Government has thus

proved incapable of safeguarding detained immigrants’

constitutional and statutory rights absent court-

mandated, easily applied procedures. The experience of

ABA practitioners, current EFOIR statistics, the record

below and the documented experience of prolonged

detainees in other circuits all confirm that the concern

expressed in the Deiore concurrence is indeed reality.

Thus, this Court should uphold the Ninth Circuit’s ruling

establishing a bright-line temporal limit on detention,

after which time the Government must provide detainees

with a bond hearing to determine if their continued

detention is warranted by danger or flight risk and must

provide periodic hearings thereafter.

ARGUMENT

1. To Avoid Serious Due Process Concerns, The

Immigration Detention Statutes At Issue Must Be

Read To Require A Hearing To Justify Detention

Within A Reasonable Period

The ABA wil] not repeat issues more thoroughly

addressed by the parties and the Court of Appeals below.

The ABA notes that the Government does not appear to

dispute that immigrants detained pursuant to 8 U.S.C.

$$ 1225(b), 1226(c) and 1226fa) are entitled to due process

protections. See, ¢.g¢., Petr. Br. at 29, 47. This Court held

that immigrants are entitled to freedom from excessive

detention in Zadeydas, 5383 U.S. at 690-96 (“the Due

Process Clause applies to all ‘persons’ within the United

States, including aliens, whether their presence here is

lawful, unlawful, temporary, or permancnt”). In enacting

11

these three statutes, however, Congress did not identify

a mechanism for securing those rights. Although each

of the statutes contains different provisions directed at

different categories of immigrants, none expressly state

the manner in which an individual may vindicate the

constitutional right to an individualized hearing before

a neutral decision maker to test the reasonableness of

prolonged detention. The canon of constitutional avoidance

requires therefore that the courts interpret the statutes

to allow a workable means of conducting such a hearing,

because to interpret the statutes otherwise “would raise

serious constitutional problems.” JNS v. St. Cyr, 533

U.S. 289, 299-300 (2001); see also Zadvydas, 533 U.S.

at 695 (employing the constitutional avoidance canon in

interpreting 8 U.S.C. § 1231(a)(6)). As set forth below,

the means employed by the Court of Appeals—though

less stringent than those recommended and adopted by

the ABA—adequately secure those rights by ensuring

administrative review with clear standards within a fixed

period of time. By contrast, ABA practitioners’ and federal

courts’ experience has demonstrated that the case-by-case

habeas petitions immigrants would be forced to file under

the Government’s interpretation would not adequately

secure the important rights at stake here.

Il. A Temporal Bright-Line Rule Is Necessary And

Appropriate To Provide Uniformity And Clear

Instruction On When The Government Must

Conduct A Bond Hearing

To ensure that immigrants subject to prolonged

detention pending removal proceedings may test the

basis for their detention, the Ninth Circuit appropriately

adopted a bright-line temporal approach, providing a clear

12

and consistent mechanism for such determinations. The

bright-line approach is consistent with the ABA Detention

Standards and related policies, which cal] for a prompt

detention determination based on objective findings that

the immigrant presents a danger to the community or a

substantial flight risk.* These standards further provide

that such review should take place within a set period of

time and be regularly reviewed thereafter. '

A bright-line approach most appropriately ensures

compliance with due process obligations and addresses the

well-founded concerns of ABA member's with the case-by-

base approach— particularly that it produces needlessly

prolonged detention periods and has caused inconsistent

application of the law, resulting in arbitrary detention

3. Report LO7E (showing that the ABA supports “a prompt

hearing” before an immigration judge for immiprants denied

release, “including meaningful administrative review and jucticial

oversight"); Detention Standards, § 11.G (“A noncitizen should only

be detained based upun an objective deterinination that he or she

presents a threat Lo national security or public safety or a substantial

Hight. risk that cannot be mitigated through parole, bond, or a less

restrictive form of custody or supervision.”).

4, Detention Standards, § LIL.AQ) (“The intake, classification,

and placement process should be used by DHS/ICE to determine

whether a noncitizen should be released, placed in an alternative-to-

detention (ATD) program or detained.”); rd. at § IT].D ("Tn addition to

assessing indivichuals in the initial intake process, DHS/ICE should

regularly review its placement and classification decisions to ensure

that resklients are (a) Detained for the minimum time necessary;

(hb) Not detained indefinitely; (c) Reclassified and, if appropriate,

transferred te another kind of facility; and (d) Released if detention is

no longer appropriate. The initial review ofa resident's classification

and placement should he performed ne more than four weeks after

4 resident hus entered a factlity.”).

13

determinations.® By contrast, the bright-line approach

similar to the one adopted by this Court in Zadvydas and

Clark, and as adopted by the Ninth Circuit, is better suited

to achieve due process requirements, and is consistent

with this Court’s precedent.

Jurisdictions that have applied a case-by-case,

multifactor test have experienced inconsistent and

irreconcilable results that compound, rather than resolve,

due process concerns. By contrast, the experience of

jower courts and this Court in analogous contexts has

demonstrated that a bright-line temporal rule is easier to

administer and monitor, and gives both the Government

and the immigrant fair opportunity to be heard by an

administrative officer with appropriate expertise.

5. In addition to preventing arbitrary detention, a bright-

line rule helps prevent the normalization of prolonged detention,

which itself compounds delays by producing institutional

apathy. See Institute of Judicial Administration, American Bar

Association, Juvenile Justice Standards: Standards Relating

to Interim Status 12 (1979) (recognizing that delay in juvenile

courts “tend[s} to institutionalize and legitimate the unwarranted

detention that already exists”) (citing Patricia Wald, Pretrial

Detention for Juveniles, in Prrsiine Jvsrice row THe CuieD 119,

126-27 (Margaret K. Rosenheim ed., 1976)), aeaifadle at http://

www.americanbar.org/content/lam/aba/migrated/sections/

criminaljustiee/Publie Documents. Standards_Interim_Statas.

autheheckdam.ndf. Indeed, administrators often favor a bright-line

system because it compels them to address demands that would

otherwise vo unmet. /¢. (“Deadlines and absolute bars te detention

may seem arbitrary, yet it is striking how frequently detention

personnel ask Jur such limitations, realizing that they cannot cope

with an unending stream of detainees.”) (quoting Wald, Prusuins

JUSTICE FOR THE CHILD at 126-27).

14

A. Because The Case-By-Case Approach Gives

Rise To Inconsistent Determinations, It

Results In Arbitrary Detention

The ABA's position in this proceeding draws upon the

actual experience of federal courts that have employed

the case-by-case approach in habeas proceedings to test

the reasonableness of immigrants’ lengthy detention. In

those situations, district courts have been instructed by

their respective circuit courts to evaluate various factors,

including: (1) the total length of detention; (2) the likely

duration of future detention; (3) the likelihood that the

proceedings will end in a final removal order; (4) whether

any delay in the proceedings can be attributed to the

Government or the immigrant; and (5) in the context of a

criminal noncitizen, a comparison between the length and

nature of the current detention and the detention in prison

for the crime that rendered the immigrant removable.’ If

the immigrant prevails in the federal court on his habeas

petition hy demonstrating that the length of his detention

was indeed unreasonable, he is then entitled to a bond

hearing by an immigration judge to determine whether he

nonetheless poses a flight risk or danger to the community.

The standard of “reasonableness” as determined by

these factors provides no uniform guidance as to when a

bond hearing is required. Because of the systemic problem

of prolonged detention, challenges to detention have

repeatedly arisen in the federa) courts, requiring them

6. Sepov. LS. Attorney Gen., 825 F.3d 1199, 1217-19 (11th Cir.

2016); Reid v. Donelan, 819 F.3d 486, 500 (1st Cir. 2016); see also

Farrin R. Anello, Due Process and Teimporal Limits an Mandatory

Detention, 65 Hastings L.J. 363, 396-98 (2014) (isting factors courts

consider to determine “reasonableness” of detention).

-

15

to determine when detention has become “unreasonable.”

Not surprisingly, this has led to widespread confusion and

inconsistent application. See Lora v. Shanahan, 804 F.3d

601, 615 (2nd Cir. 2015) (compiling cases of inconsistent

determinations of reasonableness and concluding “the

pervasive inconsistency and confusion exhibited by district

courts in this Circuit when asked to apply a reasonableness

test on a case-by-case basis weighs, in our view, in favor

of adopting an approach that affords more certainty and

predictability”); Reid, 819 F.3d at 497 (“the approach has

resulted in wildly inconsistent determinations”); Sopo v.

U.S. Attorney Gen., 825 F.3d 1199, 1226 (11th Cir. 2016)

(Pryor, J., concurring in part and dissenting in part)

(“despite the best efforts of judges, courts have been

unable to apply flexible reasonableness standards in a

manner that generates predictable, consistent, and fair

outcomes”); Farrin R. Anello, Dwe Process and Temporal

Limits on Mandatory Detention, 65 Hastings L.J. 363,

395-400 (2014) (analyzing the disparate application of

reasonableness factors in district courts).’

Additionally, under this approach, courts have

expressly expanded the “reasonable” period for detention

to accommodate the size of their immigration dockets.

See Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003) (“A

7. A survey of district courts’ habeas decisions reveals

disparate handling of a number of factual determinations bearing on

reasonableness, including: (i) the effect of applications or appeals the

immigrant files in good faith, Anello, 65 Hastings L.J. at 398-99 nn.

193-94, (ii) the effect of administrative appeals by the Government,

id. at 399-400 nn. 196-201, (iii) the relevance of the expected duration

of future detention, id. at 400 nn. 202-03, and (iv) the relevance of

the immigrant’s likelihood of success in removal proceedings, id. at

400-01 nn. 204-07.

16

bright-line time limitation, as imposed in Zadvydas, would

not be appropriate for the pre-removal perioc; hearing

schedules and other proceedings must have leeway for

expansion or contraction as the necessities of the case

and the immigration judge’s caseload warrant.”); see also

Lora, 804 F.3d at 615-16 (“[W Jhile a case-by-case approach

might be workable in circuits with comparatively small

immigration dockets, the Second and Ninth Circuits

have been disproportionately burdened by a surge in

immigration appeals and a corresponding surge in the

sizes of their immigration dockets.”); Reid, 819 F.3d

at 498 (“Moreover, the federal courts’ involvement is

wastefully duplicative. . . . This inefficient use of time.

effort, and resources could be especially burdensome

in jurisdictions with large immigration dockets.”). The

constitutional reasonableness of spending a year or

more in an immigration detention facility, without being

deemed dangerous or a flight risk, cannot depend on the

location of the detention or the caseload of any particular

judge. See Jackson v. Indiana, 406 U.S. 715, 738 (1972)

(holding that due process requires that “the nature and

duration of commitment bear some reasonable relation

to the purpose”).

Some federal courts applying these factors have

gone so far as to deem routine extensions, such as to

pursue appeals or seek relief from other agencies, to be

grounds to deny habeas relief. Anello, 65 Hastings L.J.

at 399 n.194 (collecting cases). Penalizing an immigrant

for his attorney’s need for additional time to prepare

or to pursue other meritorious relief offends ABA

policies promoting the right to effective assistance of

counse)]. See ABA Model Rules of Professional Conduct,

Rule 1.1 (“Competent representation requires the...

17

thoroughness and preparation reasonably necessary

for the representation.”); see also id., Rule 1.3 emt. 1

(“A iawyer should . . . take whatever lawful and ethical

measures are required to vindicate a client’s cause or

endeavor.”).

To add even further uncertainty, unpredictability,

and inconsistency, the circuits have noted that the

factors articulated are not exhaustive and that there

may be “other factors that bear on the reasonableness

of categorical detention.” Reid, 819 F.3d at 501; Sopo,

825 F.3d at 1218. Without clarifying to some degree of

certainty what constitutes “unreasonable detention,”

courts will continue to apply manifestly inconsistent,

unpredictable, and seemingly arbitrary standards, see

Anello, 65 Hastings L.J. at 398-401, depriving immigrants

of the “protection of the individual against arbitrary action

of government,” which this Court “ha|s] emphasized time

and again [is] ‘the touchstone of due process.” County of

Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (quoting

Wolff v. McDonnell, 418 U.S. 539, 558 (1974)); Antonin

Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L.

Rev. 1175, 1179 (1989) (unpredictability and inconsistency

are “incompatible with the Rule of Law”); Sopo, 825 F.3d at

1225 (Pryor, J., concurring in part and dissenting in part)

(“('T he risk that the case-by-case approach will result in

unpredictable, inconsistent, or arbitrary outcomes itself

raises serious due process concerns”) (quoting Foucha v.

Louisiana, 504 U.S. 71, 80 (1992)).

In short, experience of the federal courts, like that

of ABA practitioners, has confirmed that employing

a case-by-case approach to test the reasonableness of

immigration detention periods actually compounds,

18

rather than resolves, due process concerns. The need

for consistency, certainty, and the fair administration

of constitutional guarantees thus favors a bright-line

rule that allows a Government official to determine

with confidence whether a detainee is entitled to a bond

hearing.“ Cf McLaughlin, 500 U.S. at 56 (“[[]t is important

to provide some degree of certainty so that States and

counties may establish procedures with confidence that

they fall within constitutional] bounds.”); see Sopo, 825 F.3d

at 1226 (Pryor, J., concurring in part and dissenting in

part) (“The clarity of [a six-month bright-line rule] would

benefit not only detained aliens... , but also courts, which

would not have to engage in a weighing of multiple factors

merely to decide whether and when a hearing must be

provided.”).

B. The Court Has Recognized That Bright-Line

Rules Best Protect Detainees’ Constitutional

Rights

Consistent with Zadvydas and Clark, this Court

has favored bright-line rules when determining the

constitutionality of the continued and prolonged detention

of immigrants. In Zadvydas, applying the canon of

constitutional avoidance to post-removal detention,

this Court found it necessary “for the sake of uniform

8. The Government’s concern that a bright-line rule will result

in the filing of frivolous appeals or deliberately dilatory tactics is

unwarranted. The immigration judge can always consider whether

the strength of the detainee’s claim or the detainee’s litigation

conduct affects the reasonableness of granting a bond. See Sopo,

825 F.3d at 1226-28 (Pryor, J., concurring in part and dissenting in

part) (recognizing that “{ulnder the bright-line approach, criminal

aliens are not automatically released after six months”).

19

administration” to set a “presumptively reasonable period

of detention” of six months. Zadvydas, 533 U.S. at 699-701.

The Court found six months to be appropriate because

“Congress previously doubted the constitutionality of

detention for more than six months.” /d. at 701 (adopting

presumption that detention beyond six months constitutes

an unreasonable period of post-removal detention of

removable noncitizens) (citing Juris. Statement of United

States in United States v. Witkovich, O. T. 1956, No. 295,

pp. 8-9); see Clark, 543 U.S. at 386 (2005) (extending

Zadvydas to inadmissible noncitizens).

In Demore, the Court rested its decision upholding

mandatory detention of criminal noncitizens pending

removal proceedings on the limited duration of the

detention. See Demore, 538 U.S. at 513 (authorizing “that

persons such as respondent be detained for the brief period

necessary for their removal proceedings”) (emphasis

added); see zd. at 526 (“[G]overnment may constitutionally

detain deportable aliens during the limited period

necessary for their removal proceedings”) (emphasis

added). One Justice in Demore noted that a detainee “could

be entitled to an individualized determination as to his

risk of flight and dangerousness if the continued detention

became unreasonable or unjustified.” /d. at 532 (Kennedy,

J., concurring). The Court therefore left open whether the

statute authorized prolonged mandatory detention.

In Demore, the Court assumed removal proceedings

last, on average, “roughly a month and a half in the

vast majority” and “about five months in the minority of

cases in which the alien chooses to appeal.” 538 U.S. at

530. In fact, the Government now acknowledges these

assumptions were erroneous, and that a true analysis of

20

the data would have shown that, when there is an appeal,

the immigrant spends an average of more than a year in

detention—-more than double what the Court assumed

in Demore. Petr. Br. 34-35 n.10. Over a decade later, the

Government has failed to decrease detention time, forcing

a detainee pursuing relief to face a significant probability

of spending a year or more in detention. See Rodriguez

v. Robbins, 804 F.3d 1060, 1072 (9th Cir. 2015). Despite

the Government’s failure to rectify the problem, the

current process in place does little to ensure prolonged

detention is met with a required bond hearing. Such

categorical unreasonabieness requires a Zadvydas-style

eategorical safeguard. See Sopo, 825 F.3d at 1230 (Pryor,

J., concurring in part and dissenting in part).

A bright-line rule, as opposed to a case-by-case

approach, would also be consistent with—and would

meaningfully enforce—this Court's directive that, under

the canon of constitutional avoidance, courts should apply

a definite standard that avoids the serious constitutional

problem altogether. See Clark, 543 U.S. at 384 (noting that

the Court is not “free to ‘interpret’ statutes as becoming

inoperative when they ‘approach constitutional limits”).

Simply adopting a reasonableness standard, without

definitive bright-line guidance, amounts to interpreting

the statutes to “authorize detention until it approaches

constitutional limits,” precisely the approach this Court

rejected in Clark. Id.

Even outside the context of Due Process Clause

requirements, this Court has implemented temporal

bright-line rules and presumptions to limit the need for

judicial oversight and to ensure government officials act

within constitutional limits. See McLaughlin, 500 U.S. at.

21

56 (creating a presumption that a probable cause hearing

within 48 hours of arrest will generally comply with the

Fourth Amendment); Schnackenberg, 384 U.S. at 380

(interpreting the Sixth Amendment to require a jury trial

where more than six months of imprisonment is imposed).

In McLaughlin, the Court found it necessary to

clarify a previous holding that the Fourth Amendment

requires a “prompt” judicial determination of probable

cause as a prerequisite to further pretrial detention

after a warrantless arrest. McLaughlin, 500 U.S. at 47

(citing Gerstein v. Pugh, 420 U.S. 103 (1975)). The Court

recognized that its previous standard was too “vague”

to be effective because it failed to provide “sufficient

guidance” to enforce the Fourth Amendment, resulting

in “systemic challenges,” and, in turn, requiring federal

judges to “oversee| | local jailhouse operations.” /d. at 55-56

(“Although we hesitate to announce that the Constitution

compels a specific time limit, it is important to provide

some degree of certainty so that States and counties may

establish procedures with confidence that they fall within

constitutional bounds.”). Therefore, relying on processing-

time data from the Court of Appeals, the Court held that

48 hours is the presumptive time limit for a probable

cause hearing. /d. at 56-57; accord Schnackenberg, 384

U.S. at 380 (holding bright-line six-month sentence rule

was required for “effective administration” of the “petty

offense” exception to the constitutional right to jury trial).°

9. The dissent in Zadvydas suggested that the six-month rule

in Schnackenberg was only “proper ‘under the peculiar power of the

federal courts to revise sentences in contempt cases.’” Zadvydas,

533 U.S. at 712 (Kennedy, J. dissenting) (quoting Schnackenberg,

384 U.S. at 380). Since Schnackenberg, however, the Court has held

the right to jury trial applies to the states through the Fourteenth

22

Similar to the vague standards of “promptness”

in McLaughlin and “petty offense” in Schnackenberg,

a “reasonableness” standard for detentions under

the statutes at issue without a bright-line rule fails

to identify when a bond hearing is constitutionally

required. As demonstrated by the record before this

Court, a reasonableness standard results in ineffective

administration of constitutional rights, and inconsistent,

unpredictable, and arbitrary detention determinations.

The lower courts and the ABA both recognize the need and

appropriateness of a bright-line rule, and such a rule would

be consistent with due process and this Court’s precedent.

The Government has been unable to resolve the problem

of prolonged detention, and a multifactor reasonableness

test will do little to guide the Government’s compliance

with its due process obligations. Therefore, the ABA urges

this Court te adopt a bright-line temporal! rule for when

immigration officials must afford a bond hearing on flight

risk and dangerousness.

Ill. Possible Habeas Relief Does Not Ameliorate The

Government’s Due Process Violations

The Government acknowledges that the Due Process

Clause imposes some temporal limit on detention:

“{ Bjecause longer detention imposes a greater imposition

on an individual, as the passage of time increases a court

may scrutinize the fit between the means and the ends

Amendment, Duncan v. Louisiana, 391 U.S. 145, 162 (1968), and

later applied the same six-month rule to state courts, Baldwin v. New

York, 399 U.S. 66, 73-74 (1970), over which federal courts have no

supervisory power to revise sentences. Therefore, as applied to the

states, the six-month rule embodies the Court’s broader authority to

set bright-line rules for effective enforcement of constitutional rights.

23

more closely.” Petr. Br. at 47 (citing Zadvydas, 533 U.S.

at 690, 701). Having failed over several years to ensure

that detention of immigrants does not extend for an

unwarranted period, the Government now proposes

to use individual habeas claims as a means to test the

reasonableness of the period of detention. /d. Although

the Government asserts unconstitutional applications of

the statutes are rare and could be addressed through

habeas proceedings (see Petr. Br. at 12, 14), neither the

actual experience of courts nor the practical realities of

habeas procedure suggest that such cases are rare, or that

the habeas procedure provides an adequate substitute

for a timely bond hearing before an administrative

hearing officer. Indeed, the experience of ABA member

practitioners has been that the only way to ensure fair

and timely review is through “a prompt hearing before an

Immigration Judge for any alien in removal proceedings

who is denied release with or without bond, including

meaningful administrative review and judicial oversight.”

Report 107E at p. 1.

A. Government Administrative Proceedings Must

Afford Due Process Regardless Of Whether

Habeas Is Also Available

This Court has already recognized that, even where

federal habeas corpus is available, administrative

processes must still safeguard due process rights. For

example, in the context of civil commitment, this Court

has held that due process requires an administrative

process to protect against unreasonable detention,

notwithstanding the availability of habeas review to

challenge such civil commitment. See, e.g., McNeil v.

Director, Patuxent Inst., 407 U.S. 245, 257 (1972) (“It is

24

elementary that there is a denial of due process when a

person is committed or, as here, held without a hearing

and opportunity to be heard.”); Jackson, 406 U.S. at 738

(“At the least, due process requires that the nature and

duration of commitment bear some reasonable relation

to the purpose for which the individual is committed.”);

Parham v. J.R., 442 U.S. 584, 608-17 (1979); see Duncan

v. Walker, 533 U.S. 167, 176 (2001) (observing “federal

habeas corpus review may be available to challenge the

legality of a state court order of civil commitment”).

Most recently, in the context of scrutinizing the

purpose and duration of detaining enemy combatants,

this Court directed use of proceedings with full due

process rights, despite the fact that habeas proceedings

remained available. Thus, in cases relating to detention at

Guantanamo, the Court required an improved set of due

process protections in military trials, notwithstanding

the availability of the writ of habeas corpus to determine

the availability of constitutional protections for these

detainees. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507,

525 (2004) (acknowledging that the Due Process Clause

“informs the procedural contours of (habeas corpus] in

this instance,” but nonetheless setting forth requirements

for hearings separate and apart from habeas, even though

“\a|il agree suspension of the writ has not occurred here”);

cf. Boumediene v. Bush, 553 U.S. 723, 785 (2008) (holding

that habeas must remain available even if detentions

satisfy due process requirements); see also Habeas

Corpis and Due Process, Brandon L. Garrett, 98 Cornell

L. Rev. 47, 54 (2012) (discussing the “longstanding and

consistent treatment of habeas process as independent of

(ue process”); Lee Kovarsky, Custodial and Collateral

Process: A Respouse to Professor Garrett, 98 Cornell L.

Rey. Online 1, 1 (2013).

25

Following this Court’s lead, the circuits have

recognized that habeas review “is in no way the type of

periodic review that due process requires.” J. v. Hansen,

803 F.3d 1315, 1326 (11th Cir. 2015) (“Habeas can be at

most a backstop—a failsafe mechanism, not the sole

process available.”) (citations omitted); Doe v. Gallinot,

657 F.2d 1017, 1023 (9th Cir. 1981) (“No matter how

elaborate and accurate the habeas corpus proceedings . . .

may be once undertaken, their protection is illusory when

a large segment of the protected class cannot realistically

be expected to set the proceedings into motion in the first

place. ...[%] The bare existence of optional] habeas corpus

review does not, of itself, alleviate due process concerns.”).

B. Habeas Has Proved To Be An Ineffective

Remedy

Even if, in some contexts, a habeas proceeding

could theoretically satisfy the Due Process Clause, an

alternative procedure is required where, as here, habeas

does not afford effective due process for a substantial

number of detainees.

Habeas has proved inadequate as a practical matter

for a number of reasons. As discussed above, the case-by-

case “reasonableness” factors that courts apply in habeas

review are nonexclusive and, when applied in isolation,

different courts have produced wildly inconsistent,

unpredictable, and seemingly arbitrary applications.

See Section [L.A supra. Apart from the arbitrariness

inherent in case-by-case determinations, in the ABA’s

experience, the federal habeas process is inherently ill-

suited to prevent immigrants from suffering unreasonably

prolonged detention. First, the ABA’s experience

26

and federal court data confirm that the complexity of

habeas presents an insurmountable barricr to many

detained immigrants, who would effectively be denied

any opportunity for review. Second, habeas procedures

inevitably compound—rather than relieve—the period of

prolonged detention. Third, these petitions consistently

languish on crowded federal court dockets due in part

to the fact that virtually all expertise about the nature

and purpose of confinement reside with administrative

officials, Jeading courts themselves to question their

current role in the process.

As a preliminary matter, requiring a habeas petition

in federal court creates nearly insurmountable hurdles

for the detained immigrant. An unrepresented detainee

unfamiliar with the American legal system and who may

not speak the language is puorly situated to navigate

the complicated procedures of a habeas petition. Reid,

S10 F.3d at 498 (“federal habeas litigation itself is both

complicated and time-consuming, especially for aliens

who may not be represented by counsel”); Lora, 804 F.3d

at 615 (“Adopting a six-month rule... avoids the randuin

outcomes resulting from individual habeas litigation in

which some detainees are represented by counsel and

some are not, and some habeas petitions are adjudicated

in months and others are not adjudicated for years.”);

Sopo, 825 F.3d at 1226 (Pryor, J., concurring in part

and dissenting in part) (“(Cllarity and predictability is

particularly critical in the immigration context, where

detainees frequently lack knowledge of the American

court system; the resources, financial and otherwise, to

obtain an attorney; and the language skills required to

havigate the legal thielket.”) (internal quotations omitted).

27

Detained immigrants also lack meaningful access to

legal assistance while confined. Based on its members’

experience in this context, the ABA has observed that

special efforts are required for immigrants even to “be able

to meet with current or prospective legal representatives

and other legal personnel.” Detention Standards,

§ VII.A(). From 2007 through 2012, in approximately 1.2

million removal cases, only 14% of detained immigrants

were represented by counsel, compared to 66% of non-

detained immigrants. Ingrid V. Eagly & Steven Shafer,

164 U. Pa. L. Rev. at 32; see also EOIR Yearbook 2015,

at E3 (“Many individuals who appear before MOIR are

indigent and cannot afford a private attorney.”). Under the

Government’s approach, the vast numbers of immigrants

who do not or cannot file habeas petitions because

of the real and daunting challenges facing detained

immigrants—whether in the form of language barriers,

literacy barriers, lack of access to legal resources, or

otherwise-—will be denied their due process rights

altogether.

The Government’s approach also necessarily increases

and compounds the period of prolonged detention

among those already held beyond a reasonable period.

Justiciability requirements can prevent immigrants from

even starting the lengthy habeas process until after their

detention has already become unreasonably prolonged,

and may foreclose any relief entirely if the immigrant

files too early. Reid, 81 F.3d at 498 (“| F Jederal courts

are faced with a ‘moving target’ in such cases because

petitioners presumably cannot challenge their detention

until it becomes unreasonable, but, even if the petitioner

prematurely lodges a challenye, the detention may become

unreasonable during the pendency of the claim.”) (citing

28

Diop v. ICE/Homeland Sec., 656 F.3d 221, 227 (3d Cir.

2011)). Thus, a petition may not property be initiated until

after the detention has exceeded reasonable limits, and,

even if successful, merely initiates the administrative

procedure for review of the reasonableness of detention

that the Government should have provided long before.

Once filed, a federal court’s case-by-case analysis

of the overly complex reasonableness factors drains

significant time and resources, translating into further

prolonged detention. experience operating under habeas-

based regimes shows that such cases are lengthy, and

add significantly to already unreasonably prolonged

detentions. Sce, ¢.g., Khalafala v. Kane, 836 F. Supp.

2d 944, 947 (D. Ariz. 2011) (showing approximately two

years and ten months from filing of habeas petition

to district court decision adopting magistrate judge’s

recommendation); Casas-Castrillon v. Dept of Homeland

Sec., 535 F.3d 942, 945 (9th Cir. 2008) (two years from

filing to district court's decision); see also Amicus Brief

of Americans for Immigrant Justice, et al., in Support of

Respondents, Argument, § I11.B (detailing how, after this

Court’s decision in Demore, the mean decision time for a

prolonged detention habeas case was nearly 19 months in

the Eleventh Circuit, over seven and a half months in the

First Circuit, and almost 14 months in the Sixth Cireuit).

Moreover, the prevalence of judicial emergencies in federal

courts presiding over immigration detention centers

confirms that immigrant habeas petitions are not being

timely heard. Coipare Detention Fucility Locator, U.S.

Immigration and Customs Enforcement, https://www.

ice.gov/detention-facilities with Judicial Emergencies,

United States Courts (showing correlation of judicial

emergencies with concentrations of immigration detention

29

centers, including the Eastern District of Texas, which

contains two detention centers and faces three judicial

vacancies and 1,261 weighted filings per judgeship per

year).

Indeed, the Sixth Circuit has raised “a question of

institutional competence” in a system requiring that

“federal courts undertake to supervise the reasonability

of detention only via the habeas process.” See Ly, 351

F.3d at 272. The court observed that immigration officials

are “best situated to know which criminal aliens should

be released, and federal courts are obviously less well

situated to know how much time is required to bring a

removal proceeding to conclusion.” Jd.

The unworkable habeas regime's inherent impediments

to a timely bond hearing regarding flight risk and danger

are incompatible with due process demands. The ABA

has devoted decades to helping the courts provide “a

fair and efficient immigration removal and detention

system.” Detention Standards, § [1.E. Having studied the

practical experience of courts and litigants, the ABA has

overwhelmingly endorsed an administrative approach to

safeguarding against unreasonable detention. To that end,

the ABA has adopted standards—more strict than the

Ninth Circuit’s—calling for the Government to (i) initially

assess whether an immigrant “should be released, placed

in an alternative-to-detention (ATD) program or detained”

(Detention Standards, § [1[.A(1).2); Gi) perform this initial

assessment “no more than four weeks after a resident

has entered a facility” (id. at § LI1.D); and (iii) “regularly

review its placement and classification decisions to ensure

that residents are... {dletained for the minimum time

necessary ...and...|rjeleased if detention is no longer

appropriate” (2d.).

30

A requirement that immigration judges determine

at a bond hearing held at a fixed point in time whether

an immigrant is dangerous or presents a flight risk is an

effective and efficient means of vindicating immigrants’

due process rights. A periodic bond hearing requirement

ensures that habeas fulfills its traditional role as a fail-

safe—rather than the initial means—to prevent unlawful

detention.'”

The ABA in short concludes that the remedy proposed

by the Court of Appeals falls within an appropriate range

of remedies to address the constitutional problems posed

by excessive detention of the immigrants in this case. In

contrast, the Government’s own figures confirm that it has

systematically failed over decades to ensure timely review

of the basis for immigrants’ detention, notwithstanding

the theoretical availability of habeas corpus. Accordingly,

the ABA—whose members have wrestled with immigrant

detention issues for decades—has concluded that an

administrative bond proceeding conducted within some

fixed time period to assess danger and flight risk is

necessary to ensure fidelity to due process principles.

10. See Bowmediene, 553 U.S. at 732, 777 (citing instances in

which Congress provided habeas substitutes but still “preserve[d|

habeas review as an avenue of last resort”); Murtiu-Trigone v. Shiff,

702 F.2d 380, 588 (2d Cir. 1983) (recognizing “[a} habeas corpus

petition is the avenue of last resort, always available to safeguard

the fundamental rights of persons wrongly incarcerated”).

31

CONCLUSION

For the foregoing reasons, amicus ABA urges the

Court to affirm the decision below.

Respectfully submitted,

Of Counsel: Linpa A. KLEIN

JEFFREY L. BLEICH Counsel of Record

JAN R. BARKER AMERICAN Bar ASSOCIATION

PETER Z. STOCKBURGER 321 North Clark Street

BENJAMIN P. HARBUCK Chicago, IL 60654

ANDREW M. LEGOLVAN (312) 988-5000

Dentons US LLP abapresident@americanbar.org

Counsel for Amicus Curiae

American Bar Association