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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0657%3A13. Public record. Not legal advice.