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

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No. 15-1204

In The |

Supreme Court of the Anited States

a ———E

DAVID JENNINGS, et al.,

Petitioners,

ALEJANDRO RODRIGUEZ, et al.,

Respondents.

— ¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

— ——

BRIEF OF AMICI CURIAE

AMERICANS FOR IMMIGRANT JUSTICE, ET AL.

IN SUPPORT OF RESPONDENTS

—_

ANTHONY ENRIQUEZ ALINA DAs

IMMIGRANT DEFENSE PROJECT Counsel of Record

40 West 39th Street WASHINGTON SQUARE

Suite 501 LEGAL SERVICES, INC.

New York, NY 10018 245 Sullivan Street

(212) 725-6422 5th Floor

New York, NY 10012

(212) 998-6430

alina.das@nyu.edu

Counsel for Amici Curiae

COCKLE LEGAL BRIEFS (800) 225.6964

WWW COCKLELEGALBRIEFS COM

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ................ ]

SUMMARY OF ARGUMENT ....... 2

ARGUMENT.. ROLLS ae 5

|. There Is No , elaaiaeae Difference Be-

tween Prolonged Immigration Detention

and Punitive Incarceration .................-....-

Immigration detention operates on a

RINT TIRIIO sisi niisindn ca ccmmctxucnnavasdvaspestadeds

In their own words, immigrants expe-

rience prolonged detention as punish-

Prolonged detention causes grave dep-

rivations of liberty through physical,

mental, and emotional abuse and ne-

The Indeterminate Length Of Prolonged

Immigration Detention Exacerbates Its Pu-

SL ER DES ase ES See ate PE

The indeterminate length of prolonged

detention inflicts sauinete: and =

logical harms .. Be) im iat, de Sore art BM

Coerced th caused a indefi-

nite detention of individuals with sub-

stantial claims to relief is a grave

burden on liberty.................... sah acon

TABLE OF CONTENTS -— Continued

Page

Ill. Only A Bond Hearing Remedies The Un-

constitutional, Prolonged Detention Of

People In Punitive Conditions................... 31

ERTIES SER eR AE lier Ree 36

APPENDIX

Descriptions of Amici Curiae .............................. App. 1

ili

TABLE OF AUTHORITIES

Page

CASES ;

Bd. of Regents of State Colls. v. Roth, 408 US.

Ra ace ate ca ae Pe 2s Reon OS SD ee 2

Boumediene v. Bush, 553 U.S. 723 (2008).................... 2

Davis v. Ayala, 135 S. Ct. 2187 (2015)........................ 15

Demore v. Kim, 538 U.S. 510 (2003) .....................4. 6, 26

In re Medley, 134 U.S. 160 (1890)................:cccceeeeeeeees 15

Lawrence v. Texas, 539 U.S. 558 (2003)...................... 35

Meyer v. Nebraska, 262 U.S. 390 (1923).............0......... 2

Zadvydas v. Davis, 533 U.S. 678 (2001) ............... 26, 33

STATUTES & REGULATIONS

a RS Ne tT ela EE eat ttt te 31

Fk) ERASERS ii SE eRe 31, 32

Exec. Order. No. 13,767: Border Security and

Immigration Enforcement Improvements, 82

Fed. Reg. 8793 (Jan. 25, 2017) ...............:::0--2eeee- 9, 32

OTHER AUTHORITIES

60 Minutes: The 45th President (CBS News

broadcast Nov. 13, 2016), http://Awww.cbsnews.

com/news/60-minutes-donald-trump-family-

melania-ivanka-lesley-stahl/ ..................02:ccccsseeeeeeees 9

TABLE OF AUTHORITIES — Continued

Affidavit of Christina Fialho, Letter from 29

Members of Congress to Sarah Saldana, Di-

rector, Immigration and Customs Enforce-

ment (June 22, 2015), http://chu.house.gov/

sites/chu.house.gov/files/documents/Gerardo _

Corrales_Affidavit_Fialho.pdf ................0.0....000066.

Amanda Sakuma, SCOTUS to Decide if Indefi-

nite Immigrant Detention is Illegal, NBC

News (Nov. 30, 2016), http:/Awww.nbcnews.

com/news/us-news/scotus-decide-if-indefinite-

immigrant-detention-illegal-n689541 ...............

AMNESTY INT'L, JAILED WITHOUT JUSTICE: IMMI-

GRATION DETENTION IN THE USA (2009), http://

www. ee ere

Justice.pdf.... ioe edi

Arnold Giammarco, After 50 Years as a Legal

Immigrant, I Spent 18 Months in Immigration

Detention Without a Bail Hearing, PuB. RADIO

INTL’s THE WorRLD (Nov. 30, 2016), https://

www.pri.org/stories/2016-11-30/after-50-years-

legal-immigrant-i-spent-18-months-immigration-

I orecnciccerinnicesensdhancuscivennstnicuniets

Brief of Americans for Immigrant Justice, et al.,

Jennings v. Rodriguez, No. 15-1204 (filed Oct.

Page

BRR REEIRRRE SEE Rate ee LES BoE See passim

Brief of Social Science Researchers and Profes-

sors, Jennings v. Rodriguez, No. 15-1204 (filed

Ns SG SE rcciserquisnintediccnenisccbuinsicteeiunssbsamnveds

TABLE OF AUTHORITIES — Continued

Brian Bennett, Not Just ‘Bad Hombres’: Trump

is Targeting up to 8 Million People for Depor-

tation, L.A. TIMES (Feb. 4, 2017), http://

www. latimes.com/politics/la-na-pol-trump-

deportations-20170204-story. html ....................

Brief for Appellant, Moreno v. Lynch, 624 F. App’x

531 (9th Cir. 2015) (No. 14-72395)..............0.08.

DANIEL WILSHER, IMMIGRATION DETENTION: LAW,

Hisrory, POLitics 11-14 (2012) .......0000000..

Decl. of Terry Ding of the NYU Immigrant

Rights Clinic (on file with amici).......................

Definite, MERRIAM-WEBSTER, http://www.merriam-

webster.com/dictionary/definite.........................

Democracy Now!, Can the U.S. Detain Immi-

grants Indefinitely? Supreme Court Hears

Case as Trump Prepares for Office, YOUTUBE

(Dec. 2, 2016), https://www.youtube.com/

watch?v=pSz2GX6QaWs&t=356s ................cee

Det. WATCH NETWORK, EXECUTIVE SUMMARY: Ex-

POSE AND CLOSE (2012), http://www.detention-

watchnetwork.org/sites/default/files/reports/

DWN%20Expose%20and%20Close%20Executive

RE AE i AMET AE nS aoe Re

Page

TABLE OF AUTHORITIES - Continued

Elise Foley, Immigrant Freed From 19-Month

Detention: ‘I Treat My Dogs Much Better Than

The Detainees Are Treated’, HUFFINGTON POST

(May 18, 2011), http:/Awww.huffingtonpost.com/

201 1/05/18Ammigrant-freed-from-detention_n_

INU <i.sevecsiseccovwidunesssnndpenincrabisonindeséainttcones

HUMAN RIGHTS FIRST, JAILS AND JUMPSUITS:

TRANSFORMING THE U.S. IMMIGRATION DETEN-

TION SYSTEM — A TWO-YEAR REVIEW (2011),

http://www.humanrightsfirst.org/wp-content/

uploads/pdf/HRF-Jails-and-Jumpsuits-report.

HUMAN RIGHTS FIRST, REDUCING THE IMMIGRA-

TION COURT BACKLOG AND DELAYS (2016), http://

www.humanrightsfirst.org/sites/default/files/

HRF-Backgrounder-Immigration-Courts. pdf ...

HUMAN RIGHTS WATCH, DETAINED AND AT RISK:

SEXUAL ABUSE AND HARASSMENT IN UNITED

STATES IMMIGRATION DETENTION (2010), https://

www.hrw.org/sites/default/files/reports/us08 10

IIIS, eibnddtdienéhascancensestsé coesiss eccssasentazcmess

Ian Urbina & Catherine Rentz, /mmigrants

Held in Solitary Cells, Often for Weeks, N.Y.

TIMES (Mar. 23, 2013), http://www.nytimes.com/

2013/03/24/us/immigrants-held-in-solitary-cells-

often-for-weelkks. html ....................cscccesccsesecsceseess

lan Urbina, Using Jailed Migrants as a Pool of

Cheap Labor, N.Y. Times (May 24, 2014),

https://www.nytimes.com/2014/05/25/us/using-

jailed-migrants-as-a-pool-of-cheap-labor.htm1 ...

Page

inane 21

bass 23

TABLE OF AUTHORITIES — Continued

Kelsey Sheehy, Saga Highlights Kinks in Immi-

grant Detention System, SAN DiEGO TRIB. (Apr.

23, 2011), http:/Awww.sandiegouniontribune.

com/sdut-saga-highlights-kinks-in-immigrant-

detention-201 lapr23-story. html........................

Kristina Shull, Rachel Levenson & Terry Ding,

Last Chance This Term for the Supreme Court

to Stand Up for Immigrants in Detention, THE

HILL: CONGRESS BLOG (Nov. 28, 2016), http://

thehill.com/blogs/congress-blog/judicial/307662-

jennings-v-rodriguez-last-chance-this-term-

SOEENO-SUDTOMO-COUTE 2.00000 ccccerccsccrssccseesessoeses

Matt Zapotosky, The Justice Department Closed

this Troubled Private Prison. Immigration Au-

thorities are Reopening It. WASH. Post (Oct.

27, 2016), https:/~www.washingtonpost.com/

world/national-security/the-justice-department-

closed-this-troubled-private-prison-immigration-

authorities-are-reopening-it/2016/10/27/6e52855e-

9b87-11e6-a0ed-ab0774cleaa5_story.html?utm_

eo ieamiaiodasoadees

Memorandum from Sally Q. Yates, Deputy Att’y

Gen., to Acting Dir., Fed. Bureau of Prisons,

Reducing our Use of Private Prisons (Aug. 18,

2016), https:/Awww.justice.gov/opa/file/8863 1 1/

download ........ pA cio MEN Pate A Sir Fhe 2

Page

cae

Vill

TABLE OF AUTHORITIES — Continued

Page

MIGRATION AND REFUGEE SERVICES/UNITED STATES

CONFERENCE OF CATHOLIC BISHOPS AND THE

CENTER FOR MIGRATION STUDIES, UNLOCKING

HUMAN DiGniTy: A PLAN TO TRANSFORM THE

U.S. IMMIGRANT DETENTION SYSTEM 9 (2015),

http://www.usccb.org/about/migration-ancd-refugee-

services/upload/unlocking-human-dignity.pdf ........

N.J. ADVOCATES FOR IMMIGRANT DETAINEES, ET

AL., ISOLATED IN ESSEX: PUNISHING IMMIGRANTS

THROUGH SOLITARY CONFINEMENT (2016), https://

www.afsc.org/sites/afsc.civicactions.net/files/

documents/Isolated%20in%20Essex%20Full%20

III SSIES pinsccscecndesexnesscswrasesnvascsntecs 16,

N.Y. Univ. SCHOOL OF LAW IMMIGRANT RIGHTS

CLINIC, ET AL., LOCKED Up But Not ForGot-

TEN: OPENING ACCESS TO FAMILY & COMMUNITY

IN THE IMMIGRATION DETENTION SYSTEM (2010),

https://www.afsc.org/sites/afsc.civicactions.net/

files/documents/LockedUpFINAL. pdf....................

NAtT’L IMMIGRANT JUSTICE CENTER & PHYSICIANS

FOR HUMAN RIGHTS, INVISIBLE IN ISOLATION:

THE USE OF SEGREGATION AND SOLITARY CON-

FINEMENT IN IMMIGRATION DETENTION (2012),

http://static. prisonpolicy.org/scans/Invisible.

NATIONAL PRISON RAPE ELIMINATION COMMISSION,

NATIONAL PRISON RAPE ELIMINATION COMMIS-

SION REPORT (2009), https://www.ncjrs.gov/pdf

te pent te ta alee As Litendss AE mee

TABLE OF AUTHORITIES — Continued

Nina Bernstein, Health Care at New Jersey Jail

Is Substandard, Watchdog Groups Say, N.Y.

Times (May 11, 2016), https:/Awww.nytimes.

com/2016/05/12/nyregion/health-care-at-new-

jersey-immigrant-jail-prompts-claim.htm!?_r=0 ...

Oversight of the Executive Office for Immigra-

tion Review: Hearing Before the Subcomm. on

Immigration and Border Security of the H.

Comm. on the Judiciary, 114th Cong. 5-6

(2015) (statement of Juan P. Osuna, Director,

Executive Office for Immigration Review)........

Peter S. Smith, The Effects of Solitary Confine-

ment on Prison Inmates: A Brief History and

Review of the Literature, 34 CRIME & Just. 441

EERE see sso SESE R NAG SEN a5 EPS Te

PHYSICIANS FOR HUMAN RIGHTS, BURIED ALIVE:

SOLITARY CONFINEMENT IN THE U.S. DETENTION

SysTEM (2013), https://s3.amazonaws.com/PHR_

Reports/Solitary-Confinement-April-2013-full.

pdf. Peper reeererrrerrrrrerrerr ttre titre rr tt rt tit ir trier

Presidential Memorandum Regarding the Hir-

ing Freeze, 82 Fed. Reg. 8493 (Jan. 23, 2017)...

Press Release, Am. Civil Liberties Union, ACLU

of Texas Today Files Federal Lawsuit on Be-

half of Women Assaulted at T. Don Hutto De-

tention Center (Oct. 19, 2011), https://www.aclu.

org/news/documents-obtained-aclu-show-sexual-

abuse-immigration-detainees-widespread-

national-problem?redirect=immigrants-rights-

prisoners-rights-prisoners-rights/documents-

obtained-aclu-show-sexual-abuse.....................

Page

avers 18

as 16

TABLE OF AUTHORITIES — Continued

Richard Fausset, Could He be a Good Ameri-

can?, L.A. TIMES (June 4, 2011), http://www.la

times.com/nation/la-na-deportation-story-htm]

PRE ARERESSE RGSS Es elroy He ROE OE

Robert Warren, Ctr. for Migration Stud., US Un-

documented Population Drops Below 11 Million

in 2014, with Continued Declines in Mexican

Undocumented Population, 4 J. ON MIGRATION

AND Hum. SEcurItTy 1 (2016), http://dx.doi.org/

10.14240/pmhS.V4i1.58 ooo. ccccccccseseesceseoeseseeees

Ryan Devereaux, A Mother’s Appeal to the Su-

preme Court: “I Had to Fight to Stay in the

Country For My Children,” THE INTERCEPT

(Nov. 30, 2016), https://theintercept.com/2016/

11/30/i-had-to-fight-to-stay-in-the-country-for-

my-children-a-mothers-deportation-appeal-

before-the-supreme-court/ .....................66..0000000,

Second Brief of Petitioners, Jennings v. Rodri-

Page

guez, No. 15-1204 (filed Jan. 31, 2017)........... passim

SOUTHERN POVERTY LAW CENTER, ET AL., SHADOW

PRISONS: IMMIGRANT DETENTION IN THE SOUTH

(2016), https:/Awww.splcenter.org/sites/default/

files/jp_shadow_prisons_immigrant_detention_

Stuart Grassian, Psychiatric Effects of Solitary

Confinement, 22 WasH. U. J.L. & Pot’y 325

TABLE OF AUTHORITIES — Continued

Talking Eyes Media, Prolonged Detention: A

Short Documentary on the Landmark ‘Lora’

Case, YOUTUBE (Nov. 26, 2016), https://www.

youtube.com/watch?v=N-ljluidWil ...................

Tianyin Luo and Sean Lai McMahon, Victory De-

nied: After Winning On Appeal, An Inadequate

Return Policy Leaves Immigrants Stranded

Abroad, 19 BENDER’S IMM. BULLETIN 1061

ys a IEE aeispbiciseeddcirenusacevsiicsemnadumpinsereriomness

Tizinia Rinaldi, She Fled Abuse in Mexico, and

Now This Trans Woman Says She Was Abused

in Immigration Detention Too Pub. Radio Int'l’s

The World (Apr. 14, 2016), https://www.pri.

org/stories/2016-04-14/after-almost-three-years-

immigration-detention-and-abuse-transgender-

Tomi Kilgore, Trump Presidency is Providing a

Great Opportunity to Buy Prison Stocks, MAR-

KETWATCH (Jan. 20, 2017), http://www.market

watch.com/story/trump-inauguration-highlights-

best-opportunity-to-buy-prison-stocks-in-years-

i ikdecsnccccoioncisapevensctmmeseshoumussomensessnences

Transactional Records Access Clearinghouse,

Syracuse Univ., Average Time Pending Cases

Have Been Waiting in Immigration Courts,

http://trac.syr.edu/phptools/immigration/court_

backlog/apprep_backlog_avgdays.php...............

Page

senses 9

TABLE OF AUTHORITIES — Continued

Transactional Records Access Clearinghouse,

Syracuse Univ., Immigration Court Backlog

Tool, http://trac.syr.edu/phptools/immigration/

fe EE eet Ee 3 BG Ri a

U.S. Dep’t OF HOMELAND SEc., HOMELAND SEC.

ADVISORY COUNCIL, REPORT OF THE SUBCOMMIT-

TEE ON PRIVATIZED IMMIGRATION DETENTION FA-

CILITIES 6 (2016), https://Awww.dhs.gov/sites/

default/files/publications/DHS%20HSAC%20

PIDF%20Final%20Report. pdf. .................0....ccceecees

VERA INSTITUTE OF JUSTICE, ANALYSIS OF LORA

BonpD Data: NEW YORK IMMIGRANT FAMILY

UNITY PROJECT (2016), http://www. law.nyu.edu/

sites/default/files/upload_documents/Vera%20

Institute_Lora%20Bond%20Analysis Oct%20

ee a,

Yana Kunichoff, “Voluntary” Work Program Run

in Private Detention Centers Pays Detained

Immigrants $1 a Day, TRuTHOUT (July 27,

2012), http//www.truth-out.org/news/item/10548-

voluntary-work-program-run-in-private-detention-

centers-pays-detained-immigrants-1-a-day ........

Page

1.200

]

STATEMENT OF INTEREST

Amici curiae are community groups, immigrant

rights organizations, law clinics, and legal service pro-

viders whose members and clients face the severe

consequences of prolonged detention without bond

hearings.’ We have a profound interest in ensuring

that the voices of our members and clients are included

in the resolution of the legal issues in this case.

We previously submitted a brief describing the

harsh and perverse effects of prolonged detention

on our members and clients, their families and commu-

nities, and the immigration system that Congress

designed to maintain family unity and offer humani-

tarian relief. Brief of Americans for Immigrant Justice,

et al., Jennings v. Rodriguez, No. 15-1204 (filed Oct. 24,

2016) (hereinafter “AIJ Br.”).2 The Court then re-

quested additional briefing on the constitutionality of

detention beyond six months without a bond hearing.

We now submit this additional brief to illustrate the

profound liberty interests at stake when individuals

with strong incentives to appear in court are detained

for months and years in prison-like conditions.

onus o ou

‘ Amici state that no counsel for a party authored any part

of this brief, and no person or entity other than amici and their

counsel made a monetary contribution to the preparation or sub-

mission of this brief. Both petitioners and respondents have con-

sented to the filing of this brief pursuant to Rule 37.3(a).

* An annotated version of our previously filed brief is availa-

ble at https://www.prolongeddetentionstories.org.

SUMMARY OF ARGUMENT

“The Framers viewed freedom from unlawful re-

straint as a fundamental precept of liberty... .”

Boumediene v. Bush, 553 U.S. 723, 739 (2008). That lib-

erty “‘denotes not merely freedom from bodily re-

straint but also the right of the individual . . . to engage

in any of the common occupations of life, . . . to marry,

establish a home and bring up children, . . . and gener-

ally to enjoy those privileges long recognized . . . as es-

sential to the orderly pursuit of happiness by free

men.’” Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S.

390, 399 (1923)).

Prolonged detention gravely burdens these liber-

ties. It inflicts not only bodily restraint, but also long-

term separation from family and gainful employment;

imposes physical, mental, and emotional harms that

are materially indistinguishable from punishment;

and coerces people into accepting erroneous deporta-

tion. Given the substantial liberty interests at stake in

this case, a bond hearing is the constitutionally proper

protection of due process.

Denied a day in court for a judge to determine if

their detention is justified, individuals in prolonged de-

tention who present neither a flight risk nor a danger

languish in prisons and jails for months or even years.

See AlJ Br. at 3-17. Their prolonged detention strips

them of basic human dignities in a manner that is,

from a practical viewpoint, identical to punitive incar-

ceration. Individuals are locked in cells, separated

from their families, and thrown into solitary confine-

ment for minor infractions. They lose their jobs and

homes, and their families pay the price. No other civil

or criminal confinement permits such treatment with-

out an individualized hearing at some fixed point in

time.*

The government does not dispute that the Consti-

tution demands due process protection for the liberty

of at least some people trapped in prolonged manda-

tory immigration detention. But it urges this Court to

limit any such protection to the “extraordinary case”:

detentions of some indeterminate length between

three and twenty years. Second Brief of Petitioners at

46, Jennings v. Rodriguez, No. 15-1204 (filed Jan. 31,

2017) (hereinafter “Gov’t Second Br.”); Transcript of

Oral Argument at 12-15. Even then, it would place the

° See Second Brief of Respondents at 12, Jennings v. Rodri-

guez, No. 15-1204 (filed Jan. 31, 2017) (citing cases).

* JUSTICE KAGAN: ... Could the Court simply say, well,

three years is too long? It doesn’t really matter what kind of evi-

dence you have; three years is too long.

GENERAL GERSHENGORN: So, Your Honor, I — I think

our position in that — in that situation would be that as long as

the government was diligently — we — 1 mean, if it were 20 years,

I mean, we could go on, then, of course, that might be a concern

that, in fact, we were no longer trying to effectuate removal. I

think we would make the argument in the three years Your Honor

was hypothesizing, but that’s not the situaticn we have|.| It’s been

steady —

JUSTICE BREYER: You said, well, 20 years would be dif-

ferent, and — and —

GENERAL GERSHENGORN: I did it — to be clear, Your

Honor, I did it as a matter of constitutional law.

burden of protection on the injured party, requiring a

detained individual — more often than not unrepre-

sented and with limited English-language proficiency

— to file and litigate a habeas petition in federal court

simply to seek an individualized hearing on whether

her detention is justified. The government defends its

position in part by pointing to the process afforded to

immigrants in removal proceedings generally, and ar-

guing that those who are detained hold the keys to

their own cells if they would only give up their claims

and accept deportation.® Gov’t Second Br. at 13, 34-35.

The government’s position gravely undervalues

the serious liberty interests at stake in this case. It

* According to the government, individuals who have final

orders of removal — i.e., who have already been detained pending

a decision of the Immigration Judge and the Board of Immigra-

tion Appeals — may then agree to their deportation (thus securing

their freedom from immigration detention) and litigate a federal

appeal abroad. Gov’t Second Br. at 34. This solution provides no

remedy for the months and years of detention that may occur

prior to a final order of removal, nor does it guarantee that a per-

son who is deported pending a federal appeal will be able to return

to the US.

In fact, the government, as a matter of policy, will not pay for

the return of indigent petitioners who prevail on federal appeals

after they are removed; and any assurance of the possibility of

return is contingent on the vagaries of the administration’s inter-

nal, unenforceable policies, a risk that detainees would take at

their peril. See Tianyin Luo and Sean Lai McMahon, Victory De-

nied: After Winning On Appeal, An Inadequate Return Policy

Leaves Immigrants Stranded Abroad, 19 BENDER’S IMM. BULLETIN

1061 (Oct. 1, 2014). In any event, the significant due process

harms of prolonged detention occur far before a final order of re-

moval! is entered, and the government’s solution does not address

these harms.

ignores the unique harms caused by prolonged deten-

tion, above and beyond those caused by one’s place-

ment in removal proceedings. Its position effectively

permits the punitive conditions of prolonged detention

to coerce people into giving up their meritorious

claims.

Below, our clients’ stories illustrate the profound

losses of liberty that the government leaves unmen-

tioned. Their stories, emblematic of countless others

across decades of mandatory detention, have taught us

that without bond hearings, people who are not flight

risks or dangers will languish and suffer in detention

for months or years on end.

e—

ARGUMENT

I. There Is No Meaningful Difference Be-

tween Prolonged Immigration Detention

and Punitive Incarceration.

An honest evaluation of the liberty at stake in pro-

longed mandatory detention requires a clear-eyed as-

sessment of the nature of immigration detention.

Recent changes to the detention system and the day-

to-day reality of detainees challenge the assumption

that it is merely non-punitive civil incapacitation. In

fact, prolonged mandatory detention is materially

indistinguishable from punitive incarceration, and is

deserving of robust due process protections. Today’s de-

tention centers operate on a penal model, are experi-

enced by immigrants as punishment, and cause grave

deprivations of liberty for immigrants trapped in the

detention system for months or years.

A. Immigration detention operates on a

penal model.

The use of immigration detention as an enforce-

ment tool has expanded to an unprecedented scope

since this Court’s decision in Demore v. Kim over a dec-

ade ago. 538 U.S. 510 (2003). In spite of historic lows in

undocumented immigration,® since 2011 the govern-

ment has detained over 400,000 immigrants annually,

roughly double the number at the time Demore was de-

cided.’ Immigration court caseloads have similarly

skyrocketed for individuals and families alike, causing

record delays in the adjudication of their claims and

further extending the length of detention. A 2016

® Robert Warren, Ctr. for Migration Stud., US Undocumented

Population Drops Below 11 Million in 2014, with Continued De-

clines in Mexican Undocumented Population, 4 J. ON MIGRATION

AND Hum. Security 1, 3 (2016), http://dx.doi.org/10.14240/jmhs.

v4il.58.

7 MIGRATION AND REFUGEE SERVICES/UNITED STATES CONFER-

ENCE OF CATHOLIC BISHOPS AND ‘THE CENTER FOR MIGRATION STUD-

1z8S, UNLOCKING HUMAN DIGNITY: A PLAN TO TRANSFORM THE U.S.

IMMIGRANT DETENTION SYSTEM 9 (2015), http://www.usccb.org/

about/migration-and-refugee-services/upload/unlocking-human-

dignity. pdf.

’ The backlog in immigration courts currently stands at over

533,000 cases, a historical high. Transactional Records Access

Clearinghouse, Syracuse Univ., /mmigration Court Backlog Tool,

http://trac.syr.edu/phptools/Aimmigration/court_backlog/. As a re-

sult, a case now takes on average 678 days — close to two years —

to resolve, and in some jurisdictions the average wait time is

report estimated that in order to bring the average

case-processing time to under one year by 2023, an ad-

ditional 150 immigration judges would need to be

hired.’ Instead, case-processing times are certain to

lengthen due to the recent imposition of “a freeze on

the hiring of Federal civilian employees to be applied

across the board in the executive branch” — preventing

the hiring of additional immigration judges."

As detention has expanded, it has become increas-

ingly penal in nature. Our nation’s first immigration

detention centers were run by the federal government

for the purpose of processing and screening newcomers

to our shores.'' But today, the immigration detention

system consists of more than 200 prisons and jails op-

erating on a penal model — ninety percent of which are

edging towards three years. Transactional Records Access Clear-

inghouse, Syracuse Univ., Average Time Pending Cases Have Been

Waiting in Immigration Courts, http://trac.syr.edu/phptools/immi-

gration/court_backlog/apprep_backlog_avgdays.php.

* HuMAN RicHTS First, REDUCING THE IMMIGRATION COURT

BACKLOG AND DELAYs (2016), http://www.humanrightsfirst.org/sites/

default/files/HRF-Backgrounder-Immigration-Courts. pdf.

82 Fed. Reg. 8493 (Jan. 23, 2017). During the previous immigra-

tion court hiring freeze, the case backlog increased by more than

298,000 over four years. See Oversight of the Executive Office for

Immigration Review: Hearing Before the Subcomm. on Immigra-

tion and Border Security of the H. Comm. on the Judiciary, 114th

Cong. 5-6 (2015) (statement of Juan P. Osuna, Director, Executive

Office for Immigration Review).

1) DANIEL WILSHER, IMMIGRATION DETENTION: LAw, HIsToRY,

Pouirics 11-14 (2012).

run by private prison corporations or county correc-

tional departments.” In some of these facilities, immi-

grants are held with individuals awaiting criminal

trial or serving criminal sentences, and all are subject

to onerous restraints on their liberties.'*? Only months

ago, the Department of Homeland Security (“DHS”)

converted the same private prisons that the Depart-

ment of Justice (“DOJ”) had recently abandoned into

immigration detention facilities.'* The DOJ had closed

the private prisons after announcing its intention to

“reducle] — and ultimately end[| — [DOJ’s] use of pri-

vately operated prisons,” due in part to their failure to

“maintain the same level of safety and security” as

Federal Bureau of Prison facilities.'®

i eee

’ U.S. Dep’t oF HOMELAND SkEc., HOMELAND SEC. ADVISORY

COUNCIL, REPORT OF THE SUBCOMMITTEE ON PRIVATIZED IMMIGRA-

TION DETENTION FACILITIES 6 (2016), https://www.dhs.gov/sites/

default/files/publications/DHS%20HSAC%20PIDF%20Final%20

Report.pdf.

'S AMNESTY INT'L, JAILED WITHOUT JUSTICE: IMMIGRATION DE-

TENTION IN THE USA 37 (2009), http://www.amnestyusa.org/uploads/

JailedWithoutJustice. pdf.

“ Matt Zapotosky, The Justice Department Closed this Trou-

bled Private Prison. Immigration Authorities are Reopening It.

Wash. Post (Oct. 27, 2016), https://www.washingtonpost.com/

world/national-security/the-justice-department-closed-this-troubled-

private-prison-immigration-authorities-are-reopening-it/20 16/10/27/

6e52855e-9b87-11e6-a0ed-ab0774cleaa5_story.html?utm_term=.

a2lcc6889cac.

® Memorandum from Sally Q. Yates, Deputy Att’y Gen., to

Acting Dir., Fed. Bureau of Prisons, Reducing our Use of Private

Prisons (Aug. 18, 2016), https://www.justice.gov/opa/file/8863 1 1/

download.

We now stand at the precipice of exponential

growth in this privatized, punitive model of immigra-

tion detention. The executive branch has recently com-

mitted to deporting or “incarcerat[ing]” 2 to 3 million

people.'® To accomplish this, it has ordered DHS to “al-

locate all legally available resources to ... establish

‘contracts to construct, operate, or control facilities to

detain aliens... .”"’ Arecent memorandum to top DHS

officials lays out a projected doubling of the daily im-

migration detainee population to 80,000.* Investors

project robust growth in the private prison industry,

driven chiefly by the continued expansion of immigra-

tion detention.”

Meanwhile, inside nominally “civil” detention

centers throughout the country, immigrants pass

months and years behind bars and in prison jumpsuits,

shackled during visitation and court, subjected to

surveillance and strip searches, and referred to by

'6 60 Minutes: The 45th President (CBS News broadcast Nov.

13, 2016), http://www.cbsnews.com/news/60-minutes-donald-

trump-family-melania-ivanka-lesley-stah//.

‘7 Exec. Order. No. 13,767: Border Security and Immigration

Enforcement Improvements, 82 Fed. Reg. 8793 (Jan. 25, 2017).

18 Brian Bennett, Not Just ‘Bad Hombres’: Trump is Target-

ing up to 8 Million People for Deportation, L.A. TIMES (Feb. 4,

2017), http:/Awww.latimes.com/politics/la-na-pol-trump-deportations-

20170204-story.html.

18 Tomi Kilgore, Trump Presidency is Providing a Great Op-

portunity to Buy Prison Stocks, MARKETWATCH (Jan. 20, 2017),

http://www.marketwatch.con/story/trump-inauguration-highlights-

best-opportunity-to-buy-prison-stocks-in-years-2017-01-19.

numbers.”° Access to the things we take for granted —

movement, fresh air, and even human touch - is re-

stricted or denied altogether.*’ Families bear the emo-

tional and financial brunt of months and years of

separation from their loved ones.

B. In their own words, immigrants experi-

ence prolonged detention as punish-

ment.

The deprivations of liberty inherent in immigra-

tion detention are even more severe for those trapped

in prolonged mandatory detention. Some of their

stories were profiled in our previous brief: Warren

20 See, e.g., AMNESTY INT'L, JAILED WITHOUT JUSTICE: IMMIGRA-

TION DETENTION IN THE USA 37-39 (2009), http:/;Awww.amnesty

usa.org/pdfs/JailedWithoutJustice.pdf; Nat’L IMMIGRANT JUSTICE

CENTER & PHYSICIANS FOR HUMAN RIGHTs, INVISIBLE IN ISOLATION:

THE USE OF SEGREGATION AND SOLITARY CONFINEMENT IN IMMIGRA-

TION DETENTION 10-11 (2012), http://static. prisonpolicy.org/scans/

Invisible.pdf; HUMAN RIGHTS FIRST, JAILS AND JUMPSUITS: TRANS-

FORMING THE U.S. IMMIGRATION DETENTION SYSTEM — A TWO-YEAR RE-

view 7-10 (2011), http://www.humanrightsfirst.org/wp-content/

uploads/pdf/HRF-Jails-and-Jumpsuits-report. pdf.

21 Visitation, including “contact visits,” is highly restricted in

immigration detention. See, e.g., N.Y. Univ. ScHOOL OF Law ImMI-

GRANT RIGHTS CLINIC, ET AL., LOCKED Up But Not FORGOTTEN:

OPENING Access TO FamtLy & COMMUNITY IN THE IMMIGRATION

DETENTION SysTEM 9-12 (2010), https://www.afsc.org/sites/afsc.

civicactions.net/files/documents/LockedUpFINAL.pdf. Some facilities

only permit visitation through video, and several facilities have

limited or no access to outdoor recreation. See, e.g., DET. WATCH

NETWORK, EXECUTIVE SUMMARY: EXPOSE AND CLOSE 3 (2012),

http://www.detentionwatchnetwork.org/sites/default/files/reports/

DWN%20Expose%20and%20Close%20Executive%20Summary. pdf.

Hilarion Joseph (detained 3.2 years), Astrid Morataya

(2.5 years), Emannuel Boukari (2.5 years), Arnold

Giammarco (1.5 years), Juan Santos (1.1 years), Brayan

Fernandez (7 months), Sayed Omargharib (1.8 years),

Lorenzo Carrillo (3 years), Ahilan Nadarajah (4.4 years),

Maria Alvarez (7 months), Leandro Placencia de la

Rosa (1.8 years), Horatio Gomez (2.5 years), Patrick

Thaxter (2.9 years), and Sylvester Owino (9 years).

Below, some of these individuals describe their ex-

perience in immigration detention in their own words.

Their stories are sadly commonplace, and are followed

by others that show how prolonged immigration deten-

tion is a harshly penal system that carries grave dep-

rivations of liberty for the individuals trapped within

it.

“It was a complete nightmare. The hardest part was be-

ing away from my wife and daughter, who was two

years old at the time. Watching my daughter behind a

pane of glass, I still remember her crying that she

wanted me to hold her, she wanted me to play with her

like I used to. But I couldn't.”

— Arnold Giammarco”

Mr. Giammarco is a lawful permanent resident of fifty

years, a husband and father to U.S. citizens, and a U.S.

22 Arnold Giammarco, After 50 Years as a Legal Immigrant, 1

Spent 18 Months in Immigration Detention Without a Bail Hear-

ing, Pus. Rapio INT’L’s THE WorRLD (Nov. 30, 2016), https://www.

pri.org/stories/20 16-11-30/after-50-years-legal-immigrant-i-spent-

18-months-immigration-detention-without.

Army and National Guard veteran.” Read Mr. Giam-

marco’s first-hand account about the impact of his

eighteen months of prolonged detention, which con-

vinced him to abandon a good-faith claim to citizenship

and accept an order of deportation. He and his family

continue to fight for the chance to be reunited: https://

www. pri.org/stories/2016-11-30/after-50-years-legal-

immigrant-i-spent-18-months-immigration-detention-

without.

“I only saw my kids three times in the years I was locked

away. A five-minute phone call with them cost twenty-

five dollars. What can you really tell your family in five

minutes? I was just a single mom trying to survive and

keep my family united. I'll never get back that time with

my children.”

— Astrid Morataya”

Ms. Morataya is a lawful permanent resident, a survi-

vor of sexual violence, and mother to three U.S. citizen

23 Id.; see also AlJ Br. at 13-15.

*4 See Ryan Devereaux, A Mother’s Appeal to the Supreme

Court: “I Had to Fight to Stay in the Country For My Children,”

THE INTERCEPT (Nov. 30, 2016), https://theintercept.com/2016/

11/30/-had-to-fight-to-stay-in-the-country-for-my-children-a-mothers-

deportation-appeal-before-the-supreme-court/; Amanda Sakuma,

SCOTUS to Decide if Indefinite Immigrant Detention is Illegal,

NBC News (Nov. 30, 2016), http://www.nbcenews.com/news/us-news/

scotus-decide-if-indefiniteimmigrant-detention-illegal-n689541; Kris-

tina Shull, Rachel Levenson & Terry Ding, Last Chance This Term

for the Supreme Court to Stand Up for Immigrants in Detention,

THE HILL: CONGRESS BLOG (Nov. 28, 2016), http://thehili.com/blogs/

congress-blog/judicial/307662-jennings-v-rodriguez-last-chance-this-

term-for-the-supreme-court.

children.*® Hear Ms. Moratoya describe how she went

from preparing her daughter for kindergarten to the

shock of being detained for over two years in a county

jail in her own words here: https://www.youtube.

com/watch?v=Bw5dzaZwVfvo.

“The conditions were extremely uncomfortable. It was a

form of intimidation so we could be forced to ‘sign out’

and be deported. We had to make a decision between

that or to stay and suffer. And we were told to do this —

to give up — by the corrections officers.”

— Warren Hilarion Joseph”

Mr. Joseph is a U.S. citizen, father, and decorated U.S.

Army combat veteran.”’ Hear Mr. Joseph describe the

indignities he faced in detention for over three years in

a county jail as a lawful permanent resident: https://

www. youtube.com/watch?v=pSz2GX6QaWs&t=323s.

“Detention centers are run the same way as jails, maybe

worse. You are always cold, they never turn off the AC,

they give you a mattress that is maybe an inch thick.

The type of food they give you, I wouldn't even give

that to my dog. You can’t eat, can’t sleep, can’t use the

* AIJ Br. at 7-9.

% See Democracy Now!, Can the U.S. Detain Immigrants In-

definitely? Supreme Court Hears Case as Trump Prepares for Of-

fice, YOUTUBE (Dec. 2, 2016), https://www.youtube.com/watch?v

=pSz2GX6QaWs&t=356s.

27 AIJ Br. at 5-7.

bathroom in peace. All you see is people crying every

day.”

— Alexander Lora”

Mr. Lora has been a lawful permanent resident since

the age of seven. When Mr. Lora was placed in manda-

tory immigration detention, his two-year-old U.S. citi-

zen son was placed in foster care.** Hear Mr. Lora

describe the harsh conditions of detention he endured

before finally receiving a bond hearing that allowed

him to reunite with his toddler son: https://www.

youtube.com/watch?v=N-1jluidWil.

C. Prolonged detention causes grave dep-

rivations of liberty through physical,

mental, and emotional abuse and ne-

glect.

Individuals in prolonged detention are subjected

to the punitive use of solitary confinement, restricted

and substandard access to medical care, physical and

sexual abuse from prison staff, coercion of labor, and

deprivation of family contact. While such deprivations

are commonplace in prolonged detention, they fall es-

pecially hard on vulnerable populations, including in-

dividuals with disabilities, lesbian, gay, bisexual and

*° Talking Eyes Media, Prolonged Detention: A Short Docu-

mentary on the Landmark ‘Lora’ Case, YOUTUBE (Nov. 26, 2016),

https://www.youtube.com/watch?v=N-1ljluid Wil.

2? AlJ Br. at 38.

transgender (LGBT) immigrants, and asylum seekers

fleeing persecution.

Solitary confinement. There is perhaps no

clearer example of the severe burdens on liberty

caused by immigration detention than the prevalence

of solitary confinement as a tool to punish and control.

Solitary confinement is a “terror and peculiar mark of

infamy.” Davis v. Ayala, 135 S. Ct. 2187, 2209 (2015)

(Kennedy, J., concurring) (quoting Jn re Medley, 134

U.S. 160, 170 (1890)). A person held in solitary confine-

ment is locked in a cell for 23 hours a day, receives

meals through a narrow slot in a sealed door, and is

barred from phone calls or visits from family members

or other loved ones. It is one of the most extreme pun-

ishments a person may experience in prison.

As described in our previous brief, Ms. Morataya

twice faced solitary confinement in immigration deten-

tion: first for having a forgotten sugar packet in her

uniform after mealtime, and again for lagging behind

her cellmates because she had begun menstruating

and was trying to find a sanitary napkin. See AlJ Br.

at 7-8.

Ms. Morataya’s experience is routine in immigra-

tion detention. According to one investigation, on any

given day, approximately 300 immigrants are held in

solitary confinement at the 50 largest immigration de-

tention facilities.*° Half were isolated for over two

weeks; 1 in 9 was isolated for over two months.*'

Solitary confinement is often the first response to

infractions of rules that only exist in prisons and

jails.” In Essex County Correctional Facility, a penal

facility that reserves 800 beds for immigration deten-

tion in Newark, New Jersey, 96% of all infractions were

punished with solitary confinement from 2013 to 2015.

In that same time period alone, solitary confinement

was used against immigrants in detention 428 times.”

These sentences were frequently imposed arbitrarily

and disproportionately. For example, one detainee re-

ceived a 12-day sentence for damaging an identifi-

cation wristband, while another received a 15-day

* Ian Urbina & Catherine Rentz, J/mmigrants Held in Soli-

tary Cells, Often for Weeks, N.Y. Times (Mar. 23, 2013), http://

www.nytimes.com/2013/03/24/us/immigrants-held-in-solitary-cells-

often-for-weeks. html.

* Td.

32 Nat’L IMMIGRANT JUSTICE CENTER & PHiysiCIANS FOR HUMAN

RIGHTS, INVISIBLE IN ISOLATION: THE USE OF SEGREGATION AND SOL.

ITARY CONFINEMENT IN IMMIGRATION DETENTION 17-20 (2012),

http://static.prisonpolicy.org/scans/Invisible.pdf; PHYSICIANS FOR

HUMAN Ricuts, Burtep ALIVE: SOLITARY CONFINEMENT IN THE U.S.

DETENTION System 11-14 (2013), https://s3.amazonaws.com/

PHR_Reports/Solitary-Confinement-April-2013-full.pdf.

38 N.J. ADVOCATES FOR IMMIGRANT DETAINEES, ET AL., ISOLATED

IN ESSEX: PUNISHING IMMIGRANTS THROUGH SOLITARY CONFINEMENT

5-6 (2016), https://www.afsc.org/sites/afsc.civicactions.net/files/

documents/Isolated%20in %20Essex%20F ull %20Report%202016 1.

pdf.

sentence for refusing to close his food port after he

found worms in his meal.”

Solitary confinement has serious mental health ef-

fects, even when imposed for relatively short periods of

time. These include hallucinations, panic attacks, par-

anoia, and suicidal ideation.” For long-term immigra-

tion detainees experiencing trauma from previous

persecution and torture, such mental health dangers

are only exacerbated.

Medical neglect. Immigrants with serious health

conditions are subject to inadequate care and even fa-

tal neglect when held in immigration prisons and jails

for prolonged periods. Such victims of inadequate care

include people like Mr. Joseph, a decorated combat

veteran whose wartime injury to his foot flared up dur-

ing his detention at Hudson County Correctional Fa-

cility in New Jersey. See AlJ Br. at 5-6. Mr. Joseph

ultimately required surgery after years of requests for

proper care went unheeded. 7d.

—_————

4 Id. at 6.

% Peter S. Smith, The Effects of Solitary Confinement on

Prison Inmates: A Brief History and Review of the Literature, 34

Crime & Just. 441, 502 (2006) (noting that “{a] long list of possible

symptoms from insomnia and confusion to hallucinations and

outright insanity has been documented” among people subjected

to solitary confinement); Stuart Grassian, Psychiatric Effects of

Solitary Confinement, 22 Wasu. U. J.L. & PoL’y 325 (2006) (noting

that anxiety, panic, withdrawal, hallucinations, self-mutilation,

and suicidal thoughts and behaviors are all associated with soli-

tary confinement).

Mr. Joseph’s experience at Hudson is not unique.

In May 2016, a civil rights complaint was filed against

the facility due to a pattern and practice of substan-

dard medical care that included delayed or denied

treatment, overmedication of detainees that put them

in coma-like states, and unsanitary conditions that

caused the spread of bacterial infections.** Consider

the experience of Salvador Venegas,”’ who was de-

tained for a year and a half at Hudson:

Mr. Venegas, a lawful permanent resident of

almost three decades, had a serious pre-

existing medical condition that was known to

Hudson officials when he was taken into im-

migration custody. Although he was at high

risk of cancer due to this condition, he was

never given an appropriate medical screening.

Shortly after his detention began, Mr. Venegas

began to experience acute pain.

Over the following months, Mr. Venegas devel-

oped spreading pain, bleeding, stiffness and

numbness, and swollen feet. He repeatedly

informed Hudson staff of his worsening con-

dition, but was only treated with over-the-

counter medications. A full year after the

————

** Nina Bernstein, Health Care at New Jersey Jail Is Sub-

standard, Watchdog Groups Say, N.Y. Times (May 11, 2016),

https://www.nytimes.com/20 16/05/12/nyregion/health-care-at-new-

jersey-immigrant-jail-prompts-claim.html?_r=0.

* The name “Salvador Venegas” is a pseudonym to protect

Mr. Venegas’s privacy. The facts of his case are detailed in a dec-

laration by his legal counsel. See Decl. of Terry Ding of the NYU

Immigrant Rights Clinic (on file with amici).

symptoms started, he was diagnosed with ad-

vanced stage cancer by outside physicians. He

spent eighteen painful months in detention

with inadequate treatment, and only was able

to begin necessary chemotherapy after his re-

lease.

People with serious physical disabilities also re-

ceive inadequate treatment in immigration detention.

Gerardo Corrales, who is paraplegic and wheel-

chair-bound, was nineteen years old when he was put

into detention. He suffered a life-threatening infection

due to the facility's lack of medical care:

Mr. Corrales has lived in the United States

since he was two years old. In 2014, a few

weeks before his high school graduation, he

was the victim of an indiscriminate drive-by

shooting that left him paralyzed below his

waist. Local police raided his family’s home

while he was still in the early stages of his

recovery. Arrested for possession of an anti-

anxiety medication without a prescription,

Mr. Corrales was turned over to immigration

custody and put into mandatory detention in

Adelanto Detention Center because of a con-

viction from his youth.

88 The facts of Mr. Corrales’s case are described in an affida-

vit by an attorney familiar with the casc. See Affidavit of Chris-

tina Fialho, Letter from 29 Members of Congress to Sarah

Saldana, Director. Immigration and Custums Enforcement (June

22, 2015), httpd/chu.huuse.cov/sitesvchu house.cov/filevdecuments/

Gerardo_Corrales_Affidavit_Fialho. pdf.

Adelanto failed to provide even a minimal

level of accommodation for Mr. Corrales’s se-

rious disability. He was forced to reuse cathe-

ter bags and consequently developed a severe

urinary tract infection that required hospital-

ization. Doctors informed Mr. Corrales that he

was suffering from kidney failure and could

have died from the infection without prompt

medical attention. Yet even after his return to

custody from the hospital, Adelanto staff con-

tinued to deny him sufficient catheter bags.

When his infection caused him to urinate in

his pants, detention staff refused to provide

him a change of clothing.

Nor did Mr. Corrales receive assistance with

his daily living needs or the physical therapy

essential to his recovery process. Instead, he

was entirely dependent on other detained

men to help him use the bathroom, wash him-

self, and pick himself up when he fell from his

wheelchair. Throughout his detention, his

attorneys repeatedly alerted ICE and DHS

authorities of the medical neglect and mis-

treatment he was subjected to. They never re-

ceived a substantive response.

After nine months of detention, Mr. Corrales

was finally released on a Rodriguez bond and

is now under the care of his family. He is cur-

rently seeking a special visa for crime victims

who assist law enforcement and is applying

for college.

Physical, emotional, and sexual abuse. Many

immigrants in prolonged detention experience physi-

cal, emotional, and sexual abuse.** From 2007 to 2011,

there were nearly 200 reports of sexual assault in im-

migration detention centers across the country.*® One

Texas correctional officer was accused of sexually as-

saulting nine different detained women.*' In Baker

County Detention Center in Florida, a young Haitian

immigrant reported that after he requested that the

air conditioning be adjusted, a correctional officer be-

came enraged, saying “I’m tired of you . . . immigrants

coming to my country thinking you can get what...

you want.” The officer proceeded to pin him down,

place him in handcuffs, and twist his genitals.”

LGBT immigrants face particularly high risks of

abuse, and in detention many find themselves victims

%? See, e.g., SOUTHERN POVERTY LAW CENTER, ET AL., SHADOW

PRISONS: IMMIGRANT DETENTION IN THE SOUTH 14-16 (2016), https://

www.splcenter.org/sites/default/files/ijp_shadow_prisons immigrant.

detention_report.pdf; NATIONAL PRISON RAPE ELIMINATION Com.

MISSION, NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT

21-23 (2009), https://www.ncjrs.gov/pdffiles 1/226680.pdf; HUMAN

RIGHTS WATCH, DETAINED AND AT Risk: SEXUAL ABUSE AND HARASs.

MENT IN UNITED STATES IMMIGRATION DETENTION 8-14 (2010), https://

www.hrw.org/sites/default/files/reports/us08 LOwebweover. pdf.

*’ Press Release, Am. Civil Liberties Union, ACLU of Texas

Today Files Federal Lawsuit on Behalf of Women Assaulted at T.

Don Hutto Detention Center (Oct. 19, 2011), https//www.aclu.org/news/

documents-obtained-aclu-show-sexual-abuse-immigration-detainees-

widespread-national-problem?redirect=immigrants-rights-prisoners-

rights-prisoners-rights/documents-obtained-aclu-show-sexual-abuse.

= id.

** See SHADOW PRISONS, supra note 38, at 47.

of the same persecution they fled in their home coun-

tries. Gretta Soto Moreno,” a transgender asylum

seeker, suffered sexual assault and years of beatings

and threats before fleeing to the U.S.:

Ms. Soto Moreno was detained for three years,

two of them in an all-men’s unit in Eloy De-

tention Center in Arizona. There, she was sub-

ject to strip searches by male guards who

touched her inappropriately, and frequent, de-

meaning insults from the guards and other in-

mates. She filed repeated grievances, to little

result.

After two years of daily abuse, ICE trans-

ferred Ms. Soto Moreno to a segregated unit

for LGBT detainees in the Santa Ana City Jail

in Southern California. No longer in an all-

men’s unit, Ms. Soto Moreno hoped that her

treatment would improve. But she found that

the full body cavity searches at Santa Clara

were even more frequent and invasive than at

Eloy, and performed by guards who told her

and other asylum-seekers to “act male” and

use their “male voices.” In both facilities, Ms.

Soto Moreno was denied access to sufficient

hormonal therapy medications.

* The facts of Ms. Soto Moreno’s case are detailed in Brief

for Appellant at 3-6, Moreno v. Lynch, 624 F. App’x 531 (9th Cir.

2015) (No. 14-72395). See also Tizinia Rinaldi, She Fled Abuse in

Mexico, and Now This Trans Woman Says She Was Abused in Im-

migration Detention Too, PUB. RADIO INT’L’s THE WoRLD (Apr. 14,

2016), https://www.pri.org/stories/20 16-04-14/after-almost-three-

years-immigration-detention-and-abuse-transgender-woman-looks.

In 2016, Ms. Soto Moreno won her Ninth Cir-

cuit appeal, was released on a Rodriguez bond,

and placed on an electronic monitor. She now

lives in Los Angeles, studying for her high

school diploma while she awaits the outcome

of her asylum case.

Forced labor. Many private prisons and county

jails depend on detained immigrants to work to main-

tain their facilities, often at no pay or for a mere $1 per

day.** Pedro Guzman," the father of a young U.S. cit-

izen son, was coerced into working for $1 a day under

threat of solitary confinement during his nineteen

months in immigration detention:

Mr. Guzman came to the United States at

eight years old with his mother, through

whom he had immigration status. As a young

man he moved to Minneapolis, where he fell

Ian Urbina, Using Jailed Migrants as a Pool of Cheap La-

bor, N.Y. Times (May 24, 2014), https:/Awww.nytimes.com/2014/

05/25/us/using-jailed-migrants-as-a-pool-of-cheap-labor. html.

* See Urbina, supra note 44; Elise Foley, Immigrant Freed

From 19-Month Detention: ‘I Treat My Dogs Much Better Than The

g Detainees Are Treated’, HUFFINGTON Post (May 18, 2011), http://

www.huffingtonpost.com/201 1/05/18/immigrant-freed-from-detention_

n 863893.html; Richard Fausset, Could He be a Good American?,

L.A. Times (June 4, 2011), http://www.latimes.com/nation/la-na-

deportation-story-htmlstory.html; Yana Kunichoff, “Voluntary”

Work Program Run in Private Detention Centers Pays Detained

Immigrants $1 a Day, TRUTHOUT (July 27, 2012), http//www.truth-

out.org/news/item/10548-voluntary-work-program-run-in-private-

detention-centers-pays-detained-immigrants- l-a-day; Kelsey Sheehy,

Saga Highlights Kinks in Immigrant Detention System, SAN DIEGO

Trus. (Apr. 23, 2011), http/Avww.sandiegouniontribune.conysdut-saga-

highlights-kinks-in-immigrant-detention-201 lapr23-story.html.

in love with Emily, a U.S. citizen. They mar-

ried and their son Logan was born in 2006.

Mr. Guzman worked as a chef to support his

family.

In 2009, after immigration officials sent a

court notice informing Mr. Guzman that he

had lost his status to an incorrect address — a

mistake they later admitted — an immigration

judge ordered him removed in absentia.

Later that year, while Mr. Guzman was load-

ing his car with donation bags to take toGood-

will, ICE officers arrested him, handcuffing

him in front of Emily and the then three-year-

old Logan. An immigration judge subsequently

found that Mr. Guzman’s two teenage misde-

meanor marijuana convictions consigned him

to mandatory detention.

Mr. Guzman was detained in Stewart De-

tention Center in Georgia, a private prison

operated by the Corrections Corporation of

America (“CCA”). To visit him, Emily and Lo-

gan had to drive ten hours each way from

their family’s home in North Carolina. At

Stewart, Mr. Guzman was put to work in the

kitchen, where his shift began every morning

at 2 a.m. If he was late, the guards threatened

him with solitary confinement. At one point,

he was forced to work when sick with fever.

For this and his other work cleaning commu-

nal areas, painting walls, and processing pa-

perwork, he was paid $1 a day. All of Mr.

Guzman’s earnings went straight back into

the coffers of CCA, since he had no choice but

to purchase food, basic hygiene products, and

phone cards to call his family from the CCA-

run commissary.

Finally, after more than a year and a half in

detention, Mr. Guzman was released in May

2011 when he was granted cancellation of re-

moval. Although he is now a lawful perma-

nent resident, Mr. Guzman and his family are

tens of thousands of dollars in debt due to the

legal fees and lost income incurred during his

lengthy detention.

Collective punishment. Prolonged mandatory

detention also inflicts harsh burdens upon the families

of those detained. Deprived of the emotional and finan-

cial support of their loved ones for months and years,

family members are evicted from their homes and sep-

arated, children are forced to transfer schools and of-

ten suffer psychological trauma, and savings are

exhausted on legal fees and travel costs to visit those

detained in facilities hours away from their homes. See

AlJ Br. at 4-12.

Several of the stories we previously shared with

the Court illustrate this reality. For example, before he

was detained, Patrick Thaxter supported his family,

including his five U.S. citizen children, by working as a

chef at a Caribbean restaurant. After Mr. Thaxter was

placed in detention because of a marijuana-related

conviction for which he received no jail time, his family

was unable to afford rent and was evicted. Forced to

move in with other family in Georgia a thirteen-hour

drive away, his children suffered academic and social

disruptions and were no longer able to visit him in de-

tention. AIJ Br. at 32-33.

When Arnold Giammarco was detained, his

family could only visit him once a week due to the

length and expense of the trip, and after depleting his

modest college fund for their daughter and his parents’

pension fund to pay for legal fees, Mr. Giammarco de-

cided to accept deportation to prevent further burden-

ing his family. AIJ Br. at 13-14.

Alexander Lora’s two-year-old son was put into

foster care when Mr. Lora was put into detention. After

Mr. Lora was released, it took another year of legal bat-

tles before he could be formally reunited with his son.

AlJ Br. at 38.

Il. The Indeterminate Length Of Prolonged Im-

migration Detention Exacerbates Its Puni-

tive Effects.

This Court has previously recognized that “indefi-

nite detention of an alien would raise a serious consti-

tutional problem.” Zadvydas v. Davis, 533 U.S. 678, 690

(2001). In distinguishing Zadvydas from the constitu-

tional challenge to mandatory detention in Demore,

this Court noted that detention prior to a removal or-

der has a “definite termination point”: the entry of a

removal order. Demore, 538 U.S. at 529.

But while the possibility of a removal order pro-

vides a theoretical termination point, it does not make

the term of prolonged mandatory detention any more

“definite.” See Definite, MERRIAM-WEBSTER, http://www.

merriam-webster.com/dictionary/definite (defining

“definite” as “having distinct or certain limits” and

“free of all ambiguity, uncertainty, or obscurity”).

Noncitizens in prolonged mandatory detention have no

certainty as to when they will be released. The actual

length of detention often depends on factors over which

they have no control, such as legal errors committed by

adjudicators and delays in immigration court schedul-

ing. Such indefinite terms of incarceration inflict real

physical and psychological harms on individuals who

present neither flight risks nor dangers, and the fami-

lies from which they are separated.

A. The indeterminate length of prolonged

detention inflicts physical and psycho-

logical harms.

Indeterminacy of prolonged detention is not a

mere inconvenience. It causes specific, recognizable

harms. See Brief of Social Science Researchers and

Professors at 10-17, Jennings v. Rodriguez, No. 15-1204

(filed Oct. 24, 2016). The generally poor conditions of

confinement inflict an increasing toll on the health and

physical wellbeing of those detained the longer they re-

main in custody. Jd. at 10. Moreover, the uncertainty

that they face about when or whether they will be re-

leased “frequently leads to high rates of anxiety, des-

pair, and depression” that over time “often manifest

themselves as diagnosable mental health conditions.”

Id. at 17. The specific anguish of detention without a

definite termination point results in “physical, social

and emotional problems |that] continue to plague indi-

viduals long after their release. . . .” Id.

There was no definite termination point for any of

the individuals profiled in our previous brief who were

denied the opportunity for bond hearings. And for

many, their prolonged detentions were a direct result

of legal errors committed by adjudicators in their

cases. Mr. Joseph spent three years seeking cancella-

tion of removal before the Third Circuit overturned an

immigration judge’s erroneous determination that he

was ineligible for immigration relief. AlJ Br. at 7.

Ahilan Nadarajah waited nearly four and a half

years in detention for resolution of his asylum case,

which took two federal appellate reversals to correct.

AlJ Br. at 23-24. The removal order in the case of Syl-

vester Owino’s — detained for nine years — has been

to the Ninth Circuit twice and is now back before the

Immigration Court on remand, where it remains pend-

ing today. AlJ Br. at 40-41.

Federal court review of erroneous administra-

tive decision-making is not the only cause of prolonged

detentiou. Detention is frequently prolonged long be-

fore an immigrant exercises her right to a federal court

appeal. It took an immigration judge fifteen months to

decide Emannuel Boukari’s application for asylum,

withholding, and relief under the Convention Against

Torture, another seven months for the Board of Immi-

gration Appeals to reverse the erroneous denial, and a

further four months to grant the application. AIJ Br.

at 9-10. There was no clear termination point in Mr.

Boukari’s case at the outset, only the uncertainty that

he may remain in detention for months or years simply

to receive the protection from removal that the law

provides. *

B. Coerced deportation caused by indefi-

nite detention of individuals with sub-

stantial claims to relief is a grave

burden on liberty.

The government suggests that prolonged deten-

tion may be escaped by simply accepting an order of

removal. Gov't Second Br. at 13 (“Of course, the govern-

ment allows aliens in immigration detention pending

removal proceedings to end those proceedings, at any

time, by accepting a final order of removal, qualifying

for voluntary departure, or, in some circumstances, by

simply returning home.”). Such a position greatly un-

dervalues the severe burdens to liberty that accom-

pany removal of an individual with a substantial claim

to relief.

As the stories of our clients and community mem-

bers illustrate, acceptance of deportation in order to es-

cape prolonged detention imposes life-altering burdens

“ The government suggests that no process in prolonged de-

tention was due these individuals because they chose to litigate

their cases. Gov’t Second Br. at 41 (arguing that “aliens’ litigation

choices considerably extended their proceedings ... but that

simply illustrates that there is a correspondingly good reason to

extend the length of the detention during those proceedings”). But

had they chosen not to litigate, they would have abandoned mer-

itorious claims, a result at odds with the government's own inter-

est in providing qualified individuals with relief to removal.

on constitutional! liberties. These include the ability to

care for family, live in the home one has purchased, and

contribute to longtime communities.

For example, Brayan Fernandez, a lawful per-

manent resident, accepted an order of removal to Mex-

ico in order to escape his seven-month detention.

Though he qualified for a family-based visa that would

have allowed him to remain lawfully in the United

States, the visa petition sat dormant for months after

submission, and was not adjudicated until one month

after his deportation. Today, his U.S. citizen wife and

three children live in permanent separation from their

husband and father. See AIJ Br. at 16-17.

The indefinite nature of prolonged detention is

also why Mr. Giammarco now faces permanent sepa-

ration from his U.S citizen wife and daughter. After

eighteen months of detention, he accepted an order of

removal to Italy, a country he had not lived in since he

was four years old and where he barely speaks the lan-

guage. Without a stable job, he helps with maintenance

on a house in a small village in exchange for a room to

sleep in, but is unable to provide financial support to

his family. Though his wife has worked three jobs to

save money to visit him, she and their daughter have

only been able to afford to see him twice in the four

years since he was deported. See AIJ Br. at 13-14.

Ill. Only A Bond Hearing Remedies The Un-

constitutional, Prolonged Detention Of

People In Punitive Conditions.

In light of the harms described above, a finding of

flight risk or dangerousness by a neutral arbitrator is

the minimum procedural protection required to protect

against unconstitutionally prolonged detention. The

government argues that the process afforded immi-

grants in removal proceedings is more than enough to

address the concerns of detention. Gov't Second Br. at

2, 7-10.

However, as detailed above, detention itself impli-

cates serious liberty interests above and beyond the

stakes in removal proceedings. Acknowledging this

fact, the government instead points to humanitarian

parole for “arriving aliens” held under 8 U.S.C.

§ 1225(b) and “Joseph hearings” for 'awful permanent

residents and other noncitizens subject to “mandatory

detention” under 8 U.S.C. § 1226(c) as adequate protec-

tive mechanisms. /d. at 10-13. But neither of these pro-

cesses affords immigrants with an individualized

finding of flight risk or dangerousness by a neutral ar-

bitrator — i.e., a bond hearing. And the government’s

backup solution — individualized habeas petitions in

“extraordinary” cases — would render any path to a

bond hearing meaningless for people experiencing pro-

longed detention. Id. at 45-47.

For “arriving aliens” detained under § 1225(b), the

government points to the availability of humanitarian

parole. Gov't Second Br. at 10. But humanitarian pa-

role is an unreviewable decision made by the jailer, not

a neutral arbitrator, and its use can vary dramatically

depending on the political climate. See AlJ Br. at 21-

27.*’ The parole process was no remedy for people like

Ahilan Nadarajah and Emannuel Boukari, pro-

filed in our previous brief, both of whom won their

cases, but only after repeated denials of release on pa-

role with little explanation and no review. AIJ Br. at 9-

10, 23-24.

Bond hearings, by contrast, provide a meaningful

inquiry. Consider Gloria Cervantes, a wife and

mother fleeing horrific violence, who was denied hu-

manitarian parole five times in boilerplate, unreview-

able decisions. After receiving a Rodriguez hearing, she

was promptly released on $1,500 bond. Jd. at 35-36.

For immigrants subject to mandatory detention

under § 1226(c), the government notes the existence of

“Joseph hearings” — hearings that provide no inquiry

into flight risk or dangerousness, but merely confirm

*’ As we noted in our previous brief, data shows that parole

grant rates for asylum seekers who passed a credible fear inter-

view have dramatically decreased from eighty percent in 2012 to

forty-seven percent in 2015. AlJ Br. at 22. A recent Executive Or-

der suggests that humanitarian parole will be even more limited

for immigrants at the border. See Exec. Order. No. 13,767: Border

Security and Immigration Enforcement Improvements, 82 Fed.

Reg. 8793 (Jan. 25, 2017).

whether an individual’s conviction triggers the deten-

tion statute. Gov’t Second Br. at 11-12. Joseph hear-

ings thus provide no remedy for people like Sayed

Omargharib, a father and successful hair stylist

whose single conviction (for stealing two pool cues at a

local pool hall) was ultimately deemed by a federal

court to not be a removable offense. AlJ Br. at 19-20.

Because the immigration judge in his case had deter-

mined that his conviction would make him removable

and subject to mandatory detention, a Joseph hearing

provided no protection from the nearly two years of de-

tention he endured before the Fourth Circuit reversed

the immigration judge’s order due to faulty legal rea-

soning. At no point during Mr. Omargharib’s detention

did the government ever inquire as to his flight risk or

dangerousness. Denied the ability to work and pay his

* The government also suggests that “criminal aliens” as a

whole have more diminished due process rights, contending that

most concede removability, without providing any proof to that ef-

fect. As amici explain in their brief, many of the people impacted

by prolonged detention are by definition pursuing their claims to

remain in the U.S., and many have lawful status and significant

ties to the U.S. For example, data from Lora bond hearings for so-

called “criminal aliens” in the Second Circuit demonstrate that

sixty-nine percent are lawful permanent residents, seventy-nine

percent have a U.S. citizen spouse or child, and the average length

of residence in the U.S. is twenty-two years. VERA INSTITUTE OF

JUSTICE, ANALYSIS OF LORA BOND Data: NEW YORK IMMIGRANT FAM-

my Unrry Progect 3-4 (2016), http://www.law.nyu.edw/sites/

default/files/upload_documents/Vera%20Institute_Lora%20Bond

%20Analysis_Oct%20%202016.pdf. Moreover, the government ap-

pears to conflate the liberty interests relating to removal proceed-

ings with the government’s decision to incarcerate immigrants

during those removal proceedings. See Zadvydas, 533 US. at 721.

mortgage by his prolonged detention, Mr. Omargharib

was left homeless upon his release.

Bond hearings ensure that such arbitrary depri-

vations of liberty do not occur. Mark Hwang was

found to be neither dangerous nor a flight risk at his

Rodriguez bond hearing. AlJ Br. at 34. Upon release,

he was able to resume work and care for the twin

daughters his wife gave birth to shortly before he was

detained. Both Mr. Omargharib and Mr. Hwang won

their removal cases. But because Mr. Hwang had ac-

cess to a bond hearing, he was able to avoid the devas-

tating consequences that befall individuals who are

neither flight risks nor dangerous, yet still held in pro-

longed detention.

Part of what made bond hearings in Ms. Cervan-

tes’s and Mr. Hwang’s cases an effective safeguard of

due process was the automatic access to such hearings

within six months. AlJ Br. at 33-41. The government's

alternative remedy is much different. Not only does

the government push the boundaries of permissible

mandatory detention well past six months, it proposes

a case-by-case remedy to prolonged detention that

would require an individual to wait for her detention

to become prolonged and then file and litigate a habeas

corpus petition. Gov't Second Br. at 46-47. Such a

process merely compounds the constitutional injury

caused by prolonged detention because district courts

themselves require prolonged periods to adjudicate

those petitions. As noted in our previous brief, those

times may range from 237 days, to 168 days, to 409

days, to 578 days in the First, whird, Sixth and Elev-

enth Circuits, respectively, for the federal court litiga-

tion alone. AIJ Br. at 31.

This is why Horatio Gomez, a U.S. citizen, spent

over two-and-a-half years in immigration detention,

including one year after filing a habeas petition. Jd. at

29-30. Habeas was also an ineffective remedy for Pat-

rick Thaxter, whose petition was pending for over 17

months — more than half the length of his total deten-

tion — before it was granted. Jd. at 32-33.

This Court has previously noted how “[lliberty

protects the person from unwarranted government in-

trusions....” Lawrence v. Texas, 539 U.S. 558, 562

(2003). Surely, prolonged detention in conditions that

are materially indistinguishable from punishment is a

“government intrusion.” A bond hearing in which the

government bears the burden of persuasion is a proper

procedural protection because it is the only way to en-

sure that such intrusion is not “unwarranted.”

The Ninth Circuit’s remedy of such a hearing for

individuals facing six months of detention is the proper

way to vindicate the substantial liberty interest at

stake. By not requiring the filing of a habeas petition

to secure a bond hearing, the Court of Appeals elimi-

nates substantial periods of unjustified detention that

would accrue while waiting for a district court decision.

CONCLUSION

As the stories of our clients and community mem-

bers illustrate, the liberties at stake in prolonged man-

datory detention are profound: freedom from unlawful

restraint, contact with family and loved ones, and the

ability to lawfully remain in the only country many im-

migrants have ever known as home. The constitutional

rights of our clients and community members should

be recognized by, at the very least, the minimal protec-

tion of access to a bond hearing.

February 2017

Respectfully submitted,

ALINA DAS

Counsel of Record

WASHINGTON SQUARE LEGAL

SERVICES, INC.

245 Sullivan Street

5th Floor

New York, NY 10012

(212) 998-6430

ANTHONY ENRIQUEZ

IMMIGRANT DEFENSE PROJECT

40 West 39th Street

Suite 501

New York, NY 10018

(212) 725-6422

Counsel for Amici Curiae

App. 1

APPENDIX

DESCRIPTIONS OF AMICI CURIAE

Americans for Immigrant Justice

Americans for Immigrant Justice, formerly Florida Im-

migrant Advocacy Center, is a non-profit law firm ded-

icated to promoting and protecting the basic rights of

immigrants. Americans for Immigrant Justice is dedi-

cated to advancing and defending the rights of immi-

grants in detention.

Black Alliance for Just Immigration

The Black Alliance for Just Immigration (“BAJI”) is a

national organization that organizes, advocates, and

raises awareness around issues facing Black immi-

grants, including immigrants from Africa, the Carib-

bean, and elsewhere, in the United States. For over a

decade BAJI has engaged Black communities to ad-

vance the interests of immigrants facing detention and

deportation.

Boston College Law School Immigration Clinic

The Boston College Law School Immigration Clinic

(“BC Immigration Clinic”) is a clinical program of

Boston College Law School. The BC Immigration

Clinic regularly represents clients who are detained by

the Immigration and Customs Enforcement; in these

cases, students represent clients both in their removal

proceedings and bond hearings. As such, the BC Immi-

gration Clinic has an interest in ensuring that more

App. 2

detainees are entitled to a bond hearing and that the

procedures used in such bond hearings are fair and ad-

equately protect detainees’ liberty interests.

Boston University’s lLnmigrants’ Rights Clinic

Boston University’s Immigrants’ Rights Clinic (“IRC”)

is a law school clinic that provides direct representa-

tion to immigrants in removal proceedings, including

individuals who face detention without bond pending

removal proceedings. IRC has held legal orientation

projects within immigrant detention centers and has a

longstanding interest in promoting the rights of immi-

grants in detention.

Brandeis Human Rights Advocacy Program of

the University of Louisville School of Law

The Brandeis Human Rights Advocacy Program of the

University of Louisville School of Law works actively

with the local community, non-profits and stakeholders

in the community to advance the human rights of im-

migrants, refugees and noncitizens.

Bronx Defenders

Founded in 1997, The Bronx Defenders provides inno-

vative, holistic, and client-centered criminal defense,

removal defense, family defense, social work support

and other civil legal services and advocacy to indigent

Bronx residents. Under the New York Immigrant

Family Unity Project, we represent over 330 detained

App. 3

non-citizens every year and witness the adverse im-

pact of prolonged detention on our clients, their ability

to pursue legal claims to stay in this country, and their

families.

Brooklyn Defender Services

Brooklyn Defender Services (““BDS”) is a public de-

fender organization that represents more than 45,000

people every year who cannot afford an attorney in

criminal, family, and immigration proceedings. Since

2013, BDS has provided removal defense services

through the New York Immigrant Family Unity Pro-

ject New York’s first-in-the-nation appointed counsel

program for detained New Yorkers facing removal who

cannot afford an attorney. BDS represents Alexander

Lora, the petitioner in Lora v. Shanahan, 804 F.3d 601

(2d Cir. 2015) in his removal proceedings, and repre-

sented him before the federal district court and circuit

court.

Center for Community Change

The Center for Community Change (“CCC”) is a na-

tional not-for-profit organization that works to em-

power low-income people, particularly in communities

of color, to make change that improves our communi-

ties and public policy. CCC has a longstanding history

of advancing and defending the rights of immigrants.

CCC coordinates the Fair Immigration Reform Move-

ment (FIRM), a network of 42 member organizations

in 33 states, working to keep families together and fix

App. 4

our nation’s broken immigration system. As part of

this work, we have encountered countless numbers of

immigrant community members who have had their

lives ripped apart because of prolonged detention. We

have witnessed firsthand the devastating impact de-

tention has on immigrant families.

Center for Constitutional Rights

The Center for Constitutional Rights (“CCR”) is a na-

tional non-profit legal and educational organization

dedicated to advancing and protecting the rights guar-

anteed by the United States Constitution and interna-

tional human rights law. Founded in 1966, CCR has a

long history of litigating cases on behalf of those with

the fewest protections and least access to legal re-

sources, including numerous landmark civil and hu-

man rights cases fighting for racial and immigrant

justice and protection from indefinite detention and

solitary confinement.

Center for Gender & Refugee Studies

The Center for Gender & Refugee Studies (““CGRS”)

at the University of California Hastings College of

the Law works to protect the fundamental human

rights of asylum seekers, with a particular focus on

expanding protection for women, children, and LGBT

individuals. CGRS has played a central role in the de-

velopment of law and policy related to asylum seekers,

including on detention and enforcement issues.

App. 5

Coalition for Humane Immigrant Rights of Los

Angeles

The Coalition for Humane Immigrant Rights of Los

Angeles (“CHIRLA”) is a non-profit organization with

local and state presence in California, and national

recognition. Our mission is to advance the human, civil

rights, and full integration of New Americans and their

children into the fabric of our society.

Community Initiatives for Visiting Immigrants

in Confinement

Community Initiatives for Visiting Immigrants in

Confinement (“CIVIC”) is the national immigration de-

tention visitation network, which is working to end

U.S. immigration detention by monitoring human

rights abuses, elevating stories, building community-

based alternatives to detention, and advocating for

system change. CIVIC has a longstanding interest in

this Court’s decision and has been advocating for years

against the lengthy detention of noncitizens held in

pre-removal immigration detention in the United

States. See, e.g., Rethinking Pre-removal Immigration

Detention in the United States: Lessons from Europe

and Proposals for Reform, Oxford University Press -

Refugee Survey Quarterly (2012) 31 (3):69-100, doi:10.

1093/rsq/hds007, available at http://tinyurl.com/hds007.

App. 6

Community Justice Clinic of the University at

Buffalo School of Law

Community Justice Clinic of the University at Buffalo

School of Law (“CJC”) is a law school clinic that rep-

resents immigrants, including individuals who are

subject to the mandatory detention provisions of the

Immigration and Nationality Act. CJC also represents

and works with immigrant-led organizations with

members who have been subject to prolonged deten-

tion.

Community Legal Services in East Palo Alto

Community Legal Services in East Palo Alto (“CLSEPA”)

is a nonprofit organization that provides legal assis-

tance to low income immigrants in and around East

Palo Alto, California, where two-thirds of the popula-

tion is Latino or Pacific Islander. The immigration

team provides consultations to and represents local

residents in various types of immigration benefits and

proceedings, including detained and non-detained re-

moval proceedings in immigration court.

Criminal/Immigration Defense Clinic at Colorado

Law School

The Criminal/Immigration Defense Clinic at Colorado

Law School is a law clinic that represents indigent cli-

ents charged with misdemeanor offenses in Boulder

County, CO. We have witnessed first-hand the devas-

tating impacts of prolonged detention on immigrants

App. 7

while they pursue their ability to remain in the U.S.

with their families.

Cumberland Legal Aid Clinic

The Cumberland Legal Aid Clinic, through its Refugee

and Human Rights clinical program, is a law-school

based clinic in which law students represent immi-

grants fleeing human rights abuses who wish to re-

main in the U.S. The clinic regularly represents

immigrants who face detention and are seeking asy-

lum, withholding of removal, protection under the

Convention against Torture, special immigrant juve-

nile status, protection under the Violence Against

Women Act or adjustment of status. We are intimately

familiar with the adverse impact prolonged detention

has on an immigrant’s ability to defend against re-

moval.

Detention Watch Network

As a national coalition of organizations and individu-

als concerned about the impact of immigration deten-

tion on individuals and communities in the United

States, Detention Watch Network (“DWN”) has a sub-

stantial interest in the outcome of this litigation.

Founded in 1997, DWN has worked for nearly two dec-

ades to fight abuses in detention, and to push for a

drastic reduction in the reliance on detention as a tool

for immigration enforcement. Since 2011, through

its advocacy and organizing work, DWN has been

App. 8

advocating for the elimination of all laws mandating

the detention of immigrants.

Dolores Street Community Services

Dolores Street Community Services (“DSCS”) provides

pro bono removal defense to low-income immigrants in

San Francisco, CA, specializing in representing partic-

ularly vulnerable clients. DSCS clients have suffered

the severe consequences of prolonged detention; some

clients have accepted removal orders despite fears of

persecution and other compelling claims for relief,

simply because they could no longer endure detention.

Other clients have experienced the incalculable bene-

fits of an individualized custody determination, often

released on their own recognizance or minima! bond

after six months of unreviewed custody.

Grassroots Leadership

Grassroots Leadership is an Austin, Texas-based na-

tional organization that works to end prison profit-

eering and reduce reliance on criminalization and

detention. Grassroots Leadership has long advocated

for community-based alternatives to detention, partic-

ularly for vulnerable populations including asylum-

seeking women and families. We have also witnessed

the impact of prolonged detention on migrants and

their families after they have been released from de-

tention and as they attempt to integrate into the com-

munity.

App. 9

Immigrant Defense Project

Immigrant Defense Project (“IDP”) is a not-for-profit

legal resource and training center dedicated to promot-

ing fundamental fairness for immigrants accused and

convicted of crimes. IDP provides defense attorneys,

immigration attorneys, immigrants, and judges with

expert legal advice, publications, and training on is-

sues involving the interplay between criminal and im-

migration law.

Immigrant Justice Corps

Immigrant Justice Corps (“IJC”) is the country’s first

immigration legal fellowship program. IJC seeks to ex-

pand access to counsel by increasing the quantity of

immigration lawyers and the quality of the immigra-

tion bar. IJC’s fellows regularly represent detained

noncitizens and have seen the impact of long-term de-

tention on their clients’ well-being and their ability to

pursue relief.

Immigrant Rights Clinic of Washington Square

Legal Services, Inc.

Immigrant Rights Clinic of Washington Square Legal

Services, Inc. (“IRC”) is a law clinic that represents and

works with immigrants and immigrant rights organi-

zations, including individuals who face detention with-

out bond pending removal proceedings. IRC has a

longstanding interest in advancing and defending the

rights of immigrants in detention.

App. 10

Immigrants’ Rights Clinic of Morningside Heights

Legal Services, Inc.

Immigrants’ Rights Clinic of Morningside Heights Le-

gal Services, Inc. is a law clinic that represents immi-

grants, including individuals in detention. IRC is

committed to advocating on behalf of and advancing

the rights of immigrants in detention.

Immigration Clinic of the University of Miami

School of Law

Immigration Clinic of the University of Miami School

of Law is a law clinic that advocates on behalf of immi-

grants in a wide variety of administrative and federal

court immigration proceedings and collaborates with

immigrant rights groups on projects to advance the

cause of social justice for immigrants. Many of the

clinic’s clients are detained. The clinic has challenged

the lawfulness of the prolonged detention of its clients

in U.S. District Court and appeared as counsel for

amici curiae in Sopo v. U.S. Atty Gen., 825 F.3d 1199

(2016).

Irish International Immigrant Center

The Irish International Immigrant Center (“IIIC”) is a

multi-service welcome center for immigrants of all na-

tionalities, based in Boston, Massachusetts. Originally

founded in 1989 to serve the needs of Irish immigrants

in the New England area, the IIIC now annually pro-

vides immigration, education, and social services to

thousands of immigrants from around the world.

App. 11

Kathryn O. Greenberg Immigration Justice

Clinic at the Benjamin N. Cardozo School of Law

The Kathryn O. Greenberg Immigration Justice Clinic

at the Benjamin N. Cardozo School of Law (“IJC”) is a

law clinic that represents individuals facing deporta-

tion, as well as community-based organizations, in

both public policy and litigation efforts. IJC has a

long-established interest in fighting for the rights of

immigrants pursuing their ability to remain in the

U.S., including representing people who face detention

without bond pending removal proceedings.

LatinoJustice PRLDEF

LatinoJustice PRLDEF is a national not-for-profit civil

rights legal defense fund which has defended the con-

stitutional rights, civil rights and the equal protection

of all Latinos under law. Since 1972, PRLDEF’s mis-

sion has been to promote civic participation, to culti-

vate Latino leaders, and to promote voting rights,

employment opportunity, language rights, educational

access, and immigrants’ rights.

Lawyers’ Committee for Civil Rights of the San

Francisco Bay Area

The Lawyers’ Committee for Civil Rights of the San

Francisco Bay Area (“LCCR”) is a non-profit legal ser-

vices and social justice organization that works in

partnership with the private bar to protect and ad-

vance the rights and status of people of color, low-

income communities, and immigrants and refugees

App. 12

through direct legal services, impact litigation, and

policy advocacy. As part of LCCR’s core commitment to

protecting the rights of asylum-seekers, it has a strong

interest in preventing the harmful effects of prolonged

detention on noncitizens and their ability to fairly de-

fend themselves in removal proceedings.

Legal Aid Society of New York

The Legal Aid Society of New York was founded in

1876 to serve New York’s immigrant community and is

the nation’s oldest and largest not-for-profit law firm

for low-income persons. For several decades, Legal Aid

has maintained an Immigration Law Unit (“ILU”)

within its Civil Practice. The ILU has an expertise in

representing immigrants at the intersection of crimi-

nal and immigration law and has also represented, and

served as amicus on behalf of, immigrants seeking re-

lease from prolonged and mandatory detention in ha-

beas and other federal court proceedings.

Loyola University New Orleans College of Law

Clinic

The Loyola University New Orleans College of Law

Clinic has operated an Immigration Clinic for decades.

Louisiana is home to three major immigration deten-

tion centers and has a growing population of immi-

grants. Our Immigration Clinic has been providing

assistance to people in the Deep South outside of Lou-

isiana as well.

App. 13

Make the Road New York

Make the Road New York (“MRNY”) is a nonprofit,

membership-based community organization that inte-

grates adult and youth education, legal and survival

services, and community and civic engagement, in a

holistic approach to help low-income New Yorkers im-

prove their lives and neighborhoods. MRNY is at the

forefront of numerous initiatives to analyze, develop,

and improve civil and human rights for immigrant

communities, including issues related to detention and

deportation of immigrant communities.

National Latina Institute for Reproductive Health

The National Latina Institute for Reproductive Health

(“NLIRH”) is a not-for-profit organization dedicated

to advancing the health, dignity, and justice for the

28 million Latinas, their families, and their communi-

ties in the United States. NLIRH has a longstanding

history of working to ensure fair treatment of women,

children, and families, irrespective of legal status.

As part of its work, it recognizes the direct impact

immigration status has on access to reproductive

health care. The deprivation of rights, family disrup-

tion, inadequate access to health care, loss of liveli-

hood, re-traumatization and abuse that are inherent to

conditions of confinement, are only exacerbated

through prolonged detention.

App. 14

Neighborhood Defender Services of Harlem

Neighborhood Defender Services of Harlem is a public

defense organization that represents non-citizens who

are arrested in New York City. Specifically, the Immi-

gration Practice, represents non-citizens in removal

proceedings, including individuals who are hei: in im-

migration detention without bond.

New York Immigration Coalition

The New York Immigration Coalition (““NYIC”) is an

advocacy and policy umbrella organization for more

than 175 multi-ethnic, multi-racial, and multi-sector

groups across the state. Through its members and its

own advocacy the NYIC has long worked against un-

just immigration policies, including the use of deten-

tion against immigrants.

Pangea Legal Services

Pangea Legal Services (“Pangea”) is a nonprofit organ-

ization that advocates for immigrants in deportation

proceedings through legal representation, community

empowerment, and policy advocacy. The impact of pro-

longed detention for Pangea’s clients is stark: it has re-

sulted in a loss of employment, loss of custody by

mothers over their minor children, traumatized chil-

dren who experience loss of a parent, loss of health, re-

living traumas of being held captive in detention after

escaping abusive captivity abroad, eviction from the

home, and homelessness by immediate relatives of de-

tained immigrants.

App. 15

Project South

Project South is a Southern-based leadership develop-

ment organization that creates spaces for movement

building. We work with communities pushed forward

by the struggle - to strengthen leadership and to pro-

vide popular political and economic education for

personal and social transformation. We build relation-

ships with organizations and networks across the US

and global South to inform our local work and to en-

gage in bottom-up movement building for social and

economic justice. Our legal and advocacy work is fo-

cused on defending Muslim and immigrant communi-

ties against discrimination.

Queens Law Associates —- Public Defenders

Queens Law Associates — Public Defenders (“QLA”) is

a nonprofit legal service provider representing low-

income individuals — some of whom are noncitizens —

facing criminal charges in the criminal justice system.

Q@LA also provides free legal services to noncitizens in

their immigration matters, including representation in

deportation proceedings. QLA has a direct interest in

this case, as its clients may be subject to mandatory

detention provisions based on convictions and may be

detained by ICE for prolonged periods.

Seton Hall University School of Law Center for

Social Justice

The Seton Hall University School of Law Center for

Social Justice empowers law students to gain critical,

App. 16

hands-on experience while providing pro bono legal

services for low-income residents in the region. The

Center has long worked to defend the statutory, consti-

tutional, and human rights of immigrants.

Southern Poverty Law Center

The Southern Poverty Law Center (“SPLC”) fights all

forms of discrimination and works to protect society’s

most vulnerable members through litigation, educa-

tion, and monitoring organizations that promote hate.

The SPLC provides pro bono assistance to and advo-

cates on behalf of immigrant detainees throughout the

southern United States, including Alabama, Florida,

Georgia, Louisiana, and Mississippi.

University of California, Irvine School of Law

Immigrant Rights Clinic

The University of California, Irvine School of Law Im-

migrant Rights Clinic is a law clinic providing pro bono

legal services to immigrants in removal proceedings.

The Clinic also partners with community and legal ad-

vocacy organizations on policy and litigation projects

to advance immigrants’ rights and immigrant workers’

rights. For several years, clinic students working under

the supervision of faculty attorneys have represented

immigrants detained at the Adelanto Detention Cen-

ter and Orange County, CA facilities in their bond

hearings.

App. 17

University of Houston Law Center Immigration

Clinic

The University of Houston Law Center Immigration

Clinic advocates on behalf of immigrants in a broad

range of complex legal proceedings before the immigra-

tion and federal courts and the Department of Home-

land Security. The Clinic collaborates with other

immigrant and human rights groups on projects that

advance the cause of social justice for immigrants.

University of Maryland Carey School of Law

Immigration Clinic

The University of Maryland Carey School of Law Im-

migration Clinic represents individuals in immigra-

tion removal proceedings, including individuals who

are detained without bond. The Clinic represents

individuals who are subject to mandatory detention,

many of whom end up being detained for prolonged pe-

riods of time.

UnLocal, Inc.

UnLocal, Inc. is an immigration legal services and com-

munity education non-profit based in New York City. Un-

Local provides presentations on immigration law, know

your rights trainings, and legal consultations at com-

munity-based spaces including schools, workplaces,

places of worship and other immigrant-serving or-

ganizations. UnLocal clients and the membership of

many of UnLocal’s community-based partners include

App. 18

individuals who have faced detention without bond

during the pendency of their removal proceedings.

Valparaiso University Law School Immigration

Clinic

The Valparaiso Immigration Clinic (“VIC”) is a law

clinic at Valparaiso University Law School that repre-

sents immigrants in Northwest Indiana and Chicago,

including individuals who have been held in immigra-

tion detention. VIC students have also assisted with

case intake for immigrant detainees, provided commu-

nity outreach in Northwest Indiana concerning immi-

grant rights issues, and represented immigrant rights

organizations that work with immigrant detainees.

Washington and Lee University School of Law

Immigrant Rights Clinic

The Washington and Lee University School of Law Im-

migrant Rights Clinic provides free legal services to

non-citizens in removal proceedings in Virginia. Many

of our clients are detained in the immigrant detention

facility in Farmville, VA, which is the primary deten-

tion facility in Virginia, housing between 600-700 non-

citizens.

Washington Defender Association

The Washington Defender Association (“WDA”) is a

statewide non-profit organization whose membership

App. 19

is comprised of public defender agencies, indigent de-

fenders and those who are committed to seeing im-

provements in indigent defense. In 1999, WDA

established WDA’s Immigration Project to give the

Washington defense bar access to expert immigration

law resources in order to effectively represent their

noncitizen clients with regard to the immigration con-

sequences at stake in their criminal cases. Detention

issues are a vita! part of the immigration consequence

of a conviction, and can radically affect access to coun-

sel and case outcomes.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.