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

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## Record

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

## Text

No. 15-1204

In The |
Supreme Court of the Anited States

a ———E

DAVID JENNINGS, et al.,

Petitioners,
V.

ALEJANDRO RODRIGUEZ, et al.,
Respondents.

— ¢

On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit

— ——

BRIEF OF 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-

I.

tween Prolonged Immigration Detention
and Punitive Incarceration .................-....-

A.

B.

C.

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

A.

B.

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

10

14

29

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

1V
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

19

a

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

Vv

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

vi

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

vu
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

ix
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

x

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

xi
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

Xl
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.

2

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

3

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.

4

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.

5

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

6

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

7

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.

© Presidential Memorandum Regarding the Hiring Freeze,
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).

8

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.

9

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.

10

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.

11

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.

12

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.

13

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.

14

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.

15

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

16

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.

17

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).

18

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).

19

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.

20

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.

21

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.

22

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.

23

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.

24

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

25

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

26

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

27

“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

28

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

29

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.

30

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.

31

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

32

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).

33

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.

34

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

35

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.

a

36

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0657%3A17. Public record. Not legal advice.