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

FILED

OCT 2 4 2016

RECORS

AND i

BREE,

No. 15-1204

Iu the Supreme Court of the Anited States

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 MEMBERS OF

ASIAN AMERICANS ADVANCING JUSTICE IN

SUPPORT OF RESPONDENTS

LABONI A. Ho@ ANJAN CHOUDHURY

CHRISTOPHER M. LAPINIG Counsel of Record

ASIAN AMERICANS JOHN F. MULLER

ADVANCING JUSTICE — DAVID J. FEDER

Los ANGELES JOON S. HUR

1145 Wilshire Boulevard MUNGER, TOLLES &

2nd Floor OLSON LLP

Los Angeles, CA 90017 355 South Grand Avenue

35th Floor

Los Angeles, CA 90071

anjan.choudhury@mto.com

(213) 683-9100

(Counsel Continued on Inside Cover)

October 24, 2016

a

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

ANOOP PRASAD

JENNY ZHAO

KEVIN LO

ASIAN AMERICANS

ADVANCING JUSTICE —

ASIAN LAW CAUCUS

55 Columbus Avenue

San Francisco, CA 94111

CECELIA CHANG

EUGENE F. CHAY

ASIAN AMERICANS

ADVANCING JUSTICE —

AAJC

1620 L St. NW

Suite 1050

Washington, DC 20036

JAVERIA JAMIL

ASIAN AMERICANS

ADVANCING JUSTICE —

ATLANTA

6040 Unity Drive

Suite E

Norcross, GA 30071

ANDREW KANG

VAN HUYNH

ASIAN AMERICANS

ADVANCING JUSTICE —

CHICAGO

4753 N. Broadway

Suite 502

Chicago, IL 60640

i

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIALE ...............ccecesccseeeeee 1

SUMMARY OF ARGUMENT. ................ccsseecsecseeeeesseee 2

IT scsi be cesasteiaines comeiniaetiesbaigeouaeiesanneninadcaintieamiantnnkaaan 4

|. The Plenary Power Doctrine is Rooted

in Racism Against AAPI Immigrants............ 4

ll. The Plenary Power Doctrine Should

Not Be Extended Beyond Exclusion

and Deportation to Civil Detention of

PII snacinuicnasesakctussscdecsnadbcimintescsatnnel e.. 12

Ill. Built on Racism and Exclusion, the

Plenary Power Doctrine Should be

NE icavainciiscicasituiiniemiiatebinhsiiatieisidomas 18

CN IIIET ince tschicdexdstubcsncinnncmnitlaniebiinlasehibebeiteousicin 22

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Carlson v. Landon,

A ee

Chae Chan Ping v. United States,

130 U.S. 581 (1889) ............ i

Davis v. Beason,

BE TFB Se CRUD 008s tsssccerccecssececens

Demore v. Kim,

ge | ee

Fiallo v. Bell,

gg fF yt eee

Fong Yue Ting v. United States,

149 US. 698 (1893) ................:ccceees

Galvan v. Press,

347 U.S. GER (IGG4) ..............000000000...

Harisiades v. Shaughnessy,

$42 U.S. 580 (1962) .....................+...

Kaoru Yamataya v. Fisher,

BE WD. GB CRD wcccecsccscececcsercecoeses

Page(s)

iii

TABLE OF AUTHORITIES

(cont.)

Page(s)

Kleindienst v. Mandel,

I I oii ncn entgnneninniiendinanetndosaaningn 20

Knauff v. Shaughnessy,

SEERA NEN borne tre ree My 5, 16, 19

Korematsu v. United States,

cleanin 11,12

Ex parte Lockwood,

a sam meemennenpeannnieliins 18

Mahler v. Eby,

gt EEE canine ee re ee ae 13

Mathews v. Diaz,

a II eiicduninneparssiniiceiemciensimnnntiel 4, passim

Ng Fung Ho v. White,

ne nS. enncenstassepmmmemmina 13

Nishimura Ekiu v. United States,

Oe Sy ee ID siedicctintecabscvenesevetcvenetience 7, passim

Plessy v. Ferguson,

ny MI IN os iciccnsanasepeniotiominneensunenten 3, 12,18

Reno v. Flores,

Se SI ee SI Sicnssnisesestuitniinennenin 4, 14, 15, 20

iv

TABLE OF AUTHORITIES

(cont.)

Page(s)

Shaughnessy v. United States ex rel.

Mezei,

I BEE CIID vciccsetamecnvssesscovassuteses 4,17, 19, 20

United States ex rel. Turner v. Williams,

Se I his siceecac ccs insinnidvtshaisinnwiecscnvehiduamiein 13

United States v. Ju Toy,

I i 13

Wong Wing v. United States,

UII I a 13, 14

Yick Wo v. Hopkins,

REINA REA REED Rss EN fa 13

Zadvydas v. Davis,

En IE ss dctdncasctebnkedendabenchodoessen 14, 17

FEDERAL STATUTES

Act of Feb. 5, 1917, ch. 29, 39 Stat. 874...................... 8

Act of March 3, 1875, ch. 141, 18 Stat.

MET Fels atc. dota ncarnaaasiteg dase Tealaaiaiiechindakstiainnetsaatdniastadata de 5

Act of October 1, 1888, ch. 1064, 25 Stat.

eisai pcdeacneluisadinaiaaeeeaoenidaeindenmcdaaranmeedsccek 6, 7,8

The Chinese Exclusion Act of 1882, Pub.

ah, ee aE PEAT HT AI Was rtehniciosecdodccibsbituscsesebvnion 5

Vv

TABLE OF AUTHORITIES

(cont.)

Immigration Act of 1924, ch. 190, 43

a ean raegoueiincass

Pub. L. No. 78-199, 57 Stat. 600 (1943).......

LEGISLATIVE MATERIALS

Chinese Exclusion Act,

13 Cong. Rec. 1645 (1882)..............-..20065

Senate Judiciary Comm., The

Immigration and Naturalization

Systems of the United States, S. Rep.

No. 81-1516 (1960)...........0sccr-crcccresecovcceeees

OTHER AUTHORITIES

Abrams, Polygamy, Prostitution, and the

Federalization of Immigration Law,

105 Colum. L. Rev. 641 (2005)................

Chin, Segregation’s Last Stronghold:

Race Discrimination and the

Constitutional Law of Immigration,

46 UCLA L. Rev. 1 (1998) ................0

Commission on Wartime Relocation and

Internment of Civilians, Personal

Justice Denied (1997) ..........ccccccceeeceeeeeeees

Page(s)

vi

TABLE OF AUTHORITIES

(cont.)

Daniels, The Japanese American

Incarceration Revisited: 1941-2010,

18 Asian Am. L.J. 1383 (2011)......0.0.0000....

Greene, The Anticanon, 125 Harv. L.

Bs ED siasnesasstenccnnesuseressivessacdvesess

Henkin, The Constitution and United

States Sovereignty: A Century of

Chinese Exclusion and its Progeny,

100 Harv. L. Rev. 853 (1987) ..................

Riley, Jason L., The Mythical Connection

Between Immigrants and Crime,

Wall St. J. (July 14, 2015),

http:/‘ vww.wsj.com/articles/the-

mythical-connection-between-

immigrants-and-crime-1436916798 .......

Ting, “Other Than a Chinaman”: How

U.S. Immigration Law Resulted

From and Still Reflects a Policy of

Excluding and Restricting Asian

Immigration, 4 Temp. Pol. & Civ.

Rts. L. Rev. 301 (1995) ...............ssssrseceees

Page(s)

INTERESTS OF AMICI CURIAE'

This brief is submitted by all members of Asian

Americans Advancing Justice (Advancing Justice),

the national affiliation of five nonprofit, nonpartisan

civil rights organizations: Asian Americans Advanc-

ing Justice —- AAJC, Asian Americans Advancing Jus-

tice — Asian Law Caucus, Asian Americans Advanc-

ing Justice — Atlanta, Asian Americans Advancing

Justice — Chicago, and Asian Americans Advancing

Justice — Los Angeles. Members of Advancing Justice

routinely file amicus curiae briefs in cases in this

Court and other courts. Through direct services, im-

pact litigation, policy advocacy, leadership develop-

ment, and capacity building, the Advancing Justice

affiliates advocate for marginalized members of the

Asian American, Native Hawaiian, Pacific Islander

and other underserved communities, including immi-

grant members of those communities.

Asian Americans and Pacific Islanders (AAPI) have

a strong interest in this case in light of their long and

troubled experience with our immigration system.

Much of modern immigration legal doctrine relies on

cases concerning racist laws that were enacted over a

century ago specifically to exclude AAPI immigrants.

Today, segments of the AAPI community remain dis-

proportionately represented in immigration detention

and, in turn, bear a significant share of the physical

and emotional harms that flow from it, together with

—_—

‘ No counsel for a party authored this brief in whole or in

part, and no person other than amici or their counsel has made

a monetary contribution intended to fund the preparation or

submission of the brief. All parties have filed with the Clerk a

letter of blanket consent to the filing of briefs of amici curiae.

2

other immigrant communities. The length of immi-

gration detention today, especially when considered

with the conditions that detainees typically experi-

ence, renders immigration policies effectively puni-

tive for many detainees. And this harm extends to

the families and communities from which these de-

tainees are plucked, destabilizing households and

causing lasting psychological suffering for children.

This experience—of detainees, families, and society

as a whole—provides important historical and con-

temporary context in this case.

SUMMARY OF ARGUMENT

Amici write to place in context the Government’s

deeply troubling argument that the “plenary power”

doctrine justifies minimal constitutional scrutiny of

immigration detention. The plenary power doctrine

was born as a means to rationalize racist laws exclud-

ing AAPIs from this country. It effectuated the Gov-

ernment’s widespread reduction of individual immi-

grants to pernicious stereotypes, particularly as

threats to public safety. This sort of generalizing

about immigrants—which the Government again

employs in this case, echoing the justifications offered

for Chinese exclusion and Japanese American in-

ternment—is one of the very harms that the individ-

ualized custody hearings at issue here are designed to

prevent. The Court should pause before extending

the plenary power doctrine particularly where, as

here, the authority the Government seeks will once

again significantly affect AAPI and other immigrant

communities who have been demonized in public dis-

course.

Viewed in context, the plenary power doctrine has

no relevance to this case. The doctrine is best under-

3

stood to do no more than limit constitutional scrutiny

over the Government’s power to exclude and deport

noncitizens. The small handful of decisions that in-

voke plenary power outside the context of exclusion

and deportation do not support the much broader no-

tion that the Government may deprive noncitizens in

immigration detention of the baseline liberty protec-

tions afforded to all persons by the Due Process

Clause. Because the Due Process Clause protects

“persons,” citizens and noncitizens in civil detention

are equally entitled to its liberty protections. The

Government asks, in essence, for the Court to ignore

that basic truth, and extend the plenary power doc-

trine because of amorphous and unsubstantiated con-

cerns about public safety. But there is no legal basis

to detain the immigrants in this case based on dan-

gerousness. The Government’s appeal to public safe-

ty in this context is based on the xenophobic—and

empirically false—notion that immigrants are inher-

ently more dangerous than citizens. It should be re-

jected.

To the extent that the plenary power doctrine limits

the irreducible liberty protections afforded to persons

in immigration detention, it should be relegated to

the ash heap of history, alongside other racist doc-

trines handed down by the Fuller Court. See, e.g.,

Plessy v. Ferguson, 163 U.S. 537 (1896). The doctrine

has never outgrown its racist origins. Modern cases

simply reiterate the old rationalizations offered for

excluding AAPI immigrants, even as those rationali-

zations have grown steadily more indefensible. If

Congress were to enact a law today that excluded all

AAPI immigrants in the name of preserving a dis-

torted vision of racial purity, it is hard to imagine

this Court would uphold such a law under the plena-

ry power doctrine. The Court should not sanction the

4

continued use of a doctrine that was first employed to

achieve just that result. Eschewing plenary power,

moreover, would leave Congress with ample authori-

ty to make immigration law. Congress simply would

be required, in the immigration context as elsewhere,

to exercise its authority consistent with the liberty

interests protected by the Due Process Clause.

ARGUMENT

The Government contends that it may deprive im-

migration detainees of their liberty in ways that

would unquestionably violate the Due Process Clause

but for the detainees’ lack of citizenship. In particu-

lar, the Government contends (1) that it has “plenary

authority over immigration and the exclusion or ex-

pulsion of aliens,” Pet. Br. at 53, (2) that this authori-

ty justifies subjecting noncitizens to “rules that would

be unacceptable if applied to citizens,” id. (quoting

Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)), and (3)

that deprivations of liberty that would violate the

Due Process Clause as applied to citizens may per-

missibly be applied to noncitizens, id. at 54 (citing

Fiallo v. Bell, 430 U.S. 787 (1977)). This argument,

which permeates the Government’s brief, see e.g., id.

at 11, 14, 21, 25, 53, rests not on principle but on a

legacy of racism. It cannot bear the constitutional

weight the Government places upon it.

I. The Plenary Power Doctrine is Rooted in

Racism Against AAPI Immigrants

The Government invokes several decisions to sup-

port its reliance on the plenary power doctrine. See

Pet. Br. at 19, 20, 27, 53, 54 (citing Demore v. Kim,

538 U.S. 510 (2003); Reno v. Flores, 507 U.S. 292

(1993); Fiallo v. Bell, 430 U.S. 787 (1977); Mathews v.

Diaz, 426 U.S. 67 (1976); Shaughnessy v. United

5

States ex rel. Mezei, 345 U.S. 206 (1953) (“Mezezi”);

Carlson v. Landon, 342 U.S. 524 (1952); and Knauff

v. Shaughnessy, 338 U.S. 537 (1950) (“Knau/ff’)).

These cases are built from an anachronistic founda-

tion of racial animus and xenophobia directed toward

AAPI immigrants. For the first hundred or so years

of this country’s history, the federal government im-

posed no restrictions on immigration. Ting, “Other

Than a Chinaman”: How U.S. Immigration Law Re-

sulted From and Still Reflects a Policy of Excluding

and Restricting Asian Immigration, 4 Temp. Pol. &

Civ. Rts. L. Rev. 301, 302 (1995). But when Chinese

immigration began to increase, Congress reassessed

this policy, propelled by fierce and often violent public

reactions to Chinese immigrants. Id. Shortly after

the Civil War, Congress began passing a series of

laws closing the country’s borders to Chinese immi-

grants. The first such law, the Page Law of 1875,

prohibited entry of Chinese immigrants deemed “un-

desirable,” namely convicts and prostitutes. Act of

March 3, 1875, ch. 141, 18 Stat. 477. A few years lat-

er, in the Chinese Exclusion Act of 1882, Congress

extended this prohibition to all new immigrants from

China. Pub. L. No. 47-126, 22 Stat. 58. Chinese ex-

clusion remained in effect for sixty years, until it was

finally repealed during World War II. Pub. L. No. 78-

199, 57 Stat. 600 (1943).

The legislative history of the Chinese Exclusion Act

made its racism plain. For instance, Senator Henry

M. Teller of Colorado defended the law as follows:

“The Caucasian race has a right, considering its su-

periority of intellectual force and mental vigor, to

look down upon every other branch of the human

family .... We are the superior race today. We are

superior to the Chinese.” 13 Cong. Rec. 1645, 1645

6

(1882). Likewise, Senator John Franklin Miller of

California warned that “[t]he presence of an inferior

race either inevitably expels the superior race or re-

duces it to the ways, modes of life, and all the other

conditions of the new-comers.” Jd. at 1744; see also

id. at 1978 (statement of Rep. Cassidy) (“We reli-

giously believe that unrestricted Mongolian immigra-

tion means ultimate destruction.”); id. at 2031

(statement of Rep. Brumm) (“The Chinaman is nei-

ther socially, morally, nor politically fit to assimilate

with us.”). There is no historical dispute that Chi-

nese exclusion was the product of a virulent mix of

“nativism, racism, and xenophobia.” Henkin, The

Constitution and United States Sovereignty: A Cen-

tury of Chinese Exclusion and its Progeny, 100 Harv.

L. Rev. 853, 855 (1987). Much of this anti-Chinese

animosity was “rooted in fear of both the competition

Chinese men posed to white labor, and of the regen-

erative and polluting power of Chinese women.”

Abrams, Polygamy, Prostitution, and the Federaliza-

tion of Immigrat +» Law, 105 Colum. L. Rev. 641, 664

(2005).

Congress extended the scope of Chinese exclusion

still further in 1888 in the Scott Act. Under the Act,

Chinese exclusion applied to virtually “all persons of

the Chinese race,” including such persons who had

once legally resided in the United States. Act of Oc-

tober 1, 1888, ch. 1064, 25 Stat. 504. The Act did not

require deportation of Chinese immigrants present in

the country, but provided that such immigrants who

traveled outside the country would not be permitted

to return. Id.?

* The Scott Act made exceptions for Chinese government offi-

cials, teachers, students, tourists, and merchants.

7

The plenary power doctrine emerged as an affirma-

tion and rationalization of these racist laws. The doc-

trine is typically traced to Chae Chan Ping v. United

States, often cited simply as the Chinese Exclusion

Case, which upheld the constitutionality of the Chi-

nese Exclusion Act of 1882. 130 U.S. 581 (1889). The

petitioner in Chae Chan Ping, a Chinese immigrant

who had obtained a certificate of identity proving his

legal residence in the United States, traveled to Chi-

na in 1887 and, upon his return to the United States,

was refused reentry under the Scott Act of 1888. The

Court rejected the petitioner’s argument that his ex-

clusion was unconstitutional, reasoning that it was

“not . . . open to controversy” that the federal gov-

ernment could “exclude aliens from its territory.” Id.

at 603. The Court explained that “|j)urisdiction over

its own territory to that extent is an incident of every

independent nation,” and that if the federal govern-

ment could not exclude noncitizens, “it would be to

that extent subject to the control of another power.”

Id. Chae Chan Ping thus effectively afforded Con-

gress carte blanche to exclude noncitizens, including

on grounds of racism.

Chae Chan Ping’s progeny further cleared the con-

stitutional path for racist immigration laws concern-

ing admission and deportation of noncitizens. In

Nishimura Ekiu v. United States, the Court held that

immigrants denied admission could not challenge

their exclusion on due process grounds, reasoning

that “the decisions of the executive officers, acting

within powers expressly conferred by congress, are

due process of law.” 142 U.S. 651, 659 (1892). The

following year, in Fong Yue Ting v. United States, the

Court extended this seemingly unbridled power over

exclusion of noncitizens to laws regarding deporta-

tion. 149 U.S. 698 (1893). It held: “The right of a

8

nation to expel or deport foreigners who have not

been naturalized, or taken any steps towards becom-

ing citizens of the country .. . is as absolute and un-

qualified as the right to prevent their entrance into

the country.” Jd. at 707; but see Kaoru Yamataya v.

Fisher, 189 U.S. 86, 100-101 (1903) (limiting Fong

Yue Ting by holding that Congress nevertheless could

not “disregard the fundamental principles that inhere

in ‘due process of law” in deportation).

These decisions gave the Court’s imprimatur to a

steady stream of racist and exclusionary immigration

laws and policies directed toward AAPIs. The Chi-

nese Exclusion Act of 1882, initially effective for only

a ten-year period, was renewed in 1892 and made

permanent in 1902. Chin, Segregation’s Last Strong-

hold: Race Discrimination and the Constitutional

Law of Immigration, 46 UCLA L. Rev. 1, 37 (1998).

Against this backdrop, immigration law and policies

continued to evolve primarily to exclude immigrants

from other Asian countries. For instance, when im-

migrants from Japan began to arrive in the United

States in significant numbers, the two countries en-

tered the Gentleman’s Agreement of 1907-1908,

which provided that Japan would not issue docu-

ments for travel to the United States. See id. at 13.

In 1917, as immigration from India and Southeast

Asia began to grow, Congress extended immigration

exclusions to all races indigenous to the “Asiatic

Barred Zone,” which it defined to include nearly all of

Central and Southeast Asia. Act of Feb. 5, 1917, ch.

29, § 3, 39 Stat. 874, 876; see also Senate Judiciary

Comm., The Immigration and Naturalization Sys-

tems of the United States, S. Rep. No. 81-1515, at 67

9

(1950).° Notably, Congress excepted from this exclu-

sion all “white persons born in the zone.” Id.

These exclusionary laws were consolidated in the

Immigration Act of 1924. Under the Act, “aliens inel-

igible to citizenship” were denied admission to the

country. Immigration Act of 1924, ch. 190, 43 Stat.

153, 168. “This phrase was a euphemism for [AAPIs]

because the act defined an alien ‘ineligible to citizen-

ship’ as one covered by the Chinese Exclusion Act or

racially ineligible to naturalize.” Chin, supra, at 13-

14. Following the law, nearly all AAPIs were barred

from immigrating to the United States, and even

AAPI immigrants lawfully present in the United

States were barred from becoming U.S. citizens. Id.

at 14. These exclusions were explicitly racial in na-

ture: even if a person of Chinese descent sought to

immigrate to the United States from a country sub-

ject to no comparable exclusion, the racial exclusion

would apply to that person. Id.

The racism against AAPIs reflected and reinforced

by these exclusion and deportation laws permeated

into the detention context as well, in what is widely

accepted as a stain on our constitutional jurispru-

dence. During World War II, the federal government

forcibly interned Japanese Americans following the

attack on Pearl Harbor. The chief architects of in-

ternment did not conceal their racism. General John

DeWitt, the Commander of the Western Defense,

made the case for internment to Secretary of War

* The zone “include[d] the East Indies, western China, French

Indochina, Siam, Burma, India, Bhutan, Nepal, eastern Afghan-

istan, Turkestan, the Kirghiz Steppe, and the southeastern por-

tion of the Arabian Peninsula.” S. Rep. No. 81-1515, at 67.

10

Henry Stimson in transparently racial terms: “In the

war in which we are now engaged, racial affinities

are not severed by migration. The Japanese race is

an enemy race and while many second and third gen-

eration Japanese born on United States soil have be-

come ‘Americanized,’ the racial strains are undilut-

ed.” Commission on Wartime Relocation and In-

ternment of Civilians, Personal Justice Denied 6

(1997). Stimson assessed internment through the

same racial lens; shortly before President Roosevelt

authorized internment, Stimson wrote in his diary

that “the racial characteristics [of U.S.-born Japanese

Americans] are such that we cannot understand or

trust even the citizen Japanese.” Daniels, The Japa-

nese American Incarceration Revisited: 1941-2010, 18

Asian Am. L.J. 133, 134 (2011).

General DeWitt made the same racist case for Jap-

anese American internment before Congress, distin-

guishing it from treatment of European immigrants

from other enemy nations. He explained that “[tjhe

danger of the Japanese was, and is now,—if they are

permitted to come back—espionage and sabotage. It

makes no difference whether he is an American citi-

zen, he is still a Japanese. American citizenship does

not necessarily determine loyalty.” Personal Justice

Denied, supra, at 66. Asked why persons of Japanese

heritage should be treated differently from those of

Italian and German heritage, General DeWitt re-

plied: “You needn’t worry about the Italians at all

except in certain cases. Also, the same for the Ger-

mans except in individual cases. But we must worry

about the Japanese all the time until he is wiped off

the map.” Jd. In line with General DeWitt’s think-

ing, “[t]here were no serious proposals for the mass

movement of categories of American citizens of Ger-

man and Italian descent.” Jd. at 286.

11

As early as 1948, Congress conceded that “there

was recorded during [World War II] not one act of

sabotage or espionage attributable to those who were

the victims of the forced relocation.” Jd. at 50. This

widespread reduction of individuals to erroneous

mass generalization is not merely a stain of history; it

is one of the very harms that the individualized cus-

tody hearings at issue here are designed to prevent.

Only after the United States allied with China dur-

ing World War II did Congress begin to repeal its ex-

clusions of AAPI immigrants. Ting, supra, at 305.

Even then, direct discrimination against AAPIs per-

sisted in federal immigration policy into the 1960s.

Although immigration from China was allowed, for

instance, the strictest possible quota applied: only

100 persons were admitted each year. Id. This quo-

ta, like the Immigration Act of 1924, operated based

on race, not national origin: only 100 persons of Chi-

nese descent were allowed in the country each year,

whether or not they were born in China. /d. Similar

quotas applied to other AAPI immigrants. Jd. When

these quotas were abolished in 1965, it was only

amidst assurances that immigration patterns were

not expected to change significantly. Jd. at 307.

KK

Unfortunately, the letter of the law remains stained

by this legacy even today. One branch of this legacy

is, of course, this Court’s response to Japanese Amer-

ican internment in Korematsu v. United States, 323

U.S. 214 (1944). Korematsu is a decision that, while

not formally overruled, has been rejected “in the

court of history,” see Tribe, American Constitutional

Law 237 n.118 (3d ed. 2000). But whereas Korematsu

has become something of a cautionary tale, e.g.

Greene, The Anticanon, 125 Harv. L. Rev. 379, 422

12

(2011) Gdentifying the “anticanon” of constitutional

law as including Dred Scott v. Sandford, Plessy v.

Ferguson, Lochner v. New York, and Korematsu), the

plenary power doctrine—born of the same racist ani-

mus—remains very much alive, including as support

cited by the Government here. This legacy should

counsel for serious pause before extending the doc-

trine further, particularly in this case where the au-

thority the Government seeks will once again dispro-

portionately affect AAPI and other immigrant com-

munities who have been demonized in public dis-

course.

Il. The Plenary Power Doctrine Should Not Be

Extended Beyond Exclusion and Deporta-

tion to Civil Detention of Noncitizens

The Government’s argument for extending the ple-

nary power doctrine to this case relies heavily on lan-

guage enunciated in Mathews and now running

through several of the Court’s decisions, including

Demore: “In the exercise of its broad power over nat-

uralization and immigration, Congress regularly

makes rules that would be unacceptable if applied to

citizens.” Pet. Br. at 53; Mathews, 426 U.S. at 79-80;

see also Demore, 538 U.S. at 521 (quoting Mathews).

This statement is, of course, a truism: Virtually all of

immigration law involves the exercise of powers that

Congress could not employ as to citizens. But the

Government invokes these words to suggest some-

thing more—that Congress may operate largely free

from constitutional constraint in the immigration

arena. This suggestion would extend plenary power

beyond its doctrinal moorings and should be rejected.

Since its inception, the plenary power doctrine has

concerned the power to exclude and deport nonciti-

13

zens. This power, broad as it may be, is critically a

power over the flow of immigration, not over the

physical liberty of immigrants held in custody. It

thus has no bearing at all on what is at issue in this

case: civil detention. This is not to say that the Gov-

ernment may not detain noncitizens in order to im-

plement the immigration laws, just as it may detain

citizens in other civil detention contexts. Rather, as

“persons,” noncitizens in civil detention are entitled

to the same due process protections as citizens in

analogous contexts, including individualized custody

hearings.

This is apparent from a brief review of the doctrinal

history. In the decades following Chae Chan Ping,

Nishimura Ekiu, and Fong Yue Ting, the Court

steadily invoked those decisions for the proposition

that the federal government has plenary power over

exclusion and expulsion of noncitizens. E.g. United

States ex rel. Turner v. Williams, 194 U.S. 279, 289-

90 (1904) (exclusion and expulsion); United States v.

Ju Toy, 198 U.S. 253, 263 (1905) (exclusion); Ng Fung

Ho v. White, 259 U.S. 276, 280 (1922) (expulsion);

Mahler v. Eby, 264 U.S. 32, 40 (1924) (expulsion).

The Court also approved “detention or temporary con-

finement, as part of the means necessary to give ef-

fect to the provisions for the exclusion or expulsion,”

so long as such detention or confinement was non-

punitive. Wong Wing v. United States, 163 U.S. 228,

235 (1896). But nowhere did these decisions hold

that the Government has plenary authority to mini-

mize the constitutional liberty interest to be free from

detention that applies to all persons under the Due

Process Clause. See Yick Wo v. Hopkins, 118 U.S.

356, 369 (1886) (holding the Due Process Clause ap-

plicable to “all persons,” including noncitizens).

14

In Zadvydas v. Davis, citing Wong Wing, this Court

recognized that noncitizens have important liberty

interests in avoiding immigration-related detention.

533 U.S. 678, 694 (2001). There, as here, the Gov-

ernment had argued that, in the context of civil de-

tention of noncitizens, courts “must defer to Execu-

tive and Legislative Branch decisionmaking” pursu-

ant to “cases holding that Congress has ‘plenary pow-

er to create immigration law.” Id. at 695. The Court

rejected this view, explaining that the plenary power

doctrine is “subject to important constitutional limi-

tations,” id., including the Due Process Clause, which

“applies to all ‘persons’ within the United States, in-

cluding aliens, whether their presence here is lawful,

unlawful, temporary, or permanent,” id. at 683; see

also id. at 695 (noting that Zadvydas did not “require

[the Court] to consider the political branches’ authori-

ty to control entry into the United States,” as opposed

to their authority to infringe on physical liberty).

In Demore, the Court recognized this principle, not-

ing that “lilt is well established that the Fifth

Amendment entitles [noncitizens] to due process of

law in deportation proceedings.” 538 U.S. at 523.

But Demore nonetheless relied on the plenary power

doctrine in concluding that noncitizens subject to civil

detention are entitled to lesser due process protec-

tions than citizens. It cited a series of plenary power

decisions invoked by the Government in this case, in-

cluding Mathews, Flores, and Carlson. Id. at 521-26.

None of these three decisions should be read to es-

tablish that plenary power is relevant to civil deten-

tion. Mathews does not support the view that Con-

gress’s power to distinguish between citizens and

noncitizens has any bearing on the dictates of due

process in civil detention. The plaintiffs in Mathews

15

claimed that all noncitizens—rather than only noncit-

izens who had resided in the country for more than

five years—should be afforded Medicare benefits

equal to those received by citizens. 426 U.S. at 69.

The Court rejected this claim, holding that “the fact

that Congress has provided some welfare benefits for

citizens does not require it to provide like benefits for

all aliens.” Jd. at 80. It reasoned that the federal

government’s decision to confer such “munificence,”

could properly consider the length and character of

the relationship between a noncitizen and the coun-

try. Id. The distinction between citizens and nonciti-

zens drawn in Mathews likely could have been upheld

under the standard of review applicable in federal

equal protection cases from other contexts. In any

event, Mathews did not hold that Congress could re-

duce the baseline due process rights afforded to all

persons when physical liberty is at issue.

Flores also does not support a contrary view. Flores

did not involve a mandatory detention scheme; it ad-

dressed the unique circumstances that arise with de-

tention of juveniles. 507 U.S. at 302-05. It held that

“freedom from physical restraint” was “not at issue”

in the case because children are always in some form

of physical custody. Jd. at 302. Flores went on to say

that the plenary power doctrine provided an alterna-

tive ground to uphold the statute at issue in the case

insofar as the statute applied to noncitizens. Jd. at

305-06. In so stating, Flores quoted Mathews for the

proposition that “Congress regularly makes rules

that would be unacceptable if applied to citizens.” Jd.

(quoting Mathews, 426 U.S. at 79-80); see also

Demore, 538 U.S. at 522 (quoting this language from

Flores, in addition to quoting it from Mathews). To

the extent that this alternative holding in Flores

meant to suggest that Mathews allowed Congress to

16

ignore the due process requirements afforded all per-

sons with respect to physical liberty, it was clearly

mistaken: Mathews held no such thing. That Con-

gress has even broad power to exclude and deport

noncitizens or, as Mathews held, provide them vary-

ing levels of immigration benefits, does not mean it

can detain them without providing the due process

rights afforded all persons.

Nor should this Court rely on Carlson to hold that

the plenary power doctrine alters the irreducible pro-

tections of the Due Process Clause in the civil deten-

tion context. In Carlson, four noncitizen communists

brought habeas petitions challenging, among other

things, the Attorney General’s authority to confine

them without bail during the pendency of deportation

proceedings. The Court invoked a long line of plenary

power decisions for the proposition that “[t]he power

to expel [noncitizens]” was “essentially a power of the

political branches,” albeit one subject to “judicial in-

tervention under the ‘paramount law of the constitu-

tion.” 342 U.S. at 537 (citing Fong Yue Ting, Nishi-

mura Ekiu, and Kaoru Yamataya). The Court then

held, however, that there is no denial of due process

“where there is reasonable apprehension of hurt from

{noncitizens] charged with a philosophy of violence

against this Government.” Id. at 542. The Court’s

finding of a “reasonable apprehension of hurt” based

upon demonstration of a “philosophy of violence” in

Carlson distinguishes it from this case, where the

Government does not and cannot justify such an as-

sumption as to the varied types of immigrants who

are detained here. More importantly, Carlson gave

no justification for this aspect of its holding. The only

authority Carlson cited was Knauff, an exclusion case

that did not address the due process rights afforded

to persons in civil detention. /d.

17

Finally, the Government’s reliance on Mezei is simi-

larly misplaced. Mezei is primarily an exclusion case:

relying on the plenary power doctrine, the Court up-

held the Government’s authority to exclude a nonciti-

zen harbored on Ellis Island. 345 U.S. at 212; see al-

so id. at 213 (describing the case as “an exclusion pro-

ceeding”). As the Government emphasizes, Mezei al-

so suggested that noncitizens denied admission have

no due process rights aside from those granted by

Congress. See Pet. Br. at 19. Whatever the merits of

this suggestion as to the facts in Mezei—which in-

volved the “continued exclusion,” 345 U.S. at 215, of

someone who had lost the right to live in the United

States and could not be repatriated because no other

country would take him—it should not be read to

support the general proposition that noncitizens as a

general matter have lesser liberty interests in “free-

dom from imprisonment.” Zadvydas, 533 U.S. at 690.

Because the Due Process Clause protects “persons,”

citizens and noncitizens in civil detention are equally

entitled to its liberty protections. The Government

asks, in essence, for the Court to ignore that basic

truth, and extend the plenary power doctrine to civil

detention because of concerns about public safety.

But there is no legal basis to detain the immigrants

in this case based on dangerousness. Many of them

have no criminal history, and those that do have

served their sentences. The appeal to public safety in

this context is based on the xenophobic—and empiri-

cally false—notion that immigrants are inherently

more dangerous than citizens. See, e.g., Jason L. Ri-

ley, The Mythical Connection Between Immigrants

and Crime, Wall St. J. (July 14, 2015),

http://www.wsj.com/articles/the-mythical-connection-

between-immigrants-and-crime-1436916798 (collect-

ing sources). Indeed, the Government’s appeal to

18

public safety is comprised of the same hollow justifi-

cations used to rationalize incarcerating immigrants

in the past. It should be rejected.

lil. Built on Racism and Exclusion, the Plenary

Power Doctrine Should be Discarded

Even if the plenary power doctrine did apply to

immigration detention, the Court should not rely on

it because the doctrine belongs in the ash heap of his-

tory alongside other racist doctrines handed down by

the Fuller Court. See, e.g., Plessy v. Ferguson, 163

U.S. at 552 (upholding “separate but equal” accom-

modations); Ex parte Lockwood, 154 U.S. 116 (1894)

(upholding exclusion of female lawyers from the Vir-

ginia bar); Davis v. Beason, 133 U.S. 333 (1890) (up-

holding conviction of Mormon for attempting to vote).

The doctrine has never outgrown its racist origins.

Scholars have singled out the plenary power doc-

trine “for the sharpest criticism,” Henkin, supra, at

858, and have “argued forcefully for years that [the

doctrine] should be reexamined or abolished,” Chin,

supra, at 7-8. In short, the doctrine “has no founda-

tion in principle. It is a constitutional fossil, a rem-

nant of a prerights jurisprudence that we have proud-

ly rejected in other respects.” Henkin, supra, at 862.

A close look at the cases invoked by the Govern-

ment illustrates the fossilized nature of the doctrine.

As described above, the Court’s initial decisions on

plenary power invoked conclusory notions of national

sovereignty to justify racism against AAPIs. In the

years since, the Court’s invocations of plenary power

have simply reiterated the flawed and unprincipled

claims of those initial cases, even as their flaws have

grown more and more apparent.

19

The normalization of the racist underpinnings of

the plenary power doctrine is particularly clear in a

series of decisions following World War II. For in-

stance, in 1950, the Court upheld the exclusion of a

noncitizen based on a determination by the Attorney

General that “her admission would be prejudicial to

the interests of the United States.” Knau/ff, 338 U.S.

at 539-40. Citing Nishimura Ekiu and Fong Yue

Ting, the Court observed: “Whatever the rule may be

concerning deportation of persons who have gained

entry into the United States, it is not within the prov-

ince of any court, unless expressly authorized by law,

to review the determination of the political branch of

the Government to exclude a given alien.” Jd. at 543.

It added, again citing Nishimura Ekiu: “[w]hatever

the procedure authorized by Congress is, it is due

process as far as an alien denied entry is concerned.”

Id. at 544.

In decisions over the next several years, the Court

repeatedly affirmed the plenary power doctrine based

purely on the legacy of its decisions upholding Chi-

nese exclusion. In Carlson, the Court stated that the

plenary power doctrine was “not questioned and re-

quire[d] no reexamination,” citing Nishimura Ekiu

and Fong Yue Ting. 342 U.S. at 534. Likewise, Mezei

grounded the plenary power doctrine in Chae Chan

Ping and Fong Yue Ting as well as the Court’s deci-

sion in Knauff from a few years previously. 345 U.S.

at 210. The following Term, the Court acknowledged

the dangers of leaving the plenary doctrine unex-

amined, noting that “[i]n light of the expansion of the

concept of substantive due process as a limitation up-

on all powers of congress, even the war power,.. .

much could be said for the view, were we writing on a

clean slate, that the Due Process Clause qualifies the

scope of political discretion heretofore recognized as

20

belonging to Congress in regulating the entry and de-

portation of [noncitizens].” Galvan v. Press, 347 U.S.

522, 530-31 (1954) (citation omitted). But the Court

concluded that “the slate is not clean,” observing that

“there is not merely ‘a page of history,’ but a whole

volume.” Jd. at 531 (citation omitted). That this vol-

ume of history is a volume inscribed with racism and

exclusion received no comment, but was implicit.

Chinese exclusion also remains close beneath the

surface—if not on the surface—of the Court’s more

recent affirmations of the plenary power doctrine.

For instance, the Government invokes Fiallo v. Bell

for the proposition that the Court “ha[s] long recog-

nized the power to expel or exclude aliens as a fun-

damental sovereign attribute exercised by the Gov-

ernment’s political departments largely immune from

judicial control.” 430 U.S. at 792 (quoting Mezei, 345

U.S. at 210); Pet. Br. at 19. In support of this propo-

sition, Fiallo cited Fong Yue Ting and Chae Chan

Ping. The Court’s distinction between citizens and

noncitizens in Mathews, see Pet. Br. at 53, likewise

was built on an artifice of Chinese exclusion cases.

Mathews cited Galvan and a pair of other decisions:

Kleindienst v. Mandel, 408 U.S. 753 (1972), and Ha-

risiades v. Shaughnessy, 342 U.S. 580 (1952).

Kleindienst and Harisiades, in turn, rested their as-

sertions of plenary power on Chae Chan Ping and

Fong Yue Ting. See Kleindienst, 408 U.S. at 765 (cit-

ing Chae Chan Ping and Fong Yue Ting); Harisiades,

341 U.S. at 586 (citing Fong Yue Ting). The plenary

power discussions in Flores and Demore invoked the

same artifice of decisions built on Chae Chan Ping,

Nishimura Ekiu, and Fong Yue Ting. See Flores, 507

U.S. at 305-06 (citing Mathews, Fiallo, and Carlson);

Demore, 538 U.S. at 521-22 (citing Flores, Mathews,

Fiallo, Carlson, and Harisiades).

21

The failure to take stock of the origins of the plena-

ry power doctrine has grown only more glaring with

time. When Chae Chan Ping, Nishimura Ekiu, and

Fong Yue Ting were decided, “the Bill of Rights had

not yet become our national hallmark and the princi-

pal justification and preoccupation of judicial review.

It was an era before United States commitment to in-

ternational human rights; before enlightenment in

and out of the United States brought an end both to

official racial discrimination at home and to national-

origins immigration laws.” Henkin, supra, at 862-63.

If Congress were to pass a law excluding all AAPI

immigrants today in the name of preserving a dis-

torted vision of racial purity, it is hard to imagine

that this Court would uphold such a law as within

the federal government’s plenary power. Yet the

Court persists in accepting the doctrine that was

crafted to achieve that indefensible result.

Discarding the plenary power doctrine would not

require discarding the truism that Congress may

make laws applying to noncitizens—like exclusion

and deportation laws—that Congress could not apply

to citizens. It would simply require that immigration

laws, like all laws of this country, be subject to oth-

erwise-applicable constitutional constraints, includ-

ing appropriate judicial review to ensure compliance

with the Constitution’s demands. Here, the relevant

constitutional constraints are those imposed by the

Due Process Clause regarding deprivations of physi-

cal liberty. The Court should not ignore, in the con-

text of immigration detention, the due process protec-

tions that are and should be applicable to all persons.

There is no defensible justification for such a rule.

22

CONCLUSION

For the above reasons, the Court should analyze

the immigration detention scheme at issue here in

accordance with the due process requirements that

attach to all other forms of civil detention, and not

under the plenary power doctrine, which is both ir-

relevant and illegitimate. The detentions at issue

here that deprive immigrants of individualized custo-

dy review are plainly unlawful as measured against

those due process standards. Accordingly, the judg-

ment of the court of appeals should be affirmed.

Respectfully submitted.

LABONI A. Hoq ANJAN CHOUDHURY

CHRISTOPHER M. LAPINIG Counsel of Record

ASIAN AMERICANS JOHN F. MULLER

ADVANCING JUSTICE — DAVID J. FEDER

LoS ANGELES JOON S. HUR

1145 Wilshire Boulevard |MUNGER, TOLLES &

2nd Floor OLSON LLP

Los Angeles, CA 90017

355 South Grand Avenue

35th Floor

ANOOP PRASAD Los Angeles, CA 90071

JENNY ZHAO anjan.choudhury@mto.com

KEVIN LO (213) 683-9100

ASIAN AMERICANS

ADVANCING JUSTICE — JAVERIA JAMIL

ASIAN LAW CAUCUS ASIAN AMERICANS

55 Columbus Avenue ADVANCING JUSTICE —

San Francisco, CA 94111 ATLANTA

6040 Unity Drive

Suite E

Norcross, GA 30071

(Counsel Continued on Next Page)

CECELIA CHANG

EUGENE F. CHAY

ASIAN AMERICANS

ADVANCING JUSTICE —

AAJC

1620 L St. NW

Suite 1050

Washington, DC 20036

October 24, 2016

23

ANDREW KANG

VAN HUYNH

ASIAN AMERICANS

ADVANCING JUSTICE —

CHICAGO

4753 N. Broadway

Suite 502

Chicago, IL 60640