# Amicus Curiae Brief — Jennings v. Rodriguez, 136 S. Ct. 2489 (2016) (No. 15-1204) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0657%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2016 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0657%3A18. Public record. Not legal advice.