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

[ FILED

No. 15-1204

In the Supreme Court of the United States

DAVID JENNINGS, et ai.,

Petitioners,

v.

ALEJANDRO RODRIGUEZ, et al.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE STATES OF CALIFORNIA, MASSACHUSETTS, NEW

YORK, OREGON, RHODE ISLAND, VERMONT, AND WASHINGTON

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

MICHAEL J. MONGAN

Deputy Solicitor General

SAMUEL P. SIEGEL*

MAX CARTER-OBERSTONE

Associate Deputy Solicitors

General

455 Golden Gate Avenue

San Francisco, CA 94102

(415) 703-2540

Sam.Siegel@do}j.ca.gov

February 10, 2017 * Counsel of record

(Additional Counsel Listed on Signature Page)

FEB 10 2017

SUPREME COURT, US.

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QUESTIONS PRESENTED

This Court has specified the following questions:

Whether the Constitution requires that aliens

seeking admission to the United States who are

subject to mandatory detention under 8 U.S.C. §

1225(b) must be afforded bond hearings, with the

possibility of release into the United States, if de-

tention lasts six months.

Whether the Constitution requires that criminal

or terrorist aliens who are subject to mandatory

detention under Section 1226(c) must be afforded

bond hearings, with the possibility of release, if

detention lasts six months.

Whether the Constitution requires that, in bond

hearings for aliens detained for six months under

Sections 1225(b), 1226(c), or 1226(a), the alien is

entitled to release unless the government demon-

strates by clear and convincing evidence that the

alien is a flight risk or a danger to the communi-

ty, whether the length of the alien’s detention

must be weighed in favor of release, and whether

new bond hearings must be afforded automatical-

ly every six months.

FI

TABLE OF CONTENTS

Page

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Due process requires substantial procedural

protections when the federal government

seeks to detain individuals during removal

a i ae bcaoiies 4

A. Unnecessary detentions during removal

proceedings impose substantial individual

ee ick actiseimsstistavinseseasacintersnicesede 6

B. This Court’s decisions establish a

framework for ensuring that government

authorities adequately justify civil

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C. Equivalent protections should apply

where the federal government seeks to

detain individuals during removal

SAREE OR a ee CS AL agen 9 ce EO 14

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TABLE OF AUTHORITIES

CASES

Addington v. Texas

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Balbuena v. IDR Realty LLC

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Boumediene v. Bush

WON IED hsivsivavcinsiicssnnsceteseavcese

Demore v. Kim

ee SN MN airs ev ckiiccsaniedoccebens Scebabis

Foucha v. Louisiana

604 U.S. 71 (1992)................ Wabiataiisaetiios

INS v. Chadha

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Jackson v. Indiana

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Jordan v. De George

841 U.S. 223 (1951) .............ccecccccessececeee:

Kansas v. Hendricks

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Korematsu v. United States

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Mathews v. Eldridge

424 U.S. 319 (1976)... -cecccccocsesceeeeseoeses

Page

1V

TABLE OF AUTHORITIES

(continued)

Page

O’Connor v. Donaldson

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Obergefell v. Hodges

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United States v. Salerno

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Zadvydas v. Davis

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STATUTES

United States Code, Title 8

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Casal hclae ed snes iaspbombanniaenaaaienarsts 19

California Business & Professions Code

ABNER ie Net rsd “Ha se SO de ae epee ree 9

California Education Code

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ee i aaa acc ili cddacteetibedaninneles binnnssaphe 8

NEARER SS RENEE Sa ec nT pee Supe auO ENS 8

ia sare ci nacalatiniilivts doemmiaseoeunarnaten 8

2001 California Statutes Chapter 814

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2013 California Statutes Chapter 524

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TABLE OF AUTHORITIES

(continued)

California Vehicle Code

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California Welfare & Institutions Code

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New York Education Law

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Washington Revised Code

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CONSTITUTIONAL PROVISIONS

United States Constitution

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OTHER AUTHORITIES

Page

sdioeemislen 8

Me) Rata 9

Ajay Chaudry, et al., The Urban Inst., Facing Our

Future: Children in the Aftermath of

Immigration Enforcement (Feb. 2010),

http://www.urban.org/sites/default/files/public

ation/28331/412020-Facing-Our-Future.pdf

Anna Brown & Renee Stepler, Pew Research Ctr.,

Statistical Portrait of the Foreign-Born

Population in the United States (Apr. 19,

2016), http://www.pewhispanic.org/2016/

04/19/statistical-portrait-of-the-foreign-born-

population-in-the-united-states/................

vi

TABLE OF AUTHORITIES

(continued)

Page

Audrey Singer, Brookings Inst., Jmmigrant

Workers in the U.S. Labor Force (Mar. 15,

2012), https:/;www.brookings.edu/research/

immigrant-workers-in-the-u-s-labor-force/ ........... 7

Bryan Baker & Nancy Rytina, Dept. of Homeland

Security, Office of Immigration Statistics,

Estimates of the Lawful Permanent Resident

Population in the United States: January 2013

(Sep. 2014), https://www.dhs.gov/sites/default/

files/publications/LPR%20Population%20Esti

mates%20January%202013.pdf..............0....000cceees 1

California Immigrant Policy Ctr., Resilience in an

Age of Inequality: Immigrant Contributions to

California (Jan. 23, 2017),

http://www.caimmigrant.org/research-and-

analysis/contributions-htmI/....................0ccceeeceeeee 7

Ctr. for Am. Progress, Facts on Immigration

Today (Oct. 23, 2014),

https://www.americanprogress.org/issues/immi

gration/report/2014/10/23/59040/the-facts-on-

No oc i cccesantabennnypidmsioyesinirus 9, 10

ICE Worksite Enforcement — Up to the Job?:

Hearing Before the Subcomm. on Immigration

Policy and Enforcement of the H. Comm. on

the Judiciary, 112th Cong. (2011) .........................7

vl

TABLE OF AUTHORITIES

(continued)

Page

Jie Zong & Jeanne Batalova, Migration Policy

Inst., Green-Card Holders and Legal

Immigration to the United States (Oct. 1,

2015), http://www.migrationpolicy.org/

article/green-card-holders-and-legal-

immigration-umited-states ...............ccccccccceceeeceeeee 10

Lisa Christensen Gee, et al., The Inst. on

Taxation & Econ. Policy, Undocumented

Immigrants’ State & Local Tax Contributions

(February 2016), http://www.itep.org/pdf/

NNO ociecscscccccccccsccseccedensevccsescose 7,8

Nicholas Zill, Nat'l] Council For Adoption, Better

Prospects, Lower Cost: The Case for Increasing

Foster Care Adoption (May 2011),

https://www.adoptioncouncil.org/files/large/942

SE ERG ANA AE, TEs PSC RES, SUSE Rene a ne P 11

Patricia Cortes, The Effect of Low-Skilled

Immigration on U.S. Prices: Evidence from

CPI Data, 116 J. Pol. Econ. 381 (June 2008) ........ 7

Pew Research Ctr., Unauthorized Immigrant

Population: National and State Trends, 2010

(Feb. 1, 2011), http://(www.pewhispanic.org/

FES Ee 10

Pew Research Ctr., Unauthorized immigrant

population trends for states, birth countries

and regions (Nov. 3, 2016),

http://www.pewhispanic.org/interactives/unaut

I 505s, stb icpesa endo ppanbonandiemenddetiancduciaas 1

vill

TABLE OF AUTHORITIES

(continued)

Page

Susan D. Phillips, et. al., Children in Harm’s

Way: Criminal Justice, Immigration

Enforcement, and Child Welfare (Jan. 2013),

https://firstfocus.org/wp-content/uploads/2013/

02/Children-in-Harms-Way.pdf........................... 10

The Federalist No. 84 (Alexander Hamilton)............. 5

1

INTERESTS OF AMICI

The States of California, Massachusetts, New

York, Oregon, Rhode Island, Vermont, and Washing-

ton submit this brief in support of the principle that

if the federal government wishes to detain an indi-

vidual for an extended period during the course of le-

gal removal proceedings, it must justify that decision

to a neutral arbiter, on individualized grounds and

subject to appropriate periodic review. To the extent

that the federal statutes at issue here require or

authorize the federal Executive to detain and confine

individuals for prolonged periods without providing

these basic safeguards, they fail to comport with the

Constitution’s fundamental command that “[n]o per-

son shall ... be deprived of ... liberty ... without due

process of law.” U.S. Const. amend. V.

The amici States have a strong interest in ensur-

ing that non-citizens who seek to establish a legal

right to remain in the United States and who pose no

demonstrable danger to society or risk of flight are

not unnecessarily subject to prolonged detention

while that issue is resolved. California alone is home

to nearly 25% of the United States’ foreign-born pop-

ulation, including 25% of all legal permanent resi-

dents and 21% of undocumented immigrants.' The

1! Anna Brown & Renee Stepler, Pew Research Ctr., Sta-

tistical Portrait of the Foreign-Born Population in the United

States (Apr. 19, 2016), http://www.pewhispanic.org/2016/04/19/

statistical-portrait-of-the-foreign-born-population-in-the-united-

states/; Bryan Baker & Nancy Rytina, Dept. of Homeland Secu-

rity, Office of Immigration Statistics, Estimates of the Lawful

Permanent Resident Population in the United States: January

2013 at 4 (Sep. 2014), https://www.dhs.gov/sites/default/files/

publications/LPR%20Population%20Estimates%20January%

202013.pdf; Pew Research Ctr., Unauthorized immigrant popu-

(continued...)

2

amici States combined account for nearly 17.5 million

immigrants, or more than 41% of the Nation’s total

immigrant population.

As has been true throughout our Nation’s history,

the vast majority of these individuals pose no threat.

On the contrary, they are integral members of our

communities who contribute to our economies and

civil societies. Of course, the amici States support

the lawful detention of demonstrably dangerous indi-

viduals. But many of those facing removal pose no

such concern. And federal statutes or policies that

proceed on unjustifiably broad categorical grounds,

resulting in needless detentions, cause real harm—

not only to the individuals detained but to their fami-

lies, their employers or employees, their co-workers,

their communities, and their States.

SUMMARY OF ARGUMENT

The federal statutes at issue in this case result in

the prolonged detention of thousands of individuals

every year. While some of these individuals are dan-

gerous or pose a genuine risk of flight, many pose no

threat and are firmly-rooted, contributing members

of our society. Many have been here since childhood,

and many have spouses, children, or other close rela-

tives who are U.S. citizens or permanent residents.

They work or run businesses, support families, and

pay state and federal taxes. Many have no criminal

record, and many others have been convicted of only

minor, non-violent offenses. All are seeking to estab-

lish, through legal proceedings, that they may not or

(...continued)

lation trends for states, birth countries and regions (Nov. 3,

2016), http://www.pewhispanic.org/interactives/unauthorized-

trends/.

3

should not be forced to leave the United States. De-

taining individuals such as these for extended peri-

ods while those proceedings remain pending can be

devastating for the detainees, their families, and

their communities.

Sometimes it is necessary to impose these costs.

As this Court has made clear, however, “[i]n our soci-

ety liberty is the norm.” United States v. Salerno,

481 U.S. 739, 755 (1987). In other contexts involving

civil detention, very familiar to the States, this Court

has repeatedly held that government authorities may

not deprive an individual of his or her liberty for any

extended period without first convincing a neutral

arbiter that there is an adequate justification for the

detention, and then providing additional procedural

protections such as periodic review. These are rou-

tine and essential requirements of due process—

designed to protect both individuals and our society

from the arbitrary or abusive use of executive power.

And they apply even in circumstances where the case

for detention can be quite strong. Similar safeguards

are surely appropriate here.

What due process requires can vary considerably

depending on particular circumstances. Here, the

basic measures sought by respondents would strike

an appropriate balance between the interests of indi-

viduals and those of the federal government. Requir-

ing that executive authorities bear the burden of

justifying any prolonged detention to a neutral deci-

sion-maker, based on each detainee’s individual cir-

cumstances, is a typical minimum of due process.

Requiring the government to introduce evidence jus-

tifying prolonged detention, taking due account of the

length of a proposed or actual detention, and provid-

ing a mechanism for periodic review of continued de-

4

tention would all comport with the burdens that this

Court has typically imposed on state and federal

authorities in the context of other civil detentions.

And respondents have made clear that they do not

oppose the appropriate use of other mechanisms,

such as supervised release or financial bonds, to re-

duce the risk that some individuals might abscond or

commit a crime before the resolution of removal pro-

ceedings.

However the precise balance may be struck in

particular situations, the amici States urge this

Court to make clear that non-citizen members of our

communities, lawfully contesting efforts by the fed-

eral government to force their removal from this

country, are entitled to the same sort of fundamental

procedural protections that are afforded to individu-

als threatened with civil detention by federal or state

authorities in other contexts. Anything less creates

too great a risk that federal authorities will, in the

name of upholding the Nation’s immigration laws,

themselves violate one of “freedom’s first princi-

ples”—the “freedom from arbitrary and unlawful re-

straint.” Boumediene v. Bush, 553 U.S. 723, 797

(2008).

ARGUMENT

DUE PROCESS REQUIRES SUBSTANTIAL

PROCEDURAL PROTECTIONS WHEN THE

FEDERAL GOVERNMENT SEEKS TO

DETAIN INDIVIDUALS DURING REMOVAL

PROCEEDINGS

“In our society, liberty is the norm,” with “care-

fully limited exception[s].” Salerno, 481 U.S. at 755.

“Freedom from bodily restraint has always been at

5

the core of the liberty protected by the Due Process

Clause from arbitrary governmental action.” Foucha

v. Louisiana, 504 U.S. 71, 80 (1992). Among “free-

dom’s first principles,” the “freedom from arbitrary

and unlawful restraint” is “[c]hief.”. Boumediene, 553

U.S. at 797. Indeed, “the practice of arbitrary im-

prisonments, [has] been, in all ages,” among “the fa-

vorite and most formidable instruments of tyranny.”

The Federalist No. 84 (Alexander Hamilton). And

that threat is at its apex when the detention at issue

concerns politically unpopular or marginalized

groups. See, e.g., Boumediene, 553 U.S. at 732.

In light of these concerns, this Court has held

that the Due Process Clause requires certain protec-

tions in various contexts in which government

authorities seek to detain and confine individuals

other than as punishment for a duly proven crime.

See, e.g., Salerno, 481 U.S. at 748-749. In doing so it

has always carefully balanced individual and gov-

ernmental interests. F.g., id. at 748-751. Here, the

individual (and state) interests in avoiding unneces-

sary detention are very strong. The countervailing

governmental interests supporting detention in some

cases are likewise strong. In other contexts, familiar

to the States, this Court has reconciled these inter-

ests by permitting extended “regulatory” detentions,

id. at 746—but only where the detaining authority

can make a sufficient affirmative showing that the

deprivation of liberty is clearly justified in each par-

ticular case. That approach strikes an appropriate

balance between individual and governmental inter-

ests, and the Court should apply it here.

6

A. Unnecessary Detentions During Remov-

al Proceedings Impose Substantial Indi-

vidual And Public Harms

The statutes at issue in this case result in the

prolonged detention of thousands of individuals every

year. In many of these cases, there is no good basis

for concluding that the individual involved is likely

either to abscond or to create any danger to the com-

munity while removal proceedings remain pending.

As the court of appeals concluded, most members of

the respondent class have “strong ties to this country:

Many immigrated to the United States as children,

obtained legal permanent resident status, and lived

in this country for as long as twenty years before

[federal authorities] initiated removal proceedings.”

Pet. App. 20a.

These individuals are frequently valuable mem-

bers of our local, state, and national communities.

They are employees and employers, family members

and heads of household, caregivers, congregants, stu-

dents, and active participants in a wide range of so-

cial organizations. Many are married to citizens or

lawful permanent residents, have children born in

this country, and hold steady jobs that provide for

themselves and their families. Pet. App. 20a. A sub-

stantial portion of the class has no criminal history;

and of those who have been convicted of any crime,

more than half served a sentence of less than six

months. Resp. Supp. Br. 6; see also Pet. App. 20a

(“To the extent class members have any criminal rec-

ord ... it is often limited to minor controlled sub-

stances offenses.”). Moreover, most individuals in

removal proceedings are seeking, in those proceed-

ings, to demonstrate or secure a legal entitlement to

remain in the United States. And a significant num-

7

ber are successful in that effort. See Pet. App. 19a

(71% of respondent class members sought relief from

removal, and one-third of those who did were suc-

cessful); see also Resp. Supp. Br. 4-6 (nearly two-

thirds of Arriving Subclass members and two-fifths of

Mandatory Subclass members received favorable de-

cisions in removal proceedings).

Similarly, individuals facing removal proceedings

frequently play an important role in our economies.

Undocumented immigrants, for example, account for

approximately $181 billion of California’s gross do-

mestic product each year.2 Non-citizens also make

up a substantial portion of the workforce in our

States in key job sectors such as agriculture, infor-

mation technology, and high-tech manufacturing. 4

And they tend to complement, rather than compete

with, non-immigrant employees, filling jobs that oth-

er workers often decline to take.4 Moreover, immi-

grants contribute substantially to state and local

coffers by paying property, sales, and income taxes.5

2 California Immigrant Policy Ctr., Resilience in an Age

of Inequality: Immigrant Contributions to California at 3 (Jan.

23, 2017), http://www.caimmigrant.org/research-and-analysis/

contributions-htm|I/.

3 Audrey Singer, Brookings Inst., Immigrant Workers in

the U.S. Labor Force (Mar. 15, 2012), https://www.brookings.

edu/research/immigrant-workers-in-the-u-s-labor-force/.

4 ICE Worksite Enforcement — Up to the Job?: Hearing

Before the Subcomm. on Immigration Policy and Enforcement of

the H. Comm. on the Judiciary, 112th Cong. 101-112 (2011) (tes-

timony of Cato Institute scholar Daniel Griswold); cf. Patricia

Cortes, The Effect of Low-Skilled Immigration on U.S. Prices:

Evidence from CPI Data, 116 J. Pol. Econ. 381, 414 (June 2008).

5 Lisa Christensen Gee, ect al., The Inst. on Taxation &

Econ. Policy, Undocumented Immigrants’ State & Local Tax

(continued...)

8

Indeed, undocumented immigrants alone account for

approximately $11.64 billion in state and local taxes

each year nationwide.®

Far from seeking to promote or assist in their

removal, many States have taken a range of actions

to foster the integration of immigrants into local

communities and to safeguard their legal rights. Cal-

ifornia’s public universities, for example, charge in-

state tuition and provide financial aid to non-citizen

students with significant ties to the State, regardless

of their current status under federal immigration

law. Cal. Educ. Code §§ 66021.6, 68130.5, 68130.7,

70030-70039. California adopted these measures be-

cause they benefit both the student and the State: by

making college affordable, these fair tuition policies

“increase[] the [S]tate’s collective productivity and

economic growth.” 2001 Cal. Stats. ch. 814, § 1(a)(3).

Washington’s public universities likewise permit un-

documented students with substantial connections to

the State to pay in-state tuition. Wash. Rev. Code

§ 28B.15.012(2)(e); see also N.Y. Educ. Law

§ 355(2)(h)(8) (extending in-state tuition to certain

undocumented students). California also allows in-

dividuals who are not lawfully present in this coun-

try to obtain drivers licenses, based on _ the

Legislature’s finding that this measure improves

road safety. 2013 Cal. Stats. ch. 524, § 1; see also

Cal. Veh. Code § 12801.9. In addition, California has

provided funds to pay for legal services for unaccom-

panied minors in federal removal proceedings, in an

(...continued)

Contributions at 2 (February 2016), http://www.itep.org/pdf/

immigration2016.pdf.

6 Id. at 1.

9

effort to ensure that the legal process they receive is

fair. Cal. Welf. & Inst. Code § 13300. And New

York’s labor protections extend to undocumented

workers. See Balbuena v. IDR Realty LLC, 6 N.Y.3d

338, 362 (2006).’

Because so many non-citizens create value—not

danger—in our communities, prolonged detention in

connection with federal removal proceedings will of-

ten burden both individuals and States in ways that

are unjustified and substantial. From a public per-

spective, removing individuals from productive work

or social engagement is doubly costly: Detention is

not only expensive, but forces idleness. It can cause

detainees to lose their jobs or their homes—

consequences that are especially harsh for those who

return to their communities after obtaining a

favorable result in removal proceedings. It also puts

a double strain on social resources, reducing state

and federal tax receipts while increasing the demand

for public support for those financially dependent on

detainees.

Most significantly, prolonged detention imposes

great human costs. Roughly one in five undocument-

ed immigrants is married to a U.S. citizen or legal

permanent resident. And nearly half of all undocu-

1’ See also Cal. Bus. & Prof. Code § 135.5 (state licensing

boards may not deny professional licenses on account of citizen-

ship or immigration status, based on Legislature’s finding that

it is in the State’s “best interests” to provide licenses to such

persons); Cal. Welf. & Inst. Code § 14007.8 (extending Califor-

nia’s Medicaid program to undocumented minors).

6’ Ctr. for Am. Progress, Facts on Immigration Today

(Oct. 23, 2014), https://www.americanprogress.org/issues/

immigration/report/20 1 4/10/23/59040/the-facts-on-immigration-

today-3/.

10

mented immigrants are parents to minor children

who live in this country.® Approximately 5.5 million

children, including 4.5 million U.S. citizens, have at

least one parent who is an undocumented

immigrant. '° Similarly, many of the 13.1 million le-

gal permanent residents who live in the United

States have family ties to this country.!! Detention

of any non-citizen for prolonged (or even simply un-

certain) periods can throw the individual's family in-

to economic disarray: without the detainee’s income,

the family may be unable to afford groceries or forced

into homelessness.” Detention of a parent can have

particularly harsh consequences for children: some

struggle in school, and others may be forced into fos-

ter care.!3 The latter result can prove especially cost-

ly to the States, which spend approximately $26,000

9 Id.

10 Pew Research Ctr., Unauthorized Immigrant Popula-

tion: National and State Trends, 2010 at 13 (Feb. 1, 2011),

http:/www pewhispanic.org/filea/reports/133.pdf.

il Jie Zong & Jeanne Batalova, Migration Policy Inst.,

Green-Card Holders and Legal Immigration to the United States

(Oct. 1, 2015), http://www.migrationpolicy.org/article/green-

card.holders-and-legal-immigration-united-states (66% of immi-

grants who obtained legal permanent resident status in 2013

did so on the basis of a family relationship).

12 Ajay Chaudry, et al., The Urban Inst., Facing Our Fu-

ture: Children in the Aftermath of Immigration Enforcement at

29.33 (Feb. 2010), http://www.urban.org/sites/default/files/

publication/2833 1/41 2020-Facing-Our-Future pdf.

13 Jd. at 49-51; Susan D. Phillips, et. al., Children in

Harm's Way: Criminal Justice, Immigration Enforcement, and

Child Welfare at 22 (Jan. 2013), https://firstfocus.org/wP-

content/uploads/20 1 3/02/Children-in-H arms-Way.pdf.

11

per year on each foster child.'4 Prolonged detention

also disrupts some of society's most important

relationships by separating spouses from each other

and parents from children. See Obergefell v. Hodges,

135 S. Ct. 2584, 2594 (2015) (“The first bond of socie-

ty is marriage; next, children; and then the family.”’).

Because prolonged civil detentions during federal

removal proceedings can impose such heavy personal

and social costs, they demand equivalently weighty

and personal justifications.

B. This Court’s Decisions Establish A

Framework For Ensuring That Gov-

ernment Authorities Adequately Jus-

tify Civil Detentions

This Court has considered a variety of contexts in

which government authorities seek to detain

individuals for extended periods for reasons other

than punishment for proven crimes.'5 In those con-

texts—very familiar to the States, which have the

primary government role in most such situations—

the Court has consistently made clear that “civil

commitment for any purpose constitutes a significant

deprivation of liberty that requires due process pro-

tection.” Addington v. Texas, 441 U.S. 418, 425

(1979) (civil commitment for mental health treat-

ment).

_—

'4 Nicholas Zill, Nat'l] Council For Adoption, Better Pro-

spects, Lower Cost: The Case for Increasing Foster Care Adop-

tion at 3 (May 2011), https://www.adoptioncouncil.org/files/

large/9422a636dfac395.

15 Cf. Foucha, 504 U.S. at 80 (“A State, pursuant to its

police power, may of course imprison convicted criminals for the

purposes of deterrence and retribution.”).

12

Notably, these precedents address situations in

which the case for detention can be very strong.

When an individual has a severe mental illness, de-

tention for treatment may be necessary to protect

public safety—and, indeed, may be viewed as advanc-

ing the objective interests of the individual himself.

Where a person is facing criminal prosecution for a

serious crime, the public interests in community

safety and an effective judicial process may again

weigh heavily in favor of detention pending a full

trial. Nonetheless, this Court has narrowly confined

the circumstances under which a State may detain

such individuals for more than a few days without

individualized review by a neutral arbiter.

As to civil commitment for the mentally ill, for

example, in our society a State may not “lock[] a per-

son up against his will and keep] him indefinitely”

without affirmatively demonstrating, to a neutral de-

cision-maker, not only that the individual is mentally

ill but that detention is necessary to avoid a risk of

physical harm to the detainee or others. O’Connor v.

Donaldson, 422 U.S. 563, 575 (1975). Likewise, if a

criminal defendant is found not guilty by reason of

insanity, even if the crime was serious or violent, the

government may detain the individual for super-

vision and treatment only so long as it can show that

he remains both mentally ill and personally danger-

ous. See Foucha, 504 U.S. at 77-78. And if a defend-

ant is found incompetent even to stand trial, the

State still may not detain him, absent separate civil

commitment proceedings, for more “than the reason-

able period of time necessary to determine whether

there is a substantial probability that he will attain

[competency] in the foreseeable future.” Jackson v.

Indiana, 406 U.S. 715, 738 (1972); see Foucha, 504

U.S. at 79.

13

These due process protections are not without

cost. Providing individualized consideration and

neutral adjudication in thousands of cases every year

can be time-consuming and _ expensive. Cf.

Boumediene, 553 U.S. at 769 (“Compliance with any

judicial process requires some incremental expendi-

ture of resources.”); but see J.A. 588 (parties’ stipula-

tion that cost of bond hearings pending completion of

removal proceedings is not greater than cost of de-

taining class members). Moreover, requiring the

government to justify any prolonged detention no

doubt results in some harms caused to individuals

and communities that might have been prevented if

government authorities could act based on less or dif-

ferent evidence, or rely more on stereotypes and cat-

egorical assumptions, or continue detentions based

on executive determinations without periodic review

by a neutral arbiter. Consistently, however, this

Court has balanced the interests involved in these

situations in a manner that favors the basic principle

of freedom from restraint.

Although that principle imposes burdens on

even well-intentioned public authorities, the amici

States recognize that it also protects the liberty of

our people. We strongly endorse this Court's

continuing vigilance to ensure that the Constitution

likewise adequately restrains prolonged detentions of

non-citizens by federal immigration authorities. This

is especially important at a time when non-citizens

have become the repeated targets of open fear-

mongering and political attacks. Particularly at such

a time, the courts must demand proper and individu-

alized justification for any prolonged executive deten-

tion. “Mere public intolerance or animosity” toward

“those whose ways are different ... cannot constitu-

14

tionally justify the deprivation of a person’s physical

liberty.” O’Connor, 422 U.S. at 575.

C. Equivalent Protections Should Apply

Where The Federal Government Seeks

To Detain Individuals During Remov-

al Proceedings

This Court has recognized that cases dealing

with other types of civil detention are relevant in the

immigration context. Zaduvydas v. Davis, 533 U.S.

678, 690 (2001). Rejecting a broad assertion by the

federal government that “alien status itself [could]

justify indefinite detention” of a non-citizen already

held to be removable, the Court emphasized that it

has previously countenanced civil detention only “in

certain special and ‘narrow’ nonpunitive ‘circum-

stances’ where a special justification, such as harm-

threatening mental illness, outweighs the

‘individual’s constitutionally protected interest in

avoiding physical restraint.” Jd. at 690, 692 (citation

omitted; quoting Foucha, 504 U.S. at 80, and Kansas

v. Hendricks, 521 U.S. 346, 356 (1997)). Even where

there is such a justification, the Court has held that

due process requires the use of “constitutionally ade-

quate procedures to establish the grounds for ... con-

finement.” Foucha, 504 U.S. at 79.

The Court should now make clear that the Con-

stitution provides equivalent protections for non-citi-

zens whom federal authorities seek to detain for

prolonged periods during removal proceedings. No

doubt the federal government will be able to show

that some individuals must be detained because they

pose a danger to the community or a risk of flight. It

should not, however, be permitted to detain individu-

al non-citizens for prolonged periods on the basis of

group classifications, assumptions, or stereotypes.

15

The strong personal, community, and public interests

in avoiding lengthy and unnecessary immigration-

related detentions warrant the same sort of proce-

dural protections that our society provides for other

civil detainees.

The most basic of these protections is the right to

an individualized assessment, before a neutral adju-

dicator, of the asserted need for the detention. See,

e.g., Foucha, 504 U.S. at 77-83 (emphasizing need for

individualized showing of proper, current grounds for

detention). In these proceedings, the detaining au-

thority normally has the burden of justifying any ex-

tended detention, which it typically must carry by

providing clear and convincing evidence of a current

basis and need for the detention. See Addington, 441

U.S. at 433 (mental illness); Foucha, 504 U.S. at 86

(continued detention based only on asserted danger

to community); Salerno 481 U.S. at 751 (describing

statutory protections for pretrial arrestees).

In addition, the Court has considered the length

of detention a highly relevant factor in the due pro-

cess analysis. See Salerno 481 U.S. at 747 (pretrial

detention permissible in part because of “stringent

time limitations of the Speedy Trial Act”); Demore v.

Kim, 538 U.S. 510, 513, 529-530 (2003) (detention

permissible in part because it typically lasted for only

a “brief period”). Where detention is or may be pro-

longed, the Court has also looked to the availability

of periodic review to ensure that the grounds assert-

ed by the government to justify the detention remain

current and valid. See Hendricks, 521 U.S. at 363-

364 (post-sentence detention of sexually violent crim-

inals allowed in part because of required annual re-

assessment); Foucha, 504 U.S. at 77-83 (need for new

showing when conditions or grounds for detention

16

change); cf. Jackson, 406 U.S. at 738 (detention on

ground of incompetence to stand trial “must be

justified by progress toward” regaining competency;

otherwise, government must establish new ground

for continued detention).

The respondents in this case seek essentially the

same basic protections. The federal petitioners have

responded that special features of the immigration

context justify providing less protection for non-

citizens in removal proceedings. See, e.g., U.S. Supp.

Br. 33-34. The amici States offer the perspective of

coordinate governments that also routinely face the

need to balance considerations of personal liberty

against those of public safety and orderly legal pro-

cedure. Moreover, as discussed above, many of the

non-citizens whose protection is at issue are also

state residents and members of our communities.

From these perspectives, the federal government's

arguments are unpersuasive.

Federal primacy in immigration matters, for ex-

ample, does not justify denying non-citizen state res-

idents basic due process protections. Even in this

area, exercises of federal power are “subject to im-

portant constitutional limitations.” Zadvydas, 533

U.S. at 695.16 These should include the requirement

of individualized determinations of flight risk and

dangerousness pending the completion of removal

proceedings.

16 Cf. INS v. Chadha, 462 U.S. 919, 940-942 (1983)

(Congress must chose a “constitutionally permissible means of

implementing” its authority over immigration law); Jordan v.

De George, 341 U.S. 223 (1951) (deportation statute must satisfy

void-for-vagueness doctrine).

17

Requiring such an individualized assessment

likewise does not impinge on federal authority to con-

trol admission into the United States. See U.S. Supp.

Br. 19-21. Allowing non-citizens who do not pose

demonstrable risks of dangerousness or flight to con-

tinue their ordinary activities while the government

seeks to establish that they should be deported—and

they seek to establish that they should not—will not

change the legal standards governing those

questions, or confer any otherwise unavailable right

to enter or remain in the United States.'’ Similarly,

providing standard due process protections does not

require allowing individuals subject to removal pro-

ceedings to live “at large.” See U.S. Supp. Br. 20.

Respondents have made clear that they do not con-

test the government’s ability to subject them, during

such proceedings, to appropriate monitoring short of

physical detention. See Resp. Supp. Br. 36-37; see

also Zadvydas, 533 U.S. at 695-696.

Finally, that some persons who are not detained

may then abscond or commit crimes does not justify

detaining all non-citizens based on broad categorica!

judgments, without an individualized demonstration

of substantial risk. See U.S. Supp. Br. 44-45. The

amici States of course share concerns about public

safety and improper flight—in this context as in oth-

ers. In case after case, however, this Court has made

17 [t is worth recalling that a significant number of indi-

viduals who are placed in removal proceedings do establish a

right to remain. For example, more than 71% of those in the

respondent class have sought relief from removal, and roughly

one-third of those who have sought it have prevailed. See Pet.

App. 19a; see also Resp. Supp. Br. 4-6 (nearly two-thirds of Ar-

riving Subclass members and two-fifths of Mandatory Subclass

members prevail at removal proceedings).

18

clear that categorical fears are not a constitutionally

sufficient basis for extended detentions. Indeed, a

central principle of the civil detention cases is that a

decision so profoundly restricting personal liberty

must be based on an individualized demonstration of

real need—not on_ group _ stereotypes’ or

unsubstantiated fears. Compare Korematsu v. Unit-

ed States, 323 U.S. 214, 218-219 (1944). This is che

standard our society applies in the face of risks po-

tentially posed by those charged with but not yet

convicted of serious crimes, and by those whose men-

tal illness could make them dangerous or has even

already led to criminal acts. See, e.g., Salerno, 481

U.S. at 750 (arrestees); O'Connor, 422 U.S. at 574

(mentally ill); Jackson, 406 U.S. at 738 (individual

incompetent to stand trial); Foucha, 504 U.S. at 83

(individual previously acquitted based on legal insan-

ity). We should not allow the federal government to

apply a lower standard in making detention decisions

concerning non-citizen state residents potentially

subject to removal.

Of course, the procedures required by due process

can vary considerably depending on particular cir-

cumstances. See, e.g., Mathews v. Eldridge, 424 U.S.

319, 334 (1976). In a few situations, for example,

there might be genuine questions of “terrorism or

other special circumstances where special arguments

might be made for forms of preventive detention and

for heightened deference to the judgments of the po-

litical branches with respect to matters of national

security.” Zadvydas, 533 U.S. at 696. But those sit-

uations are the exception, not the norm, and they are

not involved here.'® It is vital that vague invocations

‘8 For instance, this case does not involve detention of

(continued...)

19

of phrases such as “national security” or “terrorism”

not be allowed to justify erosion of fundamental liber-

ties such as the freedom from physical restraint.

Speaking as governments themselves, the amici

States believe that the basic procedural protections

sought by respondents will, in most cases, strike an

appropriate balance between individual liberty inter-

ests and the federal government’s need to detain non-

citizens in removal proceedings who present a genu-

ine risk of flight or community danger. And any sub-

stantially lower constitutional standard risks

empowering federal authorities to subject our non-

citizen residents and community members to unjusti-

fied or even arbitrary detentions.

(...continued)

suspected terrorists under a special statutory provision. See

Pet. App. 5a-Ga; see also 8 U.S.C. §§ 1226a, 1537.

20

CONCLUSION

If this Court reaches the constitutional questions

presented by this case, it should hold that the Consti-

tution requires appropriate procedural protections

when the federal government seeks to detain indi-

viduals during removal proceedings for prolonged pe-

riods.

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

MICHAEL J. MONGAN

Deputy Solicitor General

SAMUEL P. SIEGEL

MAX CARTER-OBERSTONE

Associate Deputy Solicitors

General

February 10, 2017

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