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

es —-

No. 15-1204

3n the Supreme Court of the Anited States

DAVID JENNINGS, ET AL.,

Petitioners,

Vv.

ALEJANDRO RODRIGUEZ, ET AL., INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

SUPPLEMENTAL BRIEF OF AMICUS CURIAE

EAGLE FORUM EDUCATION & LEGAL

DEFENSE FUND IN SUPPORT OF

PETITIONERS

LAWRENCE J. JOSEPH

1250 CONNECTICUT AVE. NW

SUITE 200

WASHINGTON, DC 20036

(202) 202-355-9452

lj@larryjoseph.com

Counsel for Amicus Curiae

A ce a

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

QUESTIONS PRESENTED

Pursuant to this Court’ Order dated December 15,

2016, supplemental briefing in this action presents

three questions:

1. 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

detention lasts six months.

2. 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.

3. 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

demonstrates by clear and convincing evidence that

the alien is a flight risk or a danger to the community,

whether the length of the alien’s detention must be

weighed in favor of release, and whether new bond

hearings must be afforded automatically every six

months.

TABLE OF CONTENTS

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a npicienaiiamaenoenenceuuunc 2

Constitutional Background ................................. 3

Statutory Background .......... spat nbiadaeakeguabanicomale 4

Regulatory Background ..................cccccccccscsocsccesee 5

ESET MRE ne 5

RC Ce LOT Fe PEON SORT RE TE 6

ESL SS ST EE EE SC,

I. This litigation does not provide an appropriate

vehicle to decide constitutional questions. ......... 8

A. Outside of the original habeas corpus

action, judicial review is precluded by

statute and sovereign immunity................... 8

B. In almost all — if not all — cases, the

alien’s detention is the alien’s choice.......... 13

C. Aliens lack independent standing to bail

hearings without showing a concrete

D. Aliens cannot use a class-action suit to

set facial rules for future individualized

hearings when many — indeed most —

class members have no claim to relief. ....... 16

E. The Declaratory Judgment Act does not

expand this Court’s jurisdiction to cover

the procedural protections Aliens seek....... 19

F. Director Jennings is the only proper

defendant-respomndent....................scccssessseees 20

i

Il. Ifit reaches the constitutional merits, this

Court should rule for the Government.............. 21

A. Six months of detention do not trigger

Due Process rights for aliens. ..................... 21

1. The six-month trigger does not apply

to the Arriving Class of aliens.............. 24

2. The six-month trigger does not apply

to the Mandatory Class of aliens.......... 25

B. The Constitution does not support the

Ninth Circuit’s procedural demands. ......... 26

1. The Government does not bear the

burden of proof on flight risk or

danger to the community...................... 26

2. Ifthe government bore the burden of

proof, the quantum of proof would not

be clear and convincing evidence. ........ 27

3. The Constitution does not compel new

hearings, automatically, every six

months, without material change to a

detainee’s circumstances. ..................... 28

OS S'SSERL BESET A EIN GES SO ALE EN OED AD AL eo, 29

TABLE OF AUTHORITIES

Cases

Air New Zealand Lid. v. C.A.B.,

726 F.2d 832 (D.C. Cir. 1984) ..........0.....0....0.. 12

Armstrong v. Exceptional Child Ctr., Inc.,

T_T 29

Auer v. Robbins,

a es x 29

Barker v. Wingo,

We Pty MI TED vcs secices eds eek cc 23

Bennett v. Spear,

ee, Eo ee 3-4

Brockett v. Spokane Arcades,

ee ae 18

Calderon v. Ashmus,

oectined, TT 20

Carlson v. Landon,

I Mc 26

Christopher v. Harbury,

ay A 16

Clapper v. Amnesty Int'l USA,

| ene 14, 15

DaimlerChrysler Corp. v. Cuno,

tn... SRS eis 4,14

Demore v. Kim,

538 U.S. 510 (2003)....... 3, 10-12, 16, 21-23, 25, 27

Dept. of Army v. Blue Fox, Inc..

2. Sa eer

Doe v. Reed,

561 U.S. 186 eg Per vonieeh eh ID TA aa ae 17-18

Duke Power Co. v. Carolina Envtl. — vn ,

438 U.S. 59 (1978)... ele. as wicabeameemiiencns aaa

Ex parte Young,

Sa acewaimeuniyones 9

F.C.C. v. Beach Communications, Inc.,

Be I BE so cccccstirdnwoescnccunesecuvececescons 23, 28

Fiallo ex rel. Rodriguez v. Bell,

I, BE ET isvckece eo csicnceckicescnsaassce AR eWE d 25

Gonzales v. Carhart,

oad a cds emmemetiiconen 17

Green v. Mansour,

a inlosinsibanenvannbnds ee

I.N.S. v. Natl Ctr. for Immigrants’ Rights,

Soa os abunndcnvecsas 17

INS v. St. Cyr,

533 U.S. 289 (2001)... i od a pi aeleksanadyece ee

Jerman v. Carlisle, MeNellie, Rini, as &

Ulrich, L.P.A., 559 U.S. 573 (2010).................... 14

Kleindienst v. Mandel,

406 U.S. 763 ((972)........................ tee a 3, 25

Landon v. Plasencia,

so ssa ubaesboubaneis 14-16, 21

Lane v. Pena,

sag dababuansesivaosiiouss 9

Lehnhausen v. Lake Shore Auto Parts Co.,

I I sods cevcadcsieseocassneswses cas coins 23, 28

Lewis v. Casey,

a cc asinicudesnsncotiausévsies 14

Lujan v. Defenders of Wildlife,

Se ne, SI IIR si ccnecicavésavensenconsvecviscccsesoses 15-16

Minnesota v. Clover Leaf Creamery Co.,

GOD UTED. GD CRE was ive nvncivvsccvadecsees coeccec armen 23

Montana v. U.S..,

GOD UF BB. BT CRF cc iccncensictiemusscseeheseeenaee 10

Morales v. Trans World Airlines, Inc.,

GOP BR ts Reenter 18

Penfield Co. v. SEC,

SRO UB: GE IDEA)... ..ncecccscivssitnticennetenaee 13

Pennsylvania v. New Jersey,

GBB TFB. GD Ce ive ctsdenescestveiecan ccna 14, 15

Pub. Serv. Comm’n v. Wycoff Co.,

Pte & 22). are 20

Reno v. Flores,

eit @ of) es 3, 21

Rumsfeld v. Padilla,

Ge Te, GE Ge ov sce ssessehceccivecosscsbteaae 20-21

Schaffer v. Weast,

56h fl. } ereenene tee eee! 26, 27

Schlanger v. Seamans,

GOR UB, GBF CIB vnc avicastitsniotoicceesct ieee 21

Sea-Land Serv., Inc. v. Alaska R.R.,

659 F.2d 243 (D.C. Cir. 1962) ..........cccccossesecesesess 10

Shaughnessy v. U.S. ex rel. Mezei,

S45 UBF. BOG CEBGDD .ccccesccccvcesescnsscvseses 16, 21-22, 24

Simon v. Eastern Ky. Welfare Rights Org.,

BBB Un. BB CFD ticcexcncecccccsevsntsieainananaane 3

Sorrell v. IMS Health Inc.,

tie koe |. > : pee one 17

Summers v. Earth Island Inst.,

te EE 16

v1

Susan B. Anthony List v. Driehaus,

as ccessacoucebons 18

U.S. ex rel. Knauff v. Shaughnessy,

a scnvorsononencnctes 28

U.S. v. King,

396 U.S. 1 (1969)............... en ccndeecanmnaiaia 9

U.S. v. Mendoza,

464 U.S. 154 (1984)............... ee les 10

U.S. v. Salerno,

nn CII... wrecadesevesscconscvoses 17, 19

U_S. v. Sherwood,

a casawneniavowsounate i)

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

454 U.S. 464 (1982)................. SO na se nd 3

Walters v. Reno,

146 F.3d 1032 (9th Cir. 1998)..................-...000000 10

Wilkinson v. Dotson,

EE 10

Zadvydas v. Davis,

533 U.S. 678 (2001)........... sare Bs: 3, 9, 13, 24, 26, 28

Statutes

ES nO EN 3

on oo cc ccoveceecsvesnessessenacecs 18-19

0 ee 3, 6-7, 14-16, 20

a scopes race casatsnconsnesosoeseoscees 3

U.S. CONST. amend. V ...... SEER AS aS ET 3

U.S. CONST. amend. V, cl. 4............. 7,-8, 16, 21-22, 24

Administrative Procedure Act,

en .ciceasiinsssbissmanenovorecses 12

5 U.S.C. §553(e)........-. Taste et et te 29

5 U.S.C. §701(a)......-..0.-escceeseceeeeees "case mmpbuccltiecsdiiti 6

SELMER OE OTT 12

Oe I es cissscopsinncncensibersennmennneocemenenits ca

I icici sceseickncctebinniorsitpmmcnasncd semanas 6, 10-12

ng Me Los eet en 6, 11-12

Immigration & Naturalization Act,

EG, BE - BG ceccocctcccncccscsccccssecssccessutewonsoese 4

Fcc ccescccncesscsietcinansesesnsscenincunennnesenns 2

jit tm). -dincedinaaspunhissadbcalimanvasadd 2

i I vnc onccesrccecoscsscenessscogucnisnstindbaaenbinnsiate 2

8 U.S.C. §1226 (2) o.oo. ceceene poe 4-5, 6, 11-12, 22

Sa eee... i. 4, 6, 10-12, 20, 22

Oe I inccrescsesscerinessqrccustcenesatbinnddnanionessinns 22

8 U.S.C. §1182(d)(5)(A) ............... OT cuueateteasemansmntaees 5

SLES LEED LT ELE 8-9

BB UF BG, BD ccccccccccccscccseccesccsesascorssnceeveresceencees 20

Declaratory Judgment Act,

BB UB... SBOE - BOG 2.000 ccccovcccvcccccccesevesess 7, 19-20

EEE 19, 20

ESS LE OL eee NS: 4, 8-9, 19-20

Oe I cs dctbbianhaeiannienennsonnlasiantncienenamanl 19

RE AEE I TO ESD Sell OI 19

CE IPR ENO I IRE 29

42 U.S.C. §1983 ... PEL PIAS E TPE Nt

Rules, Reeniesiens pe Orders

I ao caulapeuibliaieeln 1

ich A St” SEE oen menor mene 5, 29

Other Authorities

Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris

Guthrie, Heart Versus Head: Do Judges Follow

the Law or Follow Their Feelings?, 93 TEX. L.

See Es TIE descsicieciapscicrnentinninreineneniantedbiones

No. 15-1204

Bu the Supreme Court of the Gnited States

DAVID JENNINGS, E7'AL.,

Petitioners,

v.

ALEJANDRO RODRIGUEZ, ET AL., INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

INTEREST OF AMICUS CURIAE

Amicus curiae Eagle Forum Education & Legal

Defense Fund, Inc. (“EFELDF”) is a _ nonprofit

corporation founded in 1981.! For more than thirty-

five years, EFELDF has defended American

sovereignty and promoted adherence to federalism

and the separation of powers under the U.S.

Constitution. In addition, EFELDF has consistently

opposed unlawful behavior, including illegal entry

t This amicus brief is filed with written consent of all parties;

the parties’ written consents have been lodged with the Clerk of

the Court. Pursuant to Rule 37.6, counsel for amicus curiae

authored this brief; no party’s counsel authored this brief in

whole or in part, nor did any person or entity other than amicus,

its members, and its counsel make a monetary contribution to

the preparation or submission of this brief.

1

into and residence in the United States, and

supported enforcing immigration laws. For all these

reasons, EFELDF has direct and vital interests in the

issues before this Court.

STATEMENT OF THE CASE

On behalf of a class of aliens detained by the Los

Angeles District of the Immigration and Customs

Enforcement (“ICE”) for six months or longer,

awaiting the resolution of their removal or admission

process, a group of aliens (hereinafter, “Aliens”) have

sued the Field Office Director and several higher-

ranking federal officers (collectively, the

“Government”) to seek periodic bond hearings at

which an immigration judge can assess Aliens’

eligibility for bail, in light of the class members’ flight

risk and danger to the community. The lower courts

divided the class into three subclasses, based on the

statutes under which the aliens are detained: Sections

1225(b), 1226(c), and 1226(a). 8 U.S.C. §§1225(b),

1226(a), (c). Of the three subclasses, only the Section

1225(b) detainees already received an initial bail

hearing. The other two classes are also known as the

“Arriving Class” for aliens taken into custody at the

border, 8 U.S.C. §1226(a), and the “Mandatory Class”

for convicted criminals in removal proceedings, id.

§1226(c). In addition to claiming a due-process right

to periodic bond hearings, Aliens also seek favorable

procedural facets connected to those hearings, such as

shifting the burden of proof to the Government.

: ICE is the successor within the Department of Homeland

Security (“DHS”) of the former Immigration and Naturalization

Service (“INS”).

2

Constitutional Background

Congress — and thus its enforcement and rule-

making delegates in the Executive Branch — have

plenary authority over immigration. U.S. CONST. art.

I, §8, cl. 4; Kleindienst v. Mandel, 408 U.S. 753, 766

(1972). While “[i]t is well established that the Fifth

Amendment entitles aliens to due process of law in

deportation proceedings,” Reno v. Flores, 507 U.S.

292, 306 (1993), it is at least as well established that

“detention during deportation proceedings [is] a

constitutionally valid aspect of the deportation

process.” Demore v. Kim, 538 U.S. 510, 523 (2003). The

due-process inquiry thus concerns what process is due

in a particular setting. In general, courts intervene

only when detention ceases to serve its immigration

role — such as when detention becomes permanent,

and thus punitive — because the detention then leaves

the immigration context— which allows it— and

becomes a potential due-process violation. Zaduvydas

v. Davis, 533 U.S. 678, 697 (2001).

Under Article III, federal courts are limited to

hearing cases and controversies, U.S. CONST. art. ITI,

§2, which is relevant here primarily in the “bedrock

requirement” of standing. Valley Forge Christian

College v. Americans United for Separation of Church

& State, Inc., 454 U.S. 464, 471 (1982). This limit is

“fundamental to the judiciary’s proper role in our

system of government.” Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 37 (1976). In both its

constitutional and prudential strands, standing is

“founded in concern about the proper — and properly

limited — role of the courts in a democratic society.”

Bennett v. Spear, 520 U.S. 154, 162 (1997) (interior

3

quotations and citations omitted). Indeed, standing is

“crucial in maintaining the tripartite allocation of

power set forth in the Constitution.” DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 341 (2006) (interior

quotations omitted, emphasis added).

Statutory Background

The parties outline federal immigration law, Gov't

Br. at 2-8; Aliens Br. at 2-5, so amicus EFELDF

focuses only on the statutory provisions salient to this

brief, which are the preclusion-of-review provisions. 8

U.S.C. §§1252(g), 1226(e). Because they go to juris-

diction but were not set out in the appendix, amicus

EFELDF sets them out in full here.

First, §1252(g) broadly limits any cause arising

from the Government’s decision to commence

proceedings against any alien under the Immigration

and Naturalization Act, 8 U.S.C. §§1101-1537 (“INA”):

Except as provided in this section and

notwithstanding any other provision of law

(statutory or nonstatutory), including

section 2241 of title 28, United States Code,

or any other habeas corpus provision, and

sections 1361 and 1651 of such title, no

court shall have jurisdiction to hear any

cause or claim by or on behalf of any alien

arising from the decision or action by the

Attorney General to commence proceedings,

adjudicate cases, or execute removal orders

against any alien under this Act.

8 U.S.C. §1252(g) (citations omitted).

Second, §1226(e) limits judicial review of the

Government’s “discretionary judgment” regarding the

application §1226:

4

The Attorney General’s. discretionary

judgment regarding the application of this

section shall not be subject to review. No

court may set aside any action or decision

by the Attorney General under this section

regarding the detention or release of any

alien or the grant, revocation, or denial of

bond or parole.

8 U.S.C. §1226(e).

Regulatory Background

The Government's implementing regulations

provide for bail hearings, but only upon material

changes from the prior bond determination:

After an initial bond redetermination, an

alien’s request for a subsequent bond

redetermination shall be made in writing

and shall be considered only upon a

showing that the alien’s circumstances

have changed materially since the prior

bond redetermination.

8 C.F.R. §1003.19(e).2

Factual Background

EFELDF adopts the facts as stated in the

Government's supplemental brief (at 10-17). In

summary, “when class members’ cases were

completed, the alien was virtually always found

removable and usually ordered removed.” Gov't

Suppl. Br. at 16. Indeed, “[flewer than 5% of studied

3 In addition to the material-change regulation, DHS may

release aliens into the United States on parole, “on a case-by-case

basis for urgent humanitarian reasons or significant public

benefit.” 8 U.S.C. §1182(d)(5)(A).

0

class members with completed cases won a

‘termination.” Jd. (citing J.A. 199). In other words,

“more than 95% were found removable,” id., which

means that they lacked any substantive right to be at

liberty inside the United States.

SUMMARY OF ARG UMENT

Before addressing the three questions presented

by the supplemental briefing order, amicus EFELDF

first discusses the jurisdictional and prudential issues

that go to whether this Court can or should reach the

merits issues under the Constitution.

At the outset, the systemic-review aspect of this

hybrid habeas action violates preclusion-of-review

provisions, including both statutory provisions, 8

U.S.C. §§1252(g), 1226(e), and nonstatutory ones, 5

U.S.C. §§701(a), 702, 704, which implicates the lack of

a waiver of sovereign immunity and, thus, a lack of

jurisdiction (Section I.A). Moreover, the fact that

Aliens have no right to be at large in the United States

means that they cannot manufacture that right by

voluntarily coming or staying here under the

available terms and then protesting those terms.

which trigger both a lack of entitlement to equitable

relief and a self-inflicted injury in their detention for

purposes of Article III (Section [.B). Similarly, to have

procedural standing for their bond hearings, Aliens

need to establish a concrete and cognizable injury,

which they generally cannot do because they lack

concrete rights vis-a-vis their liberty to be at large in

the United States (Section I.C). In essence, Aliens

seek facial relief in a facial challenge to detentions

longer than six months, which this Court should

dismiss because in most of the instances here, the

6

detention is perfectly legal under the Due Process

Clause (Section 1.D). Even if Aliens would have an

Article II] case or controversy in their individual

habeas actions, the Declaratory Judgment Act does

not create jurisdiction for a piecemeal review of the

bond-hearing issue that Aliens ask this Court to

resolve (Section I.E). Finally, the immediate-

custodian rule makes the director of the detention

facility the only proper respondent to Aliens’ habeas

petition, and the other defendants-respondents must

be dismissed (Section I.F).

With regard to the merits of the three questions

presented, amicus EFELDF respectfully submits that

Aliens are not entitled to any relief. As to both classes,

Aliens’ lack of a right to be in the United States works

against their entitlement to a bond hearing, absent a

factor — such as dilatory Government behavior or a

material change, for which hearings remain available

by regulation and via habeas review, without this

litigation — and Aliens’ theorizing otherwise based on

policy arguments and conjecture do not negative the

Government's legitimate position under the rational-

basis test that applies in the absence of a fundamental

right or protected class (Section II.A). In any event,

this Court’s precedents foreclose relief for both the

Arriving Class (Section IJ.A.1) and the Mandatory

Class (Section II.A.2). The Government should not

bear the burden of proof in bond hearings because this

Court has upheld instances where the detainees bore

that burden and because the default rule in civil cases

is that the plaintiff or movant (here, Aliens) bears the

burden of proving entitlement to the relief it seeks

(Section II.B.1). Because this is a rational-basis type

7

of due-process claim in which the movants have no

right to release, the burden — if the Government bears

it at all — should not be an elevated burden (Section

II.B.2). Finally, for similar reasons, this Court should

not require considering length of detention in bail

hearings because that would likely lead to more delay,

and in any event this Court should force Aliens to file

a rulemaking petition before allowing a time-barred

claim against the bond-hearing rule, especially when

Aliens raise policy-based arguments that they did not

submit to the agency during the prior notice-and-

comment rulemaking (Section II.B.3).

ARGUMENT

I. THIS LITIGATION DOES NOT PROVIDE

AN APPROPRIATE VEHICLE TO DECIDE

CONSTITUTIONAL QUESTIONS.

For several jurisdictional and prudential reasons,

this litigation is not an appropriate vehicle for the

systemic review of alien removal procedures that the

courts below promulgated under the Due Process

Clause. For those reasons, in addition to reversing the

Ninth Circuit's statutory holdings, this Court should

deny constitutional relief either prudentially or juris-

dictionally.

A. Outside of the original habeas corpus

action, judicial review is precluded by

statute and sovereign immunity.

Although this case began as a pure habeas corpus

action, the third — and operative — amended complaint

combines an aspect of systemic review of immigration

policy: “This action is both a complaint for declaratory

and injunctive relief under 28 U.S.C. 1331 and a

petition for writ of habeas corpus under 28 U.S.C.

8

2241[.]” Third Am. Compl. 42 n.1. Whether that type

of bootstrapping might work in some contexts, the

Aliens cannot bring such a suit against our federal

sovereign in this immigration context. Even if §1331

provides the district courts with general subject-

matter jurisdiction for federal questions, that subject-

matter jurisdiction does not address the immigration-

specific preclusion-of-review statutes or the United

States’ sovereign immunity.

Of course, the “United States, as sovereign, is

immune from suit save as it consents to be sued.” U.S.

vu. Sherwood, 312 U.S. 584, 586 (1941). A waiver of

sovereign immunity is thus a necessary prerequisite

to a court’s exercise of jurisdiction over the United

States. See, e.g., U.S. v. King, 395 U.S. 1, 4 (1969).

Such a waiver “must be unequivocally expressed in

the statutory text” and “strictly construed, in terms of

its scope,” in favor of the sovereign. Lane v. Pena, 518

U.S. 187, 192 (1996). “Absent a waiver, sovereign

immunity shields the Federal Government and its

agencies from suit,” without regard to any perceived

unfairness, inefficiency, or inequity. Dept. of Army v.

Blue Fox, Inc., 525 U.S. 255, 260 (1999). Here, the

relief afforded Aliens by the courts below exceeds the

limited relief available.‘

To support the complaint’s assertion that “28

U.S.C. 1331 ... confers jurisdiction to consider federal

4 The “officer suit” exception in Ex parte Young, 209 U.S. 123

(1908), provides a limited exception to sovereign immunity, but

only for ongoing violations of federal law. Green v. Mansour, 474

U.S. 64, 66-67 (1985). Accordingly, the only relief available

against the United States would apply to individual Zadvydas-

like cases, not to all detained Aliens.

9

questions,” Third Am. Compl. 42, the Aliens rely

principally on Walters v. Reno, 145 F.3d 1032, 1052

(9th Cir. 1998), in which the Ninth Circuit rejected the

Government's objection to an injunction against

future deportations. There, the Government — which

did not question jurisdiction generally — cited 8 U.S.C.

§1252(g) as precluding any injunctive relief for future

class members. Even if it did not involve other

statutes and issues, Walters would not be binding on

either this Court or the Government in this case.

Compare Montana v. U.S., 440 U.S. 147, 153 (1979)

with U.S. v. Mendoza, 464 U.S. 154, 162 (1984).5 If the

lower courts lacked jurisdiction for the systemic-

review facets of this case, no such relief is available

here, even if the parties have not briefed the

jurisdictional issues here.®

As to sovereign immunity, the 1976 amendments

to 5 U.S.C. §702 “eliminat/ed] the sovereign immunity

defense in all equitable actions for specific relief

against a Federal agency or officer acting in an official

capacity.” Sea-Land Serv., Inc. v. Alaska R.R., 659

F.2d 243, 244 (D.C. Cir. 1982) (quoting S. Rep. No.

996, 94th Cong., 2d Sess. 8 (1976); H.R. Rep. No. 1656,

94th Cong., 2d Sess. 9 (1976), 1976 U.S. Code Cong. &

Admin. News 6121, 6129) (R.B. Ginsburg, J.). But that

5 The other case that Aliens cite — Wilkinson v. Dotson, 544

U.S. 74, 82 (2006) — concerns availability of §1983 actions to

review parole-release procedures. See Third Am. Compl. 42.

Because Wilkinson concerned state actors, the federal

government's sovereign immunity obviously was not at issue.

6 “Although the parties did not raise the issue in their briefs

on the merits, we must first consider whether we have

jurisdiction to decide this case.” Demore, 538 U.S. at 516 (quoting

Florida v. Thomas, 532 U.S. 774, 777 (2001)).

10

waiver itself has restrictions, including withholding of

“authority to grant relief if any other statute that

grants consent to suit expressly or impliedly forbids

the relief which is sought,” 5 U.S.C. §702, and — for

issues not expressly reviewable by statute — allowing

review only where “there is no other adequate remedy

in a court.” Jd. §704. Here, legally adequate review is

available under the allowance for habeas corpus, and

that review in the immigration context has several

limits on review that preclude resort to §702’s broad

waiver.

In Demore, this Court held that §1226(e) does not

preclude “challenges [to] the statutory framework

that permits ... detention without bail.” 538 U.S. at

516-17. Amicus EFELDF respectfully submits that

the Court’s reasoning in Demore does not save Aliens

here for three reasons.

First, unlike in Demore, Aliens here claim a due-

process right to compel the Government to use less-

intrusive alternative to detention (e.g., intensive

supervision). See Aliens Suppl. Br. at 7, 28, 36-37.

Weighing detention versus supervised release is

precisely the “discretionary judgment regarding the

application of this section” that §1226(e) shields from

review.

Second, and along the same lines, §1252(g)

precludes both statutory and nonstatutory review “to

hear any cause or claim by or on behalf of any alien

arising from the decision or action by the Attorney

General to commence proceedings, adjudicate cases, or

execute removal orders.” 8 U.S.C. §1252(g) (emphasis

added). Unlike §1226(e), §1252(g) applies beyond

§1226 and extends more broadly than §1226(e)’s

11

“discretionary judgment” to reach “any cause or claim

arising from the decision ... to commence

proceedings ... against any alien under this Act.” 8

U.S.C.S. §1252(g) (emphasis added); see also 5 U.S.C.

§701(a)(2) (precluding review of “agency action ...

committed to agency discretion by law”).

Third, the nonstatutory review provisions in the

Administrative Procedure Act (“APA”) and its waiver

provision cut against review.’ Because statutory

preclusion-of-review provisions apply here, 8 U.S.C.

§§1252(g), 1226(e), the United States’ general waiver

of sovereign immunity does not apply. 5 U.S.C. §702;

accord id. §701(a)(1). Similarly, the habeas corpus

remedy is a legally adequate one, even if class

members prefer other methods of review. Transcript

of Oral Argument at 42:17-24, Jennings v. Rodriguez,

No. 15-1204 (U.S) (hereinafter, “Transcript”). As such,

the waiver of sovereign does not extend to alternate

procedures because there is an adequate habeas

remedy. 5 U.S.C. §§702, 704.

In short, the Court’s decision to review systemic

issues in Demore is not supportable here. This should

not be surprising, moreover, because — unlike in

Demore — the statutory scheme has not broken down

here (i.e., the removal proceedings are all on track,

with an end in sight).

7 The Court perhaps should distinguish between non-

statutory review and special forms of statutory review, as the

enactment of statutes such as the APA has rendered

“nonstatutory” something of a “misnomer.” Air New Zealand Ltd.

v. C_A.B., 726 F.2d 832, 836-37 (D.C. Cir. 1984) (Scalia, J.).

12

B. In almost all — if not all — cases, the

alien’s detention is the alien’s choice.

The detentions here are all in service of pursuing

the detainee’s decision to try to gain entry into or

avoid removal from the United States. Each detainee

is free to pursue that legal issue — entry or removal —

from abroad.’ The only thing that keeps most — and

probably all — class members in detention is their own

decision to remain here while the process resolves. To

the extent that the detainees have a credible fear that

they would face persecution in their homeland, other

countries are available. Thus, although the Aliens try

to analogize their detentions to compelled detention in

the criminal or civil contexts that apply to residents of

this Nation, that analogy is inapposite. Contrary to

compelled detainees, the detainees here “carry the

keys of their prison in their own pockets.” Penfield Co.

v. SEC, 330 U.S. 585, 590 (1947) (interior quotations

omitted). The detainees’ ability to escape detention by

simply leaving the United States undermines Aliens’

claims in two respects, one that goes to the equities

and one that goes to jurisdiction.

First, because the detainees choose detention over

the other perfectly viable and lawful choice — leaving

the United States — they cannot credibly ask a court

to compare them to lawful residents facing compelled

civil or criminal detention. In general, the detainees

8 Ofcourse, if any particular detainee — for whatever reason —

cannot go anywhere else in the world while the parties resolve

that detainee’s right to reside in the United States, detention

might cease to serve the intended immigration function, and that

detainee could seek relief under the rationale of Zaduvydas. But

that is for the detainee to establish. See Section I1.B.1, infra.

13

have no right to be in the United States, Landon v.

Plasencia, 459 U.S. 21, 32 (1982) (“an alien seeking

initial admission to the United States requests a

privilege and has no constitutional rights regarding

his application”), and thus can be excluded as an act

of sovereignty. Jd. Since no one is keeping them here,

they cannot credibly challenge the legislative grace

that allows them to stay at the taxpayers’ expense.'°

Second, under standing’s causation requirement,

a “self-inflicted injury” cannot manufacture an Article

III case or controversy. Clapper v. Amnesty Int'l USA,

133 S.Ct. 1138, 1152-53 (2013); Pennsylvania v. New

Jersey, 426 U.S. 660, 664 (1976). Amicus EFELDF

does not dispute that the detainees have an Article II]

case or controversy with the United States as to the

question of whether the detainees can remain here,

but “standing is not dispensed in gross.” Lewis v.

Casey, 518 U.S. 343, 358 n.6 (1996); DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 353 & n.5 (2006). Aliens

cannot bootstrap a Due Process claim to release into

the United States when their actual case involves only

an immigration claim as to whether they can enter or

remain in the United States. Pending the resolution

of their immigration claim, Aliens must choose

% Although they end up in a similar legal posture, see Section

IL.A.2, infra, legal permanent residents (“LPRs”) who lose their

LPR status upon conviction of certain crimes are different in this

respect: they have been admitted into the United States.

\0 Whether detainees knew the law or not prior to coming to

the United States, they are charged with knowing the law: “We

have long recognized ... that ignorance of the law will not excuse

any person, either civilly or criminally.” Jerman v. Carlisle,

McNellie, Rini, Kramer & Ulrich, L.P.A., 559 U.S. 573, 581

(2010) (interior quotations omitted).

14

between detention and leaving. The choice they make

does not entitle them to raise new claims.

Simply put, these aliens have no right to remain

in or be at large in the United States, Plasencia, 459

U.S. at 32, and they cannot manufacture that right by

coming here and then protesting the terms of being

here. Clapper, 133 S.Ct. at 1152-53. Having the right

to a determination of admissibility does not create the

right to reside in the United States while the system

answers the first question. If they want the certainty

of avoiding detention during the pendency of the

immigration proceedings, Aliens need to apply for

admission or non-removability from abroad.

C. Aliens lack independent standing to bail

hearings without showing a concrete

injury.

As indicated in Section I.B, supra, Aliens lack an

independent right to be in the United States while

their immigration proceedings resolve. Attempting to

avoid the Government’s claim to plenary authority

over admissions, Aliens claim to “seek procedures as

to their detention rather than their admission.” Aliens

Suppl. Br. at 20. Because they lack a substantive right

to be in the United States, however, Aliens also lack a

procedural right to bail hearings beyond those already

afforded them (e.g., upon material change in their

circumstances or habeas corpus rights).

Under Article III, Aliens cannot have a procedural

due-process right without having a substantive right

first: “the procedures in question [must be] designed

to protect some threatened concrete interest of his

that is the ultimate basis of his standing,” which is

“apart from his interest in having the procedure

15

observed.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 573 n.8 (1992); Summers v. Earth Island Inst.,

555 U.S. 488, 496 (2009) (“deprivation of a procedural

right without some concrete interest that is affected

by the deprivation — a procedural right in vacuo — is

insufficient to create Article III standing”); cf.

Christopher v. Harbury, 536 U.S. 403, 414-15 (2002)

(denial-of-access rights are “ancillary to the

underlying claim, without which a plaintiff cannot

have suffered injury by being shut out of court”). The

Due Process Clause does not afford Aliens the right to

be released into the United States pending resolution

of their immigration proceedings. Plasencia, 459 U.S.

at 32; Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206,

212 (1953); Demore, 538 U.S. at 523 (“detention

during deportation proceedings [is] a constitutionally

valid aspect of the deportation process”). Alter-

natively, the Court could analyze the issue as

statutory standing. See Section II.A, infra. Either

way, Aliens do not have a procedural-only right to a

bond hearing because they lack a concrete right to be

released into the United States pending the end of

their admissions or removal procedures.

D. Aliens cannot use a class-action suit to

set facial rules for future individualized

hearings when many - indeed most -

class members have no claim to relief.

Although this case commenced as a habeas corpus

action, it subsequently morphed into a facial, systemic

challenge to removal procedures under federal

immigration law. In seeking periodic bond hearings,

with burdens of proof, standards of review, and a

ruling as to the impact of the duration of detention in

16

a bond hearing, Aliens’ suit seeks relief utterly

removed from the specific facts of any one litigant.

Any yet, most of the litigants would not be entitled to

the relief that Aliens seek as a class, if the individual

litigants were analyzed individually. Amicus

EFELDF respectfully submits that this Court should

recognize this as a facial challenge and then dismiss

it because Aliens failed to “establish that no set of

circumstances exists under which the Act would be

valid.” U.S. v. Salerno, 481 U.S. 739, 745 (1987). Quite

the contrary, the Government’s policies are valid in

most, if not all, circumstances presented by this

litigation.

Of course, a “facial challenge to a legislative Act is

... the most difficult challenge to mount successfully,

since the challenger must establish that no set of

circumstances exists under which the Act would be

valid.” Salerno, 481 U.S. at 745. Because “[t]he fact

that [the law] might operate unconstitutionally under

some conceivable set of circumstances is insufficient

to render it wholly invalid,” id., prevailing in an as-

applied challenge is simply not the same as prevailing

in a facial challenge. Sorrell v. IMS Health Inc., 131

S.Ct. 2653, 2665 (2011); LN.S. v. Natl Ctr. for

Immigrants’ Rights, 502 U.S. 183, 188 (1991). Because

“{a]ls-applied challenges are the basic building blocks

of constitutional adjudication,” Gonzales v. Carhart,

550 U.S. 124, 168 (2007) (interior quotations and

alterations omitted), this Court has ample reason to

decline the facial systemic relief that Aliens seek

Generally, where relief would reach beyond the

particular parties’ circumstances, the party seeking

that relief “must ... satisfy [the] standards for a facial

17

challenge to the extent of that reach.” Doe v. Reed, 561

U.S. 186, 194 (2010). Similarly, where the complaint’s

“claims are better read as facial objections” to the law,

courts need “not separately address the as-applied

claims.” Susan B. Anthony List v. Driehaus, 134 S.Ct.

2334, 2340 n.3 (2014). Quite simply, there is little to

distinguish facial challenges from class challenges

like this one. Andrew J. Wistrich, Jeffrey J.

Rachlinski & Chris Guthrie, Heart Versus Head: Do

Judges Follow the Law or Follow Their Feelings?, 93

TEX. L. REV. 855, 886 (Mar. 2015) (“facial challenge to

the constitutionality of a statute, regulation,

ordinance, or policy can be thought of as an implicit

class action”). This Court should recognize that, while

styled initially under habeas corpus, this litigation is

a facial challenge to federal removal procedures.

Aliens cannot use heightened burdens that a few

class members allegedly face to alleviate other class

members from burdens that this Court’s precedents

deem tolerable. In short, neither Aliens nor the lower

courts can use this litigation as a vehicle to adopt

immigration policy via court decree for all aliens: “The

statute may forthwith be declared invalid to the

extent that it reaches too far, but otherwise left

intact.” Brockett v. Spokane Arcades, 472 U.S. 491,

504 (1985). Thus, a reviewing court would need to

tailor the injunctive relief to the actual violations (if

any), as distinct from the “blunderbuss” facial

injunction proposed here. Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 383 (1992)."' Because the

‘1 Our common-law tradition and its limits are particularly

compelling here, where the existence of Aliens’ habeas corpus

action depends in part on the Suspension Clause. JNS v. St. Cyr,

18

claims here easily fail the Salerno test, this Court

should either remand with orders to dismiss or reject

the availability of class-wide declaratory relief on so

thin a record of actual constitutional concerns. '2

E. The Declaratory Judgment Act does not

expand this Court’s jurisdiction to cover

the procedural protections Aliens seek.

Although the Declaratory Judgment Act, 28

U.S.C. §§2201-2202, “expands the scope of available

remedies” that a federal court can provide, it “does not

expand [the court’s] jurisdiction.” Duke Power Co. v.

Carolina Envtl. Study Grp., 438 U.S. 59, 71 n.15

(1978). The prospective declaratory relief that Aliens

seek would be an expansion of the relief available in

their core habeas corpus action or actions, making the

additional declaratory relief that Aliens request an

improper expansion of the judicial review authorized

under the habeas statutes. See 28 U.S.C. §§2241-2243.

But more importantly, the relief that Aliens seek

would not resolve the case or controversy that Aliens

have with the United States (namely, their detention).

533 U.S. 289, 300-01 (2001) (“at the absolute minimum, the

Suspension Clause protects the writ ‘as it existed in 1789”")

(quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996)).

12 Aliens claim that the Government waived any objection to

whether typicality and commonality are present by failing to

appeal the class-certification rulings. Transcript, at 45:1-15. But

declaratory relief is discretionary, Section I.E, infra, and this

Court can decline to issue facial, systemic declaratory relief

under the Constitution to a class that clearly does not deserve

the relief. 28 U.S.C. §2201(a).

19

Under this Court’s precedents on the Declaratory

Judgment Act,'* that is an insufficient basis on which

to issue declaratory relief. Pub. Serv. Comm'n uv.

Wycoff Co., 344 U.S. 237, 246 (1952) (declaratory relief

inappropriate because the “proposed decree cannot

end the controversy”); Calderon v. Ashmus, 523 U.S.

740, 749 (1998) (declaratory relief improper where it

“would not completely resolve [petitioner's]

challenges, but would simply carve out one issue in

the dispute for separate adjudication”). To the extent

that Aliens lack standing for their procedural claims,

separate from their immigration claims, see Sections

1.B-1.C, supra, the Declaratory Judgment Act clearly

cannot extend Aliens’ claims to include the procedural

claims. But even if Aliens satisfy Article III, the

Declaratory Judgment Act’s discretionary nature, 28

U.S.C. §2201(a) (“any court of the United States, upon

the filing of an appropriate pleading, may declare the

rights and other legal relations of any interested

party”) (emphasis added), would justify this Court’s

declining to grant constitutional relief on this record.

F, Director Jennings is the only proper

defendant-respondent.

Consistent with the plain language of the habeas

corpus statute, 28 U.S.C. §2241, the common-law

“immediate custodian rule” makes the director of the

detention facility the only proper respondent here.

‘8 The Ali Writs Act cited by Aliens, Third Am. Compl. 42, is

inapposite, both because 8 U.S.C. §1252(g) specifically precludes

resort to it and, more importantly, because the requested relief

here does not preserve future appellate jurisdiction, 28 U.S.C.

§1651(a), given that Aliens can pursue their claims indepen-

dently both in detention and from abroad.

20

Rumsfeld v. Padilla, 542 U.S. 426, 434-36 (2004):

Schlanger v. Seamans, 401 U.S. 487, 489-91 (197 1).

The non-custodial Executive-Branch officials are

improper respondents, id., and must be dismissed.

II. IF IT REACHES THE CONSTITUTIONAL

MERITS, THIS COURT SHOULD RULE

FOR THE GOVERNMENT.

As indicated, either as a prudential or juris-

dictional matter, this Court should — and potentially

must — dismiss Aliens’ claims without granting the

merits relief that Aliens seek. To the extent that it

reaches the merits of Aliens’ claims, this Court should

deny that relief for the reasons argued by the

Government, as well as the reasons outlined below.

A. Six months of detention do not trigger

Due Process rights for aliens.

Although Aliens understandably resent detention

pending completion of their immigration proceedings,

they simply have no right to be in the United States

until those proceedings resolve, Plasencia, 459 U.S. at

32, and “detention during deportation proceedings [is]

a constitutionally valid aspect of the deportation

process.” Demore, 538 U.S. at 523. Quite simply, the

Due Process Clause does not aid Aliens here because

“[w]hatever the procedure authorized by Congress is,

it is due process as far as an alien denied entry is

‘As explained in Section 1.B, supra, Aliens’ analogy to civil

and criminal commitment hearings is inapposite because Aliens

lack the due-process rights that citizens and residents have in

those other proceedings. Reno v. Flores, 507 U.S. 292, 305-06

(1993) (“in the exercise of its broad power over immigration and

naturalization, Congress regularly makes rules that would be

unacceptable if applied to citizens”) (interior quotations omitted).

21

concerned.” Mezei, 345 U.S. at 212 (interior quotations

omitted).

While understandable, Aliens’ preference for

supervised release over detention is neither an

entitlement nor a constitutional command: “when the

Government deals with deportable aliens, the Due

Process Clause does not require it to employ the least

burdensome means to accomplish its goal.” Demore,

538 U.S. at 528. While good policy arguments may

support supervised release in some instances, a grant

or denial of that reliefis purely discretionary and thus

unreviewable. 8 U.S.C. §§1252(g), 1226(e); see Section

i.A, supra.

Moreover, wholly apart from an individualized

due-process analysis for a particular alien, federal

authorities — either Congress or its delegates in the

Executive Branch — may legitimately have concluded

that such supervised release would act as a magnet

for further illegal immigration (i.e., come to the

United States, spend six months in detention, and get

released). Cf. 8 U.S.C. §1601(6) (“[i]t is a compelling

government interest to remove the incentive for illegal

immigration provided by the availability of public

benefits”). That possibility suffices to rebut Aliens’

theoretical arguments that Aliens deserve release

because good arguments correlate with lengthy

proceedings, and released aliens will not want to

abandon those good arguments by absconding.

Transcript, at 52:9-19. Amicus EFELDF respectfully

submits that that type of rule would result in more

protracted proceedings, but the Court need not

address Aliens’ conjecture.

22

Quite simply, under the rational-basis test, “a

legislative choice is not subject to courtroom fact-

finding and may be based on rational speculation

unsupported by evidence or empirical data,” F.C.C. v.

Beach Communications, Inc., 508 U.S. 307, 315

(1993).'* Consequently, rational-basis plaintiffs must

“negative every conceivable basis which might

support [the challenged statute],” including those

bases on which the state plausibly may have acted.

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

356, 364 (1973) (internal quotations omitted). By

contrast, plaintiffs cannot prevail even by marshaling

“impressive supporting evidence ... [on] the probable

consequences of the [statute]” vis-a-vis the legislative

purpose, but must instead negate “the theoretical

connection” between the two. Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 463-64 (1981) (emphasis

in original). Aliens’ conjecture — while not evidence —

would not help Aliens, even if it were evidence.

In any event, this Court already has resolved the

issue that Aliens raise. Provided that the detention is

neither punitive nor indeterminate, detention during

the resolution of the immigration proceedings here

does not violate Due Process. Demore, 538 U.S. at 523.

In situations like this, “where justice is supposed to be

swift but deliberate,” a court “cannot definitely say

how long is too long.” Barker v. Wingo, 407 U.S. 514,

521 (1972)..* Under the circumstances, this Court

15 The rational-basis test applies because the due-process right

here involves neither fundamental rights nor protected classes.

Id. at 313.

16 Amicus EFELDF thus submits that this Court should not

set any timeline here, but the Ninth Circuit’s rigid six-month

23

must reject Aliens’ request to promulgate a

constitutional rule in favor of those with no right to be

here in the first place.

1. The six-month trigger does not apply

to the Arriving Class of aliens.

though this Court has not recently addressed

the detention rights of non-criminal aliens like the

Arriving Class, that subclass faces the same result as

the Mandatory Class. In Mezei, 345 U.S. at 215, this

Court held that “temporary harborage” such as

detaining an alien at Ellis Island in lieu of rejecting

him at the border was “an act of legislative grace” that

“bestows no additional rights” on the alien. Amicus

EFELDF respectfully submits that this Court must

hold to the rule established in Mezei and its progeny.

Aliens claim that the Arriving Class “have a right

that Congress has afforded them to be here while their

asylum claim is pending.” Alien Suppl. Br. at 10. But

Aliens cannot cherry-pick their rights: “Whatever the

procedure authorized by Congress is, it is due process

as far as an alien denied entry is concerned,” Mezei,

345 U.S. at 212 (interior quotations omitted). Aliens

cannot take the right to be here — detained, unless

released by discretion — and then pare away detention

via the Due Process Clause. The right that is afforded

them is the right that they get.”

deadline “would require this Court to engage in legislative or

rulemaking activity,” id. at 523, which would be inappropriate

here. See Section I.E, supra (no basis for declaratory relief).

‘7 Of course, under Zaduvydas, detention must be in further-

ance of removal proceedings and not punishment, but there is no

allegation that the detentions here are punitive in that sense.

24

Similarly, Aliens reject the Government’s reliance

on the “deferential standard” based on “facially

legitimate and bona fide” justifications as resting on

admission, not on detention. Compare Aliens Suppl.

Br. at 14 with Fiallo ex rel. Rodriguez v. Bell, 430 U.S.

787, 794-95 (1977). But as to the Arriving Class, this

is an admission case.

As this Court has recognized, Congress found that

aliens who enter or remain in the United States in

violation of our law are effectively taking immigration

opportunities that might otherwise be extended to

others.” Demore, 538 U.S. at 518 (quoting S. Rep. No.

104-249, at 7 (1996)). Congress plausibly might have

viewed this as a basis for detaining the Arriving Class

members until their immigration process resolved.

2. The six-month trigger does not apply

to the Mandatory Class of aliens.

With regard to the Mandatory Class, this Court

has already held that the “justifiabl[e] concern] that

deportable criminal aliens who are not detained

continue to engage in crime and fail to appear for their

removal hearings in large numbers” entitled Congress

to “require that persons such as [the LPR there] be

detained for the brief period necessary for their

removal proceedings.” Demore, 538 U.S. at 513. Sig-

nificantly, “Congress adopted this provision against a

backdrop of wholesale failure by the INS to deal with

increasing rates of criminal activity by aliens.” Jd. at

518 (citing legislative record). It would be remarkable

for this Court to second-guess Congress on this issue,

given the plenary authority that Congress possesses

in this field. Mandel, 408 U.S. at 766 (recognizing

“Congress’ plenary power to make rules for the

ace

25

admission of aliens and to exclude those who possess

those characteristics which Congress has forbidden”)

(interior quotations omitted). There is no legitimate

basis for this Court to interject itself into this area of

congressional authority now.

B. The Constitution does not support the

Ninth Circuit’s procedural demands.

If it reaches the merits, this Court should not

extend the procedural rules that the Ninth Circuit

purports to have written into the Constitution.

1. The Government does not bear the

burden of proof on flight risk or

danger to the community.

The lower courts’ injunction places the burden of

proof’ on the Government for flight risk and danger

to the community, which is counter to both the history

of immigration issues in this Court and the default

common-law rule placing the burden of proof on the

movant (here, the detainee seeking bail, contrary to

the Government’s desire to continue to hold that

detainee). Both reasons compel this Court to reverse

the Ninth Circuit on the burden of proof, even if the

Court upholds the injunction otherwise.

First, immigration law supports retaining the

burden of proof with the immigrant who seeks bail. In

Zadvuydas, the petitioner bore the burden, which this

Court accepted. 533 U.S. at 683, 692. Similarly, in

Carlson v. Landon, 342 U.S. 524, 538 (1952), the

Court allowed the Government to hold aliens without

‘8 The term “burden of proof’ encompasses both the burden of

persuasion and the burden of production. Schaffer v. Weast, 546

U.S. 49, 56 (2005).

26

bail, pending deportation, based on systemic criteria

under the statute, without an _ individualized

determination. As Demore explains, the Government

“could deny bail to the detainees by reference to the

legislative scheme even without any finding of flight

risk.” 538 U.S. at 524 (interior quotations omitted). To

move the burden of proof to the Government would

require this Court to reverse these decisions and that

history, which would be difficult to justify against the

plenary authority that Congress and its Executive-

Branch delegates enjoy here.

Second, the common-law default is for the plaintiff

or movant in civil litigation to bear the burden of proof

when the statute is otherwise silent. Schaffer, 546

U.S. at 56. Even Aliens do not ask this Court to hold

them entitled to release. As such, Aliens are the party

seeking relief, and the default rule places the burden

on them.

2. Ifthe government bore the burden of

proof, the quantum of proof would

not be clear and convincing

evidence.

In addition to requiring periodic hearings at

which the Government bears the burden of proof, the

lower courts’ injunction requires the Government to

make its flight-risk and community-danger showings

by clear and convincing evidence. Because this is a

rational-basis context in which Aliens have no right to

release, Section II.A, supra, amicus EFELDF respect-

fully submits that there is no basis for this Court to

elevate the showing that the Government must make,

even assuming arguendo that the Government bears

the burden at all. See Section II.B.1, supra. Processing

27

immigrants is a core function of the Executive Branch,

as is defending the border. U.S. ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 542 (1950); Zaduydas, 533

U.S. at 700. There is no good reason— much less

authority — for federal courts to stand in the way.

3. The Constitution does not compel

new hearings, automatically. every

six months, without material change

to a detainee’s circumstances.

In addition to the other procedural advantages

that they seek, Aliens also asked the lower courts to

ensure that detention time would weigh in the bail

analysis, even if not caused by the Government.

Amicus EFELDF respectfully submits that, even if

Aliens are right that lengthy proceedings currently

correlate with meritorious cases and aliens who would

not abscond, lest they lose their meritorious case,

Transcript, at 52:9-19, adopting the injunction that

Aliens propose would likely trigger expanded legal

activity on by detainees, without the same alleged

level of correlation with merit: if the system values

delay for detainees, then detainees will introduce

more delay. At the very least, it is clear under the

rational-basis test that reviewing courts must weigh

not only the bases on which Congress acted, but also

those on which it plausibly may have acted. Beach

Communications, 508 U.S. at 313; Lehnhausen, 410

U.S. at 364. Under that test, had Congress considered

the issue, Congress reasonably could have concluded

that counting delay to detainees’ benefit would lead to

more delay in detainee proceedings; Congress could

plausibly have rejected Aliens’ proposal to avoid the

increased delay that the proposal likely would cause.

28

While that would be reason enough to reject this

facet of the lower courts’ injunction, amicus EFELDF

notes that the time for seeking judicial review of the

bail-hearing regulation, 8 C.F.R. §1003.19(e), has run.

28 U.S.C. §2401(a). Normally, a party like Aliens who

seeks to invalidate a rule based on criteria not raised

during notice-and-comment and outside the statute of

limitations for judicial review must first petition the

agency to amend or repeal its rule in light of the new

information (e.g., Aliens’ theories about the length of

the detention correlating with meritorious cases and

a preference for intensive supervision). See 5 U.S.C.

§553(e); Auer v. Robbins, 519 U.S. 452, 459 (1997);

Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct.

1378, 1389 (2015) (Breyer, J., concurring in part and

concurring in the judgment). Amicus EFELDF is not

aware that Aliens have established an entitlement to

evade the normal perquisites for systemic review of

agency rules on this point.

CONCLUSION

The decision of the Ninth Circuit should be

reversed.

February 10, 2017 Respectfully submitted,

Lawrence J. Joseph

1250 Connecticut Ave. NW

Suite 200

Washington, DC 20036

(202) 355-9452

lj@larryjoseph.com

Counsel for Amicus Curiae

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