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

SU yi Cut, US.

No. 15-1204 FILED

IN THE

—

OFFICE OF THE CLERK

Supreme Court of the United States

DAVID JENNINGS, ET AL.,

Petitioners,

— V.——

ALEJANDRO RODRIGUEZ, ET AL..,

Respondents.

—_—_——-—-—e

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE HUMAN RIGHTS FIRST

AND INTERNATIONAL LAW SCHOLARS

WILLIAM ACEVES, DENISE GILMAN, GUY S. GOODWIN-GILL,

JAMES C. HATHAWAY, MANFRED NOWAK, SARAH PAOLETTI,

NIGEL RODLEY, AND MARTIN SCHEININ

IN SUPPORT OF RESPONDENTS

ELEANOR ACER EUGENE M. GELERNTER

ROBYN BARNARD Counsel of Record

HUMAN RIGHTS FIRST JO BACKER LAIRD

75 Broad Street JARED S. BUSZIN

New York, New York 10004 MICHAEL N. FRESCO

(917) 320-9605 PATTERSON BELKNAP WEBB

& TYLER LLP

1133 Avenue of the Americas

New York, New York 10036

(212) 336-2000

emgelernter@pbwt.com

Counsel for Amici Curiae

INTEREST OF AMIC!

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY

IT.

ITT.

Pe Se gen iaascrdiecsedenchntsavinntentsanhxs

The INA Should Be Interpreted

Consistently with U.S. Treaty

Obligations and Customary

International Human Rights Law ...........

U.S. Treaty Obligations Require

Individualized and Periodic

Assessment of Whether

ee

A. The Government Must Provide

for an Individualized

Determination That a Non-

Citizen’s Detention Is

Reasonable, Necessary and

ee cc ennenwave

B. Periodic Review Is Necessary to

Ensure That Detention Does Not

Become Arbitrary Over Time ........

The United States Has an

Obligation Under the ICCPR and

International Law to Provide

Court Review of All Detentions................

nein 10

enievs 11

sexed 19

2]

seeeee ==

RAPED sh bisoiss: 3 Sackmeshoauscacuodsateusyoneenccaen encdisnsgeeit ee

il

TABLE OF AUTHORITIES

Page(s)

Cases

A v. Australia,

Communication No. 560/1993, U.N.

Human Rights Comm., U.N. Doc.

CCPR/C/59/D/560/1993 (Apr. 30,

ate ei AE Seely es ath a 12, 14, 20, 25

C. v. Australia,

Communication No. 900/1999, U.N.

Human Rights Comm., U.N. Doc.

CCPR/C/76/D/900/1999 (Nov. 13,

Chew Heong v. United States,

a nc insa cdanalon psa 6, 7

F. Hoffmann-La Roche Ltd v. Empagran

S.A.,

i Sng aaietonaes 6

Fong v. Australia,

Communication No. 1442/2005, U.N.

Human Rights Comm., U.N. Doc.

CCPR/C/97/D/1442/2005 (Nov. 23,

Ins v. Aguirre-Agulrrre,

a acl cewkohnaglioaiite 15

INS v. Cardoza-Fonseca,

Ne ee i ijalelacesias 15

Kadic v. Karadzic,

ey ee re ee, RO oo knec ccc vcclacanccoendess 9

Ma v. Ashcrott,

EF Fe We Cn Ge, Div civcceciccecicccccccccccccccses 7

Mohammed v. Gonzales,

BOD Fe FOO Ge Cie, BOG icc nccscdescccceccccccceccccee 15

Murray v. The Schooner Charming

Betsy,

OEE, CE Cord Gb CI csv nccctenssnsescsendde.00- 4,5,6

Neptune v. Haiti,

Merits, Reparations and Costs,

Judgment, Inter-Am. Ct. H.R. (ser.

ris ee ne I occ cc ccccnsiveca 20, 26

The Paquete Habana,

Sn )

Rodriguez-Fernandez v. Wilkinson,

OG Fe BI Ce Cr. FID ons cccceseccesiecccccanse 9

Sale v. Haitian Ctrs. Council,

ET ae a eee RR eae 6

Shafiq v. Australia,

Communication No. 1324/2004, U.N.

Human Rights Comm., U.N. Doc.

CCPR/C/88/D/1324/2004 (Nov. 13,

Sosa v. Alvarez-Machain,

SRR an a opt Ste ee pa NOE 7

iV

Talbot v. Seeman,

ee ee 5

Tibi v. Ecuador,

Preliminary Objections, Merits,

Reparations and Costs, Judgment,

Inter-Am. Ct. H.R. (ser. C) No. 114

re A eo as a stavaiall 25

Torres v. Finland,

Communication No. 291/1988, U.N.

Human Rights Comm., U.N. Doc.

CCPR/C/38/D/291/1988 (Apr. 2,

WI SacecenisesiecscGaceareccre fy TORU een 24, 25

Van Alphen v. Netherlands,

Communication No. 305/1988, U.N.

Human Rights Comm., U.N. Doc.

CCPR/C/39/D/305/1988 (July 23,

I a re eT 18

Velez Loor v. Panama,

Preliminary Objections, Merits,

Reparations and Costs, Judgment,

Inter-Am. Ct. H.R. (ser. C) No. 218

Ne NE I Scr scarce ccacetsceusdconscennycxsentmoses 17

Weinberger v. Rossi,

I, nN 6

In re X-K-,

23 1 & N Dec. 731 (B.1LA. May 4,

a ee ee ae 27

Statutes and Regulations

ee umuaneeuucs 7

re oe i avdsueannes aan <aummansaedets 6

Se Ts RRS A RE Se an Ogee Se LOA 6

eh oy Te RT II Sener er nt oe 24

BR. © BG Be aeenrcc es escssvccaisasseienvesnses 19

Other Authorities

1 U.S. Comm’n on Int’! Religious

Freedom, Report on Asylum Seekers

in Expedited Removal (2005)....................0....0000. 18

African (Banjul) Charter on Human and

Peoples’ Rights, June 27, 1981, 21

1.L.M. 58 (entered into force Oct. 21,

eet TE deat elt Det ag A eS OUR 10, 11, 23

Alice Edwards, Back to Basics: The

Right to Liberty and Security of

Person and ‘Alternatives to

Detention’ of Refugees, Asylum-

Seekers, Stateless Persons and

I MN oc ciccsiicdccesnevcveensencesccecscnaits 9

American Convention on Human

Rights, Nov. 22, 1969, 1144 U.N.T:S.

123 (entered into force July 18, 1978)......... passim

American Declaration of the Rights and

Duties of Man, O.A.S. Res. XXX

(1948), O.A.S. Off. Rec. OEA/Ser.

Po | er ir ee 8, 11, 22

vi

Conclusions Adopted by the Executive

Committee on International

Protection of Refugees, U.N. GAOR,

49th Sess., Supp. No. 12A, U.N. Doc.

FE BI aca issitenocesuicens cosvasecasascoseésnns 15

Convention on the Rights of the Child,

opened for signature Nov. 20, 1989,

1577 U.N.T.S. 3 (entered into force

NC ae i ac adacn cuaskconkgnes 10, 23

Denise Gilman, Realizing Liberty: The

Use of International Human Rights

Law to Realign Immigration

Detention in the United States, 36

Fordham Int'l L.J. 243 (2013).......000... cece ccc eee 7,8

European Convention for the Protection

of Human Rights and Fundamental

Freedoms, Sept. 3, 1953, 213

IS icie s cocieavotcadsaaandunenersivteahes 10, 11, 23, 25

Francois Crépeau (Special Rapporteur

on the Human Rights of Migrants),

Rep. of the Special Rapporteur on

the Human Rights of Migrants, U.N.

Doc. A/HRC/20/24 (Apr. 2, 2012)............. 13, 14, 20

G.A. Res. 217 A (IID, Universal

Declaration of Human Rights (Dec.

Et SRR ie AO A Hig eR eee 10, 11

vil

G.A. Res. 43/173, annex, Body of

Principles for the Protection of All

Persons Under Any Form of

Detention or Imprisonment (Dec. 9,

PO ons svtiicnsdsvicccc en ae eee

G.A. Res. 43/173, Body of Principles for

the Protection of All Persons Under

Any Form of Detention or

Imprisonment (Dec. 9, 1988) ......0.............

Guy 8. Goodwin-Gill, Article 31 of the

1951 Convention Relating to the

Status of Refugees: Non-

Penalization, Detention and

Pants GID a vvccacsacissclonaicedeicncene

Human Rights First, Detention of

Asylum Seekers in Georgia (2016)...........

Human Rights First, Lifeline on

Lockdown: Increased U.S. Detention

of Asylum Seekers (2016) ............cccccc0ce000-

Implementation of Human Rights

Treaties, Executive Order No. 13107,

63 Fed. Reg. 68,991 (Dec. 10, 1998) .........

Ingrid V. Eagly & Steven Shafer, A

National Study of Access to Counsel

in Immigration Court, 164 U. Penn.

L. Bow. 1 GE no vivvvicccccocceccsutues ate

Int'l Det. Coal., There Are Alternatives

SED cevcee vse cavoeeasesididindaciedacdnnsseenaanaaae

vill

Inter-Am. Comm'n H.R., Rep. on

Immigration in the United States:

Detention and Due Process,

OEA/Ser.L/V/II Doc. 78/10 (Dec. 30

Inter-Am. Comm’n H.R., Rep. on

Terrorism and Human Rights,

OEA/Ser/L/V/I1.116, doc. 5, rev. 1

ee ee eetonenocnevas

Inter-Am. Comm’n H.R. Res. 1/08,

Principles and Best Practices on the

Protection of Persons Deprived of

Liberty in the Americas (Mar. 13,

Sadan aie inctidbeatebaibe th idecceeten.+covcse

International Convention on the

Protection of the Rights of All

Migrant Workers and Members of

Their Families, opened for signature

Dec. 18, 1990, 2220 U.N.T\S. 3

(entered into force July 1, 2003)............

International Covenant on Civil and

Political Rights, Dec. 16, 1966, 999

U.N.T.S. 171, 188 Cong. Rec. 8070-

Niacin cae ciasecastaseesescees

James C. Hathaway, The Rights of

Refugees Under International Law

le lila scetldladsdssmsconsehnslsntbonarsccasee

Manfred Nowak, U.N. Covenant on

Civil and Political Rights: CCPR

Commentary (2d ed. 2005) ..............0.....

9 )

eee ee at

1X

Office of the U.N. High Comm’r on

Human Rights, Recommended

Principles and Guidelines on Human

Rights at International Borders,

U.N. Doc. A/69/CRP. 1 Wuly 23,

I cle atiecddadedicansiicibeabacdilabnilientaiiasiecteene

Rep. of the Special Rapporteur on the

Human Rights of Migrants, U.N.

Doc. A/HRC/7/12/Add.2 (Mar. 5,

Restatement (Third) of the Foreign

Relations Law of the United States

Re acdictinsarnimepsctnnnne vscnhcikaksabiantiliniedtpacse etna

U.N. High Comm’r for Refugees,

Detention Guidelines (2012)....................

U.N. Human Rights Comm., Concluding

Observations on the Fourth Periodic

Report of the United States of

America, U.N. Doc.

CCPR/C/USA/CO/4 (Apr. 23, 2014).........

U.N. Human Rights Comm., General

Comment No. 15: The Position of

Aliens Under the Covenant (Sept.

ARTEL SAE Gn eno enO

U.N. Human Rights Comm., General

Comment No. 31: The Nature of the

General Legal Obligation Imposed

on States Parties to the Covenant,

U.N. Doc. CCPR/C/21/Rev.1/Add. 13

a Teves

xX

U.N. Human Rights Comm., General

Comment No. 35: Article 9 (Liberty

and Security of Person), U.N. Doc.

CCPR/C/GC/35 (Dec. 16, 2014)..............0005. passim

U.N. Human Rights Comm., Question of

the Human Rights of All Persons

Subjected to Any Form of Detention

or Imprisonment, U.N. Doc.

E/CN.4/1992/20 (Jan. 21, 1992)..........:c:cceeeceeeees 23

U.N. Human Rights Council Res. 20/16,

U.N. Doc. A/HRC/RES/20/16 Wuly

Os rs 2 aie daapainibomnmaets 23

U.N. Working Grp. on Arbitrary Det.,

Preliminary Findings from Its Visit

to the United States of America (Oct.

24, 2016), http://www.ohchr.org/EN/

NewsEvents/Pages/Display News.asp

x?NewsID=20746&LangID=E. ....... 2... 28

U.N. Working Grp. on Arbitrary Det.,

Rep. of the Working Group on

Arbitrary Detention, U.N. Doc.

A/HRC/22/44 (Dec. 24, 2012) .0.......ccccceceeneeeceeeeees 11

U.N. Working Grp. on Arbitrary Det.,

Rep. of the Working Group on

Arbitrary Detention, U.N. Doc.

RITTOIET Dr B, BND oi cncececccos ccnscsesesvvesessees 21

U.N. Working Grp. on Arbitrary Det.,

Rep. of the Working Group on

Arbitrary Detention, U.N. Doc.

E/CN.4/1999/63 (Dec. 18, 1998)..........:cccceceeeeeees 13

xi

U.N. Working Grp. on Arbitrary Det.,

Rep. of the Working Group on

Arbitrary Detention, U.N. Doc.

WGAD/CRP. 1/2015 (May 4, 2015).....23, 24, 25, 26

U.S. Comm’n on Int'l Religious

Freedom, Barriers to Protection

U.S. Conference of Catholic Bishops et

al., Unlocking Human Dignity: A

Plan to Transform the U.S.

Immigrant Detention System (2015) .................. 14

United Nations Convention Relating to

the Status of Refugees, July 28,

ee I BE lis cise acenceniceeseseccoccunis tly GaP

United Nations Protocol Relating to the

Status of Refugees, Jan. 31, 1967,

ee cepensboeasaiebanemeds 8,14

INTEREST OF AMICP

Human Rights First is a non-governmental

organization established in 1978 that works to

ensure U.S. leadership on human rights globally and

compliance domestically with this country’s human

rights commitments. Human Rights First operates

one of the largest programs for pro bono legal

representation of refugees, working in partnership

with volunteer lawyers at leading law firms to

provide legal representation without charge to

thousands of indigent asylum applicants, including

some detained in immigration detention facilities

across the United States. Human Rights First has

conducted research, issued reports and provided

recommendations to the United States Government

regarding compliance with its legal obligations under

international law with respect to its use of

immigration detention.

William Aceves is the Dean Steven R. Smith

professor of law at California Western School of Law.

He has appeared before the Inter-American

Commission on Human Rights, the United Nations

Special Rapporteur on Migrants, and the U.S.

Commission on Civil Rights. He has_ widely

published in the field of public international law.

Denise Gilman is clinical professor and director of

the immigration clinic of the University of Texas at

Austin School of Law. From 1995 to 2000, Professor

Gilman served as Human Rights Specialist at the

' The parties have consented in writing to the participation of

amici. Their written consents have been filed with the Clerk of

the Court. No party in this case authored this brief in whole or

in part, or made any monetary contribution to its preparation

and submission.

2

Inter-American Commission of Human Rights at the

Organization of American States. Professor Gilman

has written and practiced extensively in the

international human rights and immigrants’ rights

fields.

Guy S. Goodwin-Gill is a barrister and Emeritus

Professor of International Refugee Law at Oxford

University and Emeritus Fellow of All Souls College,

Oxford. He served as a Legal Adviser in the Office of

United Nations High Commissioner for Refugees

from 1976-1988, and was President of the Media

Appeals Board of Kosovo from 2000-2003. He is the

Founding Editor of the International Journal of

Refugee Law and has written extensively on

refugees, migration, and matters related to public

international law.

James C. Hathaway is the James E. and Sarah A.

Degan Professor of Law at the University of

Michigan, and Distinguished Visiting Professor of

International Refugee Law at the University of

Amsterdam. He is the author of The Rights of

Refugees under International Law (2005) and of The

Law of Refugee Status(2014, with Michelle

Foster). He is the founding director of the University

of Michigan’s Program in Refugee and Asylum Law.

Manfred Nowak is Professor of International Law

and Human Rights at Vienna University, Co-

Director of the Ludwig Boltzmann Institute of

Human Rights in Vienna and Secretary General of

the European Inter-University Centre for Human

Rights and Democratisation in Venice. He holds an

LLM from Columbia University and in 2014, he was

Austrian Chair Visiting Professor at Stanford

3

University. Among other international expert

functions, he was UN Special Rapporteur on Torture

between 2004 and 2010 and Judge at the Human

Rights Chamber for Bosnia and Herzegovina in

Sarajevo between 1996 and 2003. He is author of

more than 600 books and articles in the field of

public law, international law 2nd human rigi\s.

Sarah Paoletti is practice professor of law and the

founder and director of the Transnational Legal

Clinic at the University of Pennsylvania Law School.

She has written extensively on the intersection of

migration and international human rights, and the

application of international human rights norms in

the United States.

Nigel Rodley is Emeritus Professor of Law and

chair of the Human Rights Centre at the University

of Essex School of Law. He is the President of the

International Commission of Jurists. In 1998, he was

knighted for services to human rights and

international law. From 2001 to 2016, he has been a

member of the United Nations Human Rights

Committee. From 1993 to 2001, he was the United

Nations Commission on Human Rights Special

Rapporteur on the question of torture. He has

published extensively in the field of public

international law.

Martin Scheinin is professor of international law

and human rights at the European University

Institute. He was a member of the United Nations

Human Rights Committee from 1997 to 2004. From

2005 to 2011, he was the first United Nations Special

Rapporteur on human rights and counter-terrorism.

4

He has published extensively on issues related to

international human rights law.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This amicus brief addresses the obligation of U.S.

courts to construe federal statutes, including the

Immigration and Nationality Act (INA), in a manner

consistent with the nation’s obligations under

binding treaties and customary international law.

This has been an established canon of statutory

construction since Murray v. The Schooner

Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).

Applying that canon here, this Court should avoid an

interpretation of the [NA that allows for prolonged

detention without an individualized determination

by a court, independent of the detaining authorities

and capable of ordering release, that detention is

reasonable, necessary and proportionate under the

facts of the particular case.

Pursuant to treaties, such as the International

Covenant on Civil and Political Rights “ICCPR”),

and customary international law, the United States

must protect individuals’ right to liberty. It may not

detain any person arbitrarily and must provide

certain safeguards to ensure that arbitrary detention

does not occur. These protections apply to asylum

seekers and other individuals held in USS.

immigration detention. In particular, the United

States must provide for review by a court of each

individual’s detention and the detention should be

subject to periodic review as it continues. The

Government must show the reviewing court that the

particular individual’s detention is reasonable,

necessary and proportionate in the circumstances of

5

the individual’s case, and the detention must be

subject to periodic reevaluation in which the

Government must demonstrate that detention

remains reasonable, necessary and proportionate as

it becomes more prolonged.

The Government's interpretation of the INA

cannot be squared with the United States’ treaty

obligations and the requirements of customary

international law. According to the Government, the

INA authorizes the prolonged detention of non-

citizens while denying them access to an

individualized immigration court custody hearing.

The Government's interpretation, in short, would

deny to large groups of asylum seekers and other

non-citizens the rights and safeguards that the

United States is obligated to provide under the

ICCPR, other international treaties and customary

international law.

These considerations provide further reason why

this Court should reject the Government’s

construction of the INA and should affirm the Court

of Appeals’ decision.

I. The INA Should Be Interpreted Consistently

with U.S. Treaty Obligations and Customary

International Human Rights Law

Since the earliest days of the republic, this Court

has recognized that domestic statutes must be read

in light of this nation’s binding obligations under

international law. See, e.g., Talbot v. Seeman, 5 U.S.

(1 Cranch) 1, 43 (1801). “It has been a maxim of

statutory construction since the decision in Murray

v. The Charming Betsy, 2 Cranch 64, 118 (1804),

that an act of congress ought never to be construed to

violate the law of nations, if any other possible

6

construction remains.” Weinberger v. Rossi, 456

U.S. 25, 32 (1982) (internal quotation marks); accord

F. Hoffmann-La Roche Ltd v. Empagran S.A., 542

U.S. 155, 164 (2004): Sale v. Haitian Ctrs. Council.

509 U.S. 155, 178 n.35 (1993); Restatement (Third) of

the Foreign Relations Law of the United States § 114

(1987) {hereinafter Restatement (Third)]. Under

these precedents, the LNA should be interpreted so

as not to conflict with the Government's obligations

under international law.

The United States is bound by two sources of

international law: (1) treaties to which the United

States is a party, and (2) norms and practices that

are so widespread as to become customary

international law. Restatement (Third) § 102.

Under Charming Betsy and its progeny, this Court

must consider both of these sources when

interpreting statutes that implicate the

Government's obligations under international law.

See Chew Heong v. United States, 112 U.S. 536, 539-

40 (1884) (interpreting a statute so as not to violate

terms of treaty): Charming Betsy, 2 Cranch at 118

(interpreting a statute so as not to violate “the law of

nations”).

The Government’s practice of detaining non-

citizens under §§ 1225(b) and 1226(c) of the INA for

potentially prolonged duration without access to

immigration court review is at odds with the ICCPR,

a multilateral treaty that the United States has

ratified without relevant reservation. See

International Covenant on Civil and Politica] Rights,

Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]:

138 Cong. Ree. 8070-71 (1992). As discussed below,

Article 9(1) of the ICCPR prohibits “arbitrary arrest

or detention.” In addition, Article 9(4) of the ICCPR

7

provides that anyone deprived of liberty by arrest or

detention “shall be entitled to take proceedings

before a court.” Pursuant to executive order, it is the

Government’s “policy and practice . . . fully to respect

and implement its. obligations under _ the

international human rights treaties to which it is a

party, including the ICCPR.” Implementation of

Human Rights Treaties, Executive Order No. 13107,

63 Fed. Reg. 68,991 (Dec. 10, 1998).?

Other international instruments guarantee non-

citizens rights that are similar to and complement

those in ICCPR Article 9. The American Declaration

of the Rights and Duties of Man (“American

Declaration”) provides in Article XXV that “lelvery

individual who has been deprived of his liberty has

the right to have the legality of his detention

2 Although, as this Court has acknowledged, the ICCPR is “not

self-executing,” Sosa v. Alvarez-Machain, 542 U.S. 692, 735

(2004), i.e, it is not directly enforceable in a private right of

action in domestic courts absent enabling legislation,

Restatement (Third) § 111(4) cmt. c, it nonetheless “bind[s) the

United States as a matter of international law,” Sosa, 542 U.S.

at 735; see Restatement (Third) § 111 cmt. h. Accordingly, it is

a source of binding obligations when construing a federal

statute. See Chew Heong, 112 U.S. at 548-50; Ma v. Ashcroft,

257 F.3d 1095, 1114-115 (9th Cir. 2001) (construing 8 U.S.C.

§ 1231(a)(6) as requiring a reasonable time limitation on

immigration detentions to avoid conflict with ICCPR); Denise

Gilman, Realizing Liberty: The Use of International Human

Rights Law to Realign Immigration Detention in the United

States, 36 Fordham Int’! L.J. 243, 280-21 (2013) (“Regardless of

their direct domestic effect, the United States is bound by the

treaties that underlie the international human rights standards

relating to immigration detention and thus has an international

obligation to comply with those standards.”).

8

ascertained without delay by a court.”* And the

United Nations Convention Relating to the Status of

Refugees (“Refugee Convention”) provides that the

United States “shall not impose penalties” on

arriving refugees “on account of their illegal entry or

presence” in the country or restrict “the movements

of such refugees” unless such _ restriction is

“necessary.” See United Nations Convention

Relating to the Status of Refugees art. 31, July 28,

1951, 189 U.N.T.S. 137 [hereinafter Refugee

Convention]. Articles 2 through 34 of the Refugee

Convention became binding on the United States

through our accession to the United Nations Protocol

Relating to the Status of Refugees (“Refugee

Protocol”). See United Nations Protocol Relating to

the Status of Refugees art. 1 4] 1, Jan. 31, 1967, 606

U.N.T.S. 267 [hereinafter Refugee Protocol]. The

Refugee Convention and Protocol are discussed in

detail in the amicus brief of the United Nations High

Commissioner for Refugees (“UNHCR”).

3 See art. XXV, O.A.S. Res. XXX (1948), O.A.S. Off. Rec.

OEA/Ser. LV/I. 4 Rev. (1965) [hereinafter American

Declaration] (prohibiting arbitrary deprivations of liberty and

requiring review of detentions “without delay by a court”).

Although the American Declaration is not a binding treaty, it is

a source of legal obligation for every member of the

Organization of American States (OAS), and the United States

is a member of the OAS. See Gilman, supra note 2, at 282

(“Through its membership in the OAS and ratification of the

legally binding OAS Charter, the United States accepted

binding obligations to protect the human rights set forth in the

American Declaration. While the United States questions the

exact nature of its obligations,...the government

acknowledges that the American Declaration does serve as a

source of obligation.”).

9

The rights secured by Article 9 of the LCCPR and

similar treaties are also fundamental rights under

customary international law. Customary

international law “results from aé general and

consistent practice of states followed by them from a

sense of legal obligation.” Restatement (Third)

§§ 102(2), 701(b). Evidence of its content includes

“the customs and usages of civilized nations,” “the

works of jurists and commentators,” The Paquete

Habana, 175 U.S. 677, 700 (1900), and international

agreements that “are intended for adherence by

states generally and are in fact widely accepted,”

Restatement (Third) § 102(3). Commentators and

courts alike have described the requirement of court

review and the prohibition against arbitrary

detention as binding international norms. See id.

§ 702(e) emt. h; Manfred Nowak, U.N. Covenant on

Civil and Political Rights’ CCPR Commentary 172-

73 (2d ed. 2005); see also, e.g., Kadic v. Karadzic, 70

F.3d 232, 240 n.3 (2d Cir. 1995) (policy of prolonged

arbitrary detention is a violation of international

law); Rodriguez-Fernandez v. Wilkinson, 654 F.2d

1382, 1388 (10th Cir. 1981) (No principle of

international law is more fundamental than the

concept that human beings should be free from

arbitrary imprisonment.”); Alice Edwards, Back to

Basics: The Right to Liberty and Security of Person

and ‘Alternatives to Detention’ of Refugees, Asylum-

Seekers, Stateless Persons and Other Migrants

(2011). Indeed, these requirements are part of every

major international human rights agreement.‘

4 See, e.g., International Convention on the Protection of the

Rights of All Migrant Workers and Members of Their Families

art. 16(4), (8), opened for signature Dec. 18, 1990, 2220

U.N.T.S. 3 (entered into force July 1, 2003) [hereinafter

10

This Court should avoid an interpretation of the

INA that would violate the Government’s treaty

obligations and its obligations under customary

international law.

II. U.S. Treaty Obligations Require

Individualized and Periodic Assessment of

Whether Detention is Arbitrary

U.S. treaty and customary international law

obligations prohibit states from subjecting any

person to arbitrary detention. Consistent with that

prohibition, states may detain a person only after

establishing, on a case-by-case basis, that detention

is reasonable, necessary and proportionate under the

particular individual's circumstances. The related

requirements relating to court review of immigration

detention are outlined in Section III below. Where

detention is initially upheld, the Government must

ensure that detention does not become arbitrary over

time. To avoid that possibility, the detention must

be subject to periodic review to ensure that it

Convention on Migrants’ Rights]; Convention on the Rights of

the Child art. 37, opened for signature Nov. 20, 1989, 1577

U.N.T.S. 3 (entered into force Sept. 2, 1990) [hereinafter

Convention on Children’s Rights]; African (Banjul) Charter on

Human and Peoples’ Rights art. 6, June 27, 1981, 21 I.L.M. 58

(entered into force Oct. 21, 1986) [hereinafter African Charter];

American Convention on Human Rights art. 7(6), Nov. 22,

1969, 1144 U.N.T.S. 123 (entered into force July 18, 1978)

hereinafter American Convention]; European Convention for

the Protection of Human Rights and Fundamental Freedoms

art. 5(4), Sept. 3, 1953, 213 U.N.T.S. 222 [hereinafter European

Convention]; G.A. Res. 43/173, annex, Body of Principles for the

Protection of All Persons Under Any Form of Detention or

Imprisonment, at Principle 11 (Dec. 9, 1988); G.A. Res. 217 A

(11D, Universal Declaration of Human Rights (Dec. 10, 1948)

[hereinafter Universal Declaration].

1]

remains reasonable, necessary and proportionate.

The Government's position runs counter to these

obligations.

A. The Government Must Provide for an

Individualized Determination That a

Non-Citizen’s Detention Is Reasonable,

Necessary and Proportionate

Article 9(1) of the ICCPR provides that every

person “has the right to liberty” and “{nlo one shall

be subjected to arbitrary arrest or detention.”

ICCPR art. 9(1) (emphasis added). The American

Declaration similarly provides, in Articles | and

XXV, that all persons have the right to liberty and

that unlawful or arbitrary detention is prohibited.

American Declaration arts. I, XXV. The prohibition

against arbitrary detention “is recognized in all

major international and regional instruments for the

promotion and protection of human rights,”® and it

has been “widely enshrined in national constitutions

and legislation.” U.N. Working Grp. on Arbitrary

Det., Rep. of the Working Group on Arbitrary

Detention, U.N. Doc. A/HRC/22/44, 94 42, 43 (Dec.

24, 2012) lhereinafter 2012 Arbitrary Detention

Report]. The “widespread ratification of

international treaty law on arbitrary deprivation of

liberty, as well as the widespread translation of the

prohibition into national laws, constitute a near

universal State practice evidencing the customary

nature” of the prohibition. Jd. {| 43.

This prohibition against arbitrary detention is

applicable to state practices relating to immigration.

6 E.g., African Charter art. 6; American Convention art. 7(3);

European Convention art. 5; Universal Declaration art. 9.

12

As the U.N. Human Rights Committee, which

supervises and monitors the implementation of

ICCPR obligations, has explained, Article 9(1) of the

ICCPR applies to all deprivations of liberty,

including those related to immigration control. U.N.

Human Rights Comm., General Comment No. 35:

Article 9 (Liberty and Security of Person), U.N. Doc.

CCPR/C/GC/35, 993, 12, 18 (Dec. 16, 2014)

[hereinafter HRC General Comment No. 35]. The

rights espoused in the ICCPR “must be guaranteed

without discrimination between citizens and aliens.”

U.N. Human Rights Comm., General Comment No.

15: The Position of Aliens Under the Covenant, { 2

(Sept. 30, 1986) [hereinafter HRC General Comment

No. 15]; accord U.N. Human Rights Comm., General

Comment No. 31: The Nature of the General Legal

Obligation Imposed on States Parties to the

Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 13, | 10

(May 26, 2004) [hereinafter HRC General Comment

No. 31] (stating that Covenant rights must be

available “to all individuals, regardless of nationality

or statelessness, such as asylum seekers, refugees,

migrant workers and other persons”). Parties to the

ICCPR, such as the United States, must also ensure

“in thei legislation and in practice” that immigrants

are noi denied their right to be free from arbitrary

detention. See HRC General Comment No. 15, { 4.

Detention is arbitrary if it is not “reasonable,

necessary and proportionate in the light of the

circumstances.” HRC General Comment No. 35,

| 18. In order to ensure that these requirements are

met, the decision to detain a person “must consider

relevant factors case by case.” Id. see also A Vv.

Australia, Communication No. 560/1993, U.N.

Human Rights Comm., $9.2, 9.4, U.N. Doc.

13

CCPR/C/59/D/560/1993 (Apr. 30, 1997); Frangois

Crépeau (Special Rapporteur on the Human Rights

of Migrants), Rep. of the Special Rapporteur on the

Human Rights of Migrants, 453, U.N. Doc.

A/HRC/20/24 (Apr. 2, 2012) [hereinafter Rapporteur’s

2012 Report] (“States must take full account of

individual circumstances” when considering whether

to detain an immigrant or employ an alternative to

detention). That decision must also take into

account “all the circumstances” that bear on the

reasonableness, necessity and proportionality of

detention. Van Alphen’ v. Netherlands,

Communication No. 305/1988, U.N. Human Rights

Comm., 45.8, U.N. Doc. CCPR/C/39/D/305/1988

(July 23, 1990); see also HRC General Comment No.

35, 4 18.

The “necessity” principle allows states to resort to

detention “only as a last available measure.” U.N.

Working Grp. on Arbitrary Det., Rep. of the Working

Group on Arbitrary Detention, U.N. Doc.

E/CN.4/1999/63, § 78 (Dec. 18, 1998) [hereinafter

1998 Arbitrary Detention Report]. It also requires

states to “take into account less invasive means of

achieving the same ends” before resorting to

detention. HRC General Comment No. 35, { 18:

accord C. v. Australia, Communication No. 900/1999,

U.N. Human Rights Comm., {4 8.2, U.N. Doc.

CCPR/C/76/D/900/1999 (Nov. 138, 2002). A

determination that detention is necessary to protect

the public or prevent flight requires “case by case”

consideration of “less invasive means of achieving

the same ends, such as reporting obligations,

14

sureties or other conditions.”® HRC General

Comment No. 35, 418. A “mandatory rule for a

broad category” of individuals is impermissible. Id.;

accord A v. Australia, 4 9.2 (noting that necessity

must be determined in light of “all the circumstances

of the case”).

The Refugee Convention, as discussed in the U.N.

High Commissioner for Refugee’s amicus brief,

provides that contracting states shall not impose

restrictions on the movements of refugees “other

than those which are _ necessary.”’ Refugee

6 As various international legal authorities and experts have

explained, nations have numerous alternatives to detention

that they can use to manage migration in ways that are

consistent with international legal obligations. See

Rapporteur’s 2012 Report, 4 48 (“Research has found that over

90 per cent compliance or cooperation rates can be achieved

when persons are released to proper supervision and

assistance. The alternatives have also proved to be

considerably less expensive than detention... .”): U.N. High

Comm'r for Refugees, Detention Guidelines, at Annex A (2012)

[hereinafter UNHCR Detention Guidelines] (outlining various

alternatives to detention); U.S. Conference of Catholic Bishops

et al., Unlocking Human Dignity: A Plan to Transform the U.S.

Immigrant Detention System 28-29 (2015) (outlining use of

alternatives to detention in the United States and their

effectiveness in securing appearance for hearings and

compliance with immigration appointments); Int'l Det. Coal.,

There Are Alternatives (2015) (outlining examples of

alternatives used in the United States and many other

countries and their effectiveness).

7 As noted above, the United States has acceded to the Refugee

Protocol, which provides that parties “undertake to apply

articles 2 to 34 inclusive of the [Refugee] Convention to

refugees.” Refugee Protocol art. 1. Article 31’s protections

apply not only to asylum seekers who have come directly from

territories where their life or freedom was threatened, but also

to those who transited through other countries where they were

15

Convention art. 31(2); UNHCR Detention

Guidelines, 49] 21-30 (detailing, in the context of the

detention of asylum seekers, the purposes for which

initial detention may be “necessary” in an individual

case)®; James C. Hathaway, The Rights of Refugees

Under International Law 421-23 (2005) (Article

31(2)’s_ prohibition of “other than minimalist

detention” to verify identity and circumstances of

unable to find effective protection. See UNHCR Detention

Guidelines, 4 4; Guy S. Goodwin-Gill, Article 31 of the 195]

Convention Relating to the Status of Refugees: Non-

Penalization, Detention and Protection 4103 (2001). The

United States is also a member of the Executive Committee of

UNHCR. In 1998, the UNHCR Executive Committee issued a

formal conclusion deploring that countries detain asylum

seekers “on an arbitrary basis, for unduly prolonged periods,

and without giving them adequate access to... fair procedures

for timely review of their detention status.” Conclusions

Adopted by the Executive Committee on International

Protection of Refugees, No. 85 § dd, U.N. GAOR, 49th Sess.,

Supp. No. 12A, U.N. Doc. A/53/12/Add.1 (1998).

8 The UNHCR Detention Guidelines are issued in conjunction

with Article 35 of the Refugee Convention, and “reflect the state

of international law relating to detention — on immigration

related grounds — of asylum-seekers and other persons seeking

international protection.” UNHCR Detention Guidelines, ¥ 4.

This Court and others have found other UNHCR guidance

helpful in interpreting international legal obligations. See INS

v. Cardoza-Fonseca, 480 U.S. 421, 439 (1987) (finding

interpretative guidance in the “UNHCR, Handbook on

Procedures and Criteria for Determining Refugee Status”

provides “significant guidance”); Ins v. Aguirre-Aguirre, 526

U.S. 415, 427-28 (1999) (declining to follow Handbook but

recognizing it as a “useful interpretive aid”); Mohammed v.

Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (relying on

UNHCR’s Guidelines to find that women may constitute a

particular social group).

16

arrival enjoins states “from detaining refugees on the

basis of general rules that authorize prolonged

detention as a response to unauthorized entry”). The

Convention also prohibits the use of detention as a

penalty or sanction for illegal entry or presence in a

country. See UNHCR Detention Guidelines, {4 11,

32 (discussing Article 31(1)’s prohibition on the use

of detention to penalize asylum seekers); Goodwin-

Gill, supra note 7, 44 108, 111 (“penalties” include

“imprisonment, and other restrictions on freedom of

movement”; penalizing those viewed as _ illegal

entrants without regard to the circumstances of

flight in each individual case amounts to a breach of

state’s obligation).

The “proportionality” principle requires states to

balance the potential need for detention against the

effect that detention will have on each particular

detainee. As the UNHCR has_ explained,

proportionality “requires that a balance be struck

between the importance of respecting the rights to

liberty and security of person and freedom of

movement, and the public policy objectives of

limiting or denying these rights.” UNHCR Detention

Guidelines, | 34. The principle also requires the

state to balance the need for detention against the

effect that detention will have on an individual

detainee. See HRC General Comment No. 35, 4 18

(the individualized assessment should “take into

account the effect of the detention on [an

immigrant’s] physical or mental health”). As

detention becomes prolonged and a detainee’s right

to liberty is increasingly burdened, a heightened

showing is needed to justify detention. See UNHCR

Detention Guidelines, 4 44 (“The length of detention

17

can render an otherwise lawful decision to detain

disproportionate and, therefore, arbitrary.”)

Assessing reasonableness, necessity and

proportionality requires an individualized

assessment of the unique circumstances concerning

each non-citizen detainee. See Velez Loor v.

Panama, Preliminary Objections, Merits,

Reparations and Costs, Judgment, Inter-Am. Ct.

H.R. (ser. C) No. 218, 4 171 (Nov. 23, 2010); Inter-

Am. Comm’n H.R., Rep. on Terrorism and Human

Rights, OEA/Ser/L/V/II1.116, doc. 5, rev. 1 corr., 4 409

(Oct. 22, 2002). For that reason, the Human Rights

Committee has repeatedly found that a non-citizen’s

detention was arbitrary under Article 9(1) of the

ICCPR where the state failed to justify the detention

in light of the detainee’s particular circumstances.

In Kwok Yin Fong v. Australia, for example, the

Human Rights Committee concluded that Australia

had violated Article 9(1) of the ICCPR where it put

forward only “general reasons” to justify the

prolonged detention of a non-citizen and failed to

justify the detention based on “grounds particular to

her case.” Fong v. Australia, Communication No.

1442/2005, U.N. Human Rights Comm., 4 9.3, U.N.

Doc. CCPR/C/97/D/1442/2005 (Nov. 23, 2009).

Similarly, the Committee has found a violation of

Article 9(1) where the state tried to justify an asylum

seeker’s prolonged detention on the ground that its

“general experience” was that “asylum seekers

abscond if not retained in custody.” Shafiq v.

Australia, Communication No. 1324/2004, U.N.

Human Rights Comm., 47.3, U.N. Doc.

CCPR/C/88/D/1324/2004 (Nov. 13, 2006).

The Government’s interpretation of the INA is at

odds with the United States’ obligation to assess on a

18

case-by-case basis whether an individual non-

citizen’s detention is reasonable, necessary and

proportionate.

® The government contends that the only mechanism available

to arriving asylum seekers to secure release from detention is

through DHS’s parole authority. Pet’rs Br. at 18. Various

reports indicate that U.S. Immigration and Customs

Enforcement’s (ICE) detention and parole decisions for

“arriving asylum seekers” have in many cases’. been

inconsistent, arbitrary, and/or not actually based on

assessments of the particular individual’s circumstances,

finding for instance that: ICE parole decisions for “arriving

asylum seekers” often fail to actually involve assessments of the

necessity of detention in each particular individual’s case; ICE

officers often fail to parole asylum seekers who meet the criteria

detailed in ICE’s own parole directive applicable to “arriving

asylum seekers”; and these problems have worsened in recent

years. See Human Rights First, Lifeline on Lockdown:

Increased U.S. Detention of Asylum Seekers 1-3, 13-19 (2016)

[hereinafter “HRF Report”) (describing failures to follow and

inconsistencies in applying asylum parole policies now and in

the past); Human Rights First, Detention of Asylum Seekers in

Georgia (2016) lhereinafter “Georgia Report”] (describing near

moratorium on parole for asylum seekers held in detention

facilities located in Georgia); 1 U.S. Comm'n on Int'l Religious

Freedom, Report on Asylum Seekers in Expedited Removal 60-

62 (2005) (finding, based on statistical analysis of government

data, that asylum parole guidelines for “arriving” asylum

seekers were “not being consistently applied” and that asylum

seekers in some parts of the country were routinely released

while asylum seekers in other parts of the country were rarely

paroled).

As these reports indicate, in many cases parole decisions

are not actually based on an individualized assessment, but

instead on factors such as the availability of bed space in

detention facilities, local ICE detention policies, and/or a desire

to deter other asylum seekers from seeking asylum in the

United States. See Georgia Report at 1, 4; HRF Report at 2-3,

14-17, 22-24, 30-31; see also U.S. Comm’n on Int'l Religious

19

B. Periodic Review Is Necessary to Ensure

That Detention Does Not Become

Arbitrary Over Time

The prohibition against arbitrary detention also

requires that any detention decision be subject to

periodic review. This is necessary because

considerations of reasonableness, necessity and

proportionality may change over time as detention

becomes increasingly prolonged. As the Human

Rights Committee has said, “every decision to keep a

person in detention should be open to review

periodically so that the grounds justifying detention

can be assessed.” A v. Australia, 4 9.4; accord

—_

Freedom, Barriers to Protection 47-48 (2016) (parole bond rates

reported based on availability of detention beds).

In July 2016, Human Rights First reported that arriving

asylum seekers are denied parole and continue to be held in

detention in some cases based on the fact that they initially

arrived at a U.S. port of entry; in other cases officers have

denied parole based on unexplained assertions that asylum

seekers constitute a “flight risk” even when they have

presented evidence of family or other community ties, or based

on purported failures to sufficiently establish identity even

when they have submitted considerable documentation

establishing their identities. See HRF Report at 2-3, 13-19, 20-

22. ICE acts in effect as “judge and jailer” in the absence of

immigration court custody hearings, which the Government

asserts are blocked by regulation. See 8 C.F.R.

§ 1003.19(h)(2)(i)(B); see also HRF Report at 23; Inter-Am.

Comm’n H.R., Rep. on Immigration in the United States:

Detention and Due Process, § 137, OEA/Ser.L/V/II Doc. 78/10

(Dec. 30 2010) [hereinafter “Inter-American Commission 2010

Report”]. Such deficiencies, coupled with the lack of access to

immigration court custody hearings, lead to the detention of

many asylum seekers for prolonged periods of time that are not

reasonable, necessary or proportionate. See HRF Report at 2,

23-24.

20

Neptune v. Haiti, Merits, Reparations and Costs,

Judgment, Inter-Am. Ct. H.R. (ser. C) No. 180, 4 108

(May 6, 2008) (states “must periodically assess

whether the reasons and purposes that justified the

deprivation of liberty remain, whether the preventive

measure is still absolutely necessary to achieve these

purposes, and whcther it is proportionate”); HRC

General Comment No. 35, 918 (stating that the

determination that detention is justified as

reasonable, necessary and proportionate “must be

subject to periodic re-evaluation and _ judicial

review”); Office of the U.N. High Comm’r on Human

Rights, Recommended Principles and Guidelines on

Human Rights at International Borders, U.N. Doc.

A/69/CRP. 1, at 19 (July 23, 2014) (states should

“periodically review the necessity and proportionality

of continued detention”).

Periodic review is necessary to prevent arbitrary

detention since “detention should not continue

beyond the period for which the State can provide

appropriate justification.” A v. Australia, 4 9.4;

accord HRC General Comment No. 35, § 12 (“(TJhe

decision to keep a person in any form of detention is

arbitrary if it is not subject to periodic re-evaluation

of the justification for continuing the detention.”);

Rapporteur’s 2012 Report, {| 21. Without periodic

review, states would be unable to meet their

obligation to ensure that “detention does not last

longer than absolutely necessary.” See HRC General

Comment No. 35, § 15.

The UN Human Rights Committee has

specifically expressed concern that the United States’

use of mandatory detention that results in non-

citizens being detained “for prolonged periods of time

without regard to the individual case” raises

21

concerns under Article 9 of the ICCPR. U.N. Human

Rights Comm., Concluding Observations on the

Fourth Periodic Report of the United States of

America, U.N. Doc. CCPR/C/USA/CO/4, § 15 (Apr.

23, 2014).

The Government carries the burden of providing

“appropriate justification” for continued detention

and ensuring that detention does not last longer

than necessary. See A v. Australia, { 9.4. As the

U.N. Working Group on Arbitrary Detention has

explained, government authorities “shall establish”

that “detention is justified in accordance with the

principles of necessity, reasonableness and

proportionality.” U.N. Working Grp. on Arbitrary

Det., Rep. of the Working Group on Arbitrary

Detention, U.N. Doc. A/HRC/30/37, § 83 GWuly 6,

2015); accord UNHCR Detention Guidelines, {| 47(v)

(“The burden of proof to establish the lawfulness of

the detention rests on the authorities in question.”).

The Government’s interpretation of the INA

disregards the United States’ obligation under the

ICCPR to provide for periodic review of detention to

ensure that it remains reasonable, necessary and

proportionate under the particular circumstances

applicable to each non-citizen detainee.

Ill. The United States Has an Obligation Under

the ICCPR and International Law to Provide

Court Review of All Detentions

Under international law, the Government is

required to provide all asylum seekers and other

non-citizens with court review of the propriety of

their detention. ICCPR Article 9(4) provides:

22

Anyone who is deprived of his liberty by

arrest or detention shall be entitled to

take proceedings before a court, in order

that that court may decide without

delay on the lawfulness of his detention

and order his release if the detention is

not lawful.

This “important guarantee” apphies “to all persons

deprived of liberty,” including those in immigration

detention. HRC Gencral Comment No. 35, 44] 4, 40:

accord HRC General Comment No. 31, § 10 (stating

that Covenant rights must be available “to all

individuals, regardless of nationality or

statelessness, such as asylum seekers, refugees,

migrant workers and other persons”); HRC General

Comment No. 15, 42 (stating that the rights

espoused in the ICCPR “must be guaranteed without

discrimination between citizens and _ aliens”).

Similarly, the American Declaration provides in

Article XXV that “lelvery individual who has been

deprived of his liberty has the right to have the

legality of his detention ascertained without delay by

a court.” American Declaration art. XXV: see also

American Convention art. 7 (“Anyone who is

deprived of his liberty shal] be entitled to recourse to

a competent court.”); Inter-Am. Comm’n H.R. Res.

1/08, Principles and Best Practices on the Protection

of Persons Deprived of Liberty in the Americas, at

Principle III) (Mar. 13, 2008).1°

10 See also Convention on Migrants’ Rights art. 16(8);

Convention on Children’s Rights art. 37(d); African Charter art.

7; European Convention art. 5(4).

23

The right of detainees to court review of their

detention is binding on the United States both

through the ICCPR and also under widely-recognized

norms of customary international law. See U.N.

Working Grp. on Arbitrary Det., Rep. of the Working

Group on _ Arbitrary Detention, U.N. Doc.

WGAD/CRP. 1/2015, § 19 (May 4, 2015) |hereinafter

May 2015 Arbitrary Detention Report]!'; id. 4 19 n.35

(“The right to bring such proceedings before a court

is well enshrined in treaty law and customary

international law.”). This is a “self-standing human

right, the absence of which constitutes a human

rights violation.” Jd. § 2.

The review proceedings guaranteed by the ICCPR

and customary international law must be conducted

by a court that is independent of the detaining

authority. See id. 4 69 (the reviewing court “must be

11 The Working Group or rbitrary Detention, established by

the former Commission o: Human Rights, is charged by the

U.N. Human Rights Council with, inter alia, investigating

deprivations of liberty imposed _ inconsistently with

international standards. U.N. Human Rights Comm., Question

of the Human Rights of All Persons Subjected to Any Form of

Detention or Imprisonment, U.N. Doc. E/CN.4/1992/20 (Jan. 21,

1992). The May 2015 Arbitrary Detention Report is the result

of the Human Rights Council’s request that the Working Group

draft principles and guidelines related to the rights of detainees

“with the aim of assisting Member States in fulfilling their

obligation to avoid arbitrary deprivation of liberty in

compliance with international human rights law.” U.N. Human

Rights Council Res. 20/16, U.N. Doc. A/HRC/RES/20/16, § 10

(July 17, 2012). The basic principles and guidelines set out in

the May 2015 Arbitrary Detention Report thus represent a

distillation of “international standards and recognized good

practice” regarding the right to take court proceedings to

challenge detentions. May 2015 Arbitrary Detention Report,

{ 7.

24

a different body from the one that ordered the

detention”); UNHCR Detention Guidelines, § 47(iii)

(“[Tlhe reviewing body must be independent of the

initial detention authority, and possess the power to

order release or to vary any conditions of release.”).

Article 9(4) of the ICCPR requires proceedings before

“a court.” ICCPR art. 9(4). The U.N. Human Rights

Committee has explained that Article 9(4) “envisages

that the legality of detention will be determined by a

court so as to ensure a higher degree of objectivity

and independence in such control.” Torres v.

Finland, Communication No. 291/1988, U.N. Human

Rights Comm., {§ 7.2, U.N. Doc. CCPR/C/38/D/

291/1988 (Apr. 2, 1990) [hereinafter Torres v.

Finland]; accord G.A. Res. 43/173, Body of Principles

for the Protection of All Persons Under Any Form of

Detention or Imprisonment (Dec. 9, 1988) (defining

“Judicial or other authority” as a court “whose status

and tenure should afford the strongest possible

guarantees of competence, impartiality and

independence”).!2

12 The Government contends that U.S. immigration courts are

blocked by regulation from holding custody hearings for so-

called “arriving” asylum seekers, and that their only

mechanism for securing release is for the detaining authority to

decide to release them on parole, leaving ICE effectively as

“judge and jailer.” Pet’rs Br. at 18. U.S. immigration courts are

part of the Department of Justice, see 8 C.F.R. § 1003.10(a)

(immigration judges appointed by Attorney General and serve

within DOJ’s Executive Office for Immigration Review), which

is a separate agency from the detaining authority (ICE is a part

of the Department of Homeland Security). In those categories

of cases in which immigration courts are currently permitted to

conduct custody hearings, they do have the authority to order

release from detention, though that authority has at times been

limited. While U.S. immigration courts do not fall within the

judicial branch of the U.S. government, given the current U.S.

25

Moreover, the reviewing court must have the

authority to order release. See A vy. Australia, § 9.5

(stating that court review under ICCPR art. 9(4)

“must include the possibility of ordering release”);

May 2015 Arbitrary Detention Report, § 27 (court

must “bear the full characteristics of a competent,

independent and impartial judicial authority capable

of exercising recognizable judicial powers, including

the power to order immediate release if the detention

is found to be arbitrary or unlawful”).

ICCPR Article 9(4) and customary international

law also require that court review of detention occur

“without delay.” See ICCPR art. 9(4); May 2015

Arbitrary Detention Report, 4 80 (“[Nlo substantial

waiting period shall exist before a detainee can bring

a first challenge to the arbitrariness and lawfulness

of detention.”);!3 see also Torres v. Finland, 4 7.2

(finding detention of immigrant in violation of

ICCPR Article 9(4) where “no challenge could have

been made until the second week of detention”); Tibi

v. Ecuador, Preliminary Objections, Merits,

Reparations and Costs, Judgment, Inter-Am. Ct.

H.R. (ser. C) No. 114, 4 134 (Sept. 7, 2004) (delay of

21 days before petitioner obtained a ruling on

lawfulness of detention was “clearly an excessive

system, and the fact that the immigration courts already

provide custody hearings to many detained immigrants, access

to immigration court custody hearings should at a bare

minimum be available to all immigration detainees.

13 See also Convention on Migrants’ Rights art. 16(8) (requiring

court review “without delay”); American Convention art. 7(6)

(requiring court review “without delay”); European Convention

art. 5(4) (guaranteeing right to have lawfulness of detention

“decided speedily by a court”).

26

time” in violation of American Convention Article

7(6)).

Court review of detention must also be provided

periodically or regularly, as detention extends in

time and becomes more prolonged. See HRC General

Comment No. 35, 4 18 (detention “must be subject to

periodic re-evaluation and judicial review”); id. 4 15

(referencing need for “regular review by a court or

other tribunal” of administrative detentions); May

2015 Arbitrary Detention Report, §61 (on-

nationals should have access to “regular periodic

reviews of their detention to ensure it remains

necessary, proportional, lawful and non-arbitrary”);

id. 4 82 (individual entitled to take proceedings to a

court again “after an appropriate period of time has

passed, depending on the nature of the relevant

circumstances”); id. { 104(b) (court is empowered to

“consider whether the detention remains justified, or

whether release is warranted in light of all the

changing circumstances of the detained individual's

case”); UNHCR Detention Guidelines, 4 47(iv)

(“[Flollowing the initial review of detention, regular

periodic reviews of the necessity for the continuation

of detention before a court or an independent body

must be in place.”); see also Neptune v. Haiti, § 108

(Gjudges “must periodically assess whether the

reasons and purposes that justified the deprivation

of liberty remain”).

The system the Government advocates—in which

immigrants are detained for prolonged periods on the

decision of USCBP and ICE officers without even an

immigration court custody hearing—is at odds with

27

these requirements.'4 The U.N. Special Rapporteur

on the human rights of migrants stated in 2008 that

the U.S. Government “should ensure that the

decision to detain a non-citizen is promptly assessed

by an independent court,” and that “immigration

detainees are given the chance to have their custody

reviewed in a hearing before an immigration judge.”

Rep. of the Special Rapporteur on the Human Rights

of Migrants, 14 122, 1238, U.N. Doc.

A/HRC/7/12/Add.2 (Mar. 5, 2008). The Inter-

American Commission on Human Rights, in its 2010

report on the U.S. immigration detention system,

recommended that U.S. detention determinations be

conducted on a case-by-case basis, subject to judicial

review, and that immigrants be permitted to appeal

detention decisions to an immigration court. Inter-

American Commission 2010 Report, 94 429, 431. In

its preliminary findings from its 2016 visit to the

United States, the U.N. Working Group on Arbitrary

Detention stated that “li]ndividualised review should

comply with procedural requirements of

international law, including: the requirement that

the State bear the burden of proof to demonstrate

that it has a legitimate interest in detention, the

provision of automatic and periodic bond hearings,

'4 Paradoxically, while the Government in this case argues that

those who present themselves to U.S. officers at a forma! point

of entry should be deprived of court review, there is no dispute

that those who avoid a forma! port of entry and cross the border

have access to immigration court custody hearings under In re

X-K-. 23 | & N Dec. 731 (B.LA. May 4, 2005). While the

availability of a custody hearing may have no impact on an

individual's decisions regarding approach to the U.S. border.

the provision of access to court review would, if anything,

encourage individuals to report to formal U.S. entry points

rather than avoiding them and crossing the border elsewhere.

28

and the requirement that immigration judges

consider the accrued length of detention in deciding

whether to release an individual.” U.N. Working

Grp. on Arbitrary Det., Preliminary Findings from

Its Visit to the United States of America (Oct. 24,

2016),

http://www.ohchr.org/EN/NewsEvents/Pages/Display

News.aspx?NewsID=20746&LangID=E.

The Government argues that the only avenue for

challenging immigration detentions should be

habeas corpus review. Pet’rs Br. 46-50. While

Article 9(4) clearly requires access to habeas corpus,

the theoretical existence of habeas, as it operates in

the U.S. system, does not suffice in and of itself to

meet the requirements of U.S. obligations under

international law. Access to, and the scope of,

habeas is limited in the United States and wait times

for resolution of such petitions are lengthy. As such,

habeas petitions in the U.S. system are not an

avenue for prompt review of the necessity,

proportionality and reasonableness of detention.

Moreover, legal representation rates are exceedingly

low for immigration detainees, and pro bono legal

representation for indigent immigration detainees is

scarce. See Ingrid V. Eagly & Steven Shafer, A

National Study of Access to Counsel in Immigration

Court, 164 U. Penn. L. Rev. 1 (2015) (Study found

after collecting data from over 1.2. million

deportation cases decided between 2007 and 2012

that 14% of detained immigrants were able to secure

representation and only 2% of immigrants obtained

pro bono representation). Habeas review is also

often subject to administrative exhaustion

requirements that pose additional obstacles to court

access.

29

Thus, while a petition for habeas review is one

way for a detainee to challenge his detention before

an independent court within the U.S. judiciary, the

United States must provide more process for asylum

seekers and immigrants in order to meet its treaty

commitments and the obligations of applicable

international law. Indeed, the Government’s

position, that asylum seekers and immigrants who

have been held in immigration detention by the

United States for six months, and often longer,

should be denied access to immigration court custody

hearings, would conflict with U.S. human rights

commitments.

CONCLUSION

For the reasons set forth above, this Court should

affirm the Court of Appeals’ decision in this case.

Eleanor Acer Eugene M. Gelernter

Robyn Barnard Counsel of Record

HUMAN RIGHTS FIRST Jo Backer Laird

75 Broad Street Jared S. Buszin

New York, NY 10004 Michael N. Fresco

(917) 320-9605 PATTERSON BELKNAP

WEBB & TYLER LLP

1133 Avenue of the

Americas

New York, NY 10036

(212) 336-2000

emgelernter@pbwt.com

Attorneys for Amici Curiae