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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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................

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0657%3A24. Public record. Not legal advice.