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

Supreme Court of the United

DAVID JENNINGS, et al.,

Petitioners,

ALEJANDRO RODRIGUEZ, et al., INDIVIDUALLY

AND ON BEHALF OF ALL OTHER

SIMILARLY SITUATED,

— a

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE NINTH CrirRcuUIT

SUPPLEMENTAL BRIEF OF NATIONAL

IMMIGRATION PROJECT OF THE

NATIONAL LAWYERS GUILD AND THE

IMMIGRANT LEGAL RESOURCE CENTER

AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

SEJAL ZOTA

NATIONAL IMMIGRATION PROJECT

OF THE NATIONAL LAWYERS

GUILD

14 Beacon Street, Suite 602

Boston, MA 02108

(617) 227-9727

* Counsel of Record

STEVEN A. Hirscn*

DANIEL PURCELL

Travis SILVA

KEKER, VAN Nest & PETERS LLP

633 Battery Street

San Francisco, CA 94111

(415) 391-5400

shirsch@kvn.com

KATHERINE BRADY

IMMIGRANT LEGAL RESOURCE

CENTER

1663 Mission Street, Suite 602

San Francisco, CA 94103

(415) 255-9499

Counsel for Amici Curiae Low Lneesy

i

TABLE OF CONTENTS

Page

ee ST io bac hak oe ob ecu deawete i

TABLE OF CITED AUTHORITIES .............. iv

INTEREST OF AMICT CURIAE ................-. 1

INTRODUCTION AND SUMMARY............... 2

SEE ite sor rea ridwerk ticay <bcwamiens 7

I. Immigrant detainees raising a

substantial defense to removal have a

dlue-process right to a bond hearing........... 7

A. Most Class members raise a

substantial defense to removal—

and are therefore especially likely

to suffer prolonged detention

triggering due-process concerns.......... 8

1. The overwhelming majority of

Class members have a substantia]

| re 8

2. Immigrants who have substantial

defenses to removal are especially

likely to suffer prolonged

detention in violation of their

ee re ee 10

it

Table of Contents

Page

B. Categorically subjecting individuals

with a substantial defense to removal

to prolonged detention without a

bond hearing is not reasonably

related to the government’s asserted

DE 6c vhcpaswatecbesee Sdeen seve 11

1. Categorical denial of bond

hearings is not reasonably related

bo prewenitinns TAGE... nc ccc ccccccces 12

2. Categoricaldenial ofbond hearingsis

not reasonably related to protecting

ME ou avciavvebeeeeeseends 15

C. A bond hearing not only ameliorates

the due-process concerns raised by

prolonged pre-removal] detention, but

also improves the reliability and fairness

of the overall removal proceeding........ 17

D. The availability of a Joseph hearing

does not save Section 1226(c) from

constitutional challenge............-..-. 20

II. Demoredidnotconsider whether animmigrant

with a substantial defense to removal has a

due-process right to a bond hearing.......... 22

121

Table of Contents

Page

III. The due-process rights of immigrants who

raise a substantial defense to removal justify

affirming the District Court’s injunction...... 24

SE 56 db 5 Sak 5450 bes Rake Phataecesenens 25

w

TABLE OF CITED AUTHORITIES

Page

Federal Cases

Addington v. Texas

ee las oO en See ae 3, 21

Carachuri-Rosendo v. Holder

ed coger use dasweceue ene eee e 2

Castillo v. Holder

700 BG Bee GAR Cir, BOB)... 0... cc ccccecscccces 19

Deigadillo v. Carmichael

as oan cCils ca ckandsaracdwous 18

Demore v. Kim

i (ee visk cs cawdaeweueses passim

Descamps v. United States

EE 5. bu wasduin'scadaveveaween 19

Fong Yue Ting v. United States

ee re ee Ao oe a 17

Foucha v. Louisiana

RT EMER AR, eg Pees om 2 3

Gideon v. Wainwright

i a ses atcas cakes ned neauwe 17-18

Gonzalez v. O'Connell

355 F.3d 1010 (7th Cir. 2004)..............-... 7, 23

Vv

Cited Authorities

Page

In re Mascorro-Perales,

12 i. & We. Ewe. Bae, Bee CLA TOGT). ow. cece csccs s)

LN.S. v. Cardoza-Fonseca

I crore oO set Ae 13

Jackson v. Indiana

RE ED aE eee MC Hp 1

Landon v. Plasencia

gE ans ee Oo Ae eae Ree 9g

Matter of I-S- & C-S-,

24 1. & N. Dec. 432 (BIA 2008).............. 22, 23

Matter of Joseph,

22 I. & N. Dec. 799 (BIA 1999)............. passim

Medina-Lara v. Holder

ee ee ee ee ce cick scuwanste 19

Melloult v. Lynch

RS EE Pe a eT ey Rs aren Py Ae 2

Padilla v. Kentucky

EIS I a ete a OR Re a |

Salerno v. United States

Ne eg oe eh a a and 22

vi

Cited Authorities

Page

Smith v. Phillips

455 U.S. 209 (1982)... 1... cee eee ete eee enes 24

Stack v. Boyle

SE REMIED, cnn cccscwccecsroceececveccese 17

Thigpen v. Roberts

EGS cc ncwccrncceconveccsesenses 24

Tiyani v. Willis

430 F.3d 1241 (th Cir. 2005) ................... 21

Troung Dinh Hung v. United States

SE, EEE. ca bck v cee vonccvecccccce 13, 14

United States v. Castiello

878 F.2d 554 (1st Cir. 1989)...............-..06. 12

Vartelas v. Holder

4 Be |... re 2

Woodby v. I.N.S.

Se ME IPERS nv ce vesccseseccececoseess 8, 14

Zadvydas v. Davis

ok 7

Federal Statutes

ck ek 0 en eee ee 12

vii

Cited Authorities

Page

S US.C. § 11GB... ....6.0000000 05 cee ee 8

8 U.S.C. § LIGBCRG MAGE. ...... 0 sssscensunee eine 15

8 U.S.C. § LIGBCEI MAG)... . ss sense eneeeeeeee 16

8 U.S.C. § LISBUDO NANG). ....6. 5 vcccsen bane 16

§ U.S.C. § 1I6BCMIGRIGD ...... .05iscuenus eee 19

8 U.S.C. § LIBBIDEMADD).. ... 00s sscneueuaeeeuen 15, 16

8 U.S.C. § TIGER) . «os sce cvenen enna ea eeaeen 15

8S U.S.C. § 11GB... ... ee sccsnuesee penn 15

8 U.S.C. § 1IGBGENE MANY) .... .snens sue eup ene 13

SUS. § ISR)... vsecvewtne eee 2, 3, 9, 11

S U.S.C. § IZB5(ROM BMY)... 0000s benene eee 9-10

8 U.S.C. § ISBBD. .. «06 0s0snce cane ence passim

8 U.S.C. § 12830a(DMEMA). «.... «060s snbeee eee 20

8 U.S.C. § 1230a( DENCY. 2... os 0d bs ee eee 13

8 U.B.C. § 1BB0b. ..... 0552000005 eee ee 8

vitt

Cited Authorities

Page

ed dae he bese vketesccoveceseds 9

ccc widdewecscsecccivcescose 14

a ded ave bdbcebsecsevvceesec 16

8 U.S.C. § IZZOD(DKIN BAC) ... 2... eee ee eees 16

EEE occ cccceccccccccscececses 19

a dwakdiesavccscceces ¢ssveues 23

TT ca iechacccsccecesssseveceeses 8

IE oc cc écccevccvcvevccevencces 12

eee Gv eC id cetedcceces¥escseve 12

isa c cece cecensceseresceseees 12

Federal Regulations

GT ED os sv csccesccescvcccceces 20

Scan shwddecccacessececacceees 23

ad oc naaeecdksercvcesesseses cc 23

Ge ciaks ets esdecessevcccccceses 23

ix

Cited Authorities

Page

es et I ic vic vn Lac oak ouGasaweetatdnen 13

I he Cnn ga ds hehe tdadws uckateeonel 8

oe RS ey er er 12

Other Authorities

Andrew Taw-Hyun Kim, Rethinking

Review Standards in Asylum, 55 Wm. &

Ey Bes SG EE EE oi bc oh esevccesssseceess 11

Charles A. Wiegand III, Fundamentals

of Immigration Law 113 (rev. Feb. 2016).......... 22

Ingrid V. Eagly & Steven Shafer, A National

Study of Access to Counsel in Immigration

Court, 164 U. Pa. L. Rev. 1 (2015) ............... 18

Julie Dona, Making Sense of “Substantially

Unlikely”: An Empirical Analysis of the Joseph

Standard in Mandatory Detention Custody

Hearings, 26 Geo. Immigr. L. J. 65 (2011) ........ 21

N.Y. Immigrant Representation Study

Report, Accessing Justice; The

Availability and Adequacy of Counsel in

Immigration Proceedings (Dec. 2011)............ 18

x

Cited Authorities

Page

Northern California Collaborative for Immigrant

Justice, Access to Justice for Immigrant

Families and Communities: Study of Legal

Representation of Detained Immigrants

in Northern California (Oct. 2014)............... 18

Presidential Memorandum Regarding the

Hiring Freeze Wan. 23, 2017)... ........cccceeee 11

1

INTEREST OF AMICI CURIAE'

Amici, two organizations with a long history of

defending immigrants’ rights, submit this brief to

provide an independent basis for affirming the District

Court’s injunction with respect to immigrants raising

a substantial defense to the entry of a removal order.

Amici fully agree with Respondents’ arguments in favor

of affirming the District Court’s injunction in this case.

But, as amici explain here, even if the Court declines to

affirm the judgment below, the Court should nevertheless

grant relief to the thousands of immigrant detainees

asserting a substantial defense to removal by affirming

the injunction in part.

The National Immigration Project of the National

Lawyers Guild (“NLG”) is a non-profit membership

organization of attorneys, legal workers, grassroots

advocates, and others working to defend immigrants’ rights

and secure the fair administration of the immigration and

nationality laws. For 30 years, the NLG has provided legal

training to the bar and the bench on the immigration

consequences of criminal conduct. It also is the author of

Immigration Law and Crimes and three other treatises.

The NLG has participated as amicus curiae in several

1. Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or entity

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Pursuant to Rule 37.3(a), counsel for amici also represent that all

parties have consented to the filing of this brief; letters reflecting

their blanket consent to the filing of amicus briefs are on file with

the Clerk.

2

significant immigration-related cases before this Court.

See, e.g., Mellouli v. Lynch, 135 S. Ct. 1980 (2015); Vartelas

v. Holder, 132 8. Ct. 1479 (2012); Carachuri-Rosendo v.

Holder, 560 U.S. 563 (2010); Padilla v. Kentucky, 559

U.S. 356 (2010). Through its membership network and its

litigation, the NLG is knowledgeable about the problems

faced by immigrants subject to prolonged detention

without bond hearings.

The Immigrant Legal Resource Center (“ILRC”)

is a non-profit center and national leader in the area of

the immigration consequences of criminal convictions.

The ILRC has provided information and assistance to

thousands of immigration advocates, criminal defenders,

courts, and other groups. It has published manuals on the

immigration consequences of crimes, and it has regularly

filed amicus briefs in this Court in important immigration

cases. See, e.g., Carachuri-Rosendo v. Holder, 560 U.S.

563 (2010). Through its work, the ILRC has developed a

strong interest in the issue of prolonged detention.

INTRODUCTION AND SUMMARY

The government claims that Sections 1225(b) and

1226(c)* authorize the detention of certain immigrants

without any temporal limitation and without the provision

of a bond hearing before a neutral decision-maker. The

District Court rejected this extreme position as raising

serious due-process concerns and construed the statute

to require bond hearings after six months of detention.

The Ninth Circuit affirmed. Amici urge the Court to

2. These statutes are codified in Title 8 of the United States

Code.

3

affirm the injunction in full for the reasons Respondents

provide in their initial and supplemental briefs. Amici

write separately to argue that the due-process rights

of immigrants raising a substantial defense to removal

offer an independent basis for affirming the injunction

in part. If the Court declines to affirm the injunction in

full, it should nevertheless affirm it in part for the reasons

given here.*

Outside of the criminal-justice system, our Constitution

permits detention only under narrow, carefully limited

circumstances. To protect against capricious detention,

Anglo-American law has, for centuries, required the

Executive to demonstrate at a hearing before a neutral

decision-maker that an individual’s civil detention is

necessary to serve a valid government purpose. This

Court has repeatedly enforced these rules against

executive-branch efforts to subject individuals to civil

detention without due process of law. #.g., Foucha v.

Louisiana, 504 U.S. 7111992); Addington v. Texas, 441

U.S. 418 (1979).

Here, however, the government claims that Sections

1225(b) and 1226(c) authorize the detention of certain

immigrants without any temporal limitation and without

the provision of a bond hearing before a neutral decision-

maker. The government claims that the categorical denial

of bond hearings to Class members is justified by its

interests in preventing flight and protecting public safety.

Amici agree with Respondents that detention without a

bond hearing becomes prolonged and violates due process

3. Amici interchangeably use the terms “substantial defense

to removal!” and “substantial defense to a removal order.”

4

after six months. For that reason, amici urge the Court

to affirm the District Court’s injunction requiring the

provision of bond hearings to immigrants subject to

prolonged immigration detention.

Amici write separately to provide an alternative

justification for affirming the injunction in part. As Justice

Breyer recognized in Demore v. Kim, 538 U.S. 510 (2003),

an immigrant with a defense to removal that is “neither

insubstantial nor interposed solely for purposes for delay”

has “strong” “constitutional claims to bail.” /d. at 577

(Breyer, J., concurring in part and dissenting in part). In

this brief, amici identify those defenses and show why the

individuals who assert them have a strong constitutional

claim to bond.

I.A. Many immigrants have a defense to the

government’s attempt to remove them from the United

States that is “neither insubstantial nor interposed solely

for purposes of delay.” Jd. Some immigrants prevail simply

because the government is unable to prove its charge of

removability. Others obtain a form of relief from removal

such as, for example, cancellation of removal or asylum.

An immigrant who prevails on a claim for relief retains or

acquires lawful permanent resident status (or a pathway

thereto). When an immigrant successfully defends against

the government’s charge of removability or obtains relief

from removal, she defeats the government’s effort to

obtain a removal order. The majority of Class members

raise a substantial] defense to removal.

Class members who raise a substantial defense to

removal are uniquely vulnerable to prolonged detention.

Preparing, presenting, and considering a substantial

5

defense to removal require time and resources. The

Nation’s overwhelmed Immigration Courts lack both,

leaving Class members with a substantial defense to

removal to languish in detention while their claims are

adjudicated.

I.B. To prevail here, the government must demonstrate

that the categorical denial of bond hearings to Class

members is reasonably related to the purpose of Class

members’ detention. The government cites two interests:

preventing flight and protecting public safety. But

neither justification is availing in light of the “strong”

“constitutional claims to bail” possessed by immigrants

asserting a substantial defense to removal. /d.

Immigrants raising a substantial defense to removal

are particularly unlikely to pose a flight risk. These

individuals have powerful incentives to submit to the

Immigration Court’s jurisdiction because they are able to

obtain or retain lawful permanent resident status if they

prevail. Moreover, electronic monitoring can mitigate the

risk of flight without resorting to detention.

Additionally, detaining individuals with a substantial

defense to removal is not reasonably related to protecting

public safety. Congress has made immigrants with

serious criminal convictions ineligible to apply for most

forms of immigration relief. An immigrant cannot raise

a substantial defense to a removal order if she clearly

possesses a disqualifying conviction. Immigrants raising a

substantial defense to removal are thus the Class members

least likely to endanger the public. The Constitution

cannot tolerate the prolonged detention of such individuals

without a bond hearing.

6

I.C. A bond hearing not only ameliorates the due-

process concerns raised by prolonged pre-removal

detention, but also improves the reliability and fairness

of the overall removal proceeding. An immigrant at

liberty is better able to secure legal counsel and to assist

in preparing her defense. For an immigrant asserting a

substantial defense to removal, release from detention

may mean the difference between remaining in the

United States and being removed to an unfamiliar—and

potentially dangerous—country.

I.D. Immigrants may seek a hearing in immigration

court to determine if they are properly classified under

the mandatory-detention statute. But that hearing does

not adequately safeguard the due-process rights of

immigrants raising a substantial defense to removal. The

Joseph standard‘ used in those hearings does not allow

the Immigration Judge to consider whether an immigrant

has even an obvious claim to relief from removal. And

while Joseph allows the Immigration Judge to consider

the threshold issue of removability, it violates due process

by impermissibly placing the burden of persuasion on

the immigrant. Most important, a Joseph hearing is no

substitute for an individualized hearing on flight risk

and danger—the touchstone of this Court’s due-process

jurisprudence.

II. Demore did not consider whether an immigrant

with a substantial defense to removal has a due-process

right to a bond hearing. In Demore v. Kim, 538 U.S.

510 (2003), the Court upheld the mandatory detention

of a lawful permanent resident who conceded that he

4. See Matter of Joseph, 22 1. & N. Dec. 799, 806 (BIA 1999).

7

was removable but requested withholding of removal.

An immigrant who, like Kim, seeks only withholding

of removal necessarily accepts the entry of a removal

order. Therefore, this Court in Demore had no occasion

to consider the constitutional implications of detaining

an immigrant raising a substantial defense to the entry

of a removal order. Accordingly, Demore “left open the

question of whether mandatory detention under § 1226(c)

is consistent with due process when a detainee makes a

colorable claim that he is not in fact deportable.” Gonzalez

v. O'Connell, 355 F.3d 1010, 1019-20 (7th Cir. 2004).

III. The Court should affirm the District Court’s

injunction for the reasons provided by Respondents and

to protect the due-process rights of immigrants asserting

substantial defenses to removal. If the Court declines to

affirm the injunction in full, it should affirm it in part so

that immigrants with such defenses receive a bond hearing

after no later than six months of immigration detention.

ARGUMENT

I. Immigrant detainees raising a substantial defense

to removal have a due-process right to a bond

hearing.

To comport with the Constitution, civil detention must

bear a reasonable relationship to its purpose. Zadvydas

v. Davis, 533 U.S. 678, 690 (2001); Jackson v. Indiana,

406 U.S. 715, 738 (1972); see also Resp. Supp. Br. at 17-18.

Here, the prolonged detention, without possibility of

bond, of an immigrant who raises a substantial defense

to removal does not bear a reasonable relationship to the

asserted government interests.

8

A. Most Class members raise a substantial defense

to removal—and are therefore especially likely

to suffer prolonged detention triggering due-

process concerns.

The overwhelming majority of Class members have

raised a substantial defense to removal by challenging

the charge of removability or demonstrating statutory

eligibility for relief from removal. Ironically, however,

the very fact that they have meritorious defenses renders

them more vulnerable to prolonged detention because it

takes more time to prepare and adjudicate these complex

cases. Accordingly, these are precisely the immigrants for

whom the risk of a due-process violation is highest.

1. The overwhelming majority of Class

members have a substantial defense to

removal.

An immigrant may defend against the entry of a

removal order in one of two ways.

First, she may seek to defeat the government’s initial

charge of removability. If the government cannot carry

its burden of proving the charge of removability, the

Immigration Judge must terminate proceedings. Woodby

v. ILN.S., 385 U.S. 276, 286 (1966); 8 C.F_R. § 1240.8(a);

Second, even if she is unable to defeat the government’s

charge of removability, an immigrant may obtain

permanent relief from removal. Examples of such relief

include cancellation of removal, adjustment of status to

that of a lawful permanent resident, and asylum.°®

5. See 8 U.S.C. § 1229b (criteria for cancellation of removal);

id. at § 1255 (adjustment of status); id. at § 1158 (asylum).

9

If an immigrant prevails either by defeating an initial

charge of removability or by obtaining permanent relief

from removal, proceedings terminate without the entry

of a removal order, and any immigrant who obtains relief

from removal] leaves the courthouse a lawful permanent

resident or with an avenue to acquire that status. /n re

Mascorro-Perales, 12 1. & N. Dec. 228, 230 (BIA 1967).

The overwhelming majority of detained Class members

raise a substantial defense to removal. While some raise a

substantial defense to the government’s threshold charge

of removability, most seek relief from removal. Seventy

percent of Mandatory Subclass members were eligible and

applied for cancellation of removal.® J.A. 95 tbl. 23; Resp.

Supp. Br. at 34 n.10. To be statutorily eligible for this relief,

a lawful permanent resident must demonstrate that she

has continuously resided in the United States for at least

seven years, been a lawful permanent resident for at least

five years, and not been convicted of an aggravated felony.

8 U.S.C. § 1229b(a). An immigrant who is able to meet

these requirements and who has filed an application for

cancellation has raised a substantial defense to removal.

Similarly, over ninety percent of Arriving Subclass

members had a “credible” asylum case.’ 8 U.S.C. § 1225(b)

6. The District Court certified two Subclasses relevant here:

a Mandatory Subclass of immigrants detained under color of

Section 1226(c) and an Arriving Subclass of immigrants detained

under color of Section 1225(b). Amici agree with Respondents

that members of the Arriving Subclass members are protected

by due-process requirements. Resp. Supp. Br. at 19; see Landon

v. Plasencia, 459 U.S. 21, 34 (1982).

7. See, e.g., J.A. 98, tbl.28; J.A. 99; J.A. 135, tbl.38.

10

(1)(B)(v). Government officials interviewed these Subclass

members and determined that each had a “significant

possibility” of “establish|ing] eligibility for asylum.” /d.

Like the statutorily eligible cancellation applicant, an

immigrant whom the government has “screened in” as

having a potentially meritorious asylum claim raises a

substantial defense to removal. And for reasons discussed

below, these individuals have a particularly strong claim

to a bond hearing.

2. Immigrants who have substantial defenses

to removal are especially likely to suffer

prolonged detention in violation of their

due-process rights.

Immigrants who raise a substantial defense to

removal are more likely than Class members generally

to experience prolonged detention unless granted a bond

hearing.

A Class member who asserts a substantial defense to

removal is more likely to experience prolonged detention

because meritorious litigation takes longer to complete

than less complex litigation. J.A. at 80-81; see Brief of

Nine Retired Immigration Judges at 17 (hereinafter “IJ

Br.”). It takes time for the immigrant to prepare her case

and for the government to oppose it. These cases require

“careful legal analysis and thorough factual review” from

the Nation’s Immigration Judges, an overburdened group

of officials facing crushing caseloads. IJ Br. at 18.

Immigration Judges carry an average caseload

of 1,900 cases. Jd. at 20. They lack necessary support

staff; indeed, there are even fewer chambers clerks than

1]

Immigration Judges. Andrew Taw-Hyun Kim, Rethinking

Review Standards in Asylum, 55 Wm. & Mary L. Rev.

581, 611 (2013). This lack of resources has contributed

a growing backlog of cases, which in turn will lead to

Class members having to wait longer for their cases to

be adjudicated. /d. at 610-11. And this already dismal

situation is set to become worse because the government

has instituted a hiring freeze that is likely to preclude the

hiring of additional Immigration Judges.*

B. Categorically subjecting individuals with a

substantial defense to removal to prolonged

detention without a bond hearing is not

reasonably related to the government’s asserted

interests.

“| Djue process requires that the nature and duration

of commitment bear some reasonable relation to the

purpose for which the individual is committed.” Jackson,

406 U.S. at 738. The government asserts two interests

to justify prolonged detention under Sections 1225(b)

and 1226(c): preventing the immigrant’s flight and

preserving public safety. Petr. Supp. Br. at 31. But neither

rationale is “reasonabl[y] related” to refusing to grant

an individualized bond hearing to immigrants with a

substantial defense to removal. Jackson, 406 U.S. at 738.

8. Presidential Memorandum Regarding the Hiring

Freeze (Jan. 23, 2017), https://www.whitehouse.gov/the-press-

office/2017/01/23/presidential-memorandum-regarding-hiring-

freeze.

12

1. Categorical denial of bond hearings is not

reasonably related to preventing flight.

There is no reasonable relationship between preventing

flight and denying a bond hearing to an immigrant with

a substantial defense to removal who faces prolonged

detention. “[A]s a matter of common sense, the likelihood

of succeeding on appeal is relevant to flight risk.” United

States v. Castiello, 878 F.2d 554, 555 (1st Cir. 1989). Or,

put another way, an immigrant who has much to gain from

attending her removal proceeding is far more likely to

comply with immigration authorities. Here, an immigrant

raising a substantial defense to removal does have much

to gain—lawful permanent-resident status or a short

pathway to it—as a result of her removal proceedings.

See supra, p. 9.

The ample rights that Congress has conferred upon

lawful permanent residents serve as a powerful set

of incentives to attend removal proceedings. Lawful

permanent residents have indefinite permission to reside

in the United States and they become eligible to apply for

citizenship five years after obtaining permanent-resident

status.® They are entitled to work in the United States

on virtually the same terms as citizens, are eligible for

federal financial aid for post-secondary education, and may

petition for certain family members to immigrate to the

United States.’° Compared to individuals with no chance

9. 8 U.S.C. § 1427(a). Spouses of U.S. citizens may naturalize

even sooner. /d. at § 1430(a).

10. 8 U.S.C. § 1324(a)(h)(3) (employment authorization); 34

C.F.R. § 668.33(a)(2)(i) (financial-aid eligibility); 8 U.S.C. § 1153(a)

(2) (authorization to petition for immigrant relatives).

13

of defending against a removal order, immigrants on the

threshold of gaining this panoply of rights are far more

likely to submit to the jurisdiction of the Immigration

Court.

Immigrants asserting two defenses to removal that

are very common amongst Class members—asylum and

cancellation of removal—are particularly incentivized to

attend their removal proceedings. For asylum seekers, the

right to remain in the United States may be the difference

between life and “death or persecution if forced to return

to his or her home country.” [.N.S. v. Cardoza-Fonseca,

480 US. 421, 449 (1987). An immigrant who fails to appear

in Immigration Court may forfeit forever the opportunity

to present her asylum claim and avoid removal to an

unsafe country. Immigration Judges issue in absentia

removal orders whenever an immigrant fails to appear. 8

U.S.C. § 1158(d)(5)(A)(y); td. at § 1229a(b)(5)(C)(i). Relief

from such orders is only narrowly available, id., and the

government has promulgated a regulation barring many

removed immigrants from later seeking asylum. 8 C.F.R.

§ 1208.31(e). Thus, an immigrant seeking asylum has

strong incentives to appear at her removal proceedings

because a failure to do so may waive her ability to present

her claim.

Likewise, an immigrant able to assert a substantial

claim to cancellation of removal usually poses a much-

reduced flight risk because she has “extensive ties in the

community” and “close relationship{s}” to U.S. citizens

and lawful permanent residents. Troung Dinh Hung v.

United States, 439 U.S. 1326, 1329 (1978) (Brennan, J., in

14

chambers). To be eligible to apply for this form of relief,"

lawful permanent residents must demonstrate seven years

of continuous residence in the United States, including five

as a lawful permanent resident. 8 U.S.C. § 1229b(a)(2). As

Justice Brennan noted in Troung Dinh Hung, individuals

with such strong ties to the United States are particularly

unlikely to abscond. 439 U.S. at 1329 (Brennan, J., in

chambers). And, like the asylum applicant who absconds,

the cancellation applicant who fails to appear forfeits

her opportunity to obtain relief that would enable her to

retain the “family, social, and economic ties” that lawful

permanent residents develop to the United States and its

citizens. Woodby v. I.N.S., 385 U.S. 276, 286 (1966).

The availability of alternatives to detention also

shows why the government’s categorical denial of bond

hearings is unreasonable. Immigration authorities operate

the Intensive Supervision and Appearance Program

(ISAP), which releases individuals into the community

under electronic supervision. The government’s most

knowledgeable witness testified that in one Southern

California service area virtually 100% of ISAP participants

appeared at their removal hearings, and he estimated

that compliance in the Los Angeles service area reached

90%. J.A. 564-65. This alternative further demonstrates

that detention is not necessary to prevent the flight of an

immigrant with a substantial defense to removal.

11. Cancellation of removal was the most common type of

relief that Class members sought. J.A. at 78.

15

2. Categorical denial of bond hearings is not

reasonably related to protecting public

safety.

Similarly, there is no reasonable relationship between

protecting public safety and denying a bond hearing

to an immigrant with a substantial defense to removal

who faces prolonged detention. A Class member with a

conviction serious enough to make her ineligible for relief

from removal would not have a substantial defense from

removal. By contrast, Congress specifically preserved

the possibility of relief for immigrants whose criminal

eonvictions render them removable but are not so serious

as to render them categorically unfit to obtain relief from

removal. Individuals falling into this latter category may

be able to raise a substantial defense to removal; and it is

illogical to assume that they categorically threaten public

safety, given Congress’s intent to give each of them the

opportunity to apply for relief from removal.

Congress already has eliminated removal defenses for

most people who could pose a threat to public safety. For

instance, asylum is unavailable to any individual who has

been convicted of a “particularly serious crime,” a serious

non-political crime," or an aggravated felony.'’* Likewise,

asylum is unavailable to any individual who has persecuted

12. 8 U.S.C. at § 1158(b)(2)(A)GI).

13. Jd. at § 1158(b)(1)(A)Gii).

14. Id. at § 1158(b)(2)(B)i).

16

others” or been found to be involved in terrorist activity”

or to pose a danger to the security of the United States."

As this wide range of descriptions suggests, an individual

who poses a danger to the community is likely to be barred

from raising a claim to asylum.

Congress also has precluded many individuals with

serious criminal offenses from obtaining cancellation

of removal. A lawful permanent resident cannot obtain

cancellation unless she can prove that she has never been

convicted of an aggravated felony.’* And an immigrant who

is not a lawful permanent resident may obtain cancellation

of removal only if she can show that she possesses good

moral character and can establish that she has not

been convicted of a crime involving moral turpitude, an

offense related a controlled substance or firearms, or an

aggravated felony.'* Because of these bars, an individual

who poses a danger to the community could not raise a

substantial defense to removal.

These prohibitions demonstrate the unreasonable

nature of the government’s categorical denial of a bond

hearing to Class members, at least insofar as that denial

affects immigrants with a substantial defense to removal.

Immigrants with lesser convictions are the only Class

members able to raise a substantial defense to removal.

15. Id. at § 1158(b)(2)(A)().

16. Jd. at § 1158(b)(1)(A)(y).

17. Id. at § 1158(b)(1)(A)iv).

18. Jd. at § 1229b(a)(3).

19. Jd. at § 1229b(b)(1)(B)&(C).

17

The government’s public-safety justification rings hollow

given the specific eligibility criteria governing relief from

removal.

C. A bond hearing not only ameliorates the

due-process concerns raised by prolonged

pre-removal detention, but also improves the

reliability and fairness of the overall removal

proceeding.

An immigrant with a substantial defense to removal

may win release after a proper bond hearing.” And once

released, that immigrant is far more likely to participate

effectively in her removal proceedings.

The reason is simple. An immigrant at liberty is

better able to prepare and present her defense to the

Immigration Court. In the criminal-justice system, the

“traditional right to freedom before conviction permits the

unhampered preparation of a defense.” Stack v. Boyle, 342

U.S. 1, 4 (1951). For at least two reasons, this reasoning

applies equally to immigration proceedings, which may

culminate in the “particularly severe ‘penalty”” of removal.

Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting

Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)).

First, detained immigrants are far less likely than

non-detained immigrants to secure legal representation.

While the Constitution requires the government to provide

criminal defendants with legal representation, Gideon

20. Amici address why a hearing conducted under /n re

Joseph, 22 1. & N. Dec. 799, 806 (BIA 1999), is not a bond hearing

infra at pp. 20-22.

18

v. Wainwright, 372 U.S. 335 (1963), this Court has not

yet recognized a constitutional entitlement to counsel in

immigration proceedings. Thus, liberty prior to removal

becomes a far more important factor in determining

whether an immigrant is likely to retain a lawyer. Non-

detained immigrants are almost five times more likely

than detained immigrants to have legal representation.”

And this difference matters, because the outcome of the

proceeding often turns on whether an immigrant has a

lawyer. A recent study of New York-area immigration

courts shows that detained immigrants with counsel

are six times more likely than unrepresented detainees

to obtain some form of relief from removal.** A study

of San Francisco immigration courts reached a similar

conclusion.” Accordingly, an immigrant’s ability to obtain

counsel—which may hinge entirely upon whether the

individual is at liberty—often determines whether the

immigrant will earn the right to remain in the United

States or face “the equivalent of banishment or exile.”

Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947).

21. Ingrid V. Eagly & Steven Shafer, A National Study of

Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1,

31 (2015).

22. N.Y. Immigrant Representation Study Report, Accessing

Justice; The Availability and Adequacy of Counsel in Immigration

Proceedings at 3 (Dec. 2011), http://www.cardozolawreview.com/

content/denovo/NYIRS_Report.pdf.

23. Represented detainees in San Francisco were more than

three times more likely to prevail in their removal cases compared

to unrepresented detainees. Northern California Collaborative

for Immigrant Justice, Access to Justice for Immigrant Families

and Communities: Study of Legal Representation of Detained

Immigrants in Northern California at 9 (Oct. 2014), http://www.

Iecr.com/wp-content/uploads/NCCIJ-Access-to-Justice-Report-

Oct.-2014.pdf.

19

Second, the unique nature of removal proceedings

disadvantages immigrants who proceed without counsel.

Asylum seekers, for example, may need to obtain

psychological evaluations, witness statements, and

information about conditions in their home country. See

8 U.S.C. § 1158(b)(1)(B)(ii). To accomplish these tasks,

asylum seekers may need to communicate with people

in the home country, an especially difficult job from a

detention facility. Likewise, an applicant for cancellation of

removal may need to secure hard-to-obtain documentation

to prove her continuous presence in the United States or to

establish that she has not been convicted of an aggravated

felony. 8 U.S.C. § 1229b(b)(1)(D). See IJ Br. at 13 (noting

that “[p]rolonged detention hobbles .. . detainees’ attempts

to clearly present issues to the immigration court”). Thus,

a detained immigrant preparing this type of fact-intensive

defense without the aid of counsel is doubly disadvantaged

by detention because she can neither retain a lawyer nor

gather the evidence necessary to prove her defense.”

24. For these same reasons, the Court should reject the

government’s argument that Class members with criminal

convictions who seek discretionary relief from removal somehow

have a diminished liberty interest. Petr. Supp. Br. at 35. The

government claims that an immigrant’s removability is often

established “beyond dispute” by a judgment of conviction. Not so.

The legal analysis governing this determination is difficult even for

the Courts of Appeal to administer. See, e.g., Descamps v. United

States, 133 S. Ct. 2276, 2287 (2013). Immigration Judges and the

Board of Immigration Appeals also struggle with this area of law,

and the Courts of Appeals regularly reverse removal orders in

cases involving detained immigrants. See e.g., Castillo v. Holder,

776 F.3d 262 (4th Cir. 2015) (vacating removal order of detained

lawful permanent resident); Medina-Lara v. Holder, 771 F.3d

1106 (9th Cir. 2014) (same). As Justice Breyer noted in Demore,

this area of law can give rise easily to a defense from removal

20

Accordingly, a bond hearing not only ameliorates the

due-process concerns raised by prolonged pre-removal

detention, but also improves the reliability and fairness

of the overall removal proceeding.

D. The availability of a Joseph hearing does

not save Section 1226(c) from constitutional

challenge.

The government’s attempt to present Joseph hearings

as a safeguard against arbitrary detention is unpersuasive

because those hearings utterly fail to protect the due-

process rights of immigrants asserting a substantial

defense to a removal order. See Petr. Supp. Br. at 7, 11-12.

Immigration Judges conduct Joseph hearings to

determine whether individuals who have been subjected

to mandatory detention under Section 1226(c) are in fact

properly subject to the statute. 8 C.FLR. § 1003.19(h)(2)(ii).

But the standard imposed by Joseph hearings is virtually

impossible to meet: An individual must demonstrate that

the government is “substantially unlikely to establish”

the charges that allegedly render the individual subject to

mandatory detention. Jn re Joseph, 22 I. & N. Dec. 799, 806

that is “neither insubstantial nor interposed solely for purposes

of delay.” Demore, 538 U.S. at 577 (Breyer, J., concurring in part

and dissenting in part).

Moreover, the discretionary nature of relief from removal is

irrelevant to whether an immigrant should be afforded the right

to seek counsel. Petr. Supp. Br. at 36. Congress has specifically

provided immigrants the right to secure legal representation

for all phases of a removal proceeding. 8 U.S.C. § 1229a(b)(4)(A).

Freedom from prolonged detention aids the immigrant in availing

herself of that right.

21

(BIA 1999). As a practical matter, this means that unless

the government’s charges are frivolous, an immigrant

subjected to mandatory detention cannot prevail—no

matter how strong a claim she may have that she will

ultimately not be ordered removed.

The Joseph standard is deeply flawed on two levels.

Substantively, Joseph asks the wrong question because

it focuses narrowly only on whether an immigrant is

removable as a threshold matter, rather than whether an

immigrant is likely to avoid a removal order, which she

may do either by successfully challenging the charge or by

establishing eligibility for one of the forms of permanent

relief from removal. See J.A. 322 (testimony of Assistant

Chief Immigration Judge). A broader inquiry that takes

into account all of a detainee’s potential defenses to

removal would “strike[] the best balance between an

alien’s liberty interest and the government’s interest in

regulating immigration.” Tijanz v. Willis, 430 F.3d 1241,

1247 (9th Cir. 2005) (Tashima, J., concurring).

Second, the Joseph standard is flawed because, rather

than requiring the government to justify continued

detention, it forces the immigrant to justify release, and

does so by imposing a standard that, as noted above, is

virtually impossible to meet.” Thus, the standard violates

“the principle that the risk of erroneous deprivation of a

fundamental right may not be placed on the individual.”

Tijani, 430 F.3d at 1245 (Tashima, J., concurring); accord

Addington v. Texas, 441 U.S. 418, 423 (1979).

25. See Julie Dona, Making Sense of “Substantially

Unlikely”: An Empirical Analysis of the Joseph Standard in

Mandatory Detention Custody Hearings, 26 Geo. Immigr. L. J.

65, 78 (2011).

22

But the Joseph standard’s fundamental flaw is that

it does not permit the Immigration Judge to conduct an

individualized hearing on flight risk and danger to the

community. This inquiry is the touchstone of this Court’s

civil-detention cases. Salerno v. United States, 481 U.S.

739, 748-50 (1987). Joseph’s failure to even consider

these matters demonstrates its inability to safeguard the

constitutional rights of any Class member.

Il. Demore did not consider whether an immigrant

with a substantial defense to removal has a due-

process right to a bond hearing.

Demore did not address the due-process rights

of an immigrant asserting a substantial defense to a

removal order. As explained below, immigration law

distinguishes between relief from removal and protection

from removal.”* An immigrant who receives relief from

removal has the right to remain in the United States.

An immigrant who receives protection from removal!

obtains only a provisional stay of the execution of a

26. The government declines to acknowledge this distinction

in its brief. Petr. Supp. Br. at 8 n.1. But the government trains

Immigration Judges on this very point of law. Charles A. Wiegand

III, Fundamentals of Immigration Law 113 (rev. Feb. 2016)

(excluding withholding of removal from “form of relief”), https://

www.justice.gov/sites/default/files/pages/attachments/2016/03/03/

fundamentals _of_immigration_law_-_feb_2016.pdf, https://

www.justice.gov/eoir/immigration-judge-benchbook. And the

government fiercely enforces the distinction between relief and

protection from removal in its enforcement of the law. Matter of

I-S- & C-S-, 241. & N. Dec. 432, 433-34 (BLA 2008) (holding that

entry of a removal order is a necessary predicate to obtaining

withholding of removal).

23

removal order. Kim, the immigrant in Demore, applied

only for a form of protection from removal. As a result,

this Court had no occasion to consider the due-process

rights of an immigrant who attempts to rebut the charge

of removability or who applies for permanent relief from

removal.

Kim, the immigrant in Demore, initially applied for

withholding of removal. Withholding of removal is a form

of protection, not relief, from removal. An immigrant who

obtains withholding accepts a final order of removal and

is unable to obtain lawful permanent residence. 8 U.S.C.

§ 1231(b)(3); 8 C.F-R. § 1208.16; Matter of I-S- & C-S-, 241.

& N. Dec. 432, 433-34 (BLA 2008). Indeed, an immigrant

who has obtained withholding of removal may still be

removed to a different, safe country. 8 C.F.R. § 1208.22.

And the government may seek permission to execute the

removal order if conditions change in the immigrant’s

home country. 8 C.F.R. § 1208.24. Thus, withholding of

removal is not a complete defense to a removal proceeding.

The Court decided Demore assuming that Kim had

conceded his removability, had foregone the opportunity to

apply for permanent relief from removal, and had sought

only withholding of removal. Demore, 538 U.S. at 522 n.6.

Demore thus “left open the question of whether mandatory

detention under § 1226(c) is consistent with due process

when a detainee makes a colorable claim that he is not in

fact deportable.” Gonzalez v. O’Connell, 355 F.3d 1010,

1019-20 (7th Cir. 2004).

24

Ill. The due-process rights of immigrants who raise

a substantial defense to removal justify affirming

the District Court’s injunction.

Amici agree with Respondents that the Court should

affirm the District Court’s injunction because Class

members have a due-process right to a bond hearing in

the face of prolonged detention. Moreover, the due-process

rights of immigrants with a substantial defense to removal!

also support affirming the injunction in full. The Court

may affirm the judgment below on “any ground that the

law and the record permit and that will not expand the

relief granted below.” Thigpen v. Roberts, 468 U.S. 27,

30 (1984); accord Smith v. Phillips, 455 U.S. 209, 215

n.6 (1982). Because the vast majority of Class members

raise a substantial defense to removal, affirmance of the

injunction in full is appropriate.

However, if the Court declines to affirm the injunction

in full, amici urge the Court to affirm it in part so as to

provide bond hearings after no more than six months

of detention to Class members who raise a substantial

defense to removal.

25

CONCLUSION

For the foregoing reasons and those offered by

Respondents and other amici, amici respectfully urge

the Court to affirm the injunction.

Respectfully submitted,

SEJAL ZOTA STEVEN A. Hirscn*

NATIONAL IMMIGRATION PROJECT DANIEL PURCELL

OF THE NATIONAL TRAVIS SILVA

LAWYERS GUILD KEKER, VAN Nest & Peters LLP

14 Beacon Street, Suite 602 633 Battery Street

Boston, MA 02108 San Francisco, CA 94111

(617) 227-9727 (415) 391-5400

shirsch@kvn.com

KATHERINE BRADY

IMMIGRANT LEGAL RESOURCE

CENTER

1663 Mission Street, Suite 602

San Francisco, CA 94103

* Counsel of Record (415) 255-9499

Counsel for Amici Curiae