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

Supreme ult, US.

FILL D

OCT 24 26

OFFICE OF THE CLEBK

No. 15-1204

IN THE

Supreme Court of the United States

DAVID JENNINGS, ez ai.,

Petitioners,

v.

ALEJANDRO RODRIGUEZ, et al.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF PROFESSORS OF CONSTITUTIONAL,

IMMIGRATION, AND ADMINISTRATIVE LAW AS

AMICI CUR JAE IN SUPPORT OF RESPONDENTS

Dennis B. Auerbach

Counsel of Record

David M. Zionts

Philip J. Levitz

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, N.W.

Washington, DC 20001-4956

dauerbach@cov.com

(202) 662-6000

Counsel for Amici Curiae

—_ —————— —————

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................c00ccecceeeeees 1

INTRODUCTION AND SUMMARY

Re olin puniinbaesnnssnnainnabisicessinnians 3

Til.

Pre-Mezei, Noncitizens Seeking Admission

Were Entitled To Due Process. ....................... 5

Post-Mezei Developments In The Law

Confirm That Detention Of Entering

Noncitizens Must Comport With Due

SPI decihicintiniecttomsudintbiieniddianpessianatdianeetinaseokons 15

A.

This Court’s Modern Approach To

Extraterritoriality Counsels Against

Withholding Protection From

EPOCRIIIEG TEETRIIOR. «0.0 0000c00escccccccccccess 16

Since Mezei, This Court Has

Recognized Strict Limits On

Indefinite Civil Detention,

Including In The Immigration

Re a cessibahenaaaniies 18

- Modern Procedural Due Process

Doctrine Sweeps Far More Broadly

Than It Did In The Era Of Mezei. ...... 20

Mezei Should Not Be Construed To Hold

That Entering Noncitizens Can Be

Detained Indefinitely Without Due

a D easiddeannie 23

ea FR OSES. SAAN ROE N o ane 28

TABLE OF AUTHORITIES

Page(s)

Cases

Addington v. Texas,

I ocala ena esebinembatineenite 21

Benson v. McMahon,

og SE penne nNe mares 8

Boumediene v. Bush,

I cmineineiclalt 17, 18

Bridges v. Wixon,

Is So saitttcscnnassnceeignseacinebeatamevonnies 22

Chae Chan Ping v. United States,

I i is aeeeniemial bai 8

Chin Yow v. United States,

NS A ee 12, 13, 14

Fong Yue Ting v. United States,

ES ee eae passim

Foucha v., Louisiana,

NRE PP ee ee ee eee 18, 19

Gagnon v. Scarpelli,

I I) I 21

Gegiow v. Uhl,

ER ET RS Siete APR REI Pe A A AM be rl 12

Hamdi v. Rumsfeld,

0 reettecianls nalehitinebnainoninanewioubine 21

Heikkila v. Barber,

I a i 9

Hilton v. Merritt,

TE LMT TOMATO ~

Hughes v. United States ex rel. Licata,

EE IS, NEED ccescusecisbnichecdsdsnepesdocsnrsbesense 13

In re Gault,

I i casita nd leiuioali alah dealer ansaie 21

In re Krajcirovic,

87 F. Supp. 379 (D. Mass. 1949).................cccceceseeeee 15

In re Luis Oteiza y Cortes,

SE ee ea rN ROE 8

In re Oliver,

I I a ae 21

INS v. St. Cyr,

I a 9

Jackson v. Indiana,

I ar i a 19

Kansas v. Hendricks,

I i scsaasaspeniennnniodele 19

Kerry v. Din,

I a autimtenl 23

ill

Kwock Jan Fat v. White,

3 SS Coenensod eens sa, 20

Landon v. Plasencia,

I I ii inirnacictnsnpininisindedenniiaiedng 20, 22, 23

Louie Poy Hok v. Nagle,

w]e RR 13

Low Wah Suey v. Backus,

a lca 12, 13

Martin v. Mott,

oe Mss gk Ls 5, ee ene 8

Mathews v. Eldridge,

NS a ial laealinaintiaddumninseibeensecnidl 20, 21

Nishimura Ekiu v. United States,

I I gc hctnctiidnesipincbcdsnniencietwsubaid passim

Morrissey v. Brewer,

I ae cas 21

Murphy v. Ramsey,

as I TE icinsssiinenindishisiaitalgutiersndatninaindnvaaneebndiniae 17

Murray v. Hoboken Land & Improvement

Co.,

gis Ba RD 1: 2) enn ene 8

Petition of Brooks,

Se Ee SIS IID Sssncccurncsisccoinimnessbevecwesunes 15

Phila. & Trenton R.R. Co. v. Stimpson,

ee ee re ee I oeiprciieinde ccecisnine'yenscnevcesocsons 8

iv

Reid v. Covert,

au wiacpisediine peamashieasieenibeaned 16

Reno v. Flores,

SE EI I iiiiniciscconeeamniominiiceecsaniinniiontinnincinnetss 20

Schall v. Martin,

— gb | rere ene 19

Shaughnessy v. United States ex rel.

Mezei,

Se ee Cec ratctccsccavesnssnctevceoetnieceninnes passim

Staniszewski v. Watkins,

80 F. Supp. 132 (S.D.N.Y. 1948)............:::eceeeeeeeeeeees 15

Tang Tun v. Edsell,

Os ee CD cvercnvascccsccavncssccsnsccenevsesoressosensens 12

United States ex rel. Chu Leung v.

Shaughnessy,

88 F. Supp. 91 (S.D.N.Y. 1950)..........2...ceseceeenereeenens 15

United States ex rel. Knauff v.

Shaughnessy,

BE I I no, sesctvsiseuncapsiimntapnadnanosenn passim

United States ex rel. Tisi v. Tod,

ee ey Be Cbd eccatnnindcccessonneticensevsdecinetincsadiaies 13

United States v. Salerno,

Se I iotnisinicantabovinnerdctdescnsciemntensianians 19

United States v. Verdugo-Urquidez,

Se Be Civ ivteccicccndcveteicistcctcnnasecsesconens 16, 17

Wong Wing v. United States,

Be I I ons accsnsnc en sce ccesesescesccceece> 9,14

Yamataya v. Fisher,

Sy IED oc sc incnnenhnvceovccsannesvsonsénccoes 10, 11, 21

Zadvydas v. Davis,

oi as cedicneresnaeceanbeason scene 19, 20, 27

Other Authorities

Clement L. Bouvé, A Treatise on the Lawes

Governing the Exclusion and Expulsion

of Aliens in the United States (1912)..................

Henry M. Hart, The Power of Congress to

Limit the Jurisdiction of Federal

Courts; An Exercise in Dialectic, 66

Bs Sas Ge HAE CU cvesccscecscassccscceseccscsscses

Jerry L. Mashaw, Creating the

Administrative Constitution (2012)...................

Jerry L. Mashaw, Due Prv ess in the

Administrative State (1985).................ccseeeceeeeees

Thomas W. Merrill, Article I, Agency

Adjudication, and the Origins of the

Appellate Review Model of

Administrative Law, 11 Colum. L. Rev.

ENE hirniresictnthcniiiehinnddnitbentioieinbhintinatevensccsssioes

Caleb Nelson, Adjudication in the Political

Branches, 107 Colum. L. Rev. 559

vl

U.S. Dep’t of Labor, Sec’y of Labor’s

Comm. on Admin. Procedure, Report:

The Immigration & Naturalization

Service Clay 17, LGD occecscnssdececctcocsncsssvichisiaan

INTEREST OF AMICI CURIAE'!

Amici curiae are ten leading professors of con-

stitutional law, immigration law, and administrative

law. Amici have substantial expertise related to the

due process rights of noncitizens. Several amici have

published articles and submitted briefs in prior cases

in this Court on that topic. Amici have a profession-

al interest in ensuring that the Court is fully in-

formed of the jurisprudence and history relevant to

this case, which addresses fundamental questions

related to the due process rights of noncitizens.

Specifically, amici curiae submit this brief to

address the Government’s reading of this Court’s de-

cision in Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953). The Government relies on Me-

zeit to argue that arriving noncitizens have no due

process rights with respect to their prolonged deten-

tion. This brief shows that such an overly broad

reading of Mezei is not justified: it is inconsistent

with the history of constitutional and immigration

law before Mezei; it is undermined by the develop-

ment of these bodies of law since Mezei was decided;

and it is not compelled by the Mezei opinion itself.

‘mici are:

1 Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici or their counsel made any monetary contributions

intended to fund the preparation or submission of this brief.

The parties have filed with the Clerk letters granting blanket

consent to the filing of amicus briefs.

e Erwin Chemerinsky, Dean and Distinguished

Professor of Law, University of California, Ir-

vine School of Law;

» Adam Cox, Robert A. Kindler Professor of

Law, New York University School of Law;

e Jonathan Hafetz, Professor of Law, Seton Hall

University School of Law;

e Aziz Huq, Frank and Bernice J. Greenberg

Professor of Law, University of Chicago Law

School;

e Jerry Mashaw, Sterling Professor of Law

Emeritus and Professorial Lecturer, Yale Uni-

versity;

e Hiroshi Motomura, Susan Westerberg Prager

Professor of Law, University of California, Los

Angeles School of Law;

* Gerald Neuman, J. Sinclair Armstrong Profes-

sor of International, Foreign, and Comparative

Law, Harvard Law School;

e David Strauss, Gerald Ratner Distinguished

Service Professor of Law, University of Chica-

go Law School;

e Stephen Vladeck, Professor of Law, The Uni-

versity of Texas at Austin School of Law; and

e Cristina Rodriguez, Leighton Homer Surbeck

Professor of Law, Yale Law School.?

2 Institutional affiliations are provided for identification pur-

poses only.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Government relies on Mezei to support its

position that arriving noncitizens may be held in pro-

longed — and indefinite — detention, without the

right to a bond hearing. In particular, the Govern-

ment cites Mezei’s statement that, for noncitizens “on

the threshold of initial entry,” ““[w]hatever the pro-

cedure authorized by Congress is, it is due process as

far as an alien denied entry is concerned.” 345 U.S.

at 212 (quoting United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 544 (1950)); Pet. Br. 19.

While Mezei — a case decided amid the na-

tional security concerns of the early Cold War — is

often cited with Knauff for the proposition that en-

tering noncitizens have no due process rights with

respect to their detention — or perhaps at all — that

reading paints with far too broad a brush. Read in

its historical context, Mezei (like Knauff) holds only

that the Government is owed great deference in the

decision to admit or exclude noncitizens. It should

not be construed to hold that entrants have no due

process right to be free from prolonged confinement,

let alone that such individuals have no due process

rights at all. Such individuals cannot be treated in a

manner that violates this nation’s basic constitution-

al norms.

The position that due process does not apply to

arriving noncitizens had little or no precedent in the

law before Mezei. Indeed, a number of pre-Mezei

cases specifically held that due process entitles

noncitizens in exclusion proceedings to a fair hear-

ing, while other pre-Mezei decisions held that the

Due Process Clause imposed constitutional limits on

3

the detention of excludable noncitizens. In these

cases, the Court did not recognize sharp distinctions

between noncitizens already admitted to the country

and those who had not yet entered. Rather, the

Court treated these groups as essentially the same

for due process purposes and held that both groups

must be afforded basic procedural fairness.

The overly broad reading of Mezei that the

Government advances is also inconsistent with the

Court’s evolving jurisprudence after that case was

decided. In subsequent decades, the Court has ap-

plied a flexible, functional approach to the extraterri-

torial reach of the Constitution, which counsels

against a bright-line rule that arriving noncitizens

are completely outside the protections of the Consti-

tution. The Court has also consistently recognized

strict limits on prolonged detention in a variety of

civil contexts, including immigration, based on sub-

stantive due process. Further, the Court has ex-

panded procedural due process protections under its

flexible, balancing approach, encompassing individu-

al interests far less weighty than freedom from pro-

longed or indefinite detention. These precedents all

strongly support the proposition that, while arriving

noncitizens may not be entitled to all of the process

that citizens enjoy, they still are entitled to some, in-

cluding to procedural protections against indefinite

confinement.

Moreover, the Court’s recent cases underscore

that there is a critical analytical distinction between

the Government’s power to exclude and its power to

detain. Mezei must be construed in the context of

these later decisions, which emphasize the serious

constitutional problems that prolonged civil deten-

4

tion presents, both in the immigration context and

’ elsewhere. Even if arriving noncitizens were deemed

entirely to lack due process rights with respect to the

Government’s decision to admit or exclude them, it

does not follow that such individuals can be detained

without basic procedural safeguards. Where, as

here, a fundamental liberty interest like freedom

from prolonged detention is at stake, entering noncit-

izens must be afforded some process to contest their

continuing confinement.

For these reasons, the Court should reject a

reading of Mezei that would leave arriving nonciti-

zens either without rights with respect to their de-

tention or wholly beyond the Constitution’s reach.

The Court should affirm that arriving noncitizens,

like the Respondent class members seeking asylum

based on a demonstrated credible fear of persecution,

cannot be deprived of their liberty for a prolonged

period without a meaningful opportunity to be heard.

ARGUMENT

I, Pre-Mezei, Noncitizens Seeking Admis-

sion Were Entitled To Due Process.

The Court’s pre-Mezei jurisprudence militates

against the broad reading of the case advanced by

the Government here. In the years leading up to

Mezei and Knauff, this Court treated arriving noncit-

izens and noncitizens inside the United States simi-

larly for due process purposes. For all noncitizens,

the Government's “power to lay down general rules”

governing entry to the United States, even if “plena-

ry, was not understood to include the “power to be

arbitrary or to authorize administrative officials to

be arbitrary.” Henry M. Hart, The Power of Congress

5

to Limit the Jurisdiction of Federal Courts: An Exer-

cise in Dialectic, 66 Harv. L. Rev. 1362, 1390-91

(1953). Neither did it prevent the federal courts from

ensuring observance of the basic “constitutional

guarantee of due process.” Jd.

The relevant history of this Court’s due pro-

cess jurisprudence begins with two decisions from

the 1890s, both cited in Mezei: Nishimura Ekiu v.

United States, 142 U.S. 651, 660 (1892), and Fong

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

Nishimura Ekiu upheld an executive decision to ex-

clude a Japanese noncitizen, and Fong Yue Ting up-

held a decision without judicial process to expel a

Chinese noncitizen. In each case, the Court rejected

the noncitizen’s claim that the exclusion and expul-

sion procedures violated due process. The Court con-

cluded that, “although congress might, if it saw fit,

authorize the courts to investigate and ascertain the

facts upon which the alien’s right to land was made

by the statutes to depend, yet congress might intrust

the final determination of those facts to an executive

officer; and that, if it did so, his order was due pro-

cess of law, and no other tribunal, unless expressly

authorized by law to do so, was at liberty to re-

examine the evidence on which he acted, or to con-

trovert its sufficiency.” Fong Yue Ting, 149 U.S. at

713 (citing Nishimura Ekiu, 142 U.S. at 660).

The Court’s conclusion in the early 1890s that

exclusion and expulsion decisions could be entrusted

solely to executive branch officials was not based on

a conclusion that arriving noncitizens lack due pro-

cess rights. Nor did it reflect something exceptional

about the treatment of immigration decisions made

by federal officials. Instead, the holdings in Nishi-

6

mura Ekiu and Fong Yue Ting were the product of

prevailing administrative law and separation of pow-

ers principles of their era.

When Nishimura Ekiu was decided in 1892,

the requirements of due process were intimately

linked to nineteenth century separation-of-powers

thinking. Characteristic of its era, the decision was

based on formal notions about the separation of judi-

cial and executive functions in the constitutional! or-

der. As explained in an important article regarding

the development of modern administrative law, “a

framework that was used throughout the nineteenth

century .. . separate[d] matters that required ‘judi-

cial’ involvement from matters that the political

branches could conclusively adjudicate on their own.”

Caleb Nelson, Adjudication in the Political Branches,

107 Colum. L. Rev. 559, 564 (2007); see also Jerry L.

Mashaw, Due Process in the Administrative State

(1985). In other words, some matters were consid-

ered judicial, and others executive. The former had

to conform to strict procedural rules regarding the

presentation and appropriate consideration of evi-

dence — requiring, in essence, a common law trial.

But the latter could be entrusted to executive discre-

tion without any particular requirement of procedur-

al fairness.

In line with this understanding, the Court in

Nishimura Ekiu held that “the final determination of

those facts [governing exclusion] may be entrusted

by congress to executive officers,” 142 U.S. at 660,

because it concluded that exclusion and expulsion

decisions should not be considered judicial questions.

This separation-of-functions reasoning is made clear

by the cases on which the Court relied in rejecting

7

the claim that due process required judicial process.

None of the cases on which the Court relied are im-

migration cases. Instead, they are cases on issues

ranging from patents to customs, in which the Court

was required to decide whether a claim involved a

private right that must be heard by an Article [III

tribunal or, instead, a public right that could be en-

trusted to executive officials. See id. at 660.4

Thus, the due process claims rejected in

Nishimura Ekiu and Fong Yue Ting failed because of

then-prevailing views about the separation of judicial

3 Thus, as an influential 1940 study of administrative proce-

dures in immigration law recognized: “The only standards of

procedure familiar to courts and lawyers of the [1890s] were

standards of judicial procedure. The inappropriateness of

shackling administrative action — particularly in the fluid ex-

clusionary process — with all the restraints of a civil lawsuit

was manifest.... The alternative to holding inapplicable the

only standards which were familiar, however, seemed at first to

be a holding that no standards were applicable.” U.S. Dep’t of

‘Labor, Sec’'y of Labor’s Comm. on Admin, Procedure, Report:

The Immigration & Naturalization Service 46 (May 17, 1940).

4 The cases Nishimura Ekiu cites are Martin v. Mott, 25 U.S.

(12 Wheat.) 19 (1827) (replevin); Phila. & Trenton R.R. Co. v.

Stimpson, 39 U.S. (14 Pet.) 448 (1840) (patent); Benson v.

McMahon, 127 U.S. 457 (1888) (extradition); In re Luis Oteiza y

Cortes, 136 U.S. 330 (1890) (extradition); Den ex dem. Murray v.

Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272

(1855) (customs); and Hilton v. Merritt, 110 U.S. 97 (1884) (cus-

toms). That said, the decision in Nishimura Ekiu to treat ex-

clusion decisions as executive rather than judicial matters is

related to the Court’s earlier holding, in Chae Chan Ping v.

United States, 130 U.S. 581 (1889), that a noncitizen’s right to

reside would not be treated as analogous to traditional common

law property rights. See id. at 602-03 (starkly contrasting trea-

ties regulating noncitizens’ rights in real property with treaties

regulating noncitizens’ rights of residence).

and executive functions in the nascent administra-

tive state — not because the Court concluded that

noncitizens in the exclusion or expulsion context had

no due process rights, or no constitutional rights at

all. In fact, Nishimura Ekiu itself held that nonciti-

zens, even those stopped at the border, possessed

constitutional rights: it concluded that a noncitizen

“prevented from landing by [an] officer claiming au-

thority to do so under an act of congress, and thereby

restrained of his liberty, is doubtless entitled to a

writ of habeas corpus to ascertain whether the re-

straint is lawful.” Jd. at 660.5

Just a few years after Nishimura Ekiu and

Fong Yue Ting, the Court specifically emphasized

that noncitizens were entitled to due process, even

within the immigration enforcement context. In

Wong Wing v. United States, 163 U.S. 228 (1896), the

Court struck down a federal immigration statute re-

quiring that some unlawful immigrants be put to

hard labor prior to their deportation. The Court held

that the Bill of Rights protected noncitizens — even

those unlawfully present in the United States —

from punishment by the federal government without

process consistent with the Fifth and Sixth Amend-

ments. See id. at 237 (“[T]o declare unlawful resi-

5 As the Court has explained, habeas review conducted during

this period was required by the Constitution, because Congress

had enacted finality provisions whose effect was to preclude

review “except insofar as it was required by the Constitution.”

Heikkila v. Barber, 345 U.S. 229, 234-35 (1953) (emphasis add-

ed); see also INS v. St. Cyr, 5383 U.S. 289, 304-05 (2001) (con-

firming that review during the so-called “finality period”

described in Heikkila reflected the minimum review required by

the Suspension Clause).

dence within the country to be an infamous crime,

punishable by deprivation of liberty and property,

would be to pass out of the sphere of constitutional

legislation, unless provision were made that the fact

of guilt should first be established by a judicial tri-

al.”).

Within a decade of its decision in Nishimura

Ekiu, the Court began to retreat from its earlier cat-

egorical conclusion that exclusion and deportation

decisions could be made without any judicial process,

and perhaps without any particular kind of hearing.

In Yamataya v. Fisher, 189 U.S. 86 (1903), the Court

explained that it “has never held .. . that adminis-

trative officers, when executing the provisions of a

statute involving the liberty of persons, may disre-

gard the fundamental principles that inhere in ‘due

process of law’ as understood at the time of the adop-

tion of the Constitution.” Jd. at 100. The Yamataya

Court expressly recognized that the Due Process

Clause demands some kind of hearing for noncitizens

facing removal, even when they had reached the

United States just four days earlier. According to

the Court, the due process required for such individ-

uals must, at a minimum, include notice of the

charges against them and an opportunity to be

heard. Jd. at 94, 100-01.

The approach taken by the Yamataya Court

reflected changing attitudes regarding administra-

tive law in the early twentieth century. At the time

Yamataya was decided, the nineteenth century views

of administrative law on which Nishimura Ekiu was

based were under pressure. See Thomas W. Merrill,

Article III, Agency Adjudication, and the Origins of

the Appellate Review Model of Administrative Law,

10

11 Colum. L. Rev. 939, 942 (2011) (“Not until the ear-

ly decades of the twentieth century did courts em-

brace the salient features of the appellate review

model [of administrative law], which allowed deci-

sional authority to be shared between agencies and

courts.”); see also Jerry L. Mashaw, Creating the

Administrative Constitution 65-78 (2012) (“[I]t would

take more than a century for the [John] Marshallian

idea of ‘discretion’ as ‘political’ and outside judicial

jurisdiction to give way to a more modern under-

standing of the reach of judicial review of adminis-

trative action.”). Reflecting these changing

perspectives, the Yamataya Court departed from the

approach typified by Nishimura Ekiu of categorically

separating judicial decisions that are subject to pro-

cedural protections from executive decisions that are

not. Instead, the Court explained that the due pro-

cess owed in executive decisions should be calibrated

to the interests at stake. The process due must “be

appropriate to the nature of the case upon which .. .

officers are required to act.” Yamataya, 189 U.S. at

101. Once the Court had discarded the categorical

separation of judicial and executive decision-making

spheres, it made clear that deporting a noncitizen,

even one present for just four days, implicates suffi-

ciently important interests to require basic due pro-

cess protections.

Critically for present purposes, in the years

following Yamataya, the Court applied the same rea-

soning to exclusion statutes, construing them to re-

quire a fair hearing and to prohibit arbitrary

administrative action. For example, in Kwock Jan

Fat v. White, 253 U.S. 454 (1920), the Court granted

relief in an exclusion case on the ground that “the

11

hearing accorded to the petitioner was unfair and in-

consistent with the fundamental principles of justice

embraced within the conception of due process of

law.” Id. at 459. Similarly, in Gegiow v. Uhl, 239

U.S. 3 (1915), the Court reversed a decision exclud-

ing noncitizens because an administrative official

had exceeded the scope of his authority, which the

Court held was “no better than a decision without a

fair hearing.” Jd. at 9-10. Likewise, in Tang Tun v.

Edsell, 223 U.S. 673 (1912), the Court reviewed an

exclusion decision to ensure that the authority of the

officers rendering the determination was “fairly ex-

ercised, that is, consistently with the fundamental

principles of justice embraced within the conception

of due process of law.” Jd. at 681-82. And in Chin

Yow v. United States, 208 U.S. 8 (1908), the Court

granted habeas relief from an exclusion order be-

cause the Government could not satisfy the “presup-

position that the [exclusion] decision was after a

hearing in good faith.” Jd. at 12; cf. Low Wah Suey v.

Backus, 225 U.S. 460, 468 (1912) (“A series of deci-

sions in this court has settled that such [exclusion

and deportation] hearings before executive officers

may be made conclusive when fairly conducted.”

(emphasis added)).

While some of these early fair-hearing cases

involved claims by arriving passengers that they

were citizens, neither the Court’s logic nor its lan-

guage was limited to U.S. citizenship. Low Wah

Suey, for example, explained that the executive offi-

cials were prohibited from “depriv[ing] the alien of a

fair, though summary, hearing.” 225 U.S. at 472

(emphasis added). Moreover, in subsequent cases

the Court treated the fair-hearing principles as ap-

12

plicable in immigration proceedings not involving cit-

izenship claims. See, e.g., United States ex rel. Tisi v.

Tod, 264 U.S. 131 (1924). Lower courts did likewise.

See, e.g., Hughes v. United States ex rel. Licata, 295

F. 800, 802 (8d Cir. 1924) (holding, in an exclusion

case involving a noncitizen, that under Chin Yow

“(flederal courts have jurisdiction to determine .. .

whether, in the circumstances, the alien has been

denied a proper hearing and a fair trial”); Louie Poy

Hok v. Nagle, 48 F.2d 753 (9th Cir. 1931) (granting

relief from an exclusion order challenged on the

ground that “the [noncitizen}] was not accorded a fair

hearing (and that the findings and excluding decision

were not supported by substantial evidence)”).

As the pre-Mezei cases suggest, the Court did

not recognize sharp distinctions between noncitizens

already admitted to the country and those who had

not yet entered. To the contrary, the Court treated

these groups as largely interchangeable for due pro-

cess purposes and held that both groups are entitled

to basic procedural fairness. This is best illustrated

by Low Wah Suey, supra, where the Court applied

the same due process analysis to “laws forbidding al-

iens or classes of aliens from coming within the Unit-

ed States,” and those “provid[ing] for the expulsion of

aliens or classes of aliens from its territory.” 225

U.S. at 467-68 (emphasis added); see also Chin Yow,

208 U.S. at 12 (subjecting “statutes purport[ing] to

exclude aliens” to due process-type review).

Leading commentators at the time of these de-

cisions recognized that they established a general

principle that noncitizens, whether entering the

United States for the first time or not, are entitled to

the basic guarantees of due process. A respected ear-

13

ly twentieth century immigration treatise explained

that “[t]he [due process] principles” applicable to

noncitizens “are equally applicable to aliens, who,

not having been admitted to the United States are de-

tained for deportation by executive officers.” Clem-

ent L. Bouvé, A Treatise on the Laws Governing the

Exclusion and Expulsion of Aliens in the United

States 139-41 (1912) (emphasis added).

A major government report on immigration

prepared in 1940 as part of a larger project examin-

ing principles of administrative procedure echoed

this conclusion. See U.S. Dep’t of Labor, Sec’y of La-

bor’s Comm. on Admin. Procedure, Report: The Im-

migration & Naturalization Service (May 17, 1940).

The report documented the rise during the first dec-

ades of the twentieth century of a general principle

— applicable in both exclusion and expulsion pro-

ceedings — that immigration procedures must be fair

and reasonable. See id. at 45. Moreover, it charac-

terized that requirement as “nothing less than a

transformation in judicial doctrine when compared

with the doctrines enunciated in the Nishimura

Ekiu, Fong Yue Ting and immediately succeeding

cases.” Id. In the time period leading up to Knauff

and Mezei, therefore, courts and commentators wide-

ly recognized that exclusion and deportation deci-

sions required administrative hearings consistent

with fundamental fairness (as well as judicial over-

sight) to se ‘tisfy due process.®

5 Moreover, as the Court held in Wong Wing, lower courts con-

tinued to understand the Due Process Clause to protect more

than just a noncitizen’s right to a hearing on the question

whether she would be excluded or deported. In a number of

(continued...)

14

II. Post-Mezei Developments In The Law

Confirm That Detention Of Entering

Noncitizens Must Comport With Due

Process.

This Court’s decisions since Mezei have only

made clearer that due process should apply to noncit-

izens on the threshold of entry, especially when dep-

rivation of physical liberty is at issue. First, the

Court has extended the Constitution’s protections to

noncitizens well beyond the nation’s borders, an ap-

proach at odds with holding that arriving noncitizens

are unprotected by the Due Process Clause. Second,

the Court has developed important limits on civil

confinement — including in the immigration context

— reinforcing its longstanding view that a person’s

physical confinement at the hands of the Govern-

ment implicates fundamental liberty interests pro-

tected by the Due Process Clause. Third, the Court

has completed the due process revolution sparked by

cases, for example, lower courts specifically limited the length

of arriving noncitizens’ detention on due process grounds. See,

e.4., Petition of Brooks, 5 F.2d 238, 229 (D. Mass. 1925) (power

to exclude and deport does not include power to detain indefi-

nitely); Staniszewski v. Watkins, 80 F. Supp. 132, 135 (S.D.N.Y.

1948) (ordering release of noncitizen seaman detained at Ellis

Island for almost seven months); Jn rv Krajcirovic, 87 F. Supp.

379, 382 (D. Mass. 1949) (limiting immigration detention of

noncitizen seized at the border to two months from date of

court’s exclusion decision on ground that “wherever the Consti-

tution of the United States is applicable, and that includes

ports of entry, an alien as well as a citizen is guaranteed that

he will not be deprived of his liberty without due process of

law"); United States ex rel. Chu Leung v. Shaughnessy, 88 F.

Supp. 91, 92 (S.D.N.Y. 1960) (suggesting reasonable limit on

time noncitizen may be detained even where exclusion not pos-

sible to effectuate).

15

the growth of the administrative state in the early

twentieth-century, cementing procedural due process

protections for legal interests far less compelling

than the fundamental liberty interest in being free

from prolonged detention.

A. This Court’s Modern Approach To

Extraterritoriality Counsels

Against Withholding Protection

From Detained Entrants.

Recent decisions regarding the Constitution’s

extraterritorial scope make clear that noncitizens on

the threshold of entry cannot, consistent with this

Court’s case law, be deemed wholly outside the pro-

tection of the Due Process Clause.

Since Mezei, the Court has repeatedly rejected

any bright-line rule making constitutional protec-

tions categorically inapplicable to persons outside

the nation’s borders. Instead, the Court assesses

questions of extraterritorial application in a func-

tional manner, an approach that cannot be squared

with a blanket rule that inadmissible noncitizens are

at the unfettered whim of executive officials.

Shortly after Mezei, the Court expressly re-

jected the theory that constitutional protections stop

at the water’s edge. In Reid v. Covert, 354 U.S. 1

(1957), the Court recognized that the constitutional

right to jury trial encompassed those abroad. See,

e.g., id. at 8 (plurality opinion) (“This Court and oth-

er federal courts have held or asserted that various

constitutional limitations apply to the Government

when it acts outside the continental United States.”).

In United States v. Verdugo-Urquidez, 494

U.S. 259 (1990), the majority held that the Fourth

16

Amendment did not apply to the seizure of a nonciti-

zen’s property occurring entirely abroad. The Court,

however, expressly contrasted the Fourth Amend-

ment, which it held applies only to “the people” who

are part of the national community, with the Fifth

Amendment, which applies more broadly to all “per-

sons.” Id. at 265-66. Justice Kennedy’s controlling

opinion embraced a functional test, asking whether it

would be “impracticable and anomalous” for the

Fourth Amendment’s requirements to apply in the

relevant circumstances. Jd. at 278 (Kennedy, J., con-

curring).

More recently, in Boumediene v. Bush, 553

U.S. 723 (2008), Justice Kennedy, now writing for

the majority, expanded upon the “impractical and

anomalous” test. In holding that the Constitution’s

Suspension Clause, Art. I, § 9, cl. 2, applies to noncit-

izens held at Guantanamo Bay, Cuba, the Court ex-

plained that “extraterritoriality questions turn on

objective factors and practical concerns, not formal-

ism.” Id. at 727. “Even when the United States acts

outside its borders, its powers are not ‘absolute and

unlimited’ but are subject ‘to such restrictions as are

expressed in the Constitution.” Jd. at 765 (quoting

Murphy v. Ramsey, 114 U.S. 15, 44 (1885)). Whether

the Constitution applies outside the United States

does not depend on formalistically determining

whether the U.S. Government exercises de jure sov-

ereignty over the territory in question. The issue ra-

ther is whether there exist “practical barriers” to

affording a particular constitutional protection to in-

dividuals subject to Government control who are out-

side the nation’s borders. Id. at 770. Absent such

17

“practical barriers,” the Government’s extraterritori-

al conduct is subject to constitutional constraint.

With Boumediene, the Court thus clarified

that a functional approach determines the extraterri-

torial application of the Constitution. This function-

al approach requires that noncitizens on the

threshold of entry be afforded due process protection

against prolonged detention. Since this Court no

longer views the reality of extraterritorial detention

as preventing the Constitution from applying, the

legal fiction of an alien standing “at the threshold of

entry” necessarily cannot have that result. Nonciti- |

zens held at the border by U.S. authorities are sub-

ject to the Government’s control, and there are no

“practical barriers” to affording them due process

rights with respect to their prolonged detention. Ac-

cordingly, there is no basis for allowing their pro-

longed detention without any due process protection.

B. Since Mezei, This Court Has Recog-

nized Strict Limits On Indefinite

Civil Detention, Including In The

Immigration Context.

This Court’s modern substantive due process

cases expressly recognize the importance of an indi-

vidual’s interest in being free from prolonged deten-

tion, underscoring that it is not a mere “privilege”

outside the scope of the Due Process Clause. These

cases hold that civil detention must be limited to a

narrow class of individuals and must be subject to

rigorous procedural safeguards.

As the Court explained in Foucha v. Louisi-

ana, 504 U.S. 71 (1992), “[fjreedom from bodily re-

straint has always been at the core of the liberty

18

protected by the Due Process Clause.” Jd. at 80. “In

our society liberty is the norm, and detention prior to

trial or without trial is the carefully limited excep-

tion.” United States v. Salerno, 481 U.S. 739, 755

(1987). Accordingly, this Court has required that the

Government meet a heavy burden before subjecting

an individual to prolonged civil confinement. See,

e.g., Kansas v. Hendricks, 521 U.S. 346, 357 (1997)

(commitment requires proof not only of “a mere pre-

disposition to violence” but also “evidence of past

sexually violent behavior and a present mental con-

dition that creates a likelihood of such conduct in the

future if the person is not incapacitated”). Detention

may not last longer than necessary to advance the

Government’s legitimate purposes. See, e.g., Jackson

v. Indiana, 406 U.S. 715, 738 (1972) (“[T]he nature

and duration of commitment must bear some rea-

sonable relation to the purpose for which the indi-

vidual is committed.”); Hendricks, 521 U.S. at 363-64

(sexually violent predators committed because their

mental abnormality makes them a threat to others

may be incapacitated only for as long as that stated

purpose remains); Salerno, 481 U.S. at 747 (empha-

sizing “stringent time limitations” on permissible

pretrial detention); see also Schall v. Martin, 467

U.S. 253, 269 (1984) (pretrial detention of alleged ju-

venile delinquents “strictly limited in time”).

In Zadvydas v. Davis, 533 U.S. 678 (2001), the

Court applied the principle that civil confinement

must be strictly limited in the immigration context.

The Court began by recognizing that due process ap-

plies to the detention of noncitizens subject to a final

order of removal. While the Court noted that “the

nature of that protection may vary upon the status

19

and circumstance,” id. at 694 (citing Landon v. Plas-

encia, 459 U.S. 21, 32-34 (1982)), it held that even a

noncitizen subject to a final order of removal could

not be detained for more than a reasonable time to

effectuate that order, which presumptively should

not exceed six months. Jd. at 701.7

In reaching this result, Zadvydas separated a

noncitizen’s due process right to be free from “long-

term detention” from any interest in living in the

United States under the immigration statutes. Jd. at

695-96. The Court recognized that noncitizens who

lose their removal cases have no right to live at large

in the United States, and that the political branches

are fully empowered to remove noncitizens. Id. The

Court explained, however, that the removal power is

not the issue when the Government’s exercise of its

immigration authority results in the prolonged de-

tention of noncitizens. Rather, detention is a consti-

tutional matter that must be considered separately

from “the political branches’ authority to control en-

try into the United States,” and must be subject to

strict due process limits. /d. at 695, 699-701.

C. Modern Procedural Due Process

Doctrine Sweeps Far More Broadly

Than It Did In The Era Of Mezei.

Procedural due process “is a principle basic to

our society.” Mathews v. Eldridge, 424 U.S. 319, 333

? See aiso Reno v. Flores, 507 U.S. 292, 314 (1993) (upholding

INS policy of maintaining custody of noncitizen juveniles pend-

ing deportation proceedings only where “period of custody [was]

inherently limited by the pending deportation hearing” and was

expected to last “an average of only 30 days").

20

(1976) (citation omitted). Since Mezei, this Court has

significantly broadened the reach of procedural due

process protections. Under the modern framework,

the Due Process Clause limits the power of the Gov-

ernment in all instances where a Government deci-

sion may deprive an individual of his liberty. See,

e.g., Addington v. Texas, 441 U.S. 418, 425 (1979)

(civil commitment); In re Gault, 387 U.S. 1, 31-32

(1967) (juvenile delinquency); In re Oliver, 333 U.S.

257, 274-75 (1948) (contempt of court); see also Gag-

non vu. Scarpelli, 411 U.S. 778, 781-82 (1973) (revoca-

tion of probation); Morrissey v. Brewer, 408 U.S. 471,

482 (1972) (revocation of parole). 3

Rather than operating on the basis of formal

distinctions between executive and judicial functions,

modern procedural due process doctrine employs a

flexible, functional analysis that extends the ap-

proach foreshadowed in Yamataya. See supra pp. 10-

11. First, the Court analyzes whether the Govern-

ment’s decision implicates a liberty or property in-

terest protected by the Due Process Clause. Second,

the Court employs a three-part test to determine

which procedures are sufficient to protect that inter-

est against erroneous deprivation, weighing the indi-

vidual’s interest and the benefits of additional

procedures against the burdens those procedures

would impose on the Government. See Mathews, 424

U.S. at 334-35. The weightier the liberty or property

interest, the more process that is due; thus, for in-

stance, depriving a person of his fundamental inter-

est in freedom from detention would require

substantial process. Cf. id.; Hamdi v. Rumsfeld, 542

U.S. 507, 529-30, 533 (2004) (plurality opinion).

21

The Court’s opinion in Landon v. Plasencia,

459 U.S. 21 (1982), is an example of that revolution

in the immigration context. Plasencia was a return-

ing lawful permanent resident stopped at the border

and accused of attempting to smuggle others into the

United States. Jd. at 24-25, 30. Despite her status

as a potentially excludable alien standing on the

threshold of entry, the Court squarely held that

Plasencia had an interest protectable under the Due

Process Clause. See id. at 32. The Court empha-

sized that the right to reside in the United States is a

“weighty” liberty interest protected by due process,

where the returning noncitizen “stands to lose the

right ‘to stay and live and work in this land of free-

dom.” Id. at 34 (quoting Bridges v. Wixon, 326 U.S.

135, 154 (1945)). Following Mathews, the Court ex-

plained that “[t]he constitutional sufficiency of pro-

cedures provided in any situation, of course, varies

with the circumstances.” Jd. But it is “[t}]he role of

the judiciary” to determine whether the administra-

tive hearing used to order Plasencia’s exclusion

“meet[s] the essential standard of fairness under the

Due Process Clause.” Id. at 34-35.

The Government suggests that Plasencia fore-

closes any due process argument in the present case

because the Plasencia Court stated in dicta that “an

alien seeking initial admission to the United States

requests a privilege and has no constitutional rights

regarding his application.” Pet. Br. 19 (quoting 459

U.S. at 32). But this dicta is not a statement that all

arriving noncitizens lack rights under the Due Pro-

cess Clause. Nor is it a conclusion that the prolonged

detention of an arriving noncitizen implicates no in-

terests protected by the Fifth Amendment. The key

22

language here is “regarding his application.” The

Court’s dicta means simply that, if one is a nonciti-

zen seeking initial admission, the naked interest in

residing in the United States is not alone a “protect-

able” liberty or property interest under the Due Pro-

cess Clause. See 459 U.S. at 32.

Thus, while it remains an open question

whether (or when) the decision to deny admission to

a noncitizen abroad or on the threshold of entry

might implicate interests protected by the Due Pro-

cess Clause, cf. Kerry uv. Din, 135 S. Ct. 2128 (2015),

nothing in Plasencia supports the Government’s view

that it need not provide any procedures before de-

priving an individual on the threshold of entry of her

physical liberty for a prolonged period. Where, as

here, the issue is the indefinite detention of nonciti-

zens who may have no country to which they may

safely return, the liberty interest at stake is indis-

putably a weighty one. Accordingly, at least some

meaningful process is due before a noncitizen can be

indefinitely detained.

Ill. Mezei Should Not Be Construed To Hold

That Entering Noncitizens Can Be De-

tained Indefinitely Without Due Process.

The history of this Court’s jurisprudence be-

fore Knauff and Mezei, and the legal developments

after Mezei, allow the decision itself to be understood

in its proper context. Mezei’s statement, following

Knauff, that “[w]hatever the procedure authorized by

Congress is” “is due process as far as an alien denied

entry is concerned,” could seemingly support the po-

sition that new entrants have no due process rights

— or perhaps no constitutional rights at all. 345

23

U.S. at 212 (citations omitted). But this sentence

should be read and construed within the specific con-

text in which it was made. Understood in light of

both what came before it and what came after, Mezei

and Knau/ff do not stand for the blanket proposition

for which they have often been cited by the Govern-

ment. The cases may recognize broad power for the

political branches in regulating entry to the United

States, particularly amid the heightened security

concerns in which those cases arose. But they do not

address the analytically distinct problem of civil de-

tention at issue in this case and on which this Court

has placed meaningful limits in recent decades.

Significantly, the Mezei majority did not view

the case to be principally about detention. It thus

did not specifically address whether indefinite deten-

tion without an opportunity to be heard violates the

Due Process Clause. The Court did state that the

issue to be decided was “whether the Attorney Gen-

eral’s continued exclusion of respondent without a

hearing amounts to an unlawful detention.” Jd. at

207. But it found in the Government’s favor because

it determined that the respondent, Mr. Mezei, was

not being detained at all; he was merely being “har-

bored” at Ellis Island because he could not be repat-

riated. Jd. at 213. Apart from its recitation of the

decision below, see id. at 209, the majority did not

even mention the word “liberty.” For the majority,

respondent's “harborage” did not “transform[] this

[case] into something other than an exclusion pro-

ceeding.” Jd. at 213.

Because the Mezei majority did not view the

case to be primarily about detention, its holding

should not be construed as deciding whether nonciti-

24

zens on the threshold of entry may be detained indef-

initely without a hearing. Thus, when the Court ob-

served that due process for an “alien on the threshold

of initial entry” is “[w]hatever the procedure author-

ized by Congress,” it was addressing the “power to

expel or exclude aliens,” and not the power to detain

them indefinitely. Mezei, 345 U.S. at 210-12 (cita-

tions omitted).

For this reason, the Mezei majority's state-

ment should not be afforded the sweeping scope that

the Government suggests. It is not properly con-

strued to mean that entering noncitizens have no

due process rights whatsoever. Nor is it properly

construed to mean that the prolonged detention of

such noncitizens does not implicate a liberty interest

protected by the Due Process Clause. See, e.g., id. at

215 (“we do not think that respondent’s continued

exclusion deprives him of any statutory or constitu-

tional right” (emphasis added)); id. at 216 (“respond-

ent’s right to enter the United States depends on the

congressional will, and courts cannot substitute their

judgment for the legislative mandate” (emphasis

added)).

The opinions of the Mezei dissenters under-

score that the majority focused on the power to ex-

clude rather than the power to detain. Indeed, the

dissenters took issue with the majority on precisely

this ground: they argued that the Court should have

treated the matter before it as involving indefinite

detention, and erred by failing to do so.

For Justice Jackson, joined by Justice Frank-

furter, the Mezei majority wrongly avoided address-

ing detention based on the “fiction” that Mezei was

not in fact detained. Jd. at 220. According to Justice

25

Jackson, the Government had “ingeniously argued

that Ellis Island is [Mezei’s] ‘refuge’ whence he is

free to take leave in any direction exception west.”

Id. But no other country would accept Mezei, with

the result that such “freedom” to leave Ellis Island

would be meaningful only if Mezei “were an amphib-

ian!” Id. In Justice Jackson’s view, it “overworks le-

gal fiction to say that one is free in law when by the

commonest of common sense he is bound.” Jd. For

Justice Jackson, Mezei was plainly “deprived of lib-

erty” and the Court thus should have, but did not,

determine whether such deprivation was “a denial of

due process of law.” Id. at 220-21. Justice Black’s

dissent likewise admonished the majority for ignor-

ing the reality of Mezei’s situation, arguing that Me-

zei was, as a practical matter, being “imprison{ed]

without a hearing” in violation of the Due Process

Clause. Id. at 217-18.8

More generally, the notion that noncitizens on

the threshold of entry have no due process rights

simply cannot be an accurate statement of the law.

As Justice Jackson recognized in his Mezei dissent, if

an arriving noncitizen were entirely outside the pro-

tection of the Constitution, then the Government

8 It is incorrect to suggest that the Mezei Court was “unani-

mous” that Mr. Mezei could be held as long as needed to effec-

tuate his exclusion. Pet. Br. 20. To the contrary, Justice

Jackson recognized the Government’s power to exclude, but

concluded that “when indefinite confinement becomes the

means of enforcing exclusion, ... due process requires that the

alien be informed of its grounds and have a fair chance to over-

come them.” Mezei, 345 U.S. at 227; see also id. at 218 (Black,

J. dissenting) (“no person .. . native or foreigner . . . can have

his... liberty . . . taken ‘without due process of law").

26

could lawfully effectuate the exclusion of such a per-

son by “eject[ing] him bodily into the sea.” 345 U.S.

at 226. The Court understandably has never em-

braced a notion so fundamentally at odds with the

nation’s constitutional norms. Even the dissenters in

Zadvydas, while taking a more restrictive view of

noncitizens’ rights than the majority, effectively

acknowledged that all noncitizens in the custody of

immigration authorities have at least some due pro-

cess rights. Justice Scalia was “sure” that even a

noncitizen on the threshold of entry “cannot be tor-

tured.” 533 U.S. at 704 (Scalia, J., dissenting). And

Justice Kennedy recognized that “both removable

and inadmissible aliens are entitled to be free from

detention that is arbitrary or capricious” — i.e., de-

tention beyond what is “necessary to avoid the risk of

flight or danger to the community.” Jd. at 721 (Ken-

nedy, J., dissenting). The appropriate question,

therefore, is not whether noncitizens on the threshold

of entry have due process rights, but rather how

much process is due when a fundamental liberty in-

terest like freedom from indefinite detention is at is-

sue.

In short, no rigid principle of constitutional

law places an individual’s potentially lifelong deten-

tion by U.S. authorities beyond all guarantees of due

process, merely because she is deemed to stand at

the border. The Court should put that myth of Mezei

to rest. It should confirm that Mezei does not author-

ize the detention of entering noncitizens for any pur-

pose (or no purpose), with no limits, and with no

opportunity for review. The Government’s proposed

reading of Mezei as mandating such a result contra-

27

venes more than a century of case law and the na-

tion’s most deeply-held values.9

CONCLUSION

For the foregoing reasons, as well as the rea-

sons set forth in Respondents’ brief, the decision of

the court of appeals should be affirmed.

Respectfully submitted,

Dennis B. Auerbach

Counsel of Record

David M. Zionts

Philip J. Levitz

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, N.W.

Washington, DC 20001-4956

dauerbach@cov.com

(202) 662-6000

Counsel for Amici Curiae

October 24, 2016

® For the reasons explained above, it would be sufficient for

purposes of this case to clarify that Mezei does not have the

broad meaning the Government ascribes to it. However, if the

Court considered Mezei to unequivocally permit the Govern-

ment to detain all arriving noncitizens indefinitely, without any

hearing at all, amici submit that it would be appropriate to

overrule Mezei in light of the subsequent jurisprudence that

contradicts the Government’s position.

28