Amicus Curiae Brief — Riley, Interim District Director, Bureau of Immigration and Customs Enforcement v. Radoncic

Nos. 01-1459

IN THE

Supreme Court of the United States

KENNETH J. ELWOOD, District Director,

Immigration and Naturalization Service,

Petitioner,

v.

SABRIJA RADONCIC,

Respondent.

On Petition for Writ of Certiorari

to the U.S. Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF WASHINGTON LEGAL FOUNDATION;

U.S. REPS. BOB BARR, JOE BARTON, GEORGE GEKAS,

WALTER JONES, LAMAR SMITH, JOHN SWEENEY, AND

DAVE WELDON; U.S. SENATOR JESSE HELMS;

AND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Date: May 31, 2002

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

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‘

IN THE

SUPREME COURT OF THE UNITED STATES

No. 01-1459

KENNETH J. ELWOOD, District Director,

Immigration and Naturalization Service,

Petitioner,

Vv.

SABRIJA RADONCIC,

Respondent.

On Petition for Writ of Certiorari

to the U.S. Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF

OF WASHINGTON LEGAL FOUNDATION;

U.S. REPS. BOB BARR, JOE BARTON,

GEORGE GEKAS, WALTER JONES, LAMAR SMITH,

JOHN SWEENEY, AND DAVE WELDON;

U.S. SENATOR JESSE HELMS;

AND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Pursuant to Rule 37.2 of the Rules of this Court, the

Washington Legal Foundation (WLF); U.S. Representatives

Bob Barr, Joe Barton, George Gekas, Walter Jones, Lamar

Smith, John Sweeney, and Dave Weldon; U.S. Senator Jesse

Helms; and the Allied Educational Foundation respectfully

2

move for leave to file the attached brief as amici curiae in

support of Petitioner. Petitioner has consented to the filing

of this brief. Counsel for Respondent -- although indicating

that he would consent to the filing of amicus curiae briefs on

the merits if the Court should grant the petition -- declined to

consent. Accordingly, this motion is necessary.

WLE is a non-profit public interest law and policy

center with supporters in all 50 states. While WLF engages

in litigation in a wide variety of areas, it devotes a substantial

portion of its resources to promoting America's national

security. To that end, WLF has appeared in this and

numerous other federal courts to ensure that aliens who

engage in terrorism or other criminal activity are not |

permitted to pursue their criminal goals while in this country.

See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001); Reno v.

American-Arab Anti-Discrimination Committee, 525 U.S. 471

(1999); Al Najjar v. Ashcroft, 273 F.3d 1330 (11th Cir.

2001); Palestine Information Office v. Shultz, 853 F.2d 932

(D.C. Cir. 1988).-

The Honorable Jesse Helms is a United States Senator

from North Carolina. The Honorable Bob Barr, the

Honorable Joe Barton, the Honorable George Gekas, the

Honorable Walter Jones, the Honorable Lamar Smith, the

Honorable John E. Sweeney, and the Honorable Dave

Weldon are United States Representatives from, respectively,

Georgia, Texas, Pennsylvania, North Carolina, Texas, New

York, and Florida. Rep. Gekas is Chairman of the

Immigration and Claims Subcommittee of the House

Judiciary Committee; Rep. Smith is the former Chairman of

the Subcommittee. All believe strongly that Congress and the

Executive Branch ought to be permitted to protect American

citizens by imposing finite periods of detention on those

° es Oe ae

3

removable aliens who have been adjudged guilty of

aggravated felonies. All are supporters of the mandatory

detention provisions of 8 U.S.C. § 1226(c) and believe that

it is fully consistent with the requirements of the U.S.

Constitution.

The Allied Educational Foundation (AEF) is a non-

profit charitable foundation based in Englewood, New Sersey.

Founded in 1964, AEF is dedicated to promoting education

in diverse areas of study, such as law and public policy, and

has appeared as amicus curiae in this Court on a number of

occasions.

Particularly in light of recent terrorist attacks in this

country, proposed amici believe that the political branches of

government must be afforded broad power to detain aliens

who are convicted of aggravated felonies. Where those

aliens admit they are here illegally but nonetheless are

fighting deportation based on efforts to win discretionary

adjustment of status, proposed amici believe that the

Immigration and Naturalization Service ("INS") ought to

detain such aliens during the time it takes to complete

deportation proceedings.

Amici are concerned that the decision below, if allowed

to stand, will result in an unwarranted abridgement of the

power of the political branches of government to control

immigration into this county, a power that historically has

been subject to only extremely limited judicial review. The

decisions below discuss at great length the alleged rights of

illegal aliens who are convicted felons, but do not seem to

have taken into account the rights of the federal government

to enforce its immigration laws or the rights of those who

-

Pre set ee enn an ee ace Renee ene a

- 4

may be threatened by Mr. Radoncic's continued presence in

American society.

For the foregoing reasons, the Washington Legal

Foundation; U.S. Representatives Bob Barr, Joe Barton,

George Gekas, Lamar Smith, and John Sweeney; U.S.

Senator Jesse Helms; and the Allied Educational Foundation

respectfully request that they be allowed to participate in this

case by filing the attached brief.

Respectfully submitted,

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Date: May 31, 2002

QUESTIONS PRESENTED

Whether Respondent's mandatory detention under 8

U.S.C. § 1226(c) violates the Due Process Clause of the

Fifth Amendment, where Respondent entered the United

States illegally and was convicted of an aggravated felony

while unlawfully present in the United States?

The case also raises the following antecedent question:

Whether a federal district court possesses jurisdiction

under 28 U.S.C. § 2241 to set aside the action of the

Attorney General in detaining a removable alien who entered

the United States illegally and was convicted of an aggravated

felony while unlawfully present in the United States, despite

8 U.S.C. § 1226(e)'s admonition that "[n]o court may set

aside any action or decision by the Attorney General" to

detain an alien under § 1226?

TABLE OF CONTENTS

STATEMENT OF THE CASE ..........22000.

REASONS FOR GRANTING THE PETITION .....

I. DEPORTABLE ALIENS CONVICTED OF

AGGRAVATED FELONIES HAVE NO DUE

PROCESS RIGHT TO REMAIN AT LIBERTY

WITHIN AMERICAN SOCIETY WHILE THEY

CONTEST THEIR REMOVAL ............

II. ZADVYDAS IN NO WAY LESSENS THE NEED

FOR THIS COURT TO RESOLVE THE CON-

FLICT AMONG THE COURTS OF APPEALS .

lil. THE COURT SHOULD GRANT REVIEW IN

ORDER TO DETERMINE WHETHER LOWER

FEDERAL COURTS HAVE JURISDICTION TO

OVERTURN § _ 1226(c) DETENTION

DORE each ess eae eus ae tha enwn

oe | Peer Ter TT eee E eT eee eee

iV

TABLE OF AUTHORITIES

. Page

Cases:

Fiallo v. Bell,

ns Se PO go a 60 aa 6 ok kaa ees 9

Hampton v. Mow Sun Wong,

UE te ere re rere ere ee are S)

Harisiades v. Shaughnessy,

ee ee I 90 cs ol a aM ksn a he ke ee 10

Hoyte-Mesa v. Ashcroft,

Zia F.36 SOD Cre Git. BUO)) ow ccc ceees 17

INS v. Chadha,

ne oe oe 5 4th widiw ak WK Be 11

INS v. St. Cyr,

eo 8 Os Rye, 7) | a ere ere 14, 19, 20

Mathews v. Diaz,

ee ee I oo Go 8 a whe ed Ge es 10

Mathews v. Eldridge,

8 8 ae fe ee a er 7

Miller v. Albright,

oS Ata «wh aie ew ap a 9

Palko v. Connecticut,

Es SI oo nb 2S aw ae ok bee ee ee 8

Parra v. Perryman,

172 F.3a 95@Gith Car. 1999) ... zm. ee passim

Patel v. Zemski, |

275 F.3d 299 (3d Cir. 2001) ...... 5, 10, 13, 15, 19

Poe v. Ullman,

ey nc SE EE fo so e-book ke wk 9

Reno v. American-Arab Anti-Discrimination

Committee, 525 U.S. 471 (1999) .............. 19

Reno v. Flores,

- of 2 A 2. Rear errr 14

ee

Page

Rochin v. California,

ee 8

Shaughnessy v. United States ex rel. Mezei,

pe ere ee ae re 11

United States v. Salerno,

TS SE onc ang ky wn cw a eo 8 8k a 8

United States v. Valenzuela-Bernal,

nn 4 Fa ck ie Rae ww 9

Youngberg v. Romeo,

gS SE). ° 9

Zadvydas v. Davis,

ee te Pe ED cv os a ek tke ke eae passim

Statutes and Constitutional Provisions:

U.S. Const., art. i, § 9, cl. 2, Suspension Clause .... 20

U.S. Const., amend. v, Due Process Clause .... passim

8 U.S.C. § 1101(a)(43)(N) and (U) ........... 4, 20

fp R 8 a 6, 18, 19, 20

no os es eas Bs eke A passim

EPS ae By coos OFF, 2. BOD

S U.S.C. § 122 HaWAMANE) 00 wc cc eee 4

ae Sn gk bk kha lk Rw 16

td Oe Ee are ko kk A A ae a ks 3

a ee Bc | re <2

ras oa fa e's Gk de aw Oe 19

pS Fame Be 8 2

I oe eg ceca bw ve OW Pe .

rs ee ee 4 Oe ES 17

vi

Page

Miscellaneous:

Convention Against Torture, Article3 ............ 3

142 Cong. Rec. 7972 (1995) .......-. 2. eee, 12

oe TR ee eh) a re 13

Be Ge OD ok ee ee eke ea neeceweaes 17

Los Angeles County Wide Criminal Justice

Coordination Comm., "Impact of Repeat

Arrests of Deportable Aliens in Los

Anpetes Comity,” Daly 15, W996 2g ccc wesc 12

BRIEF OF WASHINGTON LEGAL FOUNDATION;

U.S. REPS. BOB BARR, JOE BARTON,

WALTER JONES, GEORGE GEKAS, LAMAR SMITH,

JOHN SWEENEY, AND DAVE WELDON;

U.S. SENATOR JESSE HELMS;

AND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTERESTS OF AMICI CURIAE

The interests of amici curiae Washington Legal

Foundation, ef al., are set forth in the motion accompanying

this brief. '

STATEMENT OF THE CASE

In the interests of brevity, amici hereby incorporate by

reference the Statement contained in the Petition for a Writ

of Certiorari. In brief, Sabrija Radoncic is a 42-year-old

citizen of Serbia-Montenegro who entered the United States

illegally in March 1991 (prior to the onset of open warfare in

the former Yugoslavia) by sneaking across the border from

Mexico near San Diego; he has remained in this country ever

since. The record does not state how Mr. Radoncic has

supported himself since coming to this country, other than to

indicate that he has engaged repeatedly in alien smuggling.

An Immigration Judge (IJ) found that Mr. Radoncic has

been arrested on three occasions for alien smuggling: in

1993 in Detroit; in July 1996 in Champlain, New York; and

' Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for a party authored this brief in whole or in part; and that no

person or entity, other than amici and their counsel, contributed

monetarily to the preparation and submission of this brief.

2

in August 1996 in Vermont. Pet. App. 37a-38a. At least

one alien paid Mr. Radoncic $5,000 to smuggle him into the

country. /d. at 40a, 60a, 62a. The IJ found that Mr.

Radoncic was part of a "criminal enterprise": "a large scale

smuggling network." Jd. He characterized Mr. Radoncic's

behavior as that of a "seasoned," "experienced," and

"hardened" criminal. /d. at 61a, 62a.

The August 1996 arrest led to a January 1999 con-

viction in U.S. District Court for the District of Vermont for

smuggling aliens into the United States, in violation of 8

U.S.C. § 1324(a)(1)(A)(i), and for conspiring to smuggle

aliens into the United States, in violation of 18 U.S.C. § 371.

Id. at 2a-3a. Mr. Radoncic was sentenced to 18 months in

prison, a sentence he began serving in February 1999. Jd.

In November 1993, Mr. Radoncic and his wife, who are

Muslims, applied for asylum on the basis of religious

persecution. In March 1996, the ‘mmigration and Natural-

ization Service (INS) initiated deportation proceedings,

charging that Mr. Radoncic and his wife had entered the

country without inspection and were not entitled to remain.

At a subsequent hearing in July 1996, they conceded

deportability but requested asylum, withholding of removal,

and voluntary departure in the alternative. /d. at 2a. Mr.

Radoncic also sought withholding or deferral of removal

pursuant to Article 3 of the Convention Against Torture. /d.

Following a hearing, the IJ issued a decision on April

11, 2000, denying Mr. Radoncic's application for relief and

ordering his removal to Serbia-Montenegro. /d. at 22a-71a.

The IJ found that Mr. Radoncic had failed to meet his burden

of demonstrating that he would be subject to persecution if

returned to Serbia-Montenegro. /d. at 55a-57a. The IJ

3

determined that Mr. Radoncic's testimony regarding

persecution was not "credible," a persecution claim based

largely on "fraudulent" documents presented by Mr.

Radoncic that purported to show that he had faced criminal

charges in Serbia because of his opposition to the

government. /d. at 54a-57a. The IJ further determined that

because Mr. Radoncic had been convicted of "a particularly

serious crime" within the meaning of 8 U.S.C.

§ 1231(b)(3)(B)(ii), Mr. Radoncic was ineligible for with-

holding of removal (under either 8 U.S.C. § 1231(b)(3) or

Article 3 of the Convention Against Torture). Jd. at 57a-63a.

The IJ explicitly found that if allowed to remain in the

country, Mr. Radoncic was “at serious risk to resume his

illegal activities in the future," activity that "by its nature

poses a risk to the security of the United States." Jd. at 62a.

Mr. Radoncic appealed that decision to the Board of

Immigration Appeals (BIA). By order dated November 13,

2001, the BIA affirmed the IJ's finding that Mr. Radoncic

was ineligible for asylum and withholding of removal because

he had been convicted of a particularly serious crime. Jd. at

19a. The BIA also held that he had failed to demonstrate

eligibility for deferral of removal under the Convention -

Against Torture because he had failed to produce credible

evidence that he would face torture if returned to Serbia-

Montenegro. /d. at 19a-20a. Accordingly, the BIA dismissed

Mr. Radoncic's appeal. Jd. at21a. Mr. Radoncic has sought

review of that decision in the U.S. Court of Appeals for the

Second Circuit and has also asked the BIA to reconsider its

decision. Pet. 10.

Mr. Radoncic completed his criminal sentence on May

19, 2000 and was taken into custody by the INS. The INS

viewed Mr. Radoncic's detention as mandatory under 8

4

U.S.C. § 1226(c) because his Vermont convictions consti-

tuted "aggravated felony" convictions within the meaning of

8 U.S.C. § 1101(a)(43)(N) and (U), and thus rendered him

deportable under 8 U.S.C. § 1227(a)(2)(A)(iii).

After an IJ denied his request for a bail hearing (on the

ground that detention was mandatory under § 1226(c)), Mr.

Radoncic filed a habeas corpus petition in U.S. District Court

for the Eastern District of Pennsylvania. On November 8,

2000, the district court granted the petition. Pet. App. 7a-

17a. The court ordered Mr. Radoncic released from

detention unless the INS "commences an_ individual

evaluation, including an individual hearing and decision

within thirty days, to determine whether the continued

detention of Petitioner is necessary to prevent risk of flight or

danger to the community." Jd. at 16a. The court held that

§ 1226(c)'s mandatory detention provision violated the Fifth

Amendment's Due Process Clause, even as applied to aliens

(such as Mr. Radoncic) who had entered the country

illegally, because: (1) such aliens may not be detained in the

absence of evidence that they pose a risk of flight or a threat

to the community; and (2) they are entitled to an

"individualized evaluation" to determine whether they pose

a risk of flight or a threat to the community. /d. at 10a-16a.

Later that month, Mr. Radoncic posted a $5,000 bond and

was released from custody. /d. at 5a.

On January 4, 2002, the U.S. Court of Appeals for the

Third Circuit affirmed. Jd. at la-6a. The appeals court

noted that, in a case decided the previous month, it had

invoked the Due Process Clause to strike down 8 U.S.C.

§ 1226(c) to the extent that it permitted the detention of

removable aliens who are still pursuing administrative

appeals, in the absence of an individualized finding that the

5

aliens pose a risk of flight or a danger to the community. /d.

- at 5a (citing Patel v. Zemski, 275 F.3d 299 (3d Cir: 2001)).

Although acknowledging that the facts in this case differed

"to some extent" from those in Patel (e.g., Mr. Radoncic has

never had any right to live in this country, while the alien in

Patel had been a permanent resident alien prior to being

convicted of an aggravated felony), the appeals court

concluded that "the legal issue is the same” and accordingly

affirmed the district court's holding on the basis of its Patel

decision. Jd. at 5a-6a. Neither the district court nor the

appeals court considered whether it possessed jurisdiction to

hear Mr. Radoncic's habeas petition.

REASONS FOR GRANTING THE PETITION

“f

Amici fully support the arguments put forth by Peti-

tioner (hereinafter, the "INS"). The Third Circuit has held

an Act of Congress unconstitutional; that alone warrants

review of the court of appeals decision. Moreover, the

appeals court's decision directly conflicts with a decision of

the U.S. Court of Appeals for the Seventh Circuit.

Amici write separately in order to emphasize several

points. First, the appeals court's decision is directly contrary

to numerous decisions of this Court. The Third Circuit failed

to accord the deference demanded by this Court to decisions

of Congress and the Executive Branch with respect to

immigration matters. That failure is particularly troubling in

light of overwhelming evidence that: (1) aliens released from

detention pending deportation after having been convicted of

aggravated felonies pose a serious public safety risk; (2) the

INS has no effective means of assuring the removal of alien

felons following the completion of administrative proceedings

unless it can detain them while those proceedings are

6

ongoing; and (3) in a very real sense, alien felons being

detained pending removal hold the keys to their jail cells

because they can win their freedom at any time so long as

they agree to leave the country while their administrative

appeals are pending.

Second, the Court's decision in Zadvydas v. Davis, 533

U.S. 678 (2001), in no way reduces the need to resolve the

conflict between the decision below and the Seventh Circuit's

decision in Parra v. Perryman, 172 F.3d 954 (7th Cir.

1999). Parra is fully consistent with this Court's Zadvydas

decision, and the Seventh Circuit has given no indication

since Zadvydas was decided in June 2001 that it is

considering abandoning its Parra decision.

Third, Congress has unambiguously decreed that the

federal courts are not to "set aside any action or decision" of

the INS taken pursuant to 8 U.S.C. § 1226 "regarding the

detention or release of any alien or the grant, revocation, or

denial of bond or parole." 8 U.S.C. § 1226(e). It is

undisputed that the INS acted pursuant to 8 U.S.C. § 1226 in

determining that Mr. Radoncic should be detained pending

removal. Accordingly, the Court should grant review in this

case to determine whether the lower courts possessed

jurisdiction to overturn the INS's decision to detain Mr.

Radoncic; § 1226(e) clearly suggests that they did not.

I. DEPORTABLE ALIENS CONVICTED OF

AGGRAVATED FELONIES HAVE NO DUE

PROCESS RIGHT TO REMAIN AT LIBERTY

WITHIN AMERICAN SOCIETY WHILE THEY

CONTEST THEIR REMOVAL

7

In denying Mr. Radoncic's petition for relief from

deportation, the IJ characterized Mr. Radoncic's behavior as

that of a "seasoned," "experienced," and "hardened"

criminal. Pet. App. 61a, 62a. The IJ ordered that Mr.

Radoncic be removed, and the BIA affirmed. Although he

has appealed that decision, Congress has decreed that those

in Mr. Radoncic's position "shall" be detained by the INS

pending removal. The Third Circuit nonetheless ruled that

Mr. Radoncic has a substantive due process right to be free

from detention while he contests the removal order, in the

absence of an "individualized" finding that he poses either a

risk of flight or a threat to the community.

In so holding, the Third Circuit did not merely dismiss

considered views to the contrary from both Congress and the

Seventh Circuit. Its decision is also in conflict with

numerous decisions of this Court that have emphasized the

need for the federal courts to defer to the views of the elected

branches of government in immigration-related matters. The

Court should grant review to resolve that conflict.

The Due Process Clause of the Fifth Amendment

provides that "No person shall . . . be deprived of life,

liberty, or property without due process of law." In general,

that clause has been understood to require procedural fairness

before the federal government may take an action depriving

a person of life, liberty, or property. See, e.g., Mathews v.

_ Eldridge, 424 U.S. 319, 335 (1976).

But the Court has recognized that the Due Process

Clause also includes a categorical prohibition against certain

extreme forms of government conduct that result in

deprivation of life, liberty, or property. This categorical

prohibition, generally referred to as "substantive due pro-

8

cess," "prevents the government from engaging in conduct

that ‘shocks the conscience’ . . . or interferes with rights

‘implicit in the concept of ordered liberty.'" United States v.

Salerno, 481 U.S. 739, 746 (1987) (quoting Rochin v.

California, 342 U.S. 165, 172 (1952), and Palko v. Con-

necticut, 302 U.S. 319, 325-326 (1937)). Amici submit that

there is nothing "shock[ing to] the conscience" about a

federal law that mandates detention of removable aliens who

have been convicted of aggravated felonies and who wish to

remain in the United States while they contest their removal,

particularly where detention is limited to the relatively brief

period necessary for all removal proceedings to be

completed.

Government detention of individuals -- even those

present in this country illegally -- unquestionably implicates

the Due Process Clause's prohibition against unwarranted

deprivations of "liberty." As the Court has made clear,

"Freedom from imprisonment -- from government custody,

detention, or other forms of physical restraint -- lies at the

heart of the liberty that Clause protects." Zadvydas, 121 S.

Ct. 2491, 2498 (2001). But the federal government will

often have legitimate reasons to impinge on personal liberty,

and any claim that abridgement of personal freedom "shocks

the conscience" must be judged in light of the government's

justifications for its actions:

2 Although the Third Circuit was not altogether clear on this

point, amici do not understand the appeals court to have held that the

INS violated Mr. Radoncic's rights to procedural due process. The

appeals court indicated that the Constitution prohibited Mr. Radoncic's

detention in the absence of individualized findings that he presented a

flight risk or a threat to safety, without regard to how much process the

INS afforded him before taking him into custody. Pet. App. 5a-6a.

9

In determining whether a substantive right protected by

the Due Process Clause has been violated, it is neces-

sary to balance "the liberty of the individual" and the

"demands of organized society." Poe v. Ullman, 367

U.S. 497, 542 (1961)(Harlan, J., dissenting). In seek-

ing this balance in other cases, the Court has weighed

the individual's interest in liberty against the State's

asserted reasons for restraining individual liberty.

Youngberg v. Romeo, 457 U.S. 307, 320 (1982).

When that balancing process is undertaken within the

context of immigration matters, the balance tilts decidedly in

favor of upholding federal restraints on the liberty of

noncitizens imposed by Congress and the Executive Branch

in the name of national security and safety. In fact, the law

is quite clear that when it comes to matters of immigration

policy, the judicial branch has a very limited role to play.

"The power to regulate immigration -- an attribute of

sovereignty essential to the preservation of any nation -- has

been entrusted by the Constitution to the political branches of

the Federal Government." United States v. Valenzuela-

Bernal, 458 U.S. 858, 864 (1982). As a result, the Court

has "underscore[d] the limited scope of judicial inquiry" into

immigration-related matters. Fiallo v. Bell, 430 U.S. 787,

792 (1977). "The power over aliens is of a political

character and therefore subject only to narrow judicial

review." Hampton v. Mow Sun Wong, 426 U.S. 88, 101

n.21 (1976). Accord, Miller v. Albright, 523 U.S. 420, 455

(1998) (Scalia, J., concurring) ("Judicial power over

immigration and naturalization is extremely limited.").

As the Court has explained:

10

"{A]ny policy toward aliens is vitally and intricately

interwoven with contemporaneous policies in regard to

the conduct of foreign relations, the war power, and the

maintenance of a republican form of government. Such

matters are so exclusively entrusted to the political

branches of government as to be largely immune from

judicial inquiry or interference."

Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976) (quoting

Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952)).

In conflict with this Court's case law, the Third Circuit

declined to defer to Congress's judgment that sound immi-

gration policy requires the detention of deportable aliens who

have been convicted of aggravated felonies. Patel, 275 F.3d

299, 308, 314 (3d Cir. 2001).° In support of its refusal to

defer to Congress, the Third Circuit argued:

The Supreme Court recently addressed this issue [of

deference] in Zadvydas and distinguished between the

deference that must be afforded to immigration policies

and the more searching review of the procedures used

to implement those policies. 121 S. Ct. at 2501-502.

The issue in the present case implicates the latter, the

means by which Congress effects its determinations

regarding who should be deported and on what basis,

> Patel was argued on the same day as this case, in front of the

same three-judge panel. The panel issued a lengthy opinion in Patel in

December 2001. When the panel issued its decision in this case two

weeks later, it provided an extremely truncated version of its due

process findings and instead relied on Patel, asserting, "[{T}he legal

issue [in the two cases] is the same." Pet. App. 5a. Accordingly, in

setting forth the Third Circuit's rationale in this case, amici cite

extensively to the Patel decision.

11

not the actual criteria for deportation. . . [A]s noted

above, the Supreme Court in Zadvydas made clear that

Congress’ authority over the means of implementing its

policies is limited by the Constitution and need not be

accorded deference. 121 S. Ct. at 2501.

Id. at 308, 314.

The Third Circuit's rationale for refusing to defer to

Congress is a clear misreading of Zadvydas. Nowhere did

Zadvydas attempt to distinguish between immigration policies

and immigration procedures and to limit deference to issues

addressing the former. Rather, the Court stated:

The Government also looks for support to cases holding

that Congress has "plenary power" to create

immigration law, and that the judicial branch must defer

to executive and legislative branch decisionmaking in

this area. . . But that power is subject to important

limitations. See INS v. Chadha, 462 U.S. 919, 941-942

(1983) (Congress must choose "a constitutionally

permissible means of implementing" that power). . . In

these cases, we focus upon those limitations. .. The

question before us is not one of "'confer[ring] on those

admitted the right to remain against the national! will'"

or "'sufferance of aliens'" who should be removed.

Post, at 2505-2506 (SCALIA, J., dissenting) (quoting

[Shaughnessy v. United States ex rel.| Mezei, 345 U.S.

[206,] 222-223 [(1953)] (Jackson, J., dissenting)).

Rather, the issue we address is whether aliens that the

Government finds itself unable to remove are to be

condemned to an indefinite term of imprisonment within

the United States.

12

Zadvydas, 121 S. Ct. 2502-03. In other words, contrary to

the Third Circuit's belief, Zadvydas did not create a category

of immigration law (i.e., laws that establish "procedures" for

carrying out immigration policy) for which judicial deference

is unwarranted. Rather, the Court made clear that all

immigration law is entitled to substantial deference, but that

the Court in extraordinary cases will step in -- as where

detention of an alien whom the government is unable to

remove effectively results in a life sentence.

In adopting § 1226(c), Congress determined that release

of alien felons pending removal would entail such an

extraordinarily high risk of flight and of danger to the

community that detention of all such aliens (pending

completion of removal proceedings) was mandated. In

conflict with numerous decisions of this Court, the appeals

court refused to defer to Congress's assessment of the risks

involved. Congress had good reason to fear that release of

alien felons pending removal posed a significant risk to public

safety. For example, a General Accounting Office report

cited during floor debates by a House sponsor of 1996

immigration reform legislation found that "77 percent of

noncitizens convicted of felonies are arrested at least one

more time" before being deported. 142 Cong. Rec. 7972

(1995). A major study of criminal aliens conducted by Los

Angeles County reached a similar conclusion. Los Angeles

County Wide Criminal Justice Coordination Committee,

"Impact of Repeat Arrests of Deportable Aliens in Los

Angeles County" [hereinafter, "Impaci"], July 15, 1992.

The study traced the activity of 1,875 inmates released from

Los Angeles County jail in May 1990 who had been

identified by the INS as "deportabie aliens." Of those 1,875,

772 had been rearrested within one year, and those 772 had

sbeen arrested a total of 1,522 times. Impact at iv.

13

The INS introduced substantial evidence in this case that

alien felons released on bond pending removal also pose a

significant risk of flight. For example, the INS cited a study

indicating that 90% of criminal aliens not detained during

removal proceedings end up fleeing. Patel, 275 F.3d at

312.* The Third Circuit nonetheless refused to defer to Con-

gress's judgment that this evidence justified detention of all

alien felons, asserting that substantive due process prohibited

the INS from detaining any alien felon unless it could

demonstrate that that alien would flee: "[E]ven if the ninety

percent figure were correct, [§ 1226(c)] requires the

imprisonment of the ten percent of aliens who would dutifully

report to proceedings." /d.

In refusing to defer to Congress's considered judgment

on this issue, the Third Circuit appeared to assume that an

individual felon's propensity to flee or to commit additional

crimes could be determined as a factual matter. That

assumption is without foundation; there is never any means

by which government officials can predict future behavior of

any given individual with 100% accuracy. All Congress can

be expected to do is to use available information to predict

how a class of individuals is likely to behave if released from

detention. It has determined that any alien in Mr. Radoncic's

position is much more likely than not, if released from

detention while removal proceedings continue, either to flee

or to commit additional crimes. The Third Circuit's refusal

to accept that determination is in conflict with the numerous

decisions of this Court thai have counseled judicial deference

to the political branches of government on immigration mat-

* The Seventh Circuit relied in part on this study in rejecting a

due process challenge to § 1226(c)'s mandatory detention provision.

Parra, 275 F.3d at 956 (citing 62 Fed. Reg. 10,312, 10,323 (1997)).

14

ters. See, e.g., INS v. St. Cyr, 121 S. Ct. 2271, 2287 n.38

(2001) ("the scope of review on habeas [in immigration

cases] is considerably more limited than on APA-style

review").

In contrast to the government's strong interest in

detaining him, Mr. Radoncic has at most a minimal "liberty"

interest in being allowed to roam freely in American society.

Indeed, Mr. Radoncic's detention was not solely or even

primarily the INS's doing. In a very real sense, Mr.

Radoncic at all times held the keys to his cell. He was free

to leave detention provided only that he agree to leave the

country. A choice between detention or leaving the country

could be viewed as a Hobson's Choice for citizens and

permanent resident aliens who have reasonable expectations

of being permitted to remain in the United States. But self-

confessed illegal aliens, such as Mr. Radoncic, who have

never had any legitimate expectation of being permitted to

remain on a permanent basis have, at most, only minimal

"liberty" Mterests in living freely in this country. This Court

has never suggested that aliens who are here illegally are

entitled to the same level of constitutional protection as

citizens or permanent resident aliens. See, e.g., Reno v.

Flores, 507 U.S. 292, 306 (1993) ("Congress has the

authority to detain aliens suspected of entering the country

illegally pending their deportation hearings.") Accordingly,

when such removable aliens choose incarceration as the price

for remaining in this country, their claims that incarceration

is depriving them of Fifth Amendment "liberty" ring hollow.

In sum, review is warranted of the Third Circuit's

determination that Mr. Radoncic's "liberty" interest in being

released into American society outweighs the government's

interest in detaining, pending removal, all illegal aliens who

15

have been convicted of aggravated felonies, as a means of

preventing flight and protecting public safety.

II. ZADVYDAS IN NO WAY LESSENS THE NEED

FOR THIS COURT TO RESOLVE THE

CONFLICT AMONG THE COURTS OF APPEALS

The Third Circuit acknowledged that its decision

striking down § 1226(c) was in conflict with the Seventh

Circuit's Parra decision. Patel, 275 F.3d at 313. The Third

Circuit suggested, however, that any conflict was unlikely to

persist because Parra had been superseded by Zadvydas:

However, Parra was decided before Zadvydas and thus

the Seventh Circuit did not have the benefit of the

Supreme Court's analysis of the constitutional concerns

presented by mandatory detention of aliens.

Id.

The Third Circuit's suggestion is misguided; there is no

inconsistency between Parra and Zadvydas. This Court

made clear in Zadvydas that the detention of those who once

were Classified as permanent resident aliens -- even

permanent resident aliens who have been convicted of

aggravated felonies -- implicates the Due Process Clause.

But the Seventh Circuit in Parra did not hold otherwise; it

merely held that the minimal "liberty" interests of the alien

felon being detained in that case were insufficient to

overcome the INS's strong interests in detaining him. Parra,

172 F.3d at 958. That holding is in direct conflict with the

Third Circuit's holding in this case: the Third Circuit found

that the due process balance tilted in favor of the alien felon,

even though Mr. Radoncic (as an illegal alien who never had

16

had any right to live in this country) had an even weaker

"liberty" interest than Mr. Parra, who prior to his conviction

had been a permanent resident alien. ,

Zadvydas involved an entirely different balancing

process. That case involved permanent resident aliens from

Lithuania and Cambodia who, although subject to final

removal orders, could not be sent anywhere in the

foreseeable future because no country was willing to accept

them. The Court concluded:

[T]he issue we address is whether aliens that the

Government finds itself unable to remove are to be

condemned to an indefinite term of imprisonment within

the United States. . . An alien's liberty interest is, at

the least, strong enough to raise a serious question as to

whether, irrespective of the procedures used, . . . the

Constitution permits detention that is indefinite and

potentially permanent.

Zadvydas, 121 S. Ct. at 2502.°

In sharp contrast, this case and Parra both involved

alien felons whose removal proceedings were ongoing.

Unlike in Zadvydas, neither Mr. Radoncic nor Mr. Parra

faced "indefinite and potentially permanent" detention

(because removal proceedings would be completed within a

relatively short period of time). Moreover, because there is

° The Court did not answer that "serious question." Rather, it

invoked the doctrine of constitutional doubt to interpret 8 U.S.C.

§ 1231(a)(6) as prohibiting detention of such aliens for more than six

months after completion of the deportation process, if "there is no

significant likelihood of removal in the reasonably foreseeable future."

Zadvycas, 121 S. Ct. at 2505.

17

no evidence that Serbia-Montenegro is unwilling to accept

Mr. Radoncic or that Mexico was unwilling to accept Mr.

Parra, both were free to end their detention at any time by

leaving the country. Accordingly, nothing in this Court's

Zadvydas decision is likely to cause the Seventh Circuit to

reassess its conclusion that § 1226(c) passes constitutional

muster,° and the conflict between the Third and Seventh

Circuits is likely to persist until resolved by this Court.

Il. THE COURT SHOULD GRANT REVIEW IN

ORDER TO DETERMINE WHETHER LOWER

FEDERAL COURTS HAVE JURISDICTION TO

OVERTURN § 1226(c) DETENTION DECISIONS

The Court should also grant review to consider an issue

not raised in the petition: whether lower federal courts have

jurisdiction to overturn § 1226(c) detention decisions. It is

always appropriate, of course, for a court sua sponte to raise

the issue of its own jurisdiction, and the jurisdictional issue

is a "subsidiary question fairly included" within the question

presented by Petitioner. Sup. CT. R. 14.1(a).

The district court and Third Circuit asserted jurisdiction

over this case under the federal habeas corpus statute, 28

U.S.C. § 2241. However, 8 U.S.C. § 1226(e) Clearly sug-

gests that no such jurisdiction exists in the lower federal

courts:

° The Seventh Circuit has been called upon to apply Zadvydas in

several recent cases. Although none of those cases addressed

§ 1226(c), none of the opinions contains language suggesting that

Parra's continued vitality is subject to question. See, e.g., Hoyte-Mesa

v. Ashcroft, 272 F.3d 989 (7th Cir. 2001).

18

The Attorney General's discretionary judgment regard-

ing the application of this section shall not be subject to

review. No court may set aside any action or decision

by the Attorney General under this section regarding the

detention or release of any alien or the grant, revo-

cation, or denial of bond or parole. (Emphasis added.)

There is no question that following Mr. Radoncic's re-

lease from federal prison in May 2000, the INS detained him

"under this section," 7.e., under 8 U.S.C. § 1226. Accord-

ingly, the only plausible reading of § 1226(e) is that Congress

intended to prohibit federal courts from "set[ting] aside" the

INS's decision to detain Mr. Radoncic and other similarly

situated criminal aliens.

Although each of the appeals courts to consider the issue

has held that § 1226(e) is not a bar to habeas corpus claims

such as Mr. Radoncic's, those courts have arrived at their

decisions by simply ignoring the plain statutory language.

The Seventh Circuit evaded the jurisdictional bar in Parra by

claiming that § 1226(e) prohibits only "[t}wo particular

avenues of attack" on detention decisions: (1) an argument

that the Attorney General erred in applying § 1226 to an

alien; and (2) an argument that he erred in deeming the alien

statutorily ineligible for bail. Parra, 172 F.3d at 957. The

court held that "[a] person who has different legal arguments

may present them," including an argument that detention is

improper because § 1226(c) is unconstitutional. /d. That

interpretation of § 1226(e) is not plausible. The second

sentence of § 1226(e) does not state that certain types of

detention decisions or certain types of legal challenges to

detention are barred; rather, it states categorically that "[n]o

19

court may set aside" an INS decision to detain an alien felon

pursuant to § 1226.’

The Third Circuit in Patel likewise held that § 1226(e)

does not bar judicial review of a habeas corpus challenge to

INS detention of an alien felon under § 1226. But it did so

without any real analysis; it simply cited to Parra and stated

in conclusory fashion: "[§ 1226(e)], which restricts judicial

review of INS decisions made under this section [1226], does

not restrict judicial review of its constitutionality.". Patel,

275 F.3d at 302.

Amici recognize that there is "a strong presumption in

favor of judicial review of administrative action," and that the

Court has a "rule requiring a clear statement of congressional

intent to repeal habeas jurisdiction." INS v. St. Cyr, 121 S.

Ct. 2271 (2001). Nonetheless, there is no plausible

interpretation of § 1226(e) other than that Congress intended

’ The Seventh Circuit attempted to draw support from this

Court's interpretation of another jurisdiction-limiting statute in Reno v.

American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999).

The comparison was not well-taken. The statute at issue in American-

Arab, 8 U.S.C. § 1252(g), sharply limits judicial review of claims by

an alien “arising from the decision or action by the Attorney General

to commence proceedings, adjudicate cases, or execute removal orders

against an alien under this Act." The Court concluded that § 1252(g)

imposed limits on judicial review only when the plaintiffs'- claims

addressed one of the three types of "decision[s] or action{s]"

enumerated in § 1252(g); but the Court made clear that § 1252(g)

applied regardless of the grounds raised by the alien to challenge the

Attorney General's decisions or actions in these three areas. American-

Arab, 525 U.S. at 482-83. Similarly, 8 U.S.C. § 1226(e) prohibits a

court from "set{ting] aside" a decision by the Attorney General to

detain an alien felon pursuant to § 1226, regardless of the basis for

challenging detention.

20

to preclude all lower-court review of an INS decision to

detain an alien felon pursuant to § 1226.° The Court should

grant the petition to consider whether the Third Circuit erred

in asserting jurisdiction over Mr. Radoncic's claim.

The only plausible basis for upholding the Third

Circuit's assertion of jurisdiction is a finding that § 1226(e)

is void as a violation of the Suspension Clause of the

Constitution. In light of St. Cyr, any effort to deny judicial

review of INS detention decisions raises a "serious question"

under the Suspension Clause, Nonetheless, amici note that

the Court has never invoked the Suspension Clause to strike

down a federal statute. Moreover, given the strong pre-

sumption of constitutionality of federal legislation, the Court

should not permit federal courts to assert jurisdiction over a

claim in violation of a federal statute without first granting

review to determine whether the statute is constitutional.

CONCLUSION

Amici curiae respectfully request that the Court grant

the Petition.

® Section 1226(e) could plausibly be read as not barring claims

that the detainee is not actually an alien or has not actually been

convicted of an aggravated felony. Detention in such circumstances

arguably is not detention “under this section," thereby rendering the

statutory bar inapplicable. However, Mr. Radoncic does not contest

that he is an alien who entered this country illegally, nor does he

contest that the crimes of which he stands convicted are “aggravated

felonies" within the meaning of 8 U.S.C. § 1101(a)(43)(N) and (U).

Date: May 31, 2002

Respectfully submitted,

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036