Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 1 of 20 Page ID #:17974 1 2 3 4 5 6 7 8 9 10 11 MICHAEL K.T. TAN* mtan@aclu.org JUDY RABINOVITZ* jrabinovitz@aclu.org ACLU IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004-2400 Telephone: (212) 549-2618 Facsimile: (212) 549-2654 AHILAN T. ARULANANTHAM (SBN 237841) aarulanantham@aclu-sc.org ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5232 Facsimile: (213) 977-5297 Attorneys for Amici Curiae *Pro hac vice application forthcoming 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JENNY LISETTE FLORES, et al., Plaintiffs, v. JEFFERSON B. SESSIONS, Attorney General, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 85-4544-DMG (Px) PROPOSED BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO THE GOVERNMENT’S EX PARTE APPLICATION FOR RELIEF Judge: Hon. Dolly M. Gee Courtroom: 8C, Los Angeles Courthouse Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 2 of 20 Page ID #:17975 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES ..................................................................................... ii 3 STATEMENT OF INTEREST ................................................................................. 1 4 INTRODUCTION ..................................................................................................... 1 5 ARGUMENT ............................................................................................................. 4 6 I. THE GOVERNMENT MAY NOT DETAIN FAMILIES FOR DETERRENCE PURPOSES. .......................................................................... 4 7 8 9 10 11 12 13 A. General Deterrence Is Not a Permissible Basis for Civil Immigration Detention.................................................................................................. 4 B. The Government Presents No Probative Evidence that the Flores Agreement or this Court’s July 2015 Order Have Caused a Migratory Crisis. ....................................................................................................... 7 II. THE GOVERNMENT MAY NOT SUBJECT FAMILIES TO BLANKET DETENTION FOR THE PENDENCY OF THEIR REMOVAL CASES. .. 12 CONCLUSION........................................................................................................ 16 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California i Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 3 of 20 Page ID #:17976 1 TABLE OF AUTHORITIES CASES 2 3 Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) .......................................................... 4 4 INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183 (1991) ....................... 14 5 Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ................................................. 1, 6, 14 6 Kansas v. Crane, 534 U.S. 407 (2002) .................................................................. 5, 9 7 Kansas v. Hendricks, 521 U.S. 346 (1997) ........................................................... 5, 9 8 Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999) .............................................. 13 9 10 Reno v. Flores, 507 U.S. 292 (1993) ....................................................................... 13 11 RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ....................................... passim 12 Rufo v. Inmates of the Suffolk Cnty. Jail, 502 U.S. 367 (1992) ................................ 4 13 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)....................... 14 14 United States v. Salerno, 481 U.S. 739 (1987)........................................................ 12 15 Zadvydas v. Davis, 533 U.S. 678 (2001) .......................................................... passim 16 17 STATUTES 18 8 U.S.C. § 1225(b)(1) .......................................................................................... 8, 14 19 8 U.S.C. § 1225(b)(1)(A)........................................................................................... 8 20 8 U.S.C. § 1225(b)(1)(B)(ii) ...................................................................................... 8 21 8 U.S.C. § 1225(b)(1)(B)(v) ...................................................................................... 8 22 8 U.S.C. § 1226(a) ........................................................................................... 2, 6, 13 23 24 REGULATIONS 25 8 C.F.R. § 208.30(f) ................................................................................................... 8 26 8 C.F.R. § 1003.19(a) .............................................................................................. 13 27 8 C.F.R. § 1236.1(c)(8)............................................................................................ 13 28 Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California ii Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 4 of 20 Page ID #:17977 1 OTHER AUTHORITIES 2 Adam Cox & Ryan Goodman, Detention of Migrant Families as “Deterrence”: Ethical Flaws and Empirical Doubts, justsecurity.org (June 22, 2018) ....... 10, 11 3 4 Executive Order, Affording Congress an Opportunity to Address Family Separation, 2018 WL 3046068 (June 20, 2018) .................................................. 12 5 6 7 8 9 10 11 ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) ............................................................. 14 Ingrid Eagly, Steven Shafer, & Jana Whalley, Detaining Families: a Study of Asylum Adjudication in Family Detention, 106 Calif. L. Rev. 785 (June 2018) ..................................................................... 15 Memorandum from John Kelly, Secretary of Homeland Security, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017) ....................................................................................... 14 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California iii Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 5 of 20 Page ID #:17978 1 STATEMENT OF INTEREST 2 The ACLU is a nationwide, nonprofit, nonpartisan organization with more 3 than 1.75 million members dedicated to the principles of liberty and equality 4 embodied in the Constitution and this nation’s civil rights laws. The Immigrants’ 5 Rights Project (“IRP”) of the ACLU engages in a nationwide program of litigation 6 and advocacy to enforce and protect the constitutional and civil rights of 7 immigrants. The ACLU Foundation of Southern California is the Southern 8 California affiliate of the ACLU. 9 IRP and the ACLU Foundation of Southern California have litigated 10 numerous major cases on immigration detention, either as counsel of record or 11 counsel for amicus curiae. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 12 IRP has particular interest in and experience with family detention. IRP serves as 13 class counsel in RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015), a nationwide 14 class action lawsuit challenging the government’s detention of migrant families, 15 including many Flores class members, for the purpose of deterring future 16 migration to the United States. 17 INTRODUCTION 18 Amici curiae the ACLU Immigrants’ Rights Project and ACLU Foundation 19 of Southern California (hereinafter “ACLU” or “Amici”) submit this brief in 20 support of Plaintiffs’ opposition to the government’s ex parte application for relief 21 from the Flores Settlement Agreement (hereinafter, “Flores Agreement” or 22 “Agreement”).1 Amici submit that the government’s ex parte motion should be 23 denied for at least two reasons. 24 25 26 27 28 1 The government specifically asks that this Court (1) permit U.S. Immigration and Customs Enforcement (“ICE”) to detain parents and children in ICE family detention centers pending their immigration proceedings and (2) waive the Flores Agreement’s state licensure requirements for family detention facilities. Gov’t Br. 4. Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 1 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 6 of 20 Page ID #:17979 1 First, the government seeks emergency relief on the grounds that the Flores 2 Agreement and this Court’s July 2015 Order have purportedly “precipitated a 3 destabilizing migratory crisis” by sending a message to migrant families that they 4 will not be detained and deported if they come to the United States. Gov’t Br. 2 5 (referring to ECF No. 177). The government claims that modification of the 6 Agreement to permit family detention during the pendency of immigration 7 proceedings is necessary to “dispel[] such expectations, and deter[] others from 8 unlawfully coming to the United States.” Gov’t Br. 13 (internal quotation marks 9 and citation omitted). 10 Even assuming the government’s factual claims were correct—and they are 11 not—its ex parte motion should be rejected. General deterrence is not a permissible 12 purpose for family detention because this form of detention is civil rather than 13 criminal in nature. The U.S. District Court for the District of Columbia held 14 exactly that, in the context of family detention, in RILR v. Johnson, 80 F. Supp. 3d 15 164 (D.D.C. 2015). Based on controlling Supreme Court precedent, RILR 16 concluded that the detention of individuals for the purpose of deterring the 17 migration of others to the United States raises serious due process concerns and 18 violates the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a). The 19 Due Process Clause and the INA permit detention based only on individualized 20 characteristics such as flight risk and danger to the community. Where the 21 government lacks an individualized basis to detain, incarceration in this context is 22 impermissible. See RILR, 80 F. Supp. 3d at 186-90. 23 Moreover, the government itself agreed not to detain families based on 24 general deterrence as a condition of dissolving the RILR injunction and 25 administratively closing the case.2 Thus, even if the government were correct that 26 27 28 2 See Notice to the Court, 1 (ECF No. 40) and Order, 1 (ECF No. 43), RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv-00011-JEB). Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 2 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 7 of 20 Page ID #:17980 1 Flores and this Court’s July 2015 Order have impacted migration patterns, it still 2 would be prohibited—by the Constitution, the immigration laws, and its own 3 policy—from imprisoning families to deter other migrants from coming to the 4 United States. See Point I.A, infra. 5 In any event, the government has failed to justify its interest in deterrence 6 here. It is unclear why the government has any legitimate interest in deterring the 7 families who primarily benefit from the release provisions of the Flores 8 Agreement—namely, asylum seekers whom the immigration authorities have 9 found to have credible asylum claims that must be heard in full immigration court 10 hearings inside the United States. The government has failed to provide any 11 probative evidence either of the “migratory crisis” supposedly precipitated by 12 Flores and this Court’s July 2015 Order, or that long-term family detention—if 13 permitted by this Court—would effectively deter migrants from seeking asylum in 14 the United States. In short, the government has failed to show that modification of 15 the Flores Agreement is warranted. See Point I.B, infra. 16 Second, the government’s motion appears to assume that if the Flores 17 Agreement did not require that children be released promptly from custody, then 18 the government could subject the parents and children to prolonged detention 19 pending completion of their removal proceedings, and thereby avoid the need for 20 family separation. See, e.g., Gov’t Br. 5. However, the government may not subject 21 families to such categorical detention. Instead, the Due Process Clause, the INA, 22 and the INA’s implementing regulations all require that the government make an 23 individualized determination that detention is warranted based on flight risk and 24 danger. 25 26 27 28 Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 3 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 8 of 20 Page ID #:17981 ARGUMENT 1 2 I. 3 THE GOVERNMENT MAY NOT DETAIN FAMILIES FOR DETERRENCE PURPOSES. 4 A. 5 The government seeks emergency relief from the Flores Agreement based 6 7 8 9 10 11 12 13 14 15 16 on a purported influx of migrant families that it claims resulted from this Court’s July 2015 Order denying the government’s motion to amend the Agreement. See Gov’t Br. 2-3, 8-9; see also ECF No. 177. As set forth below, the government’s claims are factually incorrect and do not remotely show a “significant change in circumstances” warranting extraordinary relief under Rule 60(b)(5). See Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992). See also Point I.B., infra. But even if the government had shown a significant change in circumstances— which it has not—it still would be prohibited from deploying family detention for the purpose underlying its ex parte motion: that is, to deter other migrants from traveling to the United States. This is made clear by the district court’s preliminary injunction ruling in 17 18 19 20 21 22 23 24 25 26 27 28 General Deterrence Is Not a Permissible Basis for Civil Immigration Detention. RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015). See also Flores v. Lynch, 828 F.3d 898, 904-05 (9th Cir. 2016) (discussing RILR injunction). In RILR, a plaintiff class of Central American mothers and children challenged, among other things, the Department of Homeland Security’s (“DHS”) policy and practice of detaining families for the purpose of deterring other migrants from coming to the United States.3 The district court concluded, based on controlling Supreme Court 3 The class as provisionally certified by the district court consists of Central American mothers and children who: (a) have been or will be detained in ICE family detention facilities since June 2014; (b) have been or will be determined to have a credible fear of persecution in their home country, see 8 U.S.C. § (cont’d) Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 4 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 9 of 20 Page ID #:17982 1 precedent, that such detention raised serious due process concerns. See RILR, 80 F. 2 Supp. 3d at 187-90. As the Supreme Court repeatedly has recognized, “[f]reedom 3 from imprisonment—from government custody, detention, or other forms of 4 physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. 5 Davis, 533 U.S. 678, 690 (2001). Thus, “government detention violates [the Due 6 Process Clause] unless the detention is ordered in a criminal proceeding with 7 adequate procedural protections, or, in certain special and narrow nonpunitive 8 circumstances, where a special justification, such as harm-threatening mental 9 illness, outweighs the individual’s constitutionally protected interest in avoiding 10 physical restraint.” Id. at 690 (emphasis in original) (internal citations omitted). 11 In contrast to criminal detention, “general deterrence” is not a permissible 12 basis for civil detention—including under the immigration laws. See RILR, 80 F. 13 Supp. 3d at 188-89. See also Kansas v. Crane, 534 U.S. 407, 412 (2002) (warning 14 that civil detention may not “become a ‘mechanism for retribution or general 15 deterrence’—functions properly those of criminal law, not civil commitment”) 16 (quoting Kansas v. Hendricks, 521 U.S. 346, 372-73 (1997) (Kennedy, J., 17 concurring)); Hendricks, 521 U.S. at 373 (“[W]hile incapacitation is a goal 18 common to both the criminal and civil systems of confinement, retribution and 19 general deterrence are reserved for the criminal system alone.”). Indeed, as the 20 court in RILR explained, the Supreme Court has permitted immigration detention 21 based only on “characteristics inherent in the alien himself or in the category of 22 23 24 25 26 27 28 1225[(b)(1)](B)(v), § 1158; 8 C.F.R. § 208.31; and (c) are eligible for release on bond, recognizance, or other conditions, pursuant to 8 U.S.C. § 1226(a)(2) and 8 C.F.R. § 1236.1[(c)](8), but (d) have been or will be denied such release after being subject to an ICE custody determination that took deterrence of mass migration into account. Order ¶ 2, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv00011-JEB) (ECF No. 32). Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 5 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 10 of 20 Page ID #:17983 1 aliens being detained—that is, the Court countenanced detention of an alien or 2 category of aliens on the basis of those aliens’ risk of flight or danger to the 3 community.” RILR, 80 F. Supp. 3d at 188. Accord Zadvydas, 533 U.S. at 690-92. 4 By contrast, the Due Process Clause does not permit the detention of a particular 5 individual “for the sake of sending a message of deterrence to other Central 6 American individuals who may be considering immigration.” RILR, 80 F. Supp. 3d 7 at 188-89. 8 In light of these serious due process concerns, the court in RILR applied the 9 canon of constitutional avoidance4 to interpret the INA, 8 U.S.C. § 1226(a), to 10 prohibit detention based on general deterrence, and granted the plaintiffs’ motions 11 for a preliminary injunction and provisional class certification. See id. at 186-87, 12 191. Subsequently, in May 2015, the government notified the district court that it 13 had decided to discontinue detaining families on deterrence grounds. See Notice to 14 the Court, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv- 15 00011-JEB) (ECF No. 40). In June 2015, by agreement of the parties, the district 16 court then dissolved the preliminary injunction and closed the case, allowing the 17 plaintiffs to move to reinstate the preliminary injunction if the government again 18 seeks to detain class members for the purpose of deterring future immigration to 19 the United States. See Order, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) 20 (No. 1:15-cv-00011-JEB) (ECF No. 43).5 21 4 22 23 24 25 26 27 28 See Zadvydas, 533 U.S. at 689 (explaining that the canon of constitutional avoidance requires courts to “ascertain whether a construction of the statute is fairly possible by which the [constitutional question] may be avoided.”). See also Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018) (the canon of constitutional avoidance “permits a court to choose between competing plausible interpretations of a statutory text” (internal quotation marks and emphasis omitted)). 5 The June 2015 Order in RILR requires the government to notify the district court that it has decided to detain class members on general deterrence grounds at least ten days prior to making any change in policy, so that the plaintiffs may seek reinstatement of the preliminary injunction. See Order ¶ 2.a, RILR v. Johnson, 80 (cont’d) Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 6 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 11 of 20 Page ID #:17984 1 However, despite the RILR preliminary injunction ruling and the parties’ 2 agreement in RILR, the government now asks in its instant motion that this Court 3 waive critical provisions of the Flores Agreement precisely so that it can detain 4 families for the purpose of general deterrence. The government claims that the 5 Agreement has “creat[ed] a powerful incentive for aliens to enter this country with 6 children in violation of our criminal and immigration laws” and that this Court’s 7 July 2015 ruling has “precipitated a destabilizing migratory crisis” by sending a 8 “message . . . to those seeking illegal entry: we will not detain and deport you.” 9 Gov’t Br. 1-2. In the government’s view, detaining families until their removal 10 cases are resolved is necessary to “dispel such expectations, and deter[] others 11 from unlawfully coming to the United States.” Gov’t Br. 13 (internal quotation 12 marks and citation omitted). 13 Even if the government’s assertions regarding the effects of Flores and this 14 Court’s July 2015 Order were correct—and they are not, see Point I.B, infra—the 15 Due Process Clause, the immigration statutes, and the government’s own stated 16 policy prohibit it from subjecting families to detention in order to deter them. Put 17 simply, general deterrence is not a permissible purpose for civil immigration 18 detention. For this reason, the government’s motion for emergency relief should be 19 rejected. 20 21 22 23 24 25 26 27 28 B. The Government Presents No Probative Evidence that the Flores Agreement or this Court’s July 2015 Order Have Caused a Migratory Crisis. Even assuming that general deterrence could constitute a permissible basis for detaining families, the government has not justified its interest in deterrence here. As the district court asked in RILR, the government “seeks to deter future F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv-00011-JEB) (ECF No. 43). To date, the government has not filed any such notice in RILR, despite the position it has adopted in its ex parte motion to this Court. Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 7 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 12 of 20 Page ID #:17985 1 mass immigration; but to what end?” RILR, 80 F. Supp. 3d at 189. The 2 government’s interest in deterrence is particularly insubstantial given that— 3 contrary to the government’s assertions—the overwhelming majority of families 4 who benefit from the release provisions of the Flores Agreement have bona fide 5 asylum claims. Compare, e.g., Gov’t Br. 19 (asserting that the Flores Agreement 6 gives families who have “no valid asylum claim” the opportunity to “disappear[]” 7 into the United States), with U.S. Citizenship and Immigration Services, Asylum 8 Division, Family Facilities Credible Fear (Apr. 27, 2015), available at 9 https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED-CF-RF-familiy- 10 facilities-FY2015Q2.pdf (reporting that nearly 90% of families screened by an 11 asylum officer from January through March 2015 were found to have a credible 12 asylum claim); see also Declaration of Manoj Govindaiah ¶ 3 (attached as Ex A.) 13 (explaining that approximately 5,000 of the 5,177 families detained at the Karnes 14 County Residential Center who were provided legal services by RAICES between 15 July 2017 to July 2018 were found to have a credible asylum claim). These 16 families have been found by the immigration authorities to have a credible fear of 17 persecution in Central America—meaning a “significant possibility” that they 18 “could establish eligibility for asylum,” 8 U.S.C. § 1225(b)(1)(B)(v)—and deemed 19 to have asylum claims that should be heard in full immigration court hearings 20 inside the United States. See id. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(f). By 21 contrast, immigrants found to not have a credible fear are immediately deported 22 pursuant to the expedited removal process, without ever receiving a hearing before 23 an immigration judge. See 8 U.S.C. § 1225(b)(1)(A). See also Govindaiah Dec. ¶ 4 24 (reporting that the “small minority” of families at Karnes who did not have a fear 25 of return “received expedited removal orders and were generally deported from the 26 United States within a few days afterwards”). Thus, only immigrants found to have 27 credible asylum claims and referred for a full removal hearing face detention for 28 significant periods of time and benefit from the release provisions of the Flores Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 8 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 13 of 20 Page ID #:17986 1 Agreement. It is unclear why the government has a legitimate interest in deterring 2 such bona fide asylum seekers, particularly when they already have means to 3 immediately deport immigrants who lack credible asylum claims. Indeed, as the 4 district court reasoned in RILR, “a general-deterrence rationale seems less 5 applicable where—unlike pedophiles, see Hendricks, 521 U.S. at 354–55, 362, or 6 other violent sexual offenders, see Crane, 534 U.S. at 409-11—neither those being 7 detained nor those being deterred are certain wrongdoers, but rather individuals 8 who may have legitimate claims to asylum in this country.” 80 F. Supp. 3d at 189.6 9 Moreover, much like when the government attempted to justify its 10 deterrence policy in RILR, the government here has failed to present probative 11 evidence that the Flores Agreement or this Court’s July 2015 Order have 12 “precipitated a destabilizing migratory crisis,” see Gov’t Br. 2, or that family 13 detention would actually deter families from seeking asylum in the United States. 14 See RILR, 80 F. Supp. 3d at 189 (“Defendants have presented little empirical 15 evidence, moreover, that their detention policy even achieves its only desired 16 effect—i.e., that it actually deters potential immigrants from Central America.”). 17 As an initial matter, the government’s bare assertions regarding the 18 purported impact of Flores on migration patterns contradict the social science 19 literature. As the district court found based on expert evidence in RILR, “‘rumors 20 regarding lenient immigration detention policies in the United States are not a 21 significant factor motivating current Central American immigration.’” Id. (quoting 22 23 24 25 26 27 28 The government vaguely asserts that the Flores Agreement “encourages parents to subject their children to [a] dangerous journey in order to avoid their own detention” and puts children at “increased risk of trafficking by smugglers,” Gov’t Br. 6 (internal quotation marks and citation omitted). In addition to offering no evidence for these assertions, the government fails to acknowledge that the parents of children with bona fide asylum claims presumably know and have decided that leaving their children in situations of violence and death puts their lives in equal, if not greater, peril. 6 Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 9 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 14 of 20 Page ID #:17987 1 Declaration of Nestor Rodriguez, Ph.D, ¶ 14, RILR v. Johnson, 80 F. Supp. 3d 164 2 (D.D.C. 2015) (No. 1:15-cv-00011-JEB) (ECF No. 9-23)). See also Declaration of 3 Cecilia Menjivar, Ph.D, ¶ 15, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) 4 (No. 1:15-cv-00011-JEB) (ECF No. 38-1) (“[I]t is my conclusion that any 5 perception of lax border enforcement or detention policies does not meaningfully 6 contribute to the migration of families from Central America to the United 7 States.”). Instead, the main “push factors” to drive families from Central America 8 to migrate to the United States are the life-threatening conditions in their home 9 countries. Id. ¶ 15. “Compared to the other[] expected risks—such as rape or 10 death—detention is actually less serious and thus less likely to function as a 11 significant deterrent . . . .” Id. ¶ 23. 12 Although the government cites statistics purporting to show the impact of 13 Flores and this Court’s July 2015 Order on migration patterns, the government’s 14 data undermines, rather than confirms, its claims. For example, the government 15 asserts that 16 21 [a]fter a significant reduction in family units crossing the border in FY 2015 when the Government was holding families together, see ECF 184-1 at 8 ¶ 17, family crossings away from legal ports of entry nearly doubled in FY 2016, as measured by apprehensions . . . . The monthto-month figures show the sharp rise in family border crossings during 2015—from a figure in the range of 1,600 to 4,000 before this Court’s July 2015 decision, to a figure ranging from 5,000 to nearly 9,000 in the months after the decision. 22 Gov’t Br. 7-9. However, as explained in a recent analysis by legal scholars, “[t]he 23 government’s correlational statistics fail on their own terms.” Adam Cox & Ryan 24 Goodman, Detention of Migrant Families as “Deterrence”: Ethical Flaws and 25 Empirical 26 https://www.justsecurity.org/58354/detention-migrant-families-deterrence-ethical- 27 flaws-empirical-doubts/. As Cox and Goodman explain: 17 18 19 20 Doubts, justsecurity.org (June 22, 2018), 28 Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 10 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 15 of 20 Page ID #:17988 At first blush, these numbers do sound like there is at least a correlation between Flores and families’ migration decisions. But the apparent relationship is based on the selective use of only a small slice of apprehensions data . . . . [In fact,] border apprehensions began rising months before the decision. The [July 2015 Order] was simply not an inflection point. Forget causation: there’s not even a correlational relationship between Flores and family migration, as the government asserted in its brief. 1 2 3 4 5 6 Id. (emphasis added).7 7 8 9 10 11 12 In sum, even assuming detention-for-deterrence were permissible, the government has failed to establish that family detention in fact deters the migration of families seeking asylum in the United States, or that Flores has impacted migration patterns as it claims. The government plainly has not met its heavy burden of showing “significant changed circumstances” that could warrant modification of the Flores Agreement. 13 14 15 7 16 17 18 19 20 21 22 23 24 25 26 Cox and Goodman further explain that if the 2015 Flores decision really had changed the incentives for families, you would expect crossings for families and unaccompanied minors to respond differently after the decision. After all, unaccompanied minors had always been covered by the Flores settlement. The fight in 2015 was over whether the settlement also covered families. If the government wants to claim that the court’s decision applying Flores to families was the “treatment” that caused a migration surge by families, then unaccompanied minors are the “control group,” unaffected by the court decision. So do we see sharply different responses by these two different groups? None whatsoever . . . . The pattern of apprehensions for these two groups track[s] each other almost perfectly over time. This is devastating evidence against the government’s contention that rising rates of family apprehensions in the second half of 2015 were caused by the court’s July decision in Flores. 27 28 Cox & Goodman, Detention of Migrant Families, supra. Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 11 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 16 of 20 Page ID #:17989 2 THE GOVERNMENT MAY NOT SUBJECT FAMILIES TO BLANKET DETENTION FOR THE PENDENCY OF THEIR REMOVAL CASES. 3 The government’s ex parte motion is flawed for an additional reason. The 4 government’s motion appears to assume that if the Flores Agreement did not 5 require that children be released, then the government could subject the parents and 6 children to prolonged detention pending completion of their removal proceedings, 7 and thereby avoid the need for family separation. See, e.g., Gov’t Br. 5 (stating the 8 government’s interest in discussing “options . . . that will permit families to be kept 9 together at residential facilities during the time needed to complete immigration 10 proceedings” (emphasis added)). Similarly, the President’s recent Executive Order 11 directs the Secretary of Homeland Security “maintain custody of alien families 12 during the pendency of . . . immigration proceedings involving their members”, “to 13 the extent permitted by law.” See Executive Order, Affording Congress an 14 Opportunity to Address Family Separation, § 3(a), 2018 WL 3046068 (June 20, 15 2018). 1 II. 16 However, the categorical detention of families pending removal proceedings 17 is not permitted by law. Instead, the Due Process Clause, as well as the INA and its 18 implementing regulations, permit detention only upon an individualized 19 determination that the person presents a flight risk or danger to the community. As 20 explained above, see Point I.A., supra, the Due Process Clause requires “special 21 justifications” for the deprivation of liberty—deterrence not among them—and 22 “strong procedural protections” to ensure that detention is serving a legitimate 23 goal. Zadvydas, 533 U.S. at 690-91. As a result, immigration detention generally 24 requires an individualized determination of flight risk and danger to the 25 community. Id. See also United States v. Salerno, 481 U.S. 739, 751-52 (1987) 26 (affirming Bail Reform Act in light of procedures for “determining the 27 appropriateness of detention” based on individualized factors). By contrast, due 28 Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 12 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 17 of 20 Page ID #:17990 1 process does not permit the categorical use of civil detention contemplated by the 2 government’s motion. 3 Likewise, the INA does not permit the categorical detention of families 4 either. Section 1226(a) states only that, “pending a decision on whether the alien is 5 to be removed from the United States,” the government “may continue to detain 6 the arrested alien,” or “may release the alien” on bond or parole. 8 U.S.C. § 7 1226(a). The statute contains no authorization for a blanket policy of detaining 8 arrested migrant families, without regard to their individual circumstances, and 9 must be read to avoid the serious constitutional problems that such a policy would 10 present. See Zadvydas, 533 U.S. at 689. 11 The regulations implement this provision by permitting immigration judges 12 to individually review any case where ICE agents determine that an individual 13 should remain detained. See 8 C.F.R. § 1003.19(a). The regulations provide for the 14 discretionary release of a noncitizen on bond or other conditions of supervision if 15 the noncitizen “demonstrate[s] to the satisfaction of the officer that such release 16 would not pose a danger to property or persons, and that the alien is likely to 17 appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8). See also Matter of 18 Adeniji, 22 I. & N. Dec. 1102, 1112-13 (BIA 1999) (applying the same regulation 19 to bond determinations by the immigration judge); Matter of Guerra, 24 I. & N. 20 Dec. 37, 39 (BIA 2006) (requiring at discretionary determinations of flight risk and 21 danger have a “reasonable foundation”). As the Supreme Court has repeatedly 22 confirmed in the immigration context, this sort of “discretion” inherently requires 23 some form of individualized determination. 24 For example, in Reno v. Flores, 507 U.S. 292 (1993), the Court was asked to 25 interpret the Attorney General’s “broad discretion” to release or detain aliens 26 pending a final determination of deportability. Id. at 295-96 & n.1. Although the 27 Court held that certain presumptions guiding the exercise of discretion may be 28 appropriate, it also recognized that an “exercise of discretion . . . requires ‘some Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 13 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 18 of 20 Page ID #:17991 1 level of individualized determination.’” Id. at 313 (quoting INS v. Nat'l Ctr. for 2 Immigrants' Rights, Inc. (“NCIR”), 502 U.S. 183, 194 (1991)). The Court applied 3 similar reasoning in NCIR, in which it interpreted a statute that conferred discretion 4 on the Attorney General to impose conditions on the release of excludable 5 noncitizens. NCIR, 502 U.S. at 184-85. Again, the Court held that “the lawful 6 exercise of the Attorney General’s discretion . . . requires some level of 7 individualized determination,” because “in the absence of such judgments, the 8 legitimate exercise of discretion is impossible in this context.” Id. at 194-95. More 9 broadly, the Supreme Court has held that “if the word ‘discretion’ means anything 10 in a statutory or administrative grant of power, it means that the recipient must 11 exercise his authority according to his own understanding and conscience.” United 12 States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954). Discretion 13 does not mean categorical detention, regardless of the individual’s facts and 14 circumstances.8 15 In contrast to families detained under Section 1226(a), “arriving” noncitizens who request asylum at a port-of-entry to the United States are detained pursuant to 8 U.S.C. § 1225(b)(1) and not eligible for bond hearings before an immigration judge. See Jennings, 138 S. Ct. at 836-37, 842-46. However, pursuant to DHS’s own policy directive, arriving noncitizens who establish a credible fear of persecution are entitled to an individualized “parole” review by DHS to determine if they pose no danger or flight and, absent such a determination, their release from detention is “in the public interest.” See ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture, ¶ 6.2 (Dec. 8, 2009), https://www.ice.gov/doclib/dro/pdf/11002.1-hdparole_of_arriving_aliens_found_credible_fear.pdf (providing that “absent additional factors,” a noncitizen with a credible fear who establishes his or her identity and presents no flight risk or danger should be paroled “on the basis that his or her continued detention is not in the public interest” and that “[e]ach alien’s eligibility for parole should be considered on its own merits and based on the facts of the individual alien’s case”). The Secretary of Homeland Security stated in February 2017 that the Parole Directive “remain[s] in full force and effect” pending “further review and evaluation.” Memorandum from John Kelly, Secretary of Homeland Security, Implementing the President’s Border Security and 8 16 17 18 19 20 21 22 23 24 25 26 27 28 (cont’d) Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 14 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 19 of 20 Page ID #:17992 1 The requirement of individualized custody reviews especially matters 2 because—contrary to the government’s assertions, see, e.g., Gov’t Br. 1—families 3 generally do not need to be detained to ensure their appearance at court hearings. 4 Indeed, the government’s own data shows that families are highly likely to appear 5 for their court hearings. A recent comprehensive study of data from the 6 Department of Justice’s Executive Office of Immigration Review shows that, 7 between 2001-2016, 86% of family detainees attended all their court hearings. 8 Families who applied for asylum were especially likely to attend future court 9 hearings, with 96% attending all their hearings. And asylum applicants with 10 lawyers had an even higher appearance rate: 97% attended all their hearings during 11 the study period. Ingrid Eagly, Steven Shafer, & Jana Whalley, Detaining 12 Families: a Study of Asylum Adjudication in Family Detention, 106 Calif. L. Rev. 13 785, 848 (June 2018), available at http://www.californialawreview.org/wp- 14 content/uploads/2018/06/4-Eagly_Shafer_Whalley.pdf. 15 In sum, the Constitution, INA, and regulations prohibit the categorical 16 detention of families pending removal proceedings. Instead, the government may 17 detain families only upon an individualized determination that the person presents 18 a flight risk or danger that makes his or her detention necessary.9 19 20 21 22 23 24 25 26 27 28 Immigration Enforcement Improvements Policies, at 9-10 (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementingthe-Presidents-Border-Security-Immigration-Enforcement-ImprovementPolicies.pdf. 9 Finally, the government claims that modification of the Flores Agreement to permit the prolonged detention of families is necessary to avoid family separation—that is, the detention of the parent in an ICE facility and separate placement of the child in the custody of the Department of Health and Human Service’s Office of Refugee Resettlement. See, e.g., Gov’t Br. 1. However, this is a false choice. In the overwhelming majority of cases, parents pose no danger or flight risk. Thus, there is no legal basis to keep them in detention at all, and families should be released together to the community. See Point II, supra. Moreover, family separation is not objectionable when a parent makes the decision (cont’d) Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 15 Case 2:85-cv-04544-DMG-AGR Document 445-1 Filed 06/29/18 Page 20 of 20 Page ID #:17993 1 2 3 4 CONCLUSION For the foregoing reasons, the government’s ex parte application for relief from the Flores Agreement should be denied. 5 6 Respectfully submitted, 7 ACLU IMMIGRANTS’ RIGHTS PROJECT 8 ACLU FOUNDATION OF SOUTHERN 9 CALIFORNIA 10 11 Dated: June 29, 2018 By: 12 13 /s/ Michael K.T. Tan MICHAEL K.T. TAN JUDY RABINOVITZ AHILAN T. ARULANANTHAM Attorneys for Amici Curiae 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that temporary separation is in the best interests of their child. What violates due process is the government’s policy of separating families over the objection of a parent, and the Flores Agreement in no way requires this. The Flores Agreement was intended to protect children. Proposed Brief by Amici Curiae ACLU Immigrants’ Rights Project and ACLU Foundation of Southern California 16