Case 3:18-cv-00428-DMS-MDD Document 111 Filed 07/16/18 PageID.2164 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Christopher T. Casamassima (SBN #211280) chris.casamassima@wilmerhale.com WILMER CUTLER PICKERING HALE & DORR LLP 350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 Telephone: (213) 443-5300 Facsimile: (213) 443-5400 Noah A. Levine (pro hac vice to be filed) Jamie S. Dycus (pro hac vice to be filed) Adriel I. Cepeda Derieux (pro hac vice to be filed) WILMER CUTLER PICKERING HALE & DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Telephone: (212) 230-8800 Facsimile: (212) 230-8888 Attorneys for Amici Curiae Scholars of Habeas Corpus and Constitutional Law 16 UNITED STATES DISTRICT COURT 17 SOUTHERN DISTRICT OF CALIFORNIA 18 19 20 21 22 23 24 Ms. L., Case No.: 3:18-CV-0428 Petitioner-Plaintiff, District Judge: Dana M. Sabraw Courtroom: 13A v. U.S. Immigration and Customs Enforcement, et al., APPLICATION OF SCHOLARS OF HABEAS CORPUS AND CONSTITUTIONAL LAW TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR STAY OF REMOVAL AND EMERGENCY TRO PENDING RULING ON THE STAY MOTION Respondents-Defendants. 25 26 27 28 1 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111 Filed 07/16/18 PageID.2165 Page 2 of 4 1 APPLICATION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 2 Applicants, as proposed amici curiae, are scholars with expertise in the law of 3 habeas corpus and constitutional law who believe it would assist the Court to offer their 4 perspectives on the history and application of the habeas writ and the Suspension Clause. 5 Amici appear in their individual capacities. Respective institutional affiliations are 6 provided for identification purposes only. Applicants are: 7 8 9 10 11 12 Erwin Chemerinsky, Jesse H. Choper Distinguished Professor of Law and Dean, University of California, Berkeley School of Law. Lee Kovarsky, Professor of Law, University of Maryland Francis King Carey School of Law. Christopher N. Lasch, Associate Professor of Law, University of Denver Sturm College of Law. 13 James S. Liebman, Simon H. Rifkind Professor, Columbia Law School. 14 Hiroshi Motomura, Susan Westerberg Prager Distinguished Professor of Law, 15 16 17 UCLA School of Law. Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School. 18 Judith Resnik, Arthur Liman Professor of Law, Yale Law School. 19 Michael Wishnie, William O. Douglas Clinical Professor of Law, Yale Law 20 21 22 23 School. Stephen I. Vladeck, A. Dalton Cross Professor in Law, University of Texas School of Law. Amici have collectively spent many years on research, study, and writing about the 24 writ of habeas corpus and the Suspension Clause of Article I, Section 9 of the 25 Constitution, and they have a professional interest in ensuring that this Court is accurately 26 informed regarding the history and application of the habeas writ and the Suspension 27 Clause. 28 Federal district courts possess inherent authority to accept briefs submitted by 2 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111 Filed 07/16/18 PageID.2166 Page 3 of 4 1 amici curiae, Padilla v. Beard, No. 2:14-CV-1118, 2017 WL 1364666, at *5 (E.D. Cal. 2 Apr. 14, 2017), and retain “broad discretion regarding the appointment of amici,” 3 Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). Amicus briefs are “normally 4 allowed” when, among other considerations, “the amicus has unique information or 5 perspective that can help the court beyond the help that the lawyers for the parties are 6 able to provide.” Community Ass’n for Restoration of Env’t (CARE) v. DeRuyter Bros. 7 Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (citing Northern Secs. Co. v. United 8 States, 191 U.S. 555, 556 (1903)). “There are no strict prerequisites that must be 9 established prior to qualifying for amicus status; an individual seeking to appear as 10 amicus must merely make a showing that his participation is useful to or otherwise 11 desirable to the court.” In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 12 1991) (quoting United States v. Louisiana, 751 F. Supp. 608, 620 (E.D. La. 1990)). See 13 also Dkt. 17, 23 (granting leave to file amicus curiae briefs in this action). 14 Applicants submit that there is good cause for the Court to accept their brief 15 amicus curiae and consider their views on the subject. 16 DATED: July 16, 2018 17 WILMER CUTLER PICKERING HALE & DORR LLP 18 19 20 By: /s/ Christopher T. Casamassima Christopher T. Casamassima 21 22 Attorneys for Amici Curiae Scholars 23 of Habeas Corpus and Constitutional Law 24 25 26 27 28 3 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111 Filed 07/16/18 PageID.2167 Page 4 of 4 1 2 CERTIFICATE OF SERVICE I hereby certify that on this sixteenth day of July, 2018, I electronically transmitted 3 the foregoing APPLICATION OF SCHOLARS OF HABEAS CORPUS AND 4 CONSTITUTIONAL LAW TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF 5 PLAINTIFFS’ MOTION FOR STAY OF REMOVAL AND EMERGENCY TRO 6 PENDING RULING ON THE STAY MOTION to the Clerk’s office using the 7 CM/ECF system, which will send a notice of filing to all counsel of record. 8 9 10 /s/ Chris Casamassima Christopher T. Casamassima 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111-1 Filed 07/16/18 PageID.2168 Page 1 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Christopher T. Casamassima (SBN #211280) chris.casamassima@wilmerhale.com WILMER CUTLER PICKERING HALE & DORR LLP 350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 Telephone: (213) 443-5300 Facsimile: (213) 443-5400 Noah A. Levine (pro hac vice to be filed) Jamie S. Dycus (pro hac vice to be filed) Adriel I. Cepeda Derieux (pro hac vice to be filed) WILMER CUTLER PICKERING HALE & DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Telephone: (212) 212 230-8800 Facsimile: (212) 230-8888 Attorneys for Amici Curiae Scholars of Habeas Corpus and Constitutional Law 16 UNITED STATES DISTRICT COURT 17 SOUTHERN DISTRICT OF CALIFORNIA 18 19 20 21 22 23 24 Ms. L., Case No.: 3:18-CV-0428 Petitioner-Plaintiff, BRIEF OF SCHOLARS OF HABEAS CORPUS AND CONSTITUTIONAL LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR STAY OF REMOVAL AND EMERGENCY TRO PENDING RULING ON THE STAY MOTION v. U.S. Immigration and Customs Enforcement, et al., Respondents-Defendants. 25 26 District Judge: Dana M. Sabraw Courtroom: 13A 27 28 1 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111-1 Filed 07/16/18 PageID.2169 Page 2 of 8 1 INTEREST OF AMICI CURIAE 2 Amici curiae are nine scholars of habeas corpus and constitutional law, including 3 authors of leading textbooks in immigration and constitutional law. Amici have written 4 and edited numerous works about the writ of habeas corpus and immigration law upon 5 which federal courts—including the U.S. Supreme Court—have relied. Amici are:1 6 7 Erwin Chemerinsky, Jesse H. Choper Distinguished Professor of Law and Dean, University of California, Berkeley School of Law. 8 9 Lee Kovarsky, Professor of Law, University of Maryland Francis King Carey School of Law. 10 11 Christopher N. Lasch, Associate Professor of Law, University of Denver Sturm College of Law. 12 James S. Liebman, Simon H. Rifkind Professor, Columbia Law School. 13 Hiroshi Motomura, Susan Westerberg Prager Distinguished Professor of Law, 14 UCLA School of Law. 15 16 Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School. 17 Judith Resnik, Arthur Liman Professor of Law, Yale Law School. 18 Michael Wishnie, William O. Douglas Clinical Professor of Law, Yale Law 19 School. 20 21 Stephen I. Vladeck, A. Dalton Cross Professor in Law, University of Texas School of Law. 22 ARGUMENT 23 Amici curiae file this brief to address an issue that arose at the conference before 24 the Court last Friday, July 13, 2018. Counsel for the class, Mr. Gelernt, noted on-the- 25 ground reports of imminent plans by the government to reunite families and remove them 26 27 28 1 Amici appear in their individual capacities. Respective institutional affiliations are provided for identification purposes only. 2 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111-1 Filed 07/16/18 PageID.2170 Page 3 of 8 1 immediately, before each family can have an informed discussion of any claims the child 2 or the parent may have to seek relief from removal. Based on the Second Amended 3 Complaint and this Court’s orders, Amici understand that some family members have 4 potentially meritorious claims for avoiding removal, including because they are likely to 5 face persecution upon return to their countries of origin. Counsel for the government 6 suggested that this Court lacks authority to address class counsel’s stated concern. Amici 7 file this short brief to explain why, contrary to the government’s suggestion, this Court 8 must have that power in order to ensure its own ability to provide effective and timely 9 reunification relief in this case, including to ensure the ability of class members and their 10 children, upon reunification, to communicate and fairly present any claims for relief from 11 removal they may have. 12 The government’s position that this Court is powerless to require timely 13 reunification, sufficiently in advance of any physical act of removal, cannot be reconciled 14 with the Suspension Clause of Article I, Section 9 of the Constitution. This Court’s order 15 granting classwide preliminary injunctive relief describes a key problem with the 16 government’s conduct as its failure to reunite families until the time of removal. See Dkt. 17 83, at 11, 15. It was in part that failure and the resulting effect on the ability of parents 18 and children to present their claims for relief from removal—a “number of different 19 scenarios, all of which are negative – some profoundly so,” id. at 15—that led this Court 20 to enter the preliminary injunction notwithstanding the June 20, 2018 Executive Order, 21 id. at 11. 22 The Suspension Clause forbids the government from denying class members and 23 their children, through the delay of reunification until the eve of physical removal from 24 the country, an effective means to fairly consider and present valid grounds for relief 25 from removal. As an initial matter, it is by now well settled that the Suspension Clause 26 applies to judicial review of government actions to remove immigrants from the United 27 States. See INS v. St. Cyr, 533 U.S. 289, 300 (2001) (“Because of [the Suspension] 28 Clause, some ‘judicial intervention in deportation cases’ is unquestionably ‘required by 3 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111-1 Filed 07/16/18 PageID.2171 Page 4 of 8 1 the Constitution.’” (quoting Heikkila v. Barber, 345 U.S. 229, 235 (1953))). The writ of 2 habeas corpus is, “[a]t its historical core,” fundamentally a tool to “review[] the legality 3 of Executive detention,” St. Cyr, 533 U.S. at 301, and removal of an immigrant from the 4 United States by the Executive Branch implicates detention in at least two respects. Not 5 only does the government, as here, physically detain persons in contemplation of future 6 removal, but also, as long recognized, the act of removal itself inherently involves 7 confinement and restraint of the person’s physical liberty. See Chin Yow v. United States, 8 208 U.S. 8, 12 (1908) (“It would be difficult to say that [an alien] was not imprisoned, 9 theoretically as well as practically, when to turn him back meant that he must get into a 10 11 vessel against his wish and be carried to China.”). The suggestion that the government can reunite parents and children only at the 12 last moment before removal, with the result that families have no effective means to 13 consider and present claims for relief, including credible asylum claims, flouts the 14 Suspension Clause. Supreme Court jurisprudence and the history of the writ of habeas 15 corpus demonstrate that an essential attribute of the Great Writ is the power of the habeas 16 court to grant effective relief. The Supreme Court’s decision in Boumediene v. Bush, 553 17 U.S. 723 (2008), confirms that the privilege of habeas corpus, and thus the minimum 18 attribute of any adequate substitute, entails the power of the court to grant effective relief 19 to the habeas petitioner. There, the Court held both that a petitioner is entitled “to a 20 meaningful opportunity to demonstrate that he is being held” unlawfully and that “the 21 habeas court must have the power to order the conditional release of an individual 22 unlawfully detained,” calling these “the easily identified attributes of any constitutionally 23 adequate habeas corpus proceeding.” Id. at 779. Ultimately, what is essential is that “the 24 judicial officer must have adequate authority to make a determination in light of the 25 relevant law and facts and to formulate and issue appropriate orders for relief, including, 26 if necessary, an order directing the prisoner’s release.” Id. at 787. Those conditions 27 cannot be met if, as here, the government has detained a child separately from the person 28 4 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111-1 Filed 07/16/18 PageID.2172 Page 5 of 8 1 responsible for safeguarding the child’s legal rights—her parent—until it is too late for 2 the parent to do so. 3 Importantly, the historical scope of the writ reached not just the court’s jurisdiction 4 to rule upon the lawfulness of the petitioner’s restraint, but also the court’s power to 5 ensure effective relief by, as is especially important in this case, controlling the location 6 of the petitioner. For example, to preserve their remedial power over pending habeas 7 petitions, United States courts issued orders to respondent custodians and held in 8 contempt those who attempted to transfer petitioners outside the realm of the writ. 9 See, e.g., Ex parte Young, 50 F. 526 (C.C.E.D. Tenn. 1892) (confirming lawfulness of 10 holding father in contempt for transferring his child out of state to avoid habeas); United 11 States v. Davis, 25 F. Cas. 775 (C.C.D.C. 1840) (No. 14,926) (ordering imprisonment of 12 a custodian until he produced enslaved persons he had allegedly removed from the 13 District of Columbia to avoid writ for their freedom); United States v. Green, 26 F. Cas. 14 30 (C.C.D.R.I. 1824) (No. 15,256) (bypassing attachment where custodian was in court 15 and could be compelled to testify); Hurd, A Treatise on the Right of Personal Liberty and 16 on the Writ of Habeas Corpus and the Practice Connected with It 240-42 (1858). 17 Nineteenth-century state statutes provided for punishment of the same types of 18 acts, making it a crime to conceal or transfer custody of a prisoner with the intent to 19 evade a writ of habeas corpus. For example, in 1825, Missouri law made it a punishable 20 offense for a custodian to transfer a prisoner to the custody of another or to conceal him, 21 “with intent to avoid the operation of [the] writ.” 1825 Mo. Laws 426 (1825). And in 22 1845, the Illinois legislature likewise provided for punishment for the transfer or 23 concealment of a prisoner with “the intent to avoid the operation of [the habeas corpus] 24 writ.” 48 Ill. Rev. Stat. § 14 (1845). An 1858 treatise catalogued similar statutes in 25 several states: “In Maine, Massachusetts and Delaware, the concealing of the prisoner or 26 changing his custody, with the intent to elude the service of the writ of habeas corpus, is 27 prohibited under severe penalties …. In Indiana, Arkansas and Alabama, the act is 28 declared a misdemeanor, and the offender subject to fine and imprisonment.” Hurd, 5 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111-1 Filed 07/16/18 PageID.2173 Page 6 of 8 1 supra, at 237. The federal decisions and state statutes reflect a common, fundamental 2 objective of the law of habeas corpus: controlling the location of the prisoner to ensure 3 the ability of the habeas court to render effective relief. 4 Far from an ancillary feature, control over the custody of a petitioner was thought 5 essential to the courts’ remedial power under the Great Writ. After all, a court could not 6 very well “direct[] the prisoner’s release” or issue other “appropriate orders for relief,” 7 Boumediene, 553 U.S. at 787, if the prisoner was beyond the reach of the writ and the 8 court’s jurisdiction. The Supreme Court has consistently acknowledged this point. For 9 example, in Lonchar v. Thomas, 517 U.S. 314 (1996), the Supreme Court recognized that 10 denying a stay necessary to prevent a petitioner’s execution would effectively amount to 11 a dismissal of his petition and thus a denial of “the protection of the Great Writ entirely, 12 risking injury to an important interest in human liberty.” Id. at 319, 324. 13 Just as denying a stay necessary to prevent a petitioner’s execution vitiates “the 14 protection of the Great Writ,” so too would removal here of class members or their 15 children before the intact families can communicate about and present their potential 16 grounds for relief from removal, including likely persecution upon return to their 17 countries of origin. Forcing the parents to waive their rights, or the rights of their 18 children, by delaying reunification until the eve of their immediate removal, all free from 19 judicial intervention, would deprive this Court of its ability to issue “appropriate orders 20 for relief,” Boumediene, 553 U.S. at 787, and deprive the family members of their right to 21 a “meaningful opportunity to demonstrate” that their detention is unlawful. The 22 Suspension Clause forbids such a result and preserves to this Court the power to issue 23 appropriate orders of relief, including if necessary, a stay of removal. 24 Finally, and distinct from the considerations related to habeas corpus outlined 25 above, it is well settled that a court has “‘inherent power to enforce compliance with [its 26 own] lawful orders.’” United States v. Yacoubian, 24 F.3d 1, 5 (9th Cir. 1994) (quoting 27 Shillitani v. United States, 384 U.S. 364, 370 (1966)). This inherent authority is 28 “governed not by rule or statute but by the control necessarily vested in courts to manage 6 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111-1 Filed 07/16/18 PageID.2174 Page 7 of 8 1 their own affairs so as to achieve the orderly and expeditious disposition of cases.” 2 Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). Here, as the Court has explained, 3 class members’ potential claims for relief from removal are “entitled to careful 4 consideration by government officials.” Dkt. #83, at 14. As the Court has also found, 5 however, “[t]he lack of effective methods for communication between parents and 6 children who have been separated has … had a profoundly negative effect on the parents’ 7 criminal and immigration proceedings, as well as the children’s’ immigration 8 proceedings.” Id. at 15. Because the Court’s order granting a preliminary injunction 9 seeks to avert such harms, the Court’s inherent authority to enforce that ruling easily 10 encompasses Plaintiffs’ request to protect them from the same harms. 11 12 13 DATED: July 16, 2018 WILMER CUTLER PICKERING HALE & DORR LLP 14 15 16 By: /s/ Christopher T. Casamassima Christopher T. Casamassima 17 Attorneys for Amici Curiae Scholars 18 of Habeas Corpus and Constitutional Law 19 20 21 22 23 24 25 26 27 28 7 3:18-CV-0428 Case 3:18-cv-00428-DMS-MDD Document 111-1 Filed 07/16/18 PageID.2175 Page 8 of 8 1 2 CERTIFICATE OF SERVICE I hereby certify that on this sixteenth day of July, 2018, I electronically transmitted 3 the foregoing BRIEF OF SCHOLARS OF HABEAS CORPUS AND 4 CONSTITUTIONAL LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR 5 STAY OF REMOVAL AND EMERGENCY TRO PENDING RULING ON THE 6 STAY MOTION to the Clerk’s office using the CM/ECF system, which will send a 7 notice of filing to all counsel of record. 8 9 10 /s/ Chris Casamassima Christopher T. Casamassima 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:18-CV-0428