US Supreme Court Briefs

No. 00-38

In the Supreme Court of the United States

JANET RENO, ATTORNEY GENERAL, ET AL., PETITIONERS

v.

KIM HO MA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

In the Supreme Court of the United States

 

No. 00-38

JANET RENO, ATTORNEY GENERAL, ET AL., PETITIONERS

v.

KIM HO MA

 

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

 

REPLY BRIEF FOR THE PETITIONERS

 

The court of appeals' ruling that the Attorney General is without authorityunder 8 U.S.C. 1231(a)(6) (Supp. IV 1998) to detain respondent beyond the90-day removal period set forth in 8 U.S.C. 1231(a)(1)(A) (Supp. IV 1998)contradicts the express language of Section 1231(a)(6), which provides thatcertain aliens-including aggravated felons and any alien who "has beendetermined by the Attorney General to be a risk to the community or unlikelyto comply with the order of removal"-"may be detained beyond theremoval period" (emphasis added). The Ninth Circuit's ruling squarelyconflicts with the decision of the Tenth Circuit in Duy Dac Ho v. Greene,204 F.3d 1045 (2000), which held that the Attorney General is authorizedby Section 1231(a)(6) to detain such aliens and that that detention is constitutional.The result reached by the Ninth Circuit also cannot be reconciled with Zadvydasv. Underdown, 185 F.3d 279 (5th Cir. 1999), petition for cert. pending,No. 99-7791, which sustained the continued detention of an alien under Section1231(a)(6) in comparable circumstances. The ruling below significantly hindersthe Attorney General's ability to enforce the immigration laws and to protectthe public from criminal aliens in the Ninth Circuit, which covers a substantialpercentage of the aliens under final orders of removal who have been detainedunder Section 1231(a)(6). Review by this Court therefore is plainly warrantedto determine the scope of the Attorney General's detention authority underSection 1231(a)(6).

1. Respondent concedes (Br. in Opp. 17, 22) that the Ninth Circuit'sdecision in this case squarely conflicts with the Tenth Circuit's decisionin Ho. Respondent nonetheless contends (id. at 13, 17) that the Court shouldnot resolve the conflict until the Tenth Circuit decides another case raisingthe issue. Respondent does not deny, however, that the Tenth Circuit's decisionin Ho is final and constitutes binding precedent in that circuit. The circuitconflict therefore is ripe for review.1 Moreover, the Third Circuit alsohas held that Section 1231(a)(6) authorizes the detention of aliens beyondthe 90-day removal period even though they cannot be promptly removed. ChiThon Ngo v. INS, 192 F.3d 390 (1999); see Pet. 23 n.14.2

The result in this case likewise cannot be reconciled with Zadvydas,which upheld the continued detention of an alien in comparable circumstances.The Fifth Circuit in that case did not question the Attorney General's statutoryauthority to detain the alien, see 185 F.3d at 286 (Section 1231(a)(6) "authorizesdetention but makes it discretionary beyond an initial ninety day period"),and it held that the alien's continued detention (subject to periodic reviewof his dangerousness and flight risk) comported with due process, even thoughthere was not yet a country willing to accept his return and it would be"difficult at best" to locate such a country. Id. at 291. TheFifth Circuit concluded that, "[g]iven the traditional deference weshow to the other branches in matters of immigration policy, judicial intrusionshould not be considered, particularly where there are reasonable avenuesfor parole, until there is a more definitive showing that deportation isimpossible." Id. at 294. (emphasis added). It is clear that Zadvydaswould be resolved differently by the Ninth Circuit, which requires the immediaterelease of an alien who cannot be removed in the reasonably foreseeablefuture. See Pet. App. 31a.

In the response we filed last May to the certiorari petition in Zadvydas,we pointed out that the result in that case is inconsistent with the resultreached by the Ninth Circuit in this case. 99-7791 Br. in Opp. 16. We neverthelessopposed review in Zadvydas at that time because no court of appeals hadreached a contrary result on the constitutional issue, the Fifth Circuithad not addressed (and the petitioner did not present to this Court) thestatutory argument raised by respondent in this case, and review by theCourt of the constitutional issue in Zadvydas would be premature in lightof the conflicting rulings by the Ninth and Tenth Circuits on the antecedentquestion of statutory interpretation, which the government had then soughtto eliminate by filing a petition for rehearing en banc in this case. Id.at 16-18. Subsequently, however, we informed the Court by letters datedJune 9 and 20, 2000, that the Ninth Circuit had denied rehearing en bancand that the Solicitor General had authorized the filing of a certioraripetition in this case. The Court did not act on the certiorari petitionin Zadvydas after we submitted those letters, and it remains pending.

We have now concluded - in light of the denial of rehearing en banc inthis case, the subsequent filing of this certiorari petition and respondent'sbrief in opposition-that the Court should grant certiorari in Zadvydas aswell as in this case. In his brief in opposition in this case, respondentplaces central reliance on the argument that the Ninth Circuit's statutoryinterpretation is supported by the doctrine that statutes should be interpretedin a manner that avoids a serious constitutional question See Br. in Opp.i, 3, 11, 14, 18-19, 26, 31-32. Because the constitutional arguments thatrespondent relies upon in defense of the Ninth Circuit's statutory rulingwere rejected by the Fifth Circuit in Zadvydas, we believe that it wouldbe appropriate for the Court to grant certiorari in this case and in Zadvydasto resolve both the statutory and the constitutional challenges to detentionunder Section 1231(a)(6) at the same time.

Respondent misapplies the constitutional avoidance doctrine by repeatedlycharacterizing his detention as "indefinite," which in his viewraises a serious constitutional question in these circumstances. See Br.in Opp. i, 3, 11, 18, 20, 26, 28, 30, 32, 34. As we explain in the certioraripetition (at 26), however, the comprehensive administrative procedures forreview of aliens in respondent's position (see 8 C.F.R. 241.4; Pet. App.64a-76a, 90a-91a) forecloses any characterization of his detention as permanentor indefinite. Pet. 26-28. Respondent was afforded an ongoing possibilityof release if he no longer posed a risk of danger or flight. And INS's detentionof respondent will necessarily cease upon his removal from this country-amatter on which progress is continuing to be made through internationalnegotiations (see Pet. 17 n.10).3 See Zadvydas, 185 F.3d at 291, 294 (alien'sprolonged detention pending removal is not permanent or indefinite becausethe alien "may be released when it is determined that he is no longereither a threat to the community or a flight risk"; the alien is entitledto automatic, periodic administrative review of his custody; and it hasnot been clearly established that there is no meaningful possibility oflocating a country that would accept the alien's removal or that removalis "impossible"). In any event, the Ninth Circuit's statutoryinterpretation is not limited to "indefinite" detention; it prohibitseven one day of detention of an alien in respondent's position.

2. Quite aside from the existence of conflicting rulings in other circuits,the adverse impact of the decision below

 

within the Ninth Circuit itself has grown substantially even since thecertiorari petition was filed. See Pet. 15-16. As of September 15, 2000,there are approximately 487 habeas corpus actions currently pending in thedistrict courts in the Ninth Circuit and approximately 149 appeals currentlypending in the Ninth Circuit involving legal issues that are the same orsubstantially similar to those presented by this case, and the Ninth Circuithas already summarily affirmed district court release orders in eleven additionalcases in light of the decision below. So long as the Ninth Circuit's decisionin this case stands as controlling precedent in that Circuit, the districtcourts are required in such cases to order the release by the INS of anyalien who is situated similarly to respondent, regardless of the degreeof danger or risk of flight he presents if released.

Respondent attempts to discount that broad impact by asserting (Br. inOpp. 14) that the courts in the Ninth Circuit are not summarily releasingaliens, but "continue to reach individualized release decisions basedupon the facts of the particular case." See also id. at 23; Br. inOpp. App. 21a-24a. Those assertions are misleading. Under the Ninth Circuit'sruling, the facts pertaining to the risk of danger or flight posed by therelease of a particular alien are wholly irrelevant if a court determinesthat there is not a reasonable likelihood that the alien will be removedin the reasonably foreseeable future. Pet. App. 23a, 25a. Accordingly, whena court finds that there is not a reasonable likelihood of removing an alienin the reasonably foreseeable future, the alien is ordered released, regardlessof the basis for the Attorney General's decision under Section 1231(a)(6)to detain the alien. Indeed, respondent himself elsewhere insists (Br. inOpp. 4 n.2) that the risk of danger or flight posed by his release is notrelevant to the question of statutory construction presented by this case-anassertion that cannot be squared with Section 1231(a)(6)'s express authorizationfor the Attorney General to detain an alien "who has been determinedby the Attorney General to be a risk to the community or unlikely to complywith the order of removal."

3. Respondent contends (Br. in Opp. 13, 21-22) that this Court's reviewof the statutory question should await the INS's adoption of its final regulationsfurther formalizing the administrative process for periodic review of decisionsto detain aliens such as respondent under Section 1231(a)(6). Respondentsuggests (Br. in Opp. 13) that "the INS may remedy any present conflicton its own," and asserts (id. at 21 & n.21) that the final regulationsadopted by the INS may be consistent with the Ninth Circuit's ruling. Thatsuggestion is without merit.

The very premise of the proposed regulations is that the Attorney Generaldoes have the authority, as both a statutory and a constitutional matter,to detain aliens like respondent, who cannot be returned to their countryof nationality for the time being, but who are aggravated felons or aliensfound by the Attorney General to pose a risk of flight or danger to thecommunity if released. 65 Fed. Reg. 40,540 (June 30, 2000). The proposedregulations are designed to clarify and codify the procedures for decidinghow to exercise that authority. Any delay in resolving questions concerningthe scope of the Attorney General's authority under Section 1231(a)(6) willundermine the validity of the INS's regulations, which are designed to ensurethe evenhanded exercise of that authority nationwide. Indeed, if the NinthCircuit's ruling remains binding precedent, courts will require the AttorneyGeneral to release all aliens in respondent's position in that circuit,without the exercise of the individualized judgment and discretion that Section 1231(a)(6) expresslycontemplates and that her proposed regulations are designed to implement.

4. Respondent argues (Br. in Opp. 23-25) that further review of thiscase is not warranted because continued deten-tion of criminal aliens suchas respondent is not necessary. Respondent asserts that the INS is "stillable to supervise" aliens after they are released and is able to "compeltheir appearances." Id. at 23. But supervision conditions can be violated,as they were by respondent when he assaulted a female companion, thus posinga danger to the community. That is why the INS's custody determination takesinto account, among other things, the alien's probation history and evidenceof any rehabilitative effort or recidivism. See 8 C.F.R. 241.4(a); Pet.App. 78a. Similarly, every year many criminals and aliens fail to respondto notices to appear for various legal proceedings. That is why the INS'scustody determination takes into account any history of failures to appear.8 C.F.R. 241.4(a); Pet. App. 78a. In any event, respondent simply ignoresthe fact that Congress explicitly provided that an alien's "risk tothe community" and likelihood of "comply[ing] with the order ofremoval" are factors the Attorney General may take into account inmaking detention decisions under Section 1231(a)(6).

Respondent's fact-bound attempts (Br. in Opp. 4 n.2; 7 & nn.8, 9;8 n.10; 10 n.12; 21 n.21; 24-25 & nn.25, 26) to convince the Court thatthe INS's continued detention of him was not necessary because he did notpose a danger to the community and would abide by release conditions ignoreboth the record in this case and the fact that, under the court of appeals'ruling, the INS is prohibited from detaining respondent and all other alienscomparably situated whether or not they pose a serious danger to the communityor would comply with release conditions.4

5. As we demonstrate in the certiorari petition (at 17-23), the courtof appeals' construction of Section 1231(a)(6) is fatally flawed. The courtrewrites an unambiguous statutory provision that was specifically designed,following a series of legislative amendments, to authorize the AttorneyGeneral to detain dangerous criminal aliens who are under final orders ofremoval.

The court of appeals' interpretation of Section 1231(a)(6) to allow detentionbeyond the 90-day period only for a "reasonable" time, Pet. App.25a, finds no support in the text of the statute. To the contrary, the statute'stext, structure, and history reveal that Congress intended that the AttorneyGeneral be authorized to detain aggravated felons and aliens who she foundto pose a risk to the community or a likelihood of noncompliance with theremoval order. Pet. 17-23.

In defending the Ninth Circuit's addition of a judicially fashioned "reasonable"time limitation to Section 1231 (a)(6), respondent relies (Br. in Opp. 27-28,30) on lower-court decisions rendered approximately 70 years ago under statutoryprovisions repealed in 1952. Those long-since superseded statutory provisionsand decisions have no bearing on the present question.

As we explain in the certiorari petition (at 18-22), since at least 1990,Congress has unequivocally exempted the detention of aggravated felons followingentry of a final order of deportation from any statutory time limit thatapplied generally to other aliens. Indeed, Congress has consistently allowed,and at times mandated, that the Attorney General continue to detain aggravatedfelons. Nothing in the last decade of amendments to the Immigration andNationality Act suggests that Congress intended that after 1996, insteadof having six months to effectuate removal with varying degrees of authorityto detain criminal aliens thereafter, as under prior law, the Attorney Generalwould now be subject to a judicially imposed limitation of only a "reasonable"time beyond 90 days, which in this case was deemed no time at all.

To the extent respondent identifies any ambiguity in the statute (seeBr. in Opp. 26), however, that is no basis for adoption of the court ofappeals' interpretation. Rather, it is the INS's plainly reasonable interpretationof Section 1231 (a)(6) that is entitled to judicial deference under ChevronU.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), and INS v. Aguirre-Aguirre, 526U.S. 415, 425 (1999). See Pet. 18.

* * * * *

For the foregoing reasons and those stated in the petition, the petitionfor a writ of certiorari should be granted and the case should be consolidatedfor oral argument with Zadvydas v. Underdown, No. 99-7791, in which we aretoday filing a supplemental brief suggesting that the Court grant certiorariin that case as well.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General

SEPTEMBER 2000

1 Contrary to respondent's contention (Br. in Opp. 17), the fact that,in light of Ho, an alien has sought initial en banc consideration in anothercase raising the same issues in the Tenth Circuit does not render the squareconflict between the Ninth and Tenth Circuits unripe for review. To thecontrary, it confirms that Ho is now binding circuit precedent. Furthermore,although Judge Brorby, in his dissent in Ho, disagreed with the majority'sconstitutional ruling, he agreed with the majority that the "plainlanguage" of Section 1231(a)(6) authorizes the Attorney General todetain aliens in circumstances such as these pending their removal. 204F.3d at 1060. There accordingly is no reason to believe that the Tenth Circuitwould change its view on the statutory issue even if it granted rehearingen banc on the constitutional issue.

2 The Third Circuit held in Ngo that the text of Section 1231(a)(6) authorizesthe Attorney General to detain an alien beyond the 90-day removal periodeven where the progress toward the alien's ultimate removal is "agonizinglyslow." 192 F.3d at 398. As respondent points out (Br. in Opp. 16 n.16),Ngo involved an excludable alien rather than an alien, like respondent,who previously was a lawful permanent resident. Section 1231(a)(6), however,now governs the detention of aliens in both categories. Although the ThirdCircuit stated in the portion of its opinion rejecting a constitutionalchallenge to the detention that it was not addressing the situation of aliensother than those who are excludable (see 192 F.3d at 398 n.7), it did notsuggest that the text of Section 1231(a)(6) would apply differently to thetwo categories of aliens as a statutory matter.

3 Respondent's discussion (Br. in Opp. 36-37 & nn.33, 34) of informationconcerning the government's ongoing negotiations with Cambodia over returnof its nationals disregards the reality that the Executive Branch is dealingwith ever-shifting international conditions and relations with various countriesthat are always difficult to predict, and it highlights the difficultiespresented by a rule that requires federal courts to make their own predictionsabout the likelihood of removing aliens to particular countries. See Pet.16 n.9, 29-30.

Published INS statistics show that the INS successfully removed two Cambodiannationals in fiscal year 1994, 14 in 1995 (two of whom were criminals),four in 1996, and ten in 1997. 1997 Statistical Yearbook of the Immigrationand Naturalization Service 180, 183 (Oct. 1999). We have been informed bythe INS that the two removed in 1994, ten of the 14 in 1995, one of thefour in 1996, and two of the ten in 1997 were removed to Cambodia. We havebeen further informed by the INS that it removed 16 Cambodians to Cambodiain 1998, 13 in 1999, and seven in the first ten months of fiscal year 2000.The INS's ability to remove such aliens was based on varying circumstances,such as possession of current travel documents or the alien's family obtainingtravel documents directly from the Cambodian government.

4 The letter informing respondent of the INS's decision to continue himin detention specifically noted that, in making that decision, the assistantdistrict director considered numerous factors, including respondent's criminalconvictions, "[o]ther criminal history," "[e]vidence of rehabilitativeeffort or recidivism," and "[p]rior immigration violations andhistory." Pet. App. 78a. As we have explained (Pet. 6 n.2), respondent'simmigration file revealed that he had been associated with a gang "forsome time" and had been arrested on two other occasions with one ofthe codefendants in his manslaughter case (see A.R. 50), contrary to respondent'sassertion (Br. in Opp. 7 n.8) that his history of gang activities "consistssolely of the manslaughter offense for which he was convicted." Therecord also revealed that the immigration judge who had refused respondent'srequest for release while his removal proceedings were pending had foundthat respondent posed a danger if released because of the lack of any evidencethat he had been rehabilitated during his state imprisonment term and becausehe had denied his involvement in gang activity, denied knowledge of thekilling, and denied abusing drugs, despite information to the contrary.See Pet. 6. Finally, respondent's post-release arrest on charges of assaultinga female companion reflects his continued involvement in violent conductthat the State is attempting to prosecute through its appeal of the dismissalof those charges. See Pet. 13 n.6; Br. in Opp. 10 n.12.

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