IMMIGRATION AND NATURALIZATION SERVICE v. NATIONAL CENTER FOR IMMIGRANTS' RIGHTS, INC.

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Argument of Stephen J. Marzen

Chief Justice Rehnquist: We will now hear argument in number 90-1090, INS v. National Center for Immigrants' Rights.

Mr. Marzen, please proceed.

Mr. Marzen: Mr. Chief Justice, and may it please the Court:

The question presented in this case is whether the Attorney General has statutory authority to require an arrested alien, as a condition of his release on bond, to refrain from unauthorized employment pending a final determination of his deportability.

In 1983 the Attorney General promulgated the regulation challenged in this case.

The operative two sentences read as follows; condition against unauthorized employment, a condition barring employment shall be included in an appearance and delivery bond in connection with the deportation proceeding or bond posted for the release of an alien in exclusion proceedings unless the district director determines that employment is appropriate.

The Ninth Circuit below held that the regulation exceeds the Attorney General's statutory authority under section 1252(a) of 8 USC.

That section provides that the Attorney General may impose such, quote, such conditions as the Attorney General may prescribe, close quote, on release bonds.

The court of appeals principally reasoned that the Attorney General could not detain an alien for engaging in unauthorized employment and that a bond condition must therefore relate to insuring appearance for hearings.

We ask this Court to hold that the Attorney General's regulation is within his statutory authority for three reasons.

First, bond conditions may be used to further any of the purposes of the immigration laws.

Second, protecting American workers from displacement by alien workers is a core purpose of those immigration laws.

And third, a bond condition against unauthorized employment helps protect American workers from displacement by aliens.

The text of section 1252(a) authorizes release of an alien on bond containing, quote, such conditions as the Attorney General may prescribe.

Those conditions are not limited by the text of that section to any particular subset of the concerns of the immigration laws.

As the Attorney General explained almost 20 years ago in his decision in Toscano Rivis, it would be unreasonable to construe the quoted language to mean that the Attorney General may impose bond conditions which are totally unrelated to the various purposes of the immigration laws.

But the reports clearly demonstrate a congressional intent to grant wide discretion otherwise.

In particular, section 1252(a)--

Unknown Speaker: Mr. Marzen, can I interrupt you with one question?

If the... and I know you disagree with this reading, but if the Ninth Circuit were correct that the regulation required that the bond condition be imposed even if the alien intended to do authorized work, would that regulation be valid, be authorized by the statute?

Mr. Marzen: --It would be perfectly consistent to apply it even for authorized work as to aliens who are authorized to work only by regulation.

In other words, the Attorney General could decide that aliens in deportation proceeding who only are authorized by his regulation to work may lose that authorization if they are in deportation proceedings.

Unknown Speaker: What about the aliens in this recent amnesty program where there was, where they applied for amnesty and during a period of time large groups were eligible for work that they might not otherwise have been eligible for, say, about that group?

Mr. Marzen: Yes.

He could apply the regulation--

Unknown Speaker: To them.

Mr. Marzen: --against them to forbid their work.

Now I would note, though, in that context that he has not applied the regulation in that fashion.

And in fact, part 208 of 8 CFR specifically provides that any alien who files a nonfrivolous asylum petition shall be given work authorization pending the determination of that asylum application.

The same thing applies to aliens--

Unknown Speaker: How does that work out in the administration of this bond condition?

At the time the bond is requested or imposed, is there any prior determination of the alien's authority to work?

Mr. Marzen: --Before the bond is stamped no work authorized, there is a determination by the district director or his designate that--

Unknown Speaker: But, in what kind of... is this an ex parte determination or does the alien have any part in the decision?

Mr. Marzen: --The alien has an important part to play because he has to, he will be asked to furnish evidence of his work authorization.

The determination whether an alien is authorized to work comes down to, is based on two facts.

First, whether the person arrested by the INS is, in fact, an alien.

And we will usually know that from statements given to the arresting officer or travel documents found on the alien.

They will say his country of birth and it won't be the United States.

The second fact you need is whether that immigration, whether the immigration status held by the alien, if any, authorizes him to work.

That determination is made with, by reference to 8 CFR 274(a)(12).

It lists the 27 or 26 statuses that authorize an alien to work.

So the alien will even, either show his green card, will show some other document issued by the INS which the INS requires the alien to hold on his person, or will give the INS his A or application number, which again is cross-referenced to his immigration status.

And you can just read from the regulation whether that status entitles the alien to work.

So it is an informal hearing.

Unknown Speaker: So if the alien doesn't happen to have the card with him at the time he's apprehended, what does he do?

Mr. Marzen: He, he can still say what his A number is.

And that will list whether he is, for example, a lawful, permanent resident and is, therefore, entitled to work by virtue of status.

Unknown Speaker: And then the officer just decides whether or not to ask for this condition right there on the spot.

Mr. Marzen: No.

The condition... once the officer... the officer makes the determination whether the alien is authorized to work.

But once the officer decides that the alien is not authorized to work, the condition must be imposed.

Unknown Speaker: I understand.

But he just makes that... I'm a little puzzled.

Is there any procedural safeguards to be sure that decision is made accurately?

That's, I guess, what I'm asking.

Mr. Marzen: There's no specific... the initial determination by the district director or his designate is informal.

It's not, there are no specific procedures provided by the regulation.

Unknown Speaker: But what happens in doubtful cases where you can't really tell right away and you got, the bond request is made right away?

Mr. Marzen: We take the position, and it hasn't been applied yet, but we would take the position that the burden of proof is on the alien.

In implementation of the employee/employer sanctions in IRCA, the alien is required to show the employer, actually anyone is required to show the employer, documents evidencing a right to work, either a green card or some combination of a couple of other forms of documentation, like a social security card and a driver's license.

The district director is essentially asking the alien to furnish the same sort of documentation.

And given that the alien is the one who would have that documentation or who would know his A number, it's reasonable to require him to provide that information.

I would note, though, that immediately after the arresting officer or the district director or his designate makes the determination, there is prompt administrative and judicial review as we outlined.

The form that the alien, that contains the bond, has a check-mark box so, which the alien, and the alien is required to sign the form.

And he has to check a box saying whether he wants a bond redetermination proceeding by an immigration judge.

Those bond redetermination proceedings are held very promptly in large cities with large alien populations.

In California and in Texas, they're held every weekday.

Unknown Speaker: If he, in that determination, in that hearing, if he demonstrates that he is authorized to work, then the condition would be removed from the bond.

Mr. Marzen: That's correct.

And there's a further level of review with the Board of Immigration Appeals.

And the statute also authorizes, gives the alien the right to file a petition for a writ of habeas corpus.

It is, and it's not the case that the alien will even have to wait in custody while the writ, while the litigation is going on.

He can post the bond with the condition that he not work.

And as long as he asks for a bond redetermination within 7 days after posting bond, he can challenge the imposition of that condition while he is free on bail and through all the avenues of administration and judicial relief.

Unknown Speaker: Mr. Marzen, is an alien who is found to be doing work which is not authorized subject to deportation on that ground?

Mr. Marzen: It depends on the alien's status.

Frankly, 96 percent of aliens who are arrested and charged with deportability, according to INS statistics as of fiscal year 1989, entered without inspection.

If that status determination is right, they're not, they're clearly not supposed to be here for any reason, let alone to work.

It's not a further ground for their deportation that they, in fact--

Unknown Speaker: The working without authorization is not an additional ground for deportation.

Mr. Marzen: --For the vast majority of aliens in deportation proceedings.

For some people who, for example, a tourist who has overstayed his or her visa, for example, they would be deportable for overstaying the visa and if they engaged in work, that would be a violation of that status even if it were still in effect.

So it depends on the status the alien has.

But the general answer to your question, Justice O'Connor, is that it's not an additional ground.

I do note, though, that the statute, once we do have a ground for arresting an alien, the attorney, the statute, 1252(a), gives the Attorney General the authority in his discretion to retake an alien back into custody so that if, for example, an alien entering without inspection were found to have been engaged in unauthorized employment, the Attorney General would be entitled in that case, even without the regulation, to take the alien back.

What the regulation and the bond condition give us the authority to do is to hold the risk of forfeiture over the alien to encourage voluntary compliance with essentially a preexisting duty not to engage in work.

Unknown Speaker: I'm just curious about something.

You take the position that the INS regulation, we, should be interpreted as not requiring a bond in circumstances in which there is an authorized work permit for the alien.

Why has the INS not amended the regulation to make that clear?

Mr. Marzen: Well, we want to enforce this regulation.

And regrettably, the Ninth Circuit's decision would prevent this or any revised... the presidential effect, would throw a cloud over any revised regulation, because the Ninth Circuit where about 40 percent of our immigration work takes place, has held that we, that it simply is not a basis for either detaining or using detention as a lever against unauthorized employment.

And that we have to hold individualized hearings, so individualized that we have to treat each of these cases as a matter of first impression, if you will.

And it's for that reason that we have kept on the books, it's still codified at 8 CFR 103.6, this particular regulation and seek to enforce it to make sure, to make absolutely clear that the Attorney General does have the statutory authority.

Section 1252--

Unknown Speaker: Mr. Marzen, I just, to be sure I understand your answer to an earlier question by Justice O'Connor.

In fact, the condition is... violation of the condition is never a separate basis, an independent basis for deportability, is it?

Because--

Mr. Marzen: --That's correct.

Unknown Speaker: --Because he will always have committed a violation by accepting unauthorized work.

Mr. Marzen: Correct.

Unknown Speaker: It makes it a double violation, is all that happens.

Mr. Marzen: I was... and maybe I misunderstood the question.

I thought I was answering the question of whether engaging in unauthorized employment was a separate ground for deportability.

And for some aliens, it is.

But a mere violation of the condition itself, you're exactly right, would not be a ground for deportability.

Section 1252(a) simply cannot be read as the court of appeals did the first 2 times around and as the respondents read it now.

To be concerned solely with appearance, this Court in Carlson v. Landon rejected the contention that the predecessor to section 1252(a) was concerned only with appearance.

The Sixth Circuit, which wrote one of the opinions under review in that case, held that the alien Communist there had to be released because the Attorney General's authority was limited to insuring appearance for deportation proceedings.

This Court rejected that limiting construction.

It held that, and dismissed as of not great significance the factor of probable availability for trial.

Once you are beyond the appearance limitation and, as this Court has held, can detain people for, who are security risks or can exercise the authority under 1252(a) to further the public interest, prevention of unauthorized employment and protection of the American labor force against displacement by aliens is clearly one of those purposes.

If respondent's contention were correct, it would mean that the Attorney General could not revoke bail or impose a condition on an alien who repeatedly engages in unauthorized employment.

In fact, we could not even impose the standard mandatory condition that is imposed on pretrial, on people who are arrested for crimes and are released pending trial that they not violate a Federal, State, or local law.

If the authority in subsection (a) is construed narrowly, the Attorney General would have even less authority over arrested aliens who are charged with deportability than we, than the Attorney General has over people arrested for violations of Federal crimes, criminal law.

Unknown Speaker: I was going to ask you, is that condition that you just mentioned, that you shall obey all laws of every State in the United States, is that included regularly in the bonds that we're talking about?

Mr. Marzen: No.

In fact, it's--

Unknown Speaker: Could it be?

Mr. Marzen: --Yes, without question.

That is an... it is important, though, that to note that although the Attorney General has had the authority given by section 1252(a) for 40 years and has gone on record as saying he has the authority for more than 20, he has exercised it in a very conservative and measured fashion.

And has, in fact, the only condition that I am aware of that he has imposed beyond ensuring appearance is to prevent unauthorized employment, although he could certainly impose this standard condition, the standard mandatory condition that I just referenced with relation to people released before trial.

The history of successive legislation is yet another reason why, that makes clear that Congress authorized bond conditions beyond those related to appearance.

The Immigration Act of 1917 permitted release on bond, quote, conditioned that such alien shall be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody, close quote.

Congress expanded the permissible bond conditions in the legislative history, they said they wanted to change that law in 1950 in the Internal Security Act.

The revised act, after repealing the 1917 law, specified that the appearance condition shall only be among the conditions.

And the legislative history which referenced H.R. 10 specified that the Attorney General shall have full discretion and untrammeled authority to impose conditions for bond.

Section 1252(a) of the Immigration and Nationality Act, which is the Attorney General's current authority, followed the procedure established by the 1950 Internal Security Act.

Once it is agreed that bond conditions and the Attorney General's authority in section 1252(a) can extend to any of the purposes of the immigration laws, it must extend to protecting American workers from displacement by aliens.

Congress clearly intended to protect American workers from displacement by aliens not intended to work.

They did so in two ways.

The first way was described this Court in Sure-Tan as the principle of selectivity.

Nonimmigrants can lawfully enter the United States only in, generally speaking, only in a status that does not authorize them to work.

And immigrants and the remainder of nonimmigrants can enter the United States in a status that authorizes them to work only if the Secretary of Labor has first certified that they will not take away jobs from American workers who are willing and able to work.

If there was any doubt on Congress' purpose in this regard it was resolved by the employers' sanctions enacted by the Immigration Reform and Control Act of 1976.

It prevents employers, the other half of this employment contract, from hiring the alien.

Indeed, 8 USC 1324 defines unauthorized alien to mean an alien not a permanent, lawful resident or, quote, authorized to be so employed by this chapter or by the Attorney General.

Thus, Congress has made it absolutely clear that unauthorized by work, unauthorized work by aliens is an evil that it wanted to prevent.

Unknown Speaker: I'm just curious why, I mean, I understand you don't want to bite off any more than you have to, but why does the condition have to relate to a purpose of the immigration laws?

For example, the condition you mentioned earlier that the person released not violate any State or Federal law, I'm not sure that that's a particular purpose of the immigration laws, to prevent violations of State or Federal law.

Why couldn't the Attorney General impose any condition that's in the public interest?

Mr. Marzen: Well, Justice Scalia, I'm not giving up much, because the immigration laws vest vast, vast discretion to the Attorney General.

With respect to your particular question, it is in fact a ground of deportability, not only violating a Federal law, but violating a State or local one as well.

So that is within the various purposes of immigration laws.

I'm simply actually defending, as I quoted at the outset of my argument, the position of the Attorney General that it must relate to the various purposes of the immigration laws.

That doesn't give up an awful lot, although, again, with respect to how that authority has been used, it bears mention that for the two decades that the Attorney General has been on record, he has only used that authority to prevent unauthorized employment.

Unknown Speaker: I may be wrong, Mr. Marzen, but didn't the majority opinion in the Carlson case suggest that anyway it had to relate to some purpose of the statute, the condition?

Mr. Marzen: The Carlson majority said it, said it had to relate to the legislative scheme.

Again, the legislative... now that section 23 of the Internal Security Act of 1950 has been codified and adopted for purposes of the Immigration and Nationality Act, the purposes are very, very--

Unknown Speaker: I understand that.

But at least that would suggest that it would be improper for it to relate to some public interest purpose totally unrelated to the statutory scheme.

Mr. Marzen: --That's true.

It's just I'm... for purposes of Justice Scalia's question--

Unknown Speaker: You don't think--

Mr. Marzen: --That's exactly right.

It, there are not many public interests that are not part of the, a purpose of the immigration law, although, again, this case does not require the Court to plumb the depths of exactly how far that authority goes.

We're dealing here with authority that is at the very absolute core of the purposes of the immigration laws and was, before the Immigration Nationality Act and the contract labor legislation was, in the 1952 act, and was reaffirmed by Congress in the 1986 Immigration Reform and Control Act.

A bond condition against unauthorized employment... actually, before I get to that, I should perhaps address the Ninth Circuit's rationale in particular.

They concluded that the Attorney General's authority did not extend to detaining aliens for unauthorized employment, and by analogy that the bond condition could not be used for prevention of unauthorized employment almost entirely on the basis of IRCA's rejection of employee sanctions.

They had two basic rationales; that Carlson did not deal with unauthorized employment, which is true, but it still dealt with a nonappearance related restriction; and that IRCA rejected employee sanctions.

In that regard there are a number of points should be made.

In IRCA, Congress can be said to reject at most a criminal sentence for unauthorized employment.

It did not reject prehearing detention.

In addition, there was, in fact, no legislative rejection of employee sanctions.

The reference that respondents make occurs in hearings on the Immigration Reform and Control Act.

And it was simply a Senator in colloquy with a testifying witness dismissing a witness' suggestion that that would be a good legislative proposal.

There is no congressional act as a body rejecting the proposed amendment to the proposed IRCA legislation or amending IRCA to take out an employee sanction, nothing that would indicate that Congress felt it actually would be bad to use bond conditions or detention in the way the Attorney General might.

In addition, a surprising concession in the brief by respondents is that the Ninth... whatever authority IRCA provides or doesn't provide cannot affect the Attorney General's preexisting authority in prior legislation.

That takes out the guts of the Ninth Circuit's decision, because whatever Congress did in 1986, it clearly did not impliedly repeal the Attorney General's authority under section 1252(a) to impose bond conditions to further the various purposes of the immigration laws.

With that, it's knowing that the Attorney General has the authority to further these immigration law purposes and that unauthorized employment, prevention of it, is at the core of those purposes.

It's important to note that the bond condition helps protect American workers from displacement by aliens.

What it does, in fact, is provide an additional lever over aliens to encourage voluntary compliance.

Aliens and their families often put up the money to post bond.

The risk of forfeiture is a very, very effective way of getting the aliens to comply with the bond condition and prevent the evil Congress identified of them working.

This additional enforcement measure is important, especially as the legislative history we cite in our brief, to those American workers with few job skills who live on the margin of our society.

5 years after passage of IRCA, the INS is still arresting and charging with deportability almost 1 million aliens a year.

Although most of those aliens take a voluntary departure, more than 100,000 of them contested deportation hearings.

If the Attorney General does not have the authority that he seeks to exercise in this case, he would not be able to tell those 100,000 aliens that they cannot engage in unauthorized employment.

And in that case the aliens would hold jobs that American workers should have instead.

I would like to reserve the remainder of time for rebuttal.

Unknown Speaker: --Very well, Mr. Marzen.

Mr. Schey, we will now hear from you.

Argument of Peter A. Schey

Mr. Schey: Mr. Chief Justice, and may it please the Court:

As the Chief Justice stated in U.S. v. Salerno, in our society liberty is the norm and detention without trial is the carefully limited exception.

The challenged regulation in this case results in two things.

First, it tells persons arrested by the INS and simply charged with being deportable... not yet found deportable, they've not yet had a hearing before the corps of immigration judges that the Attorney General hires precisely to determine whether they are deportable or not, it tells them that in order to exercise their right to a deportation hearing, they must go cold, hungry, and homeless.

Unknown Speaker: Which they are, in law, obliged to do anyway.

As I understand it, it's not imposing a new disability from work upon them, it is simply requiring their commitment not to violate the law by taking a job.

Mr. Schey: Well, Justice Scalia, what the law says is that when you are arrested, you are arrested upon probable cause, just as in a criminal case, you would be arrested upon probable cause.

Under our immigration laws, whether you have a right to work or not depends on your status.

The Attorney General has hired 81 immigration judges and sent them throughout the country to hold hearings to determine your status, to determine your deportability.

Until that determination has been made, it seems highly unfair to make the presumption that everyone arrested is definitely a deportable alien and unauthorized to work.

That's the very point of that hearing.

The Attorney General slips back and forth between two descriptions of the class members in this case.

He frequently in his brief, when he's trying to drive home a point, refers to them as illegal aliens, much in the same thrust of your question.

They're just illegal aliens, they're not authorized to work anyway.

But once in a while if you look at the Attorney General's brief he describes them for what they really are; they're simply people charged in deportation hearings.

This Court recognized in Lopez-Mendoza that the majority of INS enforcement activity takes place in what are called area control operations.

These are mass operations.

This Court described those operations as chaotic in nature.

It is simply not fair to assume that INS is right 100 percent of the time.

Unknown Speaker: Mr. Schey, what's fair depends upon what Congress thinks is fair.

And Congress thinks that the chances of the Attorney General being guilty of deception versus the chances of the arrestees being guilty of deception are such that the Attorney General may, if he wishes, not grant any bond at all and just keep the person in absolute detention and say never mind, I don't have to worry about your not working, I'm going to keep you in detention until this matter is cleared up.

He could do that, couldn't he?

Mr. Schey: Absolutely not.

Unknown Speaker: He could not do that.

Mr. Schey: Absolutely not.

Congress, Justice Scalia, spent 10 years debating legislation introduced by Congressman Hobbs, who also introduced all the anti-Communist legislation that was on the books in the late 1940's and 1950's.

Congressman Hobbs introduced his first H.R. 10 in 1939 and every year for the next 10 years he introduced legislation not just to detain every alien as you're suggesting, but just to limit the detention of four categories of aliens pending their deportation; criminals, subversives, dope peddlers, and slave traders.

Just... that's all that Congressman Hobbs wanted.

And anyone who reads the congressional debates, it will become absolutely plain that despite year after year of effort just to convince Congress to give the Attorney General the power to detain those four groups of aliens, just those four groups, that's what he was concerned about, every single Congress rejected his bill until finally in 1950 he backed down.

And he said, okay, Congress, H.R. 10 as introduced in 1950 for the first time said, I want the Attorney General to have the power to detain just those four groups of aliens, but now I'm willing to say he should detain them once they've been found deportable, not pending the hearing, just once they've been found deportable.

And Congress rejected that proposal.

In fact, one of the, one of the chief supporters of the Hobbs bill, H.R. 10, stated at the end of that process that the Senate wouldn't even dignify the bill with a vote.

Unknown Speaker: Well, Mr.... Mr. Schey, how then, if that's your answer to Justice Scalia, how do you read 8 USC 1252(a) where it says pending a determination of deportability, an alien may, upon warrant of the Attorney General be arrested and taken into consideration, and one of the alternatives is that he may be continued in custody?

Mr. Schey: Well, Your Honor, I think that as this Court stated in Carlson v. Landon, it said that the Attorney General is left without standards to determine when to admit to bail and when to detain.

It is familiar law that in such an examination the entire act is to be looked at and the meaning of the words determined by their surrounding connections.

That is precisely the holding.

In Carlson, this Court--

Unknown Speaker: How does that, go ahead, how does that bear on--

Mr. Schey: --Well, Carlson was dealing with the same language that we're dealing with today.

And in Carlson and then in Witkovich--

Unknown Speaker: --It held, it held the aliens could be detained.

Mr. Schey: --It held that the aliens could be detained based on two things.

Firstly, the Court said the Attorney General is not left with untrammeled authority as to bail.

The Attorney General must justify his refusal of bail by reference to the legislative scheme to eradicate the evils of Communist activities.

This is a permissible delegation of legislative power because the executive judgment is limited by adequate standards.

When dealing with the alien Communists, as in these cases, the legislative standard for deportation is definite.

And in fact, the detention language that we are discussing here today appears for the first time in the National Security Act of 1950 which specifically not only defined Communist activity, it held that that activity specifically subjected the person to deportation from the United States.

Unknown Speaker: But that was... that's not the only thing that subjects one to deportability.

Mr. Schey: That is correct.

There are several things.

And if the Attorney General were correct, and he doesn't even state it in this limited fashion, the Attorney General states, gee, we can detain as long as it relates to any of the broad purposes of the Immigration Act.

Well, firstly, having read the legislative history extremely carefully, I can tell you without any doubt Congress today would still be debating the 1952 act--

Unknown Speaker: Well, then why did it enact this thing which appears on its face to grant the, grant the authority to the Attorney General?

The... reading all the legislative history in the world that says Congress wouldn't have enacted it, doesn't get around the fact that Congress did enact this particular provision.

Mr. Schey: --Well, Congress enacted this particular provision within the framework of discussions and debate and conference reports that make it absolutely clear that Congress did not intend... the only detention, in fact, ultimately in 1952 when this law was enacted, if you go to part (b) or (c) of the statute, for people who have been found deportable, there Congress specifically said that the person could be released on detention on bond in amount and specifying such conditions for... excuse me, let me just read you the exact language.

Congress said in part (b) that, and part (c), that the person could be, and then it repeats the language from part (a).

Part (a) is for persons who are awaiting deportation.

Under part (c), which deals with people already found deportable, Congress repeats the language from part (a) that the Attorney General can release on bond in an amount and containing such conditions as the Attorney General may prescribe, and then adds the following sentence, or on such other conditions as the Attorney General may prescribe.

What does that language mean?

Right away, Congress, once it was dealing with people who had been found deportable, Congress added the language that their release could be restricted to other conditions.

If you look at the part (a) that you're referring to, it talks about conditions in the security.

It's discussing conditions in the security.

Unknown Speaker: But you know... quite apart from what it may authorize as the Attorney General to impose conditions, it says they may be continued in custody.

The Attorney General need not grant bail.

Mr. Schey: Right.

Your Honor, all that I can say, Mr. Chief Justice, all that I can say is that ever since the first, ever since the first laws were enacted, no.

When you read the legislative history, it is impossible that Congress intended that section to mean that the Attorney General could detain any person without releasing them on bond, as long as it related to the broad purposes of the Immigration Act.

Under that reading--

Unknown Speaker: Excuse me.

Not any person, any alien.

Mr. Schey: --Any alien.

Under that reading, the Attorney General could detain anyone who's illiterate because the laws call for deportation of illiterates.

The Attorney General could detain any alien--

Unknown Speaker: Only if he's an alien.

Mr. Schey: --any alien who received public assistance within 5 years after entry into the United States, any alien... there are approximately 100 separate grounds of deportation.

And under this broad reading of the statute, any one of those persons... and it is simply clear.

In fact, in 1952 when the debates came to a head in Congress and they were ultimately rejecting Congressman Hobbs' effort to allow... all Congressman Hobbs wanted was to detain criminals, dope peddlers, slave traders, and subversives.

When they ultimately rejected that, in subsection (c) they specifically put in you have to have a criminal conviction.

Under subpart (d) they specifically say once an alien has been ordered deported, the Attorney General can place restrictions on his activities upon release.

No such language appears in (a), the Attorney General can place restrictions on his release.

In order to revoke, if an alien who is released subsequent to being ordered deported, if an alien is released and the Attorney General says, don't work, and that alien works, you look at the final part (d) of the statute, the only way that bond can be revoked is upon a criminal conviction.

Why would Congress have given less rights to someone awaiting deportation?

These people are just awaiting deportation.

They've simply been arrested.

And as to a person who's been found deportable, Congress says the Attorney General can place restrictions on that person, including their activities.

And it uses very particular language and says if the person violates that condition, upon conviction he or she shall be further detained.

It would simply make no sense for Congress to grant minimal rights to someone who's just charged with being deportable and then grant all these extraordinary protections to somebody who has been found deportable.

If I can add one other thing to, one other aspect in response to your question, Mr. Chief Justice.

And that is that one has to look at the whole law.

I don't think one can just look at one phrase.

This is a comprehensive statute.

In this statute, as this Court held, has held twice now, in De Canas v. Bica, and... this Court has made clear that in 1952 the employment of aliens was at best a peripheral concern of Congress.

Congress itself stated that.

Congress itself did not make the employment of undocumented workers illegal until 1986.

And then this wasn't just some Congressman, any Congressman, who rejected the notion of detaining aliens for working improperly, this was Senator Simpson.

Senator Simpson is the author of the 1986 law.

And when a witness testified in front of Senator Simpson and said, well, instead of penalizing employers we can far better serve the country by detaining aliens who work without authorization, Senator Simpson squared that approach and said this is a harsh, he called it harsh, he called it unrealistic, and he called it a proposal made out of a sense of frustration.

The 1952 law, this Court has made very clear in the Sure-Tan case and in De Canas, these are recent decisions of this Court, this Court has made clear Congress... I don't necessarily agree with this and this Court probably doesn't agree with it, but in 1952 Congress at best had a peripheral concern with the employment of aliens.

And in fact, as a predicate to the 1952 act Congress ordered up a study.

Congress conducted a study.

The Senate conducted a study pursuant to Senate Resolution 137.

Nothing in that detailed study suggests a concern with unauthorized employment.

That report states, it's Senate Report 1515, 80th Congress, that reports states that foreign labor does not present a serious immigration problem today.

Adequate safeguards are included... and they mean in the 1952 proposed law... adequate safeguards are included to insure that such aliens will not be admitted if unemployed persons in the U.S. are capable of performing such services.

And the adequate safeguard that Congress came up with was section 212(a)(14) of the act which says you're excludable from the United States if you come to the United States intending to work and you do not have a work permit.

I would like to read you the one sentence, the key sentence from the conference report about section 1182(a)(14).

It says it is the opinion of the committee, and this is the conference committee, that this provision will adequately provide for the protection of American labor against an influx of aliens.

Now again, if the Attorney General... I can only tell you that when you read the legislative history leading up to the 1952 act and there is poor old Congressman Hobbs struggling to convince Congress just to allow the Attorney General to detain four groups of aliens and then backing off and saying, okay, I'll go along with it if you, how about we just detain them once they're found deportable.

And Congress says to that, no way.

The only way that we will authorize--

Unknown Speaker: Maybe they read the statute wrong.

Mr. Schey: --Well, they wrote the statute.

And again, it's not my place to say that they read the statute wrong.

I think this Court has said in Pungalin Nun, this Court said that in this vital area of public interest, no matter how the chips may fall, it's this Court's responsibility to rigidly enforce the congressional intent.

That's what this Court said.

And in Pungalin Nun the chips fell down heavily against the aliens, very heavily.

Nevertheless, this Court said it is our task to rigidly, rigidly enforce the intent of Congress.

Unknown Speaker: Mr. Schey, can I--

Mr. Schey: If the Congress--

Unknown Speaker: --Can I interrupt you?

Because I want to be sure that before you're through, you do it at your own time, but would you comment on Mr. Marzen's suggestion that really 90-some percent of these people voluntarily depart and as to the others all they've got to do is produce their green card and they will automatically avoid this bond condition under the regulation?

And why isn't that an adequate protection for those who are, in fact, authorized to work?

Mr. Schey: --Well, Your Honor, firstly, I think that that's... I just, I really hear that argument by the Attorney General with, with great pain.

The notion that a person can easily establish what their status is is simply absurd.

If that were true we wouldn't need this entire corps, the immigration judges, this entire executive office of immigration review.

We are not talking about the simple cases.

As this Court noted in Lopez-Mendoza, 97 percent of the people arrested by the INS signed voluntary departures.

And they're out of the country within 24 hours.

This regulation has nothing to do with them.

This regulation has to do with the folk who are contesting their deportation.

They are saying, I am a derivative citizen.

I just finished a case in the Ninth Circuit, Mondocka v. INS.

INS said for 5 years Mr. Mondocka, you are a deportable alien.

You don't have any rights in this country.

I got involved in the Ninth Circuit after they had already issued a mandate and told the guy to leave the country.

And at that point I determined he was a derivative citizen.

The case went... the Ninth Circuit remanded the case to the district court.

I did one deposition.

And at the end of the deposition the Attorney General's representative, the Assistant U.S. Attorney, said you are right, this person is a derivative citizen.

It is in the contested cases that the person will erroneously be denied their right to work pending the outcome of their deportation hearing.

It is in the difficult cases.

These are not easy cases.

Some of them are easy.

My colleague from the Department of Justice mentioned the student who says, yes, I'm a student.

Well, once he says I am a student, everybody agrees he has no right to work.

I have no real problems with that case.

I have the problem with the thousands of contested cases where the person is saying, I'm a citizen, and the INS is saying, you're not a citizen.

Or the person is saying, I'm a derivative citizen.

There are about seven classes of derivative citizens.

They're extremely complex.

You have the... you're born outside the United States, your mother was a U.S. citizen, she lived in the United States for 7 years after the age of 14.

Unknown Speaker: In other words, the category... I want to be sure I understand you.

You're not concerned with so much with cases where the person is an admitted alien and can therefore establish whatever his status as an alien is, you're really concerned only with the cases where the status is between alienage and... citizenship is at issue.

Mr. Schey: Well, let me expand upon that because I think Justice Scalia also raises, or raised a good point.

There are some cases in which the plaintiffs would have no argument with the Government, that a person walks up and says, I'm illegal, give me political asylum.

Does that person have any inherent right to work?

Probably not.

But there are a multitude of cases in which the person is saying, I am a lawful resident alien, and the INS is saying, no, you're not a lawful resident alien, we think you're a deportable alien.

Or the person is saying, I am a... INS is saying... the person is saying, I'm a national.

A national is people born in Guam, the Virgin Islands.

There's a whole set of complicated laws about who is a national and who is not a national.

The person saying, I was really born in Guam in 1945 and INS is saying, well, that's ridiculous, we think you were born in Tijuana in 1956.

It's those contested cases.

This regulation makes no exception.

This regulation presumes what INS has the burden of proving at the deportation hearing.

In 1952 Congress did not say when we arrest you, you come forward and you prove to us that you are legally in the country.

In the same section that we're discussing today, in section 242 of the Immigration Act, Congress stated the Immigration Service has the burden of proof.

Unknown Speaker: But it also stated any such alien taken into custody may in the discretion of the Attorney General and pending such final determination, may be continued in custody.

Mr. Schey: It certainly says that.

Unknown Speaker: That's what it said.

Mr. Schey: And there are hundreds, there are hundreds--

Unknown Speaker: Our statement in Carlson v. Landon, which you referred to where it said that the Attorney General is not left with untrammeled discretion as to bail.

That doesn't have anything to do with what we're talking about today.

That had to do with the argument that since what was permitted there was simply the arrest of an alien on the basis that he was a Communist.

Mr. Schey: --Oh--

Unknown Speaker: Could you keep somebody under, could you keep somebody in detention for deportation just because he subscribed to the goals of the Communist Party?

Mr. Schey: --Absolutely--

Unknown Speaker: And the Court said no, you couldn't do that, you had to show that keeping him, that letting him out he would subvert the Government.

That's what it was talking about.

Mr. Schey: --Exactly.

And that's my point.

Unknown Speaker: I don't think it was speaking to whether this provision with, in 1252 means what it says at all.

Mr. Schey: Well, I think, Your Honor, you just made my point for me.

The Supreme Court said in Carlson... and I might add that it reiterated that position just a few years later in Witkovich.

And I might also add that this is not an area where there are only one or two court decisions out there.

This is an area where there are hundreds of district court, Board of Immigration Appeals, district court, court of appeals, and at least two Supreme Court decisions.

So if this Court today votes with the Government--

Unknown Speaker: What's the other Supreme Court decision?

Mr. Schey: --Witkovich.

Unknown Speaker: And what did that involve?

Mr. Schey: That involved the same statute.

Unknown Speaker: The same--

Mr. Schey: 242(d).

Unknown Speaker: --What, what was the basis of deportability?

Mr. Schey: In Witkovich, the person was arrested for Communist activities.

Unknown Speaker: Communist activities again, another Communist activities case.

Mr. Schey: And, and the INS said a condition of release is that you cannot work at a Communist newspaper.

And this Court struck it down.

Unknown Speaker: Of course.

Because that would mean he's deportable just for his political beliefs or maintainable in custody just for his political beliefs.

Mr. Schey: He was, he was arrested on a completely separate charge--

Unknown Speaker: The Communist cases are a separate category of case where in order to uphold the detention at all, you have to establish something more than the mere membership in the Communist party.

Mr. Schey: --That's exactly right.

Unknown Speaker: Which is the way, unfortunately, the statute read.

Mr. Schey: That's right.

Well, it's not a statute.

It's the same statute.

I mean, these Communists were not held under a different statute.

These Communists were held under the same statute we're discussing here today, and precisely the language that you read out of Carlson indicated you could not have a blanket rule.

You could not have a blanket rule.

You would have to show that that individual person presents a threat to society before you could condition his release from detention on (a), (b), (c), or (d).

Let me raise one--

Unknown Speaker: (a), just on the fact that he was a Communist.

Mr. Schey: --Could not detain him just based on the fact that he was a Communist.

You would have to show that that individual's activities would present a threat to the United States.

There's another point that I would like to raise.

Congress obviously does not think that the Attorney General has the power that the Attorney General thinks he has.

And that becomes very plain in the following.

In 1988 and again in 1990, just a few months ago, just about 10 months ago, Congress enacted the very section we're discussing here.

And how did it amend the section?

It amended the section to make clear that the Attorney General could detain without bond persons who are convicted of felonies.

Now, if under part (a)... and Congress took a lot of time to debate that because there were a lot of people in Congress saying, well, a person served his time on the felony, we cannot just continue to detain him without bond.

If, if Congress intended to give the power to the Attorney General--

Unknown Speaker: Yes, but maybe they misunderstood the statute.

I mean, I think you misunderstand it and you're a lawyer.

Not all of them are.

Mr. Schey: --Well, again, I don't think it's my place to say whether they misunderstand it.

All I can say is if Congress felt that the Attorney General already had the power that you suggest, it would not have wasted its time in 1988 and 1990 to put in subparts to this statute to make clear that there are very limited circumstances under which the Attorney General can detain without bond.

This is a case about detaining without bond.

This is a case about detaining people without a hearing with... the Attorney General says, oh, you get quick review.

There's no evidence in this record that you get quick review.

The only evidence in this record is it takes about 4 months to get review.

The Attorney General fails to--

Unknown Speaker: Well, Mr. Schey, is... did this come up as a sort of facial challenge to the regulation?

Mr. Schey: --No, it did not, Your Honor.

Unknown Speaker: I thought it did, that it came up before it was ever even implemented.

Mr. Schey: That's not true.

I know that the Attorney General says that.

Unknown Speaker: They take that position.

Mr. Schey: I know that they do.

Unknown Speaker: Because I would assume that in an individual case, the points you raise could surely be litigated, whether due process or something else requires some kind of hearing or special procedure.

But if this is just a, some kind of facial challenge, I wonder if we get to those questions here.

Mr. Schey: I'm not sure that it is, but I just wanted to point out that the record in this case does not indicate, and there's nothing in the regulations.

In fact, if one looks at the regulations once, firstly, they're automatic.

The Attorney General suggests that prior to... that the Attorney General will consider whether to impose that.

That's not what they say.

They say, in, at 48 Federal Register 8820, the rule would allow automatic imposition of this condition.

It's an automatic imposition.

Secondly, once it's imposed, the person against whom it is imposed has to show a compelling reason, not just a reasonable basis.

I can come forward and convince the district director that I'm a U.S. citizen and I still have to show a compelling reason to work in order to get rid of the, this restriction.

If I am found deportable by the agency, its current regulations... just 4 weeks ago, the agency came out with a whole new set of employment authorization regulations.

If I am found deportable by the agency under these regulations that were promulgated in August... and I don't understand how the Attorney General thinks he's going to apply both sets of regulations together... once I'm found deportable and I'm appealing my case in the Ninth Circuit or the Fifth Circuit, I cannot get work authorization.

Unknown Speaker: Mr. Schey, your first example is, I think, mistaken.

You said even if you convinced him that you were a U.S. citizen.

Well, once he's convinced of that, he would be guilty of a violation because 1252 only applies to an alien taken into custody.

If you persuade him, you know, that you're a citizen, you're in a different category.

Mr. Schey: Well, if I actually, and I think you're correct, if I actually persuaded him that I was a citizen, I hopefully wouldn't be there in a deportation hearing in the first place.

But my point was if I came forward and I was able to convince the local officials that I have to convince that I might win my deportation hearing it would not matter because under the regulation the condition will only be rescinded if I can show a compelling reason, and even then it is purely within the discretion of the Attorney General under the regulations whether they will or will not rescind the no work right.

I thank you, Your Honor.

Unknown Speaker: Thank you, Mr. Schey.

Mr. Marzen, you have 4 minutes remaining.

Rebuttal of Stephen J. Marzen

Mr. Marzen: Three points.

First, Mr. Schey asserts that there are thousands of cases in which there are derivative citizenship claims.

With the addition of the new case that he has litigated in the Ninth Circuit, we know now of a total of two such cases, one cited in our brief in 1961 and the one he just mentioned.

Unknown Speaker: What do you do about those two cases?

Mr. Marzen: The second part of my point is at page 25 of our opening brief, footnote 16.

There is an INS operating instruction which provides as follows; quote, individuals maintaining a colorable claim to U.S. citizenship will not normally be subject to the condition.

There is an out for us if we think it's abusive or frivolous.

But if you have a colorable claim, the regulation will not be applied to you.

Unknown Speaker: It says will not normally be, but the language of the regulation would seem to apply.

Mr. Marzen: We do make an exception in the operating instruction for just this sort of case.

Secondly, the 1990 Immigration Act which Mr. Schey brings up as Congress legislating new authority to detain aliens which it didn't otherwise have is not quite what the 1990 act says.

The 1990 act restricts the Attorney General's discretion to release people.

Congress was dissatisfied with the Attorney General releasing aggravated felons pending a final determination of their deportability.

So Congress reduced the Attorney General's preexisting authority to let these people out on bail.

Unknown Speaker: What about the most recent amendment, does... if the statute means what you say it means, why was that needed, do you suppose?

Mr. Marzen: I'm referring to the most recent amendment.

And the reason it was needed is that Congress did not want to allow the release of aggravated felons.

He took away the Attorney General's discretion to release them either on their own recognizance or on bond.

The Attorney General, under this law, cannot release aggravated felons under any bond condition unless he determines that they pose no risk of flight and no danger to the community.

My final point is with respect to the legislation--

Unknown Speaker: Before you leave that one point, Mr. Marzen, the regulation to which you refer in the footnote 16 that you cited, when was that adopted?

Mr. Marzen: --Um--

Unknown Speaker: Was that after this case began or was it in effect before the regulation was--

Mr. Marzen: --I'm not sure.

The date, the only date that it's attached to was an addendum on September 7, 1984.

So it's several years ago, but I don't know whether it was announced contemporaneously with the regulation.

The legislative history of H.R. 10... I just will direct the Court, if I might, to the appendix to the petition in our reply brief which points out that subsection (c) which contains the legislative history to which he refers does limit detention.

But that, that provision had lifetime detention for those four classes of aliens after a finding of deportability.

That same legislation, and that's on page 6A, the same act, H.R. 10 on pages 3A and 4A contains almost in haec verba the authority that the Attorney General has in current section 1252(a), pending a final determination of deportability, the alien, the Attorney General may in his discretion continue the alien custody or release him on conditions.

The legislative history to which he cites refers to a very controversial provision which wasn't adopted.

There was no controversy in any of the committee reports or any of the floor debate over the Attorney General's authority that is at issue in this case.

Unknown Speaker: --What do you say to Carlson and the other Supreme Court case that he cites?

Mr. Marzen: Carlson affirms that you can impose conditions that are unrelated to release.

And we cite that as the strongest authority in our favor.

If there are no further questions.

Chief Justice Rehnquist: Thank you, Mr. Marzen, the case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The second of the cases is Immigration and Naturalizations Service versus National Center for Immigrants' Rights.

This case involves a facial challenge to a regulation promulgated by the Immigration and Naturalization Service.

It provides that when an alien is released from custody pending deportation or exclusion proceedings, the bond issued to secure the alien's release will generally include a condition barring unauthorized employment by the alien.

The Court of Appeals ruled that the regulation was inconsistent with the Immigration and Nationality Act.

For the reasons set forth in a unanimous opinion authored by Justice Stevens, we hold that the regulation properly construed as wholly consistent with the statute.

Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.