Cases by Issue - Deportation

Fernandez-Vargas v. Gonzales - Oral Argument

Fri, 09 Jan 2009 14:48:55 +0000

Case:

Fernandez-Vargas v. Gonzales

Media File:

04-1376_20060322-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of David M. Gossett

Chief Justice Roberts: We'll hear argument first this morning in Fernandez Vargas versus Gonzales.

Mr. Gossett.

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

Using the ordinary tools of statutory construction, it is clear that Congress intended the 1996 reinstatement provision to apply only prospectively.

But even if Congress had no specific intent as to the retroactive applicability of that provision, under Landgraf it would, nonetheless, not apply in this case.

Applying it to aliens who reentered before IIRIRA's effective date would give the statute an impermissively retroactive effect.

Before IIRIRA, such aliens were entitled to seek, and eligible to receive, discretionary relief from deportation.

Now if the provision is applied to them, they are not.

Chief Justice Roberts: Wouldn't it be the same result if Congress decided, for example, to take away one of the available methods of seeking discretionary review, just saying,

"We're not going to have that available anymore? "

Mr. Gossett: Congress might change the specific types of review that are available, and then this Court would have to... but would either have to... would have to engage in a Landgraf analysis of whether--

Chief Justice Roberts: But that would be--

Mr. Gossett: --that would be--

Chief Justice Roberts: --a pretty easy case, wouldn't it?

I mean, if you have a mechanism saying some... an alien in this position can apply for, you know, this type of relief, this type of relief, or another, and they say,

"Well, we're not going to allow this type of relief anymore. "

"We're going to change those. "

--was... that's a pretty easy case, under Landgraf, isn't it?

Mr. Gossett: --The... yes, Mr. Chief Justice.

And the transition from suspension of deportation to cancellation of removal would fall into that category.

However, the reinstatement provision talks in terms... in categorical terms of any forms of relief from deportation.

It doesn't specify the particular types of relief that would be available--

Justice Scalia: But why should that--

Mr. Gossett: --and, therefore--

Justice Scalia: --why should that make a difference as to whether it's retroactive or not?

I mean, if it... it seems to me you look to the activity that it governs.

And the activity that it governs is the deportation or removal from now on.

Now, you could argue that... if you want, that there are some due process violations in making that prospective law affect past activities as they do.

I mean, let's... one of the examples given in Landgraf, or at least in my concurrence in Landgraf, was a change of the law procedure so that expert testimony, which previously was not admissible, is now admissible.

Now, the person who committed the crime that's involved in the next case that comes up when that new procedural rule is applied, he can say,

"Well, you know, you've changed... you've changed the rules on me. "

"When I committed the crime, the expert testimony wasn't admissible. "

"Now it is admissible. "

"That's not fair. "

Well, whether it's fair or not is something we can inquire into under the due process clause, but nobody would say that that procedural change is retroactive.

And it--

Mr. Gossett: --Two--

Justice Scalia: --seems to me that's what's going on here.

Mr. Gossett: --Two responses, Justice Scalia.

The first is, I think it's unfair to say that this provision merely regulates the procedure of removal.

Justice Scalia: That wasn't my point.

My point--

Mr. Gossett: The--

Justice Scalia: --was, you look to the... to the activity which is governed by the new law.

In the case of the... of the expert testimony, the activity governed is the trial, so that law applies prospectively to all future trials.

So, also, in this case, this law applies prospectively to all future removals, QED.

It is not retroactive.

Now, you may have an argument, although I don't think it's a very good one, that there are due process problems involved in this prospective law.

But I don't see how you can call the law retroactive.

Mr. Gossett: --Justice Scalia, the portions of the reinstatement provision, besides for the provision barring other forms of relief, I would agree, are simply procedural provisions.

And, again, there might be due process challenges to those, but I... we're not raising those here.

It's the provision that says that merely because you illegally reentered the country at some prior date, you will... because you illegally reenter the country, you will be ineligible, that I think can only fairly be categorized as regulating the process of reentry, not the process of removal.

It's--

Justice Scalia: That doesn't affect--

Mr. Gossett: --the fact that you--

Justice Scalia: --doesn't affect his reentry at all.

His reentry occurred.

It... how could it possibly have anything to do with his reentry?

Mr. Gossett: --Under Your Honor's analysis, a statute that said that if the attorney general finds that an alien has reentered in the past, the alien may be sentenced to 15 years in prison, would also merely be procedural and governing the sentencing rather than the underlying act of reentry.

I think that parallel hypothetical, which obviously would... would violate the ex post facto clause--

Justice Scalia: That would apply new penalties to the reentry.

This law does not apply any new penalties to the reentry, it just... it just establishes a new regime for removing the person who has reentered.

Mr. Gossett: --But the act of removing the right to seek adjustment of status, suspension of deportation, voluntary departure, that is a new penalty.

In the Landon v. Placencia case, in fact, this Court called those "substantive rights".

It called, specifically, voluntary departure and suspension of deportation "substantive rights".

That's at 459 U.S. 26 to 27.

Therefore, I think it's unfair to say that the removal of those substantive rights is merely a procedural change.

Of course, we don't even get into the question of whether there's a procedural change here, or a substantive change, unless we get to stage two of the Landgraf analysis under the... under, I would say, either the majority's approach in Landgraf or your approach, Justice Scalia, because the first stage of Landgraf is about this Court's deferring to Congress's specific intent as to the applicability of a statute, because if Congress has decided whether a statute should apply prospectively or retroactively, this Court defers to that, outside of the ex post facto context.

And I think here it's clear that, in fact, Congress intended the 1996 reinstatement provision to apply only prospectively.

Justice Ginsburg: Has any... a number of courts have considered this question... have any of them accepted your first... your argument that the statute is clear that it is nonretroactive?

Mr. Gossett: Yes, Justice Ginsburg, both the Sixth and the Ninth Circuits have accepted that argument.

They've accepted it in a slightly different form than we are currently raising, because before the Government's brief in this case, no one has laid out the history of the 1950 and 1952 statutes as carefully as the Solicitor General's Office now has.

But both the Sixth and Ninth Circuit have held that this statute is exclusively prospective by a comparison between the 1952 Act and the 1996 Act.

Justice Ginsburg: I'd... I'll have to look at those decisions.

It was my impression that they did, indeed, hold that it was retroactive, but not on the ground that Congress had clearly spoken to the point, so that you didn't need any further inquiry.

Mr. Gossett: Both... they didn't use the term "clearly", because, of course, as we explained in our brief, there's an asymmetry in retroactivity analysis, and using the ordinary tools of statutory construction, one can demonstrate a prospective intent on the part of Congress.

But both the Sixth and the Ninth Circuit, in the Bejjani case and the Castro Cortez case, did stop their retroactivity analysis at stage one of the Landgraf inquiry--

Justice Scalia: Yes, but--

Mr. Gossett: --decided that.

Justice Scalia: --I think that's because they were using the version of stage one that you are using, which includes, in the consideration of whether Congress has been clear, an inquiry into whether the... whether the law is retroactive or not, which, as I understand it, should be left to stage two, exclusively.

Mr. Gossett: I--

Justice Scalia: Your analysis in your brief mingles the two.

It says one of the factors that you can take into account in stage one is whether it's retroactive.

And as I... I don't understand Landgraf to speak that way.

I thought you were supposed to use all other indicia of legislative intent, other than the normal rule against retroactivity, in deciding congressional intent, and then you go to stage two, which is where retroactivity comes in.

Mr. Gossett: --In both the St. Cyr's case and the Lindh case, this Court did invoke the presumption against retroactivity in its stage one analysis.

But, more generally, I don't think we need a presumption to win this case.

I think that... under stage one, under an inquiry into congressional intent... what we have in this case is a history of Congress providing for the reinstatement of deportation that goes back to 1950.

In 1950, Congress passed a reinstatement provision that said that for the specified aliens... and it was only a subgroup... if they were deported and reentered, they would be... that their previous deportation order would be reinstated.

The INS... and that statute's quoted in page 2 of the Government's brief... the INS interpreted that statute as applying only prospectively, and only applying to an alien who was deported, and, therefore, obviously reinstated... reentering after the effective date of that statute.

Now, in 1952, Congress, evidently dissatisfied with an interpretation... with a reinstatement provision that was only prospective, added the "before or after" language to the reinstatement provision.

They said, under this 1952 Act,

"If you were deported, either before or after the effective date of the INA, your deportation order can be reinstated. "

But in 1996, Congress removed that "before or after" clause.

Congress expanded the scope of reinstatement and provided that a much broader category of reentrants could be subject to reinstatement.

Justice Scalia: Yes, but as the Government points out, that "either before or after" applied to when you had been deported--

Mr. Gossett: Yes, Justice Scalia.

Justice Scalia: --not to when you reentered.

And what we're... what you're arguing for here is a rule that goes from the time of reentry, not from the time of deportation.

So, it's not really a parallel.

Mr. Gossett: Actually, Justice Scalia, under our stage one argument, we are now arguing that, in fact, the Government is right, that the 1952 Act was tied to the date of deportation.

What we don't understand is how the Government thinks that helps its case, because the obvious and necessary consequence of that is that the removal of the 1996 must imply that the 1996 provision only is triggered by post enactment deportations.

Chief Justice Roberts: Well, that's an--

Mr. Gossett: And--

Chief Justice Roberts: --that may be a reasonable inference, but I think it's a real stretch to say that it "clearly establishes".

When you're talking about a statute, and you say something's "clear", you want to be able to point to actual words.

And, on the other side, the Government points out that, elsewhere in IIRIRA, Congress specifically delineates when it wants the statute to apply prospectively only.

And they did not do that in this case.

Mr. Gossett: --They also specifically delineated, in some context, Mr. Chief Justice, that it would be retroactive.

The Government's primary comparison... and I think it's an important one for this Court to focus on... is to the criminal reinstatement provision, which is Section 1326... 8 U.S.C. at 1326.

Now, the Government asserts that that provision is exclusively prospective, and, therefore, that the comparison should be that, in this context, the reinstatement provision must be retroactive.

But, in so arguing, the Government hides, in ellipses in its brief, on page 14, the actual text of the provision of the criminal... the temporal applicability of the criminal reentry provision.

What Congress actually said was that deportations that predate IIRIRA could trigger reinstatement, but reentries post... only reentries post dating IIRIRA could trigger it.

So, in fact, what Congress was doing in the criminal context was reaching back and saying,

"We're changing the consequences of pre enactment deportations, but not pre enactment reentry. "

So, the comparison, if anything, I think, strengthens our case.

I'd say--

Chief Justice Roberts: I'm sorry, I... you lost--

Mr. Gossett: --The--

Chief Justice Roberts: --me there.

Mr. Gossett: --I'm sorry.

Chief Justice Roberts: Can you--

Mr. Gossett: That's on--

Chief Justice Roberts: --I'm looking at page--

Mr. Gossett: --page--

Chief Justice Roberts: --I'm--

Mr. Gossett: --It's quoted on page 27, note 15, of our opening brief.

It's Section 324(c) of IIRIRA.

I can read it, exactly,

"The amendment made by subsection (a) expanding the criminal reentrant provision shall apply to departures that occurred before, on, or after the date of enactment of this Act, but only with respect to entries and attempted entries occurring on or after such date. "

The Government omits the fact that it applies to deportations pre IIRIRA.

So, I think that there are two cases that this Court has--

Chief Justice Roberts: --I don't how--

Mr. Gossett: --decided--

Chief Justice Roberts: --I don't see how that undermines their point that when Congress wants to specify that something "shall apply prospectively only", as they quote,

"only with respect to entries occurring on or after a date. "

they spell it out.

And they did not similarly spell it out in the provision on... that you suggest is prospective only.

Mr. Gossett: --No, Justice... Mr. Chief Justice.

I agree that this doesn't explicitly spell it out in the criminal provision, but I don't think we need to explicitly spell it out... or we... that this Court needs to find that Congress explicitly spelled out the prospective applicability.

I think that the Lindh case and the American National Red Cross case both demonstrate that when Congress changes text over time, it matters.

In the Lindh case, of course, there were two provisions, one of which had retroactivity language, the other which had none, and... and this Court intuited that,

"Therefore, Congress must have meant that the... the section without retroactivity language would be exclusively-- "

Justice Scalia: I wish we could get some new vocabulary.

Terminology is destiny, and I really don't follow the discussion of speaking about whether it was prospective or retroactive.

I don't think, whichever way it applied, it is retroactive.

But the issue still remains, Did Congress intend pre IIRIRA reentries to be covered or not?

I--

Mr. Gossett: --Was it triggered?

Justice Scalia: --I would consider that still prospective, but just note my--

Mr. Gossett: I--

Justice Scalia: --that I don't--

Mr. Gossett: --I think, actually--

Justice Scalia: --go along with you when you force this terminology on me, whether Congress intended it to be retroactive.

As I see it, the issue is whether Congress intended it to apply to reentries that occurred before IIRIRA was enacted.

I would not consider that retroactive, but it's still an open question what Congress intended.

Mr. Gossett: --Justice Scalia, I agree... I agree that that's for purposes... that terminology is better for stage one.

It's... whether it was triggered by a pre enactment deportation or reentry.

Justice Alito: Aren't there several possible explanations for why Congress would leave the "before or after" language out of the... out of the new provision?

They might have wanted it just to be decided under the Landgraf framework.

Isn't that one possibility?

Or they might have thought that INA, which would be 1952, and, therefore, irrelevant by the time this was passed.

Mr. Gossett: I don't think either of those possibilities is plausible, Justice Alito.

The first is implausible because we know that the INS had already interpreted the 1950 Act, which was silent as to applicability, to be exclusively prospective.

And the second is implausible because the... the 1952 Act, which would presumably have been brought forward, the 1996 Act, had they wanted to, specified the date of enactment of this Act.

It would have been about this Act.

And, in fact, the Senate proposal to modify the first... the provision also would have left it in terms of this Act, not of a specific date of 1952, which would have been the INA date.

More generally, I think that with this history of the 1950 Act, the 1952 Act, and the 1996 Act, any interpretation of the 1996 Act as being retroactive, or as being ambiguously retroactive, doesn't pay adequate deference to Congress's choice over time that this Act should apply prospectively in 1996.

Justice Scalia: Why would... I find it difficult to understand why Congress wouldn't have wanted this to apply to illegal entrants who had come in before IIRIRA.

Bear in mind, these are people who have been deported once, already deported once, and then, in violation of the law, come back in again.

And there was a regime for deporting them, which allowed certain variations, which are eliminated by IIRIRA, permission for them to stay.

You really think Congress wanted to keep faith with the people who had, already have... having been deported once for illegal reentry... illegal entry... come in again... and you think Congress says,

"Oh, well, you know, we have to keep faith with these people who are violating our law, and not... and not deport them except under the conditions that existed when they broke the law to reenter? "

I find that a very... what should I say +/?

touching--

[Laughter]

--attitude for Congress to have.

Mr. Gossett: Justice Scalia, clearly Congress was attempting to change... or to increase the disincentives to reentry.

At the same time that they modified the reinstatement provision, they extended the criminal reentry provisions.

Justice Scalia: Not only the--

Mr. Gossett: So, the question isn't--

Justice Scalia: --disincentives.

Mr. Gossett: --whether--

Justice Scalia: They were trying to get out of the country people who were here illegally, two time losers who were here illegally for the second time.

Mr. Gossett: --The question, however, though, is not whether they were trying to change that consequence.

The question is whether they did so retroactively, because this Court presumes that if Congress is trying to change the consequences of an action that has occurred in the past in substantive ways, Congress should say so explicitly, because, as your... you have said in previous decisions, it is a foundational principle of Western law that primary... the consequences of primary conduct are judged as--

Justice Breyer: But is that--

Mr. Gossett: --of the time of that conduct.

Justice Breyer: --so here?

I want to know, if your client had known about this law or gone to a lawyer and said, "What do I do now"?

wouldn't the lawyer have said, or would he have said,

"Just leave. "

"Leave the country, quick, before you're caught. "

"Now, when you get back to Mexico, you can apply and point out you've married an American citizen, and then you'll be able to come in, in all likelihood. "

And if I'm right about that, the Act does not attach new consequences to old behavior, it attaches new consequences to new behavior; namely, the act of staying within the United States, when you could leave.

Mr. Gossett: I presume, Justice Breyer, you mean at the time that Congress enacted IIRIRA?

Justice Breyer: I mean when this particular--

Mr. Gossett: Was--

Justice Breyer: --provision was passed--

Mr. Gossett: --That--

Justice Breyer: --a week later, he goes to a lawyer, and the lawyer says,

"You'd better get out of here fast, because if you're caught while you're here, you're married now, and you won't be able to take advantage of that. "

"It would be terrible. "

"So, go to Mexico. "

"Then there is no problem. "

And if, in fact, I'm right, you see what I'm... I find your argument excellent on the first part, but so is the Government's.

So, I think there's a kind of wash there, so I'm looking to the second part.

And there, you're just said, it attaches new consequences to old behavior.

So, I'm asking you, if it doesn't attach the new consequences to old, but, necessarily, plus new behavior... namely, remaining.

Mr. Gossett: --No, Justice Breyer, it does not, because had he left in 1996, upon enactment of IIRIRA, he would have been inadmissible for 5 years--

Justice Breyer: Well--

Mr. Gossett: --as a result of having left.

Whereas, otherwise, otherwise, if he had stayed in the country, he would be eligible to apply for suspension of deportation--

Justice Breyer: --Being... if you get married... if you're outside the country and you marry an American, you're married to an American and you can't come in for 5 years?

Mr. Gossett: --As a result of his initial... having reentered--

Justice Breyer: As a result of--

Mr. Gossett: --within 5 years--

Justice Breyer: --the initial deporting order.

Mr. Gossett: --As a result of his reentry five... within 5 years of the date of his 1981 deportation, he would be ineligible for readmission for 5 years, had he left the country.

Justice Breyer: So, his choice is this Act or... in which case, you never can get back, if you're caught... or go to Mexico, wait 5 years.

Mr. Gossett: Or 10 to 20 years, if--

Justice Breyer: Ten to 20 years?

Mr. Gossett: --Ten to 20 years if you're caught, under this Act, is my understanding.

It depends on... the Government--

Justice Breyer: No, no.

I mean, he either stays in the United States--

Mr. Gossett: --Yes.

Justice Breyer: --in 10 to 20 years--

Mr. Gossett: No, we... if he stays in the United States, he's... and is--

Justice Breyer: --Is caught.

Mr. Gossett: --entitled to apply for these forms of relief from deportation, then he will... then he can become an American citizen, or become a lawful permanent resident, as a result of the forms--

Justice Breyer: If you lose this--

Mr. Gossett: --of relief that existed--

Justice Breyer: --case... if you lose this case, then his choice would be, stay here, get caught, and you never can come back, or 10 to 20 years?

Mr. Gossett: --Ten to 20 years.

Justice Breyer: I see.

Mr. Gossett: Ten to 20.

Justice Breyer: Or go to Mexico, and you can come back in 5 years.

Mr. Gossett: Yes.

Justice Breyer: Okay.

Mr. Gossett: But, of course, at the time... pre IIRIRA, the choice was, stay in the country and seek... and seek American citizenship through these other routes.

And so, the forcing of him to leave is itself a retroactive effect of the enactment of this Act--

Justice Kennedy: Well, in this--

Mr. Gossett: --because--

Justice Kennedy: --in this case, he was married after the effective date of the new statute.

Mr. Gossett: --Yes, Justice Kennedy.

Justice Kennedy: Did Judge McConnell, in the Tenth Circuit, suggest... because he discussed this... suggest that the result might have been different if the marriage had been before?

Mr. Gossett: Yes, he did suggest that.

And several courts have--

Justice Kennedy: Why would that be consistent with his... with his analysis?

Mr. Gossett: --Justice... Judge McConnell and several other courts have focused on the types of relief that an alien was eligible for as of the effective date of IIRIRA.

We think that's the wrong first inquiry.

We think that the way to approach the stage two analysis is on a categorical basis, because Congress, in the statute, said that, at the time of reentry, the mere act of reentry wouldn't categorically preclude you from seeking any forms of relief from deportation.

And so, had Congress wanted to change that, it would have... it would have had to do so retroactively on a categorical basis.

But even if one accepts Judge McConnell's analysis of the forms of relief you're entitled to as of that date, at the very least, at that point, my client would be eligible to seek both voluntary departure and cancellation of removal.

We think he'd... also should be eligible to seek adjustment of status, because, although it's true that he is not... he was not, at that point, married to his now wife, adjustment of status was a... is a defense from deportation, and he would have been able to get married even if put into deportation proceedings.

And given that, at that point, he and his now wife had... already had a 8-year-old son--

Justice Kennedy: Well, but--

Mr. Gossett: --there would be no question that it was a real marriage.

Justice Kennedy: --it does point out that your argument is a difficult one, because this expectation that you argue for is that, number one, he has an expectation that he'd be able to adjust his status even after Congress has changed the law respecting reinstatement.

Mr. Gossett: I don't think that's--

Justice Kennedy: This is--

Mr. Gossett: --a difficult analysis.

Justice Kennedy: --this is a far reaching expectation on his part.

Mr. Gossett: The only expectation, Justice Kennedy, that we are proposing is that my client... and aliens, generally, because this is an analysis that must be done on a categorical basis... reasonably expected that Congress wouldn't change the consequences of their reentries far in the past without doing so explicitly.

Justice Ginsburg: Am I wrong in thinking that readjustment based on his marriage was not one of the modes of relief that he could have had in '82 or... that that didn't come in until much later, is that so?

Mr. Gossett: That is true, Justice Ginsburg.

Justice Ginsburg: So, any... so, that was a consequence that certainly wasn't taken away from him, because it wasn't there in '82.

Mr. Gossett: In 1982, Justice Ginsburg, my client reasonably presumed that the act of reentry, while itself a crime and while itself rendering him deportable, wouldn't categorically preclude him from seeking relief from deportation if, at a future date, he might become eligible to adjust in some way, either through suspension of deportation by having been here for 7 years, or by marrying an American citizen, or by having a reasonable claim for asylum.

All of these were routes to stay, despite illegal entry or reentry.

Justice Ginsburg: He didn't know what--

Justice Scalia: Why would he think that?

Why wouldn't he just think, being here illegally, he is subject to being deported under such rules as the country has for deporting people who are here illegally, whatever they may be, from time to time?

That would be my expectation if I came in illegally, in violation of the law.

I'm saying,

"I'm here at the sufferance of the country. "

"I shouldn't be here. "

"And whatever rules they have for kicking me out are the rules that I'll have to abide by. "

Mr. Gossett: The implications of your--

Justice Scalia: "I'm lucky not to be in jail. "

Mr. Gossett: --Justice Scalia, the implication of your argument is that a wrongdoer has no reasonable expectation in the law staying constant.

But, of course, both the Hughes Aircraft and the Landgraf decisions are cases in which a conduct was clearly illegal or unlawful at the time it was done, but, nonetheless, a change in the law would retroactively change the implications of that unlawful conduct.

And this Court, in both those cases, held that it was... that such change cannot be effected retroactively.

Justice Ginsburg: --Well, in St. Cyr--

Justice Souter: Under the--

Justice Ginsburg: --was... in St. Cyr, I think it was he pled guilty under one set of expectations, and that's what the Court fastened on.

Isn't that so?

Mr. Gossett: That's true, Justice Ginsburg.

However, the parallel in St. Cyr is that at the time the immigrant in St. Cyr pled guilty, he was presumptively deportable as a result of having pled guilty to a crime.

He was eligible to seek discretionary relief from deportation, which this Court called St. Cyr decision.

Justice Ginsburg: Well, he--

Mr. Gossett: Similarly, here--

Justice Ginsburg: --might not have pled guilty if there was a different set of rules.

I thought that was what drove the Court's opinion.

Mr. Gossett: --It's unclear to me whether or not the St. Cyr case would also generalize to someone who simply was convicted of a crime at that date.

And there's a debate in the lower courts about that.

But, more generally, in my client's context, at the very least his decision to stay in the United States for 7 years, and thus become eligible for suspension of deportation, and then not to leave thereafter, was, itself, a very similar choice to that of the alien in St. Cyr.

It's a conscious decision to remain here, rather than to leave.

Justice Souter: --If he had left voluntarily under the pre-'96 law, would he still have been subject to criminal prosecution for his prior illegal entry if he had later come back into the United States?

Mr. Gossett: I'm not sure, Your Honor.

I don't know.

Justice Souter: Okay.

Mr. Gossett: If there are no further questions, I'd like to reserve the remainder of my time for rebuttal.

Argument of Sri Srinivasan

Chief Justice Roberts: Thank you, Mr. Gossett.

Mr. Srinivasan.

Mr. Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court--

Section 1231(a)(5) aims to streamline the removal of aliens who were already removed but have since illegally reentered.

The Congress that enacted IIRIRA did not intend to grandfather the provision and exempt those aliens who are already in the country illegally.

Rather, the focus on streamlining the rules for getting illegal reentrants out of the country is fully applicable, and, indeed, is especially applicable to illegal reentrants who were already in the country at the time of IIRIRA's enactment.

Three considerations, I think, point to the conclusion that Section 1231(a)(5) is addressed to removing illegal reentrants from the country, including aliens who are already in the country, and that the provision is not so much addressed to the antecedent act of illegal reentry, as such.

The first consideration I would point to is the operation of the provision.

And it's useful to bear in mind the following possible scenario in which a person, who's been removed, illegally reenters the country, but then returns to his home country.

Now, in that situation the individual would have engaged in the act of illegal reentry, but Section 1231(a)(5) simply would have no relevance to him whatsoever, because what Section 1231(a)(5) seeks to do is to remove someone who's found in the country on the basis of their previous removal order.

Now, if they have engaged in the act of illegal reentry, but then have gone back, Section 1231(a)(5) simply is not relevant.

And I think that goes to show that what the statute is focused on is not the act of illegal reentry, as such, but, rather, removing someone who's found in the country and who's determined to be an illegal reentrant.

Now, that operation stands in significant contrast to the criminal prohibition against illegal reentry, which is at 8 U.S.C. 1326, and the prohibition against illegal entry, which is 8 U.S.C. 1325.

With respect to both of those provisions, the act of illegal reentry, or the act of illegal entry, necessarily triggers the operation of the criminal prohibition, and there's nothing that the alien can do after the fact to take himself outside of the... of the purview of that criminal--

Justice Scalia: And those--

Justice Souter: Should--

Mr. Srinivasan: --I'm sorry?

Justice Scalia: --And those provisions are specifically recited to apply only to reentrants after the effective date.

Mr. Srinivasan: That's right.

Congress specifically indicated, in the text of IIRIRA, that it's... it understood the distinction between the way in which those provisions operate and the way that 1231(a)(5) operates.

The IIRIRA expanded the scope of the criminal prohibition on an illegal reentry, and it also, for the first time, imposed civil monetary penalties on the act of illegal entry.

There were civil fines, and then... I think, $50 to $250 per episode.

But what's critical is that with respect to both of those changes, Congress specified, in the terms of IIRIRA, that they would only apply, on a prospective basis, to acts of illegal entry or reentry that post dated IIRIRA.

Now, Congress made no such specification with respect to 1231(a)(5), and I think that's significant, because what that indicates is that Congress understood that that provision, unlike the two criminal... unlike the two criminal provisions, focuses not on the act of illegal reentry, as such, but rather--

Justice Souter: --Well, let me go back to the criminal provision for a second.

I take it your answer to the question I asked your brother a moment ago is that if the individual reenters, and, hence, has committed a criminal offense, and later voluntarily returns to... in this case, to Mexico, that the criminal violation, in effect, would not, in any sense, be canceled out.

Mr. Srinivasan: --That's right.

Justice Souter: And that if he returned, he could be prosecuted for the prior reentry.

And I suppose, in theory... I don't know what the extradition treaty is... in theory, he might be subject to extradition for it.

Mr. Srinivasan: That's right.

Justice Souter: The odd way to--

Mr. Srinivasan: That's right, Justice--

Justice Souter: --Yes.

Mr. Srinivasan: --Souter.

Justice Souter: Okay.

Mr. Srinivasan: The criminal act is completed at the moment that the criminal reentry is completed, and nothing that he does afterwards can take--

Justice Souter: There's no forgiveness--

Mr. Srinivasan: --That's right.

Justice Souter: --provision.

Mr. Srinivasan: That's right.

Which is different, obviously, from the operation of Section 1231(a)(5).

Now, another consideration that I think indicates that Section 1231(a)(5) is focused on the timing of the removal, as opposed to the timing of reentry, is to take into account Section 1231(a)(5) in the context of Section 1231 as a whole.

Section 1231 was a new provision that was enacted by IIRIRA, and Congress entitled it, quote,

"Detention and Removal of Aliens Ordered Removed. "

close quote.

And, as its title indicates, the provisions in Section 1231, like 1231(a)(5), all pertain to executing an order of removal against an alien who's been ordered removed.

For example, those provisions concern the time period within which somebody is to be removed.

They address the travel of somebody to the removal destination, the identification of the countries to which they may be removed, the payment of expenses.

But all of them address the execution of an order of removal in the same way that Section 1231(a)(5) does.

Section 1231(a)(5) speaks to the execution of the preexisting order of removal, the one that the alien had in place when he illegally reentered the country, but it's of a piece with those other provisions, in the sense that it, like them, addresses the timing of removal rather than speaking to the act of illegal reentry, as such.

The third consideration, I think, that points to the same conclusion, which is that Congress was focused prospectively on removals that postdated IIRIRA, rather than retrospectively, in some sense, on acts of illegal reentry that predated IIRIRA, is that at the time of illegal reentry, as we explain in... at length in our brief, an alien would have had no eligibility, as a categorical matter, and at least as a practical matter, for the three types of relief that Petitioner invokes.

And those three types of relief are adjustment of status, suspension of deportation, and voluntary departure.

Now, with respect to adjustment of status, as the colloquy earlier indicated, at the time that Petitioner illegally reentered the country in 1981, up until 1994, which was just 2 years before IIRIRA, adjustment of status was categorically unavailable to illegal entrants and illegal reentrants.

In that light, it's... one would be hard pressed to assert that an illegal reentrant would have performed that act in reasonable reliance on the availability of adjustment of status.

It was simply--

Justice Scalia: You don't want to--

Mr. Srinivasan: --unavailable.

Justice Scalia: --You don't want us to decide it on that ground, do you, so that all future cases you'll have to decide whether he came in before '94 or after '94, right?

Mr. Srinivasan: That's right, Justice Scalia.

I think a virtue of focusing on the fact that this statute is addressed to the removal, rather than the act of illegal reentry, is that it decides, once and for all, what the temporal reach of the statute is.

And--

Chief Justice Roberts: Well, but your point, though... I mean, someone illegally reentering at that time might not have had a reasonable expectation of the availability of discretionary relief.

On the other hand, someone in the... a petitioner's position, after all that had happened, did have a fairly good case under those provisions that were no longer available.

Mr. Srinivasan: --Well, that might be, Mr. Chief Justice, but his claim is that Section 1231(a)(5) should be construed not to apply to anyone who illegally reentered before IIRIRA.

And so, I think the proper frame of reference is to look, ex ante, at what someone would be thinking, had they illegally reentered before IIRIRA, because he seeks to treat everyone who illegally reentered before IIRIRA as a uniform category.

Chief Justice Roberts: Well, and someone entering says,

"Well, obviously, if I'm detained the day after I enter, I'm not going to have a very good case. "

"On the other hand, if I'm not, and I happen to make a life here, and I'm here for 20 years, and I get married and I have a child, I'm going to have a strong case. "

and he's going to... he's willing to take his chances.

Mr. Srinivasan: Well, two responses.

First of all, that's not true with respect to adjustment of status, because someone who reentered before IIRIRA, at least if they reentered before 1984, couldn't have imagined that their marriage to a United States citizen would have given them a basis for adjustment, because adjustment simply was categorically unavailable to illegal entrants.

Justice Scalia: Did you say '84 or '94?

I couldn't--

Mr. Srinivasan: 1994, I'm sorry--

Justice Scalia: --All right.

Mr. Srinivasan: --I didn't... I... in '81, when he illegally reentered, through 1994, adjustment of status was categorically unavailable to people who illegally reentered, so he couldn't--

Justice Kennedy: And--

Mr. Srinivasan: --have relied on the availability of that form of relief.

Justice Kennedy: --And the executive couldn't weigh that.

You say, categorically, it... there's no--

Mr. Srinivasan: It simply wasn't provided--

Justice Kennedy: --no possibility for discretion.

Mr. Srinivasan: --It simply wasn't provided for by statute.

A precondition of eligibility for adjustment, until 1994, was that the person was not an illegal entrant.

So--

Justice Kennedy: Well, could the... could the INS have just stayed its hand for... in--

Mr. Srinivasan: --I mean, I suppose they could have stayed their hand, in the sense that they wouldn't have applied the immigration laws to begin with, but I don't think there--

Justice Kennedy: --No.

Mr. Srinivasan: --would have been any basis to stay their hand, in the sense of granting--

Justice Scalia: Can't imagine that.

Mr. Srinivasan: --adjustment of status.

I'm sorry?

Justice Scalia: I say, I cannot imagine that.

No.

Justice Breyer: I... but I... I didn't understand this now.

I guess I don't.

Forget the '94/'96 periods.

Mr. Srinivasan: Sure.

Justice Breyer: Suppose it had stayed the same throughout.

Would you say, then, that someone who came illegally into the country, and he's caught, and he's married to an American, there's no possibility he can stay, no matter what, no matter how appealing?

Is that the answer?

Mr. Srinivasan: Not with respect to adjustment of status.

Justice Breyer: I'm... yes, but you're talking technically.

Mr. Srinivasan: Yes, I'm speaking--

Justice Breyer: Maybe there's--

Mr. Srinivasan: --technically, but--

Justice Breyer: --some other way you could stay.

What's the other way?

Mr. Srinivasan: --There is... there's another form of relief that--

Justice Breyer: Yes.

Mr. Srinivasan: --conceivably could give them a claim--

Justice Breyer: Which was what?

Mr. Srinivasan: --and that's suspension of deportation--

Justice Breyer: All right.

Well--

Mr. Srinivasan: --which is the same--

Justice Breyer: --then it comes to the--

Mr. Srinivasan: --But--

Justice Breyer: --same thing.

So, that... what I'm thinking is that a person who is here, and they marry an American... all right +/?

they marry a citizen.

Now, before this Act was passed, there was a way that if they're really good... let's assume they're the best human beings around, and the attorney general finds all that out, and everybody knows this is like a saint, and they say,

"Okay, you behave well enough. "

"You can stay. "

Now, after the Act is passed, all those relevant actions have taken place in '86, long before.

Now, there's absolutely nothing they can do.

All they can do is go home.

And now I've learned that when they go home, they will be told,

"You cannot come back, no matter what, for 5 years. "

Now, that's a pretty harsh consequence, to separate yourself from your family or have your family come to a foreign country.

So, if I think the first part of this is a wash, you have a great argument, they have a great argument, and I look to the second part, does it attach new consequences to old and unchangeable behavior?

I say, yes, it sure does.

Now, why doesn't it?

Mr. Srinivasan: --Well, there's a lot in that question.

Let me just try to address it one step at a time.

With respect to whether it attaches new legal consequences, I think you were right, Justice Breyer, earlier, in asking about what would happen if he had gone back voluntarily.

Now, it's true that if he had been removed, then there would have been the consequence, in the sense that there would be a period of inadmissibility, at least presumptive inadmissibility, a period, which, by the way, is subject to waiver, which he could apply for.

But if he had just gone back voluntarily after IIRIRA's enactment, or, indeed, in the 6-month window between IIRIRA's enactment and IIRIRA's effective date, my understanding is that there would have been no presumptive period of inadmissibility.

Justice Breyer: Ah.

So, then, you're saying the answer I got before was wrong--

Mr. Srinivasan: I think--

Justice Breyer: --that, in fact--

Mr. Srinivasan: --I think that's correct.

Justice Breyer: --I now have my client in, he's come after IIRIRA has been enacted, and he says,

"I've heard about this in IIRIRA, and what in heaven's name am I supposed to do? "

And the lawyer says,

"Get out fast, next train. "

"Go back. "

"And if you get across that border, you're safe. "

"Because at that point, you can apply; and you're a saint, and you've been married, they'll let you right in, because they'll find out. "

That's what your view of the law is.

Mr. Srinivasan: That's my understanding of the law.

Justice Breyer: It must be the one way or the other.

Mr. Srinivasan: Well, the five... the 5-year period that Petitioners... Mr. Gossett was referring to, I think, relates to the period after the point in time at which somebody's deported or removed.

And so, his initial deportation--

Justice Breyer: No, in... and this is not... I was saying the question--

Mr. Srinivasan: --He would--

Justice Breyer: --would be, Is this Act attaching consequences to old things that you couldn't do anything about?

And you're saying,

"Not entirely. "

"You can. "

"You can leave. "

"In which case, you'll be no worse off, except for the train fare. "

Mr. Srinivasan: --That's right.

Justice Breyer: Okay.

Mr. Srinivasan: That's my--

Chief Justice Roberts: That--

Mr. Srinivasan: --understanding.

Chief Justice Roberts: --That person has not illegally reentered the United States?

He's gone back, but he did illegally reenter the United States.

He wouldn't be covered by the same provision that we're talking about?

Mr. Srinivasan: No, he... you're right, Mr. Chief Justice, that it's... that he's illegally reentered.

But he wouldn't be covered by this provision, because all this provision seeks to do is to remove him.

And then, once he's gone back, this provision simply ceases to have any relevance to him at all, because he's, in some sense, self removed.

And so, he... any ineligibility wouldn't stem from this provision, it would come from somewhere else.

And, as far as I'm aware, he wouldn't... he wouldn't be subject to the 5-year period of inadmissibility that's imposed by a separate provision and that would attach if he were removed, because, by hypothesis, he wouldn't have removed, he would have gone back on his own accord.

Justice Scalia: And even if he was, that was waivable.

Mr. Srinivasan: That's right.

That's subject to waiver, which is another--

Justice Scalia: Just as he doesn't automatically get admitted because he's married, does he?

Mr. Srinivasan: --Right.

That's--

Justice Scalia: That's discretionary, as well.

Mr. Srinivasan: --That's discretionary--

Justice Scalia: So, it's--

Mr. Srinivasan: --at the end of the day--

Justice Scalia: --one discretion--

Mr. Srinivasan: --as well.

Justice Scalia: --and another discretion.

Mr. Srinivasan: Right.

And we lay this out in some detail in a... in a footnote in our brief.

And that's at... that's at pages 39 to 40.

But that footnote, I should point out, doesn't deal with your hypothetical, Justice Breyer, which is that he goes back of... on his own accord.

And, I think, in that situation what he would do is what people ordinarily do when they're seeking to gain lawful admission to the country, which is to apply for admission on the basis of what would have been whatever relationships he could have asserted at that point.

Now, he wasn't married at the time that IIRIRA was enacted, so he wouldn't have used his marriage as a basis for coming in, because he wasn't married as of yet.

But I think that cuts more against him, rather than in his favor, because--

Justice Ginsburg: In the instance--

Mr. Srinivasan: --of course--

Justice Ginsburg: --of a child--

Justice Stevens: May I ask this--

Justice Ginsburg: --who had... he had a relationship to a child in the United States.

And couldn't that have counted for suspension of deportation or removal, whatever terms I use now?

Did--

Mr. Srinivasan: --It--

Justice Ginsburg: --for a hardship claim, a parent child relationship?

Mr. Srinivasan: --That's right, Justice Ginsburg, it would count for purposes of suspension of deportation, which was renamed cancellation of removal.

But that form of relief is available to somebody who's inside the United States, and I was meaning to address the situation where he has voluntarily removed himself from the United States and is seeking admission from, presumably, Mexico, in which case, suspension of deportation wouldn't really come into play, because deportation wouldn't be on the table.

But, you're right that if he had stayed in the country, suspension of deportation is a form of relief that he would have been eligible for... eligible for, pre IIRIRA.

But, with respect to suspension of deportation, I think it's important to understand that that form of relief required an... a period of presence in the United States of 7 years before one could gain eligibility to seek that relief.

And so--

Justice Ginsburg: He was here... he was here for 20--

Mr. Srinivasan: --He--

Justice Ginsburg: --20 years, though.

Mr. Srinivasan: --He was.

So, he would have clearly met that eligibility criteria... there is no question about that... under the preexisting law.

But if you put yourself in the position of somebody who is entering, pre IIRIRA, and is trying to determine whether suspension of deportation is relief that would be realistically available to them, you'd have to think that they would act on... in reliance on their ability to stay in the country for 7 years, and to remain undetected, only at which point they would qualify for suspension of deportation.

And that not only seems to me, as a factual matter, somewhat farfetched, but it's not clear that the law should attach significance to that sort of reliance--

Justice Ginsburg: Is it--

Mr. Srinivasan: --interest.

Justice Ginsburg: --Is it farfetched, in view of the history of now I... before INS, weren't there a great many people who got here and... just as this Petitioner... who just lived here for years and years, and were never disturbed?

Mr. Srinivasan: As an... as an empirical matter, I think that's right, Justice Ginsburg, but I'm not sure that that necessarily means that that's a legitimate expectation or a reasonable reliance interest of the type that the Court would typically take into account in its retroactivity inquiry, because at the end of the day what it is, is a reliance interest that's predicated on essentially lack of prosecutorial resources, or a favorable exercise of prosecutorial discretion in some sense.

And the Court hasn't attached significance to that sort of reliance before.

It's--

Justice Scalia: Or, put more starkly, if I continue to violate the law for 7 years, I can count on this kind of treatment.

That's an odd reliance interest.

Mr. Srinivasan: --That's right, and--

Justice Scalia: Truly.

Mr. Srinivasan: --particularly taking into account the reasonable reliance... the category "reasonable reliance" is designed to take... is designed to--

Justice Stevens: --May I ask--

Mr. Srinivasan: --account for its fairness--

Justice Stevens: --this elementary--

Mr. Srinivasan: --interests.

Justice Stevens: --an elementary question, just to be sure we all agree on this?

You do agree, do you not, that if, in 1997, Congress passed a statute that said you should get an extra $50 penalty for having come in, back in 1981, that would not be permissible?

Mr. Srinivasan: Right.

I think the presumption--

Justice Stevens: And--

Mr. Srinivasan: --against retroactive--

Justice Stevens: --And there's sort of an irony in the fact that the actual consequence here is a great deal more serious.

Mr. Srinivasan: --Well, the consequence of removal is more serious--

Justice Stevens: Yes.

Mr. Srinivasan: --than... in some sense, than a $50 penalty.

That's right.

But this is a person--

Justice Stevens: Which is constitutionally prohibited.

But the consequences here are permitted.

I understand the analysis.

It's like just saying we take away one ground for staying that we didn't have before.

But looking at it in kind of a basic sense, that seems... it's a fairly serious thing--

Mr. Srinivasan: --That's right, but--

Justice Stevens: --that happens, and it effects an awful lot of people, doesn't it?

Mr. Srinivasan: --Sure.

I think it affects anyone who had illegally reentered, at least.

But it's important to bear in mind that this is somebody who was already subject to a removal order.

So, in some sense, sending them back out of the country puts them in the same position that they would have been in under the old removal order.

And so, insofar as it has that effect on them, I think it's different than a $50 penalty that attaches to the primary conduct of illegal reentry, as such.

Justice Kennedy: Do you read the Tenth Circuit opinion as indicated it might have had a different result if he had been married before the enactment of the statute?

Mr. Srinivasan: There is that suggestion, I think, in Judge McConnell's opinion, and that's--

Justice Kennedy: How does that fit with the court's theory?

Mr. Srinivasan: --With the... with the Tenth Circuit's theory or--

Justice Kennedy: Yes.

Mr. Srinivasan: --I think--

Justice Kennedy: How does it--

Mr. Srinivasan: --the idea was... I think what the Tenth Circuit failed to recognize was that adjustment of status was categorically unavailable to somebody who illegally reentered before IIRIRA, at least before 1994.

And what Judge McConnell presumed was that it would have been available.

And his point was that even if it would have been available, it's farfetched to think that somebody would have thought not only about coming into the country, but coming into the country and then meeting a United States citizen, and become married to the United States citizen, and using that as sort of a reliance basis for not applying the law retroactively to somebody who had come in beforehand.

But I think that was based on a misimpression about the availability of adjustment of status.

Now, I'd like to address, briefly, if I could, the argument at step one of the Landgraf inquiry concerning the negative inference the Petitioner seeks to draw from the "before or after" clause... so called "before or after" clause.

And the two provisions can be compared side by side at pages 2 and 3 of the Government's brief, and that's in the body of the Government's brief.

The fundamental flaw with the argument at step one is that the 2, referred, by terms, to the date of the INA's enactment.

Now, what we've reflected is the codified version, which refers specifically to the date of June 27 of 1952.

But even the INA itself referred to the date of the enactment of this Act, which can only be seen to refer to the INA itself.

So, if this language had been carried forward in Section 1231(a)(5), it still would have been a reference to the date of the enactment of the INA.

So, it would refer to somebody who was deported before or after 1952.

Now, I think, as Justice Alito suggested, the probable reason that Congress decided not to carry forward this language is because the question of whether someone was deported before or after 1952 doesn't have a great deal of practical significance at this point in time.

But whatever one might think was the actual reason for Congress's failing to carry forward the language, I don't think that you can draw any negative inference from Congress's failure to carry forward that language, at least certainly not the negative inference that Petitioner wants to draw.

In fact, the negative inference that one would draw, if one were going to do so, is that the Section 1231(a)(5) applies only to people who were deported initially after 1952.

But that sort of negative inference wouldn't be of much assistance to Petitioner, or any other person, for that matter, that illegally reentered before IIRIRA, at least as a practical matter, because everybody, I think, in that category, would have illegally reentered... or would have been deported after 1952--

Justice Scalia: I'm not sure that gives the other side the... you know, the benefit of their argument.

I think what they're arguing is not just that it was deleted, but that it was not replaced by... whether IIRIRA, rather than the date of the INA.

I have... nobody thinks that they would leave in June 27, 1952, but why wouldn't they have substituted, for that, the date of this new legislation, the date of IIRIRA?

I think that's the point he's making.

Mr. Srinivasan: --Well--

Justice Scalia: And isn't there something to that?

Mr. Srinivasan: --I... it's... there's certainly not enough there to make the argument that he's making, I don't think, because what was... what Congress did was to replace that provision with utter silence.

And from that utter silence, I don't think there's any way to read into it that Congress meant for the applicability of Section 1231(a)(5)--

Justice Scalia: Just getting rid of old language that was no longer--

Mr. Srinivasan: --That's right.

Justice Scalia: --or intentionally not adding new language.

Mr. Srinivasan: That's right.

I don't think there's any way to read into it the inference that Congress meant to hinge the applicability of Section 1231(a)(5) on IIRIRA's enactment date.

There never was a proposal on the table to hinge Section 1231(a)(5)'s applicability on IIRIRA's enactment date.

The only possibility was to keep the old provision in the statute books unaffected, and the decision not do that doesn't have the negative inference that Petitioner suggests.

If the Court has no more questions--

Rebuttal of David M. Gossett

Chief Justice Roberts: Thank you, Counsel.

Mr. Gossett, you have 2 minutes remaining.

Mr. Gossett: Thank you, Mr. Chief Justice.

Only a few points I want to make.

The first is that illegal reentrants' reasonable expectation that they might grow into relief, as Mr.... the Chief Justice said, not only is reasonable, but has a statutory basis.

Suspension of deportation and cancellation of removal, by their very terms, are only available to aliens who were illegally present in the United States for the relevant time period, and, therefore, these forms of relief specifically exist to... for such aliens.

That people have a reasonable reliance interest in unlawful acts over time is also demonstrated by such doctrines as the doctrine of adverse possession, statutes of limitations/laches, et cetera.

Second, Justice Breyer, your... it is the case that were he to have been... have left after the enactment of this Act, he would be kept out for... inadmissible for 5 years.

That's 8 U.S.C. 1182(a)(6)(B).

Because he had reentered the country within 5 years of his 1981 deportation, he... under the Government's interpretation of that statute, he would be inadmissible for 5 years from... even if he were to releave in 1996, he would have been ineligible to reenter for 5 years.

Justice Breyer: So, a person who just leaves voluntarily, having reentered illegally, cannot come back for 5 years, no matter what, under 1156(a)(6)(B).

Mr. Gossett: The former... that was repealed--

Justice Breyer: That was repealed.

Mr. Gossett: --in 1996.

But, yes--

Justice Breyer: Yes.

Mr. Gossett: --that would have... as part of IIRIRA... but if he had waited til IIRIRA took effect, then it would have been... he would have been subject to this--

Justice Breyer: All right.

Mr. Gossett: --provision.

The--

Chief Justice Roberts: Thank you, Mr. Gossett.

Thank you.

Mr. Gossett: --Thank you, Your Honor.

Chief Justice Roberts: The case is submitted.

Attribution:

The Oyez Project

Featured:

Clark v. Martinez - Oral Argument

Fri, 09 Jan 2009 14:49:00 +0000

Case:

Clark v. Martinez

Media File:

03-878_20041013-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: We'll hear argument next in No. 03-878, Clark v. Martinez, and No. 03-7434, Benitez v. Rozos.

Mr. Kneedler.

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

These cases implicate the fundamental power of the United States to protect its borders by excluding aliens who arrive at its borders, but are found under the law not to qualify for admission.

This Court held more than 100 years ago in Nishimura Ekiu that the power of a nation to forbid the entrance of foreigners within its dominions is inherent in sovereignty and is central to self-preservation.

If it were otherwise, the integrity of the Nation's borders and its security would be at the mercy of a foreign power who might choose to foist aliens onto our country or to the self-help efforts of aliens who might leave another country coming to our shores.

The migration crises involving Haitians and Cubans over the last 35 years vividly illustrate the adverse consequences of such a regime, and events of recent years confirm that the threats to the Nation's borders and security are not limited to nearby nations.

Justice Scalia: But this Court held only 3 years ago that the statute before us here does not permit the Attorney General to hold the alien indefinitely.

Mr. Kneedler: The... the Court addressed one of the statutes before the Court here.

It's... it's important I... I think to recognize another statute and... that is... reflects the background principle of this Court's decision in Mezei.

And if I may explain, to do that.

This Court made clear in Mezei that an alien has no substantive due process right to enter the United States when the executive branch has determined, under the law, that he has no right to enter the United States.

The relevant--

Justice Stevens: But, Mr. Kneedler, recognizing that distinction, is that a distinction drawn by the statute that's before us?

Mr. Kneedler: --Yes, I believe it is, but it... but... but first of all, there is another statute which is highly relevant to this, and that is 1182(d)(5)(A), the parole statute.

It is the parole statute that... that has long governed whether an alien who arrives at our shores and has not been shown to be admissible may enter the United... may enter the United States.

The parole statute is set forth at petition appendix 3a... excuse me... page 3a of our brief.

That is the only statute that affirmatively authorizes aliens to enter the United States.

That statute is... obviously confers no rights.

It is written entirely in terms of the discretion of the Attorney General, now the Secretary of Homeland Security.

It says the Attorney... the Secretary may, in his discretion, temporarily under conditions that he prescribes and for urgent and humanitarian reasons, parole an alien into the United States.

But it says that parole does not constitute an admission, and it may be revoked at any time when the Secretary in his opinion concludes that the purposes of the parole have been satisfied.

Justice Breyer: So are you... are you arguing now that... that (5)(A)... (d)(5)(A), is the statute under which you are detaining him and that 1231(a)(6) has nothing to do with the case?

Mr. Kneedler: No.

They... they are independent authorities for the detention--

Justice Breyer: So... so you're arguing... then you are.

You're saying... this is coming to me a little bit anew.

I perhaps didn't read it carefully enough.

But I thought... let's assume you lose on 1231(a)(6), that I can't think of a way.

Let's assume that I can't think of a way of applying the same words to your alien to mean something different than were applied to the alien who was in Zadvydas.

Suppose you lose on that point.

Now you're saying, well, independently of that, we have a different statute under which we can detain him, namely 1182(d)(5)(A).

Is that--

Mr. Kneedler: --Yes, absolutely, and the... and the--

Justice Breyer: --Now... now is that argument... I mean, I'm sorry that I--

Mr. Kneedler: --Yes, and we... we make... we do make that argument in our brief.

Justice Breyer: --and that... and so is that made in the courts below and everything that they're doing in the cases--

Mr. Kneedler: Yes.

We made it at... we made it in both courts below, and we... and we think it's clear from the background of... of this statute that it does... that it does confer independent authority.

Justice Scalia: But this statute just... just goes in a circle because it ends.

The way end... (A) ends is that after revoking the parole, the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States, which refers you back to... to 1231(a)(6).

Mr. Kneedler: No.

With respect, it doesn't.

1231(a)(6) is an additional... on its face is an additional grant of detention authority.

It is not... but whereas, the... the parole authority which... which for years until--

Justice Scalia: Well, this shall continue to be dealt with in the same manner as that of any other applicant--

Mr. Kneedler: --And an--

Justice Scalia: --Dealt with includes, it seems to me, 1231(a)(6).

Mr. Kneedler: --An applicant for admission includes anyone who has been found not to be admissible to the United States.

8 U.S.C. 1225(a)(1) provides that any... any alien in the United States who has not affirmatively been found to be admissible is an applicant for admission.

And the... the statutes dealing with applicants for admission or aliens who arrive at our shore establish that detention, even indefinite detention, is... is not only permitted, but required unless the Secretary releases someone.

Justice Ginsburg: How would that... how would that apply to someone who hasn't gotten parole, hasn't gotten any permission, who snuck across the border?

That's one of the pieces of this that's incomprehensible, that you are suggesting someone can be detained indefinitely who we allowed in temporarily, but such treatment could not occur with respect to somebody that had no permission at any time to be here.

Mr. Kneedler: Yes.

Well, the... the parole statute... if someone was taken into custody, the parole... who had sneaked across the border, that person, under the 1996 revisions, is an applicant for... for admission, and the parole statute would govern that.

As a constitutional matter, and particularly with respect to procedural due process, the Court has suggested in a number of its cases that there may be a difference between somebody who arrives at our borders and... and is stopped and somebody who... who sneaks through.

At least as a procedural matter, the Government would have to establish that he has no right to be here.

But--

Justice Souter: But may I--

Justice Kennedy: Well, are... are you saying that if an alien on... who seeks admission and is denied admission and is at Ellis Island or the JKF Airport, that the Attorney General is... does not have to consult 1231(a)(6)?

Mr. Kneedler: --No.

We believe the parole statute furnishes independent authority--

Justice Breyer: --Where does it say... I mean, the reason I guess I missed it is because when I looked at your table of contents and elsewhere in the brief, it seems phrased totally in terms of 1231(a)(6).

That's the heading.

Each argument seems to support that.

And then on page... you know, when you refer to this, I guess on page 26, you're talking in a section about what 1231 must be because of the structure of it.

And then you refer to other provisions such as the one you're now mentioning.

I just didn't pick up that it was a totally independent basis.

Mr. Kneedler: --Right.

And... and if I may, the... the special statutes that govern the parole of Mariel Cubans that we reproduce in the appendix to our brief at 212.12 were promulgated in 1987 before 1231(a)(6) was enacted in 1996.

Justice Breyer: All right, but where does it say that?

I'd like to just glance at it even now.

Where does it say that in your brief, that it's a totally independent basis?

Mr. Kneedler: On page 12... 26 to 27.

Justice Breyer: That's what I read and it was in a structure called the statutory and... text and structure support the Secretary's detention authority, which is under a bigger heading saying the text, structure, and history of section 1231(a)(6) confirm the executive branch's authority.

Mr. Kneedler: I should... I should also--

Justice Breyer: So perhaps I could be forgiven for not understanding--

Mr. Kneedler: --And... and I should also point out that... that in... in our response to the petition in the Benitez petition, we expressly... we expressly argued that 1182(d)(5)(A) is an independent source of authority.

Justice Kennedy: But if... if there's a statute that directs you with reference to a class, that statute is applicable, and this person is within that class.

So how can you tell us we can't go or that we needn't go to 1231?

Mr. Kneedler: My... my point is that's not the exclusive basis.

I'm not saying that it's inapplicable to this category.

But--

Justice Kennedy: Well, it might be exclusive constitutionally, but the Congress has acted.

Mr. Kneedler: --Or... or--

Justice Kennedy: And once it's acted, you're controlled.

Mr. Kneedler: --Well, or... or... but... but what Congress... if I may go back to the parole statute, before 1231(a)(6) was enacted, the only statute that governed the detention and the release of aliens arriving at our shores, what used to be called excludable aliens, was the parole statute.

That provision... until the aliens before this Court were ordered--

Justice Scalia: By which you mean... parole statute, by which you mean?

Mr. Kneedler: --1182(d)(5)(A).

Yes.

Justice Scalia: Okay.

Mr. Kneedler: And until there is an order of exclusion, even now the parole statute is the only statute that governs the detention and release of the alien.

And I think it would be impossible to read into 1182(d)(5)(A) any 6-month limitation or any limitation at all on how long someone can be detained because that statute sets up a presumption of custody with release only in the discretion of the Attorney General, or now the Secretary of... of Homeland Security.

Justice Souter: --May I interrupt you there, Mr. Kneedler?

Because I mean, the question is whether constitutionally we should respect that presumption.

And... and my... my question basically is this.

I can perfectly well understand and I can understand the... the argument for respecting that presumption.

When you're dealing with excluded aliens who are in a literal territorial sense within the border but are never allowed, in effect, beyond a point of initial custody, the ones who are kept at Ellis Island or wherever one may... may keep them.

It is difficult, however, I... I think to accept what has been called the... the fiction of custody.

When we are dealing with individuals who, although absolutely excludable, were nonetheless welcomed into the United States by a public announcement of the President of the United States, have been allowed into the American population, just as clearly and as readily as they would have been under any other protocol of admission... and I guess in this case for something like 20 years... isn't there a point at which the... the fiction of exclusion simply cannot be accepted for constitutional purposes?

Mr. Kneedler: There are a number of responses to that.

First, as a factual matter, with respect to welcoming into the United States, what gets cited for that proposition is a statement by President Carter in May 5 of 1980.

10 days later, before the aliens in this case came to this country, he made clear that people should not do this.

He encouraged people not to go to Cuba.

The INS brought enforcement actions against people who went there.

There were criminal prosecutions that were brought.

So people were not encouraged to come to the United States in this way.

With respect to the regime that you say... I believe you said they're... they're admitted just like under any other regime.

That is not correct.

Justice Souter: Well, factually.

They're allowed into the country.

You know, they can get jobs, own property, et cetera.

Mr. Kneedler: They were allowed into the country under the parole statute that I just read, which makes... which makes it clear that they are admitted not... not in a way that confers any rights on them, but they are admitted in the interest of the United States for public benefits under circumstances which make clear that it is not an admission and that--

Justice Souter: No.

I realize but they are admitted in the sense that they say, okay, you can come in and you can do these things, but you get no... in effect, you get no vested right.

We can take it away like that.

Mr. Kneedler: --No... no vested right to come into the United States.

It is, in effect, a revocable--

Justice Souter: All right.

But otherwise... otherwise they are treated like any other class of aliens who are admitted into the United States.

They are subject to this condition.

The United States makes that clear, but they nonetheless can be in the country and do in the country what other aliens can do.

Mr. Kneedler: --At the sufferance of the United States.

Justice Souter: I... I know.

Subject to that condition.

Mr. Kneedler: And... and the question we have here is when the... when and if the United States, pursuant to this statute, decides no longer to suffer the aliens being at large, but instead return them to the border, in effect, or return them to detention, this statute makes clear that that... that whatever practical experience they have had at large in the country is always subject to revocation--

Justice Souter: No.

I... I realize that, but the problem is you've got a Due Process Clause that talks about persons not citizens.

Maybe I can understand the... the fiction that says it doesn't apply to these persons if, for practical purposes, we stop them at the border and we don't let them into society.

Once we do let them into society, whether we say it's subject to this condition it can be revoked or not, I find it difficult to see a constitutional warrant for drawing the line that you want us to draw.

Mr. Kneedler: --This Court has always treated as the same the custody of an alien who arrives at the border and has not been admitted, whether that person stays on the boat, goes to Ellis Island, which the Court said was not an entry that gave somebody constitutional rights to come here.

In the Kaplan v. Tod case, you had the example of a person who was paroled for 9 years and regarded as not being in the United States.

And what the--

Justice Souter: You're giving me prior examples, but the issue here is should we continue to respect that... what has been called that fiction as to people who are allowed into the country and are allowed to move around like other aliens and, indeed, and by and large like citizens.

Mr. Kneedler: --With respect, I think it is not... it is not a fiction with respect to the constitutional issue because there's a critical difference between, for example, a lawful permanent resident... a person does not acquire lawful permanent resident status by something like adverse possession, by living in the United States for a long period of time.

It is an affirmative grant of status for permission to reside permanently in the United States.

It is a grant of a status--

Justice Ginsburg: Which can be revoked.

Which can be revoked, and that's the... the distinction that seems to me strange.

When somebody commits a deportable offense, they are stripped of whatever right they had to be here.

They are, it seems to me, in the same boat as someone who is excludable.

They... they do... do not have any right to remain no more than a parolee has.

We have taken away their right to remain.

So it seems to me that they have no status anymore based on a prior admission that we have removed from them.

Mr. Kneedler: --This Court... this Court thought otherwise in... in Zadvydas 3 years ago where it drew a distinction.

It said the distinction between someone who has never entered the country and someone who has effected an entry--

Justice Breyer: --That's true.

That's true.

Absolutely we did.

And also, I'll assume for argument's sake that you're completely right on the constitutional point.

That's just for argument's sake.

But assume you are.

So there's all kinds of constitutional difference.

Still, I don't see how to read the statute one way for one group of people and another way for another.

The statutory words in Zadvydas, the words that the Attorney General may detain this individual beyond the removal period, are read in Zadvydas to mean beyond the removal period... may detain beyond the removal period means for a reasonable time, presumably 6 months, presumptively, related... reasonable time related to the purpose of the statute which is to find a country willing to accept them.

Okay?

Now, I haven't found a single case of this Court where you interpret these complicated words one way for one and another way for another.

My law clerk found a couple of cases, Communications Work v. Bett and Machinists v. Street, where in Bett particularly the Court strongly implies the contrary.

It says you can't read words differently just because we interpreted in one... you know, one statute, they were interpreted in light of constitutional considerations, and now we have... those constitutional considerations aren't here, but it's the same words.

You have to apply it the same.

Mr. Kneedler: --But... but, with respect, the Court did not construe any word in this statute to impose the limitation that you're describing.

The... the way the Court posed the question was does it... does it affirmatively grant a power for detention of these aliens in these circumstances.

At the very beginning of the Court's opinion, the Court put to one side--

Justice Scalia: That's an interpretation.

Mr. Kneedler: --Pardon me?

Justice Scalia: It says... that's an interpretation.

Mr. Kneedler: But... but--

Justice Scalia: It says the statute does not confer power to hold beyond a reasonable period.

Mr. Kneedler: --But... but the... the mode of analysis of the Court... it starts with the introduction to the Court's opinion, and this is at page 682.

It says... of... of Zadvydas.

We deal here with aliens who are admitted, aliens who have not yet--

Justice Breyer: Yes, yes.

That's right.

Mr. Kneedler: --No.

But... but that... that's setting the Court... the case up.

But then what the Court says, in terms of how it interprets the statute, we construe the statute to contain an implicit reasonable time limitation, the application of which is subject to Federal court review.

Well, what is a reasonable time depends upon the circumstances.

Justice Breyer: Well... well, yes, but what... what... we put in the presumptively 6 months, but we said in our view the statute, read in light of the Constitution's demands, limits an alien's post-removal period detention to a period reasonably necessary to bring about that alien's removal from the United States.

It does not permit indefinite detention interpreting it to avoid constitutional threat.

We include that once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.

Now, I don't know what those sentences are doing unless they're interpreting the words I mentioned.

And then later in the opinion, we say it's presumptively--

Mr. Kneedler: No.

What... what--

Justice Breyer: --not always, but presumptively 6 months.

Mr. Kneedler: --What... what the... what the Court was doing was... the... the standard that the Court announced at the beginning of its opinion was a reasonable... a reasonable time limitation, the application of which is subject to court review.

As applied to permanent resident aliens, the Court saw a... a constitutional problem and, in that situation, came up with a presumptive 6-month rule.

Justice Breyer: Well, it interpreted the statute as doing it.

Now, that brings me back to the original question.

Mr. Kneedler: No.

No, I don't believe... with... with respect, what... what I believe the Court said was that there is a reasonable time limitation.

And given the... given the distinction that runs throughout immigration laws, this Court said at page 2,500 of the Supreme Court Reports in this decision, the distinction between aliens who arrive at our borders and are governed by Mezei, as opposed to people who enter, runs throughout our immigration law, I would think that it would run throughout 1231(a)(6).

Justice Souter: All right. I can... I can agree with you that the different classes are going to implicate different considerations on what is reasonable.

But you, as I understand it, go the further step and say there is a presumption, and perhaps an irrebuttable presumption, that in the case of the... the legally excluded, even though they are, in fact, in the country, the... the presumptive reasonable period is forever.

Mr. Kneedler: Well--

Justice Souter: And that's where... it's that stretch that's giving us the trouble.

Mr. Kneedler: --And... first of all, the Court doesn't have to decide that in this case because we have a regime where each of the aliens before this Court, came here, was paroled--

Justice Souter: That's true, but we've got to say something.

Mr. Kneedler: --But if... if I may go to the Mezei case, what the Court said there is that the detention of the alien on Ellis Island was effectuating his exclusion.

The two cannot be distinguished from one another.

Justice O'Connor: Well, Mr. Kneedler, do you mind telling us whether the record shows where Martinez and Benitez are now?

Where are they?

Mr. Kneedler: Benitez has been released to a half-way house.

We sent the Court a letter--

Justice O'Connor: That's what I thought.

Mr. Kneedler: --last week showing that the review process under these regulations actually works.

It's been working for 15 years.

And as we explain in our brief, more than 9,000 people have been granted parole here.

Justice O'Connor: So is that case basically moot?

Benitez's?

Mr. Kneedler: He hasn't been... he hasn't been... I think he's still in... in custody.

Whether... if... if he... if he completes that and is released, a question of mootness may arise at that point.

Justice O'Connor: Where's Martinez?

Mr. Kneedler: Martinez was released pursuant to the court... district court order almost 2 years ago, and he's... he's now at large under an order of supervision.

Justice Scalia: Mr. Kneedler--

Justice O'Connor: Now, if I can continue for just a moment and then I'll stop.

There is a new statute, 1226(a) of title 8, part of the Patriot Act, which allows detention of aliens who threaten our safety or security.

Presumably that is an option if either of these people is seen to do that.

Mr. Kneedler: If... if there's an... if there is an individualized reason to believe that an alien would be a terrorist or... or a threat to the security in that respect, but the threat to the--

Justice O'Connor: And that's available, is it not?

Mr. Kneedler: --That... that's available, but the threat to the national security here is much larger than that.

If... again, if we go back to the immigration crises involving Haiti and Cuba, there... there is a threat to the national security when another nation can foist aliens onto our shores, and... and--

Justice Stevens: May I ask you about--

Mr. Kneedler: --if the United States had no ability to... to deflect--

Justice Stevens: --Mr. Kneedler, can I ask you a question, forgetting the statutes for a moment... I... which we've already covered at some length?

Just going to your constitutional position, it's clear that a person who's not been admitted and has been paroled could be excluded forthwith, summarily, and so forth because he's never been admitted.

But does that person have any protection under the Constitution?

Could we shoot him?

Mr. Kneedler: --No, no, surely.

What... the... the--

Justice Stevens: Then what is the protection under the Constitution that deals... is it the Due Process Clause?

Mr. Kneedler: --Whatever right... in... in a criminal prosecution the Bill of Rights would apply to that person.

Justice Stevens: Is he... is he a person within the meaning--

Mr. Kneedler: Yes.

We... our position is not that he's... not that he's not a person.

The question is what... is what process is due.

Justice Stevens: --And is he a person who has a right to liberty, entitled to some protection, very, very, very minimal, but there is some protection to that... that individual.

Mr. Kneedler: It... depending upon the context.

The one protection for liberty he does--

Justice Stevens: Well, the context is he got off a boat.

We couldn't... but Cuba won't take him back or... or whatever... wherever he came from.

They can't.

And the only thing we can do to keep him out of the country is to keep him in jail.

Mr. Kneedler: --He has no substantive due process right to be released into the United States.

Justice Stevens: He... he doesn't have a right to be released.

But... but you do not contend that we could kill him.

Mr. Kneedler: No, absolutely not.

Absolutely not.

Justice Stevens: He does have some... some minimal protection under the Constitution.

Mr. Kneedler: Absolutely not. The formulation... and this was used in... in the Court's decision in Landon v. Plasencia.

The... the question is there are no constitutional rights in connection with his admission to the United States.

And admission means, I think, both formal granted admission and practical admission or entry.

A person cannot--

Justice Breyer: A person who runs in illegally, a person who crosses the border illegally, say, from Mexico is entitled to these rights when you catch him.

Mr. Kneedler: --He's entitled to procedural due process rights.

We don't believe he... that person has any more substantive due process right to remain at large in the United States.

Justice Breyer: But you... you... I thought there was a reg of the INS.

Mr. Kneedler: No.

With... with--

Justice Breyer: Am I not right?

Mr. Kneedler: --With... with respect to the--

Justice Breyer: Tell me if I'm right.

Mr. Kneedler: --With respect to the regulations, but--

Justice Breyer: Can I say what it is?

Mr. Kneedler: --Yes, I'm sorry.

Justice Breyer: I thought there was a reg... to be sure we're talking about the same thing... where the INS has said that Zadvydas applies to individuals who run into the United States illegally from Mexico.

Am I right about that?

Mr. Kneedler: The... the INS has... or now DHS has applied it.

I... I don't know that there's an analysis in there that says Zadvydas requires it.

I don't think the... either the statute or particularly the Constitution would give somebody who sneaks across our border a right to remain here, a substantive due process right to be here.

Maybe procedural rights would be different, but a substantive--

Justice Ginsburg: But is that the current INS--

Justice Scalia: --Mr. Kneedler, may I... may I try to get in the question I did earlier?

Is... is 8 U.S.C., section 1182(d)(5)... was... was that applicable in Zadvydas, as it's applicable here?

Mr. Kneedler: --No, because those were lawful permanent residents whose... whose lawful permanent residency had... had... they came in under a grant of lawful permanent residency.

Justice Scalia: So this is a new string to your bow in this case.

Mr. Kneedler: Yes, because these aliens entered the United States only--

Justice Ginsburg: --But it wouldn't... it wouldn't apply to the illegal alien because it's a statute that governs parole and they're not paroled into the United States.

Mr. Kneedler: --But someone... someone who would be picked up would be an applicant for admission and could be released under this... under this statute.

But... but focusing here on the people excluded at the border--

Justice Ginsburg: How does that--

Mr. Kneedler: --this is the only way someone could--

Justice Ginsburg: --How does that make that person, the illegal entrant, a parolee?

Mr. Kneedler: --He would be an applicant for admission, and the... I... I believe... I believe I'm correct on that.

Justice Ginsburg: Suppose he says, I don't want to apply for admission.

I just don't want to be locked up.

Mr. Kneedler: The act treats him as an applicant for admission under 1225(a)(1).

Mr. Chief Justice, if I may--

Argument of Christine S. Dahl

Chief Justice Rehnquist: Very well, Mr. Kneedler.

Ms. Dahl, we'll hear from you.

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

Because the same words mean the same thing in the same statute, this Court need not reach the constitutional questions presented by the indefinite detention of inadmissible as opposed to deportable aliens.

Without going to questions of constitutional doubt, there are three reasons why this Court should hold that section 1231(a)(6) treats inadmissible aliens the same as it treats deportable aliens.

Justice Scalia: Before you get to that, do you think that that's the only statute applicable here?

What about 1182(d)(5)?

What's your response to the Government's assertion that that's an independent basis?

Mr. Dahl: Justice Scalia, I don't believe it provides an independent basis for detention.

The immigration law works together in it's various elements, and section 1182, when parole is revoked, treats the alien then as an applicant for admission, and section 1229 places the applicant for admission into removal proceedings.

The Government did not obtain a ruling on that argument from the Ninth Circuit, although it made reference to 1182 in its motions to stay the briefing schedule.

It ultimately conceded that this case was controlled by Lin Guo Xi, which was a statutory construction of 1231(a)(6), and cert was granted on the 1231(a)(6) issue only.

The reading of the statute that we proffer, that the same words mean the same meaning, is consistent with the overall changes Congress made in 1996 in IIRIRA when it eliminated the category of excludable aliens and replaced it with a single, broader category, now called removable aliens, that embraces both inadmissible and deportable aliens.

Third, Congress knows how to provide for indefinite detention when it wants to.

Chief Justice Rehnquist: Well, how do you explain then, Ms. Dahl, the language in the Court's Zadvydas opinion that had, were we dealing with, in effect, off-shore aliens, this would be a much different case?

Mr. Dahl: I believe it would present a different question, but the constitutional issues presented by indefinite detention remain.

The Court doesn't need to reach those--

Chief Justice Rehnquist: So you say that a person, even though they're not lawfully admitted into the United States, still couldn't be indefinitely detained.

Mr. Dahl: --Yes, Your Honor, that is our... our point precisely.

The Government was not correct when it said that it... that this Court has always treated excludable aliens the same.

In a case that was a contemporary of the Mezei decision, Kwong Hai Chew, cited at page 45 of our brief, the Court found that an excludable entrant on Ellis Island was entitled to--

Chief Justice Rehnquist: Well, the Government distinguishes that case.

What do you make of their distinction?

Mr. Dahl: --We disagree.

I think that it shows that the Court will consider length of time in the country in determining what amount of due process is required.

Now, the plain language of the statute of 1231(a)(6) requires the same treatment between inadmissible and deportable aliens.

Where there's no difference in the language that Congress has used, this Court can draw no distinctions.

There is a presumption that Congress expects its statutes to be read in the same manner as the Supreme Court's interpretation, and because of the interrelationship between the parole statute and the revocation proceedings and removability proceedings, there's no reason for this Court to resort to the 1182 statute to provide the authority that the Government seeks.

The relevant authority is section 1231(a)(6).

Justice Ginsburg: Well, what do you think we should do with the 1182?

Because suppose you prevail on your argument that it's the same statute, the same word, it can't be construed differently under 12-whatever, and the Government says fine.

We now go to the other string in our bow and we continue to detain this person on the basis of 1182(d)(5)(A).

Mr. Dahl: Well, the 1182(d)(5)(A) doesn't provide for indefinite detention.

What it provides is that upon revocation of parole, the alien is placed into removal proceedings.

Once the removal proceedings have been determined and a final order of removal is entered, 1231(a) requires removal within 90 days, and failing that, the appropriate... the relevant statutory provision is 1231(a)(6).

That says that the alien may be detained beyond the removal period and then, if released, subjected to conditions of supervision.

1231 is the only statutory authority for post-removal period detention.

Parole deals with entry and 1231(a)(6)--

Justice O'Connor: Well, but you haven't answered, I think, the question of whether the Government is entitled in this case, if we dispose of the 1231 question, to resort to the other statute.

Mr. Dahl: --I don't think that the Court could carve out a statute and use it in a way contrary to the way it functions in the immigration scheme and make superfluous or irrelevant a more express, more detailed statutory provision.

Justice Kennedy: Well, what you're saying is that even if 1182 comes first, 1231 comes second.

Mr. Dahl: Precisely, Your Honor.

And I don't think that the Government could revoke parole and then suspend proceedings to determine the admissibility of a parolee indefinitely.

Justice Breyer: But still, is this another... could... could we do this?

I noticed that... that your... the petition for cert in Benitez has two questions, both of which are about interpreting 1231(a)(6).

The Government's petition, though not its brief... the Government's petition in Crawford says the question presented is whether 1231(a)(6) in Zadvydas compelled a release.

So this other... this other matter is a totally... seen as a totally separate ground.

Perhaps the thing to do is we send it back, and if they want to raise it, they can raise it, and it would be up to the circuit to decide whether they had preserved it or not preserved it.

Is that... is that a sensible thing?

Mr. Dahl: I don't think so because I don't think that 1182 allows the interpretation that the Government--

Justice Breyer: And that's your view of... of what 1182 means, and they're going to have a different view.

If they want to argue their different view, they could do it in the Ninth Circuit.

If they've waived it, they've waived it, and that's up to them, not up to us.

Mr. Dahl: --What the Ninth Circuit found, though, in questions of an inadmissible alien, that this Court's construction of 1231(a)(6) in Zadvydas applied and there would be no need for resort to any other statute.

Justice Stevens: May I ask if you believe the supervision after the 90-day period covered in subparagraph 3... is there... can that continue indefinitely in your view?

Mr. Dahl: Yes.

While the alien is awaiting removal, he is subject to supervision conditions that will safeguard the Government's interests, and for as long as he is waiting, he is under supervision.

It's those supervision conditions that distinguish this case from the situation where the Government is finding national security risks.

That... Congress has expressly provided for the indefinite detention of people whom the Attorney General certifies as presenting risks to national security.

It's also the presence of a national security risk that distinguishes this case from the Mezei decision.

I think that the Government makes more of that decision than needs to be made in order to find that Mr. Benitez and Mr. Martinez are in different situations.

They were allowed into this country.

They have lived here for 24 years, and--

Justice Ginsburg: How long had the... the detainee in, however you pronounce it, Mezei lived in the United States?

Mr. Dahl: --Mr. Mezei had been in the United States for 25 years before he left, and he was gone for an extended period of time.

When he sought to return, he was treated as if he were an initial entrant, and the Government, citing national security, excluded him without a hearing and refused to disclose the evidence that was the basis for the exclusion.

He challenged that and wanted a hearing and wanted the Attorney General to be required to disclose the evidence.

The Court found that his release into the community itself would present a security risk and therefore sustained the denial of the hearing and the detention of Mr. Mezei.

Justice Stevens: Well, I don't think it really said they... they found there was a security risk.

They... they held the Government did not have to explain because the man had no right to come in.

Mr. Dahl: That's correct.

Justice Souter: What's... what's your best answer to the Government's argument that unless you treat this case differently from Zadvydas, at least for purposes of reasonable time or reasonable interest, which affects time, the United States is basically defenseless against countries that... that want to dump undesirable aliens and force them into the United States?

Mr. Dahl: I don't think that applying the statute, as it's written, leaves the Government defenseless.

Justice Souter: Because.

Mr. Dahl: Congress can pass another statute, if it needs to, and the Government--

Justice Souter: But it's defenseless under the present law?

Mr. Dahl: --I disagree.

We have--

Justice Souter: Then what is the defense?

Mr. Dahl: --We have very effective means of interdicting--

Justice Souter: What are they?

Mr. Dahl: --Well, after the Mariel boatlift, the Government changed its policy and now intercepts people who are coming from Cuba by boat and detains them at Guantanamo Bay, does a screening, and has a more effective repatriation process for people that they do not want to come in.

Justice Kennedy: You want us to take--

Justice Souter: So you're saying they can actually exclude, in practical terms.

Mr. Dahl: Yes.

That's exactly what--

Justice Kennedy: --You want us to take judicial notice that the Mexican border and American border is impervious?

[Laughter]

Mr. Dahl: --I think that would present a different question.

As the Government acknowledged, people who come into the country without inspection are entitled, under the Government regulations, to the protections under Zadvydas.

And--

Justice Scalia: And there's no... and... and there's no answer to Justice Souter's question with regard to people who... who... once they enter that way.

Right?

Mr. Dahl: --Well, the Government has--

Justice Scalia: Except a new statute.

Mr. Dahl: --Well, Congress has... has, by definition, treated those people as inadmissible aliens who are subject to removal proceedings.

And the interdiction methods are... they're purely political decisions that the Government needs to make.

Justice Souter: But they... in any case, those individuals are not the subject of sort of dumping action by their own governments.

Mr. Dahl: That's correct, Your Honor.

Justice Breyer: Does the... Congress has passed a special statute with respect to terrorism, hasn't it, where it does authorize detention of any of these people who are engaged in terrorism.

Now, I don't know how that's defined.

Is that defined to relieve in a way that's broad enough to relieve some of the problem?

Mr. Dahl: Well, if... well, first of all, the Government has the ability to detain, pending the removal proceedings, of people who are trying to come into the country.

The question becomes if they can't be repatriated.

Now, the Patriot Act in 1226(a) does allow, in instances of national security, for the Attorney General to indefinitely detain.

Now, importantly, that statute provides for procedural protections and judicial review, that is absent from--

Chief Justice Rehnquist: But are... are the people here charged with any sort of terrorist activities?

They were committed... convicted of crimes, but I... I didn't think they were connected with terrorist activities.

Mr. Dahl: --That's correct.

The Government has not made any allegation that there's--

Justice Scalia: Just normal, harmless criminals.

Chief Justice Rehnquist: Yes.

Justice Scalia: Right?

[Laughter]

Mr. Dahl: --Their release from prison presents the same issues that the release of any person who has served the sentences that were imposed after the commission of a crime.

Chief Justice Rehnquist: Well, except that with aliens, they can be deported, whereas a citizen can't be, upon release from prison.

Mr. Dahl: That's correct.

And the conditions of supervision that the Government can impose are much lengthier and could be even more onerous than the kinds of supervision conditions after prison that the Government could impose on its citizens.

In this case, Mr. Martinez and Mr. Zadvydas both received permission to live here.

Both committed crimes.

Both served their sentences and both were ordered removed.

Nothing in section 1231(a)(6) warrants making Mr. Martinez wait for removal in a Federal prison perhaps for the rest of his life, while Mr. Zadvydas awaits removal after having been released--

Justice O'Connor: I thought the other person was named Benitez.

I thought we had Zadvydas in the other case.

Do we have two, a Martinez and a Benitez, here?

Mr. Dahl: --Yes, Your Honor.

I was drawing a comparison between the situation with Mr. Zadvydas and Mr. Martinez.

Detention, of course, needs to be reasonably related to its purpose.

Here removal cannot be achieved.

So detention for that purpose becomes arbitrary and punitive, and we'd ask the Court to affirm the grant of habeas corpus and Mr. Martinez's release on supervision conditions.

Argument of John S. Mills

Chief Justice Rehnquist: Thank you, Ms. Dahl.

Mr. Mills, we'll hear from you.

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

I think that we have lost sight of the statutory scheme that applies here.

Section 1182(d)(5)(A) is not a detention statute.

It's clearly not preserved as an initial matter.

It was not in the answer to either habeas petition.

The justification given in the district court in both cases was 1231(a)(6).

But, Justice Breyer, there is no need to remand this case because a clear, simple reading of the immigration statutes demonstrates that 1182 is not a detention statute.

You have to go through the process, and I attempted to do this in my reply brief, but I think I can do it a little bit more clearly for the Court this morning.

When an alien first arrives, he's an applicant for admission.

Section 1225(b)(2)(A) of title 8, United States Code says an applicant for admission... any applicant for admission shall be detained until the removal proceeding unless it is clear, beyond any doubt, that they are entitled to come in.

So all aliens, when they apply... that's the detention statute that initially applies, 1225(b)(2)(A).

They are to be detained until there is a removal proceeding.

The removal proceeding, which is governed by 1229(a)(1)... I'm sorry... 1226(a)... it is 1229(a)... is to determine whether the alien is admissible or not, whether they should come in or whether they must be removed.

So 1225(b)(2)(A) says detain until that point.

1182(d)(5)(A) then comes in to authorize the Government to stop that process for humanitarian reasons and parole an alien in.

We won't have the removal process.

We're going to... we... we're going to get out of the detention in 1225(b)(2)(A), and we're going to let you out on parole, which is discretionary.

That's 1182(d)(5)(A).

If at any time, we in our discretion think it is no longer appropriate to keep you on parole, we can revoke that parole, and the statute 1182(d)(5)(A) says once parole is revoked, the alien is treated as, quote, any other applicant for admission.

So you go back to 1225(b)(2)(A), which says detain them until the removal proceeding.

Justice Souter: Well, you... you skipped a... a phrase.

It says when the Attorney General is of the opinion that the purposes of the parole justify nothing more, the individual shall return or be returned to the custody from which he began.

And their argument is that custody is different in these cases.

Mr. Mills: That custody is the custody under 1225(b)(2)(A).

That is the statute that authorizes the custody.

That's what they're being returned to.

1225(b)(2)(A) is detention until the removal proceedings.

And in the Demore v. Kim case, this case... this Court said that even if it's a long time and there aren't other procedures in place, you can be detained until your removal order is entered because... and... and the emphasis was there's an end date to that.

So there's an end date to detention under (b)(2)(A), 1225(b)(2)(A), and it's the removal proceedings.

Section 1231 is the statute that governs removal and says, okay, now what happens?

It says you have to remove within 90 days, but for certain aliens who've committed crimes or are inadmissible or are otherwise determined to be dangerous, we can detain them beyond.

It says may be detained beyond the period.

That is the only statute that authorizes any detention of an alien after a removal order other than the specific terrorist statute, 1226(a), which was enacted, which does not authorize indefinite detention.

It says... it has a paragraph labeled indefinite detention, and it says the Government shall not indefinitely detain a terrorist alien that it cannot remove except that if the Government determines... and... and it appears to put the burden on the Government... that the person is a danger to national security or the community, it can detain them for another 6 months.

And then you... you could have indefinite detention, but each time, each 6 months, the statute provides for review.

So not only do the sneakers, the aliens who cross across the border in the... in the dark of night from Mexico or wherever... not only do they under the Government's own admission have the Zadvydas rights, so too do terrorist aliens by statute.

And to suggest that by some implication Congress has intended to authorize the indefinite detention of people that we thought we should welcome into our country, even though we didn't have the ability under our quota system and under our current regulations in 1980 to let them in, somehow they have no rights against indefinite detention.

For the Government to--

Justice Ginsburg: How do you... how do you answer the Government's argument that this is necessary, that the United States shouldn't effectively be punished for being humanitarian, and if we can't hold these people, if we're forced to let them in, then any rogue nation can dump anyone it wants on the United States and we can't stop it?

Mr. Mills: --Yes, Your Honor.

Justice Ginsburg, that's their sole policy argument, and frankly, it doesn't hold water.

Just yesterday in the Jama case, the Government took the position that if Mexico flooded... flooded our borders with illegal aliens who we could not detain, we know under their own regulations, if they snuck in, we couldn't detain them, but if a new Mexican... there was a Mexican dictator and he flooded our borders, could we forcibly repatriate them?

And the Government said absolutely we can.

We can go down and put them back in Mexico.

We could do that with the Cubans.

We could let them out the gate at Guantanamo Bay.

If a... a rogue nation truly invades our country with its bad aliens, that is an infringement on our sovereignty, and I think that's an act of war.

And I think the President has all kinds of options: trade sanctions, go to the United Nations, diplomacy.

If it's really something bad that's going to be a... a threat to our national security, I think--

Chief Justice Rehnquist: Well, you... you might wait a while if you went to the United Nations or--

[Laughter]

--or to... I take it the Government feels you need some sort of a rather immediate recourse.

Mr. Mills: --Sure, and our Government has demonstrated that it believes in preemptive... preemptive action and we can go in and have regime change in Cuba if it... if it is such a threat.

If it's a political decision, the purely executive decision, that our national security is so threatened, they have all kinds of tools.

Justice Scalia: But this... this regime is not sending, you know, an armed flotilla to Florida.

They just--

[Laughter]

--they just open their jails and say, hey, you know, go wherever you want.

And these people say I want to get out of here, and they go to Florida.

You... you want us--

Mr. Mills: That was less than 1 percent--

Justice Scalia: --to bomb Cuba because of that.

Mr. Mills: --That was less than 1 percent of the Cubans who came in the Mariel boatlift.

That did occur, and we do have options for dealing with them.

We can return them forcibly.

If they don't allow us, that's like them sending a missile.

It's... we... we can destroy the missile.

We can't destroy a human being.

By punishing a human being that Castro sends over, we're not sending a message to Castro.

We're not saying, ah, you sent your prisoners over here and were going to indefinitely detain them.

Mental torture.

That will teach you.

That's--

Justice Souter: What you... what you mean when you say we can forcibly return them is literally we can take them to Guantanamo, take them to the gate, and push them out?

Mr. Mills: --That's one option.

If there... if the Cuban army is there to prevent us, you know, maybe it would require some military action that the administration might decide is not advisable.

But those are the options depending on the size of the threat.

So a judicial interpretation that the statute means the same thing in all contexts does not deprive the Government of anything.

And I'd like to go back to that if I could.

Justice Ginsburg: I thought... maybe I... I misunderstood you, but I thought that one of your points were even assuming that we couldn't send these people back into Cuba without having a major conflagration, the rogue dictator is not going to be deterred by our tossing even into the sea the people that he doesn't want.

Mr. Mills: That... that is my point.

That's the point that I... I intend to make, that indefinitely detaining these people... that does nothing to a dictator.

That does nothing to deter a dictator.

All it means is we're going to be incurring the huge cost of incarcerating a large number of people, and if anything, that may encourage the dictator to do exactly that, or it may encourage the dictator, instead of sending them to Key West on boats... on American boats, to sneak them up on speed boats or take them through Mexico and sneak them across the border that's--

Justice Breyer: Anyway, it's a little drastic.

I... I guess that before this happens, Congress might enact a statute like the terrorist statute.

Mr. Mills: --Exactly.

That... that is exactly correct, Justice Breyer.

And if they think... whether a... a Cuban, a Mariel Cuban, can be put in jail... and these are in prison for the rest of their life... is a huge policy decision.

And this Court should abstain from putting its voice as... on to the answer.

That is a decision for Congress in the first place.

In Zadvydas, this Court said the statute doesn't clearly do that, so we're not going to... we're not going to answer that question as to whether it would be constitutional.

Justice Kennedy: Well, it's a policy decision either way.

I... I suppose if Zadvydas had come out the other way, the Congress could have responded as well.

Mr. Mills: That's correct.

But in... in this case, because especially the Zadvydas aliens had clear constitutional rights, we avoid the question.

The doctrine of constitutional avoidance says the Court doesn't engage in that.

The default is to stay away from it.

If Congress wants to do something that might be unconstitutional, they can come back and do it and then the Court will determine whether it's unconstitutional.

Back to the point of whether 1231(a)(6) can mean something different for the two groups of aliens.

Never before has this Court taken a statute that--

Chief Justice Rehnquist: How do you explain, Mr. Mills, the language that the Court used, pointing out how different this kind of a case would have been from the... from the Zadvydas case?

Mr. Mills: --Sure.

My reading of that... of that decision, there were two parts of the decision.

There was part one, which examined whether there is a... or it determined whether the statute is ambiguous, and part two is whether there's a constitutional error.

It was only in the part of the decision deciding whether there's a constitutional problem that the distinction was made.

The distinction makes the difference in whether there's a problem or not.

And maybe there's not a problem for inadmissible aliens.

So, the Court then concluded in Zadvydas that because there's a problem, we look at the statute.

This statute could be interpreted to authorize indefinite detention or not.

It's ambiguous.

Because we have a problem, at least with one category, we're going to choose the... a safe route.

Justice Scalia: It might have been a... a means of warning Congress off one area, but not the other.

That is to say, just because we think there's a constitutional doubt here and therefore Congress might be sailing close to the wind if they tried to overrule our opinion by statute doesn't mean that Congress couldn't in this other area alter the result in Zadvydas.

Mr. Mills: I think that that is absolutely a... a conclusion that can be drawn that Congress--

Justice Scalia: Of course, I dissented in that case.

So I'm not saying this was a good idea.

[Laughter]

Justice Breyer: But it... it's interesting.

In... in just my... for my... my own information, then Congress did respond.

And there were two areas in Zadvydas that, you know, didn't warn Congress off.

One is the one we're talking about now.

The other is terrorism.

And Congress responded in the terrorism matter.

Is that right?

But they didn't do anything on the--

Mr. Mills: --That's absolutely correct.

And they're responding right now.

In the 9/11 Commission bill, there is a section that's being negotiated as to whether terrorist aliens who can't be removed because they would be tortured... whether they can be indefinitely detained.

And they're looking at the same limiting language.

One point that I'd like to make that I did not get to make directly in the brief, but it was raised.

Justice Scalia, you had a question yesterday in the Leocal case, and it... it raised an issue that I hadn't looked at before on whether a statute can be interpreted differently in a situation where the reason to interpret it is no longer there.

And that's the rule of lenity cases.

And I cited as a supplemental authority the United States v. Thompson/Center Arms Company, 504 U.S. 505.

It's a 1992 decision, and it involved a tax code provision.

And the question is, do we apply the rule of lenity?

And Justice Stevens, in dissent you said no, because this is a civil case.

The rule of lenity doesn't apply.

But a three-judge plurality, an opinion by Justice Souter, and a two-justice... two-judge concurrence by Justice Scalia both agreed that the rule of lenity applied because the statute applies both in criminal and civil contexts.

And you can't have one meaning in a criminal context and another in civil.

For the same reason, the rule of constitutional avoidance should not result in a statute being interpreted one way when there would be a doubt and another way when there would not.

Justice Souter: Well, what about the argument that the statute, in effect, limits the... our... our interpretation limits the... the detention to a period reasonably related to the Government's interest in accomplishing that interest?

That interest is different in... in the case of... of aliens who are excluded, if we accept that class as distinct from all excludables.

And... and that may allow a much longer period of detention, among other things, to deter dictators from... from dumping.

You've given us an answer to what to do if they dump, but we don't want them to dump in the first place.

That argument stops short of saying we can detain them for life, but it would support the... the position that on a consistent interpretation of the statute, the Government could detain them longer in the excluded cases than in others.

What's your answer to that?

Mr. Mills: My answer to that is that that might be a... a legislative policy decision to make that distinction.

But in 1996, IIRIRA abolished the distinction between inadmissible and deportable aliens after they've been ordered removed.

Up until that time, it makes a difference.

It makes a difference under the Constitution.

But once they've been ordered removed... and this was the Government's argument in Zadvydas.

Once they've been ordered removed, regardless of how they got here in the first place, they no longer have any right to be here at all and--

Justice Souter: There is only one class of excludables by the Government's own choice.

That's... that's basically your answer.

Mr. Mills: --After a removal proceeding, there is only one class.

That is correct.

Justice Souter: Yes.

Mr. Mills: If there are no more questions, I would just ask that the Court reverse in this case.

If there are any mootness concerns about Mr. Benitez, I would refer the Court to Friends of the Environment which said that when a challenged practice has stopped voluntarily, that does not moot a case out in the Supreme Court unless there's some reason to believe they won't go at it again.

And the Government has asserted that it can revoke his release at any time for any reason and detain him indefinitely.

And the suggestion that the fact that he's been released under the Cuban Review Panel shows that his... he's been protected is... is not well taken.

He was determined, when he first was detained in... in 2001, that he was eligible under the Cuban Review Panel to be released.

It took 3 years and the week before this case was argued in the highest court of the land before the Immigration Service did what its own regulations told it it had to do.

Thank you very much.

Rebuttal of Edwin S. Kneedler

Chief Justice Rehnquist: Thank you, Mr. Mills.

Mr. Kneedler, you have 4 minutes remaining.

Mr. Kneedler: Thank you, Mr. Chief Justice.

Justice Souter, you're exactly right in terms of why the statutory construction or statutory application of the terms in Zadvydas does not control here.

The Court's starting point... again back to page 682 of its opinion, it says, we deal here with aliens who were admitted.

The way the Court dealt in the opinion was a matter of statutory construction, and it did it by reading into the statute a reasonable time limitation.

What is reasonable for aliens who... who have been admitted and are subject to what were called deportation is different from aliens who were stopped at the border.

And in fact, in the... in the Court's statutory analysis, it looked to the point that in the Witkovitz jurisdictional statement referring to Congress' constitutional doubts about detention of more than 6 months, those were constitutional doubts about people who were being deported after having been allowed to be here.

There has never--

Justice Souter: What's your... what's your answer to Mr.... Mr. Mills' position that the Government has, in fact, statutorily waived that distinction by creating one class of excludables?

Mr. Kneedler: --It... with respect... with respect, it has not.

And... and if I could... if I could explain this.

This... going back to Mezei, this Court held and in fact rejected a very similar argument.

The rationale of the court of appeals in Mezei was that deportable aliens are subject to an express, not an implied, 6-month limitation.

And the court of appeals said the aliens in that... the alien in that case, once he couldn't be removed to another country, should be released because the purpose of keeping him to return him to another country was no longer being served.

This Court rejected that argument, even though there was a statutory express limitation of 6 months for deportable aliens, held that an alien who had been on Ellis Island for 2 years did not have to be released.

In reliance on that decision, Congress passed the parole statute to leave the release in... excuse me... Mezei was after it, but the... the executive branch has relied on that rationale.

The Cuban review regulations that are at issue here have been in place for 15 years under the parole statute.

As Congress well knew, when it acted in 1996, the... this program was the subject of many hearings in Congress.

There were cases... the Barrera case out of the Ninth Circuit sustained a 10-year detention of a Mariel Cuban.

It is implausible to believe in 1996, when Congress enacted IIRIRA, that it intended to cut back on the longstanding power of the executive branch to prevent hordes of aliens from coming into our country and to impose an arbitrary 6-month limitation.

I... I think there's no argument that if an alien is detained before removal proceedings are begun, that there is no 6-month limitation.

His release is entirely up to the Attorney General under the parole regulations.

It's... it's implausible to believe that once Congress actually enters a formal order of exclusion or now removal against an alien, the person is no longer in an ambiguous situation, the executive branch says you're not eligible, that suddenly that person who has been formerly found not eligible, would be subject to a 6-month limitation that did not apply up until '96 and doesn't even apply until these... to these aliens until removal proceedings have been begun.

So the right way to look at this statute as what's a reasonable time under 1231(a)(6) has to take into account that historic background of the United States being able to protect its borders.

And there is no indication whatsoever that Congress intended to overrule this longstanding program for Mariel Cubans, which has operated, as I said, for 15 years.

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

The case is submitted.

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

Attribution:

The Oyez Project

Featured:

Leocal v. Ashcroft - Oral Argument

Fri, 09 Jan 2009 14:49:01 +0000

Case:

Leocal v. Ashcroft

Media File:

03-583_20041012-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Joseph S. Sollers, III

Chief Justice Rehnquist: We'll hear argument now in No. 03-583, Josue Leocal v. John D. Ashcroft.

Mr. Sollers.

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

Drunk driving offenses, while most serious and regrettable, were never intended to be crimes of violence under 18 U.S.C., section 16, triggering removal as an aggravated felony.

We are asking this Court to so conclude and eliminate the disparity and patchwork of decisions that are in the... that are currently in the circuit courts of appeals depending upon the vagaries of where a removal proceeding is instituted.

The Court need not go any further than straight statutory construction and the language of the statutes involved.

Indeed, the Florida DUI statute has only two essential elements: driving while intoxicated and causing serious injury.

18 U.S.C., section 16--

Justice O'Connor: I guess what bothers me about this is that clause (b) of 18 U.S. Code, section 16 is... it says the crime of violence means any other offense that's a felony and, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

If someone drives while drunk, have they not created a substantial risk of the automobile or the vehicle causing personal or property damage to another?

Mr. Sollers: --Justice O'Connor, there certainly is an increased risk of an accident.

Justice O'Connor: A substantial risk if a person is drunk.

Mr. Sollers: Your Honor, I would agree that there is a substantial risk of an accident if one is driving drunk.

Justice O'Connor: So how is it that we should construe this provision in subsection (b)?

Mr. Sollers: Your Honor, subsection (b) also has the use of force as an element, and it is the use of force that is the critical terminology here.

Justice Kennedy: Well, before you quite get there... and of course, that's where you... you should go and I don't mean to sidetrack you.

But the phrase before that is by its nature, so that we don't look at the specific details of the offense.

We look to the offense itself.

And if by its nature, as a generic matter, as a categorical matter, there is a substantial risk, then quite without reference to the particular facts of the case, it seems to me that the statute applies.

So you have to address the by its nature as well.

Mr. Sollers: Well, Justice Kennedy, I would... I would indicate that it's the categorical approach that this Court has indicated should be used in the Taylor case, as well as the courts of appeals have applied the categorical approach... indeed, the Doe case in the First Circuit did so... to look at whether or not that element is present in the underlying predicate of facts.

And the element is the use of force.

Justice Scalia: Mr. Sollers, I thought your... your response to the problem of (b) was that (b) also requires not just... not just a risk that there be physical injury, but a substantial risk that physical force against person or property be used.

So it's still the same terminology, using physical force.

And the question we have before us is whether that terminology means it must intentionally be applied or could simply be applied carelessly, negligently, as by someone who is driving DUI.

Isn't... isn't that the... the answer to this.

Mr. Sollers: Yes.

Justice Scalia: Or at least your... your proffered answer to the problem of (b).

Mr. Sollers: Yes, Justice Scalia.

Critical is that the actor intended to use force.

That is the statutory construction here and it is clear, as you look at the statutory scheme, that individuals who engaged in an accident were not intended to be removed as aggravated felons.

Justice Kennedy: Well, once again, do you have to have intent in the particular case?

Because the offense must by its nature... you mean by the nature of the particular offense that this person committed or by nature of the felony broadly categorized?

Mr. Sollers: Your Honor, I think under the categorical approach, you look to the essential elements of the underlying offense.

And I go back to the DUI statute in Florida which does not have the element of the use of force.

Indeed, that statute is a strict liability statute.

It requires no mens rea whatsoever, does not even require negligence for a conviction.

Justice Ginsburg: Are you suggesting then that it should vary from State to State whether the vehicle homicide is a crime of violence, that we should look to the particular State, so that people engaged in the same conduct in one State will be subject to removal and others will not?

Mr. Sollers: Your Honor, Justice Ginsburg, there are a number... almost every State has a similar statute to the one in Florida.

Where there is a... simply a causation of injury, there's an enhanced penalty for a drunk driving offense.

Of course... so I would suggest that if this Court were to find, as we believe it should, that the use of force is required for it to be an aggravated felony, it would apply across all 50 States.

If one were to intentionally use force, there obviously are other statutes that would capture it.

Intentional endangerment, for instance.

If one were--

Chief Justice Rehnquist: People who are drunk can intend to use force.

Mr. Sollers: --Absolutely, Your Honor.

It's absolutely the case that somebody could intend to use force who is drunk, but again, there are other statutes, more serious statutes, intentional endangerment, vehicular assault, statutes such as that, that would pick up such an action.

Justice Kennedy: What... what about burglary?

Mr. Sollers: Burglary is an offense that has typically been looked at as a B offense.

Even though I will say that burglary has now been added as a specific offense under the aggravated felony listing in the INA, burglary is the offense that... that is typically viewed as one that causes someone to be in a position where they will engage in a volitional act of force.

In other words, you break into a house, that's a volitional act in and of itself, but then you are... you have not used force against a person, but you have put yourself in a position where you are likely to intentionally use force against someone you come upon.

Justice Kennedy: What about the risk of the driver going the wrong way on a freeway?

Mr. Sollers: That's absolutely--

Justice Kennedy: That's... that's a substantial risk, or it's a risk at least, of... of drunk driving.

Mr. Sollers: --Absolutely, and so is--

Justice Kennedy: I don't see how that's different from burglary.

Mr. Sollers: --I would suggest, Justice Kennedy, that it's different because it is not a intentional use of force.

It is an accidental action.

It is a diminished mens rea.

And again, you look, in order to determine whether or not a crime of violence has occurred, at the underlying elements of the statute, and this Florida statute simply has no mens rea requirement whatsoever.

Justice Souter: Well, is your... is... is your argument really that there's got to be an intentional use of force or an intentional use of force in order to injure?

Mr. Sollers: Our argument is that there has to be simply the intentional use of force in order for it to be a crime of violence.

Justice Souter: Without looking... without looking to the... to the consequence, to... to the... to the result?

Mr. Sollers: Well, that's correct, Justice Souter.

Justice Scalia: He's intentionally driving a car--

Justice Souter: Yes.

Justice Scalia: --that's speeding along at 65 miles an hour.

That's intentionally using force, surely.

Mr. Sollers: Your Honor, I would suggest that it's intentionally driving the car, but I would not agree that it is the intentional use of force against a person or property of another.

Justice Kennedy: What about 95 miles an hour?

Mr. Sollers: Your Honor, there's a continuum, and that may suggest recklessness, but again, this statute that we're looking at, the Florida statute, does not require recklessness.

It does not require even negligence.

It's a strict--

Justice Ginsburg: And you disagree--

Mr. Sollers: --Excuse me, Your Honor.

Justice Ginsburg: --you disagree with Ninth Circuit that said negligence is not covered, but a reckless state of mind would be covered.

Mr. Sollers: Your Honor, I'm not necessarily taking a position as to whether or not that's... the Ninth Circuit is accurate on that.

What I am taking a position on is the very statute at issue, which is the Florida DUI statute, which has no negligence requirement, no negligent... or no recklessness requirement.

Justice Scalia: Yes, but we have to look down the road to the next case.

So, you know, you can't just not answer that.

Justice Ginsburg: And you just responded to my question that it's the same in all 50 States.

So either it's peculiar to Florida or it's... if I take your last answer to be correct, it would be the same in all 50 States.

Mr. Sollers: The analysis that we believe is the correct analysis here is to look at the underlying statute to see whether it has use of force, and this statute has no such element.

It... and it has... again, it has no mens rea requirement.

Now, interestingly, the Ninth Circuit decision looked at the very same Florida statute because the removal proceeding had been initiated out in California... so that's why the Ninth Circuit looked at the Florida statute... and found that it was not a crime of violence because it did not have the element of the use of force.

It did, as you say, indicate that a recklessness standard would satisfy a crime of violence in the Ninth Circuit.

Justice Scalia: And what about a drive-by shooting into an occupied building?

Mr. Sollers: A drive-by shooting into an occupied building--

Justice Scalia: Right.

You're not sure you're going to hit anybody.

You're not even sure there's anybody in the building, but you drive by and you just shoot a... a bullet into the building.

Mr. Sollers: --I--

Justice Scalia: You... you would say that the... is that covered by this statute?

I'd certainly want that--

Mr. Sollers: --Yes, Your Honor, absolutely.

Justice Scalia: --Why is it?

Mr. Sollers: It's intentional use of force.

Justice Scalia: Against a person.

It has to be the intentional use of force against a person.

He didn't... he didn't intend to hit a person.

He just didn't care whether there was anybody there or not.

It's the classic recklessness case.

Classic... he didn't... wasn't shooting at any particular person.

Just having a good old time shooting out a window in a... in a building.

He didn't know was anybody in there or not.

Mr. Sollers: Your Honor, that is intentional conduct that has a substantial likelihood of... of causing injury.

Justice Scalia: So is... so is driving under the influence.

It seems to me--

Justice Souter: I... I thought your argument was that there's got to be more than simply a risk of causing injury.

I thought your argument was that there has got to be a risk of acting intentionally to cause injury, as in the case of the burglar who suddenly is surprised.

Now... now, which is it?

Is it... if... if it's merely causing injury, then you're in trouble under part (b).

Mr. Sollers: That's correct, Your Honor.

Justice Souter: If it's causing... if it's... it's using force for the purpose of causing injury, then I can see at least a consistent argument.

Mr. Sollers: Your Honor, you are absolutely correct.

It is the use... the intentional use of force which causes injury, that is--

Justice Scalia: --So you've changed your answer to my previous question then.

Mr. Sollers: --I... I may have, and if I did, I... I apologize.

I may have misunderstood Your Honor, but--

Justice O'Connor: Well, so is recklessness enough or not?

I... I don't understand what you're saying.

Mr. Sollers: --Your Honor, our... Justice O'Connor--

Justice O'Connor: The... the shooting, random shooting, in a building for target practice.

Mr. Sollers: --That is an intentional act.

The pulling of the trigger was an intentional act that has--

Justice O'Connor: So is getting behind a wheel when you're drunk and turning on the keys.

Mr. Sollers: --Yes, Your Honor.

That is... I... I must distinguish the two however.

I would suggest that while absolutely a... a regrettable and serious act to get behind the wheel when one is drunk... and we do not condone that whatsoever... the act of use of force that is involved is at most negligence.

Justice Breyer: I thought that what you were saying, which I understood, is that if somebody intentionally uses force and hurts somebody... might hurt somebody, that falls within the statute.

If they do it negligently, they don't.

If they do it recklessly, recklessly and often assimilated to intention in the law, gross... you know, recklessness and sometimes it isn't.

So I thought you were going to say we didn't have to decide that one.

Many States require negligence only for drunk driving hurting somebody.

Some may require recklessness.

So we may have to decide it some day.

Now, that... that's where... that's where I came into this argument.

Now, if you're disowning that, I want to know.

If you're accepting it, I want to know.

Mr. Sollers: I accept that, Your Honor, Justice Breyer.

Justice O'Connor: Yes, but what's your answer on recklessness?

That's fine.

Maybe we don't have to today, but we have to look ahead.

What are we going to say about it?

Mr. Sollers: Your Honor, this case is based on a... an underlying statute that has no mens rea requirement whatsoever, and a crime of violence requires an intentional use of force.

The legislative history I believe dictates such a conclusion.

If you look at 18 U.S.C., section 16, its origins were all... was... was... the origin was the D.C. Court Reform Act, which was a detention... a detention statute.

Justice Ginsburg: You... you responded--

Justice Breyer: Your answer might be recklessness.

I mean, I think that's a hard question, but... but I guess you could say recklessness in respect to shooting?

Of course, it's covered.

Recklessness in respect to drunk driving?

I'm not so sure.

It may depend on the nature of the crime, the nature of the underlying conduct.

But you may not accept that.

You may want an all or nothing answer, in which case you can answer.

I'd have to say I don't know.

Justice Ginsburg: --I thought you responded to Justice Breyer's first inquiry reckless, at least maybe, and if that was your answer, if I understood your... that you agreed with him, why isn't getting into a car when you are drunk inherently reckless because you know there's a high risk of hurting someone?

Mr. Sollers: Your Honor, there is a continuum... there's no question about it... of mens rea, beginning... you know, you have the strict liability offense all the way to specific intent.

I don't know where it falls to get into a car when you're drunk, but I will suggest that the analysis for this Court in determining whether or not it's a crime of violence is to look at the underlying statute.

And the underlying statute does not require even mere negligence for a conviction.

Justice Kennedy: But... but that's because there's always a substantial risk.

Whether there's an intent to be negligent or a likelihood of negligence or a likelihood of risk, that's inherent in driving a car while you're drunk.

You want this Court to say, in effect, that there is no substantial risk in drunk driving.

Mr. Sollers: No, Your Honor.

No, Justice--

Justice Kennedy: No substantial risk of use of force.

Justice Stevens: May I ask this question about substantial risk?

Say it's... there's always a substantial risk when you get in the car and you're intoxicated.

Does it make any difference whether you actually cause an injury or not?

There are two drivers, equally... equally drunk and equally negligent.

One hits somebody and the other doesn't.

Are they treated alike or are they treated differently under the statute?

Mr. Sollers: --Well, under this particular statute, it requires the causation of the injury, but it's simply a causation statute.

It's the consequence.

And that's one of the elements of the offense.

So it does make a difference for this particular statute, otherwise I assume you'd be convicted of simply DUI.

Justice Stevens: So if there's... if there's clearly the substantial risk but he was lucky enough not to hit anybody, then he's not covered.

Mr. Sollers: He'd be covered by a DUI--

Justice Stevens: I understand, but he would not be covered--

Mr. Sollers: --if he was caught.

Justice Stevens: --He would not be deportable.

Mr. Sollers: Correct.

Justice Kennedy: But... but why when the statute says the offense by its nature includes the risk?

Mr. Sollers: Excuse me.

I misanswered your question.

He would, under the determination in the Eleventh Circuit, be deportable because they have found that there is... it is a crime of violence--

Justice Stevens: Whether or not you hit anybody?

Mr. Sollers: --You don't necessarily have to hit somebody.

A lot of these cases actually look at straight DUI offenses.

A lot of these immigration cases are involving straight DUI--

Justice O'Connor: Well, excuse me.

I thought we were looking at aggravated felony, and does not Florida make it a felony, a serious felony, if you cause serious bodily injury?

That's what puts it into the category of a third degree felony.

If you're just driving under the influence, it doesn't appear to fall in that category.

Maybe I'm not reading it right--

Mr. Sollers: --I believe that's right.

Justice O'Connor: --but that's how I read the Florida statute.

Mr. Sollers: I believe that's right in Florida, Justice O'Connor.

That's correct.

But a moment ago, Justice Kennedy asked me a question about substantial risk.

And yes, Justice Kennedy, there is a substantial risk of an accident from getting behind the wheel when you're drunk.

But we suggest... and... and we believe that the... the statutory construction supports us... that there is not a substantial of the intentional use of force.

And that's... that's the difference.

It's the consequence.

In the cases... a number of cases have, improperly so, focused on the consequence, the actual injury and not the actual use of force, which is the key element under a crime of violence, 18 U.S.C., section 16, which is what we're construing.

Justice Scalia: Mr. Sollers--

Chief Justice Rehnquist: If this were a straight criminal statute and the arguments on each side were very close, you would be entitled to rely on the rule of lenity.

This is just a reflection really of a criminal statute.

It's a deportation statute.

Are you entitled to rely on the rule of lenity here?

Mr. Sollers: Yes, Your Honor.

We... first of all, I would say that we do not need to rely on the rule of lenity because the straight language of the statute supports our position.

There is no element in the Florida statute, use of force.

However, if it's a close call, we would be able to rely on the rule of lenity.

This is a most severe, severe punishment that is--

Chief Justice Rehnquist: No, but it's... it's never been regarded as criminal, a deportation proceeding.

Mr. Sollers: --That is not, but, of course, 18 U.S.C., section 16 is the criminal statute, and that is what we're here to decide, the reach of 18 U.S.C. 16.

Justice Scalia: --Well, it... it doesn't impose criminal penalties on its own.

Is it used in other criminal statutes that do impose criminal penalties?

Mr. Sollers: Absolutely.

It's used in--

Justice Scalia: Okay.

Well, that's... that's your answer, that... that you can't interpret section 16 one way for purposes of deportation statutes and another way for purposes of criminal statutes.

And therefore, the rule of lenity does apply.

Mr. Sollers: --Absolutely, Your Honor.

Justice Kennedy: Does the rule of lenity apply in sentencing statutes as opposed to the definition of crimes?

I don't... I don't know.

Mr. Sollers: I don't know the answer to that.

I... you know, I know the rule of lenity is to be applied to criminal statutes.

I am not sure on sentencing statutes.

But I will say that... you know, we are not saying that someone who gets behind a wheel who's drunk should not be punished.

My client spent 2 years in jail and was immediately taken to INA facility and... and kept there for several months before he was shipped back to Haiti, where he remains now.

So it is not as if he has not paid a... a severe price for what he did.

Justice Scalia: Mr. Sollers, let... let me ask you about the recklessness problem that... that a number of us have.

You... you insist on... on defining the crime of violence as one that requires the intentional application of force against an individual.

Why... why do you need that in order to win your case?

Why couldn't you just define it as the intentional... the intentional... use of a mode of force that is likely to injure an individual?

Now, driving on a highway is not... is not likely to injure an individual.

Shooting a gun into... into a building is likely to... to injure an individual.

Why shouldn't that be the... the distinction?

Either you intend to use it against a person or you have intentionally used a mode of force that is in its nature likely to injure a person, not caring whether it does or not.

Mr. Sollers: I understand your question, Justice Scalia.

I... you know, our analysis is strictly on the statute itself, 18 U.S.C., section 16, which requires as an element the use of force or a substantial risk that force... that the use of force may occur.

And in our view, this... getting in a car while... any driving certainly involves risk.

There's no question about that, and it's enhanced if one is intoxicated.

But it is not... not the case that Congress intended that drunk driving offenses and accidents relating from a drunk driving offense should trigger the draconian remedy of removal.

And that... that's what our position is.

Justice Stevens: Just... just following up on Justice Scalia's question, the point would be that shooting a gun is the threatened use of... of physical force against a person or property.

Getting into a car is not the threatened use of physical force against anything.

Mr. Sollers: It's not the intentional use of any force.

That's correct, Your Honor.

Justice Kennedy: But why don't we interpret it as getting into a car while drunk and, as Justice O'Connor points out, while drunk and causing an injury?

Otherwise, the statute isn't even applicable.

Mr. Sollers: Well, certainly there is an enhanced risk from getting into the car while you're drunk.

However, again, the Florida statute and statutes like it across the country do not have any mens rea element whatsoever required for conviction.

Therefore, it's not subsumed by 18 U.S.C., section 16, which requires use of force as an element.

If one looks at the aggravated felonies that have been added, on four of five occasions the list of aggravated felonies have been added to the INA.

Never has an non-intent crime been added.

There have been multiple occasions in which Congress has had the opportunity to specifically add DUI offenses.

They have never been added.

If one looks at the INA and the addition of serious offenses for which an alien can be inadmissible, that addition in 1990... and the Congress specifically listed separately DUI offenses, DUI-type offenses, and crimes of violence, showing that Congress did not believe that DUI offenses were subsumed by 18 U.S.C., section 16.

Justice Ginsburg: The Government suggests that Congress in an excess of caution might have listed DUI because... because the decisions in the lower courts were divided on the question of the correct categorization.

Mr. Sollers: That is--

Justice Ginsburg: And then it would do nothing... it would have changed nothing.

It just would have been clarified.

Mr. Sollers: --Well, there is no legislative history that... to indicate that Congress so thought.

Certainly that is a hypothetical possibility.

We do not believe that's the case.

If you look later on in 1990, crimes of violence were specifically added as aggravated felonies, and the... the Congress did not add DUI offenses along with the crimes of violence.

It simply added 18 U.S.C., section 16.

If I may, I'm going to reserve the rest of my time.

Argument of Dan Himmelfarb

Chief Justice Rehnquist: Very well, Mr. Sollers.

Mr. Himmelfarb, we'll hear from you.

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

Drunk driving that kills or seriously injures another person is a serious offense.

It is a violent offense in the ordinary sense of that term, and it satisfies the statutory definition of crime of violence.

The felony offense of which petitioner was convicted by its nature involves a substantial risk that physical force may be used against the person or property of another.

Chief Justice Rehnquist: You say used against the person.

Doesn't that connote some more intent than there is here?

Mr. Himmelfarb: We don't think so, Mr. Chief Justice.

Statutory terms take their meaning from context, and in the context of section 16, we think the better reading of use is that it doesn't require any particular mens rea.

The thing that's being defined in section 16 is a crime of violence and violence does not have any particular mens rea associated--

Justice Kennedy: I... I have to tell you.

In a... in a traffic court where we see all too many drunk driving cases go through the calendar, no injury is involved.

I recognize there is in this case.

In the... in the drunk driving case without... without any aggravating factors, I just don't think judges think of those as crimes of violence.

Mr. Himmelfarb: --Well--

Justice Kennedy: Do you... do you tell your family I committed a crime of violence?

Mr. Himmelfarb: --There are a few things to be said about the simple offense of drunk driving, not the aggravated offense.

The first is that--

Justice Kennedy: And... and incidentally, because I thought your opening remarks were applicable to drunk driving as an offense generically and... and as a whole.

Mr. Himmelfarb: --Well, Justice Kennedy, we have taken that position in the lower courts and before the Board of Immigration Appeals.

It's not necessary for the Court to agree with that position in order for us to prevail here.

As an initial matter, the simple offense of drunk driving is ordinarily a misdemeanor, and since it doesn't have force as an element, it could only be a crime of violence if it fell under 16(b) which covers only felonies.

Chief Justice Rehnquist: Yet the mental state is presumably the same whether it's drunken driving without injury or drunken driving with injury.

Mr. Himmelfarb: That's true, Mr. Chief Justice.

That's not the distinction we're drawing.

Chief Justice Rehnquist: I know you're not, but why... why don't you?

[Laughter]

Mr. Himmelfarb: Well, we think the... when I say that the Court need not agree with us that simple drunk driving is a crime of violence in order to hold that drunk driving resulting in serious injury is, I say that because if you take the view that physical force requires an actual crash, which is petitioner's view, which is the narrow understanding of the term physical force, it may or may not be the case... it is a debatable proposition... that if you're simply driving drunk, there's a substantial risk you're going to crash into somebody.

Somebody might make the argument that while there's a risk, it's not a substantial risk.

Justice Scalia: Of course, it certainly would come within (a).

It certainly would come within (a).

An offense... it doesn't have to be a felony to be within (a).

An offense that has an element the threatened use of physical force against the person or property of another.

Mr. Himmelfarb: Well, Justice Scalia, we read threatened use and attempted use to require intentional conduct.

So we don't--

Justice Scalia: Oh.

So you need intent for (a) but you don't need intent for (b).

Mr. Himmelfarb: --No.

You need intent under (a) for a threat or an attempt because a threat or an attempt by its nature is an intentional act.

But the use of physical force in either (a) or (b) is not by its nature an intentional--

Justice Scalia: Well, then... then you... then you think (a) does not apply to ordinary DUI.

Mr. Himmelfarb: --That's right.

That was my position.

Justice Scalia: Oh.

I thought your... I thought your position was that ordinary DUI is a crime of violence.

Mr. Himmelfarb: We have taken that position in the lower courts.

Justice Scalia: But you don't believe it.

[Laughter]

Mr. Himmelfarb: We believe... our position in the lower courts is that it's a crime of violence under 16(b), but there are arguments... the argument the other way--

Justice Scalia: Wait, wait, wait.

Ordinary DUI is a crime of violence under 16(b).

Mr. Himmelfarb: --That's right.

Justice Scalia: It's not a felony.

Ordinary DUI is not a felony.

Mr. Himmelfarb: If it's a misdemeanor, it couldn't be a crime of violence under (a) because force isn't an element and under (b) because it's not a felony.

Justice Scalia: Okay.

Mr. Himmelfarb: There are--

Justice Scalia: That... that is your current position and... and we can take that.

Mr. Himmelfarb: --No.

My position is that the Court doesn't have to reach the question of whether drunk driving without the aggravated injury element is a crime of violence.

Justice Souter: Maybe... maybe we do and... and this depends on... on something I just don't know.

Maybe you do.

Are there States that define the second or a third subsequent DUI offense as felonious rather than a misdemeanor?

Mr. Himmelfarb: Yes, there is.

Justice Souter: Then... then we do have to reach that issue because those would qualify as felonies, and on your analysis of (b), which doesn't require intent, they... they would... they would fall under (b).

Mr. Himmelfarb: That's right.

There are simple--

Justice Souter: I just want to make sure I understand it.

So that if we accept your position and there are States that... that do classify subsequent offenses as felonies regardless of injury, there would be some DUI offenses without injury that would be crimes of violence and... and a basis for deportation.

Mr. Himmelfarb: --That is our position.

It's also our position that the Court need not accept it in order for us to prevail in this case.

There is a difference between the sort of driving that takes place when somebody simply drives drunk and doesn't cause an injury and the sort of driving that takes place when somebody not only drives drunk but injures another person.

If somebody is driving and swerving or driving and falling asleep at the wheel or driving and doing any of the things--

Justice Ginsburg: And might be lucky and nothing happens.

I mean, that's the... the problem thing.

Two people who engage in identical conduct, one has the misfortune to hit someone, the other doesn't, but they're both equally swerving in and out.

The... the distinction is whether someone is hit.

And in that light, suppose there were an involuntary manslaughter conviction for someone who was speeding but cold sober, speeding, cold sober, and killing someone because he couldn't stop the car fast enough.

Would that also be a crime of violence?

Mr. Himmelfarb: --We think it would be, Justice Ginsburg.

And to respond to your first question, the distinction between those two situations is that you have to look not at the underlying conduct to decide whether something is a crime of violence, but you have to look at the offense with which the defendant was charged and of which he was convicted and see what the elements are and what the risk is by its nature.

So if somebody is charged and convicted simply of simple driving under the influence, that crime by its nature may or may not involve a substantial risk of force even though in a particular case someone might be swerving.

But if there's injury, the crime by its nature has to entail the sort of driving beyond the ordinary drunk driving offense--

Justice Scalia: That's simply--

Justice Kennedy: Well, then... then the word substantial risk does no work in... in that... in the... in the case that Justice Ginsburg put.

We just ignore substantial risk.

Mr. Himmelfarb: --No, we don't think you do, Justice Kennedy.

My point is that--

Justice Kennedy: Why do we need substantial risk?

They hit... they hit somebody.

We know they hit somebody.

That's it.

Mr. Himmelfarb: --Well, here... here's the--

Justice Kennedy: And the question is, what about her other hypothetical where the person is driving 90 miles an hour and hits no one?

Mr. Himmelfarb: --Well, our--

Justice Kennedy: There's still a substantial risk.

Mr. Himmelfarb: --our primary submission is that the crime at issue here falls under 16(a) because the use of force is an element because if you're driving drunk, you can't injure somebody without using force.

But our fallback position is that even if, as petitioner contends, the only time you use force in the drunk driving context is when you actually crash your car into somebody, and he hypothesizes these types of injuries which in his view don't involve physical force.

There is, at a minimum, going to be a substantial risk that you will crash your car into somebody if you're not only driving drunk, but driving drunk in a way that results in injury no matter how the injury is caused.

Justice Scalia: --If your primary position is (a), then... then I think you're back to the... to the situation that ordinary DUI would come under (a).

It has an element the threatened use of physical force.

Mr. Himmelfarb: No.

We don't rely on the threat... the threat language in 16(a), Justice Scalia.

We rely on use.

If you drive drunk and you injure somebody, you're using physical force against that person.

But even--

Justice Scalia: I see.

I see.

Justice Stevens: But in your submission, as I understand it, the attempted use or threatened use is really a worse offense than the use because it involves intent, whereas use doesn't necessarily involve actual intent.

Mr. Himmelfarb: --Well, I don't... I don't think the measure of the seriousness of a crime--

Justice Stevens: What we're really looking at here, when you get all done with all this, is is this a person who should be sent back to Haiti because of this particular act that occurred.

And the irony of it, it seems to me, is that in terms of moral culpability and... and the kind of person we don't want to stay in this country, it doesn't really make any difference whether he hit somebody when he was drunk or not.

Mr. Himmelfarb: --Well, Justice Stevens, I think that's an important point.

We don't think that mens rea is the measure of the seriousness of a crime.

There are a number of crimes that are indisputably crimes of violence under petitioner's view that are mens rea crimes that, in the scheme of things, people would think are not as serious as drunk driving resulting in serious--

Justice Scalia: What... what are they?

What are they?

Mr. Himmelfarb: --Well, for example, simple misdemeanor assault would be a crime of violence under 16(a).

Justice Scalia: Well, of course.

It's a crime of violence because you intend to apply force to the body of another person.

Mr. Himmelfarb: Well, that's right, Justice Scalia, but for example, reckless homicide, a depraved heart murder, which in most States is second degree murder, under petitioner's view of things--

Chief Justice Rehnquist: A depraved heart murder?

Mr. Himmelfarb: --Yes, Mr. Chief Justice.

Chief Justice Rehnquist: What sort of a murder is that?

Mr. Himmelfarb: That's a... that's a... that's the... the... I think the common law term for reckless homicide.

Chief Justice Rehnquist: A malignant and abandoned heart is what we learned in law school.

[Laughter]

Mr. Himmelfarb: I think that's... that's the same thing, Mr. Chief Justice.

But in any event, that doesn't require intentional conduct.

That requires only recklessness.

Justice Breyer: That's why, I guess, reckless is a harder matter.

But you started with context, and when I looked at the context of this statute, the context to me seemed to be that this is not... this is a statute that has nothing to do with immigration.

16 is a definition that's a kind of receptacle that other statutes refer to.

And it was part of the original criminal code reform in the '80's.

And the purpose of that was to pull together words that are similar throughout the U.S. Code and give them a common definition.

And the history of this refers back to the D.C. Code.

The history of this and other similar language in the code makes clear that what they're talking about are things like murder, manslaughter, burglary, robbery, extortion, blackmail.

They give examples for all these things elsewhere in the code with similar language.

So if I look at the context, the context to me says, though the language can be read to cover it, this has nothing to do with drunk driving.

Now, that's when you talk about context.

I have that in my mind as context.

Now, you tell me why I'm wrong.

Mr. Himmelfarb: Well, I think there are a couple of reasons why you're wrong.

The first is that insofar as section 16 was based in whole or in part on the D.C. Code provision, the D.C. Code provision listed specific crimes.

Congress did not do that.

It had two general definitions.

So it's perfectly reasonable to think that Congress would be aware that it would be foreseeable to Congress that the general definitions, the general language it was using might pull in some crimes that were not among those listed in the D.C. Code provision.

The second point is that the very first crime listed in that D.C. Code provision is murder, and as I've just said, second degree murder includes in many jurisdictions reckless homicide.

Justice Breyer: No.

I... I put aside the reckless argument, and I'm not relying on the D.C. Code.

That was but one example.

I'm saying this same language appears elsewhere in the U.S. Code, 924(e).

Wherever it does appear, they list things like burglary, arson, extortion, explosives, and otherwise.

And there's no indication that this is meant to be something different and there's every indication from the purpose of it being written in the criminal code reform that Congress is seeking a common definition.

That's what's moving me.

So your response to that is what?

Mr. Himmelfarb: Well, insofar as the issue is whether Congress could have had this type of crime in mind, we think the answer is yes.

Justice Breyer: Yes, it could have.

I'm saying it didn't have.

Mr. Himmelfarb: Well, let me... let me rephrase the question and the answer.

Justice Breyer: I want your evidence that it did have.

Mr. Himmelfarb: Insofar as the issue is whether Congress did have this type of crime of mind, we think the answer is yes.

Justice Breyer: Because?

Mr. Himmelfarb: Because a... a... the classic example of a crime of violence, as you have just pointed out, is murder, and as I've said, reckless homicide is a form of murder.

The definition of use that petitioner is advancing is to employ something for a purpose.

So the mens rea that he advocates be... be read into the statute is purposefulness, and it's not at all clear that recklessness, which is a lesser form of mens rea, fits at all comfortably with the concept of purposefulness.

Justice Stevens: May I ask you a question?

Maybe I'm repeating a little bit of what Justice Breyer asked.

But in the blue... statutory appendix to the blue brief, they quote from section 101, and they point out that the term aggravate... of the INA... the term aggravated felony means either a... for purposes of 1182, either any felony... any crime of violence or, 3, a crime of reckless driving described as intoxicated.

And it seems to me that statute draws a rather sharp distinction between crime of violence as defined in section 16 of title 18, on the one hand, and reckless driving that we're talking about in this case, on the other, which suggests to me that maybe Congress thought the two were different.

Mr. Himmelfarb: Well, we don't... we don't think it does, Justice Stevens, and... and that's even apart from the fact that the Congress that enacted that--

Justice Stevens: Was different.

Right.

Mr. Himmelfarb: --statute was a different Congress from the one that enacted section 16.

But the... the thrust of petitioner's argument under 1101(h) is that if you interpret a crime of violence to include drunk driving resulting in bodily injury, you will render 1101(h)(3) essentially superfluous.

Justice Scalia: I... I don't think your... your that was a different Congress argument carries much weight.

We don't usually interpret the United States Code to be chaotic because each of the sections has been enacted by a different Congress.

We try to reconcile the whole thing.

Mr. Himmelfarb: Well, that--

Justice Scalia: And I think it... it is telling that this thing does seem to separate reckless driving from... from a crime of violence.

Mr. Himmelfarb: --Well, that's the point I was just about to make, Justice Scalia, and we think it does separate the two, and there is no overlap.

There is some overlap, but there's not complete overlap.

Justice Scalia: Do you agree that... that the rule of lenity applies?

Mr. Himmelfarb: Well, it... it applies in the sense that if, at the very end of the interpretive process, the Court is left with a grievous doubt as to which way it should rule, yes.

It doesn't apply in the sense that we don't think there is a grievous doubt in the case.

Justice Ginsburg: Would you say the same thing about... isn't there also a principle that in deportation statutes, ambiguities are to be construed in favor of the alien?

Mr. Himmelfarb: Justice Ginsburg, there is, to be sure, language in this Court's decisions suggesting that.

We have never agreed with that view.

We think the immigration context is very different from the criminal context.

Justice Scalia: Well, what difference does it make if you concede the rule of lenity, which says the same thing?

Ambiguities are to be resolved in favor of the--

Mr. Himmelfarb: It... it doesn't, Justice Scalia.

Our only point--

Justice Scalia: --They're the same.

Mr. Himmelfarb: --Our only point is that if... if the rule of lenity is to be applied here, we think that the basis for applying it is that we're dealing with a criminal statute, not that we're dealing with a criminal statute incorporated into the immigration laws.

I do want to say a little bit more about the... the text and statutory context definition of crime of violence.

Apart from the thing that's being defined, crime of violence... and as I've said, we don't think that the word violence has any mens rea necessarily associated with it.

The definition of the thing that's being defined is the use of physical force--

Chief Justice Rehnquist: You say the word violence doesn't.

And I think you're probably right.

There are all sorts of violent things that happen.

But you're dealing with the phrase, crime of violence.

And more often than not, crime does have.

Mr. Himmelfarb: --That's exactly right, Mr. Chief Justice.

Crime, more often than not, does but it doesn't always.

So we think the focus should be on whether the crime involves violence, which we think is essentially an actus reus and not a mens rea.

Chief Justice Rehnquist: What does actus reus mean?

Mr. Himmelfarb: Actus reus means the actual criminal conduct as opposed to the defendant's state of mind when he's carrying out that conduct.

And since legislatures do regulate... do impose criminal liability for violent acts and they have varying degrees of mens rea in those criminal definitions, we don't think that a mens rea should be read into this statute.

Justice Scalia: You say if I bump into somebody getting off the bus, I've... I've committed, as far as actus reus is concerned, an act of violence.

Right?

Mr. Himmelfarb: No, Justice Scalia.

Justice Scalia: I say, excuse me, but--

Mr. Himmelfarb: We don't think so.

The--

Justice Scalia: --I committed... committed an act of violence.

[Laughter]

This is just not normal use of language.

Mr. Himmelfarb: --Courts... courts have generally read use of physical force in section 16 to mean something more than force in a literal or a scientific sense.

Force in this context means violent or force that has the risk of causing injury.

Now--

Justice Scalia: I bump into him really hard, really hard.

He falls down.

I've committed an act... an act of violence?

Mr. Himmelfarb: --Well, of course, Justice Scalia, you would have to have a legislature criminalizing that conduct, and I think it's very unlikely--

Justice Scalia: I'm not talking about criminalizing.

I'm just talking about normal English usage.

Would you say that I committed an act of violence?

I don't think so.

Mr. Himmelfarb: --I--

Justice Scalia: I don't care how hard I... I accidentally bumped into him.

You wouldn't say, you know, Scalia... he's a violent man.

[Laughter]

Mr. Himmelfarb: --Justice Scalia, if two outfielders are chasing after a fly ball and they crash into each other, the next day in the newspaper you may well read a headline that talks about a violent crash in the outfield during that game.

I don't think it does any violence, if you'll forgive the expression--

[Laughter]

--to ordinary English usage to say that when there is a collision between cars, when there is a collision between athletes who are running at full speed, that is a violent act.

Justice Souter: No, no.

Justice Kennedy: So you think it's standard--

Justice Souter: You'd say it is a violent result.

Yes, a violent crash.

You're right.

They'd say that in the paper.

But they wouldn't say that the two players were committing acts of violence.

Justice Scalia: It's a totally different meaning of violence.

You can talk about a violent wind.

[Laughter]

It... it has nothing to do with when you're talking about a violent act in the sense of... of crime.

Mr. Himmelfarb: Well, I've been... I've been speaking of the thing that's being defined.

I want to speak some more about the definition that's really the ultimate statutory language that's being interpreted, which is use of physical force.

In the context of section 16, we think that the use of physical force means the application, the exertion, the putting into action of physical force, and in the absence of some specification of a purpose, for example, the use of physical force to subdue an attacker or to gain entry to a building, we don't think that the exertion, application, or putting into action of physical force has any particular mens rea associated with it.

Justice Breyer: Why in the... in the House... in the Senate report on this bill, the example that they use for the first is an assault or a battery.

Nobody has used, you know, blindly in your sleep knocking over a table and--

Mr. Himmelfarb: Well, that... that wouldn't be a crime, of course, Justice Breyer.

Justice Breyer: --No.

Right.

Mr. Himmelfarb: An assault--

Justice Breyer: I mean, it's pretty hard to assimilate your model to like an assault.

Mr. Himmelfarb: --Well, the... our essential point is that legislatures define crimes with all sorts of mens rea, ranging from specific intent on one end of the spectrum to strict liability on the other.

And sometimes the thing that is being prohibited involves violence and sometimes it doesn't.

DUI manslaughter, DUI resulting in serious injury is a classic example of a case where the thing that is being criminalized, the act, is violent but the mens rea is not an intent mens rea.

Justice Scalia: What about negligent homicide?

You... you absent mindedly don't see a stop sign.

You go through the stop sign and someone is killed or just injured.

Someone is injured through your negligence driving a car.

Is that... under your definition, that's a crime of violence.

Mr. Himmelfarb: I think... I think we would have to agree with that, Justice Scalia.

Justice Scalia: Yes, I think you would, and boy, that's a--

Justice Breyer: So every driving accident is a crime of violence--

Mr. Himmelfarb: Well, no, Justice Breyer.

Justice Breyer: --if there's negligence involved.

Mr. Himmelfarb: Most driving accidents aren't criminal at all.

It... it takes--

Justice Breyer: But any... any one that is criminal... let's see.

Criminal negligence in respect to driving becomes a crime of violence under your definition.

Mr. Himmelfarb: --I don't... I don't know that legislatures generally criminalize most car accidents.

Justice Breyer: And why isn't it if there's a traffic infraction involved?

A traffic infraction... you went through a stop sign.

In Justice Scalia's example, he went through a stop sign.

Mr. Himmelfarb: I don't... I don't think that would be a felony or even a misdemeanor.

Justice Scalia: --It doesn't have to be a felony.

Justice Souter: It doesn't have to be--

Justice Scalia: It just has to be an offense--

Mr. Himmelfarb: I think--

Justice Scalia: --certainly an offense.

Mr. Himmelfarb: --I think a traffic infraction probably would not be even a misdemeanor.

So there's a whole set of driving infractions that wouldn't even rise to the level of a misdemeanor.

Justice Souter: --I don't know, and if you're going to... if you're... you're making an argument based on what the language read most broadly can accommodate, and if we're going to follow that criterion, then the... the reference to the... to the infraction in (a) is offense.

An offense is certainly broad enough to... to include driving infractions, as well as misdemeanors.

I mean, if... if you want a broad interpretation, you're going to pick up a lot.

Mr. Himmelfarb: Well, I'm... I'm not sure we are, Justice Souter, because a traffic infraction would not have as an element the use of force.

If you drive through a stop sign and you're cited for driving through a stop sign, the offense you're cited for would not have an element--

Justice Souter: The offense you're... you're cited for is driving your car through the stop sign and you've just been telling us that... that using an automobile is inherently a use of force.

Sure, it would cover it.

Mr. Himmelfarb: --No.

No, Justice Souter.

We... we agree that the use of force has to be directed against another person.

Chief Justice Rehnquist: Well, the offense you're cited for in Justice Scalia's hypo is negligent homicide, not going through a stop sign.

Mr. Himmelfarb: That's right.

Justice Scalia: That's right, but you... you agree negligent homicide would... would be covered.

Mr. Himmelfarb: We do.

We do.

I just want to say one last thing about the other part of this case.

Most of the discussion has been whether use requires intent.

Petitioner actually makes two alternative arguments.

One has to do with the meaning of the word use.

The other has to do with the meaning of physical force.

We don't think that the physical force part of this case is truly in dispute.

His view is that physical force requires that the driver actually crash into somebody, but we think that if you're--

Justice Souter: No.

He said his view is that the... that the physical force requires an element of intent, which you dispute.

Mr. Himmelfarb: --That's true, Justice Souter.

I was--

Justice Souter: He's making the... he's making the same argument that Justice Holmes said the dog understands, the difference between getting tripped over and kicked.

And... and you're saying no.

The dog's perception doesn't count in... in the... the interpretation of... of using force.

Mr. Himmelfarb: --I agree he's making an argument about the requirement of intent which he thinks the word use encompasses.

He's also making an alternative argument, which is whether or not use requires intent, the crime does not have as an element the use of physical force because you could injure somebody by driving drunk without the use of physical force.

And he gives examples of how you could do that.

Our position is that even if those examples he gives, for example, swerving and forcing somebody off the road or falling asleep at the wheel and having somebody else crash into you, even if those examples do not, by themselves, involve the use of... involve physical force, it's our view that if you're driving drunk and you're doing those things, there's a substantial risk of physical force.

So on the physical force part of the case, we think we win under 16(b), which means that the only issue that's really in dispute between the parties is whether use requires intent.

And for all the reasons in our brief and the reasons I've given today, I think our position is correct.

Rebuttal of Joseph S. Sollers, III

Chief Justice Rehnquist: Thank you, Mr. Himmelfarb.

Mr. Sollers, you have 4 minutes remaining.

Mr. Sollers: Very briefly.

On Justice Scalia's drive-by shooting example, that would be absolutely a use of force that has an element, the attempted use or threatened use against a person or property of another.

Respondent's position, as... as I listened to it, would require, as I think the Court fleshed out, that if someone is speeding or someone runs a stop sign and gets in an accident and there's... and someone is... is killed, that's an involuntary homicide or negligent homicide, and that would be a crime of violence for which someone would be removed.

Justice Scalia: Or even injured I suppose.

Mr. Sollers: Or even injured, quite possibly, yes, Your Honor, depending on how it's charged.

And we do not believe that Congress in any way contemplated that such an offense would lead to such a draconian result.

There was considerable discussion about the difference between the use of force and consequence.

And indeed, the circuit courts of appeals decisions that respondent can cite have confused the difference between the consequence of an act and the... the use of force.

The Le decision in the Eleventh Circuit, as well as the Tapia-Garcia decision in the Tenth Circuit, both confused use of force with causation of injury.

And even in the Tenth Circuit, the Tapia-Garcia case has now been disfavored by a subsequent panel in Lucio-Lucio that focused on use of force, and the chief judge in the Tenth Circuit was, in fact, on both panels.

So in closing, I would simply indicate to the Court that this is a momentous decision.

There is a tremendous amount of... there are a tremendous number of ramifications that stem from the findings that a DUI type offense is a violent felony under 18 U.S.C., section 16, and we... we recommend and--

Justice Scalia: What other consequences besides deportation?

Mr. Sollers: --Your Honor, there are... the statute is... 18 U.S.C., section 16 is subsumed in a number of different other statutes.

Justice Scalia: Such as.

Mr. Sollers: There... RICO actually subsumes crime of violence.

The ownership of body armor, believe it or not, subsumes crime of violence.

You're not allowed to own body armor.

There are a number of... a whole array of different statutes.

Accordingly, the Government is... has attempted to expand the reach of 18 U.S.C., section 16 well beyond the bounds of what Congress contemplated.

By parsing the word use and blurring the meaning of intentional conduct, the Government would seek to have lawful, permanent residents such as our client removed under these circumstances.

And we respectfully urge this Court to reject the ill-founded position of the Government.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Sollers.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Jama v. Immigration and Customs Enforcement - Oral Argument

Fri, 09 Jan 2009 14:49:03 +0000

Case:

Jama v. Immigration and Customs Enforcement

Media File:

03-674_20041012-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jeffrey J. Keyes

Chief Justice Rehnquist: We'll hear argument next in No. 03-674, Keyse Jama v. the INS.

Mr. Keyes.

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

The Eighth Circuit's decision that petitioner, a citizen and a national of Somalia, can be deported to Somalia should be reversed.

The applicable removal statute requires acceptance from the country of which the alien is a subject, national, or citizen.

That statute is 8 U.S.C. 1231 (b)(2)(D) as in David, which we have referred to as step two.

The Eighth Circuit acknowledged that acceptance is required for such a removal.

The parties agree that Somalia has no functioning government that can give acceptance in this case, as that term is used in the statute.

Chief Justice Rehnquist: Mr. Keyes, we're not talking about removability here, are we, I mean, in the sense that a dispute over whether he could be removed?

It's just a question of where he can be removed to.

Mr. Keyes: That is correct, Your Honor.

The circuit court ruled, however, that petitioner could be deported to Somalia because the statute provides that if the alien is not removed to his country of citizenship, then he can be removed to a list of additional countries in the next step of the statute, 1231(b)(2)(E), including the country of birth.

The circuit court erred in that ruling for the following reasons.

Justice Ginsburg: May I ask you preliminarily, Mr. Keyes?

The Government takes the position that this statute, whatever it means, was intended to... with the... with the nation abroad in view, that the idea was not to insult our... our neighbors in the world community, so to recognize that they have the prerogative to say yes or no to somebody being sent there, being removed there, but that the statute was not intended to confer any benefit on the removable alien.

Mr. Keyes: Your Honor, the... the statute, as structured, sets forth... Congress has set forth order with respect to the deportation process, has set forth, for example, the order in which countries should be chosen, the identity of those countries that should be chosen.

The... the statute is... does get at order in the deportation process, and if an alien is being removed to... in a situation where there is no government to receive the alien, where the alien is simply being expelled from the United States, the risk arises that the alien will bounce back to the United States, will simply be in international traffic with no country to receive the alien, and there's nothing in the statute which would indicate that the interest of Congress in ordering the removal process is limited simply... limited simply to a concern about the sovereignty of nations of the other country.

Chief Justice Rehnquist: But you need more than that, don't you?

Are you saying there's no interest... indication that Congress was concerned with other than the subject that it was talking about?

But... but you need something affirmative to say that a statute confirms a right on a private individual.

Mr. Keyes: Mr. Chief Justice, the... the... we are not contending that the... the statute invests a right on the individual.

What we are contending is that the statute was... as expressed in the statute has this acceptance requirement that would apply to the removal process.

Justice O'Connor: Well, but it is possible to read the statute, particularly part (E), the first series of subsections of it, as the Eighth Circuit did.

That is a possible reading of the statute and to find there is not, indeed, an acceptance requirement under many of those little subsections.

Mr. Keyes: Your Honor, I would... I would suggest that--

Justice O'Connor: Or I should say clauses perhaps.

Mr. Keyes: --Yes, yes.

I would... I would suggest that to... to give it that reading, one has to limit the view to the first six clauses.

Justice O'Connor: Yes.

Mr. Keyes: However, the... I would suggest that that would... that would take subparagraph (E) out of... out of its context, and there are several very important... there's important--

Justice O'Connor: Well, I... I'm not sure that's right.

When I read the statute as a whole and went through all the possibilities there and got to (E), it read as though, at the end of the day, Congress did want to provide some place of removal for people in the absence of acceptance.

Mr. Keyes: --Your Honor, I would... I would suggest that that... that is... that's not the case for the following reasons, that first of all, the way (E) begins, it says, if an alien is not removed to a country under the previous subparagraphs.

Justice O'Connor: Right.

Mr. Keyes: The first priority is... before that is country of subject, nationality, or citizenship where there is an acceptance requirement.

In moving to (E)--

Justice O'Connor: Well, obviously Congress prefers to have a country act with acceptance.

That... that's understandable, but what (E) appeared, to me at least, to be was if all those things had been exhausted, we're going to still allow removal under little subclause (i), (ii), (iii), (iv), and (vi).

Mr. Keyes: --Your Honor, the... the... what (E) does is that it doesn't change the removal process.

It just adds for the... for the executive branch, it adds additional countries, other countries, that they can remove to.

Justice Scalia: Well, but it doesn't begin that way.

It doesn't begin if an alien cannot be removed to a country under the previous subparagraphs.

It says, if an alien is not removed to a country under the previous subparagraphs.

And whether he is or not is subject to the discretion of the Attorney General.

None of those sentences or paragraphs requires removal to those countries.

Mr. Keyes: Your Honor--

Justice Scalia: So when it says if he is not, then the... the Attorney General has these additional options.

I mean, you... you'd have a stronger argument if it... if it read cannot be removed, but it doesn't.

Mr. Keyes: --Your Honor, the... the... when it says, if an alien is not removed to a country under the previous subparagraphs, that... that is moving to give the Attorney General additional countries to remove to.

It doesn't change the process.

Look, for example... I think we get further guidance on that point by looking at clause (vii) which is obviously a part of... of this subparagraph (E), which ends with the words, another country whose government will accept the alien into that country.

Another country whose government will accept the alien into that country.

What that... what that does is that it gives us... it references back to the first six clauses and reflects the fact that the acceptance requirement is always present.

Justice Scalia: Of course, well, I mean, that clause could... could be read either way.

Another country whose government will accept the alien is one way to read it, and another way to read it is another country whose government will accept the alien.

Mr. Keyes: It is... it is--

Justice Scalia: And that's... that's the... that's the ambiguity there.

Mr. Keyes: --It... it does depend upon the emphasis that you give, but I would suggest that if we are going to... if we are going to read (E) to mean that what the Congress intended was that you're going to have an acceptance requirement for removal under (D), step two, the subject, nation, or citizenship country, but then we're going to move to (E) and we're going to give you a list of other countries that are presumably less... or have a less closer connection to the alien than in (D).

And with respect to those countries, those ones that are just in clauses (i) through (vi), we're not going to have any acceptance requirement.

But then we're going to put it back in in clause (vii) if... when you have to go then to some other country to get acceptance.

I would suggest that that is not a... a sensible reading of the--

Justice Breyer: Do you know why?

Did you come across anything that explained why there was a change in language in that clause (vii) between the 1952 version and the present one?

The '52 one said, to any country which is willing to accept such alien into its territory, and then (vii) said, another country whose government will accept the alien.

Mr. Keyes: --I... I... we didn't--

Justice Breyer: Do we know... is there anything?

Is that an accident, a drafting... just simply drafting style or something or--

Mr. Keyes: --It... it... we didn't find anything that explained why.

I would... I would suggest that it reinforces my point and that is--

Justice Breyer: --Yes, it does.

It helps you quite a lot that it says government, but it doesn't... at the same time it doesn't... it... it doesn't help you in respect to whether (vii) applies to the first six.

It does help you in respect to if you win that point, that's it because there's no government.

Mr. Keyes: --That's... that... that is correct, Your Honor.

Justice Breyer: Otherwise, you could argue--

Mr. Keyes: That is correct.

The... the... we... we did in the... there is in one of the amicus briefs that those... that gives the legislative history, there is a reference to the major report of the Judiciary Committee in connection with the '96 legislation, which says that this whole section of the... of the INA is being... is restating the... the previous law.

So... so that's what... that's what we have.

Justice Souter: One... one argument in... at least in my view, that would certainly help you in your reading of (E) is the interpretation that you put on (D).

And... and you and Justice Scalia, I... I think, have two very different interpretations of what (D) requires.

You're saying that... that (D) does, in fact, require a... a... the... the country... if... if the Attorney General designates the... the country of citizenship, that there is a requirement in (D) that the... that the country accept.

Whereas, his earlier question that... that spoke of... of... and the issue under (E) is whether an alien is or is not removed as opposed to can or cannot be removed.

His earlier question indicates the... the possible reading that there is no acceptance requirement in (D).

And as I understand the Government's argument, it is... it is this, that (D) requires the Attorney General to turn to the country of... of citizenship, but if the country of citizenship does not accept or does not respond, it is not the... the consequence is not that the Attorney General cannot deport to that country, but simply that he is no longer required to, that it is an act of discretion.

What is... what is your answer to that argument, that there is no absolute acceptance requirement, merely an acceptance requirement to maintain the Attorney General's obligation to return him to that country?

Mr. Keyes: Two reasons, Your Honor.

First of all, it's the language of (D).

It says, remove to subject, national, or citizenship country unless the government of the country does not affirmatively inform about acceptance or... or--

Justice Souter: Well, it says the Attorney General shall remove unless.

And their argument is if... if you don't get the condition satisfied, i.e., acceptance, there's no longer a mandate, i.e., shall.

It simply leaves it open, a matter of discretion.

Mr. Keyes: --And... and I would... I would suggest that the... the consequence of the unless language should be that unless this happens, don't do it.

But... but... so that would be my... my suggested reading of the language.

But the second reason, going to the structure of the statute, which I think reinforces that and... and is important, is that if it had been... if it had been Congress' intent that if the Government couldn't remove to the country of citizenship because it couldn't get acceptance, that it could then move to step (E) and remove anyway to overcome that acceptance, Congress would not have gone about writing the statute the way that it did.

The way that it wrote the statute is that it provided in (E) for other countries that the... that the Attorney... Attorney General could remove to, and every one of those countries can be a different country than the country of citizenship by their definition.

It would... it would have been a very strange way for the... the Congress to have given the Attorney General the discretion to remove anyway, to make it contingent upon one of those countries in clauses (i) through (vi) to happen to be the same country as the country of subject, nationality, or citizenship.

Justice Scalia: What I think is very strange is the... is... is for you to read back up to all the other clauses, (i) through (vi), the phrase, whose government will accept the alien.

I mean, if... if acceptance is a condition for all of those preceding things, my goodness, that's certainly not the way to make it clear, to tag it onto (vi) instead of putting it in the introduction or in a clause that comes after (i) through (vii) and goes out to the margin after that.

You... you want us to read back to (i) through (vi) whose government will accept the alien.

Mr. Keyes: The... the... I think that the... the best way to approach the statute... and I think it... it can... it can shed light on... on your question... is that if we start with the premise that what removal is is the transfer of the alien from the Government of the United States to the government of the country of removal.

And that is what removal is.

So if we start with that premise, then it makes absolute sense here that there wouldn't be at each place where the... the statute identifies a... a country, where the statute would have to say... make a specific reference to the acceptance requirement.

My point about reading the statute that way, in terms of its general condition, is that it explains how throughout the statute you would have the... the reference to acceptance in the context in which it appears, but you wouldn't have to repeat it every place where you... where you referenced a country of removal.

Justice Scalia: So... so, as you read... as you read this statute, the United States can never send somebody back to a country that doesn't want them.

Is that it?

Mr. Keyes: It would... in... in this removal process, it does require acceptance from the country of removal.

Now... now, they--

Justice Scalia: Why... why would... why would Congress ever want to impose that categorical requirement?

Mr. Keyes: --The... the reason why it... it would fit in with the... with the statute is that Congress has in this statute has expressed an interest in the orderly process of deportation.

If... if it... let's take two examples, Your Honor.

If the... if the country of removal refuses, does not want to have... will... will not take the alien back... there is a government and they refuse... then the... the reason why it makes sense to have this acceptance requirement is that in all deportations, it will make it less likely that the deportee is going to be bounced around in international traffic and come back to the United States.

Chief Justice Rehnquist: Can the... can the alien challenge a decision by the Attorney General that, yes, a certain country has accepted him?

Mr. Keyes: The... I... I... if there is a... if there was a wholly unreasonable claim by the Government that there was acceptance, they... not--

Chief Justice Rehnquist: So... so the alien can litigate that issue.

Mr. Keyes: --I think that the alien can if the... if the Government were to take a position... let's say in... in... in a... in... in this case the Government agrees, admits that there is no acceptance.

But let's say that the Government took the position to say that we can... we can call anything acceptance and we can... we can ship you out of the United States with a wholly unreasonable definition of acceptance.

Then the alien should in that circumstance be able to have access to the courts to be able to challenge that... that decision.

Justice Stevens: It seems rather strange to me.

If you take him to the airport, he either gets off the plane or he doesn't.

I don't see why you litigate that.

You know whether they'll accept him or not when you... when you deliver him.

Mr. Keyes: Well, you... you should know that because that is the... the acceptance is the willing receipt of the... of the alien by the country of removal.

Justice Breyer: --What happened in China?

I mean, what... this all comes from the '52 act, and it was a big issue then that we didn't recognize communist China and they would take people to the border.

How... how did that work?

Were there... were there instances under the '52 act where they just would take somebody to Macau or something and push him across the border, or what... what happened?

How did it work?

Mr. Keyes: The... the instances we know about come from the... from the Tom Man case, which was decided by the Second Circuit in 1958.

And in that case, what the Government wanted to do was to take the alien to the border of the... of communist China and to see whether or not they could get him across the border.

And in the... and... and in construing this... this very provision in the language that it was in in 1952, Judge Learned Hand for the... for the court said that... that acceptance was required under step three for each of the subparts and that that would violate the statute.

We know of other instances, Your Honor, to answer the question, in terms of procedures where in... in the 1950's, '60's, that the... what the Government would do would be to take the... remove the alien to Hong Kong and then there were situations where the Hong Kong authorities may or may not send that alien on to... on to China.

But there was... there has always been... every opinion from the... from the time this statute went into effect in 1952, up until the Eighth Circuit's decision in Jama, has said that what this statute means at each of its steps is that acceptance is required.

Justice Breyer: Now, are there instances where we have deported people to places that they said, no, we won't take him, and we have anyway?

Mr. Keyes: We don't... we don't know of any, and the... and the Government has... has not cited--

Justice Breyer: Okay. Then another--

Justice Scalia: And you say there can't be any under this law.

Mr. Keyes: --We say there can't be.

Justice Scalia: So that if some state opens its prisons and puts its criminals on a boat and sends them to the United States, as has happened in the past, your interpretation of this statute is that Congress has forbidden the President from shipping these criminals back where they came from, so long as the country that expelled them doesn't want these criminals back.

Is that--

Mr. Keyes: No, Your Honor.

Justice Scalia: --What... what are you saying?

Mr. Keyes: The reason for that is that this statute deals with the removal of aliens who have been through removal proceedings.

In that situation, presumably what would happen is that those... those aliens would be excluded.

They would be subject to... probably to expedited removal under a different statute.

We're dealing here with aliens who have been admitted into the United States.

Justice Kennedy: Is the statute so limited?

Mr. Keyes: It... it... yes, it does.

The... the statute does.

It starts in... in (2), 1231(b)(2)(B), other aliens, and (1) is arriving aliens who are in removal proceedings.

Justice Ginsburg: The United States has turned boats back.

The most notorious case was in World War... before World War II--

Mr. Keyes: Yes.

Justice Ginsburg: --before we entered World War II.

Mr. Keyes: It... it has.

And... and given the fact that this statute was originally passed in 1952, in 1952 there was a... we know from the legislative history, there was enormous concern about the fact that the... the communist countries would not receive back their citizens.

So the concern was that we had communist agents or aliens in the United States and we couldn't deport them.

What Congress did in this statute was that... in 1952 is that it... it didn't change the acceptance requirement, but what it did do was it expanded the list of countries to which the Government could deport.

Those are the countries we now have--

Justice Breyer: --But what's bothering me partly in this case is it's being argued on the ground that this is like a country that says we don't want him.

In fact, this is a country that hasn't said we don't want him.

It's a country that hasn't said anything.

It's not a country perhaps.

And... and that's what... really the issue is whether or not a place without a government is a place where you can send him at all.

Mr. Keyes: --Yes.

Justice Breyer: And... and maybe this is all evidentiary when they changed the word... add the word government, that the word country throughout is simply assuming a place that has an organized government.

Is there... is that so?

Is there anything you want to say about that?

Mr. Keyes: There is.

Yes, it... it does mean... that is a separate reason why the... under... under (E) the petitioner cannot be removed to Somalia because there is... it's not a country as that should be properly defined in the statute.

And... and let me give you, I think, a good history on that.

The Board of Immigration Appeals itself in... in 1985 in the Linnas case, specifically addressing in (E) the term country, said that to be a country under this statute, there had to be two things: a territory and there had to be a functioning government that exercised sovereignty over its people.

Justice Breyer: All right.

Now, the word country probably appears in the immigration statute in the context of deportation since the first statute that provided it.

So have you done any work on that?

I... I hate to sort of have to look that up for the first time, but the... the... is there any work that you can report in respect to that word country?

There never under that... the easiest thing for you would be if... if this word country... there never has been under a statute that used the word country a deportation to a place that had no organized government.

Mr. Keyes: Well, I--

Justice Breyer: If you could affirm that that's so, then that would be very strong for you.

But maybe that isn't so.

Mr. Keyes: --I... I don't... I don't know if... if that is so.

I can point to and we have pointed to in... in the briefs to a whole series of cases.

I... I mentioned the BIA decision, but there's a whole series of cases in the... in the 1950's, 1960's which said that country had to have a functioning government.

I'll... I'll give you one... one good example and that is the Ying case where... where the court, circuit court, said that it was dealing with whether Hong Kong could be a... a country.

And it said Hong Kong can be because it has the following characteristics.

It has a legislative body.

It has... it has all the characteristics of a political organization.

Justice Ginsburg: I thought the Government said you... you didn't raise this question below, that you didn't argue that Somalia wasn't a country.

Mr. Keyes: Your Honor, it... it... this is... this is not a new claim or a new issue.

It is an argument on the issue that is presented, which is whether petitioner can be removed to the country of birth under (E) when there is no functioning government that can either object or accept him.

And since there is no country, he can't be.

Chief Justice Rehnquist: Well, but that doesn't seem to be the question you actually presented in your petition for certiorari.

Mr. Keyes: Well, Your Honor, I would... I would quote the... the Government's phrasing of the question in... in--

Chief Justice Rehnquist: Well, but you're... you're bound by the question that you presented, and it is whether the Attorney General can remove an alien to one of the countries designated in the statute without obtaining that country's acceptance of the alien prior to removal.

Now that doesn't say anything about the absence of a government.

Mr. Keyes: --Your Honor, it... it doesn't specifically say--

Chief Justice Rehnquist: It doesn't say specifically or generally.

Mr. Keyes: --It... it... what I would say is that the... that if you go... if there is no government in that country, then there can be no acceptance.

So we must refer back to that.

I would also cite the fact, Your Honor, that this issue was specifically addressed by the... by both parties in the district court.

It... and the... in the dissenting opinion in the Eighth Circuit, the... the dissent specifically raised this as... as a matter in terms of--

Chief Justice Rehnquist: Was it addressed by the majority opinion?

Mr. Keyes: --It was not addressed by the majority opinion, no, Your Honor.

I would... I would... if there are no further questions at this time, I'd like to save the rest of my time for rebuttal.

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: Very well, Mr. Keyes.

Mr. Stewart, we'll hear from you.

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

The plain language of 8 U.S.C. 1231(b)(2)(E)(iv) authorizes removal of an alien to his country of birth, and it is undisputed that petitioner was born in Somalia.

By its terms the statutory authorization is not conditioned on acceptance by the receiving country's government.

Justice Scalia: Why... why did you narrow the question presented in your brief if you're willing to take that... that much more categorical position and much more important position for the Government?

When... the... the question presented, as you describe it in your brief, is whether immigration officials may remove petitioner to his country of birth when that country lacks a functioning central government that is able either to accept or object to petitioner's... that's a much narrower question--

Mr. Stewart: I mean--

Justice Scalia: --than... than the one presented by petitioner.

Mr. Stewart: --We... we narrowed it in that way because we feel that that's the only question that is squarely before this Court.

That is, the Court--

Justice Scalia: That's all you want us to decide?

Mr. Stewart: --Well, we've also indicated that the... the logical thrust of most of our arguments is to the effect that an individual could be removed to an otherwise permissible country, notwithstanding the lack of acceptance of a functioning central government.

Justice Scalia: Well, I... I don't think it's the logical thrust necessarily, and if we... if we did it the way your question presented suggests, we're deciding this case only for people who are going to be deported to Somalia or... what other areas of the world have no functioning government?

Mr. Stewart: Somalia is the only one, and--

Justice Scalia: That's... I wouldn't have voted to take the case.

Justice Breyer: So it's much narrower.

Mr. Stewart: --Well, obviously we... we opposed the certiorari petition.

So we're not contending that the practical importance of the question is such that it would necessarily justify the Court's expenditure of its resources.

There was a square circuit conflict--

Justice O'Connor: Yes, but it... it's very odd when the petitioner's question was broader and turned on whether there was acceptance or not.

Mr. Stewart: --Well, I think our... the reason... one of the reasons we framed the question as we did is that petitioner's last argument in the brief was, as we read it, to the effect that whatever the text of the statute might say, there has been an established understanding over the decades that removal is not permitted in the absence of acceptance by the receiving country's government.

And part of the point we wanted to make is we don't think an understanding of that sort could trump the test... the text.

But even if the Court decided that the established understanding was so pervasive that an extratextual limitation on removal authority should be read in, the understanding could be thought to exist only in cases where there was a functioning central government that resisted the alien's return.

Justice Breyer: As I... as I understand it, following up a bit on Justice Scalia, the question presented is whether he can remove an alien to one of the countries designated without obtaining that country's acceptance.

Okay?

Mr. Stewart: Without--

Justice Breyer: Now, one possible... prior... of the alien prior to removal.

That's... I'm just reading it--

Mr. Stewart: --Although--

Justice Breyer: --from their cert petition.

Mr. Stewart: --I do... I think you left out one word that is... is crucial, that is, his position necessarily turns on the proposition that we have to get acceptance not simply from the country, but from the government of that country.

Justice Breyer: But what the cert petition says, without obtaining that country's acceptance of the alien.

Now, I grant you it's sort of a hidden argument there, but it's mentioned or whatever.

Is... one reason the answer to that question is no is because where that country does not have a functioning government, it is not a country within the meaning of country as used in this statute.

Mr. Stewart: I mean, we would submit--

Justice Breyer: Now, that's... that's an answer no to the question presented for a very narrow reason that does not get us involved in anything other than Somalia.

Is there... I mean, maybe we shouldn't reach it because it wasn't argued all that much, but it seemed to me just another argument being advanced in favor of their position.

Mr. Stewart: --Well, first, we would... we would submit that the question presented presupposes that Somalia is a country.

But leaving that question aside, I think there are a lot of good reasons that even if the Court felt this issue was properly before it, it should hold that Somalia is a country.

If you go to the Department of State web site, Somalia is listed as an independent state.

It continues to be a member state in the United Nations, notwithstanding the absence of a functioning central government.

If Somalia were not regarded as a country or a state, by reason of the absence of a government, then presumably all people who were formerly Somali nationals would now be rendered stateless, and that's a result that international law generally--

Justice Breyer: So you're not saying you can dump people in Antarctica or possibly send them to the moon.

Mr. Stewart: --We're saying that... we're saying, first, that Antarctica and Somalia are countries.

It's exceedingly--

Justice Breyer: Antarctica is a country?

So we could take all these people, send them to Antarctica.

They'll live with the penguins?

Is--

Mr. Stewart: --It's extremely unlikely that... that the... the text of a statute could ever be satisfied because the permitted removal countries are countries such as the country in which--

Justice Scalia: If they were born there--

Mr. Stewart: --Exactly.

Justice Scalia: --raised by penguins, send them--

[Laughter]

Mr. Stewart: So in any event, we... we think that Somalia is a country.

It continues to be regarded as such, notwithstanding the current lack of existence of a functioning central government.

There is a portion of Somaliland... of Somalia known as Somaliland that has set up its own government and characterizes itself as a separate country, but the United States Government has not recognized that claim, nor has any other country.

So Somalia for these purposes remains intact.

I'd like to focus again on the text of the relevant statutory provisions.

Justice Ginsburg: Before you do so, could you tell me what was the outcome in that Southern District of Texas case which relied on this decision, the Eighth Circuit's decision here, to send someone to Ethiopia without consent?

Mr. Stewart: I don't know what ultimately happened to the alien.

As the case is described in the amicus brief, the alien was flown to Ethiopia.

He was refused at the border, and then he was flown back.

And I think that would be consistent with our representation that we have not historically attempted to repatriate aliens over the objection of a functioning central government.

That is--

Justice Ginsburg: Is... is there anything to it other than the practical objection that when you get the person there, the country won't accept him, so we sent him... be left with you--

Mr. Stewart: --I think it--

Justice Ginsburg: --unless we dump him in the sea.

Mr. Stewart: --it's a measure of inconvenience if he's flown there and back, but we would say that even if the Court held that the statute requires acceptance by the receiving country's government, it would not be necessary for us to obtain a prior assurance of acceptance.

Rather, it would still be a permissible option for us to fly the alien to the border, and if the people there, having been told who he is, let in him, we would say that falls--

Chief Justice Rehnquist: You don't fly him to the border.

You fly him to an airport which usually isn't on the border.

Mr. Stewart: --I'm... I'm sorry.

Fly him to the port of entry at which he would be presented to the... the immigration or customs officials in the relevant foreign country, and if they acceded to his entry, having been apprised of who he was, we would say that constitutes acceptance by the receiving country's government.

Justice Breyer: --But that... they can win on that one because it doesn't say anything about prior in (vii).

Mr. Stewart: Right.

I mean, here... here the barrier... in a sense, the barrier is not so much acceptance.

That is, as a practical matter, in order to accomplish removal of an alien to Somalia, we're going to put him on a plane.

He is going to be flown at an airport in Somalia, and there will be people at the airport with guns presumably who exercise de facto control over who gets in and who is not allowed to deplane.

And if those people are not willing to let Mr. Jama into the country, he'll be flown back and we won't be able to accomplish repatriation.

Justice Scalia: Whether they are... whether they are a government or not.

Mr. Stewart: The... the barrier... the potential barrier is not that there won't be acceptance, that there... but that there won't be acceptance--

Justice Scalia: People with guns. Right.

Mr. Stewart: --there won't be acceptance by people that we would regard as the government of Somalia.

And... and I think there is a significant point here in terms of the foreign relations of the United States.

That is, if the reconciliation process goes as we hope and conditions in Somalia become more stable, the... the people who purport to exercise governmental authority gain control over the... the territory and the consent of the population, at a certain point the State Department will have to make a decision, have things progressed far enough that we can characterize this as the government of Somalia.

And that determination shouldn't be skewed by a judicial ruling that until the State Department makes that determination, repatriation of aliens to that country will be prohibited.

If I could turn to the... the text of the statute, the provision on which we rely, of course, is... is subsection (E)(iv) and that's at page 4 of the Government's brief, and it's headed additional removal countries.

It says, if an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General... now the Secretary of Homeland Security... shall remove the alien to any of the following countries.

And Roman (iv) is the country in which the alien was born.

By its terms, that gives unqualified approval to removal to the country of birth.

Neither the introductory language nor subsection... or clause (iv) itself conditions that authorization on acceptance by the receiving country's government.

And it's also--

Justice Souter: Mr. Stewart, may I interrupt you?

Oh, I'm... may I interrupt you and ask... ask this question?

You're right.

Textually there's... there's nothing in (iv) that... that has the condition of... of prior approval.

The argument... one argument is made is that because of the substantial overlap of... of the subsections in (E) with the country of... of nationality or citizenship in (D), that if you do not recognize a... a requirement of acceptance for the (E) categories, basically you're going to do an end run around (D).

The Government's answer to that argument, as I understand it, as... as I tried to... to put it in a question to your... your friend, is that there is no absolute requirement of acceptance in (D).

There is simply a... a... the Attorney General's mandate to send the person to a... a country of citizenship is... is subject to that.

But if the country will not accept, the Attorney General still has discretion to send him to that country.

There is one answer to that that your brother did not get into, and I... I want to raise it.

As I understand it, the House report for the... what was it... the '96 act, the current statute anyway.

The House report indicated that there was no intent to change the substance of the provisions dealt with from what they had been under the prior statute.

And under the prior statute, which is set out on... on page 1a of the petitioner's brief, it seems to me that it is very clear that there was an absolute requirement of acceptance for the Attorney General to act under the predecessor language to what is now subsection (D).

If you look down to within the... the three lines from the... from the bottom of... of page 1a, which refers to that, there... there seems to be a clear condition: if such country is willing to accept him into its territory.

Now, if I'm reading the old law right and the House report does reflect or should be taken by us in interpretation to reflect the intent of Congress, then don't we have to say that the Attorney General's authority, not merely mandate, but authority, under (D) requires acceptance?

And therefore, if we take your view, we would, in effect, allow an end run around a condition indeed because the Attorney General could simply say, okay, I'm going to go to little (iv) under (E).

I'm going to find the country of the birth.

I don't have to get acceptance.

It happens to be the same country as citizenship.

But... but in he goes, or at least up to the border he goes.

What's your answer to that argument?

Mr. Stewart: --Well, let me... let me turn the Court first to page 3 of the Government's brief that has the text of current subsection (D), and I think that maybe that will help me to explain it best because the way we would formulate our interpretation of subsection (D) is very slightly different from the way that... that you characterized it earlier.

Subsection (D) says: if an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country fails to give its consent.

And our interpretation of the purpose of subsection (D) is it expresses a strong preference for removal to the country of nationality, assuming that no designation has been made.

But Congress recognized that to make that an absolute requirement, even in circumstances where there was no acceptance, would embroil the executive branch into foreign policy confrontations because essentially even when the executive branch officials believed it would be an unwarranted affront to foreign states to try to remove in the face of foreign resistance, the statute, without the exception, would be telling the Attorney General you have to do that.

And so Congress, understandably, enacted an... an exception to that requirement, and it says if there is no acceptance, the Attorney General doesn't have to remove.

Now, we would... we would--

Justice Souter: So if... if there is acceptance, he does have to remove.

If there is no acceptance, he has discretion.

Mr. Stewart: --We... we would say he has discretion, but he... but he has--

Justice Stevens: That doesn't make... can I interrupt here?

I want to ask the question I started before.

That doesn't make any sense.

If you read this as a mandatory requirement, the Attorney General shall do it, and if you assume an existing government... now, you narrowed the question.

So I'm not talking about the question.

If there's an existing government, he cannot command the other government to accept the alien.

The general practice among nations was they would not... the other nation has an obligation to accept people back.

But if they won't do it, we can't force them to take the person back.

Mr. Stewart: --I... I agree that that is generally the international practice.

Now, I would... I would not categorically promise--

Justice Stevens: How... how could... say you send a person back to Great Britain and they say we're not going to take him.

How are you... what... what can... what could the Attorney General possibly do?

Mr. Stewart: --I think as a practical matter in that context, it would be impossible.

But to take another hypothetical situation--

Justice Stevens: So the word shall cannot mean shall because he... he cannot in every case do it.

Mr. Stewart: --Well, it says he shall do it unless--

Justice Stevens: Unless there's acceptance.

Mr. Stewart: --Right.

Unless there's acceptance.

Justice Souter: I guess you could say that he shall do everything he possibly can, but his mandate to do that evaporates if there's no acceptance.

Mr. Stewart: That's correct.

Justice Scalia: Wait a minute.

We're... we're--

Justice Breyer: Put the two questions--

Justice Scalia: --We're going too far.

It doesn't just say if they refuse to accept.

If they don't respond within 30 days.

So it may well be that you... that you can proceed to (E) with respect to a... a country that simply has not responded.

Mr. Stewart: That... that's--

Justice Scalia: It has an inefficient ministry of state, and... and the guy arrives.

They say, oh, we're... we're delighted to have this fellow back.

Our response got lost in the mail or something.

There's no... no reason you can't proceed to (E) just because of the existence of (D).

Mr. Stewart: --That... that's correct.

Justice Breyer: --But now, putting those three questions together, it seemed to me what you're saying it is possible to read the statute the way you're saying.

It is also possible to read the statute the opposite.

And the brief that I found very helpful on this was this Ali Ali brief where everything is set out really quite parallel.

You get every version of the statute right in front of you.

And as I read that, it... you look at the '52 version... and I think it's clearer on this point, and it's against you insofar as it's clearer.

But then, in addition, you have four circuit courts of appeals, including a decision by Learned Hand, all of whom say that Justice Souter's suggestion there is what the statute means, and there's nothing to the contrary.

And then after that, Congress reenacts those same statutes with all the little bits and I think some unclarifying changes in language, but they write in the report, we don't mean any substantive change by this.

Justice Scalia: I think the House wrote that in the report.

Right?

Was that in the Senate report?

Mr. Stewart: I don't remember.

Justice Scalia: Did the President know about--

Justice Souter: It... it was the House report.

Justice Breyer: Some people actually read those reports and feel they are a clue to what Congress is trying to get at.

And here, if that is a clue, the clue says that there is to be no substantive change from a provision that was unanimously interpreted by four circuits, including Learned Hand, to be with the other side on this.

Mr. Stewart: Well, first--

Justice Breyer: So I'm interested--

Mr. Stewart: --Well, first, there were only two court of appeals decisions that we've been pointed to in which the attempt remove an alien was actually thwarted on the basis that there had been a no acceptance by the receiving country's government.

Second, Learned Hand was unquestionably a distinguished judge, but if he had been infallible, then presumably he would have been on this Court.

[Laughter]

And I think... I think--

Justice Breyer: --That is an amazing non sequitur.

Justice Scalia: --Good point.

Good point.

[Laughter]

Justice Souter: If you believe that, Mr. Stewart--

Mr. Stewart: --And I think... and I think... but--

Justice Scalia: You... you mean if he had been on this Court, he would have been infallible.

[Laughter]

Mr. Stewart: --Exactly, exactly, exactly, exactly.

The... the point is for this Court to treat as any lower court opinion as an authoritative statement of what the law means or meant would be an inversion of our judicial--

Justice Souter: --Okay.

Let's... let's erase Learned Hand--

Justice Stevens: Let me just... let me get an answer to my question.

In your... under your reading of the statute, the mandatory... it imposes a mandatory duty on the Attorney General which he may not be able to perform because he may not be able to repatriate the alien unless the other country will accept him.

Mr. Stewart: --No.

Our... our point is that the statute would have raised that concern if the exception were not there.

That is, if the statute said in terms if there is no removal to the country designated, the Attorney General shall remove the alien to his country of citizenship or nationality and didn't include an exception, then the Attorney General would be placed in a situation, at least potentially, where he was forced... he felt himself forced by law to attempt repatriation even though he knew that the government of that country didn't accept the alien's return.

And it was to prevent that sort of foreign policy confrontation that the exception was written in.

The exception was, by its terms, an exception to a mandate.

It was not intended to be--

Justice Stevens: Well, then it's an exception to subparagraph (iv).

Mr. Stewart: --It's an exception to subparagraph (iv)... to subparagraph--

Justice Stevens: So you are reading the language in subparagraph (vii) as a... an exception to subparagraph (iv).

Mr. Stewart: --No.

I'm reading the language of subsection (D).

I'm... I'm not at (E).

I'm at subsection (D).

Justice Stevens: I'm at (E).

I'm at (E).

Mr. Stewart: Okay.

Justice Stevens: And I'm saying if you read (E) your way, subsection (iv) is a mandatory command to the Attorney General that he may not be able to carry out unless he can comply with subsection (vii).

Mr. Stewart: We're not saying that subsection (E)(iv) is a mandate that the Attorney General or the Secretary must remove to--

Justice Stevens: It says shall remove.

Mr. Stewart: --It says shall remove to one of the following countries, but it clearly is not intended to be a mandate because the introductory--

Justice Stevens: He can choose one of them.

Mr. Stewart: --the introductory... he doesn't have to choose one because the introductory language of Roman (vii) says, if impracticable, inadvisable, or impossible to remove the alien, dot, dot, dot.

Justice Stevens: Right.

Mr. Stewart: So it specifically contemplates the possibility that situations may arise in which it will not be practicable, possible, or advisable to remove the alien to any of the foregoing countries.

And certainly one--

Justice Stevens: And wouldn't it always be impossible if... if the... if the other country will not accept the alien?

Mr. Stewart: --I think... I mean, to... to give a slight variance on the hypothetical that Justice Scalia posed, if a future--

Justice Stevens: I'd rather have an answer to my question.

Mr. Stewart: --I think it would not always be impossible.

If, for instance, a future president of Mexico embarked on an aggressive program of encouraging aliens... encouraging Mexican nationals to leave that country illegally, and then the Mexican government refused to take them back, I think it would at least be possible.

It would be an option the President would want to consider to repatriate those people over the objection of the Mexican government.

And if the President were attempting to negotiate a satisfactory resolution to that very hypothetical crisis, we wouldn't want him to be hamstrung by a statutory barrier to his doing that.

So it makes perfect sense to say, on the one hand, if there is no acceptance by the receiving country's government, the Secretary will never be required to remove to that country because that would enmesh the executive branch in an international confrontation against its will.

It's not at all inconsistent to say, nevertheless, if the Secretary believes that repatriation without acceptance can be done, consistent with the foreign relations objectives of the... the United States Government, it's a statutory option.

As a practical matter--

Justice Souter: --May... may I go back to, let's say, the... the nub, the narrow nub of... of my earlier question, and that is this.

The predecessor language to what is now subsection (D), as I read it, clearly required the approval of the country if there was to be a removal to the country, a repatriation to the country.

The House report says we don't intend to make any change in the substantive law.

If we accept the House report, then we've... we're going to say that the proper reading of (D) is not your reading, but the reading that says the Attorney General cannot act under (D) unless there is, in fact, an... an acceptance by the country.

And if that is true, then your reading of Roman (iv) in (E) allows you to make an end run around that condition, and that would be a good reason for interpreting all of (E) to require agreement and acceptance by the country.

What is your response to that narrow argument?

Mr. Stewart: --I guess we'd have two responses.

The first is we would not agree with the view that the predecessor language would forbid removal to the country of nationality absent acceptance because what the statute said was that if the government of the relevant foreign country doesn't accept or doesn't advise the Attorney General of what its stance is, then about five or six lines down on page 2a, it says, then such deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth either... and then there's the same series of countries, and one of those is the country in which the alien was born.

Justice Souter: So you're saying that the predecessor language can be read the same way, you say, (D) can be read now.

Mr. Stewart: That's correct.

Justice Souter: Okay.

Mr. Stewart: I guess the other point we would make is--

Justice Ginsburg: Then you... you think Judge Reavley, who was sitting on the Ninth Circuit at the time and dissented in the Ali Ali case, that he was dead wrong when he said the prior statute did condition willing acceptance for all countries to which aliens could be deported.

Mr. Stewart: --Yes.

We would... we would disagree with that statement.

Justice Ginsburg: He thinks... his dissent turns on a difference between the current statute and the prior statute.

Mr. Stewart: Yes.

We would disagree that that was the appropriate result under the prior statute.

The... the other thing we would say about this point is that if we are otherwise correct about subsection (E)(iv), that is, if as a general matter, subsection (E)(iv) says an alien may be removed to the country of his birth whether or not there was acceptance, then it would make no sense to say but you can't do it if that is also his country of current nationality or citizenship because removal to the country of... the current... the country of current nationality or citizenship is a preferred country of removal.

That's so not only the... under the statutory scheme, but it's also the country that under international law has an obligation--

Justice Scalia: I haven't followed you.

Would you say... make that argument again?

Mr. Stewart: --Well, I think petitioner's reliance on subsection (D) is to the effect that however you would otherwise read subsection (E), subsection (D) deals specifically with removal to the country of nationality or citizenship, and if you don't meet the prerequisites for removal to that country under (D), then you can't do an end run by resorting to (E).

And I'm saying if that works at all, it could work only when (E) is invoked to authorize removal to the country of current nationality or citizenship.

It... (D) couldn't have any negative implications if we were attempting to remove somebody to Somalia because he was born there even though he was currently a national or citizen of a different country.

Justice Scalia: That's... that's not one of the choices under (E).

It doesn't... (i) through (vii) don't include the state of nationality.

Mr. Stewart: They... they don't include that, but as a practical matter, I think the state of nationality is... is always or virtually always going to be covered because they include country of birth, country from which the alien departed to enter the United States, country in which he previously resided, country of... that's under the sovereignty of... that exercises sovereignty over the country in which he was born.

One reason for... possible reason for parsing it the way Congress did in (E) is that sometimes the reason that a foreign government doesn't give acceptance may be that the foreign government disputes our contention that this individual is a national of its country, and in order to avoid a recapitulation of that dispute at the subsection (E) stage, Congress might, at least, have though (E) is going to turn on objective factors, factors that are unlikely to be the subject of dispute, and not on the potentially contested question of what country is the... the alien's current country of nationality.

The... the other thing I'd like to say about the... the two policy justifications that petitioner has given.

The one is that this... his reading of the statute is necessary in order to prevent the... this Government from being entangled in foreign confrontations.

And... and our view is that the executive branch is well equipped to prevent that from happening.

That is, so long as the statute doesn't require us to attempt repatriation over the objection of another foreign government, the executive branch is... can and will exercise discretion to attempt that course of action only when we believe that it's consonant with the foreign policy goals of the... the United States.

The other policy objection to our reading that petitioner advances is that places without functioning central governments are likely to be dangerous and that Congress would have wanted to prohibit removal to an... a country where the alien would face hardships.

And we don't attempt to minimize the potential for hardship if an alien is removed to Somalia, but there is a network of Federal statutory provisions that specifically address the question of resistance to removal based on the potential for harm in the receiving country.

And if petitioner can't qualify under any of those, then it's unlikely that Congress would have intended the absence of a functioning central government to serve as a sort of prophylactic or surrogate for dangerous... dangerousness.

And it's worth noting in that respect that the Secretary of Homeland Security currently administers the temporary protected status program which covers Somalia.

It contains broad protections for removal of aliens there, but petitioner is ineligible for relief under that provision because of his criminal conviction.

Thank you, Your Honor.

Rebuttal of Jeffrey J. Keyes

Chief Justice Rehnquist: Thank you, Mr. Stewart.

Mr. Keyes, you have 3 minutes remaining.

Mr. Keyes: I would like to respond by pointing out that on the... on the point that Justice Souter raised with respect to the language of the statute prior to 1996, my... my brother counsel did not quote the most important part of the statute that was in effect at that time.

It's set forth on... on 6a of the brief for petitioner.

And the critical part says, thereupon deportation of such alien shall be directed to any country of which such alien is a subject, national, or citizen if such country is willing to accept him into its territory.

That same language did not just appear in the statute just prior to 1996.

That was the language that was in the statute in 1952 when it was first passed, and that can be found on page 1a to 1b of... of our brief.

I would also like to point out that we can... in terms of... of interpreting this statute, it's also helpful to look at other statutes that were passed in 1996, specifically in the alien terrorist statute where the Government is... gets to remove someone who's been classified as an alien... alien terrorist.

That statute, which is 8 U.S.C. 1537(b), starting on page 8a of our brief, says specifically that an alien terrorist shall be removed to a country whose government is willing to accept that alien.

I would submit that this, if in fact, Congress is going to have... if we're going to have this removal requirement applies clearly to alien terrorists, then certainly this demonstrates that this has... this requirement has always been part of that statute.

And in 1996 Congress had before it those consistent interpretations.

Congress also had before it in 1996 the fact that tens of thousands of aliens could not be deported over the years to countries that would not accept them.

And in 1996, it restated the statute, having those facts and also the consistent judicial history which interpreted the statute to always require acceptance.

As a result of that, we could apply the principle that there was no watchdog barking in the night.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Keyes.

The case is submitted.

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

Attribution:

The Oyez Project

Featured:

Demore v. Kim - Oral Argument

Fri, 09 Jan 2009 14:50:39 +0000

Case:

Demore v. Kim

Media File:

01-1491_20030115-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument now in Number 01-1491, Charles DeMore versus Hyung Joon Kim.

General Olson.

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

Based upon years of experience, study, hearings, and overwhelming persuasive evidence, Congress concluded that the prompt removal of aliens convicted of committing serious felonies was essential to the Nation's ability to control its borders.

Detention of these aliens during removal proceedings was considered vital by Congress to effectuate that policy, to prevent flight, to evade removal, and to prevent harm done by recidivist criminal aliens.

This is a facial substantive due process challenge which cannot succeed unless there are no sets of... no set of circumstances under which the congressional policy would be constitutional.

As this Court has repeatedly...

Justice Scalia: General Olson, do... do we have authority to entertain this challenge?

As you know, an amicus has raised a jurisdictional question, and I think did it maybe in the court of appeals stage as well.

It certainly did it early on here.

The problem is section 1126(e) which says, no court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

Now, is that provision, number one, inapplicable or, number two, unconstitutional?

And if neither of those, why doesn't it mean that we have no authority to entertain this case?

Mr. Olson: Justice Scalia, it's the Government's position, as held by three courts of appeals, that that provision does not apply to a habeas corpus challenge to the constitutionality of the statute itself, that the language of that provision relates to challenges to an action by the Attorney General or administrative action and does not preclude a challenge.

Justice Scalia: No.

It doesn't... doesn't say the challenge... no.

It says, no court may set aside any action by the Attorney General.

And... and what is asked for here is that we set aside the Attorney General's action in detailing... in detaining this alien.

Mr. Olson: It's... it's our submission, after careful examination... the Government originally took that position that you've suggested in court proceedings.

It was rejected by three courts of appeals.

We studied it further.

The Government studied it further and came to the conclusion that those decisions were correct and it would not preclude... and we're not contending here today...

Justice Scalia: And... and you're relying on what language to...

Mr. Olson: Well, we're relying on the language that it refers to, and a reasonable construction of the statute refers to actions, administrative actions, by the Attorney General or immigration... administrative action by administrative officials, and this Court's construction of statutes against precluding constitutional challenges to other statutes.

Justice Scalia: Oh, but all of those other statutes had some wiggle room I think, even St. Cyr, and there just is no wiggle room here.

It doesn't refer to judicial review.

It simply says, no court may set aside any action by the Attorney General under this section.

Chief Justice Rehnquist: Even in the Quirin case where the... the presidential order said that the people shall have no access to the courts at all, this Court sat to hear whether that sort of a provision was constitutional or not.

Mr. Olson: That's correct, Mr. Chief Justice, and while it would be in the Government's interest to preclude this challenge at all, we think a fair reading of the Court's decisions, including the... the Court... the decision that the Chief Justice mentioned, would to... would be to construe that statute as not to preclude this action in this case.

Of course, that would lead... your construction would lead to a... a victory on behalf of the Government in this case, but we've carefully examined it, and we think that we're not advocating that position here today.

Justice Scalia: Well, I appreciate your carefully examining it, but I'd still like to know what language in it leads your careful examination to conclude that it does not cover this case.

I mean, if it's unconstitutional, that's another matter.

Mr. Olson: Well, we... we may be...

Justice Scalia: Maybe we'll strike it down for that reason.

But my goodness...

Mr. Olson: We... we may be wrong, Justice Scalia, but we're referring to and relying on the second sentence which says, no court may set aside any action or decision by the Attorney General under this section.

It does not state... and... and we think the Court would construe it as not precluding a challenge to the constitutionality of the... of the policy made by the Congress itself in enacting...

Justice Scalia: It doesn't refer to the issue.

It doesn't refer to the basis on which the setting aside is done.

It doesn't say, may set aside, you know, on grounds other than... it doesn't even refer to the basis.

It says, no court may set aside any action by the...

Mr. Olson: I understand, Justice Scalia, and the Government did, indeed, make that assertion, take that position in early proceedings in this case.

It was rejected by three courts of appeals.

We came to a different conclusion after reexamining it, and that's our position here today.

As this Court has repeatedly stated, Congress has exceedingly broad latitude in dealing with aliens, immigration, and the Nation's borders.

Justice Breyer: Can I have a quick answer just to... you said a facial challenge.

I've been assuming that it's a challenge brought by a resident alien who himself has a plausible claim that the statute doesn't apply to him because he's saying two... you know, petty theft with a... petty theft with a prior is not... doesn't fall within the category of crimes.

I don't know if that's right or wrong, but shouldn't I consider the case of a person who has a... an arguable claim that he's outside the system?

Mr. Olson: Well, Justice Breyer, the... the case has not been litigated on that basis from its very beginning.

I refer the Court to page 9 of the joint appendix which is... which, at the bottom of that section, articulates the requested relief by the... by the respondent in this case.

Petitioner seeks a declaration that this provision is unconstitutional on its face as violative...

Justice Breyer: It uses those words, I know.

I just don't know how to consider it that way.

I mean, a person who had no claim whatsoever... am I supposed to consider it on the basis of a person who has... well, he would get the removal order entered in 24 hours if he had no claim whatsoever.

Mr. Olson: Well...

Justice Breyer: Is that who I'm supposed to consider?

Mr. Olson: Well, it...

Justice Breyer: or somebody like the plaintiff here?

Mr. Olson: If this... not only is it in the petition for habeas corpus that the individual was challenging on its face, the district court considered it on that basis, and the Ninth Circuit considered it on that basis, and it's been litigated here all the way through by the... by the respondent on that basis.

If there was to be an as-applied challenge, there would be a great deal of other considerations.

And... and this... as this Court has said, the facial challenge must be rejected unless there are no set of circumstances under which the congressional policy would be upheld.

Justice Ginsburg: General Olson, didn't...

Mr. Olson: There... there's been no...

Justice Ginsburg: didn't the Ninth Circuit narrow the group somewhat?

I thought that in the district court, the district court said the whole thing falls.

I thought the Ninth Circuit said only as to lawfully admitted... what was it?

Lawful permanent residents.

And so that was not taking the whole thing at its face, but only a part of the total group.

Justice Kennedy: I had the same question.

It's at 6a of the petition for the appendix.

The court of appeals, in the paragraph at the bottom of 6a, says we stop short of affirming the holding that it's facially unconstitutional.

Justice Ginsburg: Right.

Justice Kennedy: We affirm the grant of habeas corpus on the ground the statute is unconstitutional as applied to him in his status as a lawful permanent resident of the United States.

Mr. Olson: Yes, and the Ninth Circuit... the Ninth Circuit did say that both on page 6... 6a and... and on page 30a.

But what... what the Ninth Circuit did was issue a broad, sweeping declaration of unconstitutionality of the statute with respect to a broad class of individuals, that is to say, all lawful permanent residents.

That's the equivalent of a facial decision as to unconstitutionality as to a broad spectrum of the people covered.

And... and...

Justice O'Connor: So it's your position, in effect, that although the Ninth Circuit said it was an applied challenge, in fact the Ninth Circuit itself struck it facially.

Mr. Olson: Yes, Justice...

Justice O'Connor: It just narrowed the description of what it did.

Is that right?

Mr. Olson: That's... that is correct, Justice O'Connor.

That's...

Justice Souter: But it... but it struck it facially only with respect to the permanent resident aliens.

Mr. Olson: That's correct.

Justice O'Connor: To permanent resident aliens.

Mr. Olson: That's correct.

Justice Breyer: Sort of half-facial.

Unidentified Justice: [Laughter]

Mr. Olson: Mostly facial.

Justice Scalia: Mostly facial.

Unidentified Justice: [Laughter]

Mr. Olson: That's... that is what the Ninth Circuit did, and it's our position that this... this case must be considered under those circumstances as a facial challenge.

As I was saying, the Court has repeatedly said that in connection with immigration and protecting the Nation's borders, there is no power at which there is more deference to congressional judgment, no authority under the Constitution granted more to the political branches, particularly to Congress.

Congress regularly makes rules, this Court has said, applicable to aliens that would be unacceptable if applied to citizens.

Justice Kennedy: Is there a regulation or... or is there a policy with... in the Department of Justice or the INS which says that there has to be a conviction before you utilize this section?

Or if the Attorney General just has information that a felony has been committed, is that sufficient to detain?

Mr. Olson: Well, the statute...

Justice Kennedy: Here there was a conviction.

Mr. Olson: Here there was a conviction, and that is specifically what is said in the statute itself.

It's my understanding...

Justice Kennedy: Well, the statute itself talks about a conviction.

Mr. Olson: Absolutely.

And... and what happens in practice, Justice Kennedy, is that either the removal proceeding is brought, as Congress has suggested, if possible, during the period of incarceration of the individual, or immediately upon release from incarceration.

So we were talking, to summarize, a... this... this provision under 1226(c) applies only to the period of the removal proceeding itself, which was carefully distinguished by this Court in its Zadvydas decision of 2 years ago.

This is on... compared to that Zadvydas decision, not an unlimited, potentially permanent detention period, what, as the Court suggested in... in a distinguishable situation a number of years... years ago in the Carlson case involving members of the Communist Party, a temporary, limited detention for the purpose of keeping the individual in custody, an individual who's had a full panoply of due process, having been convicted beyond a reasonable doubt with full due process of...

Justice Stevens: Yes, but General, it is true, is it not, that there are people in the class who might have been convicted even before the statute was passed.

So you're not just... just continuing detention.

You have to go out and find them and... and put them under detention.

Mr. Olson: It's my understanding, Justice Stevens, that it applies to convictions after the statute was passed.

I may be misunderstanding that, and if so, I'll try to correct that during... during rebuttal.

But that to the vast... that would all... to the extent that that might be true and I might be mistaken, that would only illustrate why this is a facial challenge.

The statute itself should not be declared unconstitutional, particularly in connection with individuals convicted afterwards.

Chief Justice Rehnquist: What... what about this particular individual?

Mr. Olson: This was after the statute was passed, Mr. Chief Justice.

Justice Souter: General Olson, you've... you've put in statistics about the number of... of aliens who don't show up for the hearings and the... the rather low percentage of those who are ultimately deported from the class that don't show up and so on.

On your view of the Government's authority over... over aliens and the deference that the Court owes, would our... in your judgment should our decision be the same regardless of those statistics?

If you had told us nothing about the... the probabilities of catching people, should we, on your view, or would we, on your view, be obligated to defer and simply say it's up to the Government?

Mr. Olson: Well, I think Justice Souter, the answer to that is that the test that the Court has consistently applied in this area is there... is there a rational basis, is the congressional objective rationally likely to advance a legitimate governmental purpose.

Those statistics that we set forth in our brief and which were before Congress when Congress enacted this statute, provide the purpose for which Congress acted.

Justice O'Connor: Well... well, is that rational basis review the one we would employ in reviewing legislation passed by Congress concerning immigration policy?

And have we applied a more circumscribed review over the means of effectuating those policies?

Are... are there separate questions?

I mean, the power of Congress to pass the law and to say what it does versus the implementation of it.

Mr. Olson: Well, under certain circumstances, the Court has used that language.

Justice O'Connor: Right.

Mr. Olson: The... the means to achieve the objective...

Justice O'Connor: Yes.

Mr. Olson: will be looked at possibly separately.

Justice O'Connor: Yes.

Mr. Olson: But it seems to me... and it seems obvious particularly in this case... that the means are wrapped up in the objective itself.

What... it is clear Congress is dealing with a very difficult problem of a certain category or groups of aliens that were committing serious crimes in this country.

Justice Souter: Well, does... is... does that... do your statistics define that category as the... the legal permanent resident aliens or all aliens?

I think it's the latter.

Mr. Olson: Well, it is... yes, Justice Souter, it's all.

Justice Souter: But if it... if it is the latter, then I don't know that the statistics tell us anything one way or the other about the legitimacy of the ends, i.e., the... the automatic detention, with... with respect to the class that we've got under consideration here.

Mr. Olson: What the statistics tell us is that there were large numbers of aliens committing serious crimes and that those... those individuals committing those crimes were highly likely to be recidivists and that they were... that class of individuals or those groups of individuals were cultivating a criminal class that was engaging in organized...

Justice Stevens: But, General Olson, those statistics go to the likelihood of entry of the order of deportation, not of the likelihood of flight which this statute is directed at.

Mr. Olson: Well...

Justice Stevens: As I understand the statistics... correct me if I'm wrong... that as to the likelihood of showing up at the hearing itself, which this statute protects, 80 percent of the people do show up.

Mr. Olson: Well, 80 percent...

Justice Stevens: Is that correct?

Mr. Olson: Well, the... the statistics have to be looked at very carefully because that 20 percent... 20 percent of the...

Justice Scalia: Eight out of 10 of these criminals show up.

Mr. Olson: Well, no.

Justice Scalia: That's very comforting.

Unidentified Justice: [Laughter]

Mr. Olson: In that... that... well, actually the... it's... it's worse than that, Justice Scalia, because that figure of 20 percent who absconded were people that had been, during this period of time, been given individualized hearings.

They were the ones that, after a hearing, the authorities thought were probably likely not to flee and 20 percent of that group did.

When you look at...

Justice Souter: But... but they include all aliens and not just the... the permanent resident aliens.

Mr. Olson: Yes, Justice Souter, but there's no question that there were large numbers of lawful permanent resident aliens that were evading the deportation proceeding itself.

Once the deportation...

Justice Souter: Well, I presume there was some, but...

Justice Stevens: Yes, but, General Olson, I wish you would answer this question.

It's very important to understand the... the Government's position on it.

We're focusing on the percentage who show up for the hearing.

Am I... and that's correct.

That's what this statute is directed at.

And am I not correct that 80 percent of the aliens in the class did show up for the hearing without being detained?

Mr. Olson: No.

The figure jumped to 40 percent for people who were never detained at all, Justice Stevens, and that's explained in the brief.

The 20 percent to which you're referring are people to which an individualized hearing was... was given.

In 1992 alone, we're talking about 11,000 aliens, criminal aliens, who had absconded.

And we're not talking just about showing up for the hearing because if that alien isn't in custody, he won't... and... and the figure jumps to 90 percent of people that will escape the deportation order itself if there...

Justice Stevens: But the statute doesn't... the statute is not directed at the consequences after the deportation order has been entered.

Am I not right on that?

Mr. Olson: I... I respectfully disagree in this sense, that if you have the alien in custody during the... the removal period itself, he will be in custody at the time the order is issued.

Justice Stevens: Oh, I'm sure.

Mr. Olson: If he's not, it's very difficult for the Government...

Justice Stevens: But if he's at the hearing, at the conclusion of the hearing, you say, lock this guy up.

Mr. Olson: Well, that... that is not the way the process works, Justice Stevens.

There is a potential appeal that the individual can take...

Justice Stevens: No, but this statute is not directed at the time during potential appeal.

It's directed at the... as I understand it... now, you correct me if I'm wrong.

Mr. Olson: No.

Justice Stevens: As I understand the statute, it's directed at the time before the hearing starts.

Mr. Olson: Yes, it is, and the Government... and the Congress...

Justice Stevens: So why can't the immigration judge at the end of the hearing say, A, you're going to be removed, and B, you... you go in the clink until your... you go away?

Mr. Olson: Well, but this... let me answer it this way.

That 20 to 40 percent... and the statistics are difficult in this area.

There are such large numbers of individuals.

We're talking about 15,000 criminals convicted of serious crimes per year that are... go through this process.

If... if we're losing 20... even 20 percent of those individuals that are absconding from the process and not available for deportation or removal, that is the... that is what Congress regarded as a very serious problem.

Justice Stevens: I grant that...

But, General Olson, you don't necessarily lose them.

All you're being asked to do is to have an individualized hearing as to each member of that 20 percent.

Mr. Olson: But that 20 percent, Justice Stevens... and it's explained in the brief.

That 20 percent were the individuals for which there had been an individualized hearing given during that period of time when that process was taking place.

If you don't have an individualized hearing, of course, the numbers go up higher.

Justice Breyer: But why can't you deal with that problem with a standard that's tough, that's different from having the hearing?

After all, we give bail pending appeal to criminals who have been convicted.

We give bail to alien terrorists who are about to be deported.

Why couldn't you have a tough standard but, nonetheless... like bail pending appeal, but, nonetheless, give the bail hearing to the person who's willing to come in and he'd have to show, you know, he's not going to run away, he's not a danger, and he has a good issue on the merits?

Mr. Olson: One of the... one of the problems that Congress had is that it had experimented with that process.

It was not being successful.

The individuals were absconding notwithstanding...

Justice Breyer: I don't think there was a tough standard.

Mr. Olson: Well, it... it appeared... it appeared to Congress and it appeared to the immigration authorities to be a reasonably tough standard.

The problem with criminal aliens is that once... once they enter this process, once they've been convicted after due process of having committed a serious crime and once they're in that process, which is virtually certain to lead to removal... I mean, this is... removal is automatic...

Justice Souter: What I... what I'm worried... I see that, and what I'm worried about on the other side of it... I'm... I can see also how you could limit it like to bail pending appeal, a tough standard.

The other side of it is the alien who's there and who's the wrong person or the... or the statute doesn't apply to him or there's a crime that they say he committed which he didn't.

Justice Scalia: I mean, there could...

Isn't he able to challenge those points?

Mr. Olson: Pardon me?

Justice Scalia: I thought those points can be challenged.

I thought he can get a hearing as to those points.

Mr. Olson: That's... that's correct, Justice...

Justice Scalia: We're only talking about people as to whom it's acknowledged that they committed the crime, it's acknowledged that they're deportable.

And the only reason they may not get deported is the Attorney General might exercise discretion to let them into the country.

Mr. Olson: That's... that's precisely correct.

Justice Breyer: That is correct.

So if, in fact, I have a good claim, I'm let out on bail while they're considering it?

Mr. Olson: If... no.

If you have a... if you as...

Justice Scalia: You can take it to court.

Mr. Olson: and I think it's on page... pages 26 and 27 of the Government's brief sets forth the... the regulations of the... of the Immigration and Naturalization Service that provide that you may have an immediate hearing if it is not you, if you are a citizen, if you contend that you didn't... weren't convicted of a crime...

Justice Breyer: If you have a claim, you're let out on bail while they consider the claim?

Mr. Olson: It's my understanding that what happens is that there's an immediate, or a relatively prompt individualized hearing.

I'm not positive of the answer to that question, but there is the hearing that the Ninth Circuit talked about...

Justice Souter: Yes.

Mr. Olson: an individualized hearing, which... which would have applied all the way across the board...

Justice Stevens: Well, given...

Mr. Olson: in those cases under those regulations.

Justice Scalia: Given that, General Olson, that we're only talking about people who have acknowledged... you know, who have no claim that they didn't commit the crime, who have no claim that they are not deportable, why do we have to rely upon whether 80 percent of them will flee or 90 percent, or even... you know, or none of them will flee?

Why is it... does the Government concede that it's unreasonable to say, look, somebody who has no right to be at large in this country... he's here illegally, has no right to be at large.

And besides that, on top of that, he's already committed a crime in this country.

He should leave the country, and we're going to hold him in custody until he leaves.

If he wants to fight that... that departure, that's fine, but he will be in custody until he departs.

What is... what is wrong with that?

Mr. Olson: Well, we're... I'm not quarrelling with your characterization of what...

Justice Scalia: No, but you're... you're fighting it on the... on the ground that somehow we have to prove...

Mr. Olson: No.

No, Justice...

Justice Scalia: that a large number of them will flee.

Mr. Olson: No.

I'm simply...

Justice Scalia: It seems to me that even if none of them would flee, if they have no right to be here, if they've committed a crime, why cannot... they cannot be held in... in custody until they leave?

Mr. Olson: This... we may well be here on another occasion defending a broader policy.

But let me emphasize the facts that distinguish what you're suggesting and what the Court considered in the Zadvydas case, an immense difference that exists between the circumstances here, and the circumstances under those circumstances.

Justice Ginsburg: Before you get to... to Zadvydas and the distinction, you... you make, I take it, no distinction between lawful permanent residents and people who are excludable.

People who are lawful permanent residents have many rights in common with citizens.

Indeed, this Court once said that they were a suspect classification.

But as far as this case is concerned, it seems to me you're making no distinction at all.

Mr. Olson: The statute makes no distinction.

The Ninth Circuit, of course, did with respect to excludable aliens, said that with that category of aliens, the statute... even under the Ninth Circuit's reasoning, the statute was constitutional.

What we... the statute doesn't make that distinction, but what it does do is it provides for a brief, limited detention, which is not unlimited and not potentially permanent, of aliens, an area of Congress' authorities at its zenith, convicted beyond a reasonable doubt with...

Justice Ginsburg: But it might be of a crime that they... one of the claims here is that this is not a qualifying plot... crime.

I don't get into that box.

Now that may be wrong or right, but suppose... on your reading, or under this statute, someone would not be able to get bail despite a good claim that they are counting a crime that doesn't qualify as one of these serious offenses.

Mr. Olson: That's the question that I believe I addressed earlier that's referred to, the regulations... and I hope I'm correct... at pages 26 and 27 of the Government's brief.

The... the regulations provide for someone claiming who is claiming that they are a citizen as opposed to an alien, or claiming that the crime for which they've been convicted was not a covered crime, may... may have an accelerated hearing, which is... which is...

Justice Scalia: In other words, for the class that we're talking about, it's rather artificial to talk about lawful resident aliens because they can get a hearing on whether their continuing residence is lawful.

They... they are determined to be deportable.

They are no longer lawful resident aliens.

Mr. Olson: That... that is correct.

Justice Souter: Well, General Olson, aren't they lawful resident aliens until an order is entered that they be deported?

Mr. Olson: What they are is what... they are... they are lawful resident aliens until there's an order of deportation, but...

Justice Breyer: All right.

Justice Souter: So at the... at the point of the... we'll call it the preliminary hearing, the Joseph hearing, when they can bring these challenges, there is no order that they be deported, and they, therefore, have got to be considered, as I understand it, as lawful resident aliens.

Mr. Olson: They... however, they have... they have been convicted after due process of a crime that Congress considers serious, and they're being held for a limited period of time...

Justice Scalia: And they can get a hearing on whether they are lawful resident aliens.

Mr. Olson: That's correct.

Justice Scalia: Can they?

In effect, they can get a hearing on whether they are lawful resident aliens.

Mr. Olson: That's correct, Justice Scalia.

Justice Scalia: Well...

Mr. Olson: Mr. Chief Justice, if... if I may reserve the remainder...

Argument of Judy Rabinovitz

Chief Justice Rehnquist: Very well, General Olson.

Ms. Rabinovitz, we'll hear from you.

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

The question in this case is whether Congress authorized and, if so, whether the Due Process Clause permits a statute that requires that lawful permanent residents like our client be imprisoned throughout the duration of removal proceedings.

Justice O'Connor: Ms. Rabinovitz, do you have a response to the jurisdiction problem?

I mean, it's possible that despite the Government's failure to raise it, that we could do so.

And why doesn't section 1226 tell the courts to keep hands off?

Mr. Rabinovitz: Yes, Your Honor.

We agree with the Solicitor General's explanation for why this Court did not...

Justice O'Connor: I have to tell you I don't understand it.

I thought maybe you'd enlighten me there.

Unidentified Justice: [Laughter]

Mr. Rabinovitz: This... this statute contains no express language that repeals habeas jurisdiction.

That's one answer that I could give you, Your Honor, and based on this Court's decision in St. Cyr and Calcano, absent that... that language, the habeas... there's still jurisdiction in...

Justice Scalia: How could that language not repeal habeas jurisdiction?

No court may set aside any action by the Attorney General under this section.

How can... how can that... I mean, what can you do in habeas corpus unless you're setting aside action by the Attorney General under this section?

How can that possibly not set aside habeas corpus?

Mr. Rabinovitz: But this Court has said...

Justice Scalia: I mean, now, maybe you want to argue it's unconstitutional, but gee, to say that it doesn't do this is... I mean, it's... it's incredible.

Chief Justice Rehnquist: Well, the Court in St. Cyr, with which both Justice Scalia and I disagreed, said something very much like that, didn't it, that you had to be very specific if you were going to repeal habeas jurisdiction?

Mr. Rabinovitz: Yes.

Justice Souter: Try Johnson v. Robson too.

Mr. Rabinovitz: The point is that this statute requires the Government to detain individuals like our client who are lawful permanent residents not because their detention is necessary to protect the public from danger of flight risk, but merely because they were convicted in the past for one of a broad range of crimes that the Government believes may render them deportable.

Chief Justice Rehnquist: Can... you say the Government believes it.

The Congress believed it, did it not?

Mr. Rabinovitz: Well, Your Honor, the question that remains to be determined in all these cases is whether an individual is, in fact, deportable.

Congress did decide that certain kinds of crimes should render an individual deportable and these individuals have been convicted of crimes.

But the fact...

Chief Justice Rehnquist: What more do we need?

Mr. Rabinovitz: The fact that they've been convicted of a crime, Mr. Chief Justice, doesn't mean that it's a crime that renders them deportable under the statute.

And I think that this addresses, in part, Justice Kennedy's question about have they been... is this just that they're suspected of committing crimes or have they been convicted of crimes.

Chief Justice Rehnquist: Well, but in... in this case, your... your client was convicted, was he not?

Mr. Rabinovitz: Yes, Mr. Chief Justice...

Chief Justice Rehnquist: So...

Mr. Rabinovitz: He was convicted, but there still is a question about whether his conviction actually renders him deportable.

Chief Justice Rehnquist: And what question is that?

Does Congress in the statute set forth the crimes?

Mr. Rabinovitz: No, Your Honor.

Congress sets forth a... a broad category of crimes that can render somebody deportable, and one of those is... is a broad category that are labeled aggravated felonies.

The question, though... and this is a question that has been very hotly litigated in the courts... is whether a conviction is an aggravated felony.

And in this case, that question is especially relevant because in our client's case, the conviction that he was...

Chief Justice Rehnquist: Well, did... did you... but the Ninth Circuit didn't go off on that basis, did it?

Mr. Rabinovitz: No, Your Honor.

The Ninth Circuit...

Chief Justice Rehnquist: So are you going to... are you going to defend the Ninth Circuit's basis here?

Mr. Rabinovitz: We're defending the Ninth Circuit's ruling, Your Honor.

I'm... I'm just explaining that this issue about whether somebody is deportable is an open issue, and that's precisely what the... that's precisely what a deportation proceeding is to determine.

Justice Scalia: Now, Ms. Rabinovitz, I had... I had understood from General Olson... and please, you know, if it's wrong, I... I want to know it... that... that your client could get a hearing on that particular issue, whether the crime he's being... he has been convicted of is one of the crimes that entails deportation.

Is... is not true that he can... that he gets a hearing on that?

Mr. Rabinovitz: He gets a hearing...

Justice Scalia: Individualized hearing.

Mr. Rabinovitz: He gets a hearing, Your Honor, but it's a very limited hearing to the extent that that hearing does not determine that he has, in fact, been convicted of a crime that renders him deportable.

All that it...

Justice Souter: In other words, it's a hearing that says you were convicted of X or you weren't convicted of X.

Unidentified Justice: It's not a hearing that says that X renders you deportable.

Justice Souter: Is that the point?

Mr. Rabinovitz: Yes, although, Your Honor, it does say that the Government is not substantially unlikely to prevail on its charge, so... that you are deportable.

So... and essentially it...

Justice O'Connor: So it...

Mr. Rabinovitz: it says that there is reason... there's a possibility.

It's not impossible that you will be found deportable.

You... that it's not... since the Government is not substantially unlikely to prevail on the charge.

I think it's important to recognize that there are many individuals who are subjected to mandatory detention under this statute who cannot satisfy that standard.

In fact, that that... they've had that hearing and the court has held the Government substantially... you know, we can't show that the Government is substantially unlikely to prevail.

Justice Souter: I mean, I have a reason.

I mean, now I am... I'm confused on this and I'd appreciate it.

I... I assume there is someone in prison.

He's detained like your client.

There's a class of people.

There are two subgroups.

Group 1 is a group that has no non-frivolous argument that they shouldn't be deported.

It's virtually conceded they're... they should be deported.

Their only arguments against it are frivolous.

Group 2 are people who have a real non-frivolous argument... a real non-frivolous argument... that they aren't... it's the wrong person, this crime doesn't fall within the statutory definition, I probably will get asylum, something like that.

They have a real non-frivolous argument.

Now, I thought that what we were talking about, at least in part, was that people in this group 2 were being held without bail.

Now, am I right?

Because I think what I heard the Solicitor General say is I'm wrong.

We're only talking about people in group 1.

Mr. Rabinovitz: No...

Justice Souter: That was just, I think, what Justice Scalia was concerned about.

That's just what I'm concerned about, and I'd appreciate some elaboration on it.

Mr. Rabinovitz: No, Your Honor.

You're absolutely right.

We are talking about the second category of cases.

Justice Ginsburg: But aren't there one-and-a-half or... there's this Joseph hearing.

It's not just that either you have a hearing or you don't have a hearing.

You have the hearing that Justice Souter was referring to where your burden is enormous because you will not succeed at that hearing if you show it's more likely than not that this crime is... doesn't qualify as serious.

You have to show overwhelmingly that the Government will win on that issue in it.

So... but there is something other than... There's this Joseph hearing, which you say is not adequate, is it?

Mr. Rabinovitz: Yes, Your Honor.

It's exactly...

Justice Scalia: You're... you're not asking just for individualized hearings on those items, are you?

You're... you're not just asking for individualized hearings on whether you are the person that did the... that... that was convicted and whether the... the crime of conviction causes you to be deportable.

You want a hearing on whether, if you are let go, you will show up for... for a later hearing.

And I don't see why... why that is necessary...

Mr. Rabinovitz: Yes...

Justice Scalia: so long... so long as you get a hearing on those other substantive points, it seems to me the Government ought to be able to hold you, an alien who has no right to be at large in this country, until you leave.

Mr. Rabinovitz: Let me try... let me try to explain how the statute works and why we believe that it's a problem.

The... the proceeding that you're asking for, a determination about whether, in fact, an individual is deportable, is precisely what a deportation hearing is for, and that kind of decision is not made the first time you come before an immigration judge.

It's often a very protracted process, and we have individuals who have... who have been in jail for 17 months pending an immigration judge hearing to determine that exact question, Justice Scalia, about whether they are, in fact, deportable, which is why we say that the relevant question is whether pending those proceedings, there's a regulatory purpose in detaining that individual.

And we're not...

Chief Justice Rehnquist: Well, and the... the Government answers that there's a substantial number of people who don't show up for these hearings, and that's the purpose of holding them.

So that certainly is a regulatory purpose.

Mr. Rabinovitz: Yes, Mr. Chief Justice, that is a regulatory purpose.

But this Court looks to the regulatory purpose in an individual's case when you're talking about depriving somebody of a significant liberty interest, which is what's here.

We don't allow people to be locked up based on averages.

Chief Justice Rehnquist: Well, but you... look... look at the immigration cases.

Look at Carlson against Landon.

I mean, that certainly was a class, not an individual.

Mr. Rabinovitz: No, Your Honor, Mr. Chief Justice.

I respectfully... I read Carlson differently.

In Carlson, what this Court did is it upheld the Attorney General's discretionary decision that five individuals could be detained because there was... that... the decision to detain them was with not... was not without reasonable foundation.

It was a discretionary decision.

It's wholly different from this case.

What makes this statute so unique and so unprecedented is that the Government is prohibited.

There's no discretion here.

The Attorney General is prohibited from releasing individuals like our client, a lawful permanent resident who has a legal right to be here, even when...

Chief Justice Rehnquist: Well, who has the legal right to be here, although he's been convicted of a crime which makes him deportable.

Mr. Rabinovitz: No, Mr. Chief Justice.

It's not clear that this conviction makes him deportable.

In fact...

Chief Justice Rehnquist: Well, it's clear he's been convicted.

Mr. Rabinovitz: He's been convicted of a crime, but it's not clear that this conviction renders him deportable.

That's precisely what a deportation proceeding is for.

Justice O'Connor: You mean the first degree burglary conviction...

Mr. Rabinovitz: Both...

Justice O'Connor: is not an aggravated felony?

Mr. Rabinovitz: Not necessarily, Your Honor.

That remains to be determined, but...

Chief Justice Rehnquist: Well, how could a first degree burglary not be an aggravated felony?

Mr. Rabinovitz: That's a good question, Mr. Chief Justice.

Chief Justice Rehnquist: Well, it's a very good question.

Unidentified Justice: [Laughter]

Mr. Rabinovitz: But... but... yes.

But let me point out... I refer you to the... the amicus brief for... by Citizens and... and Immigrants for Equal Justice.

It's one of these green briefs.

And it's on page 12 of their brief.

They referred to a case, the Solorzano-Patlan case, where an individual was convicted of entering an automobile with intent to commit theft, and the Board of Immigration of Appeals said... or the... the... excuse me.

The immigration judge said exactly what... what you have said, which is that how could this crime not be an aggravated felony?

It's a burglary, entering an automobile with intent to commit theft.

One-and-a-half years after our client... after this person... excuse me... he wasn't our client... was detained, the Seventh Circuit disagreed.

Despite what the Board of Immigration Appeals said that how could this crime not be a burglary...

Chief Justice Rehnquist: Well, but... it's not just a question of being a burglary.

First degree burglary usually means with... with people present and on the premises.

Mr. Rabinovitz: Mr. Chief Justice...

Justice Scalia: Of course, the Seventh... Seventh Circuit might have been wrong.

Unidentified Justice: [Laughter]

Mr. Rabinovitz: That's a good point, Your Honor, but the Government did not petition for cert in that case.

And... and the point that I want to make...

Justice O'Connor: Well, it sounds like you're... you're still seeking some kind of facial invalidation of the statute rather than as applied to your client.

Mr. Rabinovitz: No, Your Honor, we're not seeking...

Justice O'Connor: Because you're relying on a conviction of someone else for a different kind of a crime.

Mr. Rabinovitz: No.

Justice O'Connor: Are we talking about this person as an as-applied challenge, or do we have a facial challenge?

Mr. Rabinovitz: Your Honor, this is definitely an as-applied challenge, and I refer you to page...

Justice O'Connor: So we are talking about the first degree burglary...

Mr. Rabinovitz: Yes, we are.

Justice O'Connor: not entering a car with intent to commit theft.

Mr. Rabinovitz: Right, right.

My point with raising that example was just to point out that the question of what constitutes an aggravated felony is very contested.

Chief Justice Rehnquist: And isn't it the...

Justice O'Connor: Well, but not in this case.

Chief Justice Rehnquist: Not in this case.

First degree burglary.

Mr. Rabinovitz: Oh, it... it certainly is.

It remains a question about whether this is an aggravated felony...

Chief Justice Rehnquist: Well, but...

Mr. Rabinovitz: because you need to look at the precise...

Chief Justice Rehnquist: Justice Breyer's classification of people who have really serious claims and people who have frivolous claims... surely a claim that first degree burglary is not deportable under the statute would verge on the frivolous.

Mr. Rabinovitz: Mr. Chief Justice, I need to... to disagree with you.

It's unclear.

To decide whether this is... is an aggravated felony, the Court is going to need to look at the specific language of the statute.

The... the specific crime that our client committed was he broke and entered into a tool shed and he was convicted under California State law.

This is a very complicated, technical area of the law.

And all that I can tell you is that if you refer to our brief at page 5, note 6... oh, no.

Excuse me.

That's not the place.

To our brief at... our brief at page 30, note 27, we note numerous examples where the question of whether something is an aggravated felony has been contested and decided...

Justice Souter: Do you... you consider whether he broke into an inhabited tool shed, I guess, to be not within the statute, and the other side thinks it is.

Mr. Rabinovitz: Right.

Right.

Justice Souter: In your opinion, would... would... and this goes back to my initial question which I'm still... haven't heard you really answer.

Look, on appeal, somebody who has been convicted of a crime, in order to get out on... on appeal... have bail on appeal, he has to show not only he wouldn't run away, not only he isn't a danger, but also that he raises a substantial question.

Now, suppose that we were to say at least those people who show that they raise a substantial question... a substantial question... and it says not for purposes of delay... that as to those people, you have to have an individualized hearing.

Mr. Rabinovitz: In this case, if we're talking about somebody who raises a non-frivolous challenge like our client, that would satisfy this case because this is...

Justice Souter: Well, I'm not saying if it'd satisfy the case, though I take it from what you say it would satisfy you and your position.

Mr. Rabinovitz: Your Honor, I misspoke.

What I meant is that in this case, this is an as-applied challenge.

It's a... it's a challenge about whether this statute as applied to our client who's a lawful permanent resident, who has bona fide challenges that he is not deportable and is eligible for relief from deportation, that in this case, applying the statute to him is unconstitutional.

Justice Souter: So to keep someone in prison without bail, after they've been convicted of something, pending a deportation order is not constitutional without an individualized hearing at least if... or don't say at least... if, among other things, he shows there is a substantial question not for purposes of delay.

Imagine an opinion that said that.

Would you argue for or against that opinion?

Mr. Rabinovitz: I would argue for that opinion in this case because it would resolve this case.

I believe that there also might be... there would be a constitutional issue that even somebody else... due process requires that they have an opportunity to show that they're not a danger and a flight risk because that is the purpose of regulatory detention.

And as the...

Justice Scalia: I... I note that you have redefined substantial question as non-frivolous.

Anything that's not sanctionable raises a substantial question for purposes of... of this new rule?

Mr. Rabinovitz: Yes, Your Honor...

Justice O'Connor: Wow.

Mr. Rabinovitz: and... and it has to be that way because there are so many examples of circuit courts finding that the board's decision about what constitutes a deportable offense is wrong and yet, that those were cases where the individual could... where their... their claim might have been considered bordering on the frivolous, even though it wasn't.

And let give you a very...

Justice Scalia: That... that is true but all...

Mr. Rabinovitz: Let me give you an example.

Justice Scalia: all of... at least for people who have committed their crimes after this statute was enacted, it seems to me that they are on notice.

If you get convicted of a felony, your... your welcome in this country is at an end if it's an aggravated felony, and you will be held until it is... it is finally determined whether that is, indeed, an aggravated felony or not.

I don't know that that's terribly unfair.

Mr. Rabinovitz: But your question presupposes the answer.

You're saying...

Justice Souter: No, it doesn't.

Justice Scalia: It... it's just one of the risks you take when you commit a felony.

Your... it's... it's part of... of the condition of your admittance to this country.

Once this statute is passed, any lawful resident alien knows that if he commits a felony and it's an aggravated felony, he will be deported.

Mr. Rabinovitz: Two points.

Justice Scalia: And... and until the question of whether it is an aggravated felony, assuming it's at least arguable, is decided, he will be held in custody and not permitted to be at large in this country.

Now, that doesn't strike me as terribly unreasonable.

Just don't do the felony.

Mr. Rabinovitz: Well, two points, Your Honor.

First, in this case, the conviction that is now being considered as possibly an aggravated felony was committed before the statute took effect.

So even under Your Honor's proposal, the statute could not apply to him.

In terms of what you're suggesting, though, if Congress was to say that anybody who... there still is an issue of whether somebody is, in fact, deportable, and to condition... and... and this Court has recognized that individuals who are facing deportation, particularly lawful permanent residents, have a right to a fair hearing.

To say that those individuals must give up their right to physical liberty...

Chief Justice Rehnquist: Well, but there's no question that these people are going to get a fair hearing eventually.

The question you're challenging is whether they should be... be incarcerated pending that hearing.

So we're not talking about a fair hearing.

Mr. Rabinovitz: You're right, Your Honor, Mr. Chief Justice.

But the... the point is that if somebody is locked up for a year-and-a-half, and they can't get the evidence for their case, because being locked up in jails also makes it much harder for people to present their cases, there's no right to appointed counsel.

It means they can't work.

There are... and this is, again, where I would like to refer you, just in general, to the amicus brief by the Citizens and Immigrants for Equal Justice which points out other cases where individuals gave up their claims because otherwise they were going to be in detention for so long.

And let me just point out one other...

Chief Justice Rehnquist: Well, you... you've got someone who is an alien here.

The alien has committed a felony.

I mean, it's difficult to... for me to say that they should have all these additional benefits so that somehow they can avoid deportation.

Mr. Rabinovitz: Well... well, first of all, Mr. Chief Justice, this... it's not only for people who are convicted of felonies.

Even the definition...

Chief Justice Rehnquist: Well, but that's with the case we're dealing of here.

Mr. Rabinovitz: Okay, but the... the question is what... what constitutes an aggravated felony.

Misdemeanors constitute an aggravated felony as well.

You're right.

In this case, the initial conviction...

Chief Justice Rehnquist: What... what do you... what do you mean, misdemeanors constitute an aggravated felony?

Mr. Rabinovitz: I know it's somewhat shocking, Mr. Chief Justice, but, in fact, the way that aggravated felony has been defined so broadly...

Chief Justice Rehnquist: Well...

Mr. Rabinovitz: the courts have held that even misdemeanors can be aggravated felonies.

Chief Justice Rehnquist: But there's no question that first degree burglary is not a misdemeanor.

So, in our case, that's not... we don't have to worry about that, do we?

Mr. Rabinovitz: But let me return to the point about whether it's... whether due process is satisfied by requiring that somebody be mandatorily detained throughout the process of their deportation proceeding, a process which, as I said, can be months, often years, without any individualized determination of danger and flight risk.

And the example that I wanted to give ties back with this Court's decision in St. Cyr, which said that 212(c) relief was available to individuals whose convictions... who had pled guilty prior to... to the statute having taken effect.

All of those individuals were subject to mandatory detention under the statute.

Their claim would have been considered close to frivolous until the Supreme Court ruled differently.

Justice Souter: Well, that's... that's... I mean, your argument to me rings true for people who have real claims, but if you're trying to apply it to a person who has an insubstantial claim or a claim that is interposed for purposes of delay, I'm tempted to say, well, there's a very good reason to keep him locked up, namely, he doesn't have any argument and he's about to be deported and... and if he wants to be deported quickly, he can be.

Mr. Rabinovitz: Your Honor, that's...

Justice Souter: But if he has a substantial claim, it's different.

Mr. Rabinovitz: Your Honor, I think it's important to recognize that that's precisely the kind of factors that the Immigration Service and the immigration judge looks at when they make a determination whether somebody should be released on bond.

They... when they're determining flight risk, that's precisely what they look at.

They say, oh, this is a frivolous... this is a frivolous claim.

We're not going to release this person on bond because they're not going to show up.

And we're not saying that individuals in that situation should be released from detention.

All that we're saying is that an individual needs to be given some opportunity to demonstrate, look, I was convicted of this crime, but I have claims for relief.

I'm not a flight risk.

I'm not a danger.

Justice Scalia: Would you say that...

Mr. Rabinovitz: And I think it's important to look at...

Justice Kennedy: Would you agree that the alien has the burden of showing that?

Mr. Rabinovitz: Your Honor, we have no...

Justice Kennedy: In your... in your regime, you would... would there be any problem putting the burden on the alien to show that?

Mr. Rabinovitz: We have no problem with Congress creating a presumption that individuals who are charged with these kinds of... with being deportable for these kinds of crimes are a danger and are a flight risk, and that they need to come forward to show that they're not.

And in fact...

Justice Kennedy: Well, but I... I'll get to that in a minute.

But insofar as the substantiality or... or the likelihood of prevailing... forget about flight risk for a moment.

Unidentified Justice: Insofar as the likelihood of prevailing and the substantiality of the... of the issue, that's almost what the statute already provides for in a bail determination hearing, as set forth on page 26 of the Government's brief.

Justice Kennedy: A person in INS custody is... is entitled to a bond determination hearing.

And the standard is whether or not the Government is... he has to show the Government is substantially unlikely to prevail.

That's very... forget flight risk for a moment.

That is very close to the regime that you propose.

So I don't see what we're arguing about here as to that.

Now, if you want to say that you're entitled to release if you're not a flight risk, that's something quite different.

And I would... and I would doubt the latter, but...

Mr. Rabinovitz: Let me try to clarify what I believe is some confusion about what that hearing does.

The hearing essentially just shows you need to show that the Government has no frivolous claim.

That's essentially what you need to show.

I mean, you have to show that the Government had... that the Government's charge is frivolous.

And I would assume that the Government is not putting people into proceedings if they have no possible argument.

But to require that an individual be locked up throughout the whole deportation process just because they cannot show that the Government has a... has a frivolous claim, that doesn't satisfy due process.

In terms of burden, Your Honor, what I was referring to... what I thought you were referring to is whether an individual is going to have an obligation to show that they're not a danger of flight risk.

But even...

Justice Kennedy: Well, perhaps that's why I asked you that question first.

It... it does seem to me that if you concede that he has the burden, that that is really very, very close to what the... the statute already provides, forgetting about flight risk for the moment, or... or...

Mr. Rabinovitz: Yes, Your Honor.

I don't... I don't see it that way.

I see that the question about if you need... if an individual has to prove that the Government's argument is frivolous, that's not the same thing as showing that you have a non-frivolous claim.

And that's all that we're saying.

I think that they're completely different.

One is showing that the Government's argument is frivolous.

I don't... most of the cases where individuals were found not deportable, it wasn't that the Government's claim was frivolous, but those individuals prevailed in their proceedings.

And that's the issue here, whether... whether an individual can be detained for a substantial period of time without any opportunity to show that... that there's no purpose that's served by their detention.

And I think that... that this case is a perfect example because in this case, once the district court... our client was detained for 6 months without any individualized determination.

The district court then said due process requires an individualized determination, and the INS, the Immigration Service, on its own decided he poses no danger and he can be released on 5,000-dollar bond.

And he's been out for the past 3-and-a-half years.

He's now getting his college degree.

He's working.

If the Government prevails in this appeal, it will have no choice but to re-incarcerate him throughout his proceedings.

It's not a question of discretion like Carlson, where they can make that determination.

And going back to your question about burden, I think it's important to recognize that the regime that was in place prior to this statute, and that is now in place in those circuits where they've said that the statute needs to be interpreted to... or that the statute... due process requires an individualized determination, still requires that an individual show that they are not a danger of flight risk.

They bear that burden.

And so under this system, no individual who's a danger of flight risk is going to be released except for those cases where there's, you know, obviously going to be error.

But in general, individuals who are a danger of flight risk aren't going to be released.

I think it... there's one last point that I would like to make because I realize my time is short, which is that this case poses a serious constitutional problem, and we believe that there is a way that this Court can avoid that problem by construing the statute to not apply to individuals like our client who are, in fact, not deportable.

The statute says that individuals shall be mandatorily detained.

An individual who is deportable on one of these grounds is subject to mandatory detention.

As we've been talking about here, in fact, the question of whether he is deportable remains very much to be decided.

He doesn't have any order of deportation.

Justice Ginsburg: Ms. Rabinovitz, why wasn't Judge Fletcher absolutely right in rejecting that claim?

Because the language is when the alien is released from criminal custody.

Mr. Rabinovitz: Because...

Justice Ginsburg: The statute directs custody when the alien is released from criminal custody, and not at some later time, not at the time of the issuance of a removal order.

Mr. Rabinovitz: Because I think that what Judge Fletcher was not aware of is that the whole regime right now that the Immigration Service has is to conduct deportation proceedings while individuals are still serving their criminal sentence, which makes complete sense, because then you do not have this problem.

People are already ordered deported, determined deportable while they are still in jail.

And so the...

Justice Ginsburg: But still, if the statute says when released from criminal custody, even before release, but it doesn't say at the later time of the final removal order.

Mr. Rabinovitz: There's two different issues, Justice Ginsburg.

One is when... is deportable.

It says, when released.

Our point is only that there are individuals who have deportation proceedings while they're in prison, and there will be an immigration judge decision or a BIA decision that says they are deportable.

Now, they may still be seeking review of that decision in the Federal courts, in which case, that decision is not final and they would not fit under the next statute, the statute that you... that this Court construed in... in Zadvydas, which was 1241, but they would... or excuse me... 1231.

But they would still have an order of deportation, and then, that would be a way to say that individual is deportable.

Whereas, here you have a situation where anybody who the Government charges with being deportable... in this case, our client, even though he may not actually be deportable... is subject to mandatory detention for possibly a year, 2 years, however long.

I see my time is up.

Rebuttal of Theodore B. Olson

Chief Justice Rehnquist: Thank you, Ms. Rabinovitz.

Mr. Olson, General Olson, you have 4 minutes remaining.

Justice Scalia: General Olson, I don't want to intrude upon your rebuttal time, but I have one question that's very important for me and you can answer it yes or no.

Assuming I disagree with you as to the reading of the statute as to whether there is jurisdiction in this case, if there is no jurisdiction, is that provision of the statute in the view of the Government unconstitutional?

Mr. Olson: No.

Now, we haven't briefed and studied that and... and I have to rely on the answer that I gave before.

But I think that that would be a correct with... it would be within the power of Congress to do that under certain circumstances.

Chief Justice Rehnquist: Well, you can rely on the presumption of constitutionality if you haven't briefed it.

Unidentified Justice: [Laughter]

Mr. Olson: Well, then I would've have to answer the question differently.

Well, if... I guess no, I guess I would... that... that's a good answer.

Let me... let me...

[Laughter]

Let me just deal with a few things that were raised during my colleague's argument.

First of all, the date of the offense that's involved in this case was after the enactment of this statute.

On page 8 of the respondent's brief, it is asserted that he was convicted of petty theft with priors and sentenced to 3 years' imprisonment in 1997.

That was when that conviction took place.

Secondly... and I think a lot of time has been expended with respect to the question that focused in large part by Justice Breyer.

What happens if it's not the individual?

What happens if he's really a citizen?

What happens if he wants to challenge whether this crime was one that should be covered?

As we said on page 26... and we cite the relevant provision of the INS regulations... those types of things can be challenged in an individualized bond hearing at which the... which is what the Ninth Circuit was talking about and which is what our opponents are talking about here, and that those issues may be raised at that point, which is precisely what the respondents are talking about.

So that's already built into the statute.

Now, one might quarrel with whether... what the burden of proof is, and where it should be and how it should be written, but that's a... this is a determination by the executive branch with respect to the statute.

If the alien can show that the INS is substantially unlikely to prevail on its underlying charge of removability, then the individual may be released on bond.

If the decision goes against the individual, that can be taken to the Board of Immigration Appeals.

So there's a process that takes care of precisely those... that category 2, as you put it.

Now, that does not deal with the question of dangerousness or risk of flight, but that's what Congress was concerned about when it... when it enacted the statute.

Congress was concerned about a situation in which large numbers of individuals who commit serious crimes... and Congress went to the effort of define what it thought... defining what it thought was serious crimes.

Now, if there is some question about that in an individual case, or if there's some question about an aberrational lengthy detention, that should be brought to this Court or the courts below in an as-applied challenge.

The respondent is saying here today that this is an as-applied challenge, but that has never been the way this case has been litigated from the petition, which I cited as a facial challenge, through the district court's decision to the... to the as... the... the facial challenge in part of the decision of the Ninth Circuit.

This has been a challenge to the congressional determination that people who commit serious crimes are to... to be deportable as rapidly as possible.

They... and... and to the... in order for that policy to be effectuated, for our borders to be protected, to avoid the acculturation of a criminal alien class in the United States that's operating freely, for a limited period of time, that individual will be detained during that process until the final order of deportation is entered.

85 percent of the aliens that are brought into these procedures don't even challenge the immigration decision... immigration judge decision, and more than half of those cases are resolved within 30 days.

The statistics are in the brief.

Chief Justice Rehnquist: Thank you, General Olson.

Mr. Olson: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

INS v. St. Cyr - Oral Argument

Fri, 09 Jan 2009 14:50:28 +0000

Case:

INS v. St. Cyr

Media File:

00-767_20010424-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: We will hear argument next in number 00767, the Immigration and Naturalization Service versus Enrico St. Cyr.

Mr. Kneedler, we'll hear from you again.

Mr. Kneedler: Thank you, Mr. Chief Justice.

In this case, there are questions both of jurisdiction and of the merits of whether the Attorney General reasonably construed the act to conclude that petitioner in this case, oh, excuse me, respondent in this case is ineligible for discretionary relief under the repeal of 1182(c).

I do want to make sure that I'm able to address the merits question, but I did have a few things that I wanted to address with respect to habeas corpus and the constitutional question here.

One recent decision of this Court which I think is instructive on the question of when, what sorts of claims Congress must make a judicial forum available to, is the Court's decision two terms ago in American-Arab Anti-Discrimination Committee v. Reno in which the Court concluded that a constitutional claim of selective enforcement was not a judicially cognizable defense to a final order of removal, and in our view, if Congress could provide under the immigration laws that that sort of claim does not give right to a personal right to have a final order of removal set aside, then it follows a fortiori that Congress is not required to provide a judicial forum for a failure by the Attorney General to grant discretionary relief from removal that is purely statutory in form and particularly here where the objection is a non-constitutional objection to the failure to grant discretionary relief.

Justice Breyer: forum, the law doesn't apply to me because it doesn't take effect until the year 2004.

Mr. Kneedler: If it is an application for discretionary... .

Justice Breyer: No, no, no.

Just say that this whole statute doesn't apply to me because the whole statute doesn't take effect until 2004.

It's fanciful in this circumstance but you can see where I am going.

Mr. Kneedler: If the claim is that I am not subject to deportation or removal because the statute doesn't apply, that is subject to judicial review under this statute and we think that the suspension of habeas corpus clause probably does require that a court be available to entertain a claim that the person who is subject to removal is not an alien and is not subject to removal because in those cases, we will assume, this certainly for purposes of this case, the executive would be acting beyond any authority granted to the Attorney General.

Justice Scalia: Would you need habeas corpus to review those things?

I thought they'd be reviewable under the legislation?

Mr. Kneedler: Oh yes, no, yes, no, I'm sorry.

I was going to the constitutional claims that the statutory judicial review procedures are inadequate because they don't cover more things.

No, you certainly...

Justice Scalia: Things are covered anyway?

Mr. Kneedler: Right.

That's absolutely right.

We think that the statute provides for judicial review of the two fundamental points at issue in a removal proceeding.

Is the person an alien and is the person subject to removal?

The statute provides for that.

The Zipper clause that this Court referred to in the AADC v. Reno provides that all questions of law and fact, including statutory interpretation and constitutional interpretation can be heard only on judicial review of a final order of removal in the Court of Appeals.

Justice Scalia: Well, you go ahead.

With respect to habeas corpus, it is not at all the case that Congress overlooked even in Section 1252 the possibility of habeas corpus relief.

Subsection (A)(1) of Section 1252 establishes the general rule of Court of Appeals review but it specifically carves out an exception for situations in which an alien is in expedited removal proceedings and as to that, Subsection (e) of 1252 specifically provides for judicial review by habeas corpus.

So Congress knew when to provide and preserve habeas corpus by name in this statute.

It did it for that limited category and did it in no other and 1252(b)(9), the Zipper clause says that unless that it's specifically provided for in 1252, the review is not available.

Justice Breyer: And if there could be any doubt as I mentioned even before IIRIRA, Congress in AEDPA had repealed the provision of the prior judicial review provision in Section 1105a(a)(10) that said that, provided for custody review of aliens of their deportation orders, that that was specifically eliminated.

Justice Scalia: So Congress knew very well what it was doing in eliminating habeas corpus as such but providing a fully adequate substitute, constitutionally adequate substitute in the court of appeals, something that this Court said in Swain Congress can do.

Justice Souter: I have a question that perhaps the statute answers.

I just don't have it clearly in mind.

If there had not been the provision, the specific provision for habeas in the accelerated review cases, would habeas review have been necessarily postponed in those cases until after the court of appeals had finished?

In other words, I guess my question is was the provision for habeas review in the accelerated cases in effect the provision of kind of an alternative forum that otherwise wouldn't have been available until the conclusion of the...

Mr. Kneedler: Do you mean, in the current law or the prior law?

Justice Souter: The current law.

Mr. Kneedler: The current law.

No, it's a substitute for, an expedited, a substitute for a court of appeals review.

People in that category, their orders of removal are reviewed only in the district courts, not in the courts of appeal.

Justice Souter: Okay, what the prior law?

Mr. Kneedler: In the prior law, it was frankly unclear to what extent habeas overlapped with court of appeals review, and this was I think part of the problem.

Some courts have held that in habeas the alien could not get review of the merits of the deportation order but could just challenge the detention.

Some courts have allowed some review of the deportation order, which, of course, would have provided for duplicative review in the courts of appeals and the district courts.

Justice Souter: Might that have been the reason for the specific provision under the new law?

Mr. Kneedler: No, I think the reason under the new law was one of expedition, to not have two stops in the court but only one petition for review in the courts of appeals.

Justice Ginsburg: Mr. Kneedler, the competing habeas provision in this period of uncertainty, whether you could go to both places, that was in the Immigration and Nationality Act itself.

It wasn't 1143, was it?

Mr. Kneedler: It wasn't?

I'm sorry.

Justice Ginsburg: It wasn't the general habeas statute.

Mr. Kneedler: Well, as we explain in our brief, the provision in the INA was necessary to preserve that habeas corpus because the prior act was worded, the judicial review is in the courts of appeals under the Hobbs Act except, and as this Court said in Stone there were a series of exceptions that follow that, one of which was the specific exception for district court habeas.

Now, whether one views that exception as itself a grant of habeas or a preservation of habeas under 2241, we think is essentially irrelevant.

In either event, the expressed exception to seek, to preserve that was necessary and to our knowledge no court held...

Justice Ginsburg: That wasn't my question.

My question was you referred to, wwas it 11?

The one that was repealed?

Mr. Kneedler: 1105(a)(10).

Justice Ginsburg: Yes, yes.

And so, in the period of when you could go one place or the other, wasn't it the 1105 that was used to get into the district court?

Mr. Kneedler: Some courts said it was 2241.

Some said it was 1105(a).

Some courts didn't explain it and there was really no reason to.

In our view, probably the best way to look at it is that 1105(a) preserved general habeas jurisdiction but you could look at 1105(a) as a specific grant, but in either event, it was an expressexception to what otherwise would have been an exclusive court of appeals jurisdiction which the legislative history we set out in our brief of the 61 Act shows that Congress was aware that habeas corpus would have been precluded if the statute had been permitted toward... to be worded that way.

I also want to just briefly just touch on the notion that there is an unconstitutional suspension of habeas corpus if the Act operates in the way that we describe.

And we think that that is clearly not correct.

As this Court said in Felker, first of all, habeas corpus is available only insofar as it's provided by law.

The courts are not free at large to address that question and the Court also reiterated in Felker that Congress, that it's essentially up to Congress, at least in the first instance, to exercise the judgment as to what the scope of the writ should be.

Beyond that, in this context we think that's especially so because Congress has plenary power over immigration and has to be able to balance the need for access to the courts against, in this situation, what Congress saw to be a critical need for expeditious removal of criminal aliens who have already had a chance to test their criminal convictions.

And finally, this Court has also said that Congress, deference is owed to Congress with respect to what due process procedures are appropriate for people generally, and again, that's something where deference we think is especially appropriate in the immigration context.

For all of these reasons, we think Congress's judgment as to what sorts of things should be subject to review and what should not is due extraordinary deference by this, by this Court.

And, in particular, we do not believe that Congress is required to provide for judicial review of a power that it has granted in the discretion of the Attorney General.

This is not worded as a personal right of the alien, much less a personal right that is so fundamental that an alien should have access to courts, must have access to courts, to litigate it.

Congress should not be put to the choice or put in the all or nothing position of granting discretionary powers to the Attorney General only at the cost of buying into a system of judicial review.

As this Court said in AADC v. Reno, there are a number of discretionary determinations the Attorney General makes all the time with respect to whether to institute proceedings in the first place, whether to drop them along the way, whether to perhaps not execute the order of removal at the end of the day.

Those are all discretionary and surely Congress is not required to provide for judicial review of that.

Congress could conclude that this should be regarded in the same way.

Justice Kennedy: Could you just advise me, is it the Attorney General's position, the Justice Department's position, that anybody who is removable under this statute will be removed?

Mr. Kneedler: Well, the Attorney General has the authority not to execute an order of removal if there was...

Justice Kennedy: And does he have regulations as to how that, what is the present position is, I guess my question.

Mr. Kneedler: Well, there's certainly a general rule that final orders of removal will be carried out because that's what Congress had in mind, but Congress...

Justice Kennedy: Does the Attorney General bring removal, removal proceedings under anybody that's within the purview of this statute?

Mr. Kneedler: I, I can't represent that every, that every case has been brought but one of the things to bear in mind is that when Congress passed IIRIRA and expanded the definition of aggravated felony, it made that definition applicable to offenses that occurred before 1996 and in INS's view, that meant that Congress wanted INS to do something about people who had previously committed offenses and may not have been aggravated felons before.

So, the general thrust of the INS's enforcement efforts has been that but I certainly can't represent that it would never decline to remove someone.

And the fact that in Accardi again an unexplained decision, this power may well once have been exercised should not prevent Congress from revisiting the question, revisiting the question of how discretionary relief should be thought of in saying for these purposes, it is constitutionally equivalent to the sort of discretion to institute proceedings in the first place that was unreviewable in AADC v. Reno even for constitutional grounds and has been held unreviewable in other situations as well.

Now, to the merits of the question.

Justice Ginsburg: Mr. Kneedler, Would you clarify one thing?

You said that there is no more discretion under the new statute, but you just answered a question that says well there is discretion, but it goes on outside the statute.

The Attorney General, is not required, even with knowledge that there is a person who is qualified to be removed, is not required to remove anyone.

The discretion is there but it's kind of a lawless discretion.

Is that what you're telling us?

Mr. Kneedler: Well, it's, the fact that it's not judicially reviewable doesn't make it lawless.

There are, there are either formal standards as...

Justice Ginsburg: That's what you were asked.

You said there aren't any.

You said that...

Mr. Kneedler: I don't, I don't, I don't believe there are and this Court pointed out in AADC v. Reno that there were internal guidelines for the exercise of that discretion in the past and the INS...

Justice Ginsburg: But you're not aware of any?

Mr. Kneedler: I am not aware of, but Congress could reasonably conclude that the statutory provisions for cancellation of removal sets up a similar, or allows the Attorney General to set up a similar regime but doesn't in the process require judicial review of that in the courts.

If I could turn to the merits question of whether the Attorney General reasonably determined that the repeal of 1182(c) does not provide a basis for relief in this case.

First of all, Congress specifically addressed the temporal applicability of all of Title III-A of IIRIRA of which this repeal is a part in Section 309 of the act.

In 309(a) Congress specified what it called a Title III-A effective date, which was six months after IIRIRA was enacted, the delay obviously being put in place to allow the Attorney General to set up the new procedures.

And then Congress, in 309(c) specified what is the operative event for applying that effective date.

What it said was that for people in exclusion or deportation proceedings, note not removal proceedings, an exclusion or a deportation proceedings as of the Title III effective date, the amendments made by Title III shall not apply but instead, the prior law, the INA as in effect prior to Title III-A shall apply.

It follows for people like the petitioner here, excuse me, the respondent here, who was put in removal proceedings after the Title III-A effective date that Congress intended that the Title III-A provisions would be applied and Congress enacted them as a package.

As I mentioned, it eliminated deportation and exclusion and replaced it with removal.

It repealed specifically 1182(c) and replaced it with cancellation of removal and it provided a new system of judicial review.

Justice Breyer: Just in case.

Imagine I've read this and it reminds me of these brain teasers in the newspapers, it's very complex.

And suppose after I got through reading all these complex arguments technically on both sides, I got to the situation where I thought I want to assume Congress would have wanted to do what was basically fair in terms of retroactivity.

All right.

Then I thought there'd be, what's gone is the Attorney General's discretion to deal with a sympathetic case.

I've thought of one.

A man, 40, 45 years old, had several children, the bread-earner of the family when, in his youth, once stole a pair of tennis shoes in Massachusetts... an aggravated felony under this statute, I think.

Another time, on another occasion he stole some fruit from a passing train.

Justice Kennedy: All right?

Justice Breyer: Now, what would seem to be the fair thing is at least you give him a shot so that we he was 20 years old and was going to steal the fruit from the train, he would know that that might mean deportation.

And so, if we're going to assume Congress would have wanted to do the fair thing, why wouldn't we assume that at least it would give these people a shot so that the second time they know the likely consequence.

Hence, we would apply this so that it applies to people whose second felony, aggravated felony like stealing a pair of tennis shows, I say slightly sarcastically but it's within that, I think.

So that they'd at least know when they did that what's going to happen.

Well, that's what I call the basic...

Mr. Kneedler: Well, with respect to the notice point, Congress specifically made the definition of aggravated felony applicable to offenses that occurred before that enactment and that includes situations in which someone might be rendered removable.

Justice Breyer: Certainly the first one but let's say the second one, so that now he knows what's going to happen and, you see, that's what I call... .

Now, maybe you can't even get to that because you go through all the technical arguments.

We're at that point.

Is there any answer?

Is there any answer to that which suggests that the application of the way you're doing it, and indeed, I mean, you know, you go pick up people who are 60 years old.

They have families.

In their youth, they committed a few indiscretions and without any hope of mercy through any kind of discretion, they're gone.

Mr. Kneedler: Well, several things.

First of all, we don't think it's technical.

We think the statutory specification of an effective date and what events that effective date attaches to couldn't be clearer from looking at Section 309 of the Act.

Congress identified the commencement of proceedings as the operative event and that makes sense because what cancellation of removal as it's now called is something that is a forgiveness of a ground of removal.

It's something that only arises after the removal proceedings have been brought.

So, we think the statutory answer is clear.

With respect to fairness, it depends.

Congress is looking at fairness from a broader perspective.

It was looking at fairness from the perspective of a large number of criminal aliens in this country who had not obeyed our laws and it wanted to do something about it and Congress also, and importantly, concluded, made the judgment that the Executive Branch was granting far too many applications for discretionary relief under 1182(c).

What Congress did here spoke to the Attorney General.

It did not speak to any supposed rights of individual aliens.

It was responding to what it regarded as excessive, and even referred to as abuse of the power that was granted by the Attorney General and they wanted to take that away, and they wanted to take that away now.

The only effective way they could do that was to stop now.

It wouldn't have made any sense to grandfather in people who may have committed crimes 10 or 20 years ago if what they wanted to do was to stop the Executive Branch from granting too many applications.

At the close of our reply brief, we had citations to a colloquy between Senator Abraham and Senator Hatch and if you read that colloquy, it responds directly to your point, Justice Breyer.

We don't set it out at length.

But, importantly, in IIRIRA Congress actually drew back a little bit on the disqualification for discretionary relief.

Under AEDPA the disqualification under 1182(c) for criminal aliens was broader.

In IIRIRA for a permanent resident alien, Congress confined it to aggravated felony.

Justice Breyer: I didn't see anything.

I read the colloquy and I didn't see anything in that that suggests that the Senators who were for this provision that became law wouldn't want to give the alien at least the knowledge of what was going to happen.

Mr. Kneedler: But what Senator Hatch said as in explaining one of the reasons for having done this was that in the category that Congress allowed to get relief under cancellation of removal, which was a category that was barred under AEDPA, those might have included people who committed their crimes a long time ago and those were the minor crimes that Congress identified as saying those people should be eligible not for 1182...

Justice Breyer: Did he say first or both?

Mr. Kneedler: Pardon me?

Justice Breyer: Did he say first or both?

Of course they could have included somebody whose first crime was a long time ago.

Did he say first or both?

Mr. Kneedler: He was referring to any crime that might have been a long time ago.

Well, that's the important thing.

But even then, what Congress, what he explained is that Congress made them eligible for cancellation of removal.

He didn't say that Congress had somehow carried forward 1182(c) relief, which, as we point out, was expressly repealed in Section 304(b) of IIRIRA, and it was repealed because it had been replaced with the provision for the cancellation of removal which Congress intended to be applied as part of a package dealing with the institution of removal proceedings and then the cancellation of removal proceedings.

Congress did not intend a hybrid sort of thing where discretionary relief from inadmissibility could somehow be applied in the proceeding where that didn't even make sense.

But beyond the statutory answer to the question that we think Congress supplied in Section 309, this change in the law is not retroactive within the meaning of this Court's retroactivity jurisprudence and there are a variety of ways in which that could be understood but they all point in the same direction.

And I would like to identify them because they're different ways of coming at them.

First of all, this Court has said in Lopez-Mendoza and most recently again in the AADC case that the enforcement of the immigration laws is inherently prospective.

It looks to the question of whether aliens will be permitted to remain in the United States in the future, whereas the Court said in AADC, deportation is necessary in order to bring to an end an ongoing violation of the law.

And the reason why this is so is that part of the justification for Congress's plenary power over immigration is as this Court said in the Harisiades case, that Congress has to take into account the contemporaneous policies with respect to aliens.

It has to decide at any particular moment in time who that is an alien in this country should be permitted to remain and who should not.

Removal is not punishment or regulation of past conduct.

It is a determination of who should be permitted to stay in the United States in the future.

Another point that can be made about 1182(c) and Congress's repeal of it is that it operates much like the repeal of the authority to grant injunctive relief.

When the Attorney General grants, under the prior law, granted 1182(c) relief, it was essentially an injunction against carrying out an order of deportation.

Well, this Court has made clear than when Congress most recently in Miller v. French that when Congress changes the authority for granting prospective relief, that that change in the authority for granting prospective relief has to be applied by the Courts at the time that it is applied, that it arises.

Another point is that this statute speaks to the power of the Attorney General not to any rights of the alien.

This provision has never been worded as a right of the alien.

It is again an act of grace or like a pardon as this Court has said.

And this Court has made clear in its retroactivity jurisprudence and in Kansas v. Hendricks, for example, even in considering the ex post facto clause, that a statute is not retroactive simply because it arises in a case that is based on antecedent conduct.

You have to look to see whether it is punishment or a penalty for the past conduct or whether what's going on is simply regulating someone's current ability and in Kansas v. Hendricks it was a current ability to be at large.

The statute, though, was triggered on the basis of prior conviction.

Justice Breyer: I believe the Court also said in Landgraf that if Congress hasn't clearly answered the question, then the Court, taking into account familiar considerations of fair notice, reasonable reliance, settled expectations asks whether the law attaches new legal consequences to events completed before its enactment.

Now, that particular phase would certainly seem satisfied here.

Mr. Kneedler: I don't think so.

I don't believe it would.

It does not attach new legal consequences in the sense relevant to retroactivity analysis.

Justice Breyer: With a new legal consequence to the second theft of the tennis shoes, or whatever, is without knowing it, the consequence is goodbye.

Deportation.

Mr. Kneedler: Well, for example, if there is an enhanced penalty provision for a second offense based on having committed a prior offense, that's not considered to be retroactive under ex post facto.

Justice Kennedy: There's a legal consequence in this sense in that there are many plea bargains and plea bargains I'm sure have been influenced by the fact that the alien who pleads guilty, and knows, or thought he could, apply for discretionary relief.

That's a legal consequence that's been changed.

Mr. Kneedler: It is, well, it's not a legal consequence of a guilty plea.

This statute does not regulate past criminal conduct and it much less regulates guilty pleas.

It provides deciding whether somebody will currently remain in the country on the basis of their past conduct.

A guilty plea is not primary conduct of the sort that sometimes gives rise to retroactivity analysis in other settings.

Justice Souter: Well, but it's not a clear case either way, I suppose.

Wasn't that the point of Judge Easterbrook's opinion.

I forget the case.

It was cited, I guess, in the government's brief in which he suggested what has been suggested here that your, number one, the consequence does not depend, need not depend, on anything that happened since the guilty plea.

And the guilty plea may very well have been entered on the ground that whatever the immigration consequence may be, it was a consequence that it was at least subject to mitigation by the exercise of discretion and the alien may very well have said, my best shot is with discretion and therefore I'm going to enter the plea on that basis.

Now, since there's no intervening event upon which the immigration is going to be predicated, it certainly is adding a consequence that was not there when the immigrant entered the guilty plea.

Mr. Kneedler: It has not added the consequence to a guilty plea.

It may have undermined the alien's expectation but this Court made clear in Landgraf that a law that affects someone's pre-existing expectations does not itself give rise to retroactivity analysis.

There's not the slightest suggestion in this act that Congress intended the application of the various provisions to turn on whether someone pleaded guilty to the offense or did not.

If I could reserve the balance...

Justice Stevens: Even apart from the guilty plea cases, it does attach additional legal consequences to the conviction whether by guilty plea or not.

Mr. Kneedler: Every court of appeals that has looked at that question has concluded that this statute does not raise retroactivity concerns on that basis because it goes to the prospective...

Justice Stevens: Even though the courts of appeals have said that, is it not correct that it did add significant legal consequences to the past crime?

Mr. Kneedler: Not in the sense used in this Court's retroactivity analysis because again this is a situation that looks to current status...

Justice Stevens: Which of our cases are you relying on for that proposition?

Mr. Kneedler: I rely on the discussion in Landgraf and...

Justice Stevens: Landgraf, which uses the terms additional legal consequences, something like that.

Mr. Kneedler: In direct.

This is not regulating criminal conduct.

This is regulating status in the United States.

Justice Stevens: No, it's attaching new consequences to the criminal conduct.

That much seems to be perfectly clear.

Mr. Kneedler: It has undermined expectations but we do not believe it is attaching new legal consequences in the relevant sense.

Justice Stevens: But the Second Circuit said it's absurd to measure it in terms of what the criminal wrongdoer expected to happen in that sense.

But nevertheless it does attach a very serious additional consequence.

But you just said in Landgraf we didn't mean to...

Mr. Kneedler: Not in that sense.

In AADC v. Reno, again, the Court said that immigration law is prospective and retroactivity analysis we think just doesn't apply for that reason.

Argument of Lucas Guttentag

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Mr. Guttentag, we'll hear from you.

Mr. Guttentag: Thank you, Mr. Chief Justice, and may it please the Court:

I want to address first a few remaining issues on the jurisdictional question before I turn to retroactivity.

Again, an analogy to the exercise of the pardon power is simply not applicable here because that deals with the exercise of discretion, not with the question of legal eligibility.

We raise no claim regarding the exercise of discretion.

Our claim is regarding the Attorney General's decision to exclude from eligibility an entire class of individuals based on the Attorney General's decision to apply the new statute retroactively.

That question of whether the new statute applies retroactively is a pure question of law and is one that's governed by the Landgraf principles and they're for courts to decide.

By the very nature of the inquiry, it's an inquiry that must be decided by a court because it turns to what Congress intended pursuant to the default rules that this Court enunciated.

Secondly, the American Arab case, we think, doesn't speak to the question here because the American Arab case dealt with whether claims could be raised in the District Court or in the Court of Appeals or whether an issue had to await resolution until there was a final order of deportation.

There is a final order.

This is not about the fragmentation of procedures.

This is a question about whether any court at any time will be able to review this claim.

And as we've indicated in our briefs, we believe it's appropriate to construe the statute to allow review in the Court of Appeals of this pure question of law.

That does not lead to delay of proceedings or delay of removal; it's a pure question of law that needs to be interpreted as to what the statute means.

Justice Souter: Now I take it your point is it only has to be interpreted once.

This is not an issue once it's settled that's going to come up in case after case after case?

Mr. Guttentag: That's exactly right, Your Honor.

And this is not a question of repetitive review of exercises of discretion, or anything like that.

Justice Kennedy: Well, how is it that we can confine the decision?

You think this would be a very rare instance in which there would be an application for review under your theory of the case?

Mr. Guttentag: Yes, I think...

Justice Kennedy: It involves a class of eligibility, then there might be people who say they in fact are citizens or they were never convicted and that would be about it?

Mr. Guttentag: Yes, I think it's an extremely narrow group of cases, Your Honor, and that's really what this Court's decisions during the finality era when the only review that was in habeas corpus established that during that period of time there was a very limited class of claims that were reviewable and they went to either constitutional claims or claims that the Attorney General had misconstrued the statute.

When there's an error of law going to the construction of the statute, that's reviewable.

Justice Breyer: Can you narrow that further, which you may not want to do?

But this particular claim I was thinking of is like a claim of no jurisdiction because it's saying there's a provision of the statute, a whole big section, that just doesn't apply because the time hasn't come yet for it to apply.

Mr. Guttentag: Right.

Justice Breyer: And now is that like jurisdiction or is it... , I mean, it's not literally jurisdiction in a 12(b)(2) sense or something but what is...

Mr. Guttentag: It certainly is analogous in the sense that the Attorney General has decided what issue he has jurisdiction over and he's decided that he has no power to even consider these claims for relief.

So, in that sense, it certainly goes to the Attorney General's determination of what the statute means and what class of cases he has jurisdiction to consider discretion and in that respect it's certainly similar.

I just want to note that the final order continues to be contingent on the adjudication of discretionary relief.

It has been like that since 1917.

It continues to be like that.

The new cancellation provision is still the same.

The regulation that I referred to earlier is at 212.3, I believe it is, and there is also a regulation at 1229 under the regulations implementing 1229(b) of the statute.

One goes to the 1182(c) form of relief that we're asserting here.

The other one goes to the existing cancellation of relief that's available for people whose convictions occur after the effective date but it continues to be the case that these applications for relief have to be adjudicated before a final order of deportation can be entered.

And I want to go back to the Accardi case for another moment because it is the case that Accardi was decided by this Court in the term immediately following the Heikkila decision and in Heikkila the court went back and reviewed the entire sweep of decisions that this court had decided in relation to review of deportation orders during the time when the review was extremely limited and was limited to that that was available in habeas corpus and Heikkila reviewed all of that and it did it in detail and at the conclusion of that review, it said that the only scrutiny that was available was that which was required by the Constitution and the very next year this Court looked at the Accardi claim and in that context held that the claim raised there, a claim regarding discretionary relief, was reviewable and the dissent went back and cited the very same case that the court in Heikkila had said restricted review to the minimum, the Ecku case, and said that's the scope of review that we think is appropriate and habeas should not cover that claim and the Court rejected that and exercised jurisdiction over the claim.

So, Heikkila and Accardi together, I think, establish that this claim is reviewable if it falls within that and it clearly does.

The fact that Congress could...

Chief Justice Rehnquist: The cases that Heikkila actually cited after it said that we conclude that review is available only as required by the Constitution, and there are three or four of them, did any of those involve a situation like Accardi.

Mr. Guttentag: Those cases did not so far as I know, Your Honor.

The Accardi case came the following term.

There are numerous...

Chief Justice Rehnquist: And there's no discussion of the basis of review in Accardi, is there?

Mr. Guttentag: But there is in terms of the distinction between the majority and the dissent.

Chief Justice Rehnquist: Well, in the majority opinion, do they say exactly what the basis for review is?

Mr. Guttentag: It's a habeas corpus proceeding, Your Honor.

It says that we review the failure to exercise discretion and it distinguishes that between the exercise of discretion.

Justice Scalia: I would think that if they're relying, we're relying on the Constitutional line that, as you say Heikkila set forth so clearly, they would have cited Heikkila.

I mean, the failure to cite it, it seems to me, is so significant that I find it hard to believe that,... regard that case as a holding that this is a Constitutional defect.

Mr. Guttentag: Well, in any event, at a minimum, Your Honor, it certainly established the very serious constitutional question...

Chief Justice Rehnquist: Well, Accardi's also a five to four decision.

Mr. Guttentag: Yes, it was, Your Honor.

It was a decision of this Court and specifically rejecting the dissent's view of the scope of habeas corpus.

It was a five to four decision.

But in any event, it certainly demonstrates the profound constitutional question that would arise if this statute were construed to bar review of the claims that have historically been reviewed and there is a long series of courts of appeals decisions reviewing precisely the same kinds of legal eligibility claims.

We cite those in our brief in footnote 10, I believe it is, so that it was not there was a unique circumstance where legal eligibility claims in relation to discretionary relief reached the courts.

It's just that they didn't reach this Court until the Accardi case.

Now, I do want to recognize Congress could...

Justice Scalia: There are cases of this Court denying habeas relief in such circumstances, aren't there?

I mean, they're old cases but they're cases.

Mr. Guttentag: Not that I'm aware of, Your Honor.

I'm not aware of any where the court said that it lacked jurisdiction to hear the kind of claim that's presented here.

Now, it is true that Congress could change the eligibility criteria and Congress could eliminate discretionary relief.

We don't dispute that.

It's our contention Congress hasn't done that and the availability of discretionary relief has to be based on what the statute says.

And the statute has to be interpreted in light of this Court's decisions in Landgraf and other decisions as to whether the new statute eliminates relief retroactively or not.

But that question is a legal question that the Court must decide.

If Congress were to change the statute, that would be a different situation and in terms of the general principle of Chenery and administrative law, the Attorney General has not said I would adopt a general rule denying eligibility to everyone.

He hasn't done that and there's no reason to believe that he would.

Historically, fifty percent of the applicants received the relief if they were eligible.

Chief Justice Rehnquist: But, isn't that one thing Congress was trying to correct here?

They thought that the Attorney General has granted far too much discretionary relief.

Mr. Guttentag: That may be so, Your Honor, and that's what Congress did prospectively.

We don't believe it did it retroactively and there's no reason to believe that the Attorney General, if he understood that he had the authority, would apply the new statute retroactively to bar relief to the most compelling cases.

The very fact of applying this retroactively means that the kinds of individuals who are the most qualified for the relief are those who are rendered ineligible.

A person, and this is, there are numerous examples set forth in one of the green briefs from the Florida Immigrant Advocacy Center, numerous individuals who committed offenses 20, 15, 10 years ago, minor offenses... theft of a car radio, a single drug offense for which a person received only probation, a theft offense.

Chief Justice Rehnquist: These are all aggravated felonies under the statute?

Mr. Guttentag: They are now because Congress explicitly rendered them aggravated felonies by specific legislation specifically saying that this applies retroactively to old convictions.

What Congress did not do, and we think it's a very different inquiry, it did not say that the eligibility for relief that that is eliminated retroactively.

And in our view that's a significant distinction because Congress may and clearly did want to sweep a wide range of convictions into the new procedures.

But it did not say that it wanted to eliminate relief particularly for those individuals whose offenses occurred so long ago.

Justice Breyer: What about the colloquy, the colloquy that they're talking about in the history?

Mr. Guttentag: Well, I would note that that occurred after the legislation was passed.

So, to the extent that it says anything about it, and I don't know that it's relevant given that that colloquy occurred after the statute passed, but what's important is to look at what the statute indicates.

And we believe you can work your way through the incredibly detailed and nuanced provisions in great detail and never find anything that says the eligibility for relief is repealed as to convictions that preceded this date.

There is nothing there.

The only thing that's there is an effective date that says that the new statute goes into effect on a certain date, including the repeal of section 1182(c).

We recognize that and there's a provision that governs transitional rule cases and that says that those cases that are already in the pipeline shall continue to be governed by the old rules.

But what this Court said repeatedly in both the Martin v. Hadix and in Lindh v. Murphy, and I'm reading from page 22 of our brief and quoting from the case, the only thing that's sufficient is an unambiguous directive or expressed command that the statute is to be applied retroactively.

Language is so clear that it can sustain only one interpretation.

There is no language in IIRIRA that can sustain only one interpretation to apply this retroactively.

What the statute does is say that new cases will be governed by new rules.

We understand that but it doesn't say that the eligibility for...

Justice Stevens: Mr. Guttentag, what do you say about Mr. Kneedler's reliance on section 309?

Mr. Guttentag: 309 says only that, excuse me, that cases that were already in the pipeline shall continue to be governed by the rules in place at that time.

And we agree with that.

And presumably it means the cases initiated after that time will be governed by new rules.

But what Lindh said is that even when a new statute goes into effect, in even language, it says a new statute shall apply to new cases.

And that's at best an inference to be drawn from the 309 language, because it doesn't say it directly.

But even if that inference could be drawn, what this Court said in Lindh is that inference is not in, or cautioned that that inference in and of itself is not sufficient to infer a retroactive effect.

It's not sufficiently...

Chief Justice Rehnquist: Of course, what you're talking about is something in Lindh where there is a different situation than here.

Do you think that Congress has to make the same sort of showing that you say when we're basically with aliens over which Congress has plenary power and who do not have vested rights?

Mr. Guttentag: Yes, I do, Your Honor.

Chief Justice Rehnquist: Why.

What's the authority for that?

Mr. Guttentag: I think the Chew Heong case most significantly, the original case in which this Court held that retroactive analysis does apply and held that the provision did not apply and the government sought to distinguish that case on the ground that it involved treaty rights and so on.

But that Court applied retroactivity analysis... this Court, excuse me... applied retroactivity analysis.

It cited the same cases, U.S. v. Heth, and others, saying that retroactivity analysis applies in the immigration context.

It's done it consistently since...

Chief Justice Rehnquist: But what about the government's distinction that we're talking about treaty rights there?

Mr. Guttentag: I don't think, I think that's a false distinction, Your Honor.

What we have here is legal permanent residents who are asserting rights under the statute.

The treaty in Chew Heong had the effect of a statute and that's what the Court said.

It had an entirely distinct part of that opinion talked about retroactive legislation in the immigration area.

Here we have legal permanent residents who are asserting a statutory right and based on the fact that Congress didn't legislate with sufficient specificity.

Justice Scalia: Suppose Congress just changes its immigration laws and says that a whole large category of people who previously had been admissible as permanent resident aliens are no longer admissible.

They have to pack up and go home.

Can Congress do that?

Mr. Guttentag: Congress can do it if it does it explicitly, Your Honor, but it can't...

Justice Kennedy: Okay.

Mr. Guttentag: Do it inferentially.

Justice Scalia: That's fine.

But if Congress does it, is that retroactive?

It's eliminating a qualification that used to be valid and they're saying for future residents in the United States, it's no longer valid.

Mr. Guttentag: Right.

It depends on what it's based on, Your Honor.

What this Court said is that retroactivity analysis is a practical look at the legal consequences of a past event.

If Congress says every immigrant who did something in the past shall now be deported, that's a retroactive effect because we look at practical consequences and irrevocable...

Justice Scalia: What's the closest case you have for that kind of thing, that kind of a definition of retroactivity?

Mr. Guttentag: Well, I think that's exactly what the Court said in Lindh v. Murphy and that's what it said in Martin v. Hadix and I'd be happy to, but when it imposes.

What the Court said in Martin v. Hadix is a common sense functional judgment about whether a new provision attaches new legal consequences to events completed before the enactment.

And as I believe Justice Stevens said whether it increases a party's liability for past conduct, attaches a new disability or sweeps away settled expectations and that's all language from Landgraf and from Martin v. Hadix and that's what occurred here.

Individuals pled guilty based on the law as it existed at that time and now as a result of that are ineligible for...

Justice Stevens: Well, you would draw distinction, using Justice Scalia's example to a new statute that said all aliens who are citizens of the United Kingdom shall now be deported.

That wouldn't attach any legal consequences to past conduct.

That they could do, I suppose.

Mr. Guttentag: I suppose they could, Your Honor.

Chief Justice Rehnquist: Well, what if they were naturalized citizens of Great Britain.

Certainly that would attach it to past conduct.

Mr. Guttentag: It may, Your Honor, but I think the critical inquiry is whether it's an irrevocable act that was based and it sweeps away settled expectations and attaches new legal consequences.

And if Congress chooses to do that, and I think this is the important distinction, if Congress chooses to do that, it has enormous power.

But it has to do it explicitly.

And it can't do it by inference.

And that's why Landgraf laid down the rule.

Congress is obligated to look at the consequences of what retroactive legislation...

Justice Scalia: What was the consequence involved in Landgraf?

What was the consequence of Landgraf of applying it in prior conduct?

Mr. Guttentag: To the employer?

I'm sorry.

That an employer would have been subject to punitive damages based on a discriminatory act that occurred before the law change.

Justice Scalia: So, you're talking about the imposition of criminal penalties or penalties for a past act.

Here you are talking about who can stay in the United States.

It seems to me it's a totally different category, I think.

It doesn't make sense to me to talk about making the statute retroactive.

Mr. Guttentag: Well that would suggest, Your Honor, that if the employer in the Landgraf case were an immigrant, that imposing punitive damages on that individual for their discriminatory conduct would be retroactive but passing a law now that says an immigrant will be deported based on that past discriminatory act is not retroactive.

Justice Scalia: That's exactly what I think it would suggest.

Mr. Guttentag: This Court has applied the same principles that Congress must legislate explicitly in the immigration context, not the Chew Heong case.

It did it in Kessler v. Strecker.

It did it in Mahler v. Eby.

Again and again, it's precisely because the consequences are so severe and I think that the consequences for an immigrant to be deported on any real life practical consequence are far greater than the imposition of damages on an employer and there's a protected, as well as this Court having recognized again and again that a permanent resident has a protected liberty interest in being here.

It doesn't mean that Congress doesn't have the power but it must do it explicitly.

And, again, as I say, I don't think that there's anything in this statute, the various provisions, there is not a specific provision that says that even though the new definition of aggravated felony sweeps very broadly, we acknowledge that and we recognize that.

Congress has cast the net very wide but it's precisely because of that that the elimination of discretionary relief is so devastating and that if Congress intended not only to sweep everyone in, but then also to eliminate any eligibility for discretionary relief that existed at the time.

Justice O'Connor: The Court below seemed to have applied its rule only to guilty pleas and not to an actual conviction on trial, didn't it?

Mr. Guttentag: Yes.

Justice O'Connor: Do you defend that distinction?

Mr. Guttentag: Well, we believe the guilty plea represents the most compelling example of where the greatest reliance occurs, but we think anything... new consequences...

Justice O'Connor: Do you defend the distinction?

Mr. Guttentag: No, we believe that the distinction should apply equally to a conviction but the court need not decide that here because this individual pled guilty.

Justice Ginsburg: What was in your complaint.

What was the category in your complaint?

Mr. Guttentag: Mr. St. Cyr pled guilty and so that was the challenge that was brought in his case so far as I recall.

Justice Ginsburg: That's what I thought... that your case was in fact centered on the guilty plea.

Mr. Guttentag: Yes, it was, Your Honor.

Justice Ginsburg: So that whatever would apply in another case involving a trial and conviction is not before us now.

Mr. Guttentag: That's right, Your Honor.

That's not directly presented by this case and I might note that when this Court decided the Hughes Aircraft case, it didn't pick the particular retroactive past event.

There was the, it was the final determination.

Since all the relevant events occurred prior to the change in law, this has a retroactive effect and we will leave for another day.

Justice Stevens: I must confess I find it hard to, just as a matter of interpreting statutes, to say it's retroactive to some people convicted of a crime or not as to others.

Just as a matter of pure logic, I think it's pretty hard to swallow for me.

Mr. Guttentag: It would ultimately go back to the commission of the offense because that's the point at which the irrevocable act occurs and new consequence...

Justice Stevens: That is an event to which additional legal consequences are attached.

Mr. Guttentag: That's right, Your Honor, we...

Justice Stevens: And that would mean there's no distinction as to, you know, whether he got caught or whether he was sentenced heavily or pleaded guilty.

Those aren't relevant, really.

Mr. Guttentag: That would be... and that's consistent with what the Court does of course in the ex post facto context.

Justice Scalia: Suppose you have a statute that eliminates or narrows the circumstances in which a governor or the President, for that matter, can grant a pardon.

That statute is passed and is framed in a way that it covers all crimes... all people currently in prison.

Would you say that under our retroactivity law, you would have to interpret that statute to apply only to crimes committed after its passed and that people who committed crimes before that in reliance upon the fact that if I stole these sneakers, the Attorney General might let me stay in the country anyway?

I mean, you know, this is not a very substantial reliance.

Mr. Guttentag: But reliance...

Justice Scalia: And if I stole the sneakers, the Attorney General just might let me stay in the country.

This is the kind of reliance we're protecting.

If you do the same thing in the pardon context, do you think that we would interpret to be prospective only a statute that narrowed the ability of a governor or of the President to grant mitigation of a criminal penalty?

Mr. Guttentag: Your Honor, first the critical inquiry is not reliance and this Court has not said that reliance is the test for retroactivity.

It's new legal consequences.

Whether that would apply to a pardon or not, I'm not sure, but it is the case that this Court has said that in the context of game time credits in the, I believe it was the Weaver case, although I may be wrong, it said that the eligibility for relief from sentencing that is discretionary... there was an act of grace with the board of parole that has a retroactive effect and hence violates...

Justice Scalia: Wait, it was discretionary whether they had to grant it, but they had granted it and there was an entitlement to it as it was described.

Whereas, here you have nothing but this off-the-wall hope that the Attorney General might let you stay in the country.

Mr. Guttentag: No, I disagree with that, Your Honor, because what's here is the legal entitlement to apply.

That's...

Justice Stevens: Let me just interrupt.

We're not arguing whether it's an ex post facto law and therefore unconstitutional.

You're only point is that they have to be clear about it.

Mr. Guttentag: That's absolutely right, Your Honor.

Justice Stevens: So your answer to his question should be depends how clear the statute is.

Mr. Guttentag: That's right.

That is right and I...

Justice Scalia: I told you what the statute said.

All it said is that this eliminated... this discretion is eliminated and it applies to all crimes, which is what the statute here says.

And I don't think there's a chance in the world.

I'm not talking about ex post facto.

I don't think there's a chance in the world that we would, that any sensible court would interpret a statute like that to apply only to crimes committed in the future because all the people who committed those crimes in the past may have hoped that the governor would grand them a pardon.

Mr. Guttentag: The obligation... .

Justice Scalia: And that's just not the kind.

Yes, we haven't made reliance the test for our retroactivity but basically what retroactivity law seeks to protect is reliance.

And I find the reliance that we're arguing about here... such an insubstantial thing.

Mr. Guttentag: But, Your Honor, in that respect, that's where the ex post facto cases are relevant because the ex post facto cases, which this Court has cited in the civil retroactivity context is what constitutes a retroactive effect.

Look not to what the individual relied on in any sort of sense that we're talking about right now but rather whether it attaches new legal consequences.

If it does that in the criminal context, it violates the ex post facto.

If it does in the civil context, Congress has to be clear to achieve that effect and here because of the circumstances in which this applies it is particularly evident what the new legal consequences are.

Justice Scalia: I'm suggesting that eliminating an act of grace is not a substantial legal consequence of the sort that would invoke that rule neither in the pardon situation nor here.

Mr. Guttentag: The cases, I think, support the view that the fact that it is discretion, in fact in Hughes Aircraft itself...

Justice Breyer: I suppose Congress thought that by passing this very harsh law they would discourage people from committing new crimes, didn't they?

Mr. Guttentag: It certainly is one of the purposes.

Justice Breyer: That's one of the purposes, I guess, they must have thought it would have had an effect had it been in effect earlier on the old crime scene.

Mr. Guttentag: Right, that's certainly one of the elements.

And it's not analogous to an injunction because this is not an ongoing prohibition against deportation.

And that's, this is a one time negating the immigration consequences of a prior criminal conviction.

That's what the waiver does.

It is not on ongoing injunction against deportation and that also distinguishes this circumstance from the other cases that the government was speaking about that were discussed in AADC... prosecutorial discretion, an after the fact decision by the Attorney General not to actually implement the deportation or something like that.

Those are discretionary acts and we recognize that.

And those are not in the same category as this particular form of relief from deportation which has been in the statute since 1917 and upon which the final order of deportation is contingent.

So, deferred action, and prosecutorial discretion, those other kinds of things are very different and that might be a unilateral hope but eligibility for a waiver of deportation is not.

I believe that the question this Court faces is whether a pure question of law decided by the Attorney General that will determine whether deportation becomes mandatory for persons who committed offenses many, many years ago at a time when the eligibility for relief was in the law and their likelihood of receiving it was at least fifty-fifty, whether that pure question is reviewable in any court.

The Attorney General has decided that he lacks all authority, not because he doesn't want to grant relief, not because he thinks it might not be appropriate in many, many cases but because the Attorney General determined that he lacks the statutory authority because Congress took it away from it.

We believe that legal ruling is wrong and that there is nothing in the statute that manifests the clear and unambiguous intent that this Court has repeatedly held in the retroactivity context is mandatory to impose those kinds of drastic new legal consequences on long time legal permanent residents who have made their lives, who have established their families, and who have done nothing wrong but that one offense, one time in the past and ever since complied with the law and are now swept up in this change and subject to mandatory deportation.

Rebuttal of Edwin S. Kneedler

Chief Justice Rehnquist: Thank you, Mr. Guttentag.

Mr. Kneedler, you have one minute remaining.

Mr. Kneedler: Yes, with respect to the cases that I would rely on for nonretroactivity, Justice Stevens, I would mention Kansas v. Hendricks where the Court said there was no ex post facto violation because the act wasn't retroactive even though it operated.

One of the triggers was a prior conviction, but it looked to current and future of status.

Also, the Cox case mentioned in Landgraf itself gives a description of some such cases.

With respect to attaching new legal consequences, that has to be proximate legal consequences in the sense of the statute like Title VII itself imposing penalties on prior conduct.

The immigration laws do not regulate and penalize prior conduct.

They look to someone's current status and decide whether he shall remain in the United States.

There's no pre-existing right to remain in the United States so a new ground of removal does not interfere with any pre-existing rights.

In particular, there was no right to expect to be granted relief from deportation.

So, even if a new ground, substantive ground, for removal would be retroactive, and this Court's opinions would refute that, certainly taking away a discretionary power in the Attorney General to grant relief in the future is in no way retroactive.

We think this case comes down to a question of deference to the Attorney General under this Court's decision in Aguirre and Aguirre and Chevron and the Attorney General has reasonably construed the act not to allow discretionary relief.

With respect to jurisdiction, Congress was not required to recognize this form of relief as the sort of fundamental personal right that habeas has to be available for.

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Calcano-Martinez v. INS - Oral Argument

Fri, 09 Jan 2009 14:50:28 +0000

Case:

Calcano-Martinez v. INS

Media File:

00-1011_20010424-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Lucas Guttentag

Chief Justice Rehnquist: We'll hear argument now in Number 00-1011, Deboris Calcano-Martinez v. The Immigration and Naturalization Service.

Mr. Guttentag.

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

The jurisdictional issue presented in this case is whether a legal ruling by the Attorney General on a pure question of law compelling the deportation of long-time legal permanent residents is reviewable in any court.

Never in our country's history has an alien been subject to deportation without the judicial branch determining the legal validity of the administrative deportation order.

We submit that the Constitution does not permit denying judicial scrutiny of the Attorney General's ruling, and that the statute did not deprive this Court and the district court and the courts of appeals of considering the pure question of law presented in this case.

Justice Scalia: You say the legal validity of his deportation is at issue.

In what respect do you claim he is not properly deportable?

Mr. Guttentag: Your Honor...

Justice Scalia: As I understood it, it is conceded that he met the qualifications for deportation.

Mr. Guttentag: He is... our clients are subject to the deportability grounds, but they are not subject to deportation without an adjudication of the application for discretionary relief.

The final order of deportation...

Justice Scalia: What you're complaining about is that the Attorney General did not accord them discretionary relief, but all of your grounds for asserting that you're not deportable you had an opportunity to challenge in court, didn't you?

Mr. Guttentag: Well, Your Honor, the question is whether the final order of deportation was properly entered and, under this Court's case law...

Justice Scalia: It was properly entered if all of the qualifications for deportation existed.

Your complaint is that the Attorney General did not exercise his discretion to let your client stay in the country nonetheless.

Mr. Guttentag: No, Your Honor, we disagree with that, respectfully.

The final order of deportation cannot be entered until there is an adjudication on the application for discretionary relief if the person is eligible to apply.

In this case, the Attorney General...

Chief Justice Rehnquist: What is your authority for that proposition, Mr. Guttentag, your case authority?

Mr. Guttentag: The Chadha case, Your Honor, the Foti case, all said that the final order of deportation is contingent on...

Chief Justice Rehnquist: But that was not talking about the Attorney General's discretion, was it?

Mr. Guttentag: Yes.

In all those cases, Your Honor, the question was whether a final order of deportation, and whether the discretionary element that's... on which the final order is contingent was reviewable in court, and the way the Immigration Act is...

Chief Justice Rehnquist: Well, that was before the IIRIRA, or however you pronounce it.

Mr. Guttentag: Yes, but the IIRIRA has not changed that element, Your Honor.

Under the Immigration Act, both before and after, there is a two-part process for issuing a final order of deportation.

There's the question of deportability, and that's the question of whether a person falls within the grounds enumerated in the statute.

Chief Justice Rehnquist: And you concede those have been met here?

Mr. Guttentag: We do concede that, Your Honor.

There's no question that our clients conceded that they fit within the grounds of deportation.

Then the second question...

Justice Scalia: And also that all of those grounds can be challenged in court, that IIRIRA does not prevent judicial review of all of those grounds of deportation, right?

Mr. Guttentag: Well, that's a construction of the statute, Your Honor, that the Government's offered.

We don't dispute that, although we come to that conclusion for different reasons, but the question is whether the final order of deportation itself is reviewable, and the final order cannot be entered... and I believe the Government will concede this, Your Honor...

Justice Stevens: Could I just interrupt you with one quick... do you concede that a conviction prior to the date of the enactment of the statute is proper ground for deportation without having an opportunity for discretionary review?

Mr. Guttentag: Well, the conviction itself is a basis for triggering the grounds of deportability.

Justice Stevens: Well, I understand, but are you conceding convictions prior to the enactment of the statute have the same legal effect as convictions after the enactment of the statute?

Mr. Guttentag: Not for purposes of discretionary relief, Your Honor.

That's our claim on the merits in the St. Cyr case.

Justice Souter: But your claim is that you are entitled to an adjudication at the administrative level, ultimately by the Attorney General, under a statute that contains this discretion.

That's... isn't that your basic claim?

Mr. Guttentag: Yes.

Our basic claim, Your Honor, is...

Justice Souter: Now... okay.

Let me ask you part 2 of my question.

Do you also claim that if you are, or if your client in this case is entitled to an exercise of discretion, that the exercise of discretion itself is reviewable for abuse of discretion?

Mr. Guttentag: No, we do not, Your Honor.

Chief Justice Rehnquist: Okay.

Mr. Guttentag: Our claim is that the question of legal eligibility to apply for the discretionary relief is reviewable.

The Attorney General...

Justice Ginsburg: Mr. Guttentag, may I just add a post script on that question to... suppose the Attorney General were to say, in light of AEDPA, and however you pronounce the other statute, I have decided that henceforth I will exercise my discretion never to be gracious, and I will simply deny these applications.

It is as an exercise of discretion, and it's in tune with what I think is the current climate in the legislature.

You just answered Justice Souter that you would not challenge an exercise of discretion.

Mr. Guttentag: Your Honor, we believe that the question of a categorical denial raises a different issue, and whether that's permissible or not, raises a distinct question.

But just to be clear, the Attorney General has not done that in this case.

What the Attorney General has said is that he lacks the legal authority to exercise discretion, on a pure question of interpreting the statute that Congress has divested him of the legal authority to consider applications for discretionary relief.

We do not believe that the Attorney General, if he interpreted this statute correctly, would adopt a categorical rule.

There's no reason to believe that.

He has determined that he lacks any discretionary authority.

How he exercises that authority would be a separate and distinct question.

Justice Kennedy: Suppose there's a case in which it's conceded that the Attorney General has discretionary authority.

Before he exercises... and the immigration judge has found that the person is deportable.

Before the Attorney General exercises that discretion, is there a final order of deportation?

Mr. Guttentag: No, there's not, Your Honor.

Justice Kennedy: Why do you concede there's a final order of deportation here, or do you?

Mr. Guttentag: Well, we do not...

Justice Kennedy: Because it seems to me that may be important under the interpretation of the statute.

It seems to me you can argue that where, as in your case, the alien requests the Attorney General to exercise the Attorney General's discretion, there is no final order of deportability until he does so.

Mr. Guttentag: Well, we certainly agree that there's not a legally valid final order of deportation.

There was an order issued by the Board of Immigration Appeals, so in that sense there's a piece of paper that constitutes a final order, but we agree that there's not a legally valid final order.

Justice Kennedy: Well, do you think there's a final order under the statute, 1252?

Mr. Guttentag: The (a)(2)... well, we believe there's a final order for purposes of seeking judicial review of the BIA's decision.

We do believe that that constitutes a final order.

We believe that it is not a legally valid final order because of the Attorney General's ruling.

Justice Kennedy: Do you think this is a final order of removal against an alien who is removable?

Mr. Guttentag: Well, Your Honor, we believe that the statute, the (a)(2)(C) does not apply to bar review of this claim.

What the... we believe that the provision barring review does not apply.

Whether it's because it doesn't constitute a final order within the meaning of the statute as intended, because there's a legal error underlying the adjudication, or whether there is a final order but it's reviewable nonetheless for that legal... because it lacks legal validity, either way there's review of that determination.

Justice Kennedy: Well, I'm just... in just looking at this statute, it seems to me that the Attorney General does not give much force to the phrase, who is removable.

Mr. Guttentag: Right, and that is an...

Justice Kennedy: It makes for an awkward statute, frankly, if you take it out, but it's... I thought that your argument might be that this... your client is not an alien who is removable under a final order.

Mr. Guttentag: We would certainly accept that interpretation, Your Honor, if removable is not the term that normally appears in the Immigration Act, because the technical term would be deportable.

Justice Kennedy: But you're saying that because removable means a person who is potentially deportable, that your client is removable?

Mr. Guttentag: No.

We would... I... Your Honor, we believe that it's very difficult to interpret this statute, that...

[Laughter]

That the one thing it doesn't do is preclude review of the legal claim presented here.

Whether that's because the term is removable...

Justice Kennedy: Well, I'm asking if you could make the argument that your client is not removable because the statute does not prevent discretion being exercised as to him, you've asked for discretion, it hasn't been exercised, so there is no final order against an alien who is removable.

Mr. Guttentag: We would certainly accept that interpretation.

Justice Scalia: But you didn't... you don't...

I'm sure you would, but unfortunately...

Justice Kennedy: But did you argue... you don't argue that?

Mr. Guttentag: We've argued principally that the term review does not preclude the scope of inquiry that's traditionally be encompassed by habeas corpus because of the constitutional problems that would be raised by barring all review.

We believe that...

Justice Kennedy: Well, under my submission, and frankly I don't think this works, because the statute is pretty awkward and because of what you've already said about removal, but under... if there was some merit to this interpretation and it could be adopted to avoid the constitutional problem, then the review wouldn't even be by habeas, it would be just under the review mechanisms of the statute.

Mr. Guttentag: And we...

Justice Kennedy: You don't seem to be too happy with that.

Mr. Guttentag: No, we absolutely will accept that, Your Honor...

Justice Scalia: Well...

Mr. Guttentag: because we believe that there can be review in the court of appeals, and that if the term removable means only a properly entered final order of removable... removal, then our clients are not removable.

Justice Scalia: Mr. Guttentag...

Mr. Guttentag: They are subject to...

Justice Scalia: May I suggest that the reason you didn't make that argument is that it's not a very good one, because there is more than one section which excludes the judicial review that you're seeking.

Not all of them contain that phrase, who is removable.

Subsection (g), entitled, Exclusive Jurisdiction, does not use the term.

It says, except as provided in this section, and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.

It does not contain the language that you now want to rely upon.

Mr. Guttentag: But Your Honor, we don't... that language does not preclude review of our claim, because what 242(g) does is place all review in the court of appeals, and we agree that review can be in the court of appeals.

We have no... our construction of the statute permits that, because we agree that the final order of removal is reviewable in the court of appeals.

The only provision that bars review of that order in the court of appeals is (a)(2)(C).

Chief Justice Rehnquist: Well, do you say there's also then habeas review in the district court?

Mr. Guttentag: No, Your Honor.

We... our contention is only that there would be review in the district court as a fail-safe mechanism if review in the court of appeals is not possible.

Justice Breyer: Well...

Mr. Guttentag: We recognize that the...

Chief Justice Rehnquist: Under what... but not under habeas, you just said, as I understood.

Do you or do you not think habeas review in the district court is available?

Mr. Guttentag: We believe that district court review in the... excuse me.

We believe that habeas corpus review in the district courts is not barred by the language of this statute, but that the scope of review that would be heard in the district courts can certainly be placed in the court of appeals, as this Court has always said that the...

Chief Justice Rehnquist: Well then, you don't agree with the Second Circuit's decision here.

Mr. Guttentag: We... the Second Circuit held that there was district court habeas corpus jurisdiction because it first concluded that there was no review possible in the court of appeals.

We believe that if review is possible in the court of appeals, and we believe that it is, because (a)(2)(C) should be construed as to permit review in the court of appeals, then the district court habeas corpus procedure need not be available.

Chief Justice Rehnquist: Well, what do you think the term, removable, in (a)(2)(C) means?

Mr. Guttentag: Your Honor, I think the term is ambiguous, because it is not the term, deportable, which is what the immigration statute uses to determine what... to say that someone is subject to deportation.

It does not say, subject to a final order of removal, which is...

Chief Justice Rehnquist: So what do you... what do you... how do you interpret it?

Mr. Guttentag: Your Honor, we believe it means that someone who could be removable, but is not subject to final order of removal, so therefore the statute would not apply to that individual.

It's a term that appears in various places in the Immigration Act.

And it doesn't have, as far as we can tell, a consistent meaning throughout the Act.

Chief Justice Rehnquist: Was it adopted just in connection with this provision that provided an alien who was convicted of a felony should be deported?

Mr. Guttentag: I believe it appears in other places in the Act.

It appears in relation to detention provisions and other places.

It's not in other places in the...

Justice Scalia: Let me ask this, if who is removable, if that embraces the requirement that the Attorney General first have exercised his discretion, why doesn't it also, under that kind of a reading, embrace the requirement that he actually committed a criminal offense covered in section 1182(a)(2)?

I mean, if you're going to read removable, who is removable that broadly, that is to say that any defect in the proceedings which rendered the order of removal invalid causes him not to be removable, you simply open up the whole statute.

You say any defect which causes him not to be removable takes him out of (a)(2)(C).

I mean, it just cuts a swath through the entire statute.

Mr. Guttentag: Well, we don't believe it does, Your Honor, but the critical question is whether this claim must be reviewed in some court, and we believe that the answer to that question is clear.

Justice Scalia: That's your constitutional argument, but we're trying to discuss first a proposed statutory argument which would avoid our reaching that, and I'm suggesting that if you read who is removable to embrace... to make a person unremovable where anything that should have been done has not been done, you open up the whole prior proceedings.

Mr. Guttentag: Well, but I believe it's possible to read it, Your Honor, providing a properly entered final order of removal, and that would include the proper, legally authorized exercise of discretionary relief, that if the statute entitles...

Justice O'Connor: But, of course, the discretionary relief provision was changed, too, wasn't it, and doesn't afford it now for people convicted of this type of crime.

Mr. Guttentag: Right, but our contention on the merits, Your Honor, is that our clients are eligible for the discretionary relief as it existed at the time of the preenactment event.

That's a pure legal question.

The Attorney General has determined that they're not eligible.

The question of eligibility for that relief was decided by a legal ruling of the Attorney General that... and that determines whether or not it was a properly entered final order of removal.

When that question is resolved, then... one way or the other on the merits, then there'll be a decision on whether it was a properly entered order.

Justice Kennedy: Getting back to the statute, and Justice Scalia's question, the question was, well, suppose he hadn't committed a criminal offense, would that be grounds for saying that the statute doesn't apply?

I thought your answer would be yes, even the Government concedes that...

Mr. Guttentag: Right, and that...

Justice Kennedy: in the habeas portion of the case.

Mr. Guttentag: Yes, and that whether or not the person actually committed the offense is a question of whether they fit within one of the enumerated categories that are set forth in the statute, and I believe the Government does concede that.

Chief Justice Rehnquist: Well, are you saying you could go behind a judgment of conviction?

Mr. Guttentag: No, absolutely not, Your Honor.

That's a determination that's made in the criminal procedure, and when that certified conviction is brought before the immigration judge, that's dispositive on the question of whether or not there's a disqualifying conviction.

But then the question is whether that conviction constitutes a deportable offense within the meaning of the Immigration Act, and that's a question that the Government agrees is reviewable and, as I indicated, that the question of whether or not the final order of removal was properly entered must be reviewable as well, and if there's been a failure to allow the person to apply for the discretionary relief for which they are entitled by statute, then that cannot be a legally valid order of removal, and again I...

Justice Souter: But the one difference, then, that has been made, that as I understand it that you concede, is that on your view, once it is determined that the Attorney General did apply the statute that authorizes discretion, that would be the end of the review.

There could not be a further step in which you say, the refusal to exercise it in favor of my client was an abuse of discretion.

You concede that, I take it?

Mr. Guttentag: Yes, we do, Your Honor.

Justice Breyer: Okay.

Mr. Guttentag: We believe that Congress did significantly restrict the scope of judicial review of final orders issued against so-called criminal aliens.

We recognize that.

Our contention is only that the core review that has always existed and that has never been prohibited as to questions of law and as to the legal validity of the deportation order, that that issue must remain reviewable; that there's never been a time during the entire period when review was severely curtailed under the finality provisions that we detail in our brief at some length; that there was a long period of time when there was no review of orders of deportation except in habeas corpus proceedings, and what this Court repeatedly recognized is that that scope of review is extremely narrow, but it does encompass a question of the legal validity of the order, and questions of the construction of the Immigration Act, and that's what's at issue here.

The Attorney General has construed the Immigration Act to say that our clients are not eligible to apply for the exercise of discretion to which the statute entitles them.

That question must be reviewable in a court to determine whether the Attorney General improperly excluded an entire class of people from eligibility for discretionary relief, and this Court's decision in Foti and in Chadha and in other cases recognized that the final order is contingent on the issuance... the adjudication of discretionary relief, and that means two questions.

One is...

Justice Kennedy: Again, does that mean there is no final order here, or is it a contingent final order, because this is very important for the statutory argument.

Mr. Guttentag: Your Honor, if there is no legally issued adjudication, then I suppose it's accurate to say there's no legally valid order, and so therefore there isn't a final order.

Justice Kennedy: But that... but then Justice Souter's question is, suppose the discretion was just abused.

Mr. Guttentag: Well, we don't...

Justice Kennedy: Would there then be a final order?

Mr. Guttentag: It depends on if the final order is a question of a piece of paper that the Board of Immigration Appeals issues, in which case there is a final order, or whether the... there's a legally valid final order...

Justice Souter: Well, I think you're...

Chief Justice Rehnquist: Don't you need a final order to go to the court of appeals in the first place?

Mr. Guttentag: Yes, Your Honor.

As I indicated, there must be that piece of paper from the Board of Immigration Appeals saying this person is ordered removed from the United States.

That's what triggers section 1252.

Justice Souter: So you've got a final order for purposes of seeking review, but if you get the review, you say, well, it is not a valid final order because it was entered without application of the authority to grant discretion.

Mr. Guttentag: That's correct, Your Honor.

Justice Souter: Yes.

Mr. Guttentag: That's exactly our... and the question of eligibility for relief is entirely distinct from the exercise of discretion.

Once the Attorney General makes an accurate decision, a legally valid decision as to eligibility for discretionary relief, then the exercise of discretion follows.

Chief Justice Rehnquist: If this is a final order, as you're talking about, 1252 says no court shall have jurisdiction to review any final order of this sort.

I mean, are you using final order in two different senses?

Mr. Guttentag: No, Your Honor, we're not, and we're certainly not intending to.

We believe that there's ambiguity in the statute, given the severe constitutional questions that would be raised if there were no review at all of this pure question of law, the Attorney General's decision, and that ambiguity can come from the term, removable.

We set forth in our brief the reason why we think the term, review, is not sufficiently clear to bar the scope of inquiry that's always been available to review a final order.

Chief Justice Rehnquist: So you're got three different ambiguities in one sentence that you've focused on?

Mr. Guttentag: We think there are many ambiguities.

I believe the Government as well is finding ambiguities in this statute.

It is a statute that seeks to limit the role of the courts, and our contention is that it can do that, but it cannot preclude the courts from reviewing and determining the legal validity of the order, and that that is a question that is, whether there are legal... in this case, that is a question of whether there is a legal eligibility determination.

We think the Accardi case is very significant in this respect, because in the Accardi case, this Court confronted the question of the scope of habeas corpus inquiry to review a final order of deportation.

It was a case of an alien who was admittedly deportable, there was no issue about that, and claimed that he had not gotten a lawful exercise of discretion because the Attorney General had refused to exercise his discretion, as was required.

In this case... and the Court held that that was reviewable in habeas corpus during the period when the review was as restricted as it could possibly be, the year after this Court said in the Heikkila case that the only review that was available was that which was constitutionally required.

Now, this claim is even more fundamental.

Justice Scalia: Did Accardi say that review was constitutionally required?

Mr. Guttentag: Accardi exercised review.

Justice Scalia: I understand that...

Mr. Guttentag: It did not...

Justice Scalia: And I don't know the basis on which it exercised jurisdiction, and our cases are clear that cases which do not address the jurisdictional question are not authority for the existence of jurisdiction.

I don't know on what basis Accardi took the case...

Mr. Guttentag: I...

Justice Scalia: but it certainly didn't say that there had been a constitutional violation.

Mr. Guttentag: I think, Your Honor... it did not specifically say that, but I think there's two points that are important.

One, it was a habeas corpus proceeding decided the term after this Court said in the Heikkila case that the only review that was available was that which was required by the Constitution.

Justice Scalia: Did Accardi cite Heikkila?

Mr. Guttentag: I don't believe it did, Your Honor.

Justice Scalia: It didn't.

It didn't.

I have no idea on what basis Accardi...

Mr. Guttentag: But may I point out...

Justice Scalia: took jurisdiction.

Mr. Guttentag: May I point out what the dissent said in Accardi, Your Honor, which is that it specifically objected to the Court's exercise of jurisdiction on the ground that habeas corpus did not encompass the claim raised in that case, and it objected to the exercise of jurisdiction on precisely the same grounds that the Government argues here, that a person is deportable, that it concerns discretionary relief.

And the Court rejected that, and exercised discretion, and said there's a fundamental difference between reviewing the exercise of discretion and reviewing the refusal to exercise discretion, and this is a case about the refusal to exercise discretion based on the Attorney General's legal ruling that an entire class of individuals is not eligible for relief.

And it's our... our only challenge is to that determination by the Attorney General, that his legal determination as to who is eligible to apply and who is not is legally incorrect, and we believe that claim must be reviewable in a court.

It can be the court of appeals, and we set forth why we believe that is entirely possible and appropriate, but it must be reviewable in a court.

I'd like to save...

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Very well, Mr. Guttentag.

Mr. Kneedler, we'll hear from you.

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

In 1996, in two separate statutes, Congress fundamentally restructured the Nation's immigration laws.

There are amendments of general applicability, and also ones specifically dealing with criminal aliens to ensure that criminal aliens were expeditiously removed from the United States.

Briefly, the three amendments of general applicability that are most relevant to these two cases this morning are Congress's elimination of deportation and exclusion proceedings, and replacing them with a single proceeding called removal.

Secondly, Congress repealed the prior 1182(c) under which petitioners here seek relief, and replaced it with a new proceeding, or form of discretionary relief called cancellation of removal, and third, Congress reenacted, or enacted a new judicial review provision which channeled judicial review, if it's to be had at all, to the courts of appeals.

The two amendments specifically dealing with criminal aliens that are relevant here is that Congress not only repealed the prior 1182(c), but rendered aggravated felons and in some cases other criminal aliens altogether ineligible for cancellation of removal, and secondly, Congress provided in section 1252(a)(2)(C) of the Act that no court, which includes both the court of appeals and the district court, shall have jurisdiction to remove... to review an order of removal entered against an alien who had committed one of the specified criminal offenses.

The theory was that an alien, just like a citizen, would have full access to the courts to contest the criminal conviction in the criminal proceedings, both direct review and collateral attack, but once that was done, the validity of the conviction was established, and therefore, with respect to access to the courts, there was really no further need to test the central basis on which the alien was to be removed.

Justice Kennedy: Could you just remind me, what happens if a collateral attack is underway and the Justice Department institutes deportation proceedings?

Mr. Kneedler: Unless and until the criminal conviction was set aside, it would be a conviction on which the removal order could be based.

Justice Kennedy: Suppose there were a very strong showing of deficiency in the conviction, a Brady violation, Gideon violation, would the collateral review court have the authority to stay the deportation?

Mr. Kneedler: I wouldn't think that would be true, but I think typically what would happen is the immigration judge would stay the removal proceedings.

I think that happens.

I'm aware of some cases where that has happened.

What the alien should do is...

Justice Kennedy: Suppose it didn't.

Would an Article III court have that authority?

Mr. Kneedler: There would be, I think, probably... I'm not certain about that, but there may be access to the court to stay the removal.

Ordinarily you couldn't go to the court of appeals on the direct...

Justice Kennedy: To which court, the collateral review court in the criminal proceeding?

Mr. Kneedler: No, I meant the... I meant the review in the immigration proceedings going to the court of appeals.

I'm not certain which avenue...

Justice Kennedy: Oh, but I thought there was no review...

Mr. Kneedler: Right.

There is... if the claim was... if the alien was in a position that the substantive ground for removal may be invalid, and that's... not the eligibility for discretionary relief, but the substantive ground of removal may be invalid because there's an ongoing collateral attack, then I... my assumption is that some court... first of all, I think the immigration court would stop it, or the BIA could prevent the proceedings from going forward, either one, or the Attorney General, but failing that, I'm confident that some court would probably have review.

I'm not sure whether... perhaps the collateral review court, although I'm not sure why that would be so, because it could be a State collateral proceeding that the alien was trying to have his conviction, State court conviction set aside in, and I wouldn't think that court would have any authority to enjoin a removal under Federal immigration law, so it may be that the alien could apply to the district director and perhaps...

Justice Kennedy: Mr. Kneedler...

Mr. Kneedler: seek a stay of removal in that way.

Justice Stevens: this suggestion, because Justice Kennedy poses a case that, you know, right on the brink of deciding that he's going to have his earlier conviction set aside.

What if he's just filed his habeas corpus petition in State court, and it's going to... on the docket, and it's going to sit there for 3 years before it's decided?

Would the immigration judge have authority to say, I think I want to wait to see what happens in that case?

Mr. Kneedler: Sure.

The immigration judge would have the authority to stay the proceedings.

That was the answer that I...

Justice Stevens: I see.

Mr. Kneedler: thought I was giving.

But the more fundamental point is, the alien wouldn't be removed until there was a final order of removal entered against him by the BIA.

If at that point the alien was saying, wait a minute, I'm seeking to have my criminal conviction set aside, don't execute the order of removal, while there may be an invalidity here, the alien could seek a stay of removal in the court of appeals, could move to reopen the proceedings...

Chief Justice Rehnquist: Well, what if the alien has already had a couple of habeas petitions challenging his criminal conviction, which have decided against him, he now gets a final order, and he says, well, I just filed a third habeas application?

Mr. Kneedler: The court of appeals would not be required to issue a stay of removal, but if it was the first... I was just addressing the question of power, not whether it should be...

Chief Justice Rehnquist: Well, yes, but ordinarily you don't need a habeas review or collateral review to establish the validity of a conviction.

Mr. Kneedler: That is...

Chief Justice Rehnquist: That's done on direct review, and when that judgment becomes final, the conviction is...

Mr. Kneedler: Right, no, absolutely, and I think as a general rule there would be no question.

I was just addressing there might, in an extreme case, be some cases...

Justice Kennedy: Well, if the court of appeals has authority to stay the removal in that case, why doesn't it have the authority to stay the removal here, when it says, I'm in a class of persons to whom this statute simply doesn't apply?

Mr. Kneedler: There's a fundamental difference between the case I think you were positing and this one.

That case had to do with the substantive ground for removability.

In other words, is the person removable for having committed an aggravated felony?

Here, the question is quite different.

As counsel for petitioners has said, petitioners concede that they are removable.

The only question here is whether the Attorney General properly denied...

Justice Scalia: They don't concede that they're removable any more.

They concede that they are removable but for the fact that the Attorney General didn't take the final step of exercising his discretion.

What's your response to that argument?

Mr. Kneedler: Well...

Justice Scalia: That they are not removable within the meaning of that statute because the last step hasn't been taken?

Mr. Kneedler: Well, the last step was taken.

There was a final order of removal entered against the aliens.

Justice Souter: No, but they're saying the last step is the exercise... they're saying, the statute that invests him with discretion still applies to my case.

He's not applying that statute.

He is categorically refusing to exercise discretion because he says he doesn't have it, and he's wrong.

Justice Breyer: That's what they mean by the last step.

Mr. Kneedler: Right.

If I could just give two responses to that.

The preclusion of review under 1252(a)(2)(C), which was set out at 106(a) of our certiorari petition, it refers to an alien who is removable by reason of having committed a criminal offense covered in certain sections of the Act.

The word removable doesn't stand alone there.

It is removable by reason of having committed an offense.

It is identifying the aliens who...

Justice Kennedy: But under your reading the statute is the same as if who is removable isn't even there.

There's kind of a missing pronoun.

It's awkward.

But you give no effect to who is removable.

Mr. Kneedler: Well, I think this would only...

Justice Kennedy: Because your position is, there's a final order of removal against an alien by reason of having committed a criminal offense.

That's your position, so under your position the who is removable has no force.

Mr. Kneedler: Well, it's identifying the subset of aliens against whom a final order has been entered, to whom this preclusion of review applies, and it's...

Justice Souter: Oh, but the statute identifies them by reference to what may be done to them.

I mean, I think I'm bothered by the same thing that Justice Kennedy is getting at.

The word removable refers not merely to their alien status, and not merely to their conviction.

It refers necessarily to a statute which makes them removable, and if, as you concede, they can challenge the alien status, they can challenge the fact of the conviction, why, by a parity of reasoning, may they not also challenge the fact that the statute that the Attorney General is operating under doesn't make them removable until discretion has been exercised?

How do you draw that line?

Mr. Kneedler: Well, this was a preclusion of review that was obviously intended to accomplish something, and petitioners...

Justice Souter: And their answer is, what it accomplished is, no more review of the exercise of discretion when the discretion is exercised.

Mr. Kneedler: That is not governed by paragraph (C).

That is governed by the preceding paragraph, 1252(a)(2)(B) on the same page, which independently bars any judgment regarding the granting of relief under certain specified sections, or any other decision that is vested in the discretion of the Attorney General, so that category of decisions that are... that petitioners are conceding is not even addressed by this provision.

This provision must mean something else, and we think it quite clearly encompasses denial of discretionary relief by the Attorney General, whether that denial is based on an exercise of discretion or the Attorney General's determination that Congress has not conferred on him the power to exercise discretion.

In either event, the alien has been denied relief that Congress has specified is discretionary, and as that...

Justice Breyer: What Justice Kennedy started out with, I thought, was that their claim here is, there is a section of a new statute, and that section doesn't apply, because it isn't retroactive.

Now, that's like saying, this Court doesn't have jurisdiction to adjudicate a claim under that section because it doesn't apply.

Now, maybe they're right, maybe they're wrong, but it sounds as if they're making a claim that is a claim of jurisdiction, or very similar to one, and how do you distinguish that very basic claim that there is no jurisdiction because there is no applicable law from the claims that you admit you could hear, which include, I am not the alien, I am not removable... you say in your brief they could hear whether the alien is removable, whether the ground of removal is one which precludes judicial review, whether the statute is unconstitutional, and whether the proceeding is fundamentally unfair.

All of those, you say, could be heard under this statute...

Mr. Kneedler: Because they...

Justice Breyer: and I want to know what is different about a claim, there is no jurisdiction because this whole section of the new statute simply doesn't apply.

Mr. Kneedler: Well, The Attorney General certainly has jurisdiction to decide whether to grant discretionary relief.

The Attorney General can decide that on a variety of factors, including the Attorney General's understanding of the statute, just as a discretionary determination to exercise prosecutorial discretion not to bring an administrative proceeding that was before this Court in Food and Nutrition Workers you could decide, the agency could decide not to bring the case because they didn't think the equities warranted it, or because of an interpretation of the statute.

That interpretation may be wrong, but when something... when Congress intends to vest something in the discretion of an administrative officer, that includes legal issues that may bear on the exercise of discretion...

Justice Ginsburg: And that includes saying you didn't intend us to have discretion?

That seems to me very odd.

If the question is, is there discretion, then how is it compatible with that scheme for the secretary to say, I'm going to determine as a matter of administrative fiat that there is no discretion.

Mr. Kneedler: No, what Congress has done is vest in the Attorney General of the United States the responsibility for interpreting and administering the immigration laws, and in section 1103, that this Court relied upon in the Ageri-Ageri case, this Court said that the Attorney General's interpretation of the immigration laws is controlling.

Congress... in other words, what Congress did with respect to the question at issue here was to vest the final determination whether to grant discretionary relief in the Attorney General, whether that is based on an interpretation of the statute, or the exercise of discretion, or sometimes a combination of the two.

Justice O'Connor: But this claim comes very close to being covered by the combination of the Heikkila and Accardi cases, which together indicate that the Constitution requires some kind of judicial review over a claim that an executive actor unlawfully failed to exercise any discretion.

Mr. Kneedler: Well, in Accardi, as Justice Scalia pointed out, it's difficult to figure out exactly on what basis jurisdiction was exercised in Accardi.

The Supreme Court... this Court...

Justice O'Connor: True, it didn't spell it out, but if you look at Heikkila and Accardi together, there's some indication of support for the position of your opposing counsel.

Mr. Kneedler: Well, one thing to bear in mind is that the petitioner in Accardi argued the case in terms of a due process violation.

What was alleged there was that the Attorney General had engaged in prejudgment and had deliberately subverted an administrative scheme for adjudicating discretionary applications, and the petitioner argued that that was a violation of due process.

Now, this Court subsequently has said in the University of Missouri, in 435 U.S., that Accardi did not state a rule of constitutional law binding on the States, so in light of subsequent understandings of what Accardi stood for, it would seem odd that if it didn't state a fundamental rule of constitutional law that is binding on the States, that it would nonetheless be the sort of thing that Congress would be compelled to provide judicial review of under the immigration laws.

I wanted to respond to two statutory questions, and then perhaps explore this point further.

Petitioners have relied on the Foti and Chadha cases with respect to the final order of removal being contingent upon the exercise of discretion, in those cases suspension of deportation.

That... the Court explored that, though, solely for purposes of deciding which court would, as a statutory matter, have jurisdiction over the particular claim there, and what the Court said is, sensibly it only... it makes sense for suspension of deportation claims to be heard in the courts of appeals because the Attorney General has chosen to adjudicate applications for suspension of deportation together with the substantive basis for deportation in one single proceeding.

But the Court made pretty clear in Foti that the Attorney General was not required to do that, and it would have been equally consistent with the Act for the Attorney General to determine whether to grant relief to particular aliens outside of the affirmative removal proceeding as a matter of discretion, maybe on a sort of certiorari jurisdiction to the Attorney General to decide at the close of the case whether to do that or not, and that remains the case under the current law.

Nothing in the Act requires that the Attorney General adjudicate an application for 1182(c) relief, or for cancellation of removal before entering a final order of removal.

The regulations provide that method of adjudication, but nothing in the Act does, and the question, I think, for purposes of whether judicial review is compelled is whether there is a statutory right, because after all, Congress has plenary power over immigration, over the jurisdiction of the lower Federal courts, and broad power over the fashioning of the writ of habeas corpus, as this Court said in Felker, and Congress could legitimately decide if there is not a statutory right to have an application for cancellation or 1182(c) relief adjudicated in a particular...

Justice Breyer: But there are five, five instances in this case in which, despite the language, you think Congress has decided to permit the very review that the language seems to forbid.

Mr. Kneedler: Well, but in this respect, what... with respect to whether the person is an alien, and with respect to whether he is removable...

Justice Breyer: Yes.

Mr. Kneedler: by reason of having committed an offense.

A reviewing court has to decide those questions in deciding whether the statutory preclusion...

Justice Breyer: Fine, then why wouldn't they also have to decide the question of whether they have jurisdiction at all because this major section of the new statute just doesn't apply?

Mr. Kneedler: For the reasons that I said, that... for the reason that I said, is that the Act does not require that.

All 1182(c) said is the Attorney General may admit an alien.

It doesn't say anything about what proceeding that will be held in.

Justice Ginsburg: If she... he exercised his discretion in a totally arbitrary way to say, admitting people, setting grace on people of one race or one religion, even so, that's just not reviewable?

Mr. Kneedler: Well, whether or not there would be... whether or not there would be a review of a constitutional claim we think would be a different matter.

For example, in Chadha, Chadha was a constitutional challenge to the statute governing suspension of deportation.

It may be that Congress would have intended that a constitutional challenge to the statute under which the Attorney General was granting or denying...

Justice Ginsburg: What about the argument that Congress never gave the Attorney General such authority?

We don't get to any grand constitutional issue, but discretion must be exercised reasonably.

Mr. Kneedler: Well, the... all the Act says is that the Attorney General may admit an alien and, with that sort of discretionary grant of authority, this Court has said in cases like Jay v. Boyd, and maybe five terms ago, I think it was, in the Yang case, that that is like the power of pardon.

It's a power of dispensation.

It is a power of the Attorney General to relieve an alien of the admitted consequences of an order of removal, to lift the consequence of removal and allow the alien to remain here.

It is a matter of grace, in no sense a matter of right.

Justice Ginsburg: But is the concept of abuse of discretion... his authority to exercise discretion, there's lots of discretion in Federal agencies, but there's also a concept of abuse of discretion, and you seem to be saying no, there isn't.

Mr. Kneedler: Well, not every situation in which someone, an administrative officer has been afforded a right to exercise discretion, is there judicial review of that.

I mean, this Court has on a number of occasions, like Heikkila v. Cheney, and like Food and Nutrition Workers, and with respect to the census, an issue of major magnitude, this Court held that there was no review of statutory questions or discretionary issues in that situation.

Justice Scalia: The refusal to grant a pardon, since you're analogizing this...

Mr. Kneedler: Yes.

to the pardon power.

I assume we wouldn't review the President's refusal to exercise the pardon power for abuse of discretion.

Absolutely, and this isn't to say that the Attorney General may not... or the President at some point may decline to exercise the pardon power for a reason that would be thought contrary to law, but that doesn't mean that the possibility of getting a pardon, or in this case a discretionary dispensation from removal, gives right to a personal right that the Constitution requires Congress to provide access to the courts to litigate.

And Congress enacted IIRIRA against the background of great frustration with the inability of the system to remove criminal aliens from the United States, and because of the potential for criminal aliens to tie up the courts in trying to stave off the removal.

This is an example of this in this very case, that these aliens unquestionably are removal... removable, have conceded it, and yet we are litigating a number of years later on the question of whether the...

Justice Stevens: May I just interrupt you, Mr. Kneedler, with this question.

They are unquestionably removable, and there's no right to discretion if your construction of the statute is right, but sort of in the background of this case is the question whether convictions obtained before the enactment of this statute have the same legal significance as convictions obtained afterwards, and am I correct in understanding that the Government's position is there's no way in which a Federal court can decide whether that's correct or not?

Mr. Kneedler: That is true, because again, what Congress has done has granted a discretionary authority to the Attorney General to decide whether to dispense with removal or not, and let me...

Justice Souter: What you are doing when you say that, it seems to me, is reading the words of the statute that says, removable by virtue of the criminal convictions and so on, to mean not removable, but to mean ordered removed by the Attorney General.

You are taking a statute that says removable, and you are reading it to say, ordered removed, thereby insulating the courts, or the alien from the possibility of challenging the correctness of the statute under which the Attorney General is acting.

Mr. Kneedler: Well, again, going back to the language of paragraph (c), there are two different clauses.

One says, review any final order, so that's the passage that deals with there having been an order entered, and then it says, against an alien who is removable by reason of having committed a criminal offense.

That is simply identifying which aliens, which ground of removal triggers the preclusion of review...

Justice Souter: No, but that's... no, but that's the question in the case.

Mr. Kneedler: No, the question...

Justice Souter: Is it doing anything other than identifying the kind of order by the Attorney General, or is it doing something more?

Is it saying, the Attorney General must be acting under a statute under which it is proper for him to make an order of removal without admitting any discretion.

Justice Kennedy: That's...

Mr. Kneedler: Well, I...

Justice Souter: That's the issue in the case.

Mr. Kneedler: Well, but again, I... removable does not stand alone.

It says, removable by reason of having committed the offense.

I think it does no more than identify the... if I could mention one other thing.

The word removable is defined in the Act, but for... this is in 8 U.S.C. 1229a(e)(2), which is not reproduced in the papers, but since the question was raised, it is part of the provision that deals with removal proceedings, and it says... now, again, it says in this section, meaning the section dealing with removal, and the next section, which deals with cancellation of removal, the statute says, the term removable means, in the case of an alien who hasn't been admitted, that the alien is inadmissable under 1182 of the Act, or, in the case of an alien admitted to the United States, such as the aliens here, that the alien is deportable under section 1227 of this title.

In other words, the term is meant to identify the substantive ground on removal that...

Justice Souter: Well, the term requires two things.

It requires a substantive ground.

It also requires a statute under which the substantive ground is sufficient by the Attorney General operating under the statute...

Mr. Kneedler: But a...

Justice Souter: and they're saying... they're not challenging the ground that says, I'm an alien, or the ground that says, I have a conviction.

They're challenging the Attorney General's operation under a statute that they say doesn't apply, and removable can cover that just as well as it can cover the substantive grounds relied upon for the removal.

Mr. Kneedler: But the paragraph (c) goes on to identify the specific statutory provisions that it is referring to, and they are all substantive grounds of removal.

They are not...

Justice Scalia: Nobody is removable by reason of that alone.

I mean, if you take removable in the broad sense to mean all of the conditions have been complied with to make the removal proper, if you take it in that broad sense, this provision makes no sense, because in that broad sense, nobody is removable solely by reason of having committed a criminal offense.

Mr. Kneedler: That's true.

I mean, as you pointed out, read expansively it could go to any question that might be thought to call into question the propriety of the Attorney General's action.

Justice Souter: So if Congress wanted to make that point, clearly, Congress would have said, anybody who is ordered removed by reason of being an alien with a criminal conviction.

That's not what Congress...

Mr. Kneedler: But it separately addresses that in the preceding line by saying, review of a final order, and then it's which final order, so I think it's already... I think Congress has already spoken to that question.

I...

Justice Ginsburg: Mr. Kneedler, may I ask you just to clarify what you... you say there are a number of categories where there is court review before the person is removed, and one of them is a substantial constitutional challenge to an aggravated felony, removal order.

I was trying to envision what such a challenge would be, given the tightness of the statute.

Mr. Kneedler: Well, I suppose there could be... we don't think it would fail, but I mean... we don't think it would succeed, but if there were some argument that it would be constitutionally impermissible to apply a ground of deportation to conduct that arose before the statute was passed, or that there was some sort of equal protection violation in singling out one ground of removal over another in providing a ground for removal, that could be a constitutional challenge to the statute under which the person is being ordered removed.

Justice Stevens: If you concede that, why couldn't the litigants in this case say, we make that constitutional argument and, secondly, we say you should construe the statute to avoid that constitutional question, so now we're in court...

Mr. Kneedler: They have not made a constitutional...

Justice Stevens: But if they did that, do you think we could then decide the question?

Mr. Kneedler: We... I think not.

I think that the... I think the only thing that could be done would be to challenge the constitutional ground of removal.

Congress... as we point out in our brief, the one thing that is clear from the legislative background of the passage of IIRIRA and AEDPA is that Congress wanted to expeditiously remove criminal aliens from the United States, and it regarded the entry of the judgment of conviction as a sufficient ground for doing so.

It did not want to provide... first, in our view, we believe Congress eliminated discretionary grounds for removal, but it surely would not have intended to have litigation over that.

Justice Stevens: Yes, but that's all perfectly clear with respect to convictions after the statute is passed, but the problem is, it's not quite as clear, as least, as to convictions before the statute was passed, and that's why we have the problem.

Mr. Kneedler: It is, but it wouldn't be at all surprising that in the climate in which Congress acted, what Congress wanted to do was to vest the final determination on questions such as that in the Attorney General.

As Justice Ginsburg pointed out, the Attorney General could have just decided, taking into account the recent legislative enactment, simply, even if the Act applied, to say, I'm not granting relief to anyone whom Congress has identified as an unworthy to remain here, and there's no question that that would be a permissible exercise of discretion, which shows that it can't be a fundamental right...

Justice Kennedy: Well, I have some question about that.

Mr. Kneedler: Well, this Court held in the Lopez case...

Justice Kennedy: I thought the Chennary case, which I never fully understood, says that if the exercise of discretion is committed to an official, the official must exercise that discretion in some instances.

Mr. Kneedler: Well, this is a statute... again, looking at the statute, in which Congress has given the power to the Attorney General, but unlike, for example, the asylum provision, the asylum provision says in section 208, the Attorney General shall establish a procedure for aliens to file applications for asylum, meaning that the Attorney General has to at least be in a position to receive an application and do something with it.

There is no such provision in this Act that requires the Attorney General to receive and consider a particular application for relief from deportation, just as there is nothing to require the President to actually entertain and pass upon an application for a pardon, and this Court said in Jay v. Boyd that this relief is to be regarded much as the application for a pardon to the President of the United States.

One final point I want to make clear is that, whatever else may be true with respect to judicial review, the court of appeals was certainly wrong to say that judicial review would be in the district court.

It would stand this Act on its head to suggest that criminal aliens whom Congress wanted to remove from the country with particular emphasis would be able to go to the district courts, get a level of review there, go to the court of appeals, and then perhaps to this Court.

Justice Ginsburg: Well, what was wrong with the court of appeals saying, if there's nothing else, there's always the general habeas, unless Congress says specifically... mentioning the statutory provision by number or name.

That essentially was the Second Circuit's position, was it not?

Mr. Kneedler: Well, there's no requirement that Congress, in order to channel all review to a court of appeals, has to specifically mention 2241, but...

Justice Ginsburg: Yes, but the answer... the Second Circuit was saying, we accept what the Government tells us, there's no review in the court of appeals, but Congress has not deleted the general habeas authority.

Mr. Kneedler: Congress did two things before IIRIRA was enacted in section 401(e), in a provision called, Elimination of Habeas Corpus, Congress repealed the prior provision for habeas corpus relief and secondly, in the provision enacted here, it channeled all review to the courts of appeals.

Rebuttal of Lucas Guttentag

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Mr. Guttentag, you have 4 minutes remaining.

Mr. Guttentag: Thank you.

I want to be clear that, under the statute, there's no final order of deportation until the application for discretionary relief is adjudicated.

That has been the case since these statutes were first enacted in 1917, when discretionary...

Justice Kennedy: Can you give me some authority for that proposition, either under the statute, or under our cases?

Mr. Guttentag: The Chadha case stands for that proposition, Your Honor.

The Foti case clearly stands for that proposition.

Justice Scalia: The Government says that those cases came out that way simply because the Attorney General had, as a discretionary matter, decided to determine the discretionary element together with the merits determination, so as a matter of fact, it happened to have been preceding the order of deportation, but that there was no legal requirement that that be the case.

Mr. Guttentag: There continues to be the case that the regulations require that, Your Honor.

There's no doubt about that, that the regulations require the immigration judge to adjudicate an application for relief.

That, in and of itself, is a duty.

Secondly, the cases do say that the final order is contingent on the determination, and this is not about the exercise...

Justice Scalia: Do you have a regulation number for that, or...

Mr. Guttentag: It's 212... it was 212e(b)(2), I believe, and it's currently also the regulation governing the current version of that, which is the cancellation of removal, and I'd be happy to provide it at the next case, if that's... that that final order... and I don't believe the Government would actually contend that under the statute as it's currently implemented, and as it has been since 1917, and under the regulations that govern, that a final order could be entered with the immigration judge or the Board of Immigration Appeals and the Attorney General simply say, I refuse to adjudicate your application for relief.

If the Attorney General determines that the individual is not legally eligible, then so be it, but that claim is reviewable.

If the Attorney General exercises discretion, then that is not reviewable, and we concede that.

The... what the... what this Court has said about the pardon analogy to the discretionary decision goes to the exercise of discretion.

That's very clear from the Jay v. Boyd case.

It's clear from the Yang case, Your Honor, where the exercise of discretion is not reviewable, but the question of whether the Attorney General has properly construed who is eligible, the Attorney General in this case has said that an entire class of individuals is ineligible because I determined that, Congress instructed me to apply this law retroactively.

Whether the statute applies retroactively or not is a question that the courts must decide.

That's what Landgraf said, and it's for Congress to legislate clearly and specifically what the temporal scope of the statute is, and that's not for the Attorney General to determine.

I also, in regard to the particular provision governing the review of discretionary decisions that Mr. Kneedler referred to, that refers to particular determinations there in the... that are in the discretion of the Attorney General.

For example, asylum claims remain reviewable, so it's clear that the preclusion provision here still would do a significant amount of work, and as far as the definition of what constitute... of what removable means, that definition does not specifically apply to the term in section 1252, in the judicial review provision.

It is a definition, but it does not specifically apply to what we have at issue here.

And finally, in terms of the Government arguing that the Attorney General could simply decide to deny any exercise of discretion, that is the Chennary principle, that the decision of the Attorney General must be, correct or not...

Chief Justice Rehnquist: Thank you, Mr. Guttentag.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Zadvydas v. Davis - Oral Argument

Fri, 09 Jan 2009 14:50:29 +0000

Case:

Zadvydas v. Davis

Media File:

99-7791_20010221-argument.mp3

Related Transcript:

2000_99_7791_argument.xml

Transcript:

Argument of Jay W. Stansell

Chief Justice Rehnquist: We'll hear argument now in Number 99-791, Kestutis Zadvydas v. The INS and John Ashcroft v. Kim Ho Ma.

Mr. Barnard.

Mr. Stansell: I'm sorry--

Chief Justice Rehnquist: Oh, I'm sorry.

Mr. Stansell: Mr. Stansell.

Mr. Chief Justice, and may it please the Court--

I'd first like to start by emphasizing three points to the Court, first that the Government's interpretation... the Government's... construction of the statute in this case is extreme.

It allows the INS to lock somebody up, potentially for life, just simply because their country of origin will not take them back.

Secondly, our clients are in no way challenging their orders of deportation, or the Government's plenary power to create categories to deport them, and to deport them.

They are simply asserting their Fifth Amendment right to liberty, which they retain until they are deported from this country.

And third, the Government has other alternatives in this case, in these cases.

They are not left unprotected.

The INS retains a substantial statutory and regulatory authority to supervise Mr. Ma and Mr. Zadvydas and those similarly situated.

In stark contrast to the Government's statutory construction, the circuit court suggested a reasonable construction of this statute that allows for the detention beyond the removal period for a reasonable time period.

This interpretation, this construction is consistent with the silence of the statute, which, as explained by the circuit court, invites the question of what time period are we talking about.

The Government would seek a time period of "indefinitely", that word to be read into the statute.

Chief Justice Rehnquist: We're talking about the language,

"may be detained beyond the removal period? "

Mr. Stansell: That's correct, Your Honor, and what Congress has not done is specify how long beyond the... how long, following that, Mr. Chief Justice, they would intend to detain.

Justice O'Connor: Well, do you think that some reasonable period of time is permitted under that language?

Mr. Stansell: Yes, I do, Your Honor.

I think the Court's... or the circuit court's construction is entirely consistent with the historical treatment.

Justice O'Connor: Which circuit court?

Mr. Stansell: I'm--

Justice O'Connor: Are you talking about the Fifth or the Ninth?

Mr. Stansell: --I'm sorry, I'm talking about the Ninth Circuit Court of Appeals.

I'm referring specifically to the Ninth Circuit's decision dealing purely with the statutory construction issue and putting a reasonable construction on the statute that avoids the constitutional issue.

Chief Justice Rehnquist: What about the construction that the INS has put on it?

Isn't that entitled to some deference under our Chevron rules?

Mr. Stansell: Well, Mr. Chief Justice, the Chevron deference simply doesn't apply when you're applying the constitutional avoidance doctrine, because I believe that agencies are not... while they may have expertise at interpreting their own statute, they don't necessarily have expertise in interpreting the Constitution, and even most recently this past term this Court in Solid Waste Agency of Northern Cook County did not grant Chevron deference when there was a constitutional problem indicated.

Justice Scalia: Mr. Stansell, what do you mean by a reasonable time?

Do you mean there's an absolute time limit?

I guess the Government here would say that they're not holding them beyond a reasonable time, that the time that is reasonable is the time that is necessary to protect the public from depredations by these people, who are deportable because they've committed crimes.

Mr. Stansell: Well, Your Honor, the circuit court did not specifically define what is a reasonable time period.

I think our position would be--

Justice Scalia: You mean an absolute time limit at some point, don't you?

Mr. Stansell: --Your Honor, our position would be if it's not reasonably perceivable, if deportation is not perceivable, there's not some objective fact that they can point to that this individual is going to be deported, then holding that person beyond that period would not be a reasonable time.

Justice Scalia: So even if you're talking about, you know, a real life Hannibal what's his name, you know, a really wicked, evil person who is going to harm people, there's every reason to believe that this person who's been deported because of serial murders, if you can't find a country to send him to, you have to let that person out?

Mr. Stansell: That's correct, Your Honor, and that's what we do with any other person, and that's the appropriate term here, any other person who has finished their prison time and--

Justice Scalia: Well, any other person is entitled to be in the United States.

Would it be unconstitutional for the law on its face, when aliens are admitted, to say that you are admitted to this country only on the condition of good behavior, and that that permission will be terminated if you commit a felony, and upon its termination, it is up to you to find a country to get sent back to.

The burden is not on us, and if you can't find a country, you're not going to be allowed into the public in this country, where you have not been given any permission to be?

Why is that unreasonable?

Mr. Stansell: --Well, Your Honor, the first part of your hypothetical I think is essentially what the law is.

Justice Scalia: I know.

I'm just spelling it out more explicitly, that the condition of your admission is this should you commit a felony, your permission to be among the general public in the United States is terminated and--

Mr. Stansell: Your Honor, I--

Justice Scalia: --And we will send you back to whatever country you can find that will take you, but if no country will take you, you will not be allowed into the general populace.

That permission has not been given, period.

Mr. Stansell: --Your Honor, I think because the Constitution has the paramount... is the paramount authority under which all statutes have to be gauged, I think that the last portion of your hypothetical would be unconstitutional.

Everyone retains the right to liberty once they've entered our shores, once they pass through our gates.

Chief Justice Rehnquist: Well, the Government says here that Mr. Kestutis is in the same position as someone, as an entering alien, who we've said has virtually no constitutional rights.

Mr. Stansell: Mr. Chief Justice, the... I think you're referring to the Mezei decision and--

Chief Justice Rehnquist: Yes.

Mr. Stansell: --the Mezei decision is a unique and very distinguishable case on its facts.

It involved an individual coming to the border, seeking entry, not bringing any constitutional rights, and it involved an individual who was also ordered excluded on public safety or national security grounds, and it also came at a time prior to the Court's development of its jurisprudence on some sort of due process in the civil detention scheme.

Chief Justice Rehnquist: Well, I... we've never overruled the Mezei case.

Mr. Stansell: That--

Chief Justice Rehnquist: We've never questioned it so far as I know.

Mr. Stansell: --Mr. Chief Justice, that's entirely correct, but what's important is that on the other hand Mezei never questioned the general rule that it was setting out the narrow delineated exception for--

Chief Justice Rehnquist: Well--

Mr. Stansell: --and that general rule is that once an alien has passed through our gates, and it is more or less a direct quote, has passed through our gates, even illegally, they're entitled to the protections of the Fifth Amendment.

Chief Justice Rehnquist: --You're saying, then, that even though an alien obtains admission to this country illegally, that he's fully protected by our Constitution?

Mr. Stansell: Yes, I am, Your Honor.

Chief Justice Rehnquist: Well, but protected in what sense?

Mr. Stansell: Well, Mr. Chief Justice, he's protected... certainly protected as to his liberty interests, his interest in being free from bodily restraint is protected coequal with--

Chief Justice Rehnquist: You mean, he couldn't be picked up by the immigration authorities and detained because he's there illegally?

Mr. Stansell: --Mr. Chief Justice, that is a distinct form of detention that's separate from what... the indefinite post final order detention that we are talking about.

Chief Justice Rehnquist: Yes, but will you... answer my question, if you will.

Mr. Stansell: Mr. Chief Justice, I think, you know, I perhaps misspoke, that, of course, the Government has countervailing interests that they can detain any individual for a number of reasons.

It's been recognized by this Court that detention pending deportation proceedings is one of those circumstances, and this Court's decision in Carlson supports that.

What this Court has never done is taken this a step further and essentially condoned what could be lifetime detention for individuals who have in hand their full Fifth Amendment protections, and I would want to emphasize that Mr. Ma and Mr. Zadvydas today are substantially constrained.

Their liberty interests are not the same currently.

They're both out in the world.

Justice O'Connor: They're both out, aren't they, and under certain terms and conditions?

What's the situation?

Mr. Stansell: That's exactly correct.

There are broad statutory and regulatory provisions that INS can impose on them in terms of travel restrictions, in terms of whether or not they're going to be allowed to work, in terms of having to submit to psychiatric and medical evaluations and just, you know... and just contact with the INS.

They could be required to report every day to the INS.

Justice O'Connor: There are new, proposed regulations dealing with this subject.

Is that correct?

Mr. Stansell: That is correct, Your Honor.

Justice O'Connor: And is there some opportunity for judicial review after a period of time under the proposed new regulations, do you know?

Mr. Stansell: Your Honor, I believe the judicial review... there's nothing inherent in the regulations themselves that allow for judicial review.

I think if there were--

Justice O'Connor: Nothing expressed?

Mr. Stansell: --That's correct.

That's my understanding of the regulations.

I think if somebody were--

Justice O'Connor: And both these cases are here on habeas--

Mr. Stansell: --That's correct.

Justice O'Connor: --proceedings?

Mr. Stansell: 2241 is the jurisdiction here.

Justice Scalia: Mr. Stansell, what if... these people are deportable because of committing felonies, right?

What if the punishment for the felony were life in prison?

That, I assume, would not be unconstitutional?

Mr. Stansell: That's correct, Your Honor.

Justice Scalia: Then why is it unconstitutional to say to an immigrant, if you commit a felony, we're not going to put you in prison for life, but we are simply not going to let you back into the general populace, and we will deport you if you can find a place to be deported to, but otherwise you will be held under house arrest, not punitive, but you will not be allowed into the general population?

Why is that lesser punishment, if you consider it that, although it really isn't punishment, it's... you know, that was the deal.

Why is that lesser sanction unconstitutional, whereas sending the felon to jail for life and punitive treatment for life would not be unconstitutional?

Mr. Stansell: Well, Your Honor, it... the hypothetical you lay out would allow somebody through the administrative action of an administrative agency to be put in... to be incarcerated for life, and this Court has never condoned such an extreme civil detention process.

Justice Souter: Well, would you change the hypothetical, then, slightly and say that there is a provision of the United States Code that anyone who is convicted of a... anyone in the immigrant status who is convicted of a felony in the United States will be punished by imprisonment up to life, and the sentence in fact can be terminated upon deportation, if deportation is possible?

No administrative imposition here.

The imposition would be by a court at sentencing.

Mr. Stansell: That would be a different case, Your Honor, and I'm not sure--

Justice Souter: Would that be constitutional?

Mr. Stansell: --what the constitutional rule would be.

What's at issue here is whether the detention is excessive in relationship to the legitimate Government interest, and the legitimate Government interest--

Justice Souter: Well, but that would be the... I presume that would be the issue under the hypothetical that I've raised, so would... on my variation of the hypo, would it be unconstitutional for the Government to imprison?

Mr. Stansell: --If it was with a judge and a jury and the right to indictment and the grand jury--

Justice Souter: Determination of immigrant status is made by a jury.

All the facts are found as a jury needs to find them.

Justice Stevens: In your view, would it make any difference whether such a law was passed before or after the alien entered the country?

Mr. Stansell: --I'm not sure what I would... how I'd answer that, Your Honor.

Justice Stevens: You don't think they'd be entitled to notice that that was the consequence of coming into the United States?

Mr. Stansell: Well, you know, I think it raises a number of different issues, but what's at the heart of this is the fact that Mr. Ma and Mr. Zadvydas, when they entered the country, they were cloaked with the Constitution, and this Court has delineated a very narrow exception in Mezei, an exception that recognized the general rule set out in Wong Wing in 1896 that has stood... that withstood, has withstood this test of time and has been cited by this Court in modern cases.

That general rule remains, and all they are asking for in this case, and the substantive due process claim here, is simply to ask INS to take into consideration the fundamental aspect that is really driving these cases, the fact that people are locked up for life.

If they considered that and weighed that and balanced that against the other interests, then it would be... it would pass--

Justice Ginsburg: Okay--

--That's not the Ninth Circuit rule, though.

The Ninth Circuit rule was, if you can't, within the reasonably foreseeable future, deport this person because no one will have him--

Mr. Stansell: --That's correct, Your Honor.

Justice Ginsburg: --then you must... that's the Ninth Circuit rule.

I think what you were saying, urging just now, is something different from that rule.

Mr. Stansell: Your Honor, I was speaking to the constitutional test that we think is driven by this Court's civil detention cases.

Justice Souter: Okay, but let's apply it.

I mean, would you go back to Justice Scalia's hypothetical with my variation and Justice Stevens' gloss--

Unknown Speaker: [Laughter]

Justice Souter: --and let's assume that the statute providing for the... for potential life imprisonment subject to deportation was in place at the time that a given immigrant was admitted.

On that assumption, would it be... would the sentencing scheme be constitutional?

Mr. Stansell: Your Honor, if somebody came into this country and they were told that if you commit an offense as an alien you'll be sentenced to potentially for life... and currently I think the Government does have the power to allow, or to move people out of the country, deport them prior to the completion of their sentence.

If it were a criminal--

Justice Souter: Sure, but we're... the problem is, maybe the Government isn't able to deport.

Maybe the current situation occurs in the instance of the hypothetical with its glosses.

In that circumstance, in your view, is it constitutional for the Government to imprison up to life?

Mr. Stansell: --Your Honor, if it's just a straight imposition of a life sentence, I think that would implicate--

Justice Souter: No, it's the imposition of the sentence that I described.

Mr. Stansell: --I'm sorry, Your Honor, I'm missing the connection.

Justice Souter: The sentencing scheme which is in place when the immigrant is admitted provides that in the case of conviction for a felony by such an immigrant, the immigrant may be imprisonment... may be imprisoned for a period up to life, provided that that term may be reduced if it is possible for the Government to extradite, and does... not extradite, deport, and does successfully deport.

Would that scheme, if in place when the immigrant comes in, be constitutionally enforceable?

Mr. Stansell: Your Honor, I'm not sure.

It strikes me that that raises other issues that aren't raised in this case, and all we are saying in this case is that where no consideration is given to the foreseeability of deportation, and it's not a criminal charge and a criminal sentence that any of these people are serving, it's unconstitutional, and that's what's informing--

Justice Ginsburg: Would you say there's something... that it might be something different, is that a little bit like Plyler, that you would take one category of people who commit the same offense and subject them to much harsher punishment than another class?

Mr. Stansell: --I think that might be.

I think there might be an equal protection issue that's raised, and quite frankly I hadn't thought about that question.

Justice Souter: Well the... but the Government's... I mean, if it comes to justification, the Government's justification is going to be essentially what we have heard here, and that is that it is demonstrably more difficult to keep track of such individuals so that they may be deported if, in fact, it is possible to deport them, and number 2, the recidivism rate by such individuals is distinctly higher than the recidivism rate in the generally released criminal population, so those would be the two justifications for the disparate treatment.

Would those justifications be constitutionally adequate?

Mr. Stansell: I don't think so, Your Honor, and I think that the surveys that the Government relies upon had a much broader sweep to them.

I don't think these individuals that we've represented, who are in custody by INS, seeming like they're in custody for life, and they get a district court order to release, are doing quite well, by and large, because they think that their next mishap will put them in custody for life.

There's no indication that Mr. Zadvydas or Mr. Ma at this point are doing anything other than staying in touch and responding, complying with all of the conditions of their supervision.

Justice Scalia: Don't appeal to the sanction that you're challenging here.

I mean, you're saying they're doing well because they know if they go back in they're going to be there for life.

You want to eliminate that sanction, so I mean--

Unknown Speaker: [Laughter]

Mr. Stansell: That's correct.

Justice Scalia: Well--

Mr. Stansell: There's no doubt about that.

Justice Scalia: --It's not fair to rely on it, then.

Unknown Speaker: [Laughter]

Justice Ginsburg: These people were, both of them... your client was how old when--

Mr. Stansell: He was 7 years old when he entered the country, and he's lived here his entire life.

He's 23 years old now.

Justice Ginsburg: --So any kind of notice would have to be imputed to the infant from the parents.

Mr. Stansell: That's correct.

If we were... dealing with the hypothetical we've been talking about, Your Honor?

Yes.

You know, all of these people are on notice that they need to comply with the immigration laws, and they have no doubt, and they are not challenging in any way the Government's power to deport them, or the circumstances under which they can be deported.

What they are just asking for is their right to be free from bodily restraint pending that deportation.

May it please the Court, I'd like to reserve the remainder of my time.

Argument of Robert F. Barnard

Chief Justice Rehnquist: Very well, Mr. Stansell.

Mr. Barnard, we'll hear from you.

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

Four and a half decades ago Mr. Zadvydas came to this country as a stateless person.

He's stateless today, and in all probability he will remain that way for the rest of his life.

Because of this, the Government was unable to deport him.

Chief Justice Rehnquist: Are there no ongoing negotiations... I got the impression from the briefs that there had been efforts both to Lithuania and some other country, and neither of them had presently admitted him, but that it was not regarded as completely hopeless.

Mr. Barnard: Your Honor, as a factual matter, the only thing that has happened in the last 2 years that I know of is that Mr. Zadvydas wrote a letter to the consulate in Chicago seeking some citizenship papers, or granting him citizenship, and other than that nothing has happened in the last 2 years.

At issue in this case, the constitutional issue in this case, is that people who enter this country are regarded as persons under the Constitution once they enter.

That is the rule that pertains.

The exception to that rule is a very narrow exception which is called the entry fiction, which is applied to people who are detained or interdicted at the border, and what the Government is proposing here is to have the exception swallow the rule.

They go even a step further by relying on the Mezei case, which is even more unique than the way the entry fiction is usually employed.

In Mezei--

Justice Scalia: Excuse me.

They... are they really going that far?

I don't think they are.

I think they're acknowledging that these individuals have to be released if there's no threat to the general public from them and if there's no doubt that they can be... that they won't flee, and they can be found and deported if and when a country can be found to send them to.

The Government acknowledges all of that, and under Mezei you wouldn't have to let these people out at all, even if you knew that they wouldn't flee, and even if you knew that they might possibly pose a threat to the public, isn't that right?

That's how I understand Mezei.

Mr. Barnard: --Well--

Justice Scalia: So they're not going as far as extending Mezei to these people entirely.

Mr. Barnard: --Well, I think they are, but as far as the constitutional deprivation that's being imposed here, they're confining people indefinitely, potentially for life, based on a finding of dangerousness and/or a finding of a flight risk, and--

Justice Scalia: There have to be those findings, and in Mezei there don't have to be those findings.

Mr. Barnard: --But all other persons in this country can be released if the detention is based solely on dangerousness, and so they're treating--

Justice Scalia: They're treating them differently--

Mr. Barnard: --Differently than the rest of the people in this country--

Justice Scalia: --Right.

Mr. Barnard: --which is why they are extending Mezei--

Justice Scalia: I understand--

Mr. Barnard: --and Mezei is--

Justice Scalia: --They're extending it, but I think it goes too far to say that the exception has swallowed the rule and that they're just covering everybody with the Mezei rule.

I think this rule is a good deal more limited than Mezei.

Mr. Barnard: --This Court in Plasencia had someone who was much more analogous to the person in Mezei.

Mezei left the country, tried to return.

In Plasencia, the lady involved in that case left and tried to return, and this Court did not see a need to extend Mezei in that situation, in fact, accorded Ms. Plasencia her due process rights, and that's essentially all that we're asking here for--

Chief Justice Rehnquist: Yes, but she hadn't committed any felony.

Mr. Barnard: --She was in the process of committing a crime when she entered the country, Your Honor.

Chief Justice Rehnquist: Well, but your clients have committed independent felonies.

Mr. Barnard: Yes, and I would get back to the point I made a moment ago, which is that they're being treated differently than any other class of persons under the Constitution in this country.

We're now not according them the same degree of constitutional rights we would some else.

Chief Justice Rehnquist: Well, but I don't think the Constitution requires you to treat people who have done particular things the same way as people who have not done those things.

Mr. Barnard: But what we're saying, Your Honor, is, if you take another person in this country who has a felony conviction, and he's determined to be dangerous, but only dangerous and not some other element, not the other element that we find in Kansas v. Hendricks, a mental abnormality, simply dangerous like the individual in Foucha, that person would be entitled to release.

Chief Justice Rehnquist: But that person is not an alien, and the Government has much more power over aliens than it does over citizens.

Mr. Barnard: Which is another reason, perhaps, that release would be more called for in this instance, because the Court... the Government is not without recourse with aliens if they violate their terms of supervision.

We're not asking for Mr. Ma and Mr. Zadvydas to have the same freedom that a citizen would have.

They would be under supervision.

If they violated the terms of that supervision they could be punished for up to 1 year for failing to abide by the terms of the supervision, and they could be punished up to 10 years if that misbehavior was seen as obstructing the actual deportation process.

Justice Kennedy: Can they be detained, under your view, for a reasonable time after the 90 day period?

Mr. Barnard: Yes, Your Honor.

I believe the test, the civil and regulatory detention test had a weighing analysis built into them.

Justice Kennedy: All right.

In determining the reasonableness of the more lengthy detention period, do we take into account the fact that there are review procedures, and that the Government under its regulations has to give periodic review?

Mr. Barnard: Yes, I believe you would take that into the consideration.

Justice Kennedy: That's part of the reasonableness--

Mr. Barnard: Yes, Your Honor.

Justice Kennedy: --calculation.

Mr. Barnard: But--

Justice Kennedy: Well, are not those periodic review procedures in place now because of the regulations?

Mr. Barnard: --Well, they're in place, but all they're really considering are dangerousness and flight risk.

The Government contended in its brief that the newest regulation which is now in effect--

Justice Kennedy: Well, but that's the basis... that's the rationale for the detention.

Mr. Barnard: --I understand that, Your Honor, but... and that's the position of Mr. Ma and Mr. Zadvydas, is that the way the regulation is constructed, it violates a basic... the basic right to substantive due process.

Justice Kennedy: So you say they can be held for a reasonable period of time, but that an element of the detention is not the fact that they're a danger to the community.

Mr. Barnard: Well, that's one of the elements, Your Honor, but--

Justice Kennedy: It is or is not one of the elements?

Mr. Barnard: --It is one of the elements to be considered, but--

Justice Kennedy: Well, if it's one of the elements to be considered, and there's a periodic review, then why isn't that reasonable under the definition we're discussing?

Mr. Barnard: --Because it doesn't consider the likelihood of deportation or the duration of detention, Your Honor.

People are being detained solely because either they're a flight risk and/or they're a danger, so--

Justice Kennedy: So you could detain a person for, say, 6 extra months because he's dangerous, but not after that, or a year?

Mr. Barnard: --Well, you could detain him for a reasonable period.

I don't have an exact time period or bright line test.

Justice Kennedy: If the reason for the detention continues, I don't understand the basis on which you say that you're entitled to release.

Mr. Barnard: Well--

Justice Kennedy: Either they can't detain him for any period at all because he's dangerous, or they can detain him during the period that he's dangerous, it seems to me, and you're somehow splitting the difference.

I don't understand how you do that.

Mr. Barnard: --What we're saying is, Your Honor, that if you found someone to be dangerous... and the Ninth Circuit says in its opinion that it would depend on the circumstances of each case.

If someone had a shoplifting conviction and they were detained for 90 days, or 120 days, and it wasn't reasonably foreseeable they'd be deported, perhaps that would be a reasonable period to release them, but if someone had a more serious conviction, I believe a district court could hold them somewhat longer.

But if you're asking for a time period, I would suggest that the traditional time periods when the statute was silent... the 1970 statute, it was 2 to 4 months, the statute in the fifties was 6 months... and that would be a guidepost, but at some point you could not detain them beyond that, because the person is being held merely based on the fact that he's dangerous, and he's being treated in a manner that is different than any other person in this country.

We don't have one set of constitutional rules for citizens and another set for--

Justice Kennedy: Under your view, it seems to me that you cannot detain him for even 1 day on the grounds that he's a danger to the community, after the 90 day period--

Mr. Barnard: --Well, I believe the--

Justice Kennedy: --and I just don't think you've explained that.

Mr. Barnard: --Well, I believe the Ninth Circuit said it would depend on the circumstances of each case, and the example I would give is the one I just did, that--

Justice Ginsburg: Mr. Barnard--

Justice Scalia: --If you're appealing to the proposition that you just said you were appealing to, that you can't treat aliens any different from American citizens in this regard, then you... Justice Kennedy has to be right.

You shouldn't be able to hold him for any period just because you're worried that he'll commit another crime.

I mean, surely that's the way we treat citizens.

You can't hold a citizen in jail because you're worried he's going to commit a crime.

Mr. Barnard: --Well, Your Honor--

Justice Scalia: So you have to be appealing to something a little less than the proposition that you have to treat aliens like citizens.

Mr. Barnard: --Well, Your Honor, we would submit that the Government is not without recourse in these situations.

If you have someone that is truly more dangerous, someone like a Hendricks in Kansas v. Hendricks, there would be nothing preventing the Government from having the State they're located in instituting civil--

Justice Ginsburg: Mr. Barnard, may I just interrupt you there, because I think that you are now departing from what you said you were adhering to.

I think the Ninth Circuit said there are two factors here, and one of them is, can this person be deported within a reasonably foreseeable time?

Once you're sure that the answer to that question is no, that's the end of the inquiry.

I don't think that they were making any determination based on... what they said is, people serve their time, we let them out.

We don't take into account how dangerous they are in any other setting.

Therefore, the only legitimate consideration is, does the Government have a reasonable expectation that they would be able to find a place to accept this person.

Once it's clear that that's not in the cards, then it isn't... at least the Ninth Circuit view is, it doesn't depend upon how dangerous this person is.

Am I right in understanding that?

Mr. Barnard: --All that I can say in answer to your question, Your Honor, is that the Ninth Circuit did say that there could be a period after that, depending on the circumstances of the case, and that's my recollection.

Justice Ginsburg: I thought one part of the opinion said, if you know that there is no hope of finding somebody to take him, you have to let him out at the end of the 90 day period.

Mr. Barnard: I think the opinion is somewhat self contradictory, but I do recall there was language in there that you could hold them for some period after that time.

Justice Ginsburg: For what purpose, and the purpose was--

Mr. Barnard: To determine if it would... if there was--

Justice Ginsburg: --If there's somebody that could take him.

Mr. Barnard: --If it was reasonably foreseeable that they would be removed, and I think your question comes down to what is reasonable, or what is reasonably foreseeable, and it may vary a little bit from someone who is extremely dangerous to someone who is a shoplifter, but it would not be a lengthy period of time.

Justice Scalia: Mr. Barnard, wouldn't the foreseeability be considerably affected by the rule that you're urging upon us?

If I were the minister of interior, whoever is responsible for making these determinations in the Federal Republic of Germany, let us say, and the United States wants to send back the person that they say is a German citizen, who is obviously a bad actor and he's committed a lot of crimes, and that fits the description of at least one of the two here, I would not be very much inclined to say, oh yes, he is a German citizen, send him back.

Now, I might be inclined to do that if I knew that the poor devil is not going to be allowed into the general population, that his choice is to be kept in detention in the United States.

You're loading the dice against anybody being willing to take back bad actors.

Why should they do it?

The consequence of not taking them back is, they'll just be released in the general public in the United States instead of in the Federal Republic of Germany.

Mr. Barnard: Well, Your Honor, I believe the statute has some other provisions which were noted in the briefs where we can withhold visas, or take actions of that nature.

Justice Scalia: I'm talking about the impact upon the foreign countries that we are trying to extradite these people to, or deport these people to.

It has to have an effect upon them if they know that the effect of their saying no is really not very much hardship on the individual that's involved.

Mr. Barnard: Well, Your Honor, I would just point out that in every immigration case there's another country involved, but we don't go to the extent of violating a person's rights to further the immigration... and the two examples would be Wong Wing and Witkovich.

There were other countries involved in those cases, and not only did this Court reach the constitutional issue, but resolved it in the alien's favor.

So if there were some attenuated foreign policy interest there, I would say that this Court in previous cases has not allowed that--

Justice Scalia: I also assume that one of the things that induces these foreign countries to take them back is lobbying and pressure from the individual himself and from his family, and they have a great incentive to do that if the consequence of Germany's not taking him back is that he's going to remain under restriction, as here, but if that is not the case, what incentive in the world would they have to induce the Federal Republic of Germany to take him back?

If they don't take him back, he will have achieved exactly what he wants, which is to stay in the United States.

Mr. Barnard: --Yes, Your Honor.

Again, this Court just has not allowed the attenuated interest to determine the constitutional question in cases where... it's always going to be present in the case with an immigrant, because there's always going to be another country, even--

Justice Stevens: May I ask, just as a matter of clarification, if this... if your client were a German citizen, would Germany have the option to take him or let him stay here, or would they not be obligated to take him?

Mr. Barnard: --I think under the reduction convention they do not have to take him back, but I'm... obviously--

Justice Stevens: Yes.

So really the question whether he gets back or not depends on whether he's a citizen of the country that they want to deport him to.

Mr. Barnard: --If he's stateless, which my client is, there's a special--

Justice Scalia: They can define him to be a citizen or not to be a citizen.

I mean, that's a judgment to be made by the authorities in Germany.

Mr. Barnard: --Well, if they find him not to be a citizen, if they find him to be stateless they don't have to take him back.

Justice Stevens: Well, you're not assuming that the Germans just do this willy nilly, and they don't have rules that decide whether these people are citizens or not.

Mr. Barnard: That's correct.

Justice Stevens: I assume he either is or he isn't, under the law of that country.

Mr. Barnard: Well, I--

Justice Ginsburg: If he is with a country with whom we have an expatriation treaty, then there isn't any discretion on that country's side, any more than there would be on our side in the reverse situation, so you're talking about countries with which we have no agreement.

Mr. Barnard: --Or the person's status is--

Justice Ginsburg: Is stateless.

Mr. Barnard: --Stateless, yes.

Justice O'Connor: Mr. Barnard--

Justice Scalia: --But status depends upon a lot of facts that require to be determined and which may be disputed, which is the case in at least one of these two cases, the facts of how long he was in that country, or what his ancestry was, and so forth.

There are always those disputes, or there are often those disputes.

Mr. Barnard: Well, it gets back to what is reasonable and I would just suggest to the Court that the Government at this point is somewhat less than sanguine that he's going to be taken anywhere, because the only effort that's been made in the last 2 years is to have him send a letter, so he is now, the State Department negotiating with countries.

Justice O'Connor: Mr. Barnard, would you be making your same argument and seeking release if the Government were holding someone like your client in a detention center as opposed to a prison facility, or were ordered to remain in his own house and not leave it?

Mr. Barnard: I would not be making the same argument if it was a house, if there was electronic monitoring, if it was a halfway house.

Justice O'Connor: How about a detention center of some kind, as opposed to a prison?

Mr. Barnard: I think that would turn on the condition--

Justice O'Connor: Where it's not a criminal facility.

Mr. Barnard: --Well, I think it would turn on the conditions of detention centers, and being a criminal lawyer--

Justice O'Connor: But that would be a very different question--

Mr. Barnard: --Well--

Justice O'Connor: --conditions.

Mr. Barnard: --Well, being a criminal lawyer, I've never seen one that looked particularly appealing to the average person, so I just can't imagine that that would be the case.

Getting back to some other aspects of Mezei, which I did want to bring the Court's attention... I see my time is almost up.

I would point out that the Government's theory in this case is that once the deportation order becomes final, the individuals are stripped of their constitutional rights.

Both in Wong Wing and Witkovich deportation orders were final and the individuals were not stripped of their constitutional rights.

In fact, this Court reached those issues and decided in favor of the alien.

I would also point out that Mezei really should be limited to its unique set of facts.

I mean, there were all kinds of national security concerns at play in that case, which are not at all determinative in either Mr. Ma's and Mr. Zadvydas--

Chief Justice Rehnquist: Well, aren't national security concerns always at stake when we're talking about immigration policy?

Mr. Barnard: --I don't think so, Your Honor.

I don't think in Wong Wing national security was at issue.

He was just being removed because he was here illegally.

Chief Justice Rehnquist: Well, but the whole idea of control of the borders is based on national security.

Mr. Barnard: No, that's national sovereignty I think you're referring to, Your Honor.

I'm referring to the fact that Mr. Mezei conducted himself in such a way to raise suspicion, as if he were, say, a spy for the Soviet Union.

That's the national security issue that I'm referring to.

If there are no further questions, I think I'll reserve time for rebuttal.

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Very well, Mr. Barnard.

Mr. Kneedler, we'll hear from you.

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

Congress in the exercise of its plenary authority over immigration enacted section 1231(a)(6) in 196... 1996 to afford the Attorney General the authority to detain dangerous criminal aliens beyond the 90 day removal period if they cannot be removed to their countries of nationality or to some other country during that 90 day period.

That enactment was the culmination of measures beginning in 1988 by which Congress sought to address what had become the serious problem of criminal aliens within the United States.

It was enacted against a background of information in 1996 in particular, about both the high rate of recidivism among criminal aliens as well as the very high rate of flight among aliens who are released.

Justice Stevens: Mr. Kneedler, may I ask just one question--

Mr. Kneedler: Yes.

Justice Stevens: --on that point?

Does your case, your submission depend on an assumption that these people are more dangerous than citizens who have committed precisely the same crime?

Mr. Kneedler: It does not, no, but what I... the important element, though, is that future dangerousness is a legitimate basis on which to detain someone.

Under this Court's civil commitment cases, and this does not remotely resemble civil commitment because it's an exercise of Congress' plenary power over immigration, but one of the bases on which someone may be civilly committed is their potential dangerousness.

Now, the Court--

Justice Souter: That is not a--

Justice Ginsburg: --There's always a plus.

I mean, this case is different from that, because now you're relying on future dangerousness, period.

Mr. Kneedler: --No.

That's--

Justice Ginsburg: Not mental abnormality, not a short time until trial.

This is really a first, and I don't think you mean to walk away from that, so it's not like Salerno, and it's not like Hendricks.

Mr. Kneedler: --No, it is in this important respect, and I think this is a critical factor to understanding this case.

What the Court said in Hendricks, for example, is that in the civil commitment cases the Court has said it's dangerousness plus some other factor, such as mental illness.

Here we have a critical other factor, in addition to dangerousness, and that is that both Mr. Ma and Mr. Zadvydas in this case had had their right to remain in this country extinguished.

Justice Breyer: That's the question.

Mr. Kneedler: Pardon me?

Justice Breyer: That's the question.

We agree it's a civil statute.

How many days after the 90 in these two cases would you say that there is a factor involved of not knowing whether you could find a country for them?

Mr. Kneedler: In our submission the detention of the aliens is reasonably related to the basis for detention, as long as there is a basis for concern about threat to the community and removal.

Justice Breyer: No, no, I'm just trying to figure out, though... I'm trying to figure out what the issue is in this case, and I'm having some trouble, because I want to know... to separate out the problem that you're just talking about, risk of crime--

Mr. Kneedler: Right.

Justice Breyer: --I'd like to know... think of 90 as beginning--

Mr. Kneedler: Right.

Justice Breyer: --And how many extra days before it became clear that no country will take them?

Mr. Kneedler: It is not clear now.

Justice Breyer: If it's not clear now, then what is it that we're supposed to be deciding?

Mr. Kneedler: Well--

Justice Breyer: Because at that moment, if it's not clear now, there is involved in both of these cases the question of whether it would be reasonable to maintain them simply to be sure they're around if you find a country.

Mr. Kneedler: --That, and in addition, because of the potential for dangerousness to the community.

Justice Breyer: What I'm trying to figure out is, is that question in front of us?

Do you deny the following, that this statute does not give authority to hold an alien beyond a reasonable time?

Mr. Kneedler: Well--

Justice Breyer: You think it does?

Do you think... in other words, are you saying, is it the Government's position that the statute gives the authority to put an alien, after 90 days... to hold him beyond a reasonable time?

Mr. Kneedler: --I'd like to answer that in two respects.

I do not believe there is any reasonable time limitation within the statute.

On the other hand, it depends what you mean, what could be comprehended within the determination of reasonableness.

I mean, for example--

Justice Breyer: All right, so take your second answer, because that has two parts, your first saying we won't hold him beyond a reasonable time, but what do we look at in deciding reasonableness?

Mr. Kneedler: --Well, in this case the attorney--

Justice Breyer: Is that... am I right?

Mr. Kneedler: --Yes.

Justice Breyer: All right.

Mr. Kneedler: The Attorney General has implemented this statute in a way... maybe the Attorney General had broader authority to detain someone permanently without ever releasing someone, but the constitutional question before the court, and the statutory question for that matter, has to be analyzed in terms of what the Attorney General did in the exercise of his discretion in establishing a review procedure under which the alien is subject to periodic review to determine whether he is either dangerous or a risk of flight.

Justice Breyer: Are you satisfied with this holding on the merits, this statute means no one should be held beyond a reasonable time.

Reasonable time is related to whether there's another country available, but in addition, where that's unclear the court can take account of the risk that he poses to the community?

Mr. Kneedler: I do not agree with it in this respect.

We do not believe it is for the courts to determine whether, at least in the first instance and without a high degree of deference to the Attorney General as to whether there is another country to whom the alien might conceivably be returned in the future.

Justice Scalia: Well, but are you conceding that that is relevant to the--

Mr. Kneedler: I'm not.

I "m not".

Justice Scalia: --I assume you're saying that if another country can't be found, and even once it's certain that another country can't be found, the Attorney General can still refuse to release this person into the general population as long as there is a threat of flight or of--

Mr. Kneedler: That is our position, but I would like to say something about the two aliens in this case, just to show that we're not even near that position.

Contrary to Mr. Zadvydas's counsel's position that nothing has been done with respect to him recently, we point out at page 48, footnote 22 of our brief, facts have happened after the letter that he referred to that Mr. Zadvydas wrote to the Lithuanian consulate.

As we point out in that brief, the INS twice last summer called Mr. Zadvydas in for an appointment, after he asked that that appointment be postponed, so it could be explained to him what information the INS had obtained from the Lithuanian consulate as to what information would be necessary to apply to Lithuania for citizenship based on the Lithuanian citizenship of his parents.

On both instances, he did not show up for the appointment, so he is not cooperating with the known procedures for submission of documents that Lithuania has identified as germane to the question of whether he would be granted citizenship.

Justice Ginsburg: --That would be separately sanctionable, would it not?

Somebody who... if you just had the portion of the statute that says you can hold this person under supervision, and that person in supervision did not do what he was told to do, that's independently sanctionable, is it... would it not be?

Mr. Kneedler: It is, but the important purpose of the detention here is to protect the community as a prophylactic matter, not simply to take measures against someone after the fact.

Now, having said that, under the regulations that I've described, even before the formal regulations went in place in December, up to 50 percent of the people who were reviewed under the interim procedures that were in place were released during that period of time, so these regulations do afford a periodic opportunity--

Justice Kennedy: How many of those 50 percent had previously been determined to be dangerous to the community?

Mr. Kneedler: --I'm not... well, all of them, or almost all of them in the sense that they were convicted of a crime.

Most of the people detained in this category have a criminal history, maybe a few who do not, but the two aliens before the Court right now were convicted of a crime in which they had all of the procedures to which they were entitled in determining that, and this Court has said--

Justice O'Connor: And they had served their sentences, presumably.

Mr. Kneedler: --They have, but as this Court pointed out in the Jones case, which was discussed in Foucha, it is permissible for a State to presume continuing dangerousness from the conviction of a crime, and the fact that someone has served a criminal sentence does not remove the inference of continuing dangerousness.

Justice O'Connor: What case of ours do you think best supports your position of the validity of this scheme?

Mr. Kneedler: Oh, I think there are several.

I think the Mezei case does.

Justice O'Connor: But didn't that involve more aliens who can be rejected on entry?

Mr. Kneedler: But it is our submission that once an alien has been ordered removed from the country, as both of the aliens here have been... not only have they had a criminal conviction, with all the protection that affords, but they have... are subject to final orders of removal under an administrative process in which that had be proven by clear and convincing evidence.

The procedures are unquestioned in this case.

The consequence of the final order of removal--

Justice Stevens: But Mr. Kneedler, isn't there a vast difference between saying, if a person... partly fictional... has never been in the country at all, he has never acquired the protection of the Constitution, isn't that quite different from saying that a person who has acquired that protection, simply because an order of deportation has been entered, he totally loses the protection?

Isn't there a difference between the two?

Mr. Kneedler: --There's not, and if I may explain why, there is no difference from the point of view of the status or the interests of the alien, there is no difference with respect to the sovereign powers of the United States, and there is no difference--

Unknown Speaker: Well, there's a big difference between being, say, in Seattle, Washington, and Ellis Island, never being able to get off the island.

Mr. Kneedler: --I'm speaking of the legal status of the alien, and the third is with respect to the interests of the United States.

With respect to the status of the alien, it's important to consider the consequences of a final order of removal.

It is not simply an order of removal.

It also terminates the person's status as a lawful, permanent resident.

Justice Souter: Well, may I go back to that question Mr. Kneedler, because there's an issue that's come up.

I think it's inherent in Justice Stevens' question, and I think it was raised by your response to Justice Ginsburg's Hendricks question, and I think it's focused by one of the green briefs, amicus briefs filed by, I think it was a group of law professors, and they said, what's wrong with the Government's argument that the order of deportation converts the individual back to the status of someone who has not yet been admitted is this The status, the constitutional status of the individual who has never been admitted rests upon a patent fiction, and the patent fiction is that the individual is not in the United States, when we all know that the individual is in the United States.

Illegally, yes, but in the United States, and the Fourteenth Amendment does not distinguish between citizens and others in this respect.

It may very well be that that legal fiction is a very justifiable fiction, because otherwise the United States is defenseless against Mariel boat lifts and things like that, but it's another thing, as Justice Stevens' question suggests, to extend that legal fiction and say that the legal fiction takes you one step more, and that is, we're going to now assume that an entire further class of individuals, in fact, is not in the United States and is not subject to whatever the territorial claim that the Fourteenth Amendment seems to respect.

What is your answer to the problem of extending legal fictions, because, what's in back of my mind is, in the back of my mind is, if legal fictions can support this restriction back on whatever the rights of persons are, then I suppose other legal fictions could accomplish the same purpose for other classes, so what is your response to the problem of legal fictions?

Mr. Kneedler: If I may, this does not rest on a legal fiction.

The first thing I would like to point out is, just to finish the... because this is important to answering the question... to finish the consequences of a final order of removal, the first thing it does, as I mentioned, is, it terminates the status of an alien lawfully admitted for permanent residence--

Justice Souter: Right.

Mr. Kneedler: --which is defined as a privilege of being lawfully admitted, such status not having changed, and as we point out in our brief--

Justice Souter: Well, but that's a statutory definition.

Mr. Kneedler: --Right, but then the further consequence is, under 1182(a)(9) of the act, the alien is inadmissible for 10 years, or, in the case of an aggravated felon like these, for 20 years, so that--

Justice Souter: Fine, but--

Mr. Kneedler: --So that person is--

Justice Souter: --Inadmissible, but nonetheless has been admitted.

Mr. Kneedler: --But what I... the point I'm trying to make is, in terms of his legal status he is in exactly the same legal status under the laws Congress has passed to protect this Nation as someone who is at the border, someone who has no rights--

Justice Souter: Well, that may very... I don't doubt that that is true so far as legal definitions are concerned, but that doesn't drive the constitutional inquiry.

The constitutional inquiry in effect says, yes, we'll accept the legal fiction that the person who has never been admitted is, in fact, not in the United States, but now you want that same process... and there may be a justification for it.

We might have found a more candid way of doing it, but I can see the justification.

You now want to extend that fiction to somebody who has been in the United States for quite sometime and is still here, and the fact that the statute may by definition say, they're the same, obviously doesn't control the constitutional inquiry.

Mr. Kneedler: --No, it does not, but the important thing about... the important thing to consider if you look at someone like Mezei, who was here for 25 years, and went abroad for I think 19 months before he came back in, the Court said that he was an arriving alien, even though he had a long time in this country, but the important point is that Mezei was about procedure, and what the Court was relying on in the so called entry fiction there was the fact that it was the Court sustained the authority of the Attorney General to keep him excluded on the basis of classified evidence that was never shown to the alien.

Even Justice Jackson in his dissent in Mezei rejected the notion that there was a substantive due process problem with detaining Mezei--

Justice Souter: Well, whether there is or is not a substantive due process problem, it seems to be the case that you still want to respond to the substantive due process argument by saying that the people who have been admitted ordered deported are exactly in the same status for constitutional purposes as those who have never been admitted.

Mr. Kneedler: --And here--

Justice Souter: If one is a fiction, the second is a greater one.

Mr. Kneedler: --No... and the other part of Mezei, that was the part of Mezei that depended on the entry fiction, but the other part of Mezei is, he had no liberty interest to be at large in the United States, and our point is that that liberty interest to be at large in the United States was extinguished by the final order of removal.

Justice Scalia: Mr. Kneedler, we often determine what procedures are due on the basis of legal status, don't we?

You're saying legal status here is the same because the law changes.

Mr. Kneedler: Absolutely.

Justice Scalia: Citizens have a different legal status from aliens, and they are entitled to greater constitutional protections, right?

Mr. Kneedler: Absolutely--

Justice Breyer: I agree there are--

Justice Scalia: --Resident aliens have different legal status from nonresident aliens, and so forth, so there's nothing extraordinary--

Mr. Kneedler: --Not at all.

I--

Justice Ginsburg: --Mr. Kneedler, I don't follow this at all, frankly, because I thought the so called entry fiction, there was a benign aspect of that.

In other words, this person has no right to set foot on U.S. land, but we're going to be kind to that person and not dump them in the sea.

We could say, you're excludable, so... but as the kind of price for saying, oh, we're going to let you set foot on land and not drown in the sea or starve to death, but we're going to treat you as though you never came in, and that's a fiction, but it's a benign fiction, because the alternative is, we dump you in the sea.

It's quite different when you're talking about someone who was here, who was part of the community, and who has, as you say... in your brief I think you say, yes, they are persons, and the Constitution says, nor shall any person be denied due process, so it's quite different.

Justice Scalia: We're not dumping them in the sea, are we?

Mr. Kneedler: --That was exactly the point I was going to make.

One could make the same point here with respect to the removal of an alien who was previously here, and whose right to remain here has been extinguished.

The United States would not do this, but one way to remove the alien from the United States would be to put him on a boat, or to insist that he find a county and, unless he finds a country he will be detained here.

Justice Breyer: I take it what we're arguing about now, or discussing, is whether the Attorney General has the right to put this person in custody for his entire life solely on the basis of risk, and I'm not sure that this case really raises that, but if it does, so be it, and my question to you would be simply this.

Is there any precedent at all, where the Constitution, which says no person shall be deprived of liberty without due process of law, justifies putting a sane human being in the United States, depriving him of his liberty forever on the basis of an administrative order, no judge, no jury, no judicial process?

I just can't think of an instance, and I would be surprised if other countries with similar systems do such a thing, depriving a person of his liberty forever, on the basis simply of an administrative order, so what is the precedent?

Mr. Kneedler: There's not a precedent, put this... put that way, but if I may respond, the basis for the removal order in this case were criminal convictions, in which the aliens' criminal trials--

Justice Breyer: I have no doubt you could do that as a criminal punishment.

Mr. Kneedler: --But--

Justice Breyer: Is that what we're talking about?

That's a judicial process.

Mr. Kneedler: --No, but you said where the basis for the detention is not preceded by any criminal trial.

Here, there was a criminal trial.

Justice Breyer: No, no, my problem is the problem that judicial due process, normally means judicial process where you are depriving a person of liberty.

I can't... it's very hard to think of instances... well, I'd be repeating my question, but I mean, I have no problem, because if you're talking about the criminal process, it's a criminal punishment administered by a judge and a jury, so if you're saying that's what's at issue here, I'm right with you.

My problem is that that's not what's at issue here--

Mr. Kneedler: Well--

Justice Breyer: --to my understanding.

Mr. Kneedler: --Well, with all respect, the criminal conviction in this case, in both of these cases and in the great majority of cases in which people are being detained, plays a critical role in their continued detention.

This was something that the Court found to be a permissible factor in both Foucha and in... and particularly in Jones, where the Court said that there could be a presumption of continuing dangerousness subject to rebuttal by the individual, which is exactly what we have here.

Justice O'Connor: Yes, but we're trying to explore what precedent of this Court comes closest to saying that, based on the prior conviction of someone who was lawfully here at the time of that conviction, can the Government, by administrative order, detain the person indefinitely because of dangerousness.

What case do you rely on?

Justice Kennedy: Other than Mezei.

And please try to answer the question.

Mr. Kneedler: Okay.

Justice O'Connor: I know there are lots of questions, but I want you to answer this one--

Mr. Kneedler: Okay.

Justice O'Connor: --if you would.

Mr. Kneedler: Several.

The first is Fong Yue Ting, which says--

Justice O'Connor: Pardon me?

Mr. Kneedler: --Fong, F o n g, Yue, I think it is, Y u e, Ting, T i n g, which says that Congress' power over... power to expel aliens, in other words to deport them, is the same and is as absolute as Congress' power to exclude aliens, and we've set out the relevant quote in our brief in the Zadvydas case, which I believe is at pages 37 and 38.

So I think that is an important constitutional basis for the point I was making earlier, that once someone's right to remain here is extinguished, and he's put back in that status, it is proper to equate them to Mezei.

The next line of cases that I would point to are cases, in particular, that... civil commitment cases, where the Court has, I think, contemplated that there could be subsequent determinations following on a presumption coming out of a criminal conviction of continuing dangerousness.

Justice Souter: Yes, but were any of those presumptions operative on purely administrative determinations?

I would have thought not.

I mean, that's Justice O'Connor's question.

Mr. Kneedler: No, but it seems to me another important point that the Court has said with respect to aliens, and this, I can't remember the case in particular, but the Court has said on a number of occasions that Congress can commit the determination of immigration matters to the executive branch, and have determinations made--

Justice Breyer: These cases involve deportation.

I think my question was precedent in respect to putting a person in prison--

Mr. Kneedler: --Well, I--

Justice Breyer: --and Fong Yue Ting, if I'm right, was a case where the Court was considering a law that said you had to have a credible, white witness for a Chinese person to remain in the United States, is that right?

Mr. Kneedler: --I believe that's correct.

Justice Breyer: All right, so I'm not sure about the strength of that precedent.

Unknown Speaker: [Laughter]

Mr. Kneedler: No, but with respect to its fundamental point that the Congress--

Justice Breyer: For deportation, I'll take that as... we're not considering--

Justice Scalia: --I think the case is in point, because as I understand your argument the basis for the Government's holding these people, to which you're appealing, is not that the Government has the power to hold people who are dangerous.

Mr. Kneedler: --Precisely.

Justice Scalia: What you're appealing to is the Government's power to keep out of the United States people who have no right to be in the United States--

Mr. Kneedler: That is exactly--

Justice Scalia: --period.

Mr. Kneedler: --That is--

Justice Scalia: And it is your position, I assume, that even if they weren't dangerous, the United States would not have to allow people who have no right to be here to wander at will throughout the United States.

Mr. Kneedler: --Right, and the point is that 1231(a)(6), enacted pursuant to Congress' plenary power, vests the release authority in the discretion of the Attorney General, and so it would be odd in that--

Justice Ginsburg: And there's no provision for judicial review.

Mr. Kneedler: --There is habeas corpus review.

We do not challenge the right of an alien who is held subject to the Attorney General's authority under the statute to seek habeas corpus challenging the constitutionality of the detention, so if there is an argument--

Justice Ginsburg: But your argument here is, then you lose that.

Once you lose it here, there isn't... in other words, if you're correct, there are these new regulations that you point to, but that's all in house.

It would be no... if you are successful today, in any one of these situations, be it a shoplifter, be it someone who overstayed a visa and encountered a nasty INS person, that person could be locked up forever without any access to a judge, because the only thing is whatever process the administrator has chosen to give.

Mr. Kneedler: --Well, if there is constitutional review of the individualized determination, it would only be along the lines of what the Supreme... of what this Court said in Carlson and reiterated in Flores, which would be whether the Attorney General's determination was arbitrary.

Justice Scalia: Well, isn't there judicial review of the essential determination that you say gives the Attorney General the power here, and that is the determination that this person has no right to be in the United States?

Mr. Kneedler: That is correct.

Justice Scalia: There is full judicial review.

Mr. Kneedler: Right, and those--

Justice Scalia: And that's the source of your power.

Mr. Kneedler: --That is right, so... and the important point is for these purposes--

Justice Ginsburg: So you are saying, once that determination... no right to be in the United States, and the reason is that you committed a felony, served your time.

You are saying, yes, after that there is no access.

Mr. Kneedler: --We're certainly not saying there is no access to habeas corpus, to challenge the constitutionality of the detention.

Justice Ginsburg: Because that's what this proceeding--

Mr. Kneedler: I think you are correct the alien will, under our submission, lose at least, or in the exceptional case, in that circumstance, but that's because Congress has vested in the Attorney General the delicate question of deciding when an alien should be released and not.

This... in this area, like in so many areas of immigration, this is intimately tied up with foreign relations.

As we point in our briefs, with respect to Mr. Ma, for example, we are engaged in negotiations with Southeast Asian countries--

Justice O'Connor: --Is there any APA review of the exercise of the Attorney General's discretion?

Mr. Kneedler: --We believe there is not, that under 1252(a)(2)(B)(ii) of title VIII it bars judicial review of anything, any determinations that are committed to the discretion of the Attorney General.

Justice Stevens: Mr. Kneedler--

Justice Breyer: --Can I just focus on one thing that you were just pointing out?

I'll tell you exactly what my problem is.

I agree with you that these former cases that you cited do give Congress tremendous power over deportation, whatever their facts, but to my mind, putting a person in jail, or in confinement for the rest of his life, however bad deportation is, this is a lot worse, and I can't find precedent to answer it, and I think you now agree there isn't precedent, and so aren't we left with just deciding, that seems so much worse, must there be judicial process, or is administrative process good enough?

Mr. Kneedler: Administrative process is good enough, and the first and basic point is the one that Justice Scalia said, which is that the most important ingredient of liberty interests at stake here was extinguished, the right to be at large in the United States was extinguished in the administrative deportation proceeding--

Justice Stevens: Mr. Kneedler--

Mr. Kneedler: --subject to judicial review if the alien chose it, and the aliens in this case did not seek to challenge the extinguishment of their liberty interests.

Justice Stevens: --Mr. Kneedler, I would like to ask you a question right on the liberty interest point.

Do you read Mezei as merely holding that the person at the border has no liberty interest in roaming around, or is it rather that he is not a person within the meaning of the Fifth Amendment?

Mr. Kneedler: I take it to be that there's no liberty interest, is my--

Justice Stevens: What in the opinion... and there's nothing in the opinion that talks in those terms.

He's just a person who has no right to be here.

He is not a person protected by the Fifth Amendment--

Mr. Kneedler: --But that I think cannot--

Justice Stevens: --because he's never got in the United States.

Mr. Kneedler: --That, I think, cannot be correct, at least if one looks at Wong Wing, which prohibited the service... imprisonment and hard labor for someone who was in the United States.

It is no part of our submission that an alien who is illegally present, or who has been paroled into the United States in a case like Mezei, is not a person for purposes of protection independent of the immigration laws, but it's quite a different matter to say that the Due Process Clause was somehow intended to limit Congress' plenary power to protect the United States, and the safety of the United States.

One other point that I'd like to make, because it's important to bear in mind, protecting the safety of the citizens of the United States and the community is not ancillary to, or simply incidental to an immigration consequence.

It is part of the whole point of removal of the aliens in this situation, that they were, as Justice Scalia pointed out, essentially in this country conditioned upon their compliance with our laws.

They broke our laws, they committed crimes, and they... and committed crimes that demonstrate that they present a danger to the community.

Justice Ginsburg: Mr. Kneedler, you were explaining something before and then got detracted from it.

You said, it affects our negotiations with Cambodia, and I was trying to think, how would it affect the negotiations knowing... how would the difference between putting someone into prison and putting someone under close supervision, how that would affect the relation, the negotiating relationship of... if the object is to keep this person from doing harm, I understand that's one thing.

The other thing is our negotiating some kind of expatriation arrangement with Cambodia.

What is the relevant difference between holding that person in prison and holding them under close supervision?

Mr. Kneedler: Well, it is very likely to factor in to another country's calculus of how willing they will be to take someone back whether that person is in custody or not, because... the Court pointed out in Mezei that Congress could reasonably conclude that when an alien such as Mezei arrives at our borders, that person is no more our problem than the other country's.

With respect to an alien and his own country of nationality, his liberty is that country's responsibility, not ours, rather than ours.

Justice Ginsburg: But why would that country care... I just don't see the clog in the negotiation.

Mr. Kneedler: That's--

Justice Ginsburg: I see your point about a dictator who dumps people on this country, that's the excludable class.

Mr. Kneedler: --It goes beyond the excludable class, because if a foreign dictator realized that he could cause the release into this country at large of nationals of that country simply by refusing to take people back--

Justice Ginsburg: But of course, it's not involved with people in Ma's situation.

These are people who were lawfully admitted as resident aliens.

Mr. Kneedler: --But that status has been extinguished, and they have no right to remain here, and they do have a right under international law to--

Justice Ginsburg: Well, whatever you say about that, it doesn't... these people, people in their category do not present the problem of dictators dumping people in the United States.

These people have been lawfully admitted as permanent residents.

Mr. Kneedler: --Maybe not dumping in the first instance, but what the refusal to take someone back... and we... for example, with respect to Cuba we have a number of people who have come to Cuba and are here lawfully who we want to remove from our midst, not simply those who were foisted upon us under the Mariel boat lift, and if we have a foreign dictator--

Justice Ginsburg: I'm just thinking in terms of your foreign policy concerns that you put forward.

Speaking with one voice to a dictator and saying, we're not going to let you do this to us is quite different from saying, yes, we welcomed this person in our midst, but that person committed a crime, we don't want them any more.

Mr. Kneedler: --Well, it's we don't want them any more, and it is your responsibility to take him back, and the pressures on that other country, not simply from the United States Government but from the alien himself, from human rights groups, from his family, are much greater for that other country to take him back when he's in detention.

Justice Kennedy: That's certainly true.

With the alien himself, it seems to me he has no incentive whatever--

Mr. Kneedler: That's--

Justice Scalia: --to put any pressure on the foreign Government to take him back, or even to provide the documents necessary for that--

Mr. Kneedler: --That is correct, as we've seen--

Justice Scalia: --if meanwhile he's wandering at large in the population.

Mr. Kneedler: --That is correct, as we're seeing--

Justice Scalia: I don't see why the--

Justice Ginsburg: --It's never at large, is it?

Mr. Kneedler: --Pardon me?

Justice Ginsburg: I mean, that's... you use that expression in your brief.

In fact, it's not wandering at large.

It's under close supervision, is the alternative.

Mr. Kneedler: Well, it depends on... a lot of the aliens here are not released.

I mean, they had previously to report--

Justice Ginsburg: That, certainly the Attorney General would have discretion under the part of the statute--

Mr. Kneedler: --The Attorney General... first of all, questions such as this we think are committed to the discretion of the Attorney General.

As we point out in our brief, the Attorney General in issuing the final regulations in December pointed out that INS had commissioned a study of other methods for supervision of aliens who might safely be released to see if there's some middle ground, halfway houses and things like that, and the notice points out that the INS is going to be expanding that program to see whether there are alternatives, but--

Justice Scalia: --What is the issue in this case?

I thought the issue in this case was whether he has to be released into the general population.

That's not the case?

Are we talking about only whether you could put him under house arrest and--

Mr. Kneedler: --No.

The aliens in this case are certainly not seeking house arrest.

They are seeking being released under some degree of supervision, but they are--

Justice Ginsburg: --What authority does that (a)(3) part of the statute give the Attorney General, the part that's not being challenged, whatever?

I thought under supervision could be rather tight supervision.

Mr. Kneedler: --Yes.

We certainly think it would give the Attorney General the authority to insist that the person be released into a program, a halfway house or a drug treatment program, and that also is pointed out in the preamble to the new regulations, but we don't believe--

Justice Ginsburg: So that's certainly not, as Justice Scalia just described, at large, at liberty.

That is... could be a halfway house.

Mr. Kneedler: --It could be, but the questions of exactly what form of custody to keep an alien in, are mixed up with the broader responsibilities of the Attorney General under laws passed by Congress to administer the immigration laws in terms of what facilities someone should be kept in while they're being detained.

Justice Stevens: Mr. Kneedler, what are the conditions of the releases of the two litigants in this case now?

Mr. Kneedler: I'm not sure of all of them, but there are periodic reporting requirements and not leaving the jurisdiction.

Justice Stevens: Is there any reason why those very conditions that are in place now would not be adequate as a general rule, subject to severe punishment if they were violated?

Mr. Kneedler: What the Attorney General has concluded is, for people who do not pose a threat to the community... reporting requirements are not going to stop someone from being a threat to the community.

They may guard against flight, but they are a far more inadequate protection against danger to the community.

Justice Stevens: But insofar as you rely on threat to the community, it's the same threat for the citizen who had the same criminal history.

Mr. Kneedler: Yes, but the important... the balance of interest is completely different with respect to a citizen and an alien who not only--

Justice Stevens: Why is the balance different if you're just relying on future dangerousness?

Mr. Kneedler: --Because under Salerno, for example, the Court said that an individual's interest in liberty can be outweighed by important governmental interests.

There is a compelling interest in protecting the safety of the community, but where the liberty interest that is going to be--

Justice Stevens: But you conceded earlier it's no stronger than it is for the average citizen.

Mr. Kneedler: --But the countervailing liberty interest is far, far less, to the extent the alien has any remaining liberty interest, because his right to be at large in the United States has been extinguished.

Justice O'Connor: But in Salerno and in Hendricks and in these other situations where people are being held and detained, there has been judicial review of that detention order, and there is no such provision here, is there?

Mr. Kneedler: There is not.

As we say, we're not challenging--

Justice O'Connor: I think that is one difficulty with your position.

Mr. Kneedler: --Well, as we say, we're not challenging the ability for habeas corpus review.

If that was an issue, the proper disposition would be to allow--

Justice O'Connor: No, but under your view, that has to automatically be denied.

There simply is no opportunity here for judicial review of the determination of the discretion of the Attorney General in reviewing the conditions under which someone might be released with safety.

Mr. Kneedler: --Well, if there was going to be judicial review, it would be along the lines of Carlson, which is whether the Attorney General has exercised that power arbitrarily.

We think there probably might be a constitutional component to that to the extent the Court concludes that there is any residual liberty interest at all.

That would be the proper way to address this, not to attack as a substantive due process matter, which is all that's here.

Justice Kennedy: Well, if the regulations provide for periodic review--

Mr. Kneedler: Yes.

Justice Kennedy: --would Carlson allow judicial review of those periodic determinations?

Mr. Kneedler: Under Carlson--

Justice Kennedy: Did Carlson approach--

Mr. Kneedler: --Yes.

I think under Carlson there was review of those individualized custody determinations.

Chief Justice Rehnquist: --Your questions presented don't raise the issue of judicial review one way or the other.

Mr. Kneedler: No, that is absolutely correct, but the... again, coming back to the central issue in this case, all that is at issue here is whether the Attorney General's detention pursuant to expressed statutory authority is reasonably related to the goals that have been advanced, and as long as the person was found by the Attorney General to be dangerous or a flight risk, the detention is reasonably related, and that detention is subject to periodic, automatic review by the Attorney General every year, and in intervening periods the alien can request a review of his status by presenting changed material circumstances.

In that situation, we think that is a very reasonable response on behalf of the two political branches about how to deal with the severe problem of dangerous criminal aliens in our midst.

It is an inherent part of the sovereignty of every nation to protect itself against aliens who that nation does not believe should be in its presence for purposes of national sovereignty, national security, but also the safety of the populace of that country, and that is what Congress and the Attorney General are responding to.

Safety is not simply a question to be addressed by the States.

When it comes to aliens in this country, it is Congress' responsibility, not that of the States, or in addition to that of the States, to protect the populace of the United States against the presence of dangerous criminal aliens in the United States, and that is what has been done here on the basis of a criminal prosecution and administrative procedures that unquestionably satisfied due process, and the only remaining... in terms of giving Congress an interest with respect to aliens, it is the equivalent of a State's interest with respect to the mentally ill.

In that situation, it is directly parallel to the interests of a State.

When does a State come in and intervene with respect to the liberty interest of an individual?

With respect to civil commitment, it is in the context of mental illness which gives the State a right to come in and look after the individual and protect the individual and the State.

With respect to aliens, it is Congress' plenary power.

That has been satisfied.

That has been permanently extinguished, that liberty interest.

All that remains, then, is the question of dangerousness, and, as this Court has held in the civil commitment cases, a State may place on the alien the burden of showing that he is no longer dangerous at the end of a particular period.

There have been no questions here about the statutory authority of the Attorney General to detain the aliens, but we think it is clear that the Attorney General has that authority conferred by Congress.

Rebuttal of Jay W. Stansell

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Mr. Stansell, you and your colleague have reserved a little more than 1 1/2 minutes.

Why don't you use it.

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

I have just four points I would like to make.

The first is that the administrative process in this case.

What 's fundamentally wrong about it, it takes absolutely no consideration that deportation is not foreseeable.

If it did, and if the agency weighed foreseeability with actual and real evidence of dangerousness and flight risk, we would have no quarrel with the agency applying that constitutional test in reviewing these individuals.

Secondly, as I just said, the test in any case has to be, is detention excessive in relationship to the legitimate Government's interest, and we feel like the district court in Mr. Ma's case had the proper test, balancing foreseeability of deportation with dangerousness, real evidence of dangerousness and flight risk.

We would draw the line at, is deportation foreseeable, and say on balance everyone would get out on this case.

This Court may disagree, and want to allow a broader balancing test where actual foreseeability might be a gradiated scale and allow for different balances to be drawn, but in any case, that's the test that should be applied.

Third, that there's no authority for this Court to expand Mezei.

The decision in Wong Wing is over 100 years, and that stands as a general rule that informs the Mezei narrow exception.

Witkovich is similarly situated.

Individuals who've been ordered deported did not lose their constitutional rights.

Chief Justice Rehnquist: Thank you, Mr. Stansell.

The case is submitted.

Attribution:

The Oyez Project

Featured:

INS v. Aguirre-Aguirre - Oral Argument

Fri, 09 Jan 2009 14:50:12 +0000

Case:

INS v. Aguirre-Aguirre

Media File:

97-1754_19990303-argument.mp3

Related Transcript:

1998_97_1754_argument.xml

Transcript:

Argument of Patricia A. Millett

Chief Justice Rehnquist: We'll hear argument first this morning in Number 97-1754, Immigration and Naturalization Service v. Juan Anibal Aguirre.

Ms. Millett.

Is that the correct pronunciation of your name?

Ms Millett: Yes.

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

In the Immigration and Nationality Act, Congress expressly invested in the Attorney General the authority to determine whether an alien who has committed a serious, nonpolitical crime should be denied withholding of deportation.

Congress further made clear that once the Attorney General has serious reasons for considering that such a crime occurred, the bar on withholding is mandatory.

The issue in this case is whether the Attorney General, through the Board of Immigration Appeals, had serious reasons for considering that respondent's acts of burning buses, destroying private stores, and hitting, binding, and stoning innocent civilians constituted serious nonpolitical crimes.

Justice Breyer: What, by the way, if you have a chance, are we supposed to do about the fact that the individual now says that isn't a correct translation; he didn't stone any individuals.

What he said was, he threw stones against the side of the bus or something to stop the bus, but they didn't actually throw stones at individuals, which might be important.

What should we do about that?

Ms Millett: First of all, we disagree it is important, but even if the Court considered that it was, the respondent has filed a motion to remand with the Board of Immigration Appeals and, I think consistent with this Court's decision in Stone v. INS, this Court can go ahead and proceed to review the judgment that's before it and allow that motion to proceed on its own track.

Chief Justice Rehnquist: Well, this tape question is a very late-in-the-day thing, is it not?

Ms Millett: It most certainly is.

It didn't appear until the brief in opposition in this Court, and that was...

Chief Justice Rehnquist: It wasn't presented to the Ninth Circuit at all.

Ms Millett: Not at all, even though the same counsel represented Mr. Aguirre there, but that... again, the motion is pending before the Board of Immigration Appeals.

We believe it should have no impact on this Court's resolution of this case, or ability to proceed and decide this case.

Justice O'Connor: Now, it is suggested by the respondent that somehow the board's and the Government's interpretation of the statutory standard differs in some way from that recommended pursuant to the convention and the protocol that bind other nations generally.

Ms Millett: Uh-huh.

Justice O'Connor: The language in the convention and protocol looks about the same, but they say the Handbook somehow establishes a more egregious standard.

How have other countries interpreted the protocol and the convention, do we know?

Ms Millett: In this particular regard, on the question of balancing the risk of persecution there are a couple of other things...

Justice O'Connor: Uh-huh, yes.

Ms Millett: the Ninth Circuit required that haven't, as far as we know, been addressed by other countries.

But on the question of balancing the risk of persecution...

Justice O'Connor: Yes.

Ms Millett: there are two courts that have directly ruled on it, and they are split.

The Canadian court applied the balancing test that is recommended in the Handbook, without saying that it was compelled, but choosing to apply it.

The British House of Lords has held that the balancing test does not apply, so we have a one-one split.

The respondent... or, I'm sorry, the United Nations High Commissioner in his amicus brief also cites a decision from the French Commissioner of Refugees in a case called Pham, P-h-a-m.

That case, however, did not... first of all, has been vacated, and secondly did not address the serious nonpolitical crime exception.

It addressed Article 33's particularly serious crime of sexual...

Justice O'Connor: Is that question, whether there are serious reasons for considering that a particular offense qualifies as serious and nonpolitical, is that a question of fact or law, do you think?

Ms Millett: Well, it has two tiers.

Whether the test the Attorney General has adopted for identifying serious nonpolitical crimes could, of course, be reviewed for whether... its consistency with the statute, but because of the language that the Attorney General may determine, and because of the serious reasons for considering language, that would be an extremely deferential review.

If the test is legally correct, then the application of any facts in the record in a given case would be... against that test would be reviewed for substantial evidence.

Chief Justice Rehnquist: Is the U.N. convention binding on the United States?

Ms Millett: The convention is not.

The proto... the United States is a party to the protocol relating to the status of refugees, and that has incorporated virtually all of the provisions of the convention, including this definition of refugee, which includes... this portion of its definition of refugee, which includes a serious nonpolitical crime exception.

The only thing that is not carried over is the original limitations, original European limitations on the definition of refugee.

Justice Kennedy: Is the Handbook incorporated in the protocol?

Ms Millett: No, it is not.

In fact, we... nothing... nothing in the text of the protocol or the convention mentions, let alone compels, balancing the risk of persecution.

Justice Scalia: Nor in our statute.

Is that protocol self-executing?

Ms Millett: No, it is not, and so even... I guess even if it did, if the Attorney General's reasonable interpretation was that that had not been effectuated via United States law, again that would not become...

Justice Scalia: We need a statute that implements it.

If we don't have a statute that says you take into account the degree of persecution that will be received at home, then there just isn't a statute that does that.

Ms Millett: Absolutely, although again...

Justice Ginsburg: The protocol doesn't do that either, does it?

It's just the Handbook that sets up this balancing test, so there's no inconsistency.

In fact, our statute seems to be very close to the protocol.

There isn't a significant difference between those two.

Ms Millett: No, there is absolutely no, as we see, tension between the protocol or the convention and the United States law and the Attorney General's interpretation of that.

The only question is whether we are inconsistent with a recommendation in a Handbook written by the United Nations High Commissioner of Refugees.

Chief Justice Rehnquist: Why is that a question at all?

Ms Millett: Because that's what the Ninth Circuit relied on.

Justice O'Connor: Oh.

Ms Millett: It's not our question.

[Laughter]

Justice Scalia: Well...

Ms Millett: We, in fact, agree and think it should not be a question.

The Attorney General was, of course, entitled to give that document weight if she chooses in interpreting the statute, but is not bound by it.

Justice Stevens: Well, now, as I understand the...

Justice Kennedy: Go on.

As I understand the respondent, they say, well, you can't really talk about McMullen proportionality, the seriousness of the crime in light of the political objectives, if you don't also talk about persecution, which I take it you're going to tell us is a non sequitur, or...

Ms Millett: Yes, that would be our position.

The test for a serious nonpolitical crime and the proportionality test that that applies are tests that focus on the character of the crime itself.

Whether someone later faces a risk of persecution for protected status or protected conduct has no bearing on whether an earlier committed crime had a serious nonpolitical character.

It either was or was not a serious nonpolitical crime when it was committed, and the fact that a risk of persecution materializes doesn't change that.

Chief Justice Rehnquist: Why not?

Justice Breyer: That is to say, why... you might think... normally words in statutes have a context, and suppose a person... your idea is you're just going to list every crime in the U. S. Code and put it on two lists, it's serious or not serious.

Well, I... why wouldn't you in this kind of situation, where you say a person, let's say, has a minor drug offense that you might consider serious.

Well, doesn't it make a difference whether we consider it serious for the purpose of the statute, whether that's seriousness because you called it that, it's so serious that it means the person will be sent back to the same country where he'll be killed immediately, as compared with, he'll be sent back to the same country rather than a different country, where he will serve 1 day's imprisonment?

I mean, I might think... you tell me... if this person's going to be killed because I have to send him back to the same country, I don't think that that previous marijuana crime is such a big deal.

If you tell me, well, we're going to send him back to the same country rather than a different country, and all that will happen, he'll spend 7 hours in a cell, I'll say, well, okay, I'll give it to you.

I mean, why not make that kind of all-factors considered?

You're doing that with nonpolitical.

Ms Millett: The first thing to keep in mind is, the question in this case is whether the Attorney General is compelled by the statute or the convention to adopt that approach.

Whether or not one thinks it would be a good approach to adopt, she most definitely is not, in our opinion, by the text, legislative history, drafting history of either the statute or the convention and protocol.

The second thing to keep in your mind is, you mentioned the history of terms.

The term nonpolitical crime does have a history.

It's a term with meaning in immigration... I'm sorry, in international law and in extradition law, and the balancing that the Attorney General has used to identify whether something is political or nonpolitical draws upon that history, but it is still... both of them are describing the crime itself.

The risk of persecution doesn't change the crime.

The question is whether it's a serious nonpolitical crime...

Justice Ginsburg: Ms. Millet, may I clarify... ask you to clarify one thing, because I think when Justice Breyer said, it's just you list everything in the U.S. Code as serious or not serious, do I understand correctly that in defining what is a nonpolitical crime, that the Attorney General is in sync with the Handbook, that the dissonance comes up only at the tail end on the question of, do you then balance against the risk of persecution.

But I thought in defining what is a nonpolitical crime it isn't simply a matter of going through the U.S. Code and saying this is serious and this is less serious.

Ms Millett: No, that is correct.

That is correct, and sometimes the analysis of serious and nonpolitical can overlap, but it's... as I explained, the term nonpolitical and the definition that the Attorney General has adopted is consistent with the Handbook, is consistent with the Ninth Circuit's at least prior articulation...

Justice Souter: But the Attorney General rejects the gross disproportionality test, as I understand it.

Ms Millett: The Attorney General rejects the notion that things have to be tantamount to atrocious conduct.

Justice O'Connor: Yes.

Ms Millett: How...

Justice Souter: Which I take it is what the Ninth Circuit was getting at on the second reason that it...

Ms Millett: Yes.

That is how we interpreted that.

Justice Scalia: Ms. Millett, do I have to give the Attorney General's interpretation deference if I think the Attorney General's interpretation may be wrong for a reason quite different from the reason that respondent here says?

Specifically, I don't care what the Handbook says.

I care what Congress passed and what the fair meaning of our statute is.

And, frankly, when I... I find it quite incredible that we are adopting an interpretation that takes into this country people who commit any crime at all, even murder, so long as it's for a political reason, and so long as it's not disproportionate.

Now, there's a totally different reading of political... non... I mean, I've never heard nonpolitical crime.

It's the opposite of a political crime.

And my normal understanding of a political crime is a crime whose definition... it's not the motivation of the criminal in committing a murder.

It's rather, the very definition of the crime is a political crime, such as the law in Cuba under which some journalists have just gone to jail because they criticized the Government in the press, a law that prohibits criticism of the Government, perhaps a law that prohibits... even a law that prohibits treason.

But when you're committing a crime that is independently criminal... murder, rape, whatever... the fact that you're doing it for a political motive, why should that make any difference as to whether we want those people in this country?

We don't allow those things to be done for political motives in this country.

Do we want to admit immigrants who have that philosophy?

Ms Millett: Well, that is a choice again for Congress and the executive branch, particularly Congress to make.

Justice Scalia: Well, all Congress said was, nonpolitical crime, and that's a perfectly reasonable interpretation of what a political crime consists of.

In fact, I think it's the more normal one.

It's not, you know, well, I murdered somebody, but it was proportionate.

It was really sort of necessary for my political goal.

We're admitting people on those bases?

Ms Millett: The question would be if... the way in which that would come up, and sometimes there are things that are so... how serious it is can be factored into whether or not it can even be accepted as nonpolitical.

Again, the history of the term political or nonpolitical is a contextual inquiry, and the more drastic means that are employed is often a factor.

On the other hand, someone who attempted to kill Hitler during World War II, or if they'd even, in fact, succeeded, would not necessarily have to be excluded from a country under this definition.

And there are...

Chief Justice Rehnquist: What about Lee Harvey Oswald, who succeeded in killing President Kennedy?

Is that a political crime?

Ms Millett: I don't think that would be the position of the United States, and I don't know whether it was a political motive...

Justice O'Connor: Well, no, but I mean...

Unidentified Justice: [Laughter]

Chief Justice Rehnquist: backing off and looking at it...

Ms Millett: Right.

Right.

Chief Justice Rehnquist: as an act of someone... an assassin, but who disagreed with the President and wanted him out of the way.

Could that be a political crime?

Ms Millett: Could the acts of an assassin ever be considered a political crime?

I think yes, the Attorney General would have the discretion to do that under this statute.

Justice Scalia: To assassinate Queen Elizabeth, to take a current and quite likely...

Unidentified Justice: [Laughter]

Justice Scalia: scenario, that, we'd have... we'd just weigh it, was it proportionate, you know.

Could he have achieved his end by some lesser means, maybe assassinating somebody else?

Unidentified Justice: [Laughter]

Justice Scalia: I find it extraordinary that that's what we're going to go through in deciding whether to admit people.

Ms Millett: Well, again, Justice Scalia, even if this Court finds it extraordinary, the question is what Congress and the executive branch have determined.

This is a question of...

Justice O'Connor: No.

No, it isn't.

Justice Scalia: If it's extraordinary, you shouldn't interpret the statute that way.

Ms Millett: If it's permitted by the plain language... it is not foreclosed.

It is not foreclosed by the plain language of the statute or the plain language of the convention.

In fact, we believe that that is the type of deference that the Attorney General was granted under...

Justice Souter: All right, but Ms. Millett, has the Attorney General ever, let's say, given a favorable interpretation to an allegedly political crime when the political objective was at least not an acceptable political objective to the Government of the United States?

Ms Millett: I'm having a little...

Justice Souter: Have we rewarded the enemies of our side, for example, during the Cold War... when the Attorney General looks to what is, let's say, the political motivation, the political side of the equation, does the Attorney General simply count as political those political objectives which are acceptable to the Government of the United States at the time?

Ms Millett: It's a larger inquiry than that, and for example, with the hypothetical about Queen Elizabeth, the Attorney General will also consider the structure of the country in which... first of all, we think it's perfectly... the Attorney General is free to consider political relations in this aspect of the test.

Justice O'Connor: So that somebody who tries to assassinate Saddam Hussein, with whom we're having a current disagreement, and who fails, and then wants to come here and get refugee status, we would take the position, the Attorney General would take the position possibly that that's... that that person is admissible, because we're having a disagreement with the regime?

Ms Millett: I hesitate to identify any particular leader or country or anything in a way that would suggest we would open the doors for killing or not, and in fact often an assassination...

Justice O'Connor: Well, I just want to know if that's possible...

Ms Millett: But whether...

Justice O'Connor: under your view.

Ms Millett: I mean, actually, historically in the late 1800s and early 1900s, the political offense exception to extradition often had in mind the lone assassin who would go and shoot a head of State, but the...

Justice O'Connor: So...

Ms Millett: The Attorney General would not...

Justice O'Connor: So the answer is yes, that person would be admissible, given refugee status, possibly?

Ms Millett: The... given... the question is withholding of deportation, not refugee status.

Possibly, yes, but what would the Attorney General consider...

Justice Scalia: I mean, you like Kennedy, you don't like Hitler.

It's a question of where Saddam falls in... you know, in that...

Unidentified Justice: [Laughter]

Ms Millett: What's more important... what is important...

Justice Ginsburg: on that graph.

Ms Millett: In the... what is important for the Attorney General to consider and has considered, in fact in the Doherty case that came before this Court a few years ago, is whether there is a... how there's... the means chosen relates to the ability to express and obtain... express political views and obtain political change in a given country.

In the United Kingdom, which was at issue in Doherty, the Attorney General concluded that it was a critical or an important factor that there are peaceful means for changing Government and expressing views in that country.

There may be countries and there may be times in this world when there will be a country and there is no way of safely protesting, expressing your view, or changing the Government, except through violence.

Now, that does not mean that all violence will be proper, or will be acceptable.

Justice Kennedy: I was going to suggest that this line of inquiry takes us somewhat far afield from the issues in this case, but maybe it doesn't.

Must we confront in this case the issue whether or not the political motivation of the crime bears on its political character, as opposed to, on the other hand, defining a category of crimes, speech, protest, that are political?

Must we do that in this case?

Ms Millett: I don't think there's any question that political motive is one factor, but it is not the exclusive or driving factor.

The question is whether it's a serious nonpolitical crime, not a serious nonpolitical criminal, and so the inquiry...

Justice Stevens: But it seems to me that as soon as you agree to that, and I... certainly that's the Attorney General's position, the question is not how political it was, but whether it was nonpolitical, and as soon as you've got any political ingredient in the incident involved, it cannot be described as totally nonpolitical.

Ms Millett: That is not something we agree with at all, Justice Stevens.

The term nonpolitical crime, as interpreted by the Attorney General, is a term with a history, and we're focusing on the crime, not the criminal.

And the history in international law, and in particular in extradition law, is a contextual inquiry.

It's quite clear that countries... in fact, the French test is an objective test that doesn't look at motivation at all.

Justice Stevens: Are you telling me that every case, every crime involving the burning of a couple of buses would always be nonpolitical?

Ms Millett: No, but there's not a bright line of yes it would be, or no it would not be for political... but what is clear is that the fact that they have a political motivation alone is not going to make that a political crime, any more than blowing up a Federal day care center in Oklahoma City is going to be considered political.

Justice Stevens: Let me be sure I understand your position.

The motivation, is it the motivation required to satisfy a statutory element of what the crime... how the crime is defined, or is it the motivation of the particular person who seeks withholding or deportation?

Ms Millett: Motivation is one factor in deciding what that... if what the person did qualifies as a nonpolitical crime.

It is only one factor.

Justice Stevens: But it's the motivation of the individual, not necessarily the term motive as used in the statutory definition of the crime, is that right?

Ms Millett: Yes.

Oh, it's... for mens rea, you mean, or...

Justice Stevens: Well, whatever the... whatever the term, mens rea, or intent, or malice, whatever.

It's not that term that you're talking about.

You're talking about the subjective intent of the defendant in the particular case.

Ms Millett: The subjective political motive is... yes...

Justice Scalia: Okay.

Ms Millett: is one factor, although again, in this contextual inquiry on the nature, of whether something is a political or nonpolitical crime, we look not only, again, at the motivation, but at the nature of the crime, and one factor that has been critically important in that analysis historically, and is now for the Attorney General, is whether civilians have been the target.

And a political motivation that takes... that vents its political anger on innocent civilians, as occurred here, is... carries a heavy presumption in international law and in the eyes of the Attorney General that it is non...

Justice O'Connor: Ms. Millett...

Justice Kennedy: But I...

Justice Ginsburg: let me go back to Justice Kennedy's question, because I am frankly getting lost.

I thought that it was the position of both the Attorney General and even the Ninth Circuit that we are dealing with a nonpolitical crime, and that the only question is, given that nonpolitical status of the crime, for whatever reason... I think Justice Scalia has suggested maybe it was the wrong reason for typing it a nonpolitical, but anyway, I thought that the Attorney General's position and the Ninth Circuit was, this falls in that category, but you still have to weigh the persecution.

I thought that's what this case was about.

Ms Millett: Well, there were a couple of other... it's not absolutely clear to me where the other two factors of the Ninth Circuit mentioned the atrociousness and the necessity and success, where they come into this calculus.

But certainly on a question of balancing the risk of persecution, it's only been argued about deciding whether or not it's serious.

And again, our position is not only that it is not compelled in any means by the statutory language, indeed it's a strained one, but also to keep in mind that adopting such a balancing test would result in a complicated matrix of withholding judgments under which you're going to be having varying degrees of seriousness of the crime weighed against varying gradations of actual threats to life and liberty, and the nature of those judgments reviewed by courts all over the country.

And the Attorney General has determined that not... because it's not compelled by the language, she elects not to impose that interpretive and administrative thicket on the withholding provision.

I would like to...

Justice Scalia: But you're already willing to make the, it seems to me, more difficult determination of how necessary it was for the political objective.

I mean, that requires a knowledge of the political situation in the country and so forth and so on.

That seems to me even harder than these other factors.

Ms Millett: And so the Attorney General is here opposing the adoption of a necessity test.

Justice Breyer: Is it right...

Justice Souter: May I ask you...

No, please go ahead.

May I ask you this question about the BIA's application of what it at least understood was the Attorney General's test?

The BIA stated in a rather conclusory way that here the, let's say the political character of the crime was outweighed by its seriousness, which it described as being great enough to come to the attention of the warring or the contending parties in Guatemala, which sounds to me as though it's saying, whenever the crime, given its political motivation, is effective in getting the attention of the political contenders, they've gone too far, that the criminality by definition at that point outweighs whatever political character they might have... it might have.

So it sounds as though, to put it crudely, nothing fails like success, seems to be the reasoning of the BIA here.

Would it be appropriate, even if we do not accept the Ninth Circuit's opinion, to send it back to the circuit, presumably to be sent back to the BIA to explain its reasons for concluding, as it did here, a little better than that conclusory reasoning that I've just characterized as if you're successful enough you necessarily fail under the statute?

Would that be appropriate?

Ms Millett: No, it would not, for two reasons.

First of all, it's the Ninth Circuit that wants to look at necessity and success, not the board.

The board's reference to the fact...

Justice Souter: Well, I thought... did I mischaracterize the board?

I didn't mean to.

Ms Millett: Well, I... the board's reference... the board's reference to the level, attracting the attention of the Governments was not to say you're disqualified because of that, but to use that to describe how much violence was involved against civilians here.

There was sufficient violence against civilians that it would attract this atten... this level of attention, so that is again evidence this was not, as the Ninth Circuit characterized, minimal or harmless violence...

Justice Souter: So you're saying it was emphasizing the violence rather than the merely criminal character of what was being done.

Ms Millett: The level of violence targeted at civilians is what was done.

I would like to reserve the...

Justice Kennedy: May I just ask one... I know that you want to reserve some time for rebuttal.

Are you saying that the crime is grossly out of proportional to the political objectives?

Ms Millett: Violence against civilians, in this case, yes, the board...

Justice Kennedy: And that's the test?

Ms Millett: I'm sorry.

Is... I'm sorry.

Justice Kennedy: And that's the test?

Ms Millett: The test is either proportion... a proportionality between the objective and the means used, or... or atrociousness.

I would like to reserve the balance of my time.

Justice Kennedy: Thank you, Ms. Millett.

Argument of Nadine K. Wettstein

Chief Justice Rehnquist: Ms. Wettstein, we'll hear from you.

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

I'd like to pick up on the point we just left off with Ms. Millett, that in answer to Justice Kennedy's question the Court does not have to grapple or decide on the difficult, what is a political crime, what is not a political crime.

The issue really facing the Court is whether or not the Board of Immigration Appeals properly reversed the decision of the immigration judge.

Chief Justice Rehnquist: Well, the issue before us is whether the court of appeals correctly decided this case, isn't it, and there are... the question presented is whether the court of appeals erred in reversing the decision of the BIA.

Maybe you see it as the same thing, but it isn't quite the same.

Mr. Wettstein: Well, Your Honor...

Chief Justice Rehnquist: If the Ninth Circuit was wrong, even if the BIA was wrong, that does not mean that we would simply say, go back to the BIA.

Mr. Wettstein: Your Honor, the BIA... rather, the court of appeals gave three reasons for reversing the BIA, and two of those three reasons were that the board did not correctly apply its own test set out in the Matter of McMullen, which is a BIA decision setting forth the standards for determining serious nonpolitical crime.

And to just clarify with Justice Ginsburg for a moment, nobody says that this is a political crime.

Everyone said that this was a... rather, no one said it's a nonpolitical crime.

Everyone said it's a political crime.

The board... the immigration judge held that it was a political crime.

The Board of Immigration Appeals did not say that it was on balance.

It said on balance that it was too serious to be political, but it didn't say that the motives were unpolitical, or nonpolitical.

In other words, the board misapplied its own... well, the board purported to apply the McMullen test, and it did not apply the five factors of the McMullen test, it only concluded as to one factor.

Justice Ginsburg: I really find that difficult to follow, because the McMullen test was a test that was said on the way to saying that the applicant there did not qualify for any dispensation.

So to take a test that picks somebody who doesn't qualify, and then you say, but now somebody else who wasn't a terrorist, isn't a terrorist and therefore didn't satisfy those factors.

I just don't think that you can get very far from taking a case that says, this person has these five characteristics and he's out, then say that means well, when you don't have those five characteristics you're in.

I really don't think that McMullen can be worked that way in reverse.

Mr. Wettstein: Your Honor, McMullen mirrors and incorporates the Handbook standard, paragraph 152 of the Handbook, which sets out five tests, and when you apply those tests in this case...

Justice Ginsburg: I thought the board has always said, up until the other case, that it isn't taking any position on this balancing.

It notes that that's the position that the Handbook takes, but as far as I know, there has never been a time when the board said, we embrace that test.

Mr. Wettstein: Well, Your Honor, there are two different kinds of balancing here.

Perhaps if we separate them, that might be clearer.

There's a balancing, the so-called balancing in paragraph 152 of the Handbook, if we may call it that, and that really is... provides five tests for the political-nonpolitical question.

And then there's the separate question in paragraph 156 of the Handbook, which is whether or not you consider the risk of persecution once you have already determined that the crime is...

Chief Justice Rehnquist: Isn't it agreed that the Attorney General and the United States are not bound by the Handbook?

Mr. Wettstein: Yes, Your Honor, that's certainly agreed, but the board has adopted the paragraph 152 in the matter of McMullen, so it wouldn't necessarily be bound otherwise, but...

Justice Scalia: That balancing is a balancing of what?

Mr. Wettstein: It's a balancing of the political-nonpolitical question, Your Honor.

It includes the motivation of the actor, whether or not the crime was out of proportion, whether or not there's a causal link between the acts and the goals, whether or not the crime was atrocious.

So in answer to some of the Court's questions earlier...

Justice Kennedy: Do you mean, it's out of proportion to the political objections...

Mr. Wettstein: That's right.

Justice Kennedy: objectives, or out of proportion to the common law character of the crime?

Mr. Wettstein: Whether the act is out of proportion to the goals.

The question in 15... in the 152 Handbook is whether or not this is a political crime, so if it's out of proportion, I think that was some of what... an answer to some of your questions earlier about killing someone that, you may have a valid political goal, but if you overstep your bounds, if you did too much to meet that goal, then the crime loses its political character.

It becomes a nonpolitical crime.

Justice Breyer: Is there in the Handbook or, more particularly, are there in previous board opinions... think of previous board opinions.

Is there anything in those opinions that either says directly, or says by incorporating the Handbook, that in deciding whether a particular crime is political or not political, one will look to see... and these are the... whether or not the nonpolitical part is a) disproportionate, b) grossly disproportionate, or c) some other set of words.

What in the previous board's opinion either says directly, or through incorporating the Handbook, whether that standard should be proportionate, grossly disproportionate, or some other set of words.

And, if so, what does it say?

Mr. Wettstein: Well, McMullen, Your Honor, is the chief board decision about this.

This has not... this issue has not come up very often in the board.

There are some early cases in the early eighties with Marielito Cubans.

This issue did not really come up with those, in those cases.

There have been... this issue has come up in the extradition context, and there are some district court cases in a case called Doherty and also in McMullen, where extradition was refused because they were political crimes, and...

Chief Justice Rehnquist: Why isn't the test not whether the board has followed an earlier precedent of its own, but whether the board's action conforms to the statute?

Why does the Ninth Circuit say the board is wrong for not following McMullen if, in fact, the board's decision is consistent with the statute?

McMullen isn't part of the statute.

Mr. Wettstein: No, Your Honor, but McMullen is the board's own decision deciding what the statute means, and...

Justice O'Connor: Well, to whom do we owe deference here, to the Attorney General, or to board precedent, or what?

Mr. Wettstein: Well, Your Honor, to return to the Chief Justice's question earlier, the question is, was the court of appeals correct.

And the court of appeals said, here are the tests that you have laid out, and here is circuit law, and here is how these tests are supposed to be applied, and you did not correctly apply them in this case.

Justice O'Connor: Well, is there any room for interpretation of the statute here, and if so, do we look to the Attorney General's interpretation and give it deference, or what do we do?

Mr. Wettstein: Well, you certainly can do that, Your Honor.

The statute itself only says, serious nonpolitical crimes.

So the Court could say you don't like the McMullen test, and you think some other test should apply.

But, of course, no one was able to apply that new test in this case, so then a remand would be appropriate if you...

Chief Justice Rehnquist: The board is a creature of the Attorney General, is it not?

Mr. Wettstein: That's correct.

Chief Justice Rehnquist: I mean, she can overrule anything it does.

Mr. Wettstein: Right, but she has not done that here.

The Attorney General, neither on the 156 political crime balancing nor on the risk of persecution balancing, the Attorney General has not issued any precedent decisions on either of these questions.

Her decision is limited to McMullen, and in the McMullen decision the risk of persecution balancing did not come up.

Justice Breyer: Well, doesn't it apply here... to go back to the Chief Justice's question, is there some reason that the most basic rule of administrative law wouldn't apply, namely, an agency cannot change its decision without focusing on it?

You have to follow your own rules.

An agency has to follow its own rules.

If that really hornbook rule applies, then I would have thought, since there's certainly nothing in this one paragraph...

Mr. Wettstein: Right.

Justice Breyer: of the BIA's decision that purports to change anything, I would have thought the question would be whether it's consistent with its prior rules.

Of course it can change those rules, if it wants, but it hasn't.

Mr. Wettstein: That's correct.

Justice Breyer: And that's why I asked you, what is the prior rule.

Is the prior rule adopt the Handbook?

Is the prior rule the word grossly disproportionate, or is the prior rule something else, because whatever that prior rule is, I guess they should have applied it here in the one paragraph, so what is it?

Mr. Wettstein: Well, yes, Your Honor, I think the Government would agree that the prior rule is Matter of McMullen, and there has been no other decision by the Attorney General.

Chief Justice Rehnquist: Well, are... do you agree with Justice Breyer that an agency could not come out differently in a particular case from the way it had before without some sort of an elaborate procedure?

Mr. Wettstein: Well, Your Honor, since McMullen is... was the precedent decision here, I think if the board...

Chief Justice Rehnquist: Well, supposing this were just the Attorney General, you know, not a BIA or something like that, the Attorney General under the... and last year she says, well, I think McMullen is right, then this year she says, well, no, I'm not... I'm going to back away from McMullen some.

Mr. Wettstein: She certainly could do that.

Chief Justice Rehnquist: Is there some administrative law rule that says she can't do that?

Mr. Wettstein: Well, Your Honor, she has, in fact, done that in a case where...

Justice Breyer: Aren't you going to answer yes to that, that an agency does have to focus on it?

Mr. Wettstein: Well, the Attorney General, Your Honor, is... has authority over the Board of Immigration Appeals.

As you've noted, the board is a creature of the Attorney General, so at least under the statute she can overrule a decision the Board of Immigration Appeals has made.

Justice Scalia: Without focusing on it, even.

Without focusing on it.

That's what Justice Breyer...

Mr. Wettstein: Without focusing on it.

Justice Scalia: Does Arizona Grocery apply...

Yes.

Justice Breyer wants you to adopt the position that an agency cannot alter its course from a prior adjudication without focusing specifically on that adjudication.

Mr. Wettstein: Well...

Justice Scalia: Now, if you say that you agree with Justice Breyer, I'm going to ask you what case you have in mind that says...

Justice Breyer: Arizona Grocery.

Justice Kennedy: You say Arizona Grocery is the hornbook...

Unidentified Justice: [Laughter]

Mr. Wettstein: Arizona Grocery.

[Laughter]

Arizona Grocery.

Justice Breyer: It's, an agency has to follow its own rules.

Mr. Wettstein: Well, we don't even have to reach that here, of course.

Justice Scalia: The agency does have to follow its own rules...

Right.

Mr. Wettstein: Right.

Justice Scalia: in the sense of regulations.

Justice Breyer: Arizona Grocery had no regulations.

Mr. Wettstein: Well, I don't think we even have to reach that here, because the board did not purport to change its policy.

Justice O'Connor: Well, I thought here the board had taken the position in McMullen and in this case that the question of whether a crime is a political offense is primarily one of fact.

I mean, that is primarily a fact issue, and the board here determined as a matter of fact that it was one that followed the language of the statute.

Mr. Wettstein: Uh-huh, that it was... the criminal nature outweighed the political nature.

Justice O'Connor: Right.

Mr. Wettstein: But Your Honor, that's all they said.

They just simply announced it, and they violated another cardinal principle of administrative law that the agency is supposed to show that it reasoned and not merely reacted, and here the agency just simply concluded, so it isn't as if they overturned McMullen, or... they purported to apply McMullen, but they did not adequately apply... they did not...

Justice O'Connor: Well, have we applied some special rule in the area of fact determination that says they have to explain it, or can they just determine the facts, and do we owe some deference to that factual determination?

Mr. Wettstein: Well, Your Honor, in this case, certainly if they had properly applied the tests they would have reached a separate... a different result.

They simply concluded that the political element outweighed the criminal element, but if they had considered whether Mr. Aguirre had political motivation, whether there was a link between his acts and the goals, they would have reached a separate decision.

So yes, I think the facts... if it were... was just a fact determination, if they had properly applied their tests, they would have reached a different determination.

Justice Souter: Well, advert if you will for a minute to what the Ninth Circuit said.

You... in the first place, I guess the third reason for which the Ninth Circuit thought there had been error was the failure to consider the seriousness of the persecution.

And I think you mentioned earlier that McMullen didn't involve that, so that's an open question so far as McMullen goes.

Mr. Wettstein: That's right.

Justice Souter: And quite obviously the board did not in this case think that whatever the relevance of that factor might be, if relevant at all, would have been in favor of your client.

Go to the second... I think it was the second reason that the Ninth Circuit gave, and that was that the board had failed to consider the possibility of a gross disproportionality, or the significance of gross disproportionality between the political and the common law character.

In McMullen, did the board adopt a gross disproportionality?

Mr. Wettstein: Yes, it did, Your Honor.

Chief Justice Rehnquist: Did they use that term?

Mr. Wettstein: That's right.

Justice O'Connor: They used that term?

Mr. Wettstein: It applied the gross, and it also applied the atrociousness test.

So it applied both of those tests and found that McMullen's actions, contrary to Mr. Aguirre's actions, were in fact grossly disproportionate and were atrocious, and...

Justice Scalia: Did they say that that was a condition, that that condition always had to exist in order for the crime to be nonpolitical?

Mr. Wettstein: No, Your Honor, they didn't say it was a condition, but it does... those were the tests that they applied, and that again mirrors...

Justice Souter: They considered it a relevant factor, is that... would that be a fair way to...

Mr. Wettstein: I'm sorry, Your Honor.

Justice Souter: In McMullen did they say, look, it's just one of the things that ought to be considered, is there gross disproportionality or isn't there?

Mr. Wettstein: Yes.

Justice Souter: Without saying that if you satisfy that test a particular result necessarily follows.

Mr. Wettstein: That's right.

Justice Ginsburg: Okay.

Mr. Wettstein: They did not say, this is an absolute condition, but they said, here is what we consider, and what they consider mirrors the Handbook...

Justice Scalia: But they found it nonpolitical here even without finding it to be atrocious.

Why should they then move on to consider the atrociousness factor?

Having found that the other factors have already rendered it nonpolitical, if the atrociousness factor is not essential, as you say it isn't, then what's the harm that's been done?

They looked at the other factors and they said, I look at these other... it's nonpolitical.

Mr. Wettstein: Well, Your Honor...

Justice Scalia: I don't even have to consider whether it's atrocious.

Justice Stevens: Maybe it is, maybe it isn't.

Justice Scalia: Who cares?

Mr. Wettstein: Uh-huh.

Justice Scalia: It's nonpolitical because of these other reasons.

Mr. Wettstein: Your Honor, I don't want to mischaracterize what I said.

It isn't that the board in McMullen said it isn't a necessary factor.

Those are the factors they considered.

They didn't say which ones of those are necessary and which ones are not...

Justice Scalia: Well, then...

Mr. Wettstein: so it may be that's a necessary factor.

Justice Scalia: But then it seems to me the agency could have done just exactly what I've said, and certainly we give the agency the benefit of the doubt.

What... I mean, I assume we apply a substantial evidence test on all those factual matters, right, so there's some evidence that could support the agency's determination, is that right?

Although I'm not sure the Ninth Circuit did that.

It seems to me they reviewed all the factual determinations de novo.

Mr. Wettstein: Well, Your Honor, it isn't so much a factual determination here as a procedural determination.

The Ninth Circuit did not reach its own substantive conclusion.

It simply remanded to the board for it to apply its test, so it's really more procedural errors.

Justice Ginsburg: I... let's concentrate on what the BIA did, because it seems to me that in characterizing what went on here, it did even what the Handbook says, and it says, in determining whether this is political or nonpolitical, its closest to the political camp when you're acting against the Government or Government personnel, much more iffy if your target, the person you're actually hitting on, is a private individual, or a private company, and then weakest of all when you're hitting on private individuals and you're trying to produce general chaos.

Now, here the people who were hurt, even if just temporarily, because they were lassoed and hit... we'll leave out the stones... were private individuals.

The shopkeepers whose merchandize was trashed were private individuals.

So it seems to me that that falls in a category where to call it political is highly questionable even on the... all the U.N. standards.

Mr. Wettstein: Well, Your Honor, the statute does not say, and the Government seems to be trying to read into the statute, the word civilians, or noncivilians.

The statute doesn't exempt political actions taken that happen to affect civilians.

Justice Ginsburg: Do you agree with the statement that's made in that U.N. brief that the political link is strongest when the target of the activity is Government personnel and property, or is that wrong?

Mr. Wettstein: I would agree with that, Your Honor, but that does not mean that actions that by necessity are diffused, and not as they were in Guatemala... it wasn't as if you had an armed insurrection against...

Justice Ginsburg: But we're talking about what the applicant's acts were.

And the next thing I read from the U.N. brief is, the link is weakest when the politically motivated act... nobody disputes that these acts were politically motivated... when the politically motivated act is principally directed against private interests.

Mr. Wettstein: Mm-hmm.

Justice Ginsburg: And the... whatever... the bus was privately owned, was it not?

Mr. Wettstein: Yes, Your Honor, but as in one of the other amicus briefs, the buses were not just simply privately owned.

The Government had enormous involvement in the bus...

Justice Ginsburg: The individuals who were on the bus were just ordinary individuals.

They weren't...

Mr. Wettstein: That's true, Your Honor, but of course...

Justice Breyer: Government servants.

Mr. Wettstein: the goal here was to prevent harm to the passengers, not to hurt the passengers.

The passengers were not targeted.

Justice Ginsburg: So that's why they burned them?

Mr. Wettstein: I'm sorry?

Chief Justice Rehnquist: That's why they burned them, the buses?

Mr. Wettstein: Well, no, the buses... the people were moved off the buses before the buses were moved, Your Honor.

That was the goal of moving the passengers, so they would not be harmed.

The goal was to prevent greater harm to the passengers.

The buses were burned as a protest of the 100-percent bus fare increases, which the Government approved.

The Government in Guatemala approves the bus fare increases.

It regulates the bus routes, it regulates the...

Justice Ginsburg: What about the shopkeepers whose merchandise was just trashed?

Did the Government... has no... you describe the bus transportation that's in close with the Government, but these private shopkeepers who had their merchandise trashed, for what reason?

Mr. Wettstein: Well, Your Honor, obviously in this country in this day and age we don't like these acts.

These acts are offensive to us, but that's not really the test.

The test is, under the conditions that Mr. Aguirre found himself in Guatemala, was this out of proportion to his political goals?

Justice Breyer: Suppose I agreed with you, purely for the sake of argument, on three points... two anyway.

Suppose I disagree... suppose I thought the law prior to this case in the board is really murky.

There isn't a clear rule.

Assume that with me.

I'm not saying whether that's so, so assuming.

Assume, second, that this administrative law judge really went into this in the greatest depth.

And after really going into it he says, you know, on balance this is a political crime.

There are some things for, some against, but I think it is basically.

Then he gets reversed by the appellate, the BIA, and they do it with one sentence, just saying, well, we think it outweighs, nobody focusing on the right test, nobody doing anything.

That's disturbing to me, if those assumptions are true.

What principle of law would justify my sending the case back for further work by the board?

Mr. Wettstein: Your Honor, the principle that you mentioned earlier, which is...

Chief Justice Rehnquist: No.

Justice Breyer: I've assumed that out of it, because I've said that the previous... I'm assuming... I'm going to read all that stuff, but I'm now assuming against you that the previous state of the art in the board is all murky.

They don't have a clear rule, and there's nothing that says you have to follow a rule that isn't there, so if it's murky, you see... let's assume that's all murky.

And now let's also assume, which I think is true, that the ALJ here really went into this factually, and then what I think is also true is, he gets reversed by the board with a simple sentence which doesn't analyze anything, which doesn't purport to say what's the right test, it's nothing.

It's just somebody saying, oh, you're wrong.

Mr. Wettstein: Uh-huh.

Chief Justice Rehnquist: Okay.

Justice Breyer: Now, if all that's true, what principle of law will justify your victory, which is victory in the sense of getting it sent back?

Mr. Wettstein: Right.

Well, Your Honor, the board itself has said on numerous occasions that the immigration judge's decision is itself entitled to deference, because the immigration judge is the one who observes the witness, and that's certainly what happened here, and heard the testimony, including the mistakes in the testimony.

Justice Scalia: I didn't understand that this was your appeal, that what you were complaining about here is the procedural failure of the board to have an adequate opinion explaining its overruling of the administrative law judge.

Is that in your... I don't recall reading that portion of your brief.

Mr. Wettstein: Yes, it is, Your Honor, because after all the court of appeals gave three reasons for reversing the board.

And two of those reasons, the first two of those reasons were the failure to apply its previous precedent and the Ninth Circuit precedent.

The third reason was the persecution balancing, and that's what's the balance of the Government's brief and, of course, the balance...

Justice Scalia: Was any... please, let me... was any of the reasons the failure of the board to explain itself in adequate detail?

Mr. Wettstein: Yes, Your Honor, it certainly was.

If you'd like me to point to that section of the brief...

Justice Kennedy: Yes, I'd... I'd...

Mr. Wettstein: Okay.

Justice Scalia: I mean, I know they said the board was wrong, but I don't think that they... I don't recall just a procedural objection.

Even if the board was right, they didn't have an adequate opinion, which is...

Mr. Wettstein: Beginning on page 29 of our brief...

Justice Scalia: Of the...

Mr. Wettstein: Your Honor, there's a correct standard for...

Justice Scalia: 29 of what?

Mr. Wettstein: Of... sorry, of our brief.

Justice Scalia: Yes.

Mr. Wettstein: Of the respondent's brief, and...

Justice Ginsburg: Was Justice Scalia asking about your brief, or about the Ninth Circuit?

Mr. Wettstein: Well, I thought he was asking about...

Justice Scalia: Well, both.

I...

Mr. Wettstein: The issue was whether the case concerned... in other words... we're arguing that the court of appeals did not... that the board's failure to apply properly the... it's own test was...

Justice Kennedy: No, no.

Justice Scalia: That is different.

That isn't the point.

Justice Breyer was making a purely procedural... and you know, I like procedure.

I used to teach administrative procedure.

Unidentified Justice: [Laughter]

Justice Scalia: And he was making a purely procedural point, that even if the board was right, it didn't explain itself.

And I don't recall that being in this case, either at the Ninth Circuit level or in your submissions to the Court.

Now, if it's there I...

Mr. Wettstein: I think it certainly was in the court of appeals decision too, Your Honor.

If we look at...

Justice Breyer: If you can't find it, maybe you can just file it with...

Mr. Wettstein: No, I have it here.

Chief Justice Rehnquist: Do you have it there?

Mr. Wettstein: Yes.

It's... this is in the petition for certiorari, page 5a, 4a and 5a.

The court said...

Chief Justice Rehnquist: Whereabouts on the page are you going to reading from?

Mr. Wettstein: Let's see, 4a on the second full paragraph.

First, the board looked only at the offenses of Aguirre, et cetera.

Under the protocol, the board should have first determined the nature and purpose of Aguirre's acts, that is, whether they were committed out of genuine political motives... this is in the McMullen...

Justice Scalia: That's saying that they didn't apply the proper tests, which I understand that to be in the case.

You're saying they didn't apply the rule that the board had before it.

But I'm not talking about whether they didn't apply the proper rule.

I'm just talking about the fact that they didn't explain themselves.

It was simply unexplained, and I don't recall that being in the case.

Mr. Wettstein: Well, I think that's putting it generously, Your Honor.

If you say that the board did not apply the proper rule, that's actually what the court accused them of having done, and that's what we accuse them of having done, too, but I think the question here is, if they applied the proper rule but didn't explain themselves correctly.

Chief Justice Rehnquist: Well, but that's in... you say the question here is if they didn't explain themselves, but I simply don't see that in the part of the Ninth Circuit opinion you just quoted, that they are... that the Ninth Circuit is saying that, that... they're saying several reasons why the board was wrong, but as I read it, one of them was not that it didn't fully... that it didn't explain itself in its opinion reversing the immigration judge.

Mr. Wettstein: Well, I think, Your Honor, because the Ninth Circuit assumed that there were tests in place.

Now, Justice Breyer's question was that, let's assume there are no tests in place, but the court had a test to work with, so it was not dealing with the situation you suggested, which is where there's no test.

And then you say, well, you just didn't explain yourself correctly, but in fact this is worse...

Chief Justice Rehnquist: But they're still reversing the immigration judge, and I understood part of Justice Breyer's question to be, you know, was the board wrong for reversing the immigration judge without giving any explanation for doing it, and I don't see that as being in the case.

Justice Breyer: Do you think it is?

Mr. Wettstein: Well...

Chief Justice Rehnquist: You can answer that yes or no.

Mr. Wettstein: No, Your Honor, because the court had more to work with.

The court had the test that the board did not apply, that Justice Breyer wrote out of our hypothetical.

So therefore the court didn't have to say, there's no test here but you just didn't explain yourself, because the court had something more concrete to use, which was, here's this test, you have adopted the test, you didn't apply the test, go back and do it.

That's really what the court said.

Justice Ginsburg: There's one issue of at least, it seems to me clear, and I think we have to decide it one way or another, whatever else we decide.

The Ninth Circuit said, the board erred as a matter of law in failing to consider the persecution that the applicant might suffer if he returned to Guatemala.

We have, as was noted, a square conflict.

The House of Lords goes one way on that, a lower court in Canada goes the other way on that.

We are being asked to decide that question of law.

The House of Lords decided as crisply as it could the crime either is or is not political when committed.

Its character cannot depend on consequences the offender may... actually would suffer if he returned.

Mustn't we decide at least that question, either the Canada court is right, or the House of Lords is right?

You said we don't have to...

Mr. Wettstein: No, Your Honor.

In fact, the Attorney General has not determined that question, so it may be appropriate to remand to the Attorney General to determine that question in the first instance, whether, in fact, the risk of persecution needs to be considered when you're applying this exclusion ground, so this Court certainly does not have to reach that question.

Justice Ginsburg: Well, I'll ask for clarification whether indeed it's true that the Attorney General has not resolved that issue.

Mr. Wettstein: Right.

The only precedential decision that the Government cites for that position is Matter of Rodriguez-Coto, Your Honor, which is a 1985 decision, has never been cited again for that principle, and in fact...

Justice Ginsburg: It's never been rejected, and it's a flat-out statement, right in the thing, we reject the balancing test.

Mr. Wettstein: Well, Your Honor, the case did not... rejected the balancing test for two different exclusion grounds, and it did not... the case itself did not deal with this exclusion ground, and it has never come up subsequently.

And the Attorney... so there has never been an opportunity, in fact, the board here in this case didn't decide it, either, so there's never been an opportunity for the Attorney General to make a decision.

Now, the Attorney General could have drafted regulations adopting one position or another, but that has not happened, so there actually is no precedent.

Justice Ginsburg: Well, you point to the ambiguity in a statement that we reject any interpretation of the phrase, particularly serious crime, serious nonpolitical crime, which would vary with the nature of the... of evidence of persecution.

Mr. Wettstein: Right.

No, Your Honor, I'm not saying the language itself they use there is ambiguous.

I'm simply saying that the board... that was... this was not the issue in that case, and so it's dictum for that reason.

It's also dictum for the other reason that the board had three other reasons for its decision in that case before it got to this.

That case dealt with...

Justice Ginsburg: Well, am I wrong in getting the picture that the board has twice said, it's an open question with us?

One said, in dicta, it's closed, we're rejecting it.

Mr. Wettstein: That's correct, Your Honor, and I think the board would say it was not bound by Rodriguez-Coto if it wanted to reach the opposite decision.

Thank you.

Rebuttal of Patricia A. Millett

Chief Justice Rehnquist: Thank you, Ms. Wettstein.

Ms. Millett, you have 4 minutes remaining.

Justice Ginsburg: Is it true that the Government has no position on the balancing test, the third ground of the Ninth Circuit's decision?

Ms Millett: Absolutely not.

The position was taken in Rodriguez-Coto, it needed to be taken there because he had committed crimes in Cuba and in the United States; those had to be addressed and, if nothing else, the Attorney General's position is clearly reflected in our brief in this case.

Now, the reason it was not mentioned specifically in the board's decision is... I would like this Court to keep in mind that the respondent didn't file a brief before the Board of Immigration Appeals, so before this Court sends it back for the board to do it again, please keep that in mind.

Secondly, on the question of the test, and was it correctly applied, and consistently, I'd like to refer the Court to petition appendix 17a, 18a, where the test is quoted.

The carry-over paragraph at the top of 17a, right near the end, in evaluating the political nature of a crime, we consider it important that the...

Chief Justice Rehnquist: 17a of the petition?

Ms Millett: Petition appendix.

We consider it important that the political aspect of the offense outweigh its common law character.

Where the phrase grossly out of proportion comes in is simply in the next sentence as an example of something that would be outweighed.

Grossly out of proportion is not the test.

It is proportionality or atrociousness.

The Ninth Circuit made it, and, and we believe that they should not have done that.

Second, the discussion in the following paragraph, right under analysis and conclusions, and then on the next page, 18a, there's an entire paragraph saying why that balancing was struck against the respondent in this case.

Now, not only did they not file a brief, but... it is our position that some crimes don't require a lot of explanation, and that masked men wielding sticks, lobbing stones, forcing people out of stores, destroying stores, and splashing gasoline on buses and setting them on fire doesn't require a lot more than what the board said here.

Justice Ginsburg: With all that, suppose it were established crystal clear that if this person is sent back to Guatemala he will be horribly tortured, the answer would still be the same?

Ms Millett: The answer under the withholding of deportation provision would be the same.

However, as we reference in our reply brief, there is now a torture on convention that the United States is a party to, and that the Immigration and Naturalization Service has recently issued regulations on, and that sets up a procedure...

Justice Scalia: Convention on Torture, you mean.

Ms Millett: Convention on Torture.

Justice Scalia: There are those of us who think that there should be torture for a convention, maybe...

Unidentified Justice: [Laughter]

Ms Millett: I apologize, Convention on Torture.

And that sets up the regulations, which I would be happy to lodge with the Court if it's interested, set up a procedure called deferral of removal for someone who is disqualified from withholding of deportation, but meet... can show and meet the convention's definition of torture.

Justice Breyer: What's bothering me, and I can't quite get my hands on it, is this... is purports to be, as it's presented, an argument about what standard to apply.

But looking at the paragraph that you just read, and the Ninth Circuit, it may be that everybody agreed on what the standard was, and it's that McMullen standard, and this is really a case about whether or not that BIA board applied the standard that they purported to apply.

Ms Millett: The problem is that...

Justice Breyer: And if I read through this record and come to that conclusion, I'm not sure what to do.

That's why I ask the question.

If this isn't really a case where people are disagreeing about standards, at least in the political... they may be on the serious word, the word serious, but they may not be on the word political.

It may be grossly disproportional is what they mean.

Ms Millett: The problem is that in addition to balancing the risk of persecution the Ninth Circuit added two new factors, and it is not at all clear to us that those are not intended to weigh upon this political analysis.

Two new factors to add on top of this disproportionate analysis.

Justice Breyer: Which are?

Ms Millett: One is changing the or atrocious to and atrocious, or and approaching atrociousness.

Secondly is necessity and success.

Now, maybe they would come under both factors, but it's... I think it's critically important that this Court hold that the Attorney General is not compelled to adopt those standards.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. Millett.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Reno v. American-Arab Anti-Discrimination Committee - Oral Argument

Fri, 09 Jan 2009 14:50:11 +0000

Case:

Reno v. American-Arab Anti-Discrimination Committee

Media File:

97-1252_19981104-argument.mp3

Related Transcript:

1998_97_1252_argument.xml

Transcript:

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: We'll hear argument first this morning in Number 97-1252, Janet Reno v. American-Arab Anti-Discrimination Committee.

Mr. Stewart.

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

Congress has legislated repeatedly to streamline the process by which decisions concerning the admission and removal of aliens are reviewed in the courts.

Consolidation of judicial review and avoidance of piecemeal litigation have been integral features of past legislative measures.

The 1996 immigration reform statute is Congress' most recent effort to achieve those goals.

Our position in the present case, however, does not depend on the existence of any special rule for immigration matters.

Rather, as applied here the effect of the 1996 act is simply to reaffirm the generally applicable rule that the filing of administrative charges is not a final agency action subject to immediate judicial review.

Indeed, if respondents have identified no case, either in the immigration context or otherwise, in which a court has entertained a constitutional challenge to an agency's decision to commence administrative proceedings.

Dismissal of...

Justice O'Connor: Mr. Stewart, may I ask you, what if the statutory scheme precluded review of a constitutional claim such as these respondents make?

Mr. Stewart: If the statutory scheme altogether precluded judicial review, that is not only at the present time but after the entry of a final order of deportation...

Justice O'Connor: Right.

Mr. Stewart: the Court has held that preclusion of all judicial review would raise a serious constitutional question.

That's not the same thing as...

Justice O'Connor: We don't know at this juncture if your interpretation of the statute is correct.

What other mechanisms exist for review of their constitutional claim?

Mr. Stewart: Well, we certainly know that there has always... both before and after the 1996 act there has been a provision authorizing a petition for review in the court of appeals after the entry of a final order of deportation, and I think there's general agreement that a petition for review...

Justice O'Connor: But it requires a factual development in their case.

Mr. Stewart: And if the... if there were ultimately final orders of deportation entered, and the respondents raised a constitutional challenge based on selective enforcement, and if the court of appeals then concluded that fact-finding was necessary in order to resolve the constitutional issue, it would then be required to determine whether a mechanism existed under the applicable statute.

Now, we believe 28 U.S.C. 2347(b)(3) would provide that mechanism, but...

Justice Souter: It might provide the mechanism if the issue is properly raised, but can the issue be properly raised when it would not be based on anything in the record of the proceedings at the administrative level?

Mr. Stewart: I think it would be properly raised in the sense that the respondents would claim that execution of... if the respondents claimed that execution of the deportation order would violate their constitutional rights because the charges were initiated on the basis of unconstitutional considerations, I think that is a claim that would properly be before the court of appeals.

Justice Souter: So is that the Government's position, that we may rely on that representation that you have just made about the legal position that the Government would take in those circumstances?

Mr. Stewart: That is correct.

That is not to say that we would concede either in the present case or in any other case that fact-finding actually is required in order to determine the merits of the claim.

Justice Souter: But you would concede that the issue may properly be raised.

Mr. Stewart: That's correct.

Chief Justice Rehnquist: Well, Mr. Stewart, these cases were pending at the time of the enactment of IIRIRA, were they not?

Mr. Stewart: That's correct.

Chief Justice Rehnquist: So isn't the habeas corpus relief provided for in 1105(b) available?

Mr. Stewart: Well, habeas corpus under the former statutory scheme was only in cases of orders of exclusion.

It wouldn't have applied to orders of deportation.

If...

Chief Justice Rehnquist: But as I... perhaps I don't have it written correctly here.

It says, any alien held in custody pursuant to an order of deportation.

Mr. Stewart: Well, if and when the aliens were held in custody that would be...

Chief Justice Rehnquist: Well, surely they must be held in custody before they're... you can't deport them without having them in custody.

Mr. Stewart: Well, the only... the basis for... if you look at page 1a of the appendix to the Government's brief, former section 1105a(a) was... it's entitled generally Judicial Review of Orders of Deportation and Exclusion, and it says, Exclusiveness of Procedure, and then it says, the procedure prescribed by and all the provisions of chapter 158 of title 28, which is the Hobbs Act, says, shall apply to and shall be the sole and exclusive procedure for the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States.

And as the legislative history of the 1961 amendments to the Immigration and Nationality Act make clear, that provision was enacted in 1961 to replace a former system under which multiple avenues of review had been available for challenge by orders of deportation.

Chief Justice Rehnquist: What's the purpose of 1105a(a)(9), which talks about habeas corpus for people held in custody pursuant to an order of deportation?

Mr. Stewart: I would assume that would address the situation in which the alien challenged the detention itself, perhaps because it was prolonged, rather than challenging the validity of the final order of deportation, because as I say the legislative history of the 1961 amendments to the INA indicate that the provision for Hobbs Act review in the court of appeals was specifically intended to replace prior duplicative avenues of review.

Justice Scalia: It's very bad English if that's what it means, because it says any alien held in custody pursuant to an order of deportation may obtain judicial review thereof.

Now, that thereof refers to an earlier noun, and the only earlier noun available is order of deportation.

Mr. Stewart: I think that is correct looking at that provision in isolation, but I think that provision is viewed in conjunction with (a)(1), which says specifically that judicial review in the court of appeals under the Hobbs Act is the only means of challenging the final order of deportation itself.

And again, one of the things I'd emphasize is that uncertainty as to what precisely would be the proper avenue for reviewing the final order of deportation really shouldn't distract the Court from the question of whether the instant suit was properly commenced.

That is, even though there might be some disagreement between the parties as to precisely how a judicial review of the final order would be carried out, I think there is a common agreement that final orders of deportation are judicially reviewable.

Justice O'Connor: Well, to the extent that we have to give meaning to a statute that is certainly ambiguous in part as to how it works in the interim, period, if no review is available of these constitutional claims, that might influence our interpretation of the statute.

That's my concern.

Mr. Stewart: It might influence... I think to take a worst case scenario from the Government's standpoint, if the Court believed that Congress had unambiguously foreclosed all judicial review of respondents'... of selective enforcement claims either before or after the entry of a final order, and if the Court held that respondents were constitutionally entitled to judicial review so that the deprivation of all review would be a constitutional violation, the Court would then have to determine what the proper remedy was, and we would submit that it is much more consistent with the overall scheme of the immigration statute and with general principles of administrative law that review be provided at the end of the process.

Again, we're not asking for a special rule for immigration cases, but just...

Justice Stevens: May I ask in that regard, you rely in part on 2347(b)(3), and I understand you to say you think that would be available even though there would have been a hearing before the agency.

Mr. Stewart: Yes, because there would not be a hearing with respect to the issues.

Justice Stevens: On a particular issue, on a particular constitutional issue, so you say they... now, what is the legal effect of your advice to us on that interpretation of 2347(b)(3)?

Would that preclude the Department of Justice when the case actually reaches that stage from making a contrary argument, do you think?

Mr. Stewart: I don't know that it would be appropriate for a current Department of Justice employee ever to purport absolutely to bind future Department of Justice employees.

Certainly, if the Court wrote an opinion saying that the instant suit was barred based on its reading of the statute to allow a judicial review at the end of the day, the Court's opinion would give the respondents the necessary assurance that review would ultimately be available, whatever the binding effect of my representation might be.

And again, the other point I want to make is, if it... if the Court at the end of the day concluded that section 2347(b)(3) simply was unambiguously unavailable to the aliens, and that there was... and if the Court further concluded that the aliens were constitutionally entitled to judicial review of their selective enforcement claims such that a denial of fact-finding would be a constitutional violation, the obvious remedy would be for the Court to fashion an appropriate mechanism similar to the section 2347(b)(3) transfer.

That seems to us a remedy for a hypothetical violation that is far more in keeping, again, both with the overall structure of the immigration laws...

Justice Stevens: Do you think the Court could do that if the Court concluded that it was constitutionally compelled?

What if the Court merely concluded, as you sort of admit as of now, that it's a very serious constitutional doubt on the issue?

Mr. Stewart: I think if the Court concluded that there is a serious constitutional doubt, then it would presumably make every effort to read the statute in order to allow for such review, and I think whether or not our reading of the statute is the one that the Court would consider to be the better one, our reading is certainly reasonable enough that a court could in good conscience adopt it in order even to assuage a serious constitutional doubt.

Justice Stevens: And your reading basically is, when the agency has not held a hearing on the particular issue, then (b)(3) triggers.

Mr. Stewart: And here it's not simply... I think that's right, but here it's not simply the particular issue, it is the particular action, namely the filing of charges.

At the end of the day, the selective enforcement claim would be a challenge to the decision to bring charges in the first instance.

Justice Kennedy: Well, can we proceed on the assumption that Mr. Cole and his clients cannot make in the administrative proceeding the record and the showing that's necessary for them to sustain... support their legal claim?

Mr. Stewart: I think we can make that assumption.

That is, the immigration judge and the Board of Immigration Appeals are not authorized to adjudicate claims of selective enforcement.

Now, it is possible that in the course of trying the deportation charges evidence would emerge that would be relevant to the final resolution of the selective enforcement claims, but I think it's correct we can't count on that happening.

Justice Kennedy: And to the extent that there is a temporal urgency to First Amendment claims, then we have to proceed on the further assumption that a First Amendment claim is likely to be delayed pending the administrative hearings, the adjudication of the First Amendment claims.

Mr. Stewart: Well, I mean, I think in a sense your question depends upon the empirical premise that if somebody files a lawsuit alleging selective enforcement, that lawsuit is likely to be finally resolved before the deportation proceeding would be resolved if the matter went forward in that manner, so I don't know that it's necessarily the case that allowing an immediate selective enforcement challenge would speed up ultimate resolution of the First Amendment issue.

But the second point we would make is that there is no constitutional right to immediate adjudication of First Amendment claims simply to eliminate subjective uncertainty as to what a person's rights are.

That is, here, the respondents do envision a potential concrete harm, namely the ultimate entry of a final order of deportation against them, which they say would be in violation of their First Amendment rights.

But to the extent that they're worried about that harm, they clearly have an adequate remedy, because they can file a petition for review of the final order of deportation itself.

The only harm that they're suffering in the interim is subjective uncertainty as to what the state of the law is, exactly what they can do, which they characterize as chill, and...

Justice Ginsburg: Mr. Stewart, I take it from everything you've said here and in your brief that you are accepting that there is such a claim as selective enforcement, so that you are not urging in any way what, for example, this Court held in the Whren case, that you don't look behind what the officer does for his motive.

Mr. Stewart: I think we are accepting there is such a thing as a selective enforcement claim.

I don't think we would accept the principle that whenever a selective enforcement claim is made out the automatic remedy would be vacatur of the final order of deportation.

Chief Justice Rehnquist: Well, there's also a question of just what is selective enforcement in an immigration context, since the immigration statute itself is laced through with distinctions as to nationality.

Mr. Stewart: That's correct.

I mean, in the present case, at the time the initial deportation charges were filed the McCarran-Walter Act made membership in various forms of hostile organizations a separate and independent ground for deportation, so the very basis of selectivity that the respondents claim was constitutionally impermissible was itself-recognized by Congress as a valid basis upon which deportation decisions could be made.

So while we could imagine extreme situations such as the agency deciding solely on the basis of race to file charges against one person and not another, it doesn't follow that what might be an impermissible basis of selection in other contexts would be an impermissible basis for selection in the...

Justice Ginsburg: Mr. Stewart, is there anything other than imagination?

Is there any experience?

Have there been any past cases where it was charged that the Immigration and Nationality Act was being enforced in an impermissibly selective way against people of a particular race, religion, political belief?

Mr. Stewart: I don't remember any right now.

I know that there was a challenge brought by a Mr. Rafidi in the D.C. Circuit that was a challenge to the processing of his deportation charges or exclusion charges.

I don't remember whether that included a claim of selective enforcement.

There has certainly not been a history of frequent claims of selective enforcement.

I think part of the reason for that is that people understand that immigration officials have very wide discretion, that matters regarding the admission and the ultimate removal of aliens are largely entrusted to the political branches, and therefore people understand that bases for selection that might appear unwarranted in other contexts would not be valid grounds for constitutional claims in the deportation context.

Justice O'Connor: Mr. Stewart, these particular respondents, the deportation proceedings have been going on for some time, have they not?

How many years now?

Mr. Stewart: Approximately, a little over 11-1/2 years.

Justice O'Connor: And do we still have all of the respondents before us, or has the situation changed in 11 years?

Mr. Stewart: The situation has changed.

We have referred to the eight respondents as the six and the two.

The two are Hamide and Shehadeh, and they are permanent resident aliens as to whom the deportation charges are actually based upon the terrorist activity, the support of the PFLP.

With respect to the six, actual charges were based on routine status violations, overstaying a visit, failure to maintain student status, and the allegation was that we would not have pursued those charges but for there are ties to the PFLP.

With respect to two of the six, two of the six have obtained legalization, and consequently they would not... they would no longer be subject to the routine status violations, so in a sense their claim of selective enforcement is moot.

Now, as the respondents' counsel has pointed out, there does remain at least a theoretical possibility that we could seek to deport them based upon the actual affiliation with the PFLP, and in that sense it's not altogether out of the question that the issues raised by this case could affect them, but...

Justice O'Connor: Mr. Stewart...

None of these people are in custody.

Mr. Stewart: That's correct.

Justice Scalia: Thank you.

Would you walk us through the Government's position in this case, by statutory provision?

I guess the first one we have to look to, because this came up in the transitional period, the first provision we have to look to is subsection (g)...

Mr. Stewart: That's correct.

Justice Scalia: of the new law.

Mr. Stewart: That's correct, which starts at the bottom of page...

Justice Souter: 17...

Mr. Stewart: 17a.

That's correct.

Justice Souter: Okay, so that's where we start.

Mr. Stewart: That's correct.

Justice Scalia: Now, why... and you say that this somehow refers us to the old 1105.

Mr. Stewart: Well...

Justice Scalia: Why is that?

I mean, it says except as provided in this section...

Mr. Stewart: That...

Justice Scalia: not in the old 1105.

Mr. Stewart: That's correct.

Now, with respect to cases in which deportation proceedings are commenced after the effective date of the act, the phrase, except as provided in this section, can be given its literal meaning.

That is, the only judicial review that will be available is judicial review under new 8 U.S.C. 1252, which is entitled, Judicial Review of Orders of Removal.

Justice Souter: Yes.

Mr. Stewart: It requires final order of deportation.

Justice Scalia: But it can't be given that meaning...

Mr. Stewart: It can't be given that meaning with respect to the transition cases.

Justice Scalia: Why?

Mr. Stewart: Because if you look at the transition provisions, which are on page... the bottom of page 18a and the top of page 19a of the Government's brief, it says, general rule that new rules do not apply.

Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before the title 3(a) effective date, the amendments made by this subtitle shall not apply, and the proceedings, including judicial review thereof, shall continue to be conducted with regard to such amendments.

Chief Justice Rehnquist: Without regard.

Mr. Stewart: Without... I'm sorry, without regard to such amendments, which means that if and when a final order of deportation is entered against these respondents, pursuant to the transition rule provisions, judicial review of the final order of deportation would be conducted pursuant to former 8 U.S.C. 1105a.

Justice Scalia: Well, but that assumes... it seems to me you're reading (g) more broadly than it is written, as though it applies to all proceedings, and I don't read (g) that way.

Mr. Stewart: Well, (g) by itself would not necessarily be given that meaning, but if you look at the middle of page 18...

Justice Scalia: What do you think (g) applies to?

It doesn't apply to all deportation orders.

It only applies to the decision of the Attorney General to commence a proceeding, or the decision to adjudicate a case, not the result of the adjudication, the decision to adjudicate, and the decision to execute a removal order, not to make the removal order, but to execute it.

Isn't that as narrow as it is?

Mr. Stewart: I mean, I think that 1252(g) is not intended to provide a mechanism for judicial review.

It's simply to make clear that particular types of claims can't be brought other than through the mechanism provided in the INA itself.

Justice Scalia: But you agree it's just certain narrow claims.

It's not the whole order of deportation.

It is just... one of which types of claims happens to be the one here, where they're saying the very commencement of the proceeding was discriminatory.

This relates only to those narrow decisions.

Do you agree with that, or not?

Mr. Stewart: No.

I think whether or not the language was artful, I think that the intent was to run the gamut and to say anything having to do with...

Justice Scalia: Geez.

Mr. Stewart: the conduct of outcome of...

Justice Scalia: Well...

It's a strange way to say it.

Justice Kennedy: Yes.

Justice Scalia: To commence proceedings, adjudicate cases, or execute removal orders.

Mr. Stewart: Well, I...

Justice Souter: Those are...

Justice Scalia: Adjudicated...

Justice Kennedy: very specific...

Mr. Stewart: But I think what was happening is that former 8 U.S.C. 1105a, the old judicial review provision, said, this is the exclusive review provision for final orders of deportation, and that left us open to the claim that if what you were challenging was not the final order of deportation itself, but some preliminary stage along the way, that was not literally covered by the language of 1105a.

Chief Justice Rehnquist: One could read the section we're talking about to kind of run the gamut, as you say, to commence proceedings, adjudicate cases, or execute removal orders, kind of from beginning to end.

Mr. Stewart: That's exactly the way that we would read it, and we...

Justice O'Connor: Well, what if we don't?

What if we disagree with you and think it has a narrower meaning in this subsection (g), and that it just applies to the Attorney General's decision to commence, adjudicate, or execute removal?

Mr. Stewart: I think even if you read the provision more narrowly than we would, it certainly applies to this case, because it applies to...

Justice O'Connor: Yes, it would apply here, but what about other situations?

Justice Scalia: Well, would you have to leap back to 1105?

Couldn't you simply say it refers back to the new section?

Mr. Stewart: No, I think that's correct.

I think...

Justice Stevens: Yes, but even if you do that you've got to decide what the new section is.

Is it section 306 of the revised statute, or is it 1242 of the code, and if you make it 1242, then you don't pick up 309, as you do.

You're quoting the transition rule that comes out of section 309 of the revised statutes.

That's not part of 1242.

Justice Scalia: That's right.

Mr. Stewart: No, that's correct.

Justice Stevens: And why doesn't the word, this section, refer to 1242 as amended?

Mr. Stewart: Well, because the...

Justice Stevens: You just ignore 309(c), it seems to me.

Mr. Stewart: I mean, we would certainly have no objection with saying... and one of the things I would emphasize is that the ambiguity here is not in our view about whether the instant suit should be removed.

It's about precisely how the review proceedings will be...

Justice Stevens: Well, the first question is, what do the words this section mean?

It seems to me you've got two choices, either 306 of the revised statutes or 1242 of the code.

You don't have 309, I don't think.

Mr. Stewart: I don't think we have 309, but I think we have former 8 U.S.C. 11...

Justice Stevens: Well, but then if you don't have 309, that doesn't apply.

That doesn't affect your reading of (g).

Mr. Stewart: Well, 309 I think does affect our reading of (g), because it says the amendments made by this subtitle, which include the new 8 U.S.C. 1252, shall not apply to judicial review of final orders of deportation entered in cases that were pending on the act's effective date.

Justice Scalia: But if you think 12... but if you think (g) does not apply to final orders anyway, then nine has no application to (g).

If you're reading (g) more narrowly so that it doesn't apply to final orders, it applies only to the Attorneys General decision to commence, to adjudicate a case, or to execute a removal order.

It doesn't apply to the final product, which is the decision regarding deportation.

Mr. Stewart: I mean, we would be perfectly happy with that reading...

Justice Scalia: Then you wouldn't have to go... then 309 wouldn't govern it, right?

Mr. Stewart: That's correct, and... well, 309 would still govern, because 309 would say, review will ultimately be conducted without regard to the 1996 a... act, namely, under former 8 U.S.C. 1105a.

I mean, in a sense, the view you're postulating gets us to the same place, in that the ultimate result is, if and when there's a final order, review will be under 1105a, and your reading is a way of eliminating the textual ambiguity in the phrase, except in this section.

Justice Scalia: Yes.

Justice Kennedy: Now, the Ninth Circuit read (g) as requiring it to go through all of 252 to see if the action could be maintained.

Mr. Stewart: Right.

Justice Kennedy: And it relied on (f)(2)... (f)(1).

Mr. Stewart: That's correct.

Justice Kennedy: And what's the matter with that?

Mr. Stewart: I think the problem with it is that (f)(1) is not itself an authorization of judicial review.

It is phrased as a limit on injunctive relief.

It doesn't identify any character... any category of cases as being subject to review in the district courts.

Whether it's message is, even if a case is properly under review, the relief shall not extend beyond the alien who's actually been in proceedings, so the essence is, no class-wide relief, even if a court of appeals in an individual case concludes that a statutory provision, for instance, is unconstitutional, the only relief would be to set aside the order of deportation in that case rather than to enter an injunction against applying that provision to other aliens.

If I...

Justice Breyer: Is there any... to go back... can I go back to Justice Kennedy's first question... do you remember the First Amendment question?

And I'd like to ask, assuming for argument's sake... I know you don't agree with the assumption... that they had a valid claim of immediate irreparable First Amendment injury by going ahead with a deportation, could you not... I want to know if you agree with this.

Could you not use principles such as have been found in Mathews v. Eldridge, Bowen v. City of New York, where this Court and other courts have said that an agency must waive its right to compel exhaustion where an issue is collateral, where there's serious harm, where the agency decision makes no difference?

Mr. Stewart: I think the Court has said that exhaustion requirements will often be construed not to apply in such a way as to create the potential for irreparable harm.

I don't think the Court has said that there is a constitutional right to come into court immediately, whenever you can show...

Justice Breyer: They haven't said constitutional right, but they have said, really which is a weaker case, that where there is irreparable harm, it's a collateral issue, and there's really... it's separable from the case... they said that in Mathews v. Eldridge, we won't require... that is... we're not just requiring it.

The fiction is, the court forces the agency to waive its right to exhaustion.

That's at least one way it's been put, and I just wonder if in a real First Amendment case... and theirs may be.

They say it is... that wouldn't be available to them.

And maybe you don't have an answer to that, and that's understandable.

Mr. Stewart: I mean, I think... I think because 1252(g) unambiguously bars a suit, an immediate suit challenging the commencement of proceedings, the Court could order the agency to waive that protection only if the Court held that the respondents were constitutionally entitled to an immediate review of their claims, and even upon your hypothesis that there would be irreparable injury, we wouldn't agree that there is a constitutional entitlement to an immediate judicial forum.

If I may, I'd like to reserve the remainder of my time.

Argument of David D. Cole

Chief Justice Rehnquist: Very well, Mr. Stewart.

Mr. Cole, we'll hear from you.

Mr. Cole: Thank you, Mr. Chief Justice, and may it please the Court:

The Government in this case admittedly targeted plaintiffs for core political activity such as distributing magazines, belonging to a group, and donating funds to that group's lawful activities.

It did so avowedly for the purpose of disrupting those political activities.

It now contends that plaintiffs cannot obtain a judicial ruling on whether they have a First Amendment right to engage in these activities for the entire period of time that it takes the deportation process to run its course, even though the deportation process cannot address their First Amendment claims, nor develop the necessary facts.

Justice Kennedy: It is not clear to me why the deportation process can't address their First Amendment claims.

The Government seems to say that.

You seem to say it.

It's not clear to me why.

The whole basis for the deportation proceeding is that they have engaged in this activity.

That presents it right fairly in the record.

Why can't the court of appeals, on review of the order, say, well, this is a First Amendment problem?

Mr. Cole: Well, in fact, Justice Kennedy, the basis for the deportation of six of the eight has nothing to do with, the ostensible basis has nothing to do with these political activities.

The ostensible basis is that one student took too few credits when he was in school, another worked without authorization when he was in school.

The Government, when they brought the charges, when they brought these technical charges said... had a press conference to say, we don't care what the technical charges are.

We want to deport them because they're associated with the PFLP.

We view this as a football game.

We don't care how we score.

So our clients have been told, you've been put into deportation proceedings because of your political associations.

You're not going to be able to litigate that in the proceeding itself.

In fact, we attempted to litigate it in the proceeding itself, the Government objected, succeeded, the BIA ruled that we couldn't adjudicate it, and the Government...

Justice Scalia: They're being deported because of their political associations.

That's not the contention.

I mean, one must assume for purposes of your argument that they are deportable.

You call them technical violations, but the fact is, they are not in compliance with what... I mean, we must assume for purposes of this case they are not in compliance with what is necessary to remain in this country as aliens.

Mr. Cole: Well, in fact...

Justice Scalia: And your assertion is that the only reason they have been picked on is because of their political reasons.

Mr. Cole: Right.

Justice Kennedy: Okay.

Mr. Cole: Which is the same as any other select prosecution claim.

Justice Scalia: That's not to say they've been deported because of that.

They've been deported because they were in violation of the immigration laws.

Mr. Cole: No, but when you make a selective enforcement claim, you show that similarly situated others, that is, other students who didn't take enough credits, have not been deported, and that they singled your client out for an impermissible basis, namely his political associations, which are protected by the First Amendment, and that is a traditional basis of a selective enforcement...

Chief Justice Rehnquist: Mr. Cole, supposing you had a selective enforcement claim in a prosecution in the district court, and the district court ruled against you, you wouldn't have a right of immediate appeal to the court of appeals on that, would you?

Mr. Cole: You probably wouldn't have a right of immediate appeal, but you would have had a right to raise that claim in a Federal court, to get it adjudicated and to get discovery on it if appropriate.

In this case, the Government's position is, for the many years it takes the deportation process to conclude, which can be 5, 6, 7, 10 years, you can't even get discovery.

This Court in Clinton v. Jones recognized that delay in discovery is significantly prejudicial to plaintiffs.

Here, they're saying we can't even raise our claim until we exhaust a proceeding that cannot address our claim in any way, that does not provide us any form of...

Justice Stevens: Mr. Cole, haven't you had discovery?

Mr. Cole: I'm sorry.

Justice Stevens: Have you not had discovery in this case?

Mr. Cole: We've been able to start discovery.

The Government has successfully stayed discovery as a result of this jurisdictional question, so we have been blocked.

We've been blocked...

Justice Stevens: How long has the case been pending?

Mr. Cole: The case has been pending since the Government brought it 11 years ago.

Justice Stevens: And during those 11 years you have not been able to conclude discovery?

Mr. Cole: Well, we were not permitted to engage in discovery at all, Justice Stevens, under this Court's selective prosecution doctrine until we demonstrated a colorable showing on both prongs.

Justice Stevens: When did you make that showing?

I'm just...

Mr. Cole: In 1994 the Court found that with respect to six of the eight we had made that showing.

In 1996 it extended that to the other two.

Justice Stevens: And how long a period between 1994 and 1996 were you permitted to engage in discovery?

Mr. Cole: We were permitted to engage in discovery for much of that period of time, although there were issues... the Government objected to virtually every discovery claim we brought...

Justice Stevens: Well, granting they object all along the line, but you... I had the feeling you did have plenty of time to persuade the district court that there was merit to your claim, and that you must have gotten a pretty good share of the facts you need for the whole case.

Mr. Cole: We did, Your Honor, but the position that the Government is taking in this case would mean that we would never have had that opportunity.

We would never...

Justice Stevens: Well, I know, but you in fact have had, is what I'm trying to say.

Mr. Cole: Right, but in terms of the legal question about how it's... how the statute is appropriately read, should it be read to allow the Government...

Justice Stevens: Well, but of course, this is kind of a very unusual case in a lot of ways.

It's a transition situation, and it seems to me we should take into account the actual facts of this transition case, which is one, as I understand it, you pretty well have the facts that you're going to litigate about later.

Maybe I'm wrong.

Maybe there's a lot of other stuff you need, but I don't know what it would be.

Mr. Cole: Well, there's still significant discovery outstanding, including depositions of a number of the individuals who were involved, and ultimately what we have to show is the Government's motive.

Justice Breyer: Why is this case different from an ordinary administrative law case?

I would have thought the ordinary route is, you go first to the agency, they decide a thing on the basis of the issues in front of them, and they create a record.

Then you go to the court of appeals, and they look at the record.

In an unusual case, where they didn't develop enough of a record, of course the court of appeals can send it to a district court or anywhere else to get record facts developed where necessary.

That's the traditional way.

The statutes are consistent with that.

And where you have an unusual claim that requires immediate decision, it's collateral from the main case and threatens irreparable injury, a court of appeals can hear that first.

They did it in Mathews and Eldridge, they've done it in Bowen, they did it in the cases involving the Haitian refugees, they've done it in dozens of cases, so I mean, that would be the normal route.

Go first to the agency.

Mr. Cole: In fact...

Justice Breyer: Then you go to the court of appeals, then you go to a district court if you need to, and if you have something... irreparable, serious harm, you get to jump the queue, all right.

Now, aren't the statutes consistent with that as much as they are in any case, and why can't you follow that rule?

Mr. Cole: The statutes are not consistent with that, Your Honor.

The first reason is that section 1105a unambiguously... there's not much that's unambiguous about these statutes, but one thing is unambiguous about 1105a and the 1996 act, and that is that the petition for review, which is authorized by statute, must be determined solely upon the administrative record, with one exception.

The one exception is for nationality claims.

Those claims can be transferred to a district court.

But what... so what Congress said was, appellate jurisdiction here has to be remedied through the administrative...

Justice Breyer: They always say that in administrative law cases.

Mr. Cole: No, in fact there is no... Justice...

Chief Justice Rehnquist: Yes.

Mr. Cole: Justice Breyer, we've found and the Government has cited to no other statute governing administrative appeals that provides that the petition for review must be based solely on the administrative record creating one exception, and in 19... and every...

Justice Breyer: All right, so just pause right there.

Your remedy for that, saying solely on the record, rather than read it solely on the record in a case that you can read it solely on the record... you know, solely on the record in the ordinary case... your remedy is, rather than read it that way, we should create some whole new set of court remedies that... that's like burning down the house because... I mean, you see...

Mr. Cole: No.

Justice Breyer: you're advocating departing even further from what Congress wanted.

Mr. Cole: No, I don't think so...

Chief Justice Rehnquist: No.

Justice Souter: Justice Breyer, and for this reason.

Justice Breyer: The traditional way that these types of claims were raised was to go to district court.

Every court which addressed a claim in an 1105a appeal that required fact-finding beyond the record said, we don't have jurisdiction.

They said that at the INS' urging.

The INS took the exact opposite position in every prior 1105a appeal raising claims requiring fact-finding beyond the administrative record.

Justice Scalia: They said, there's no jurisdiction here because of the administrative record language.

You can't transfer to a district court because of the administrative record language.

Transfer to district court would obviously be beyond the administrative record.

Therefore, under Cheng Fan Kwok and McNary you go to district court, and that's the traditional way this was done.

Justice Breyer: Now, in 1996, in the 1996 act that the Government relies upon, Congress took up this matter and they actually went to the point of adopting in the Senate bill a provision that would have changed that rule, would have said that constitutional claims requiring fact-finding beyond the administrative record can be transferred to district court, but they rejected that in the final bill and instead they readopted the language which had been uniformly interpreted to bar appellate jurisdiction at all of claims...

Which language is that, Mr. Cole, the...

Mr. Cole: The language which was rejected is in...

Chief Justice Rehnquist: The one they adopt... they adopted, readopted.

Mr. Cole: The language they readopted is... was originally in 1105a(a)(4), which says that the appeal shall be decided... let me get you the page.

It's on page 2a of the Government's brief.

It's determination upon administrative record at the bottom of the page, except as provided in clause (B), which refers to the nationality claims, this... the petition shall be determined solely upon the administrative record upon which the deportation order is based.

Now, that was the... that provision the Government had argued consistently before this case barred the court of appeals from hearing the kind of claim that we are now making.

They said you have to go to district court.

This Court in McNary said that that exact type of language meant that the exclusive appellate review scheme did not cover claims requiring fact-finding beyond the administrative record.

Now, if you turn to page 10a... this is the '96 act.

Congress first considers, as I said, considers a bill that says, constitutional claims requiring fact-finding can be transferred to the district court.

They reject that and instead they adopt the language on page 10a.

The court of appeals, except as provided in paragraph (5)(b), and that's again...

Chief Justice Rehnquist: You're reading from... whereabouts on 10a are you reading?

Mr. Cole: The top of 10a.

Justice Souter: Okay.

Mr. Cole: Under scope and standard for review.

It says, except as provided in paragraph (5)(B), and then that's... again that's a reference to the nationality claim, the only claim that Congress has said can be... facts can be developed beyond the administrative record.

Except as provided in (5)(B), the court of appeals shall decide the petition only on the administrative record on which the order of removal is based.

So Congress considered the precise option which the Government is now saying is available on the court of appeals, and it decided to reject that option and instead to leave these claims where they had traditionally been litigated in district court, and I think for good reason.

Why?

Because these are claims that require fact-finding, intensive fact-finding.

That's the kind of thing that district courts are well-suited to, not courts of appeals.

Justice Breyer: But it would apply your argument to all constitutional claims, I guess, and some are suitable for fact-finding, and others...

Mr. Cole: No...

Justice Breyer: are not, and...

Mr. Cole: This claim... I'm sorry, Justice Breyer, but this claim... our argument with respect to this provision...

Justice Breyer: Yes.

Mr. Cole: does not apply to all constitutional claims.

Chadha, for example, was a constitutional claim that could be decided without any fact-finding beyond the administrative record, and therefore was appropriately heard on the...

Justice Scalia: Mr. Cole, you left one thing out of your story.

They did, indeed, adopt that language from 1105 which we had held would allow you to go to district court.

But they also added to the new statute subsection (9), which is on page 13a of the Government brief, which says... which reads, consolidation of questions for judicial review: Judicial review of all questions of law and fact, including interpretation application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien, shall be available only in judicial review of a final order under this section

Mr. Cole: That's right.

Justice Scalia: Now, that wasn't in the old 1105.

Mr. Cole: That's true.

Justice Scalia: It is in this, and it makes it very clear that Congress did not intend the previous disposition of being able to go to district court with one of these claims to continue.

Mr. Cole: Well, I beg to differ, Justice Scalia.

The... first of all, (b)(9) does not apply to this case, as the Government concedes, because of the transition rules, so (b)(9) is actually not applicable, and you have to then ask, why did Congress not choose to apply...

Justice Kennedy: That depends.

Justice Scalia: That depends.

The Government conceded it but also said that you could interpret (g), when it says except as provided to this section, to include, to refer back to the new section.

Mr. Cole: Well...

Justice Scalia: And that's the way I do indeed read it.

Mr. Cole: Well, I...

Justice Scalia: So I think this section does apply.

Mr. Cole: No, but... no, but Your Honor, what the Government has said... I mean, what... it's... I agree with you that (g), when it says except as provided in this section no court shall have jurisdiction, refers back to 1252.

Justice Breyer: Right.

Mr. Cole: But Congress has made clear that 1252 does not apply.

The only provision that even arguably applies here from the new act is 1252(g).

They have made it absolutely clear that the rest of 1252 is not applicable, and we argue...

Justice Ginsburg: Mr. Cole, what about the possibility that was vaguely mentioned of the Attorney General electing to have these transitional cases handled only under 1252?

Mr. Cole: Right.

Well, that's how we think subsection (g) can be made... can be rendered coherent.

That is to say, subsection (g) applies to those cases... what Congress said was pipeline cases, cases which were pending at the time the law went into effect, should be covered by the old statutory scheme, not the new statutory scheme.

The Government agrees with that, with one exception, subsection (g).

We think subsection (g) is better read as making clear that in transitional cases, that is, cases that are pending, where the Attorney General elects to invoke the new procedures, which she is permitted to do by statute, in those cases, subsection (g) makes clear that 1252 is the exclusive review scheme, but only in those cases.

The problem with...

Justice Ginsburg: Is she prevented from doing that here by anything having to do with this lawsuit, or just, she has chosen not to exercise discretion that she has?

Mr. Cole: Well, she's been enjoined from taking any action with respect to the deportation proceedings in these cases.

Justice Ginsburg: So if she wanted to make that election she couldn't because she's been enjoined.

Mr. Cole: That's right.

That's our... that is our reading.

That would obviously be open to the district court on remand, but I...

Justice Scalia: Your interpretation of (g), I mean, is very nice.

It would be wonderful if that's what it said, but I see nothing in there that limits it to those cases where the Attorney General has exercised the option...

Mr. Cole: Well, the problem...

Justice Scalia: to have the new statute apply.

What language do you rely upon to limit it to that?

Mr. Cole: Well, the... there's an admitted tension, Justice Scalia, between section 309(c), which says that for pending proceedings the new rules do not apply, they should be governed by the old section 1105a scheme, and subject only to the exceptions set forth in succeeding provisions, which do not include (g)... there's a tension between that, which seems to say 1105a applies, and 306(c), which the Government relies on, which suggests that subsection (g) shall apply to all claims arising from... I'm trying to find the specific language.

Justice Breyer: All past, pending or...

Mr. Cole: With... yes.

Justice Breyer: future exclusion...

Mr. Cole: Right.

Right.

It's on page 18a, shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such act.

So the Government says that means Congress intended one and only one provision of 1252 to apply to pending proceedings.

We think that reading is untenable for a number of reasons.

First, it's inconsistent with 309(c), which says that pending proceedings are covered by the old law subject only to the exceptions in the succeeding provisions, of which (g) is not one.

Second, when you apply (g) without the rest of 1252 it becomes not an exclusion, an exclusive jurisdiction provision, as it is denominated in the statute, but a nullification of all jurisdictional statutes, because it says, except as provided in this section, which the Government concedes doesn't apply, and notwithstanding any other provision of law, no court shall have jurisdiction to hear any of these claims, so it becomes a nullification provision...

Justice Breyer: That's why you can... can't you read it... I mean, one way to read it is to say, very well, in this odd transitional period Congress wanted no court to have the authority to decide fact-based constitutional questions.

That's very unlikely.

The other possibility is to say, well, what you do with these transitional cases with fact-based constitutional questions is, you apply the old statute.

Now, when you apply the old statute, you're reading the statute in a way that again will reach the result, no constitutional review, which might well make it unconstitutional.

But the other alternative for us is to read the old statute and to say, we can read that in a way, granted, stretching the language under constitutional compulsion, that will give you the judicial review that you want, indeed, at the time you want, if you can make out a case for an emergency, irreparable harm, et cetera.

Now, what's wrong with that?

Mr. Cole: Well, first of all, it requires reading 1252(g), which says that judicial review may not be based on any other provision of law... you have to ignore that language and say judicial review may be based on 1105a.

Then you have to take 1105a, which says, judicial review under 1105a in the court of appeals must be determined solely upon the administrative record, and you...

Justice Breyer: That means in cases appropriate.

Right, it does...

Mr. Cole: And you have to read that... so the Government... the Government requires you to read the... two statutes exactly against their meaning, and to adopt an interpretation that Congress...

Justice Breyer: The alternative, though, being to say that those... the whole thing is unconstitutional, and then make up a set of procedures that would virtually parallel that but make it up on our own.

Mr. Cole: Well, I think... no, but I think a better option, Justice Breyer... I think a better option is the option this Court took in McNary, which is to say, when Congress says that an exclusive review scheme is limited to the administrative record, it does not intend claims that require fact-findings beyond the administrative record to be encompassed within that exclusive...

Justice Scalia: Well, if it didn't intend that, it didn't do very much good in this amendment of the immigration law.

It's clear that what the amendments were intended to do is to prevent exactly what is going on here, stringing out the deportation endlessly while suits are brought in district court that interfere with the smooth progression and ultimate disposition of the deportation proceeding.

It's clear that that's what Congress had in mind, and what you're saying is, Congress didn't have that in mind.

Now, maybe you want to say Congress can't have that in mind, and strike down the whole thing as unconstitutional, but to read it to do something which is just implausible in light of what Congress was about in this...

Mr. Cole: Justice Scalia, there is no indication that Congress was concerned about our case or cases of our...

Chief Justice Rehnquist: Congress was certainly concerned about, as Justice Scalia... stringing out deportation proceedings...

Mr. Cole: I...

Chief Justice Rehnquist: which is just what your case is doing.

Mr. Cole: Well, and the irony here is that we're the ones who are seeking expeditious resolution, Chief Justice Rehnquist.

It's the Government that is seeking delay.

If you rule for the Government in this case, we're talking about 5, 6, 7, 8 more years of litigation before we ever get to the question that our clients went to court for initially, which is, can we distribute magazines without fear of the Government targeting us.

Chief Justice Rehnquist: Why are we talking about 6 or 7 more years of litigation when we've had 11 already?

Mr. Cole: Because the Government took 9 years...

Justice Scalia: Well...

Mr. Cole: Without any injunction in this case, the Government took 9 years to complete one quarter of the lead deportation hearing in this case, so it's not... and we have been seeking... at every stage, Your Honor, we have been seeking to get a expeditious resolution of this case.

The Government has been delaying.

The Government...

Chief Justice Rehnquist: You've been seeking to get expeditious resolution of your claim that the case is improperly brought.

Mr. Cole: That's right.

Chief Justice Rehnquist: The Government wants an expeditious ruling on the merits of the claim about the case, should your people be deported.

Mr. Cole: What the Government wants to do is to delay the First Amendment question in the case, and I think if any other administrative agency targeted a U.S. citizen, held a press conference... for any kind of initiational proceedings, and said... held a press conference and said, we don't care what the technical charges are that we brought, we don't... the IRS says, we're auditing these people, but we don't care about the technical charges.

The reason we're auditing this newspaper is because it published pro-Republican editorials.

Now, is there... do we have any doubt that that newspaper could not go into court and seek an injunction against that action even in a situation...

Chief Justice Rehnquist: Well, newspapers can't be deported.

Unidentified Justice: [Laughter]

Mr. Cole: That's right, but newspapers can have their First Amendment rights chilled, and so can immigrants, the...

Justice Scalia: Newspapers don't gain anything by stalling.

De...

Mr. Cole: And...

Justice Scalia: Potential deportees do.

Two of these people already are no longer deportable.

I don't know why, because they've gotten married, because for some other reason.

Their status has changed in the interim.

Everybody knows that this is the name of the game.

String it out, and the longer it's strung out the less likely the deportation will be.

Newspapers don't worry about these things.

I mean, there is not the risk of, what should I say, gaming the system, which goes on in immigration cases.

Mr. Cole: That's true, Your Honor, but what we're talking about is a principle that says that First Amendment claims require prompt review, that the uncertainty about whether or not you have the right to engage in a particular type of speech or association means that you will not engage in that association or speech.

That is what has happened to our clients.

For that reason, we didn't wait until the end of the deportation proceeding.

We went right into court, we sought a resolution.

It's the Government that has strung this out.

They brought two separate appeals, raising claims, all the claims on the second appeal that they could have raised on the first appeal.

They have objected to discovery.

They have taken us up on mandamuses to the court of appeals on virtually every issue.

We've been seeking... we've been seeking expeditious resolution, and the reason, Your Honor, is that although it is true that in many cases delay is in the interests of the alien, in a case where the Government has said that we're bringing these proceedings because we want to chill your political activities, it's in the interests of these aliens and, indeed, of all aliens to know whether they have...

Justice Ginsburg: Is that what the Government said, or the Government said we just want to deport you?

Mr. Cole: What the Government said is, the FBI report which urged the INS to bring this case said, deport these people because it would disrupt the activities of this group, activities which include distributing magazines, et cetera, et cetera.

They said with respect to Khader Hamide, one of the individuals, they said, we think you should seek his deportation not because he's engaged in any illegal conduct, but because he is intelligent and shows great leadership ability, and therefore going after him will hamper the activities of the organization.

Justice Kennedy: Can't you bring that up in the agency proceeding?

Justice Breyer: The...

Mr. Cole: We cannot bring... we tried, Your Honor.

The Government said, you can't, you have to go to district court, the BIA agreed, and that was consistent...

Justice Kennedy: On what ground, irrelevant, or...

Mr. Cole: On the ground that the statutory and regulatory authority of the immigration judge is limited to determining whether the charges of deportability are well-founded, and he is not allowed to look behind the charges at the motives of the district director who brought the proceedings.

Justice Kennedy: Is that good law?

Mr. Cole: That is the... has been the accepted law, the agency's interpretation for years and years.

No one has challenged it.

We sought to challenge it because what we wanted was a quick resolution of this.

They said you have to go to district court.

When we won in district court, now they're saying you have to wait and go to the court of appeals, so it's the Government...

Justice Scalia: Mr. Cole, it may well be that your clients were targeted for ideological reasons, but the point is... and this is what Congress was concerned about... anybody can claim that they're being deported for ideological reasons...

Mr. Cole: Well...

Justice Scalia: and file a claim in district court, and wait for 2 years to get that claim adjudicated by the district court.

Mr. Cole: Justice Scalia, in the...

Justice Ginsburg: Anybody.

Justice Scalia: You can just file...

Mr. Cole: There have been three such claims over the history of the Immigration Act, so I don't think you're going to see a flood of litigation.

Secondly, this Court... as this Court is well aware...

Justice Ginsburg: What were the two others, Mr. Cole?

Mr. Cole: John Lennon, the former Beatle, charged that he was being selectively deported for... on a drug offense.

The Second Circuit recognized that that would be a legitimate claim but ended up resolving his... his claim was... ended up getting resolved in another way.

And then a man named Adamay Hernandez in the Ninth Circuit made a selective enforcement claim, but he had... he put forward no evidence and it was just dismissed outright.

But this Court has made it very clear that selective enforcement claims are extremely difficult to get past first base on, and they are dismissed all the time.

There has not been a successful selective prosecution claim in the Federal courts for years.

There's not... this is the only successful selective prosecution claim that there's ever been in an immigration case, so you're not talking about some loophole that's going to make it possible for every immigrant to go in.

What you're talking about is when the Government has admitted that it targeted people for their political activities, that it doesn't care what the charges are, it wants to get rid of them because of their political activities, and it wants to disrupt those political activities, which the Government has also conceded are not criminal or illegal in any way, in that kind of a case, it's an extraordinary case, certainly the Federal courts should be open to allow an immigrant to get a...

Justice Breyer: Well, if it should... if it should, wouldn't the expeditious thing be to have all this heard in one proceeding?

I mean, whatever the shoulds are, wouldn't that be a better way to do it?

Mr. Cole: Well, the problem is that the one proceeding that the INS has put us in cannot consider these claims.

The court of appeals, according to the INS' longstanding interpretation and every interpretation of the act prior to the '96 act can't consider that claim, and Congress specifically thought about whether the court of appeals should be given the right to consider that claim in passing the provision with respect to constitutional claims involving fact-finding, and they rejected it and instead adopted language that says you can't go to the court of appeals for this kind of claim.

And as this court has said, it is a cardinal principle of statutory construction that the court can't adopt something that Congress has rejected in the process of enacting another statute.

In addition, the... it is quite clear that the background against which Congress was acting... Congress is presumed to know the law just as citizens are... was that these kinds of claims were brought in district court.

They could not be brought in the court of appeals.

They had to be brought in district court.

So against that background...

Justice Ginsburg: But you... it was very sparse.

You just said there were only two prior cases.

Mr. Cole: Well, there's only two prior... Justice Ginsburg, there are only two prior selective prosecution cases.

There has been other types of claims, challenges to immigration practices that require fact-finding beyond the administrative record.

McNary was one.

There are a number of other sort of pattern and practice class actions.

But again, it's a handful of cases out of hundreds of thousands of deportation proceedings.

This is not some huge problem, and I think it's because it's not some huge problem that Congress, while considering changing the law, decided to maintain the law, and that result, I think, is required not only by this Court's general principles of statutory construction, but by the principle of administrative law that Justice Breyer articulated on the Government's argument.

That is that, where collateral claims are at issue that the agency has no expertise to address and irreparable injury is at stake, even where the statute says you have to wait till the end of the process, this Court has consistently said you can go to district court.

And secondly, this Court has repeatedly said in the First Amendment area that because uncertainty about one's rights chills those rights, prompt judicial determination is necessary, under the finality rules of 1257...

Justice Stevens: Of course, in this case that argument doesn't seem to fit, because it would... if your people continue to engage in this speech activity that you're concerned about, that won't hurt their case at all.

I mean, either they're deportable or not.

They've already been selected on the basis of prior speech activity...

Mr. Cole: Justice Stevens...

Justice Stevens: so how can future speech activity...

Mr. Cole: Justice Stevens, I think it's fair to say that the chill here is real.

The INS holds substantial discretion over an alien who's in deportation proceedings.

It can decide to continue the proceedings, or drop the proceedings.

It can decide to detain the person in their discretion.

It can decide to add new charges in their discretion, as it has done with respect to all the aliens here.

It can decide to deny discretionary relief in its discretion.

So the... a rational alien who knows that he's been targeted for his political activities, that similarly situated aliens have not even been put into proceedings, will assume that if he continues to engage in the activity that the Government has said it does not like, that discretion will be used in his disfavor, just as if the IRS announced that they were auditing a newspaper because of its Republican editorials, and they were auditing them for 1 year, you'd say, well, how's that going to affect the newspaper, because the audit is only with respect to that past year.

Well, the IRS has a lot of discretion about what it does with an audit, it could bring future audits, and so the newspaper will be chilled until the court says that it has the right to speak.

Rebuttal of Malcolm L. Stewart

Chief Justice Rehnquist: Thank you, Mr. Cole.

Mr. Cole: Thank you.

Mr. Stewart, you have 2 minutes remaining.

Mr. Stewart: I guess the first legal point I would want to make is that we certainly disagree with the contention that prior to the enactment of the 1996 statute there was a consistent practice of allowing claims like this to go forward.

The respondents have not identified any case in which a court has entertained a selective enforcement challenge to the filing of deportation charges.

That would have been inconsistent with well-established principles of administrative law that the filing of charges is not final agency action.

Cases like Cheng Fan Kwok are cases in which the Court has reviewed actions that took place outside the deportation process itself and has held that those were not subject to the exclusive review provision of former section 1105a, but to say that simply by challenging a nonfinal action an individual can have his claim heard immediately really is not consistent with administrative law principles.

The second point is that what is revealed pervasively in the FBI reports is a concern that the respondents were assisting in the raising of funds for a foreign terrorist organization.

Certainly, in the course of surveilling the respondents the FBI came upon other PFLP-related activity other than the pure raising of funds, but the court concern was with fundraising, so this is very far afield from core First Amendment activity.

And the last point I'd like to make is that for respondents to claim that they have attempted at every turn to seek expeditious resolution of this process is simply untenable.

The respondents have sought repeatedly to get district court injunctions against the ongoing deportation proceedings, they have sought successfully to have stays entered in the immigration court itself to have the proceedings put on hold until the conclusion of the litigation.

There's nothing wrong with their doing it, but I think the respondents have acted throughout the proceedings on the assumption that their clients' interests are served by protraction of the proceedings rather than by speedy resolution.

Justice Scalia: Don't fault them for that.

Mr. Stewart: I don't fault them for that.

Justice Scalia: That's standard in depor... and you would do it yourself...

Mr. Stewart: I...

Justice Scalia: if you were representing somebody.

Mr. Stewart: That's correct.

I don't fault them for that.

My point is simply that having acted on the assumption that their interests are served by having the deportation proceedings take as long as possible... thank you.

Chief Justice Rehnquist: Thank you, Mr. Stewart.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Immigration And Naturalization Service v. Yueh-Shaio Yang - Oral Argument

Fri, 09 Jan 2009 14:50:07 +0000

Case:

Immigration And Naturalization Service v. Yueh-Shaio Yang

Media File:

95-938_19961015-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Beth S. Brinkmann

Chief Justice Rehnquist: We'll hear argument next in Number 95-938, Immigration & Naturalization Service v. Yueh-Shaio Yang.

Ms. Brinkmann, you may proceed.

Mr. Brinkmann: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court:

This case involves respondent's request for a waiver of deportation under section 241(a)(1)(H) of the Immigration and Nationality Act.

The act commits that decision to the discretion of the Attorney General.

Exercising her discretion in this case, the Attorney General properly considered numerous frauds committed by respondent, including his fraudulent application for naturalization, fraudulent marriages, fraudulent divorce, and his participation in the fraudulent obtaining of documents for his wife's fraudulent entry into the country.

The Attorney General did not, again as a matter of discretion, consider the fraud respondent committed at entry.

Unknown Speaker: I take it under the statute, the Attorney General would have been perfectly free to consider that fraud.

Mr. Brinkmann: That's correct, Your Honor, and in fact the Seventh Circuit has expressly recognized that.

In Rodriguez-Barajas, Judge Easterbrook explained that the Attorney General's under no compulsion to disregard that initial fraud, and that any limitation on that has arisen out of the Attorney General's exercise of her discretion.

Unknown Speaker: Well, you think, then, that the statute places no outer limits whatever on the discretion of the Attorney General?

If the Attorney General took the position that the fact of a fraudulent entry by the alien is a factor weighing against waiver, then nobody would be entitled to a waiver any time.

Mr. Brinkmann: Well, Your Honor--

Unknown Speaker: I mean, that condition exists in every one of these cases.

Mr. Brinkmann: --That's correct, Your Honor.

The aliens that are in the pool of eligible aliens for this type of waiver share several common characteristics.

They all have three factors weighing in their favor.

They have to be the relative... the parent, son or daughter or spouse of a citizen or a permanent resident alien.

They also must have presented themselves for entry.

They have to have a validly, facially valid document, and they have to be otherwise admissible.

They also share the fact--

Unknown Speaker: But for the fraud.

Mr. Brinkmann: --Yes.

They also share the fact that they all committed entry fraud.

Now, looking at that pool of applicants, the Attorney General has to decide who amongst that she should exercise her discretion to give a waiver to, and our submission is that it's certainly proper for the Attorney General to favor a person who has been law-abiding since their initial entry over someone who's perpetrated a series of frauds.

We would also submit, Your Honor, although it has not come up in the typical kinds of cases that have come before the board, if, for example, the entry fraud was intertwined with violence, for example, we certainly think the Attorney General in her discretion could take that into account.

Unknown Speaker: Well, could take into account the circumstances of the particular fraudulent entry.

Mr. Brinkmann: Yes, Your Honor.

Unknown Speaker: But not the mere fact that there had been a fraudulent entry, I take it?

Mr. Brinkmann: I'd look to the... for example, the Court in the Rios-Pineda case, when the Court was looking at the Attorney General's authority whether or not to grant suspension of deportation there, I think characterizes looking to the nature and severity of the factor, so I would think that that would clearly be appropriate for the Attorney General to take into account.

Unknown Speaker: Well, just because Congress has given the Attorney General the power to waive fraud, certainly you don't concede that the Attorney General couldn't say, I have the power but I decline to waive any kind of fraud.

Mr. Brinkmann: That's correct, Your Honor.

In fact, particularly in the immigration context there may be other matters of foreign affairs or international relations that at a particular point in time the Attorney General would choose not to exercise her discretion in favor of waivers under this provision.

Unknown Speaker: The statute does circumscribe discretion in one respect, does it not, or perhaps not, because the sentence is difficult.

The last sentence of sub (H), a waiver of deportation for fraud granted under this subparagraph shall also operate to waive deportation based on the grounds of inadmissibility at entry.

What's the function of that sentence, other than to circumscribe or control the discretion of the AG?

Maybe you'll tell me--

Mr. Brinkmann: If I under--

Unknown Speaker: --it's an interpretation of the discretion once exercised.

Mr. Brinkmann: --I think, if I understand your question correctly, Your Honor, it's clarifying some confusion that had existed under their previous provision, and it makes clear that if the Attorney General grants a waiver of deportation under this provision, that waiver of deportation waived the grounds of inadmissibility for the fraud and also for inadmissibility grounds that directly result from that, that being a fraudulent visa or fraudulent labor certification.

Unknown Speaker: Would that be relevant in a later application for citizenship, or something like that?

Is that why it's important?

Mr. Brinkmann: Well, in fact--

Unknown Speaker: Because it seems to me to just restate that a waiver's a waiver.

Mr. Brinkmann: --Well, Your Honor, I think I can give an example to explain it.

There is some fraud at entry that doesn't involve fraudulent documents or labor certificates.

Misrepresenting your marital status, perhaps, in an interview.

Some people obtain their visas based on false information at a consulate beforehand, and then when they arrive at the port of entry, they continue to stand by what's in that visa, but perhaps they've been unmarried... they've been divorced or married in the meantime, so they would be committing a fraud at entry, but that would not necessarily relate to any fraudulent document.

If they had an independently based fraudulent document, that could be a ground of inadmissibility, and it would not be waived because it would not directly result from their fraud, and I think what the statute was trying to get at was that any of the grounds of inadmissibility at the time of entry that directly result from the entry fraud are also waived.

Unknown Speaker: May I--

--But then that is a narrowing of the Attorney General's discretion.

Mr. Brinkmann: No.

We would simply say that describes what the effect of the grant of the waiver is.

The Attorney General grants a waiver, and it specifies that it waives deportation based on those grounds.

That's what the effect of a 241(a)(1)(H) waiver--

Unknown Speaker: Well, it circumscribes the Attorney General to some extent in that it does control the extent of the waiver.

Mr. Brinkmann: --The effect of it, yes, Your Honor.

On the other hand, we would submit that as in my previous discussion of how the Attorney General could take into account the nature and severity of the initial fraud, the Attorney General certainly also as matter of discretion could take into account the nature and severity of the other grounds of inadmissibility on the fraudulent labor certificate or visa, the means by which that was procured.

Unknown Speaker: I have to confess I'm still a little puzzled about your answer to Justice O'Connor.

I understood you to say that the Attorney General could not take into account the mere existence of some fraud, could take into account the nature of the fraud, but are you saying that if... say there's the mildest kind of form in the... fraud in the world, that the mere fact there was a fraud could not be taken into consideration?

Mr. Brinkmann: No, I'm sorry, I misspoke if I--

Unknown Speaker: No matter how mild it is, the Attorney General has discretion.

Mr. Brinkmann: --That's--

Unknown Speaker: Otherwise, it seems to me a person could commit a fraud and then claim a right to remain.

Mr. Brinkmann: --That's right, and in fact, Your Honor, one of the ironies of the Ninth Circuit's ruling in this case is, it really gives the type of open-ended immunity to aliens who enter by fraud.

By requiring that later frauds be considered as a part of or an extension of the entry fraud, those aliens are put at an advantage over an alien who enters lawfully and then commits later fraud which is not forgiven.

Unknown Speaker: But are you saying that the Attorney General would be within her discretion to say, I will never exercise my discretion to waive entry fraud?

Mr. Brinkmann: We believe that if that were based on a reasonable exercise of her discretion--

Unknown Speaker: No, but that begs the question.

The only fact you know is that she says, I'm adopting a policy.

I will never exercise discretion, no matter what the circumstances, to waive entry fraud.

Would that be lawful or not?

Mr. Brinkmann: --Yes, Your Honor, we believe it would be.

I guess in my initial answer I was trying to think of an example in which that might be the case, and I come back to the example of perhaps there are other immigration interests and other quotas that are so... so important, and as a matter of policy--

Unknown Speaker: No, but my question suggested that that was her across-the-board policy for all cases in which the statute might be applied.

I'm not asking a question about subclasses.

I'm talking about the entire class of possible waivers, and construed that broadly, would it be within her discretion to say, I will never exercise my discretion in favor of waiver?

Mr. Brinkmann: --You mean waivers under 241(a)(1)(H)?

Unknown Speaker: Yes.

Mr. Brinkmann: Yes, Your Honor, we believe it would be.

Unknown Speaker: But in any event, the BIA has adopted a different standard, right?

Mr. Brinkmann: That's correct, Your Honor.

Unknown Speaker: And unless that standard is changed, I assume the Government would abide by the standard--

Mr. Brinkmann: That's--

Unknown Speaker: --that's been adopted.

Mr. Brinkmann: --That's correct, Your Honor.

Unknown Speaker: Is that right?

Mr. Brinkmann: That's correct, and it's a reasonable approach.

I think the board has found that the cases that have come before it, that entry fraud does seem to be of a common ilk, and has decided to treat like cases alike in that regard, and need not look at that initial factor.

As I mentioned earlier, if a case arose in which a different type of entry fraud was involved involving violence, for example, we believe that would be certainly something which the board may very well--

Unknown Speaker: But do you say you're free to depart from that rule and that practice at any time you want?

Mr. Brinkmann: --Yes, Your Honor, I think to the extent that--

Unknown Speaker: For no reason at all?

Mr. Brinkmann: --I think to the extent that there is judicial review for abuse of discretion the board would be well advised to provide a reason.

I have to hasten... have to... have to be quick to add at this point, Your Honor, at this point it's somewhat of a limited query, because the new statute that was passed a week and a half ago eliminates judicial review of the Attorney General's exercise of discretion under this provision.

Unknown Speaker: But currently, do I understand it correct... I must say, I was quite surprised to discover this, but the situation is, if you commit entry fraud and are successful, so long as you don't commit any other fraud, you're okay.

Is that the current position?

Mr. Brinkmann: You're eligible for a waiver.

That doesn't mean you get it, Your Honor.

At that point you can apply to the Attorney General.

You have to be a relative--

Unknown Speaker: Well, you may not get it, but you won't be denied it simply because you got in fraudulently.

Mr. Brinkmann: --It will... when the Attorney General, the Board of Immigration Appeals, the immigration judge exercise their discretion, the practice at this point is not to take into account the initial entry fraud.

Unknown Speaker: I find that extraordinary, myself.

No matter how severe--

--I--

--I'm sorry.

Why is that?

Mr. Brinkmann: The fact of the matter is, Your Honors, when I've looked through all the cases, the typical case that has come forward involves very similar types of fraud, mainly people misrepresenting the fact they've been married, or been divorced, family relations.

There have not been cases which involve incidences of violence, for example, and--

Unknown Speaker: Well, why is it that in those kinds of cases... why does the BIA disregard that fraud?

Mr. Brinkmann: --Well, to an extent, Your Honor, I think that it's taken as a matter of treating like cases alike, and that that's--

Unknown Speaker: Well, you could treat like cases alike and say we'll... we will not disregard it in any of them.

Mr. Brinkmann: --Right, and that's what the alien's coming forward to, as asking for forgiveness for, as the board has characterized it.

Unknown Speaker: Ms. Brinkmann, there was one time when this kind of waiver for initial entry fraud was mandatory.

Mr. Brinkmann: Yes.

Unknown Speaker: And then it was urged that Congress drop it altogether.

Instead, Congress came up with something in between.

They said the entry by fraud may, in the discretion of the Attorney General, be waived, but if you can respond to the question that's been raised by several of the justices, why in the first place did Congress provide for initially a mandatory waiver and now a discretionary waiver for one who has gained entry by fraud?

Mr. Brinkmann: Your Honor, initially, this was enacted as section 7 of the Immigration Act in 1957, and it was responding to entry by... immigrants were fleeing repression in totalitarian regimes, and had made misrepresentations in order to avoid repression, and that's when the provision was first enacted, added to the statute.

Then it was somewhat modified in 1961.

In between 1961 and 1981, that's when all the trouble and confusion started occurring, and that's what prompted Congress in 1981, or the proposals pending in Congress, to eliminate it altogether because it had caused such confusion.

For example, persons who entered by an innocent misrepresentation some courts had held were not eligible for the waiver, whereas aliens who had entered through fraudulent misrepresentations were.

That's something that the 1981 statute... amendment corrected.

It also, of course, made it discretionary.

It also made it clear, for example, that it was not going to waive deportation for aliens who entered without inspection.

Now--

Unknown Speaker: --policy by discretion of the executive is that anyone who commits fraud successfully upon entry is okay.

Mr. Brinkmann: --I wouldn't say it's okay, Your Honor, but it's enough like all of the other cases that have come before the board that it's a wash, and that the board look, and the immigration judges look at the other factors that underlie the interest in the stat... this provision--

Unknown Speaker: You get in under the provision of the law that says a spouse can get in, and you lie.

You say I'm married to somebody.

You are in fact not married to somebody.

So long as you persuade the officer of the truth of that lie, it's okay.

Once you're in, it's all right.

That's the policy we now have in place.

Mr. Brinkmann: --Right.

Well, it dates back to 1978, Your Honor.

There's a similar provision for waiver of exclusion grounds, and that's when the Commissioner of INS first articulated this.

Unknown Speaker: Well, I thought we were going to get serious about... about enforcing our borders, and I was really quite surprised to find that that's the policy.

Mr. Brinkmann: Well, Your Honor, I have to say I think that in light of the statute that was recently passed, that Your Honor... certainly it's a situation I think now where Congress has eliminated this provision from judicial review, and the--

Unknown Speaker: Well, that doesn't save anything.

The Attorney General can continue to let everybody in who's lied successfully, and there's no judicial review.

It may make it worse.

Mr. Brinkmann: --I would hasten to add, Your Honor, I mean, this waiver of deportation does apply to a limited pool of people.

It applies to people who are immediate relatives of U.S. citizens, or permanent resident aliens, and the main thrust behind this provision was for family unification, as I initially pointed out to Justice Ginsburg, in '57, it had to do with the nature of countries that aliens were fleeing, but the real interest--

Unknown Speaker: Do they have to now be an immediate relative?

Mr. Brinkmann: --Yes.

Unknown Speaker: I mean, suppose they lied when they came in and they said they were an immediate relative.

Mr. Brinkmann: They have to be one.

That's a statutory eligibility--

Unknown Speaker: They have to be one now.

Mr. Brinkmann: --At the time of the application for the waiver and the grant of the waiver, yes, Your Honor, and that was really the interest underlying, so although I think at first blush it may sound frivolous to permit people who have lied or misrepresented, I think that Congress really envisioned an overriding interest in the unification of families.

Unknown Speaker: Your position here, I take it, Ms. Brinkmann, is that although the Attorney General has exercised her discretion in this manner to forgive entry fraud, that she has control of just what that means, and it shouldn't be expanded by the courts.

Mr. Brinkmann: That's right, Your Honor.

Unknown Speaker: Well, but on the other hand, I take it that you're saying that what the Attorney General's position has been, which is to overlook the initial fraud, is suggested if not compelled by the statutory history.

Isn't that what you're saying?

Mr. Brinkmann: We don't believe that it is compelled by that, Your Honor, no.

We think that to the extent the Ninth Circuit authority can be read that way, they're clearly wrong.

We agree with Judge Easterbrook's opinion in the Seventh Circuit, which states that their statute imposes no compulsion on the Attorney General to disregard that initial fraud.

That simply is one of the eligibility requirements.

That's one of the factors I described earlier that all the aliens in the applicant pool have in common.

Unknown Speaker: Well, that would make a lot of sense to me but for the way the Attorney General has administered the statute to date.

I can't understand where it gets... where that policy derives from, and I thought your earlier remarks indicated it derived from the statutory history.

Mr. Brinkmann: No, I think it actually derives from the history before the agency itself, Your Honor.

As I explained, it actually piggybacks on an interpretation of waiver for exclusion under section 212(i) in 1978.

The Commissioner of the INS set forth this policy and that's what eventually was incorporated into the Attorney General's interpretation of the deportation waiver.

When that first statement was made about the exclusion waiver, the deportation waiver was not yet discretionary.

It was mandatory.

The exclusion waiver has always been discretionary, so once the deportation waiver became discretionary in 1981, and the Attorney General came to start interpreting that, she looked back to the interpretation that had been given to the exclusion waiver that was always discretionary.

Unknown Speaker: Am I right, I thought... I might not be, but I... my reading of this was initially there were a group of people who did lie when they wanted to come in, particularly people who came from Iron Curtain countries, and they lied about what country they were coming from because they were afraid that they'd be sent back and killed possibly, and Congress initially passed this statute because it wanted to say that people like that who had families here should be permitted to stay here.

Mr. Brinkmann: Yes, Your Honor.

Unknown Speaker: And if that's so, then wouldn't it raise a legal question if the Attorney General said people just like that, or who tell equivalent lies to that, would all have to go back?

That's why I wonder if there isn't some limitation arising out of the circumstances in this, where the history of this, that there were certain lies that would be told and the need to reunite families was such that that would be a limitation on the AG's discretion.

Mr. Brinkmann: We don't believe so, Your Honor.

I think looking at the text of this statute following the 1981 amendment, Congress was clear to write that the deportation may be waived in the discretion of the Attorney General.

Unknown Speaker: Regardless of the history, what the statute does is give the Attorney General discretion.

That's what it says.

Mr. Brinkmann: That's right, Your Honor.

I think particularly against the backdrop of the history in 1981, where there had been proposals to eliminate it altogether.

Also, I would add, Congress did set out the statutory eligibility requirements we've already discussed, and did not include any other even factors to consider in many provisions of the Immigration Nationality Act.

For example, Congress has told the Attorney General specifically to consider hardship to family members and all that.

This waiver provision contains none of that, and we think that bolsters our interpretation that it's left to the sole discretion of the Attorney General.

Unknown Speaker: Ms. Brinkmann, may I go to the other end of the spectrum and make sure I understand you on one point, and that is, I understand you to have said that the policy of waiving any initial fraud applies to any initial fraud regardless of what it's circumstances may be.

In other words, there's no minor fraud versus major fraud.

All frauds are equal if they are initial fraud, initial entry frauds, is that right?

Mr. Brinkmann: It's difficult to answer that question, Your Honor, because the cases all have very comparable types of fraud.

There just haven't been--

Unknown Speaker: All right, what if you had a fraud case in which you... it was shown that the documents were procured by the entrant by holding a gun to the head of officials in foreign countries to force them to produce the fraudulent documents, would that be like all other kinds of frauds?

Would that be within the policy of waiving all initial entry frauds?

Mr. Brinkmann: --I think that would be within... it would be within the discretion of the Attorney General, her delegates, to decide.

Unknown Speaker: No, but I want to know what her policy... I just want to understand what her policy is now, and would that fall within her policy of waiving initial entry fraud as you understand it?

Mr. Brinkmann: That case simply has not come up, Your Honor, and I would not want to say that it would come within that, because I think that--

Unknown Speaker: So maybe not all frauds are equal for... initial entry frauds are equal.

Mr. Brinkmann: --They may not be, Your Honor.

Unknown Speaker: Okay.

Mr. Brinkmann: I think that's true, and I think the Attorney General would be free to change her policy and explain that in the future any entry frauds that have to do with violence certainly are going to be weighed much more severely, in fact--

Unknown Speaker: But that limitation doesn't exist right now.

As far as we know now, and this is what I got from the brief, all entry fraud is not taken into account.

Isn't that the rule as it now exists?

Mr. Brinkmann: --Frankly, Your Honor, we also don't know the other way, because the case just has not arisen, and the Attorney General has not been presented with that situation.

Unknown Speaker: You don't know of a single case of entry fraud that has been taken into account.

Mr. Brinkmann: No, Your Honor, certainly not in the reported cases I've seen.

It might be, Your Honor, because in situations like that, the alien is more than likely going to be not otherwise admissible, will be inadmissible on other grounds.

Unknown Speaker: And there's also a question of what is the entry fraud.

If I understand the way this policy operates, in this case there was a sham divorce in Taiwan before the petitioner entered, and you count that as preentry fraud, so if I understand what the policy is correctly, all of the other... the later frauds postentry were just kind of surplus.

It was enough to be outside this policy that there was a preentry fraud.

Mr. Brinkmann: Your Honor, these are certainly I think a totality of circumstances when the Attorney General exercises her discretion, and any type of misdeed--

Unknown Speaker: Well, I wasn't asking you that.

I may understand her policy incorrectly, but I thought your explanation of the policy was, we will waive entry fraud but nothing before and nothing after, and here there was a before, and now you're saying no, I don't have it right, it's somehow a totality of the circumstances test and not, we'll zero in on the entry itself, I get there and say I'm from... I'm from Austria rather than from Poland.

Mr. Brinkmann: --I'm sorry, Your Honor, I misunderstood.

I wanted to say that the... some misdeed beforehand can certainly be considered.

I just did not want to say that that was dispositive and meant that a waiver could not be granted.

Unknown Speaker: I must say, I don't understand this concept of preentry fraud.

Who is the fraud being committed on?

I mean--

Mr. Brinkmann: On the United--

Unknown Speaker: --Well--

Mr. Brinkmann: --States, Your Honor.

Unknown Speaker: --But it's only being committed on the United States at the time you present yourself for entry.

Mr. Brinkmann: No, Your Honor--

Unknown Speaker: I mean, surely I can enter into a sham divorce if I want, and until such time as I applied for entry to the United States, it doesn't make any difference to the United States.

Mr. Brinkmann: --Your Honor, respondent collaborated in obtaining fraudulent birth certificates and passports for his wife, and the reason that the divorce and remarriage under an assumed name that he also participated in was to commit a fraud in the United States of America as his wife coming in under the fraud of being a U.S. citizen.

If he had never come to this country--

Unknown Speaker: It was her wife's entry that was the fraud.

It wasn't the--

--His wife's.

I mean, it was the wife's entry that he assisted that was fraud.

Mr. Brinkmann: --That's true, and he--

Unknown Speaker: Okay.

Mr. Brinkmann: --Yes.

I also wanted to point out that respondent in the court of appeals agreed with this view and admitted that the naturalization fraud, for example, its fraudulent application could be weighed, and--

Unknown Speaker: There was a fraudulent application for citizenship here too, wasn't there?

Mr. Brinkmann: --I'm sorry, that's what I meant, Your Honor.

I misspoke.

Yes, in 1982.

Unknown Speaker: And the Ninth Circuit said that was improperly considered by the Attorney General?

Mr. Brinkmann: Yes, Your Honor.

Unknown Speaker: You advised Justice Scalia that this was a very small class.

I would have thought that numerically it's quite significant.

Do you have any specific numbers as to how small this class is?

Mr. Brinkmann: I actually do have some statistics from the... from fiscal year '95, Your Honor.

I've been informed by... this is from the Executive Office of Immigration Review.

These were decisions on... they classified them as 241(f) waivers, but it's now at 241 (a)(1)(H), and last year there were a total of 30... this was for immigration judge rulings, 37 waivers with a grant rate of approximately 84 percent.

Unknown Speaker: Thank you.

Mr. Brinkmann: Thank you.

Unknown Speaker: Thank you, Ms. Brinkmann.

I take it you want to reserve--

Mr. Brinkmann: I'd like to reserve the rest of my time.

Thank you.

Unknown Speaker: --Mr. Hom.

Am I pronouncing your name correctly?

Argument of Howard Hom

Mr. Hom: That's correct, Your Honor.

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

There are two basic points that we need to address.

Number 1, this case, the facts of this case boils down to just one simple fact.

Mr. Yang's assumed identity as the husband of a United States citizen, just one basic fact.

Secondly, this is not a case of abuse of discretion.

This is a case of statutory construction.

This is a case of statutory construction because the plain language of the statute, the INS's own interpretation, prior case precedents, legislative history, and the policy and the purpose behind this waiver all indicate that the original fraud must never be weighed in the decision to grant or deny a waiver.

Unknown Speaker: As a matter of... you say part of your argument to that effect is based on statutory construction.

Where in the statute do you find that?

Mr. Hom: Yes, it's subparagraph (ii) of 241(a)(1)(H), and the petitioner's brief at page 5a and 6a is the section of law, and in subparagraph (ii) on page 6a it states that the alien was in possession of an immigrant visa or equivalent document and was otherwise admissible, and that's the key phrase, otherwise admissible.

Unknown Speaker: Well--

--Why isn't the key phrase,

"fraud may, in the discretion of the Attorney General, be waived? "

Yes.

Mr. Hom: Because the purpose of the waiver was to--

Unknown Speaker: We're talking about statutory construction now.

Mr. Hom: --Oh, yes, sir.

Unknown Speaker: Yes.

Mr. Hom: Right.

The waiver serves to take away that fraud.

That's why that phrase, "otherwise admissible", that's what that refers to.

Otherwise, other than the fraud.

Otherwise admissible means other than the fraud that charges or that renders the alien to become excludable.

Unknown Speaker: Well, that sets a condition upon the--

--Yes.

--exercise of discretion... but it does not, it seems to me, to address the substance of what that discretion may consider.

Mr. Hom: If I could answer the question this way, Your Honor, there are three steps in the processing of an application for a waiver before the immigration judge.

The first step is, is there a requisite family relationship, the second step, subparagraph (ii), is the alien otherwise admissible?

In other words, is he a criminal?

Has he committed other heinous acts but he cannot be neither waivered because of the fraud, which is 212(a)(6)(C), and that's what otherwise admissible refers to--

Unknown Speaker: Well, why do you... that isn't at all clear to me.

I mean, why isn't the otherwise... just a threshold requirement, and once you meet that threshold, then you can invoke the Attorney General's discretion, but the statute doesn't say how it should be exercised.

Mr. Hom: --Yes, Your Honor.

Once we reach that threshold that the fraud is taken off the table and not to be considered in order for the alien to apply for the waiver, then for the Immigration Service to turn around and look at that very same act would really nullify subparagraph (ii).

It wouldn't even have to be there at all if the Attorney General had absolute unfettered discretion.

The language of the waiver would merely say, if the alien has a family relationship, then in the discretion of the Attorney General the waiver may be granted, so there must be some meaning--

Unknown Speaker: So you say the fact that Congress has imposed additional conditions over and above the family relationships actually limits the Attorney General's discretion.

That seems rather strange.

Mr. Hom: --And that's why I say, it's not a matter of discretion, Your Honor, it's really a matter of statutory construction.

Subparagraph (ii) takes--

Unknown Speaker: But construing the statute, mustn't we take into account first the words that say

"may, in the discretion of the Attorney General. "

then the history that at one time the waiver was mandatory, and Congress changed it to make it discretionary.

You seem to be... your statutory interpretation argument appears to be based on the pre-1981 statute, when the waiver was mandatory.

Are you saying that Congress... that these words are meaningless?

Mr. Hom: --Your Honor, the change to add the word discretion in 1981 did not change the intent and purpose of the waiver.

Even prior to the 1981 waiver change there was a separate exclusion ground with a parallel waiver, section 212(i), which permitted the Immigration Service to grant a waiver in its discretion for similar types of frauds.

The Immigration Service adopted the position in the parallel deportation waiver in now 241(a)(1)(H) that otherwise admissible means you put aside the initial fraud that renders him excludable in deciding whether or not to grant the waiver, and then the immigration judge, or the Immigration Service, may look at other adverse factors.

For example, if the immigrant had killed somebody to obtain that person's passport, or visa documentation, that would render the immigrant excludable under other acts, sections of the act, so that's the purpose of otherwise admissible, to account for the concern that Your Honors have expressed previously that there may be certain factors in the commission of the fraud that are so heinous that we as human beings would not accept.

Unknown Speaker: Well, so then you're saying otherwise admissible is not important to your interpretation of the act because you've given it this other meaning.

Mr. Hom: I'm not sure if that's--

Unknown Speaker: That's what your whole... I thought your whole case turned on the otherwise admissible language, and you've just given what to me is a very plausible interpretation of it that the man can't be a heinous criminal, et cetera.

Mr. Hom: --Correct, so--

Unknown Speaker: I don't see how that helps your case.

Mr. Hom: --Well, we're saying that if the alien is... in the determination of the waiver we look at other factors other than the fraud factor, which is 212(a)(6)(C), which is not listed there, but you could see the parallel exceptions for (5)(A) and (7)(A) of the statute, so if an alien is encompassed within the grounds of 212(a)(6)(C), 212(a)(5)(A) and (7)(A), those disqualifying factors cannot be held against the immigrant in the determination of the waiver, so the immigration judge is permitted only to look at other factors, other than those three factors.

Unknown Speaker: If that's so, I can understand... just... how you could say may means must in respect to the initial kinds of fraud that led Congress to grant the discretion in the first place, which is what you're arguing now, I think, but assuming for the sake of argument that that's so, how then do you get from the language which talks about a waiver being related... being a direct result of that fraud... it says, that fraud, and that fraud means the fraud that enabled the alien to procure a visa, which this alien procured in 1978.

How do you get from that to saying that the Attorney General cannot take into account her view of a different fraud, i.e., one that happened in 1982 that led to the procurement of naturalization papers?

Even if you're going to say they're all part and parcel of the same thing, I don't see how you escape the language.

Mr. Hom: If we look at the initial language of 241(a)(1)(H) on page 5a, the provisions of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens, described in section 1182(6)(C).

So if you look at the classification described in 212(a)(6)(C), which is on the petitioner's brief at page 2a, the language there states... misrepresentation is the caption... any alien who by fraud or wilfully misrepresenting a material fact seeks to procure or has sought to procure or has procured a visa or other documentation or entry into the United States, those words there clearly show that acts could have occurred not just at the time of entry, but in the past in seeking the visa, or actually having obtained the visa, so it's very clear that the statute that grants the waiver is not limited to acts occurring at the time of entry, Your Honor.

Unknown Speaker: It's not the statute that grants the waiver, it's the statute that makes the immigrant eligible to request a waiver.

Mr. Hom: That's correct, Your Honor.

Unknown Speaker: Yes.

Right.

Mr. Hom: And the historical development of the act... of the waiver--

Unknown Speaker: It's still referring to the fraud that led him to have procured the visa.

Mr. Hom: --Well, that's not inconsistent with 212(a)(6)(C).

The statutory language talks and uses words in terms of present tense and past tense, so that those acts which are related to the visa procurement, yes.

If there are other acts not related to the visa procurement, then he would be otherwise inadmissible and the waiver could be denied, so I don't see that as inconsistent with our position, and I think that that should lay to rest a lot of concerns that the waiver is carte blanche to let immigrants come in, commit heinous crimes, and get away with murder.

Unknown Speaker: Mr. Hom, if we looked at it from this point of view, let's say that there's something ambiguous about this, and a judge is trying to determine what the statute means and says, well... let's assume that one person who got into the United States without making any false representations, no fraud, and once in the United States engaged in the very same acts as occurred here, such a person would be deportable, but if in addition to engaging in those acts there had been a fraud at entry, that person is eligible for a waiver.

Mr. Hom: No--

Unknown Speaker: Is that a reasonable way to--

Mr. Hom: --No, Your Honor.

Unknown Speaker: --to construe what Congress did?

Mr. Hom: No, Your Honor.

The waiver that is being... the fraud that is being waived is the fraud to come to the United States.

Frauds that are unrelated that occur afterwards... tax fraud, welfare fraud... all those are separate, independent acts which render the immigrant deportable under different sections of 241(a).

Unknown Speaker: What about the 1982 fraud here, the citizenship?

Mr. Hom: Citizenship, on the application Mr. Yang repeated the same statements, that his wife is Mary Wong--

Unknown Speaker: But he repeated them 4 years later, didn't he?

Mr. Hom: --That's correct, Your Honor.

This is a case of an assumed identity, where the immigrant comes to the United States with a new identity as the husband of Mary Wong, and everything that he does after that is as the husband of Mary Wong.

Unknown Speaker: Well, he's just continuing to make fraudulent representations, then.

Mr. Hom: He repeats the same statement, Your Honor, that he is the husband--

Unknown Speaker: Well, but, you know, I can repeat the same statements to defraud people time after time.

That doesn't mean that all are subsumed under the first one.

Each repetition is a new fraudulent representation.

Mr. Hom: --Well, Your Honor, the... the INS has always interpreted the waiver to waive the conditions of the fraud, and until this case there has never been a slicing up of the fraud into subcomponents.

Unknown Speaker: Well, but the INS didn't interpret it this way in this case.

Mr. Hom: That's--

Unknown Speaker: So I mean, this was not the Attorney General's view.

This was the view, the Ninth Circuit said the Attorney General has to do this.

Mr. Hom: --The Ninth Circuit looks at Mr. Yang's assumed identity as one fraud rather than individual acts.

Unknown Speaker: And why... where did they get the authority to do that, when the discretion resides in the Attorney General, not the Ninth Circuit?

Mr. Hom: Correct, but the statutory language and the intent of Congress in passing the waiver was to not only help displaced refugees, but there's a subsection that granted the waiver to people with family relations who may not have--

Unknown Speaker: It didn't grant the waiver.

I think--

Mr. Hom: --Excuse me.

Unknown Speaker: --It... they could have the threshold, and then the Attorney General may grant the waiver.

Mr. Hom: That's correct, and if... after the threshold is made, the Attorney General looks at other factors other than the fraud, because that is the act for which he is being forgiven for.

Unknown Speaker: But surely the Attorney General can look at a fraud that was committed 4 years after entry.

Mr. Hom: But the--

Unknown Speaker: Can the Attorney General look at a fraud that was committed 4 years after entry?

Mr. Hom: --Only if it is not related to the initial entry.

Unknown Speaker: Well, where do you get that from?

Mr. Hom: The concept of the fraud that exists at the time of entry.

This is the same fraud that exists at the time of entry.

Unknown Speaker: Well, it's the same fraudulent statement, but it's repeated 4 years later.

Mr. Hom: And for the same purpose of his immigration status.

It's not to--

Unknown Speaker: It wasn't to obtain entry, it was to obtain citizenship, so it isn't the same purpose.

Mr. Hom: --Every immigrant, Your Honor, comes to America for the purpose of settling here permanently, and citizenship is the ultimate, is the final step in his process in coming to the United States.

Unknown Speaker: Even on your theory of relationship, how do you relate the misrepresentation about the financial status?

Mr. Hom: Well, that was a matter that the court of appeals remanded back to the immigration judge for redetermination.

Cases have held that false statements to the immigration judge are properly considered in the exercise of discretion.

Unknown Speaker: And you agree with that?

Mr. Hom: The general rule that false statements to the judge--

Unknown Speaker: You agree with that?

You do not contest that general rule?

Mr. Hom: --Statements to the judge, correct.

Unknown Speaker: Mr. Hom, could you help me with the statute here?

I have trouble reading it.

It's on page 5a and 6a of the Government's brief, and the crucial provision, the subsection (ii), Roman (ii), reads, was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A), and 1182(a) of this title, which were a direct result of that fraud or misrepresentation... what is that?

Mr. Hom: Yes.

Unknown Speaker: That requires an antecedent, and I scanned this statute for any prior reference to fraud or misrepresentation, and I can't find any.

Mr. Hom: Yes, what that refers to, Your Honor, is that if the immigrant had applied... you have two situations.

The immigrant applies for his immigrant visa based upon a labor certification, for example, and he... if he properly processed that labor certification, but submitted fraudulent documents, then that is the kind of fraud that directs... directly results from that act.

Unknown Speaker: So you say it should read, except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) which required labor certification.

Mr. Hom: Correct.

Unknown Speaker: And section 1182, which is requirement of a visa.

Mr. Hom: Correct.

Unknown Speaker: Except for those grounds... let's see, which involved fraud or misrepresentation and were a direct result thereof, is how it should have read.

Mr. Hom: I'd like to... I think I hear what Your Honor's saying--

Unknown Speaker: My problem is the word that, a direct result of that.

What fraud or misrepresentation?

There's no fraud or misrepresentation mentioned.

Mr. Hom: --Well--

Unknown Speaker: Isn't it right that that's in (6)(C)?

Mr. Hom: --Correct.

That's--

Unknown Speaker: And the reason that it's in (6)(C)... the reason that it's in (6)(C), as I read it, is in the preceding codification the words fraud and representation were at the top of (f), and they were broken out by Congress and moved to (6)(C), and so the antecedent for that is now (6)(C), is that right?

Mr. Hom: --Thank you, Your Honor, but there's also one other aspect of that.

If an immigrant had bought the visa outside of the consular context instead of in the process of applying for an immigration visa--

Unknown Speaker: But is what I said right?

I don't want you to agree if it's not right.

Mr. Hom: --Oh, that's correct, but there's another aspect to it.

There are two explanations.

I was... that's one, and the second one is, where the fraudulent documentation, say the fake passport was a counterfeit that he'd purchased down the street, so it was not part of a fraud to the United States Government.

As Your Honor had pointed out earlier, if he had divorced his wife and had not made that representation or showed that divorce document to the consular officer at his visa interview, then that would not be the kind of fraud that's encompassed and would not be the kind of fraud that would be forgiven by this waiver, so this is not a charter of amnesty.

There are cases of frauds and bad acts that may be punished, and properly so.

There are criminal sanctions that would be available, and once criminal convictions are obtained, then the alien becomes inadmissible under various sections of 212(a), so that the integrity of the immigration system is preserved.

There are not a whole lot of waivers granted under this particular section.

Unknown Speaker: Mr. Hom, there's one problem that I have with your notion that the consistent repetition of the same misrepresentation is a wash.

As long as you say the same thing every time, then it all must be forgiven.

The statements about Mary Wong who was a dead soul, that were repeatedly made on documents signed by these people, were they not indictable crimes as false statements made to the United States?

Mr. Hom: Possibly, but that's the very waiver that is... the reason why the waiver is there.

Unknown Speaker: So what you're saying is that you could have these people engage in repeated criminal conduct and nonetheless the Attorney General must ignore that in determining their eligibility for a waiver.

Mr. Hom: Yes, if the fraudulent conduct relates back to the initial one.

The appropriate solution--

Unknown Speaker: So if there is any ambiguity you say yes, we should interpret Congress to mean that people who have committed in the United States repeated criminal acts nonetheless must be eligible for this waiver.

Mr. Hom: --Incorrect.

The key phrase was eligible for the waiver.

Subparagraph (ii) specifically states that if--

Unknown Speaker: That's what I said, eligible for the waiver.

Mr. Hom: --Right, but he would not be eligible for the waiver because he would have been convicted of crimes involving moral turpitude, which are other grounds enumerated in subparagraph (ii) which are not listed there, but that's what the reference--

Unknown Speaker: So what you say is, although this conduct, signing a false statement, could be indicted, if it's not indicted, it must be treated as if it didn't happen.

Mr. Hom: --Not necessarily indicted.

If there are... if there's an admission that he had committed the elements of the act that involves--

Unknown Speaker: Is there... is... are you denying that Mr. Yang signed papers and presented them to immigration officials saying that he was the husband of Mary Wong, a citizen of the United States?

Mr. Hom: --He did sign those documents, and that's the purpose of the waiver.

Unknown Speaker: And was it not true that at the time he signed those documents Mary Wong was a very dead soul?

Mr. Hom: That's correct.

His wife, Mr. Yang's wife had assumed the identity of Mary Wong.

He did not represent that he was married to a deceased person.

He was saying that his wife, his current wife, who used a new name, and that's why I've been trying to explain that this is a matter of an assumed identity as opposed to a... another type of elaborate fraud, as Your Honors have eluded to.

Unknown Speaker: Well, it seems to me extraordinary that Congress would mandate that the Attorney General not consider what is concededly repeated crimes of false statements to the United States Government.

Mr. Hom: Well, Your Honor, in this case there was one immigration examiner who was indicted and convicted for having received bribes, or soliciting bribes in this respect, and that's in the brief.

If there was criminal acts that could be charged against Mr. Yang, I'm pretty sure that the FBI would have ferreted out those facts--

Unknown Speaker: Well, I've just asked you, did he sign a document in which he said he was the husband of Mary Wong?

Mr. Hom: --Yes, he did, but--

Unknown Speaker: And he could not have been the husband of Mary Wong, as Mary Wong was dead.

Mr. Hom: --That's correct, Your Honor.

If there was evidence to lead to a criminal conviction, one should have been brought, and then he should have been convicted and, if convicted, deported on that basis, and not deported based upon some exception or some misconstruction of a statute that has very salutary purposes behind it just because of potential prosecution.

If there was a prosecution, then he renders himself not to be otherwise admissible within the language of subparagraph (ii) and the person could be deported, so it's not a matter of denying the waiver.

Unknown Speaker: But something he does 4 years afterwards, that wouldn't bear on his admissibility, would it?

Mr. Hom: The waiver focuses on two points.

Number 1, at the time of entry, is he within this classification of having committed this fraud, so he commits this one particular fraud, and he's warranted with it and it becomes an individual part of his new identity... there's just no way he could shake that.

So when the person applies for his social security card he puts down on the form he's married.

When he applies for... when he submits his income tax returns he says he's married, and I'm sure he put down he was married to Mary Wong.

All these are incidental aspects of his having assumed this new identity in coming to America, and not some separate independent fraud that has no relationship.

If he committed other frauds, of tax fraud, for example, then he would be deportable on those independently, and so we're not talking about a denial of a waiver in those cases, but the fact that he's deportable on some other ground.

Unknown Speaker: Well, you're saying, as you've said before during your argument, that he can repeat the same fraud unendingly and there are no consequences to it.

Mr. Hom: And that's the purpose--

Unknown Speaker: And the Attorney General must grant a waiver.

Mr. Hom: --Unless there are other adverse factors, other than that statement, Your Honor.

Unknown Speaker: Just repeating the fraud is not sufficient.

Mr. Hom: That's our position, Your Honor, the same fact.

The purpose of the waiver is not to relieve Mr. Yang of any obligations.

He could still be prosecuted criminally.

His citizenship was denied.

Unknown Speaker: Would you comment on... go back to sort of a basic point of the... the statute in... before its most recent amendment said that the provisions of 241 and so forth and so on shall not apply to an alien otherwise admissible.

Now it says with respect to those, the Attorney General may, in her discretion, waive.

How do you get around the fact that one was a mandatory waiver and the other is a discretionary waiver?

Mr. Hom: At the time there was a mandatory waiver of deportation.

There is also a discretionary waiver for exclusion, and the Immigration Service's interpretation or application of the discretionary waiver was also to disregard the fraud that renders him inadmissible in deciding discretion, so that's the stage that was set when Congress in 1981 passed the new legislation to add on the word discretion for the deportation waiver.

It conforms--

Unknown Speaker: And to take out the words, "shall not apply".

Mr. Hom: --Correct, to make it discretionary, but nevertheless, that did not change Congress' understanding as to the interpretation, the proper application of the statute, because the Immigration Service had consistently in the Alonzo case in 1979, cited in our brief, where the Immigration Service said, yes, frauds--

Unknown Speaker: So the change meant absolutely nothing, in your view.

Mr. Hom: --Relative to the initial fraud, correct.

It would permit the Attorney General to look at other factors, and we see from the discussion this morning that there are other factors that should render an alien inadmissible... excuse me, that should result in the waiver being denied, even though it does not render the alien deportable and inadmissible.

So there are acts which don't amount to a deportable act, but which nevertheless I think we are agreed are reprehensible acts and should be punished with the waiver being denied.

But in this particular case, we have to focus on the family.

The waiver was for the purpose, was designed for the purpose of preserving families.

Unknown Speaker: What you're saying is that under the old statute reprehensible acts that were not sufficiently serious to be an independent ground of deportation could not be taken into consideration.

Mr. Hom: Yes, Your Honor.

Unknown Speaker: That they may now be taken into consideration.

That, you say, is the--

Mr. Hom: Correct.

Unknown Speaker: --is the change.

Mr. Hom: And there are some acts that are so reprehensible that even before the 1981 amendment to make it discretionary--

Unknown Speaker: Yes.

Mr. Hom: --we see that persons who assisted in Nazi persecution or engaged in genocide were not permitted to apply for the waiver, and that was before it was made discretionary, so there were people who covered up their past involvement and came to the United States after World War II, and these people certainly should be thrown out of the country, but because the fraud was being forgiven, the INS had no way to deport those people.

They had the relatives, and the waiver had to be granted.

So Congress in 1978 added on paragraph (4)(D) relating to genocide and said those people, they do such terrible things, they don't even get a chance to talk about a waiver.

Other people on the other hand, U.S. citizens' parents, children, spouses, they have a chance to ask that their loved ones be forgiven so that they may stay in this country, and that's the focus.

It's not to reward bad acts, but to preserve family ties, to consider the feelings of U.S. citizens, and not the alien who committed the fraud.

Unknown Speaker: But I think your opponent agrees that there was... there would have been discretion to decide the case the other way, take into... give a greater weight to the family ties and all the rest.

Am I wrong about that?

Mr. Hom: Well, in the determination of discretion the depth of the family ties certainly would be a factor.

Unknown Speaker: In other words, the Attorney... the Immigration Service could have said, well, I think there were two separate frauds.

The 4-year-later business relating to citizenship, I'll treat that as separate.

Nevertheless, I think these family ties are so strong, and he's such a successful businessman and all these other things, I'm going to grant the waiver.

They could have granted the waiver even if there are two separate frauds.

Mr. Hom: That's correct.

Unknown Speaker: Okay.

Mr. Hom: That's correct.

Thank you.

Unknown Speaker: Thank you, Mr. Hom.

Ms. Brinkmann, you have 3 minutes remaining.

Rebuttal of Beth S. Brinkmann

Mr. Brinkmann: Thank you, Your Honor.

There are two points I'd like to make.

One goes to the separation of these frauds.

It's clear these are separate frauds because they're false statements made for... to obtain different types of benefits, certainly for naturalization.

Unknown Speaker: Let me just interrupt if I may.

Isn't it also true you'd take the same position even if they were the same fraud?

Mr. Brinkmann: That's right, Your Honor.

I just wanted to respond to Justice Ginsburg's concern about the possible criminal prosecution.

It's clear that... well, depending on the actual facts that haven't been fully investigated, that they would have to be for a criminal prosecution.

There are at least three provisions in title 18 that could give rise to criminal prosecution.

1001 for false statements to a U.S. agency, also 1015 having to do with fraud concerning naturalization, and then 1028 has to do with fraud related to identification documents, and depending on the scope of respondent's participation in the purchase of the fraudulent passport and birth certificate, that could also apply.

And in sentencing, Your Honor--

Unknown Speaker: Some of those would also apply to the original fraud in obtaining entry in the first place, right?

Mr. Brinkmann: --That's Your... correct, Your Honor.

Unknown Speaker: So it doesn't prove anything.

You acknowledge that that's waivable.

The later one may be, too.

Mr. Brinkmann: But there's certainly factors that can be taken into account by the Attorney General.

It's not that the Attorney General has to prosecute and imprison people rather than deporting them.

Certainly if they can be taken into account, for example, in sentencing simply uncharged counts can also be taken into account under this waiver provision.

Unknown Speaker: When the Attorney General forgets about this initial fraud as the policy is, he doesn't then prosecute it criminally, I assume.

He both allows the application under this provision and chooses not to prosecute, I take it.

Mr. Brinkmann: I can't speak to that, Your Honor.

I'm not aware of all instances.

The other point I wanted to make had to do with the textual question about otherwise admissible.

The... that term goes to other categories of people that are set forth in section 212 in 1182 as it's codified, of grounds of inadmissibility, excludability.

That has to do with categories that are related to health, to criminal history, stow-aways, smugglers, national security reasons, those are all reasons that statutorily an alien could be inadmissible, and that is what gives meaning to those words, otherwise admissible, in the statute.

Thank you.

Your Honor.

Chief Justice Rehnquist: Thank you, Ms. Brinkmann.

The case is submitted.

Attribution:

The OYEZ Project

Featured: