7-2-18 ACLU Brief

Case 2:85-cv-04544-DMG-AGR Document 451 Filed 07/02/18 Page 1 of 20 Page ID
#:18089
1 MICHAEL K.T. TAN*

mtan@aclu.org
2 JUDY RABINOVITZ*
jrabinovitz@aclu.org
3 ACLU IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
4 New York, New York 10004-2400
Telephone: (212) 549-2618
5 Facsimile: (212) 549-2654
6 AHILAN T. ARULANANTHAM (SBN 237841)
aarulanantham@aclu-sc.org
7 ACLU FOUNDATION OF SOUTHERN CALIFORNIA
1313 West 8th Street
8 Los Angeles, CA 90017
Telephone: (213) 977-5232
9 Facsimile: (213) 977-5297
10 Attorneys for Amici Curiae
*Pro hac vice application forthcoming
11
12
UNITED STATES DISTRICT COURT
13 CENTRAL DISTRICT OF CALIFORNIA
14
15 JENNY LISETTE FLORES, et ) Case No. 85-4544-DMG (Px)
16 al., )
) BRIEF OF AMICI CURIAE IN
17 Plaintiffs, ) SUPPORT OF PLAINTIFFS’
18 ) OPPOSITION TO THE
v.
) GOVERNMENT’S EX PARTE
19 JEFFERSON B. SESSIONS, ) APPLICATION FOR RELIEF
20 Attorney General, et al., )
)
21 Defendants. ) Judge: Hon. Dolly M. Gee
22 ) Courtroom: 8C, Los Angeles Courthouse
)
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#:18090
1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES ..................................................................................... ii
3 STATEMENT OF INTEREST ................................................................................. 1
4 INTRODUCTION ..................................................................................................... 1
5 ARGUMENT ............................................................................................................. 4
6 I. THE GOVERNMENT MAY NOT DETAIN FAMILIES FOR
DETERRENCE PURPOSES. .......................................................................... 4
7
A. General Deterrence Is Not a Permissible Basis for Civil Immigration
8 Detention.................................................................................................. 4
9 B. The Government Presents No Probative Evidence that the Flores
Agreement or this Court’s July 2015 Order Have Caused a Migratory
10 Crisis. ....................................................................................................... 7
11 II. THE GOVERNMENT MAY NOT SUBJECT FAMILIES TO BLANKET
12 DETENTION FOR THE PENDENCY OF THEIR REMOVAL CASES. .. 12
CONCLUSION........................................................................................................ 16
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Proposed Brief by Amici Curiae ACLU
Immigrants’ Rights Project and ACLU i
Foundation of Southern California
#:18091
1 TABLE OF AUTHORITIES
CASES
2
Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) .......................................................... 4
3
4 INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183 (1991) ....................... 14
5 Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ................................................. 1, 6, 14

6 Kansas v. Crane, 534 U.S. 407 (2002) .................................................................. 5, 9
7 Kansas v. Hendricks, 521 U.S. 346 (1997) ........................................................... 5, 9
8
Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999) .............................................. 13
9
Reno v. Flores, 507 U.S. 292 (1993) ....................................................................... 13
10
11 RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ....................................... passim
12 Rufo v. Inmates of the Suffolk Cnty. Jail, 502 U.S. 367 (1992) ................................ 4
13 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)....................... 14
14 United States v. Salerno, 481 U.S. 739 (1987)........................................................ 12
15
Zadvydas v. Davis, 533 U.S. 678 (2001) .......................................................... passim
16
STATUTES
17
18 8 U.S.C. § 1225(b)(1) .......................................................................................... 8, 14
19 8 U.S.C. § 1225(b)(1)(A)........................................................................................... 8
20 8 U.S.C. § 1225(b)(1)(B)(ii) ...................................................................................... 8
21 8 U.S.C. § 1225(b)(1)(B)(v) ...................................................................................... 8
22
8 U.S.C. § 1226(a) ........................................................................................... 2, 6, 13
23
REGULATIONS
24
25 8 C.F.R. § 208.30(f) ................................................................................................... 8
26 8 C.F.R. § 1003.19(a) .............................................................................................. 13

27 8 C.F.R. § 1236.1(c)(8)............................................................................................ 13
28
Immigrants’ Rights Project and ACLU ii
#:18092
1 OTHER AUTHORITIES
2 Adam Cox & Ryan Goodman, Detention of Migrant Families as “Deterrence”:

Ethical Flaws and Empirical Doubts, justsecurity.org (June 22, 2018) ....... 10, 11
3
4 Executive Order, Affording Congress an Opportunity to Address Family
Separation, 2018 WL 3046068 (June 20, 2018) .................................................. 12
5
ICE Directive 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear
6 of Persecution or Torture (Dec. 8, 2009) ............................................................. 14
7
Ingrid Eagly, Steven Shafer, & Jana Whalley, Detaining Families: a Study of
8 Asylum Adjudication in Family Detention,
9 106 Calif. L. Rev. 785 (June 2018) ..................................................................... 15
10 Memorandum from John Kelly, Secretary of Homeland Security, Implementing the

President’s Border Security and Immigration Enforcement Improvements
11 Policies (Feb. 20, 2017) ....................................................................................... 14
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Immigrants’ Rights Project and ACLU iii
#:18093
1 STATEMENT OF INTEREST
2 The ACLU is a nationwide, nonprofit, nonpartisan organization with more
3 than 1.75 million members dedicated to the principles of liberty and equality
4 embodied in the Constitution and this nation’s civil rights laws. The Immigrants’
5 Rights Project (“IRP”) of the ACLU engages in a nationwide program of litigation
6 and advocacy to enforce and protect the constitutional and civil rights of
7 immigrants. The ACLU Foundation of Southern California is the Southern
8 California affiliate of the ACLU.
9 IRP and the ACLU Foundation of Southern California have litigated
10 numerous major cases on immigration detention, either as counsel of record or
11 counsel for amicus curiae. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
12 IRP has particular interest in and experience with family detention. IRP serves as
13 class counsel in RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015), a nationwide
14 class action lawsuit challenging the government’s detention of migrant families,
15 including many Flores class members, for the purpose of deterring future
16 migration to the United States.
17 INTRODUCTION
18 Amici curiae the ACLU Immigrants’ Rights Project and ACLU Foundation
19 of Southern California (hereinafter “ACLU” or “Amici”) submit this brief in
20 support of Plaintiffs’ opposition to the government’s ex parte application for relief
21 from the Flores Settlement Agreement (hereinafter, “Flores Agreement” or
22 “Agreement”).1 Amici submit that the government’s ex parte motion should be
23 denied for at least two reasons.
24
1
25 The government specifically asks that this Court (1) permit U.S. Immigration and
26 Customs Enforcement (“ICE”) to detain parents and children in ICE family
detention centers pending their immigration proceedings and (2) waive the Flores
27 Agreement’s state licensure requirements for family detention facilities. Gov’t Br.
28 4.

Immigrants’ Rights Project and ACLU 1
#:18094
1 First, the government seeks emergency relief on the grounds that the Flores
2 Agreement and this Court’s July 2015 Order have purportedly “precipitated a
3 destabilizing migratory crisis” by sending a message to migrant families that they
4 will not be detained and deported if they come to the United States. Gov’t Br. 2
5 (referring to ECF No. 177). The government claims that modification of the
6 Agreement to permit family detention during the pendency of immigration
7 proceedings is necessary to “dispel[] such expectations, and deter[] others from
8 unlawfully coming to the United States.” Gov’t Br. 13 (internal quotation marks
9 and citation omitted).
10 Even assuming the government’s factual claims were correct—and they are
11 not—its ex parte motion should be rejected. General deterrence is not a permissible
12 purpose for family detention because this form of detention is civil rather than
13 criminal in nature. The U.S. District Court for the District of Columbia held
14 exactly that, in the context of family detention, in RILR v. Johnson, 80 F. Supp. 3d
15 164 (D.D.C. 2015). Based on controlling Supreme Court precedent, RILR
16 concluded that the detention of individuals for the purpose of deterring the
17 migration of others to the United States raises serious due process concerns and
18 violates the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a). The
19 Due Process Clause and the INA permit detention based only on individualized
20 characteristics such as flight risk and danger to the community. Where the
21 government lacks an individualized basis to detain, incarceration in this context is
22 impermissible. See RILR, 80 F. Supp. 3d at 186-90.
23 Moreover, the government itself agreed not to detain families based on
24 general deterrence as a condition of dissolving the RILR injunction and
25 administratively closing the case.2 Thus, even if the government were correct that
26
27 2
See Notice to the Court, 1 (ECF No. 40) and Order, 1 (ECF No. 43), RILR v.
28 Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv-00011-JEB).

#:18095
1 Flores and this Court’s July 2015 Order have impacted migration patterns, it still
2 would be prohibited—by the Constitution, the immigration laws, and its own
3 policy—from imprisoning families to deter other migrants from coming to the
4 United States. See Point I.A, infra.
5 In any event, the government has failed to justify its interest in deterrence
6 here. It is unclear why the government has any legitimate interest in deterring the
7 families who primarily benefit from the release provisions of the Flores
8 Agreement—namely, asylum seekers whom the immigration authorities have
9 found to have credible asylum claims that must be heard in full immigration court
10 hearings inside the United States. The government has failed to provide any
11 probative evidence either of the “migratory crisis” supposedly precipitated by
12 Flores and this Court’s July 2015 Order, or that long-term family detention—if
13 permitted by this Court—would effectively deter migrants from seeking asylum in
14 the United States. In short, the government has failed to show that modification of
15 the Flores Agreement is warranted. See Point I.B, infra.
16 Second, the government’s motion appears to assume that if the Flores
17 Agreement did not require that children be released promptly from custody, then
18 the government could subject the parents and children to prolonged detention
19 pending completion of their removal proceedings, and thereby avoid the need for
20 family separation. See, e.g., Gov’t Br. 5. However, the government may not subject
21 families to such categorical detention. Instead, the Due Process Clause, the INA,
22 and the INA’s implementing regulations all require that the government make an
23 individualized determination that detention is warranted based on flight risk and
24 danger.
25
26
27
28
#:18096
1 ARGUMENT
2 I. THE GOVERNMENT MAY NOT DETAIN FAMILIES FOR

3 DETERRENCE PURPOSES.
4 A. General Deterrence Is Not a Permissible Basis for Civil

5 Immigration Detention.
The government seeks emergency relief from the Flores Agreement based
6
on a purported influx of migrant families that it claims resulted from this Court’s
7
July 2015 Order denying the government’s motion to amend the Agreement. See
8
Gov’t Br. 2-3, 8-9; see also ECF No. 177. As set forth below, the government’s
9
claims are factually incorrect and do not remotely show a “significant change in
10
circumstances” warranting extraordinary relief under Rule 60(b)(5). See Rufo v.
11
Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383 (1992). See also Point I.B., infra.
12
But even if the government had shown a significant change in circumstances—
13
which it has not—it still would be prohibited from deploying family detention for
14
the purpose underlying its ex parte motion: that is, to deter other migrants from
15
traveling to the United States.
16
This is made clear by the district court’s preliminary injunction ruling in
17
RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015). See also Flores v. Lynch, 828
18
F.3d 898, 904-05 (9th Cir. 2016) (discussing RILR injunction). In RILR, a plaintiff
19
class of Central American mothers and children challenged, among other things,
20
the Department of Homeland Security’s (“DHS”) policy and practice of detaining
21
families for the purpose of deterring other migrants from coming to the United
22
States.3 The district court concluded, based on controlling Supreme Court
23
24 3
The class as provisionally certified by the district court consists of Central
25 American mothers and children who:
26
(a) have been or will be detained in ICE family detention facilities
27 since June 2014; (b) have been or will be determined to have a
28 credible fear of persecution in their home country, see 8 U.S.C. §
(cont’d)

#:18097
1 precedent, that such detention raised serious due process concerns. See RILR, 80 F.
2 Supp. 3d at 187-90. As the Supreme Court repeatedly has recognized, “[f]reedom
3 from imprisonment—from government custody, detention, or other forms of
4 physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v.
5 Davis, 533 U.S. 678, 690 (2001). Thus, “government detention violates [the Due
6 Process Clause] unless the detention is ordered in a criminal proceeding with
7 adequate procedural protections, or, in certain special and narrow nonpunitive
8 circumstances, where a special justification, such as harm-threatening mental
9 illness, outweighs the individual’s constitutionally protected interest in avoiding
10 physical restraint.” Id. at 690 (emphasis in original) (internal citations omitted).
11 In contrast to criminal detention, “general deterrence” is not a permissible
12 basis for civil detention—including under the immigration laws. See RILR, 80 F.
13 Supp. 3d at 188-89. See also Kansas v. Crane, 534 U.S. 407, 412 (2002) (warning
14 that civil detention may not “become a ‘mechanism for retribution or general
15 deterrence’—functions properly those of criminal law, not civil commitment”)
16 (quoting Kansas v. Hendricks, 521 U.S. 346, 372-73 (1997) (Kennedy, J.,
17 concurring)); Hendricks, 521 U.S. at 373 (“[W]hile incapacitation is a goal
18 common to both the criminal and civil systems of confinement, retribution and
19 general deterrence are reserved for the criminal system alone.”). Indeed, as the
20 court in RILR explained, the Supreme Court has permitted immigration detention
21 based only on “characteristics inherent in the alien himself or in the category of
22
23 1225[(b)(1)](B)(v), § 1158; 8 C.F.R. § 208.31; and (c) are eligible for
24 release on bond, recognizance, or other conditions, pursuant to 8
U.S.C. § 1226(a)(2) and 8 C.F.R. § 1236.1[(c)](8), but (d) have been
25 or will be denied such release after being subject to an ICE custody
26 determination that took deterrence of mass migration into account.
27 Order ¶ 2, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv-

00011-JEB) (ECF No. 32).
28
#:18098
1 aliens being detained—that is, the Court countenanced detention of an alien or

2 category of aliens on the basis of those aliens’ risk of flight or danger to the
3 community.” RILR, 80 F. Supp. 3d at 188. Accord Zadvydas, 533 U.S. at 690-92.
4 By contrast, the Due Process Clause does not permit the detention of a particular
5 individual “for the sake of sending a message of deterrence to other Central
6 American individuals who may be considering immigration.” RILR, 80 F. Supp. 3d
7 at 188-89.
8 In light of these serious due process concerns, the court in RILR applied the
9 canon of constitutional avoidance4 to interpret the INA, 8 U.S.C. § 1226(a), to
10 prohibit detention based on general deterrence, and granted the plaintiffs’ motions
11 for a preliminary injunction and provisional class certification. See id. at 186-87,
12 191. Subsequently, in May 2015, the government notified the district court that it
13 had decided to discontinue detaining families on deterrence grounds. See Notice to
14 the Court, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv-
15 00011-JEB) (ECF No. 40). In June 2015, by agreement of the parties, the district
16 court then dissolved the preliminary injunction and closed the case, allowing the
17 plaintiffs to move to reinstate the preliminary injunction if the government again
18 seeks to detain class members for the purpose of deterring future immigration to
19 the United States. See Order, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015)
20 (No. 1:15-cv-00011-JEB) (ECF No. 43).5
21
4
22 See Zadvydas, 533 U.S. at 689 (explaining that the canon of constitutional
avoidance requires courts to “ascertain whether a construction of the statute is
23 fairly possible by which the [constitutional question] may be avoided.”). See also
24 Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018) (the canon of constitutional
avoidance “permits a court to choose between competing plausible interpretations
25 of a statutory text” (internal quotation marks and emphasis omitted)).
5
26 The June 2015 Order in RILR requires the government to notify the district court
that it has decided to detain class members on general deterrence grounds at least
27 ten days prior to making any change in policy, so that the plaintiffs may seek
28 reinstatement of the preliminary injunction. See Order ¶ 2.a, RILR v. Johnson, 80
(cont’d)

#:18099
1 However, despite the RILR preliminary injunction ruling and the parties’
2 agreement in RILR, the government now asks in its instant motion that this Court
3 waive critical provisions of the Flores Agreement precisely so that it can detain
4 families for the purpose of general deterrence. The government claims that the
5 Agreement has “creat[ed] a powerful incentive for aliens to enter this country with
6 children in violation of our criminal and immigration laws” and that this Court’s
7 July 2015 ruling has “precipitated a destabilizing migratory crisis” by sending a
8 “message . . . to those seeking illegal entry: we will not detain and deport you.”
9 Gov’t Br. 1-2. In the government’s view, detaining families until their removal
10 cases are resolved is necessary to “dispel such expectations, and deter[] others
11 from unlawfully coming to the United States.” Gov’t Br. 13 (internal quotation
12 marks and citation omitted).
13 Even if the government’s assertions regarding the effects of Flores and this
14 Court’s July 2015 Order were correct—and they are not, see Point I.B, infra—the
15 Due Process Clause, the immigration statutes, and the government’s own stated
16 policy prohibit it from subjecting families to detention in order to deter them. Put
17 simply, general deterrence is not a permissible purpose for civil immigration
18 detention. For this reason, the government’s motion for emergency relief should be
19 rejected.
20
B. The Government Presents No Probative Evidence that the Flores
21 Agreement or this Court’s July 2015 Order Have Caused a
22 Migratory Crisis.
Even assuming that general deterrence could constitute a permissible basis
23
for detaining families, the government has not justified its interest in deterrence
24
here. As the district court asked in RILR, the government “seeks to deter future
25
26
F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv-00011-JEB) (ECF No. 43). To date,
27 the government has not filed any such notice in RILR, despite the position it has
28 adopted in its ex parte motion to this Court.

#:18100
1 mass immigration; but to what end?” RILR, 80 F. Supp. 3d at 189. The

2 government’s interest in deterrence is particularly insubstantial given that—
3 contrary to the government’s assertions—the overwhelming majority of families
4 who benefit from the release provisions of the Flores Agreement have bona fide
5 asylum claims. Compare, e.g., Gov’t Br. 19 (asserting that the Flores Agreement
6 gives families who have “no valid asylum claim” the opportunity to “disappear[]”
7 into the United States), with U.S. Citizenship and Immigration Services, Asylum
8 Division, Family Facilities Credible Fear (Apr. 27, 2015), available at
9 https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED-CF-RF-familiy-
10 facilities-FY2015Q2.pdf (reporting that nearly 90% of families screened by an
11 asylum officer from January through March 2015 were found to have a credible
12 asylum claim); see also Declaration of Manoj Govindaiah ¶ 3 (attached as Ex A.)
13 (explaining that approximately 5,000 of the 5,177 families detained at the Karnes
14 County Residential Center who were provided legal services by RAICES between
15 July 2017 to July 2018 were found to have a credible asylum claim). These
16 families have been found by the immigration authorities to have a credible fear of
17 persecution in Central America—meaning a “significant possibility” that they
18 “could establish eligibility for asylum,” 8 U.S.C. § 1225(b)(1)(B)(v)—and deemed
19 to have asylum claims that should be heard in full immigration court hearings
20 inside the United States. See id. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(f). By
21 contrast, immigrants found to not have a credible fear are immediately deported
22 pursuant to the expedited removal process, without ever receiving a hearing before
23 an immigration judge. See 8 U.S.C. § 1225(b)(1)(A). See also Govindaiah Dec. ¶ 4
24 (reporting that the “small minority” of families at Karnes who did not have a fear
25 of return “received expedited removal orders and were generally deported from the
26 United States within a few days afterwards”). Thus, only immigrants found to have
27 credible asylum claims and referred for a full removal hearing face detention for
28 significant periods of time and benefit from the release provisions of the Flores
#:18101
1 Agreement. It is unclear why the government has a legitimate interest in deterring

2 such bona fide asylum seekers, particularly when they already have means to
3 immediately deport immigrants who lack credible asylum claims. Indeed, as the
4 district court reasoned in RILR, “a general-deterrence rationale seems less
5 applicable where—unlike pedophiles, see Hendricks, 521 U.S. at 354–55, 362, or
6 other violent sexual offenders, see Crane, 534 U.S. at 409-11—neither those being
7 detained nor those being deterred are certain wrongdoers, but rather individuals
8 who may have legitimate claims to asylum in this country.” 80 F. Supp. 3d at 189.6
9 Moreover, much like when the government attempted to justify its
10 deterrence policy in RILR, the government here has failed to present probative
11 evidence that the Flores Agreement or this Court’s July 2015 Order have
12 “precipitated a destabilizing migratory crisis,” see Gov’t Br. 2, or that family
13 detention would actually deter families from seeking asylum in the United States.
14 See RILR, 80 F. Supp. 3d at 189 (“Defendants have presented little empirical
15 evidence, moreover, that their detention policy even achieves its only desired
16 effect—i.e., that it actually deters potential immigrants from Central America.”).
17 As an initial matter, the government’s bare assertions regarding the
18 purported impact of Flores on migration patterns contradict the social science
19 literature. As the district court found based on expert evidence in RILR, “‘rumors
20 regarding lenient immigration detention policies in the United States are not a
21 significant factor motivating current Central American immigration.’” Id. (quoting
22
23 6
The government vaguely asserts that the Flores Agreement “encourages parents
24 to subject their children to [a] dangerous journey in order to avoid their own
detention” and puts children at “increased risk of trafficking by smugglers,” Gov’t
25 Br. 6 (internal quotation marks and citation omitted). In addition to offering no
26 evidence for these assertions, the government fails to acknowledge that the parents
of children with bona fide asylum claims presumably know and have decided that
27 leaving their children in situations of violence and death puts their lives in equal, if
28 not greater, peril.

#:18102
1 Declaration of Nestor Rodriguez, Ph.D, ¶ 14, RILR v. Johnson, 80 F. Supp. 3d 164

2 (D.D.C. 2015) (No. 1:15-cv-00011-JEB) (ECF No. 9-23)). See also Declaration of
3 Cecilia Menjivar, Ph.D, ¶ 15, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015)
4 (No. 1:15-cv-00011-JEB) (ECF No. 38-1) (“[I]t is my conclusion that any
5 perception of lax border enforcement or detention policies does not meaningfully
6 contribute to the migration of families from Central America to the United
7 States.”). Instead, the main “push factors” to drive families from Central America
8 to migrate to the United States are the life-threatening conditions in their home
9 countries. Id. ¶ 15. “Compared to the other[] expected risks—such as rape or
10 death—detention is actually less serious and thus less likely to function as a
11 significant deterrent . . . .” Id. ¶ 23.
12 Although the government cites statistics purporting to show the impact of
13 Flores and this Court’s July 2015 Order on migration patterns, the government’s
14 data undermines, rather than confirms, its claims. For example, the government
15 asserts that
16
[a]fter a significant reduction in family units crossing the border in FY
17 2015 when the Government was holding families together, see ECF
18 184-1 at 8 ¶ 17, family crossings away from legal ports of entry nearly
doubled in FY 2016, as measured by apprehensions . . . . The month-
19 to-month figures show the sharp rise in family border crossings during
20 2015—from a figure in the range of 1,600 to 4,000 before this Court’s
July 2015 decision, to a figure ranging from 5,000 to nearly 9,000 in
21 the months after the decision.
22 Gov’t Br. 7-9. However, as explained in a recent analysis by legal scholars, “[t]he
23 government’s correlational statistics fail on their own terms.” Adam Cox & Ryan
24 Goodman, Detention of Migrant Families as “Deterrence”: Ethical Flaws and
25 Empirical Doubts, justsecurity.org (June 22, 2018),
26 https://www.justsecurity.org/58354/detention-migrant-families-deterrence-ethical-
27 flaws-empirical-doubts/. As Cox and Goodman explain:
28
#:18103
1 At first blush, these numbers do sound like there is at least a

correlation between Flores and families’ migration decisions. But the
2 apparent relationship is based on the selective use of only a small slice
3 of apprehensions data . . . . [In fact,] border apprehensions began
rising months before the decision. The [July 2015 Order] was simply
4 not an inflection point. Forget causation: there’s not even a
5 correlational relationship between Flores and family migration, as the
government asserted in its brief.
6
Id. (emphasis added).7
7
In sum, even assuming detention-for-deterrence were permissible, the
8
government has failed to establish that family detention in fact deters the migration
9
of families seeking asylum in the United States, or that Flores has impacted
10
migration patterns as it claims. The government plainly has not met its heavy
11
burden of showing “significant changed circumstances” that could warrant
12
modification of the Flores Agreement.
13
14
15
7
Cox and Goodman further explain that
16
17 if the 2015 Flores decision really had changed the incentives for
families, you would expect crossings for families and unaccompanied
18
minors to respond differently after the decision. After all,
19 unaccompanied minors had always been covered by the Flores
settlement. The fight in 2015 was over whether the settlement also
20
covered families. If the government wants to claim that the court’s
21 decision applying Flores to families was the “treatment” that caused a
22 migration surge by families, then unaccompanied minors are the
“control group,” unaffected by the court decision. So do we see
23 sharply different responses by these two different groups? None
24 whatsoever . . . . The pattern of apprehensions for these two groups
track[s] each other almost perfectly over time. This is devastating
25 evidence against the government’s contention that rising rates of
26 family apprehensions in the second half of 2015 were caused by the
court’s July decision in Flores.
27
28 Cox & Goodman, Detention of Migrant Families, supra.

#:18104
1 II. THE GOVERNMENT MAY NOT SUBJECT FAMILIES TO

BLANKET DETENTION FOR THE PENDENCY OF THEIR
2 REMOVAL CASES.
3 The government’s ex parte motion is flawed for an additional reason. The
4 government’s motion appears to assume that if the Flores Agreement did not
5 require that children be released, then the government could subject the parents and
6 children to prolonged detention pending completion of their removal proceedings,
7 and thereby avoid the need for family separation. See, e.g., Gov’t Br. 5 (stating the
8 government’s interest in discussing “options . . . that will permit families to be kept
9 together at residential facilities during the time needed to complete immigration
10 proceedings” (emphasis added)). Similarly, the President’s recent Executive Order
11 directs the Secretary of Homeland Security “maintain custody of alien families
12 during the pendency of . . . immigration proceedings involving their members”, “to
13 the extent permitted by law.” See Executive Order, Affording Congress an
14 Opportunity to Address Family Separation, § 3(a), 2018 WL 3046068 (June 20,
15 2018).
16 However, the categorical detention of families pending removal proceedings
17 is not permitted by law. Instead, the Due Process Clause, as well as the INA and its
18 implementing regulations, permit detention only upon an individualized
19 determination that the person presents a flight risk or danger to the community. As
20 explained above, see Point I.A., supra, the Due Process Clause requires “special
21 justifications” for the deprivation of liberty—deterrence not among them—and
22 “strong procedural protections” to ensure that detention is serving a legitimate
23 goal. Zadvydas, 533 U.S. at 690-91. As a result, immigration detention generally
24 requires an individualized determination of flight risk and danger to the
25 community. Id. See also United States v. Salerno, 481 U.S. 739, 751-52 (1987)
26 (affirming Bail Reform Act in light of procedures for “determining the
27 appropriateness of detention” based on individualized factors). By contrast, due
28
#:18105
1 process does not permit the categorical use of civil detention contemplated by the
2 government’s motion.
3 Likewise, the INA does not permit the categorical detention of families
4 either. Section 1226(a) states only that, “pending a decision on whether the alien is
5 to be removed from the United States,” the government “may continue to detain
6 the arrested alien,” or “may release the alien” on bond or parole. 8 U.S.C. §
7 1226(a). The statute contains no authorization for a blanket policy of detaining
8 arrested migrant families, without regard to their individual circumstances, and
9 must be read to avoid the serious constitutional problems that such a policy would
10 present. See Zadvydas, 533 U.S. at 689.
11 The regulations implement this provision by permitting immigration judges
12 to individually review any case where ICE agents determine that an individual
13 should remain detained. See 8 C.F.R. § 1003.19(a). The regulations provide for the
14 discretionary release of a noncitizen on bond or other conditions of supervision if
15 the noncitizen “demonstrate[s] to the satisfaction of the officer that such release
16 would not pose a danger to property or persons, and that the alien is likely to
17 appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8). See also Matter of
18 Adeniji, 22 I. & N. Dec. 1102, 1112-13 (BIA 1999) (applying the same regulation
19 to bond determinations by the immigration judge); Matter of Guerra, 24 I. & N.
20 Dec. 37, 39 (BIA 2006) (requiring at discretionary determinations of flight risk and
21 danger have a “reasonable foundation”). As the Supreme Court has repeatedly
22 confirmed in the immigration context, this sort of “discretion” inherently requires
23 some form of individualized determination.
24 For example, in Reno v. Flores, 507 U.S. 292 (1993), the Court was asked to
25 interpret the Attorney General’s “broad discretion” to release or detain aliens
26 pending a final determination of deportability. Id. at 295-96 & n.1. Although the
27 Court held that certain presumptions guiding the exercise of discretion may be
28 appropriate, it also recognized that an “exercise of discretion . . . requires ‘some
#:18106
1 level of individualized determination.’” Id. at 313 (quoting INS v. Nat'l Ctr. for
2 Immigrants' Rights, Inc. (“NCIR”), 502 U.S. 183, 194 (1991)). The Court applied
3 similar reasoning in NCIR, in which it interpreted a statute that conferred discretion
4 on the Attorney General to impose conditions on the release of excludable
5 noncitizens. NCIR, 502 U.S. at 184-85. Again, the Court held that “the lawful
6 exercise of the Attorney General’s discretion . . . requires some level of
7 individualized determination,” because “in the absence of such judgments, the
8 legitimate exercise of discretion is impossible in this context.” Id. at 194-95. More
9 broadly, the Supreme Court has held that “if the word ‘discretion’ means anything
10 in a statutory or administrative grant of power, it means that the recipient must
11 exercise his authority according to his own understanding and conscience.” United
12 States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954). Discretion
13 does not mean categorical detention, regardless of the individual’s facts and
14 circumstances.8
15
8
In contrast to families detained under Section 1226(a), “arriving” noncitizens who
16
request asylum at a port-of-entry to the United States are detained pursuant to 8
17 U.S.C. § 1225(b)(1) and not eligible for bond hearings before an immigration
judge. See Jennings, 138 S. Ct. at 836-37, 842-46. However, pursuant to DHS’s
18
own policy directive, arriving noncitizens who establish a credible fear of
19 persecution are entitled to an individualized “parole” review by DHS to determine
if they pose no danger or flight and, absent such a determination, their release from
20
detention is “in the public interest.” See ICE Directive 11002.1, Parole of Arriving
21 Aliens Found to Have a Credible Fear of Persecution or Torture, ¶ 6.2 (Dec. 8,
22 2009), https://www.ice.gov/doclib/dro/pdf/11002.1-hd-
parole_of_arriving_aliens_found_credible_fear.pdf (providing that “absent
23 additional factors,” a noncitizen with a credible fear who establishes his or her
24 identity and presents no flight risk or danger should be paroled “on the basis that
his or her continued detention is not in the public interest” and that “[e]ach alien’s
25 eligibility for parole should be considered on its own merits and based on the facts
26 of the individual alien’s case”). The Secretary of Homeland Security stated in
February 2017 that the Parole Directive “remain[s] in full force and effect”
27 pending “further review and evaluation.” Memorandum from John Kelly, Secretary
28 of Homeland Security, Implementing the President’s Border Security and
(cont’d)

#:18107
1 The requirement of individualized custody reviews especially matters

2 because—contrary to the government’s assertions, see, e.g., Gov’t Br. 1—families
3 generally do not need to be detained to ensure their appearance at court hearings.
4 Indeed, the government’s own data shows that families are highly likely to appear
5 for their court hearings. A recent comprehensive study of data from the
6 Department of Justice’s Executive Office of Immigration Review shows that,
7 between 2001-2016, 86% of family detainees attended all their court hearings.
8 Families who applied for asylum were especially likely to attend future court
9 hearings, with 96% attending all their hearings. And asylum applicants with
10 lawyers had an even higher appearance rate: 97% attended all their hearings during
11 the study period. Ingrid Eagly, Steven Shafer, & Jana Whalley, Detaining
12 Families: a Study of Asylum Adjudication in Family Detention, 106 Calif. L. Rev.
13 785, 848 (June 2018), available at http://www.californialawreview.org/wp-
14 content/uploads/2018/06/4-Eagly_Shafer_Whalley.pdf.
15 In sum, the Constitution, INA, and regulations prohibit the categorical
16 detention of families pending removal proceedings. Instead, the government may
17 detain families only upon an individualized determination that the person presents
18 a flight risk or danger that makes his or her detention necessary.9
19
Immigration Enforcement Improvements Policies, at 9-10 (Feb. 20, 2017),
20
https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-
21 the-Presidents-Border-Security-Immigration-Enforcement-Improvement-
22 Policies.pdf.
9
Finally, the government claims that modification of the Flores Agreement to
23 permit the prolonged detention of families is necessary to avoid family
24 separation—that is, the detention of the parent in an ICE facility and separate
placement of the child in the custody of the Department of Health and Human
25 Service’s Office of Refugee Resettlement. See, e.g., Gov’t Br. 1. However, this is a
26 false choice. In the overwhelming majority of cases, parents pose no danger or
flight risk. Thus, there is no legal basis to keep them in detention at all, and
27 families should be released together to the community. See Point II, supra.
28 Moreover, family separation is not objectionable when a parent makes the decision
(cont’d)

#:18108
1
2 CONCLUSION
3 For the foregoing reasons, the government’s ex parte application for relief
4 from the Flores Agreement should be denied.
5
6 Respectfully submitted,
7 ACLU IMMIGRANTS’ RIGHTS PROJECT
8 ACLU FOUNDATION OF SOUTHERN
9 CALIFORNIA
10
11 Dated: June 29, 2018 By: /s/ Michael K.T. Tan
MICHAEL K.T. TAN
12 JUDY RABINOVITZ
13 AHILAN T. ARULANANTHAM
Attorneys for Amici Curiae
14
15
16
17
18
19
20
21
22
23
24
25
26 that temporary separation is in the best interests of their child. What violates due
process is the government’s policy of separating families over the objection of a
27 parent, and the Flores Agreement in no way requires this. The Flores
28 Agreement was intended to protect children.


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Case 2:85-cv-04544-DMG-AGR Document 451 Filed 07/02/18 Page 1 of 20 Page ID

1 MICHAEL K.T. TAN*

5 Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ................................................. 1, 6, 14

26 8 C.F.R. § 1003.19(a) .............................................................................................. 13

2 Adam Cox & Ryan Goodman, Detention of Migrant Families as “Deterrence”:

10 Memorandum from John Kelly, Secretary of Homeland Security, Implementing the

Proposed Brief by Amici Curiae ACLU

Proposed Brief by Amici Curiae ACLU

2 I. THE GOVERNMENT MAY NOT DETAIN FAMILIES FOR

4 A. General Deterrence Is Not a Permissible Basis for Civil

Proposed Brief by Amici Curiae ACLU

27 Order ¶ 2, RILR v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) (No. 1:15-cv-

1 aliens being detained—that is, the Court countenanced detention of an alien or

Proposed Brief by Amici Curiae ACLU

Proposed Brief by Amici Curiae ACLU

1 mass immigration; but to what end?” RILR, 80 F. Supp. 3d at 189. The

1 Agreement. It is unclear why the government has a legitimate interest in deterring

Proposed Brief by Amici Curiae ACLU

1 Declaration of Nestor Rodriguez, Ph.D, ¶ 14, RILR v. Johnson, 80 F. Supp. 3d 164

1 At first blush, these numbers do sound like there is at least a

Proposed Brief by Amici Curiae ACLU

1 II. THE GOVERNMENT MAY NOT SUBJECT FAMILIES TO

Proposed Brief by Amici Curiae ACLU

1 The requirement of individualized custody reviews especially matters

Proposed Brief by Amici Curiae ACLU

Proposed Brief by Amici Curiae ACLU

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