United States v. Valenzuela-Bernal Page 25

United States v. Valenzuela-Bernal general information

Media for United States v. Valenzuela-Bernal

Audio Transcription for Oral Argument - April 20, 1982 in United States v. Valenzuela-Bernal

Sandra Day O'Connor:

I mean what's the matter with that then, with the shorter time and then yat point, Mr. Phillips, that -- that page 30 of the read brief, they give some figures about the number of cases and they say there were only 11 Mendez-Rodriguez motions filed in a total oou could deport at your peril, I suppose?

Carter G. Phillips:

Well, if -- if we thought it would work and then we could in fact deport at our peril and given them two days, I just think we're going to have trouble if that -- having that enforced in the Ninth Circuit.

John Paul Stevens:

Well, you're certainly acting at your peril now.

You don't say that you can just -- well, I guess you do.

Your submission really is that if you -- once you interview them and that Government makes a decision that they would have no exculpatory evidence that you can deport them and -- and as long as you act in good faith, that's the end of the matter, no matter what the showing is on the other side.

Carter G. Phillips:

Ultimately that's --

John Paul Stevens:

That's your first submission.

Carter G. Phillips:

Yes, Your Honor.

I mean, we then have to make that kind of a determination with regard to each of the one million illegal aliens who are captured.

John Paul Stevens:

Have you ever had the Court agree with you on that, that first position?

Carter G. Phillips:

Yes.

John Paul Stevens:

Who?

Carter G. Phillips:

The Ninth Circuit holds that if we make a determination, that there is no connection in -- in time or space between the illegal alien and a criminal defendant, then we can --

John Paul Stevens:

No one has ever -- you say on the facts of this case, if you make a good faith judgment that even though they were present on the spot, that they would have no evidence, that's the end of the matter no matter what kind of a showing the other side is.

Carter G. Phillips:

Sure, what we're suggesting though is that there is not a demonstrable difference -- yes, that is our submission but that's not demonstrably different from the judgment --

John Paul Stevens:

Suppose we rejected that, what's your next fallback?

Carter G. Phillips:

Is that -- is that respondent under any circumstances must demonstrate with some concreteness the materiality of the witnesses that were lost which they cannot do in this case.

John Paul Stevens:

And -- and is -- is that rule extended in any circuit that you know of?

Carter G. Phillips:

Yes, Your Honor.

I believe the Fifth Circuit adapts a rule very much like that.

John Paul Stevens:

Do you think that's the rule the Fifth Circuit adapts?

Carter G. Phillips:

I think so, Your Honor, because in the Avila-Dominguez case, those -- those witnesses were witnesses to the crime at the time they were arrested and the Court held that they could be -- that they could be sent away.

John Paul Stevens:

So you -- so, if you would be acting at your peril in deporting witnesses under the Fifth Circuit rule?

Carter G. Phillips:

Certainly, to the extent there is a review, but -- I mean we don't -- we don't, you know wither from the notion that there'll be judicial review of our determination.

I think we'll be right.

John Paul Stevens:

Do you regularly take that risk in the Fifth Circuit now, or do you hold everybody?

Carter G. Phillips:

No, we regularly take that risk, Your Honor.

John Paul Stevens:

In the -- under the Fifth Circuit rule?

Carter G. Phillips:

Yes, once we make an evaluation and if we think there is no material exculpatory evidence, we will deport.

The -- we won't keep more than several.