Zadvydas v. Davis – Oral Argument – February 21, 2001

Media for Zadvydas v. Davis

Audio Transcription for Opinion Announcement – June 28, 2001 in Zadvydas v. Davis

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William H. Rehnquist:

We’ll hear argument now in Number 99-791, Kestutis Zadvydas v. The INS and John Ashcroft v. Kim Ho Ma.

Mr. Barnard.

Jay W. Stansell:

I’m sorry–

William H. Rehnquist:

Oh, I’m sorry.

Jay W. 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.

William H. Rehnquist:

We’re talking about the language,

“may be detained beyond the removal period? “

Jay W. 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.

Sandra Day O’Connor:

Well, do you think that some reasonable period of time is permitted under that language?

Jay W. Stansell:

Yes, I do, Your Honor.

I think the Court’s… or the circuit court’s construction is entirely consistent with the historical treatment.

Sandra Day O’Connor:

Which circuit court?

Jay W. Stansell:

I’m–

Sandra Day O’Connor:

Are you talking about the Fifth or the Ninth?

Jay W. 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.

William H. Rehnquist:

What about the construction that the INS has put on it?

Isn’t that entitled to some deference under our Chevron rules?

Jay W. 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.

Antonin 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.

Jay W. Stansell:

Well, Your Honor, the circuit court did not specifically define what is a reasonable time period.

I think our position would be–

Antonin Scalia:

You mean an absolute time limit at some point, don’t you?

Jay W. 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.

Antonin 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?

Jay W. 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–

Antonin 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?

Jay W. Stansell:

–Well, Your Honor, the first part of your hypothetical I think is essentially what the law is.

Antonin 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–

Jay W. Stansell:

Your Honor, I–

Antonin 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.

Jay W. 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.

William H. 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.

Jay W. Stansell:

Mr. Chief Justice, the… I think you’re referring to the Mezei decision and–

William H. Rehnquist:

Yes.

Jay W. 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.

William H. Rehnquist:

Well, I… we’ve never overruled the Mezei case.

Jay W. Stansell:

That–

William H. Rehnquist:

We’ve never questioned it so far as I know.

Jay W. 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–

William H. Rehnquist:

Well–

Jay W. 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.

William H. Rehnquist:

–You’re saying, then, that even though an alien obtains admission to this country illegally, that he’s fully protected by our Constitution?

Jay W. Stansell:

Yes, I am, Your Honor.

William H. Rehnquist:

Well, but protected in what sense?

Jay W. 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–

William H. Rehnquist:

You mean, he couldn’t be picked up by the immigration authorities and detained because he’s there illegally?

Jay W. 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.

William H. Rehnquist:

Yes, but will you… answer my question, if you will.

Jay W. 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.

Sandra Day O’Connor:

They’re both out, aren’t they, and under certain terms and conditions?

What’s the situation?

Jay W. 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.

Sandra Day O’Connor:

There are new, proposed regulations dealing with this subject.

Is that correct?

Jay W. Stansell:

That is correct, Your Honor.

Sandra Day O’Connor:

And is there some opportunity for judicial review after a period of time under the proposed new regulations, do you know?

Jay W. 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–

Sandra Day O’Connor:

Nothing expressed?

Jay W. Stansell:

–That’s correct.

That’s my understanding of the regulations.

I think if somebody were–

Sandra Day O’Connor:

And both these cases are here on habeas–

Jay W. Stansell:

–That’s correct.

Sandra Day O’Connor:

–proceedings?

Jay W. Stansell:

2241 is the jurisdiction here.

Antonin 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?

Jay W. Stansell:

That’s correct, Your Honor.

Antonin 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?

Jay W. 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.

David H. 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.

Jay W. Stansell:

That would be a different case, Your Honor, and I’m not sure–

David H. Souter:

Would that be constitutional?

Jay W. 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–

David H. 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?

Jay W. Stansell:

–If it was with a judge and a jury and the right to indictment and the grand jury–

David H. Souter:

Determination of immigrant status is made by a jury.

All the facts are found as a jury needs to find them.

John Paul Stevens:

In your view, would it make any difference whether such a law was passed before or after the alien entered the country?

Jay W. Stansell:

–I’m not sure what I would… how I’d answer that, Your Honor.

John Paul Stevens:

You don’t think they’d be entitled to notice that that was the consequence of coming into the United States?

Jay W. 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–

Ruth Bader Ginsburg:

Okay–

–That’s not the Ninth Circuit rule, though.

Ruth Bader Ginsburg:

The Ninth Circuit rule was, if you can’t, within the reasonably foreseeable future, deport this person because no one will have him–

Jay W. Stansell:

–That’s correct, Your Honor.

Ruth Bader 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.

Jay W. Stansell:

Your Honor, I was speaking to the constitutional test that we think is driven by this Court’s civil detention cases.

David H. 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–

[Laughter]

David H. 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?

Jay W. 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–

David H. 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?

Jay W. Stansell:

–Your Honor, if it’s just a straight imposition of a life sentence, I think that would implicate–

David H. Souter:

No, it’s the imposition of the sentence that I described.

Jay W. Stansell:

–I’m sorry, Your Honor, I’m missing the connection.

David H. 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?

Jay W. 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–

Ruth Bader 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?

Jay W. 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.

David H. 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?

Jay W. 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.

Antonin 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–

[Laughter]

Jay W. Stansell:

That’s correct.

Antonin Scalia:

Well–

Jay W. Stansell:

There’s no doubt about that.

Antonin Scalia:

–It’s not fair to rely on it, then.

[Laughter]

Ruth Bader Ginsburg:

These people were, both of them… your client was how old when–

Jay W. 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.

Ruth Bader Ginsburg:

–So any kind of notice would have to be imputed to the infant from the parents.

Jay W. 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.

William H. Rehnquist:

Very well, Mr. Stansell.

Mr. Barnard, we’ll hear from you.

Robert F. 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.

William H. 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.

Robert F. 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.

Robert F. Barnard:

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–

Antonin 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.

Robert F. Barnard:

–Well–

Antonin Scalia:

So they’re not going as far as extending Mezei to these people entirely.

Robert F. 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–

Antonin Scalia:

There have to be those findings, and in Mezei there don’t have to be those findings.

Robert F. Barnard:

–But all other persons in this country can be released if the detention is based solely on dangerousness, and so they’re treating–

Antonin Scalia:

They’re treating them differently–

Robert F. Barnard:

–Differently than the rest of the people in this country–

Antonin Scalia:

–Right.

Robert F. Barnard:

–which is why they are extending Mezei–

Antonin Scalia:

I understand–

Robert F. Barnard:

–and Mezei is–

Antonin 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.

Robert F. 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–

William H. Rehnquist:

Yes, but she hadn’t committed any felony.

Robert F. Barnard:

–She was in the process of committing a crime when she entered the country, Your Honor.

William H. Rehnquist:

Well, but your clients have committed independent felonies.

Robert F. 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.

William H. 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.

Robert F. 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.

William H. Rehnquist:

But that person is not an alien, and the Government has much more power over aliens than it does over citizens.

Robert F. 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.

Anthony M. Kennedy:

Can they be detained, under your view, for a reasonable time after the 90 day period?

Robert F. Barnard:

Yes, Your Honor.

I believe the test, the civil and regulatory detention test had a weighing analysis built into them.

Anthony M. 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?

Robert F. Barnard:

Yes, I believe you would take that into the consideration.

Anthony M. Kennedy:

That’s part of the reasonableness–

Robert F. Barnard:

Yes, Your Honor.

Anthony M. Kennedy:

–calculation.

Robert F. Barnard:

But–

Anthony M. Kennedy:

Well, are not those periodic review procedures in place now because of the regulations?

Robert F. 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–

Anthony M. Kennedy:

Well, but that’s the basis… that’s the rationale for the detention.

Robert F. 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.

Anthony M. 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.

Robert F. Barnard:

Well, that’s one of the elements, Your Honor, but–

Anthony M. Kennedy:

It is or is not one of the elements?

Robert F. Barnard:

–It is one of the elements to be considered, but–

Anthony M. 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?

Robert F. 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–

Anthony M. Kennedy:

So you could detain a person for, say, 6 extra months because he’s dangerous, but not after that, or a year?

Robert F. Barnard:

–Well, you could detain him for a reasonable period.

Robert F. Barnard:

I don’t have an exact time period or bright line test.

Anthony M. Kennedy:

If the reason for the detention continues, I don’t understand the basis on which you say that you’re entitled to release.

Robert F. Barnard:

Well–

Anthony M. 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.

Robert F. 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–

Anthony M. 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–

Robert F. Barnard:

–Well, I believe the–

Anthony M. Kennedy:

–and I just don’t think you’ve explained that.

Robert F. 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–

Ruth Bader Ginsburg:

Mr. Barnard–

Antonin 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.

Robert F. Barnard:

–Well, Your Honor–

Antonin Scalia:

So you have to be appealing to something a little less than the proposition that you have to treat aliens like citizens.

Robert F. 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–

Ruth Bader 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?

Robert F. 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.

Ruth Bader 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.

Robert F. 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.

Ruth Bader Ginsburg:

For what purpose, and the purpose was–

Robert F. Barnard:

To determine if it would… if there was–

Ruth Bader Ginsburg:

–If there’s somebody that could take him.

Robert F. 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.

Antonin 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.

Robert F. 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.

Antonin 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.

Robert F. 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–

Antonin 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.

Robert F. 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–

John Paul 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?

Robert F. Barnard:

–I think under the reduction convention they do not have to take him back, but I’m… obviously–

John Paul 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.

Robert F. Barnard:

–If he’s stateless, which my client is, there’s a special–

Antonin 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.

Robert F. 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.

John Paul 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.

Robert F. Barnard:

That’s correct.

John Paul Stevens:

I assume he either is or he isn’t, under the law of that country.

Robert F. Barnard:

Well, I–

Ruth Bader 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.

Robert F. Barnard:

–Or the person’s status is–

Ruth Bader Ginsburg:

Is stateless.

Robert F. Barnard:

–Stateless, yes.

Sandra Day O’Connor:

Mr. Barnard–

Antonin 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.

Robert F. 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.

Sandra Day 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?

Robert F. 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.

Sandra Day O’Connor:

How about a detention center of some kind, as opposed to a prison?

Robert F. Barnard:

I think that would turn on the condition–

Sandra Day O’Connor:

Where it’s not a criminal facility.

Robert F. Barnard:

–Well, I think it would turn on the conditions of detention centers, and being a criminal lawyer–

Sandra Day O’Connor:

But that would be a very different question–

Robert F. Barnard:

–Well–

Sandra Day O’Connor:

–conditions.

Robert F. 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–

William H. Rehnquist:

Well, aren’t national security concerns always at stake when we’re talking about immigration policy?

Robert F. 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.

William H. Rehnquist:

Well, but the whole idea of control of the borders is based on national security.

Robert F. 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.

William H. Rehnquist:

Very well, Mr. Barnard.

Mr. Kneedler, we’ll hear from you.

Edwin S. 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.

John Paul Stevens:

Mr. Kneedler, may I ask just one question–

Edwin S. Kneedler:

Yes.

John Paul 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?

Edwin S. 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–

David H. Souter:

That is not a–

Ruth Bader Ginsburg:

–There’s always a plus.

I mean, this case is different from that, because now you’re relying on future dangerousness, period.

Edwin S. Kneedler:

–No.

That’s–

Ruth Bader 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.

Edwin S. 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.

Edwin S. Kneedler:

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.

Stephen G. Breyer:

That’s the question.

Edwin S. Kneedler:

Pardon me?

Stephen G. 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?

Edwin S. 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.

Stephen G. 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–

Edwin S. Kneedler:

Right.

Stephen G. Breyer:

–I’d like to know… think of 90 as beginning–

Edwin S. Kneedler:

Right.

Stephen G. Breyer:

–And how many extra days before it became clear that no country will take them?

Edwin S. Kneedler:

It is not clear now.

Stephen G. Breyer:

If it’s not clear now, then what is it that we’re supposed to be deciding?

Edwin S. Kneedler:

Well–

Stephen G. 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.

Edwin S. Kneedler:

–That, and in addition, because of the potential for dangerousness to the community.

Stephen G. 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?

Edwin S. Kneedler:

Well–

Stephen G. 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?

Edwin S. 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–

Stephen G. 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?

Edwin S. Kneedler:

–Well, in this case the attorney–

Stephen G. Breyer:

Is that… am I right?

Edwin S. Kneedler:

–Yes.

Stephen G. Breyer:

All right.

Edwin S. 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.

Stephen G. 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?

Edwin S. 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.

Antonin Scalia:

Well, but are you conceding that that is relevant to the–

Edwin S. Kneedler:

I’m not.

I “m not”.

Antonin 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–

Edwin S. 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.

Ruth Bader 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?

Edwin S. 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–

Anthony M. Kennedy:

How many of those 50 percent had previously been determined to be dangerous to the community?

Edwin S. 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–

Sandra Day O’Connor:

And they had served their sentences, presumably.

Edwin S. 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.

Sandra Day O’Connor:

What case of ours do you think best supports your position of the validity of this scheme?

Edwin S. Kneedler:

Oh, I think there are several.

I think the Mezei case does.

Sandra Day O’Connor:

But didn’t that involve more aliens who can be rejected on entry?

Edwin S. 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–

John Paul 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?

Edwin S. 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–

Well, there’s a big difference between being, say, in Seattle, Washington, and Ellis Island, never being able to get off the island.

Edwin S. 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.

David H. 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?

Edwin S. 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–

David H. Souter:

Right.

Edwin S. Kneedler:

–which is defined as a privilege of being lawfully admitted, such status not having changed, and as we point out in our brief–

David H. Souter:

Well, but that’s a statutory definition.

Edwin S. 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–

David H. Souter:

Fine, but–

Edwin S. Kneedler:

–So that person is–

David H. Souter:

–Inadmissible, but nonetheless has been admitted.

Edwin S. 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–

David H. 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.

Edwin S. 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–

David H. 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.

Edwin S. Kneedler:

–And here–

David H. Souter:

If one is a fiction, the second is a greater one.

Edwin S. 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.

Antonin 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.

Edwin S. Kneedler:

Absolutely.

Antonin Scalia:

Citizens have a different legal status from aliens, and they are entitled to greater constitutional protections, right?

Edwin S. Kneedler:

Absolutely–

Stephen G. Breyer:

I agree there are–

Antonin Scalia:

–Resident aliens have different legal status from nonresident aliens, and so forth, so there’s nothing extraordinary–

Edwin S. Kneedler:

–Not at all.

I–

Ruth Bader 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.

Antonin Scalia:

We’re not dumping them in the sea, are we?

Edwin S. 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.

Stephen G. 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?

Edwin S. 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–

Stephen G. Breyer:

I have no doubt you could do that as a criminal punishment.

Edwin S. Kneedler:

–But–

Stephen G. Breyer:

Is that what we’re talking about?

That’s a judicial process.

Edwin S. Kneedler:

–No, but you said where the basis for the detention is not preceded by any criminal trial.

Here, there was a criminal trial.

Stephen G. 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–

Edwin S. Kneedler:

Well–

Stephen G. Breyer:

–to my understanding.

Edwin S. 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.

Sandra Day 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?

Anthony M. Kennedy:

Other than Mezei.

And please try to answer the question.

Edwin S. Kneedler:

Okay.

Sandra Day O’Connor:

I know there are lots of questions, but I want you to answer this one–

Edwin S. Kneedler:

Okay.

Sandra Day O’Connor:

–if you would.

Edwin S. Kneedler:

Several.

The first is Fong Yue Ting, which says–

Sandra Day O’Connor:

Pardon me?

Edwin S. 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.

David H. 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.

Edwin S. 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–

Stephen G. Breyer:

These cases involve deportation.

I think my question was precedent in respect to putting a person in prison–

Edwin S. Kneedler:

–Well, I–

Stephen G. 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?

Edwin S. Kneedler:

–I believe that’s correct.

Stephen G. Breyer:

All right, so I’m not sure about the strength of that precedent.

[Laughter]

Edwin S. Kneedler:

No, but with respect to its fundamental point that the Congress–

Stephen G. Breyer:

For deportation, I’ll take that as… we’re not considering–

Antonin 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.

Edwin S. Kneedler:

–Precisely.

Antonin 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–

Edwin S. Kneedler:

That is exactly–

Antonin Scalia:

–period.

Edwin S. Kneedler:

–That is–

Antonin 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.

Edwin S. 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–

Ruth Bader Ginsburg:

And there’s no provision for judicial review.

Edwin S. 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–

Ruth Bader 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.

Edwin S. 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.

Antonin 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?

Edwin S. Kneedler:

That is correct.

Antonin Scalia:

There is full judicial review.

Edwin S. Kneedler:

Right, and those–

Antonin Scalia:

And that’s the source of your power.

Edwin S. Kneedler:

–That is right, so… and the important point is for these purposes–

Ruth Bader 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.

Edwin S. Kneedler:

–We’re certainly not saying there is no access to habeas corpus, to challenge the constitutionality of the detention.

Ruth Bader Ginsburg:

Because that’s what this proceeding–

Edwin S. 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.

Edwin S. Kneedler:

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–

Sandra Day O’Connor:

–Is there any APA review of the exercise of the Attorney General’s discretion?

Edwin S. 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.

John Paul Stevens:

Mr. Kneedler–

Stephen G. 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?

Edwin S. 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–

John Paul Stevens:

Mr. Kneedler–

Edwin S. 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.

John Paul 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?

Edwin S. Kneedler:

I take it to be that there’s no liberty interest, is my–

John Paul 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–

Edwin S. Kneedler:

–But that I think cannot–

John Paul Stevens:

–because he’s never got in the United States.

Edwin S. 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.

Ruth Bader 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?

Edwin S. 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.

Ruth Bader Ginsburg:

But why would that country care… I just don’t see the clog in the negotiation.

Edwin S. Kneedler:

That’s–

Ruth Bader Ginsburg:

I see your point about a dictator who dumps people on this country, that’s the excludable class.

Edwin S. 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–

Ruth Bader Ginsburg:

But of course, it’s not involved with people in Ma’s situation.

These are people who were lawfully admitted as resident aliens.

Edwin S. 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–

Ruth Bader 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.

Edwin S. 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–

Ruth Bader 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.

Edwin S. 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.

Anthony M. Kennedy:

That’s certainly true.

With the alien himself, it seems to me he has no incentive whatever–

Edwin S. Kneedler:

That’s–

Antonin Scalia:

–to put any pressure on the foreign Government to take him back, or even to provide the documents necessary for that–

Edwin S. Kneedler:

–That is correct, as we’ve seen–

Antonin Scalia:

–if meanwhile he’s wandering at large in the population.

Edwin S. Kneedler:

–That is correct, as we’re seeing–

Antonin Scalia:

I don’t see why the–

Ruth Bader Ginsburg:

–It’s never at large, is it?

Edwin S. Kneedler:

–Pardon me?

Ruth Bader 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.

Edwin S. Kneedler:

Well, it depends on… a lot of the aliens here are not released.

I mean, they had previously to report–

Ruth Bader Ginsburg:

That, certainly the Attorney General would have discretion under the part of the statute–

Edwin S. Kneedler:

–The Attorney General… first of all, questions such as this we think are committed to the discretion of the Attorney General.

Edwin S. Kneedler:

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–

Antonin 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–

Edwin S. 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–

Ruth Bader 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.

Edwin S. 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–

Ruth Bader Ginsburg:

So that’s certainly not, as Justice Scalia just described, at large, at liberty.

That is… could be a halfway house.

Edwin S. 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.

John Paul Stevens:

Mr. Kneedler, what are the conditions of the releases of the two litigants in this case now?

Edwin S. Kneedler:

I’m not sure of all of them, but there are periodic reporting requirements and not leaving the jurisdiction.

John Paul 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?

Edwin S. 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.

John Paul 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.

Edwin S. Kneedler:

Yes, but the important… the balance of interest is completely different with respect to a citizen and an alien who not only–

John Paul Stevens:

Why is the balance different if you’re just relying on future dangerousness?

Edwin S. 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–

John Paul Stevens:

But you conceded earlier it’s no stronger than it is for the average citizen.

Edwin S. 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.

Sandra Day 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?

Edwin S. Kneedler:

There is not.

As we say, we’re not challenging–

Sandra Day O’Connor:

I think that is one difficulty with your position.

Edwin S. 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–

Sandra Day 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.

Edwin S. 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.

Anthony M. Kennedy:

Well, if the regulations provide for periodic review–

Edwin S. Kneedler:

Yes.

Anthony M. Kennedy:

–would Carlson allow judicial review of those periodic determinations?

Edwin S. Kneedler:

Under Carlson–

Anthony M. Kennedy:

Did Carlson approach–

Edwin S. Kneedler:

–Yes.

I think under Carlson there was review of those individualized custody determinations.

William H. Rehnquist:

–Your questions presented don’t raise the issue of judicial review one way or the other.

Edwin S. 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.

William H. Rehnquist:

Thank you, Mr. Kneedler.

William H. Rehnquist:

Mr. Stansell, you and your colleague have reserved a little more than 1 1/2 minutes.

Why don’t you use it.

Jay W. 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.

William H. Rehnquist:

Thank you, Mr. Stansell.

The case is submitted.