(From Press Release) – Attorney General Xavier Becerra, along with the state attorneys general from Massachusetts, New York, Oregon, Rhode Island, Vermont, and Washington, today filed a friend-of-the-court brief in the U.S. Supreme Court in Jennings v Rodriguez, a case involving the federal government’s authority to detain non-citizens pending completion of their removal proceedings.
The plaintiffs in this case are non-citizens who have been detained by federal authorities for longer than six months. They argue that the Constitution requires them to receive the same basic protection enjoyed by other non-criminals who are detained by the federal government: a hearing to determine whether their continued detention is justified. The plaintiffs do not dispute the government’s right to detain individuals who are dangerous or pose a flight risk; they are only asking for an opportunity to be released on bond if the government cannot show that they present such a danger.
“No one should be detained for months without being assessed first for his or her actual flight risk or dangerousness. That’s why I’ve joined six states on behalf of Californians opposing the detention of non-citizens who have never been found to pose a threat,” said Attorney General Becerra. “Mothers and fathers are detained who cannot return home to their children; others are simply missing work. Their absences could have long-term impact on families, communities, states and the country.”
In the brief, the States argue that they have a strong interest in ensuring that individuals who are neither dangerous nor a flight risk are not detained while they seek to establish a legal right to remain in the United States. The brief highlights the significant contributions that these individuals make to society as heads of families, employees, and community stakeholders and describes the human, economic, and societal loss caused by prolonged and unnecessary detention. It also argues that the basic procedural protections the plaintiffs seek are consistent with the procedures that the Supreme Court requires before a State may detain a person for other reasons, such as mental illness. Finally, the brief emphasizes that these protections will make sure that their residents are protected from arbitrary detentions by the federal government.
Earlier this week Attorney General Becerra joined 17 other attorneys general in filing an amicus brief in the Ninth Circuit U.S. Court of Appeals in State of Washington v. Trump, a case opposing the Trump Administration’s unconstitutional and un-American travel ban.
Last month, Attorney General Becerra released a statement in response to President Trump’s executive order asserting his commitment to protecting Californians against orders that may violate constitutional and other legal rights. Attorney General Becerra stated, “The California Department of Justice (DOJ) is prepared to protect the public safety and general welfare of all Californians as well as their privacy and property rights. These are rights and protections which have survived numerous legal challenges over time. And they are grounded on our federal and state constitutions not on an executive pronouncement.”
A copy of the brief is attached to the electronic version of this release at oag.ca.gov/news
SUMMARY OF ARGUMENT
The federal statutes at issue in this case result in the prolonged detention of thousands of individuals every year. While some of these individuals are dangerous or pose a genuine risk of flight, many pose no threat and are firmly-rooted, contributing members of our society. Many have been here since childhood, and many have spouses, children, or other close relatives who are U.S. citizens or permanent residents.
They work or run businesses, support families, and pay state and federal taxes. Many have no criminal record, and many others have been convicted of only minor, non-violent offenses. All are seeking to establish, through legal proceedings, that they may not or should not be forced to leave the United States. Detaining individuals such as these for extended periods while those proceedings remain pending can be devastating for the detainees, their families, and their communities.
Sometimes it is necessary to impose these costs. As this Court has made clear, however, “[i]n our society liberty is the norm.” United States v. Salerno, 481 U.S. 739, 755 (1987). In other contexts involving civil detention, very familiar to the States, this Court has repeatedly held that government authorities may not deprive an individual of his or her liberty for any extended period without first convincing a neutral arbiter that there is an adequate justification for the detention, and then providing additional procedural protections such as periodic review. These are routine and essential requirements of due process— designed to protect both individuals and our society from the arbitrary or abusive use of executive power. And they apply even in circumstances where the case for detention can be quite strong. Similar safeguards are surely appropriate here.
What due process requires can vary considerably depending on particular circumstances. Here, the basic measures sought by respondents would strike an appropriate balance between the interests of individuals and those of the federal government. Requiring that executive authorities bear the burden of justifying any prolonged detention to a neutral decision-maker, based on each detainee’s individual circumstances, is a typical minimum of due process.
Requiring the government to introduce evidence justifying prolonged detention, taking due account of the length of a proposed or actual detention, and providing a mechanism for periodic review of continued detention would all comport with the burdens that this Court has typically imposed on state and federal authorities in the context of other civil detentions.
And respondents have made clear that they do not oppose the appropriate use of other mechanisms, such as supervised release or financial bonds, to reduce the risk that some individuals might abscond or commit a crime before the resolution of removal proceedings.
However the precise balance may be struck in particular situations, the amici States urge this Court to make clear that non-citizen members of our communities, lawfully contesting efforts by the federal government to force their removal from this country, are entitled to the same sort of fundamental procedural protections that are afforded to individuals threatened with civil detention by federal or state authorities in other contexts. Anything less creates too great a risk that federal authorities will, in the name of upholding the Nation’s immigration laws, themselves violate one of “freedom’s first principles”—the “freedom from arbitrary and unlawful restraint.” Boumediene v. Bush, 553 U.S. 723, 797 (2008).
