JESS ALBERMAN: Good
evening, everyone. My name is Jess Alberman. On behalf of the Board of
Student Advisors and Dean Clark, I'd like to get to the
final arguments of the Ames Moot Court Upper
Round Competition. The case before the
court tonight, which was written by the Ames
Fellow Kathryn Claypool, presents questions about
the constitutionality of the Immigration and
Naturalization Services' long-term detention
of aliens ordered deported in the United States. I'd like to present
to you the teams. Petitioner Kim Tan is
represented by the A. Leon Higginbotham Memorial Team-- Debi Cornwall, Andrew
Ehrlich, Kathleen Hartnett, Rachel Jones, Michael
Liftik and William McSwain. The respondent, Susan
Applegate, District Director of United States Immigration
and Naturalization Service, is represented by the
Jefferson Memorial Team-- Danny David, Rebecca Gelfond,
Preethi Krishnamurthy, Brendan Maher, Peter Stris,
and Elizabeth Rogers. Presiding as Chief Justice is
the Honorable John O. Newman, Senior Circuit Judge of the
United States Court of Appeals for the Second Circuit. He will be joined by the
Honorable William Fletcher, from the United States Court of
Appeals for the Ninth Circuit, and the Honorable
Margaret Marshall, who is the Chief Justice of the
Massachusetts Supreme Judicial Court. I'm going to ask that you all
hold your applause until all of the oralists have finished. And please remember
that the petitioner has time for rebuttal as well. Please refrain from
flash photography during the argument. The judges will pose behind
their chairs for photos a few minutes before
the argument begins. Best of luck to both teams
and enjoy the argument. [APPLAUSE] BAILIFF: All rise. Oyez, oyez, oyez! All persons having business
before the Honorable, the Supreme Court of
the United States, are advised to draw near
and give their attention, for the Court is now sitting. God save the United States
in this Honorable Court. JOHN NEWMAN: All right,
be seated, please. All right, is that
the name over here? All right, we're going to
hear Tan against Applegate. Counsel for the
petitioners ready? Go right ahead. ANDREW EHRLICH: May I proceed? JOHN NEWMAN: Yes,
go right ahead. ANDREW EHRLICH: Mr.
Chief Justice, and may it may please the Court. Good evening. My name is Andrew Ehrlich. And I, along with
Bill McSwain, will be arguing on behalf of the
petitioner, Mr. Kim Tan. I'll be addressing the
constitutional questions in this case. My co-counsel will
subsequently discuss petitioner statutory claims. We'd like to reserve five
minutes for rebuttal. JOHN NEWMAN: All right. ANDREW EHRLICH: This case
presents to the court the question of whether
the INS violates the fundamental liberty
interest afforded to all persons by the continuing and
indefinite detention of Kim Tan. The facts of the
case are not complex. Mr. Tan fled Vietnam in 1978
and entered the United States as a refugee. He enjoyed legal
permanent resident status until 1998, at which
time he was ordered removed after the completion
of a criminal sentence from which he was paroled
for exemplary behavior. However, the United States
has no treaty of repatriation with Vietnam, a
necessary first step in order to
facilitate his return. Now in 1996, Congress enacted
massive and sweeping changes to the immigration laws. And in this case, the INS
interprets those changes as authorizing Mr.
Tan's continuing and indefinite detention. He has been incarcerated
for nearly 17 months now with no foreseeable end. My argument will
proceed in three parts. First, I'll demonstrate
the constitutional text and this court's
precedent make clear that Mr. Tan, as
a removable alien, retains due process rights. Second, I will demonstrate that
the arbitrary and indefinite detention of Mr. Tan fails
the heightened scrutiny that this court applies to
infringements of liberty. Finally, I will argue that
Mr. Tan's liberty was deprived through procedures that
were egregiously inadequate and do not comport
with basic notions of procedural due process. JOHN NEWMAN: As you focus
on those questions-- and take them up in
any order you wish-- but I'm wondering,
are we to consider whether the 17 months
he's been in custody violates the Constitution,
or the Constitution will be violated at some
point later on? ANDREW EHRLICH: Judge
Newman, we believe that the Constitution
has been violated already by his previous incarceration. JOHN NEWMAN: And at what
point did it get violated? What point in the time sequence? ANDREW EHRLICH:
At the point when the INS determined that
Mr. Tan's removal was not reasonably foreseeable. His detention violated
the Constitution. MARGARET MARSHALL: And where
did they make determination? ANDREW EHRLICH:
Well, presumably, at some point following
the removal period, perhaps during the removal
period, the INS ascertained that Mr. Tan could
not, in fact, be removed. And the rule we would argue
for this court, in this case, to adopt is that
when removal becomes not reasonably foreseeable. JOHN NEWMAN: Well,
they knew that. There was no treaty the first
month he was in custody. Isn't that so? ANDREW EHRLICH: Yes,
that's true, Judge. JOHN NEWMAN: So was it
unconstitutional then? ANDREW EHRLICH: No, we believe
that the 90-day removal period would most likely
pass constitutional scrutiny. Because as an
administrative matter, the INS needs to determine
that, in fact, Mr. Tan is from Vietnam, make the
necessary inquiries, perhaps look if he is
removable to other nations, and engage in the
various activities that they would need to do. WILLIAM FLETCHER:
Could Congress have provided for a two-year statute
instead of a 90-day statute? ANDREW EHRLICH:
Justice Fletcher, we believe that that would begin
to fail constitutional scrutiny. Because it would be
excessive in relation to the goals of removal. MARGARET MARSHALL:
And is it your point as well that Congress has no
ability to give the Attorney General any flexibility? So whether it's 90
days, or 20 days, or 120, or two years on whatever
the next day is, that's it? ANDREW EHRLICH: No,
Judge Marshall, we're not arguing for such a
bright-line standard at all. We're arguing that, clearly,
the phrase, "beyond the removal period," if construed to not
authorize indefinite detention, would likely be constitutional. But if at some point
the INS determines that removal is not
foreseeable, that fails constitutional scrutiny. WILLIAM FLETCHER: Now, you keep
saying "if the INS determined." What if the INS doesn't
so determine, wouldn't so determine, even though
some outside observer would determine? The INS may differ with you, in
terms of whether repatriation is possible. ANDREW EHRLICH: That's why
we're in the Article III Courts, Judge Fletcher,
to hopefully receive the rule that the INS
must release aliens when they determine that removal
is no longer foreseeable. JOHN NEWMAN: And
that's the test, whether it's
foreseeable that there will be a repatriation treaty? ANDREW EHRLICH: Judge
Newman, recently, the Eastern District
of California, in [? SoC ?] vs. INS,
adopted that test. They adjudicated-- MARGARET MARSHALL: The V Circuit
has adopted a different test. The V Circuit's test is a good
faith effort to effectuate. That puts it on the
INS to make an effort. And as I understand
it, at least when the INS has representations
to this court, the INS is making one
hell of an effort here. It's not getting anywhere. But it is making an effort. Isn't that enough? ANDREW EHRLICH: Justice
Marshall, it's not enough. Because even though it may be
making a good faith effort, Mr. Tan's detention is,
in fact, indefinite. And that fails
constitutional scrutiny. This court's precedents on
indefinite detention are clear. And if I may, I'd like
to discuss those briefly. WILLIAM FLETCHER: Could
you, while you're at it, please distinguish for me
Shaughnessy versus United States ex rel Mezei? ANDREW EHRLICH: Yes,
Justice Fletcher, the Mezei case is
distinguishable from the present one because
the aliens in that case were excludable aliens. They came to our
shores and said-- WILLIAM FLETCHER: And why should
not the alien in this case be considered as if he
were an excludable alien? ANDREW EHRLICH: Because,
Justice Fletcher, Mr. Tan has a longtime
connection to this country. He has 17 years of legal
permanent residence. And as Justice O'Connor noted
in Landon versus Plasencia, those types of connections have
constitutional significance. Mr. Tan is within the territory. And therefore, he gets rights. JOHN NEWMAN: Was Mezei coming
here for the first time? Or was he returning? ANDREW EHRLICH:
He was returning. But he had been absent
for over 20 months. And therefore, the court
treated him as if he were coming for the first time. However, Mr. Tan has
never left the territory. And the text of the Due
Process Clause is clear. "All persons within the
territorial jurisdiction of the United States
receive due process rights." And this court has been
clear on that point as long ago as 1886 in
Yick Wo versus Hopkins. WILLIAM FLETCHER: But of course,
it's riddled with exceptions. We have a notion
of, well, he may be physically on the territory. But for terms of due
process, we treat him as excluded or excludable. Because we haven't
let him in yet. ANDREW EHRLICH:
The only exception that this court has made
to the fundamental notion that all persons
on the territory get due process rights
is the case of Mezei. And in that case, not only
had the individuals not entered yet, but, in fact-- WILLIAM FLETCHER:
Well, they were physically on the territory. They were, I believe,
on Ellis Island. ANDREW EHRLICH: On
Ellis Island, yes. WILLIAM FLETCHER:
Or I should say he. It was an individual. ANDREW EHRLICH: Mr. Mezei
was on Ellis Island. However, the
difference in that case is perhaps best
illustrated by the history of the Mariel boatlift. The reason excludable
aliens are not afforded rights is that there
is a valid national security interest behind it. There's almost a
preservative character to the reason for
this exclusion, which is that, in 1980, Fidel
Castro released 125,000 Cubans onto our shores,
many of them mentally ill and former felons. MARGARET MARSHALL:
Are you suggesting there's no national interest
at issue in this case, once somebody has become a
permanent lawful resident? There's no national
interest in our providing for deportation proceedings? ANDREW EHRLICH: There clearly
is a national interest in providing for the
removal of Mr Tan. However, when his removal
becomes impossible, the Fifth Amendment liberty
interest must prevail. And therefore, in the
case of excludable aliens, imagine the incentives
that would create, if we were to send the message
that all excludable aliens who reach our shores, whose
home countries would no longer accept them, would
receive the full panoply of constitutional rights. That would be an
impracticable rule, and thus the foundation for this
court's ruling in Mezei. JOHN NEWMAN: What is it
that has been taken away without due process
in this case? ANDREW EHRLICH: Mr. Tan's right
to be free from incarceration, Chief Justice Newman. Mr. Tan retains, as a result
of the clear text of the Fifth Amendment and this
court's precedents, including Wong Wing
versus United States, in which the court held that
an alien, who had been deported but not yet removed,
retained the Fifth Amendment due process right. His right to liberty
has been infringed. Because he has served
his criminal sentence. JOHN NEWMAN: Well, all right. It's his liberty interests, when
you say his due process right. The interest is his
liberty interest. ANDREW EHRLICH: Yes,
Chief Justice Newman. JOHN NEWMAN: And is that
liberty interest the same as a person who is
walking around not subject to a deportation order? ANDREW EHRLICH: Clearly some
form of regulatory detention, Chief Justice Newman, would,
in fact, be acceptable. The question is whether
or not it's excessive. When we look at his
liberty interest, this court has applied
strict scrutiny to infringements of liberty. As recently as Reno
versus Flores in 1993, the court noted that a
heightened standard applied. So the question is-- JOHN NEWMAN: As to what
type of an individual or under what
circumstances, when you say a "heightened standard?" Again, do you mean a
citizen walking around before you can commit him
civilly, that sort of citizen? MARGARET MARSHALL: Or a juvenile
walking around, in that case. ANDREW EHRLICH: Well,
Chief Justice Marshall, in Reno versus Flores,
the individuals actually were aliens. They were juvenile aliens. And the court noted,
as it did in Salerno, that the presumption
in our society is that all persons
retain a right to liberty absent criminal proceedings
or civil commitment. And in this case, Mr. Tan went
through a criminal proceeding and served his sentence. JOHN NEWMAN: So is
there no difference in deciding the
nature of the liberty interest between a person
who can walk around as a normal citizen and
a person who has been ordered to leave the country? ANDREW EHRLICH:
Chief Justice Newman, there clearly is
some difference. Because the regulatory
detention that is permitted for the
90-M day removal period, and probably shortly
thereafter, is valid. The person is clearly regulated. However, at some point when the
detention becomes excessive, we need to apply
heightened scrutiny to it. JOHN NEWMAN: Well, all right,
so if it's not the same liberty interests, but as you
say, at some point, it becomes excessive, is it
just a question of how long? ANDREW EHRLICH: It is absolutely
a question of how long, Chief Justice Newman. JOHN NEWMAN: And what is
too long about 17 months? ANDREW EHRLICH: It's too long,
because there's absolutely no prospect for
Mr. Tan's removal. There are a long series-- MARGARET MARSHALL: Is
that a question of fact? ANDREW EHRLICH: Well,
Chief Justice Marshall, in United States versus
Foucha, the court treated detentions similar
to this one, where there was periodic review but no
certain date for release, as indefinite. MARGARET MARSHALL: We
don't have a certain date. But when you talk in terms
of there's no chance, or it's impossible,
or whatever it is, aren't you raising
a question of fact? ANDREW EHRLICH: Chief
Justice Marshall, because the INS cannot tell you
when Mr. Tan will be removed-- MARGARET MARSHALL: No,
but they can tell you that they are going
to have an opportunity to take a look at this
case in six months' time. And if they haven't been
able to remove him by then, well, then, there's some other
interests that they have here, whether or not
he's a flight risk. I take it, by the
way, that there's been an acceptance
by the INS that there hasn't been a flight risk. Am I correct? ANDREW EHRLICH: Yes. MARGARET MARSHALL: He is
no longer a flight risk? ANDREW EHRLICH: Mr. Tan's
probation officer, in fact, certifies that he's
not a flight risk. MARGARET MARSHALL: But in
their last letter to Mr. Tan, they focused only
on-- and of course, I will ask the INS this. But I take it they are only now
focusing on his dangerousness. ANDREW EHRLICH: That's correct,
Chief Justice Marshall. And because his removal
is, in fact, impracticable, and because Mr. Tan's
dangerousness did not receive proper procedural review-- MARGARET MARSHALL: But
if it were to receive proper procedure review-- in other words, if
there were determination that he, in fact, is no longer
dangerous to the community-- he might be released. So doesn't he have
the opportunity to make that case to the INS,
to the appropriate authorities? ANDREW EHRLICH: He did not
have the case, Chief Justice Marshall. MARGARET MARSHALL:
But now he does. There's a new set of
regulations that give him all kinds of opportunities to
come in and persuade somebody that he is, in fact, no longer
a danger to the community. ANDREW EHRLICH: Several
points in response to that, Justice Marshall-- first
of all, Mr. Tan, regardless of the new regulations, never
had an individualized finding of dangerousness. During the removal period-- MARGARET MARSHALL:
What do you mean by an "individualized
finding of dangerousness?" They, in fact, say, "we
conclude that you are still a risk to the community." ANDREW EHRLICH: The
burden was on Mr. Tan to prove, by a clear
and convincing standard, that he was not dangerous. He was saddled with the
almost insurmountable burden. WILLIAM FLETCHER: That
may be a heavy burden-- JOHN NEWMAN: Is that an
unconstitutional burden, to have to prove that
you're not a danger? ANDREW EHRLICH: Without
a valid individualized finding in the first
instance, Your Honor, we believe that it is. WILLIAM FLETCHER: Why is
that not individualized? I understand that it
may be a heavy burden. But is the heavy burden
placed individually upon him? And at least so far,
the INS is not satisfied that he has complied
with the burden. But that sounds
individualized to me. Are you arguing something
else, when you're saying not individualized? ANDREW EHRLICH:
Justice Fletcher, as an initial matter,
during the removal period, the INS decided to detain Mr.
Tan following the 90 days. They never had an
initial proceeding to determine whether or not
he was, in fact, dangerous or a flight risk. They presumed that. Then, they asked Mr. Tan,
at six-month intervals, to prove, in fact, that he
is neither of those things. And we believe that given-- MARGARET MARSHALL:
[INAUDIBLE] But in fact, as I read their last letter
to him, they've pretty well said that he's
satisfied his burden. So presumably, he can satisfy
his burden with respect to some things. They, in fact, say-- they implied it anyway-- that he's no longer
a flight risk. He's got his probation
officer to come and say he's no longer a flight risk. And they don't seem to
challenge that any longer. ANDREW EHRLICH:
Justice Marshall, there is uncontroverted
evidence on that point. There is very much
disputed evidence. And the rather cursory letters
issued by the District Director do not speak to anything other
than his criminal history. And the INS's own
regulations indicate the criminal history is not-- MARGARET MARSHALL:
Oh, OK, you've been reprimanded
a couple of times for threatening to assault
detainees in the detention facilities. So that's not just
his criminal record. It may or may not be
an adequate record. But again, that seems to me a
rather factual determination, rather than a challenge
to the actual procedure. ANDREW EHRLICH: No, we
believe that, first of all, because of the
burden he was saddled with combined with
the presumption, in addition to the
fact that there was not an impartial adjudicator
in this case, but rather an INS bureaucrat
deciding these questions-- MARGARET MARSHALL: I
don't know whether she or he is a bureaucrat. JOHN NEWMAN: Is that
unconstitutional? Is that unconstitutional
to have an executive branch employee make the decision? ANDREW EHRLICH: Chief
Justice Newman, it wouldn't be unconstitutional,
except for the fact that we have to
look at the nature of the interest at stake. Mr. Tan's liberty is at stake. And this court has held
in Kansas v. Hendricks and the United States
versus Salerno-- MARGARET MARSHALL: All
kinds of liberty interests the citizens are faced with,
for example legislation as a sexual offender,
I can think of lots of liberty interest there. And believe me, they're agency
"employees" not bureaucrats. You're making that
determination. You're saying all of those
statutes go out the books, too? ANDREW EHRLICH: Chief
Justice Marshall, we're not saying that those procedures
were actually unconstitutional. I see that my time has elapsed. If I may conclude, the
INS is asking this court to take a radical
departure from what were previously accepted notions
of due process and liberty. And we ask this court to
reject that unwise course. JOHN NEWMAN: Can I
ask you one thing? I won't take it out of
his colleague's time. You're asking us to say
that what's happened here violates substantive
due process. ANDREW EHRLICH: Yes,
Chief Justice Newman. JOHN NEWMAN: What
is your standard that we should
apply in determining that substantive due
process has been violated? ANDREW EHRLICH: We
would ask you to submit the liberty interest to a
heightened standard of review. This court has-- JOHN NEWMAN: Well, that's--
yeah, but "heightened" doesn't tell me
what to do with it. Now, oh, it's "heightened." Then, what do I do? What is the standard? You want me to say it violates
substantive due process. Because it what? Shocks my conscience? Violates the standards
of ordered liberty? Because it what? What is it that puts
it over the pale? ANDREW EHRLICH: Because it's
indefinite and excessive in relation to the regulatory
goals that the INS professes, which is removal. JOHN NEWMAN: So it's
a balancing test? We weigh the government
interest in holding him and his discomfort
in being held? ANDREW EHRLICH: As the court
did in Jackson versus Indiana, O'Connor versus Donaldson,
Youngberg versus Romeo, applying that test, looking at
the government interest, which the only valid primary interest
here is, in fact, removal, dangerousness-- MARGARET MARSHALL: And
[? unity protection. ?] ANDREW EHRLICH: Which
are secondary interests. If Mr. Tan were a legal
permanent resident, who is not subject to removal order,
dangerousness alone would not be a valid reason
for his continued detention. So we do that balancing inquiry. And we find that the detention
violates the substantive under the due process clause. JOHN NEWMAN: All right,
thank you, Mr. Ehrlich. We'll hear your colleague. What'd I miss? MARGARET MARSHALL:
It's a cafe next door. JOHN NEWMAN: Oh. BILL MCSWAIN: Mr. Chief Justice,
and may it please the Court, my name is Bill McSwain. I represent the petitioner, Mr.
Kim Tan, in this proceeding. And I will be addressing the
statutory issues in this case. And we'll be arguing that
the revised INA does not grant the INS the
statutory authority to detain Mr. Tan any further. Now, very briefly, I'd like
to sketch the main thrust of my argument for the court. As my co-counsel, Mr. Erlich,
has already explained, we believe that Mr. Tan's
arbitrary and indefinite imprisonment is, in
fact, unconstitutional. MARGARET MARSHALL:
What is arbitrary about his imprisonment? BILL MCSWAIN: Justice Marshall,
we believe it's arbitrary-- MARGARET MARSHALL:
I mean, you didn't have a group of INS agents
just going out on the street, and yanking him in, and putting
him in a detention center. Something happened. BILL MCSWAIN: Correct, there
is a valid deportation order. But because there
is no repatriation agreement with Vietnam, and, in
fact, removal is not possible-- MARGARET MARSHALL: But there
are not repatriation agreements with lots and lots of countries. BILL MCSWAIN:
Justice Marshall, I agree that it's not
arbitrary, in the sense that we're just yanking
people off the street. But our position is that,
because removal is not possible, it's
arbitrary to violate Mr. Tan's fundamental liberty
interest in this manner. If I may go on and
summarize my own argument, the well-established doctrine
of constitutional doubt counsels this court to
construe the revised INA in a manner that avoids the
serious constitutional concerns in this case. JOHN NEWMAN: We can construe
an ambiguous statute that way. Can we construe this
statute that way? BILL MCSWAIN: Chief
Justice Newman, you can construe this statute this way. JOHN NEWMAN: Because
it's so ambiguous? BILL MCSWAIN: The chief
[? statute ?] provision at issue in this
case, of course, is 8 U.S.C. Section
1231 A6, which states that aliens like
Mr. Tan "may be detained beyond the removal period." JOHN NEWMAN: Where
is the ambiguity? BILL MCSWAIN:
Well, the ambiguity is that, under the first
step of the two-part Chevron framework that this
court must apply, the question for the court is
whether Congress has directly spoken on the exact
statutory issue in this case. JOHN NEWMAN: Well, they
certainly said something. BILL MCSWAIN: They certainly
said something, Chief Justice Newman. But they have not
said specifically that indefinite
detention is authorized. MARGARET MARSHALL:
But they have not placed any outer limit
on the discretion granted to the Attorney General. Now, that may have all
kinds of other problems. But it seems to me
that the statute-- Congress certainly
knew, I assume, that there were
lots of countries that didn't have repatriation
agreements with the United States. So they knew that the
Attorney General would have a problem on her hands. And they didn't
specify an outer limit. BILL MCSWAIN: Justice Marshall,
I have two responses to that. First of all, the
mere fact that there is no explicit cap to the
length of detention contemplated by Section 1231 A6 does not
mean that indefinite detention is unambiguously authorized. In other words, the plain
meaning of the word "beyond" does not necessarily mean
indefinitely, or permanently, or as necessary until removal
from the United States, no matter how long that takes,
or whether that would even be accomplished at all. WILLIAM FLETCHER: Well,
the plain meaning question, in a sense, is, what's the
plain meaning of silence? They don't say how far beyond. And what are we supposed
to make of the fact that it merely says beyond? I have a different
statutory question, which may lead us into an
uncomfortable territory. I have the statue here
in front of me, A6. And I have trouble
with the word "or." The statute reads,
"An alien ordered removed, who is inadmissible
under section 1182 under this title,
removable under section--" da, da, da-- "this title,
or who has been determined by the Attorney General
to be a risk [INAUDIBLE] unlikely to comply with
the order of removal." Shouldn't that be "and?" That is to say, as I read
that, the plain meaning says, the determination as to
risk or unable to comply is a separate provision. BILL MCSWAIN: I think that
the proper interpretation of the statute there,
Justice Fletcher, is that the statute
is saying, if you fall into certain categories,
like if you have a certain criminal
conviction like Mr. Tan has, you automatically
can be detained beyond the removal period. In addition, if
you're not somebody who has been convicted
of such a crime, if there is an affirmative
finding that you are a flight risk or that you are
dangerous, you indeed can be detained beyond
the removal period. So "or" actually
makes sense there. But I think-- WILLIAM FLETCHER: If
"or" makes sense there, then why are we having these
determinations as to Mr. Tan? BILL MCSWAIN:
Justice Fletcher, I do not dispute the fact
that Mr. Tan may be detained beyond the removal period. What I dispute is that
the statute authorizes indefinite detention. And I think I can
best demonstrate my argument by way of example. Let's say, for example, that I
come to the end of my argument, at the end of my time arguing
in front of the court. And I'm continuing
to answer a question. And I ask the court
for additional time. JOHN NEWMAN: That could happen. BILL MCSWAIN: It very
well could happen. MARGARET MARSHALL: Some
of us might think that you could go on indefinitely. And you might try and test that. BILL MCSWAIN: That's precisely
my point, Justice Marshall. If the court were to
say to me, "Mr. McSwain, you may continue speaking
beyond the allotted time period, does that
unambiguously authorize me to speak indefinitely?" MARGARET MARSHALL: If I
were you, I'd say yes. BILL MCSWAIN: Well,
Justice Marshall, actually, I'd say it doesn't. And the reason it
doesn't is because that's not what you would have meant. Within the context
and the purpose of what you were telling
me, the mere fact that you used the
word "beyond" does not mean that I can unambiguously
stand up here and talk forever. JOHN NEWMAN: Well OK,
let's go with your argument that "beyond"
doesn't mean forever. What makes you think it
means less than 17 months? BILL MCSWAIN: My point,
Chief Justice Newman, is that, because "beyond"
does not mean forever and because "beyond" does
not mean indefinitely, the statute is ambiguous. So the proper thing
for this court to do is to leave Chevron
Step One behind and move to the
Constitutional Doubt Doctrine. And I'd like to discuss
the Constitutional Doubt Doctrine in more detail. JOHN NEWMAN: Why do we rush to
the constitutional question? Why don't we just look for
a meaning that doesn't even come near a
constitutional problem, but is at least 17 months? BILL MCSWAIN: That's
exactly what we would argue that the court should do. JOHN NEWMAN: Well,
then you lose. Because he hasn't
been beyond 17 months. We'd just affirm and
perhaps without prejudice to renewal, when the magic
moment has been reached. BILL MCSWAIN: I'm sorry. I misunderstood your question. We would submit that
the 17-month time period is unconstitutional
for two reasons. One is the absolute
length of detention. But that's not the chief reason. The chief reason is because
the detention is indefinite. And on this record, we
cannot say that there is any likelihood of removal here. MARGARET MARSHALL: Forget
about the deportation, but there is an opportunity
for somebody in your client's position to be released
from detention and not repatriated, correct? If they are no
longer a flight risk or if they are no longer
a danger to the community, he has an opportunity
to show that. Doesn't that mean
it's not indefinite? BILL MCSWAIN: He
has an opportunity to show that, Justice Marshall. And as my co-counsel explained,
the procedures, in this case, we believe, do not meet
constitutional scrutiny. But really, the point of me
standing in front of you today is to explain to you how
you can construe the statute in a manner that avoids all
these difficult constitutional concerns. I understand the Court's-- WILLIAM FLETCHER: Hasn't
it been construed for us by the regulations? We're talking Chevron. Why don't the regulations
resolve the ambiguity, assuming there is one? BILL MCSWAIN: Assuming there
is an ambiguity, which there definitely is, Justice
Fletcher, the reason that the regulations do
not answer the question is because that is the
INS interpretation. And an INS
interpretation properly belongs in Chevron Step
Two, whereas the Doctrine of Constitutional Doubt, as
this Court explained very clearly in DeBartolo,
supersedes Step Two of the Chevron Analysis. Therefore, what
this court should do is it should
construe the statute in a way that avoids these
constitutional concerns before reaching
Chevron Step Two. MARGARET MARSHALL: How would
you suggest we do that? BILL MCSWAIN: I suggest that
you adopt the same construction that the [? SoC ?] Court
recently adopted in the Eastern District of California. And that is that Mr.
Tan's imprisonment is only authorized when there is
a reasonable possibility that removal is foreseeable. MARGARET MARSHALL: And who
makes that determination? BILL MCSWAIN: The determination
of whether removal is foreseeable-- MARGARET MARSHALL: As I
understand the submissions to this court-- and
I assume that they are serious
submissions-- the INS would say there is at
least no possibility. BILL MCSWAIN: Well, the INS
would certainly say that. But that is for the court
to decide, Justice Marshall. And again and again,
we see that courts have undertaken this exact inquiry. JOHN NEWMAN: Well,
some have, but what I want to know from
you is, do you really think it's appropriate
for a court to be doing fact-finding
on the likelihood of the executive branch
concluding a treaty with a sovereign state? Is that judicial business? BILL MCSWAIN: Arguably, Chief
Justice Newman, what that involves is pure speculation. And that's my point
is that there's no way to say with any
certainty that there will be an agreement. So therefore, the detention is-- JOHN NEWMAN: Oh,
is that really so? It's pure speculation? I mean, I assume, if the record
said the ambassadors have met, they've got everything
straightened out, except one tiny little
nit, and they're going to meet tomorrow
morning on that one, any reasonable person
would say, of course, it's likely there's
going to be a treaty by the end of the week. It wouldn't be
sheer speculation. BILL MCSWAIN: In that
situation, Chief Justice Newman, it would be a very
different case. And it would be a
very different record. JOHN NEWMAN: But
my question to you is, should we be in the
business at all of deciding those probabilities? Is that judicial business,
to be deciding the likelihood of treaty consummation? BILL MCSWAIN: Chief
Justice Newman, it is an uncontroversial finding
that courts who have considered the removal of aliens like Mr.
Tan who are attempting to being sent back to Vietnam,
in fact, have found the detention to be indefinite. That's not the
controversial question. The controversial
question is whether or not it's unconstitutional. Clearly, it is indefinite. But again, I would
like to move on-- MARGARET MARSHALL: Just
clarify one question for me. Assuming that there is a
repatriation agreement entered into with Vietnam, does
that mean that Vietnam has agreed to take back Mr. Tan? BILL MCSWAIN: Not
necessarily, Justice Marshall. And you make an excellent point. If we look at Germany's
experience with Vietnam, which we cite in our brief,
in fact, Germany does have an
agreement with Vietnam and has tried to
send back thousands of aliens back to Vietnam. And Vietnam has not
cooperated in a manner that you would expect based on
their repatriation agreement. And there are many
there are many thousands of Vietnamese aliens
still in Germany, even though Germany has
a repatriation agreement. But if I could,
I would just like to move on to clarify a bit
about the Constitutional Doubt Doctrine itself. WILLIAM FLETCHER: I think
I understand the doctrine. I want to ask a somewhat
different question, if I may. I'm trying to figure out
what Congress had in mind in adopting this language. And we see that,
at an earlier time, there was a longer
than a 90-day period. They've cut back to the 90 days,
but, in certain circumstances. allowed detention
beyond the 90 days. We all know that Congress,
in passing these statutes, intended to be harsher. Without resort for
the moment to these, as it were, artificial
constructions that help us construe statutes,
I'm trying to figure out what Congress had in mind. As I read the statute,
they meant beyond and a good long way beyond. BILL MCSWAIN: Justice Fletcher,
that's an excellent question. What was on Congress's mind? And it's clear, when you
look at the House report and the Senate
report that has to do with the criminal
alien provisions in the INA, what was
on Congress's mind was the quick and cost effective
removal of as many aliens as possible, who can be removed. What was not on Congress's-- MARGARET MARSHALL: That doesn't
exactly address why they distinguished between those
aliens who'd committed aggravated felonies as
opposed to those who hadn't. I mean, if that were the only
purpose on Congress's mind, they would presumably
have included everybody in one category. BILL MCSWAIN: Well, it certainly
wasn't their only purpose, Justice Marshall. There were many purposes
on Congress's mind. But in our brief, we, cite
the authoritative documents. The House report and the
Senate report respondents only cite scattered
congressional floor statements for their proposition that
indefinite detention was actually on Congress's mind. They only cite two
congressional floor statements, one by Senator Kennedy,
who was debating a completely different
piece of legislation than the revised INA,
and then a statement by Senator Chiles, which was
given 11 years for the passage of the revised INA. In contrast-- JOHN NEWMAN: Do you
really mean Congress didn't want this person
held beyond 17 months? Or do you mean
they probably did, but we ought to save them from
making such a bad decision? BILL MCSWAIN: What I mean,
Chief Justice Newman, is that this wasn't
on Congress's mind. JOHN NEWMAN: Was not? BILL MCSWAIN: Was not
on Congress's mind. JOHN NEWMAN: They didn't think
about it one way or the other? BILL MCSWAIN:
Conceivably, what they might have been thinking
about was the treatment of excludable aliens. MARGARET MARSHALL: What about
Deputy Attorney General Jamie Gorelick saying,
"obtaining travel documents is labor intensive and
takes considerable time?" BILL MCSWAIN: Exactly,
Justice Marshall. You're referring to
the [? SoC ?] opinion. And in that opinion,
actually, the judge said very clearly that what
that legislative history demonstrated-- MARGARET MARSHALL: Well,
that's his interpretation. But I mean, that's really
not much use to us, is it? BILL MCSWAIN: Well,
what that letter assumed was that there was
a reasonable possibility that removal would
be foreseeable. Now, I would like to
explain exactly how the INS interpretation here frustrates
the congressional purpose. And the reason it frustrates
the congressional purpose is because it makes no
sense to waste valuable and limited INS detention
space on aliens who cannot be removed. Now, the average stay-- WILLIAM FLETCHER: It
makes no sense to whom? BILL MCSWAIN:
Excuse me, Justice? WILLIAM FLETCHER: It
makes no sense to whom? BILL MCSWAIN: It
makes no sense, when you look at the
purpose of the statute as evidenced by the
legislative history and as evidenced by the
text of the statute itself. Now, the average stay
of an alien in INS detention who can be removed
is about a month and a half. Therefore, for every year that
Mr. Tan languishes in prison, eight other aliens could
have been processed using that same
limited detention space that Mr. Tan was taking up. WILLIAM FLETCHER: I
must say, I don't find that argument very compelling. Because that argument
tells me that all kinds of penalogical
policies make no sense. Because you imprison
someone for life, well, he occupies space
for a very long time. BILL MCSWAIN: Well,
I assume you're talking about in the actual
criminal conviction context. WILLIAM FLETCHER:
But it seems to me that Congress very well
could have had in mind-- and it would have made
sense to Congress-- that, in the circumstance of
Mr. Tan or someone like him, Congress would have very
much intended that he should be there for quite a long time. BILL MCSWAIN:
Justice Fletcher, it is very possible that maybe
this was on Congress's mind. There's no affirmative
evidence of it. But the key to the
Constitutional Doubt Doctrine is that this court
must respect Congress and must respect the fact that
Congress presumably legislates within constitutional limits. That is the genesis. MARGARET MARSHALL: It
certainly legislates within constitutional limits. But it doesn't mean
to say it makes sane, rational decisions
every day, does it? BILL MCSWAIN: Regrettably,
Congress does not always make sane, rational decisions. I see that my time to close-- MARGARET MARSHALL:
Of course, I have great respect for the
other branch of government. And I would never suggest that
that's my view of whether they make decisions that-- BILL MCSWAIN: I would just
like to leave this court with this final thought. What this case
really boils down to, when you distill
it to its elements, is constitutional doubt. Because this court should
construe statutes in a way that assumes that
Congress legislates within constitutional limits. Therefore, the careful and
judicially prudent thing to do here is to construe
the INA in a manner that avoids constitutional doubts. I thank the court for its time. JOHN NEWMAN: All right,
thank you, Mr. McSwain. Turn to the respondent. PETER STRIS: Mr. Chief Justice,
and may it please the Court. To avoid any confusion,
I'd like to briefly observe that I'm going to deal
with petitioners' threshold statutory question. JOHN NEWMAN: Your name? PETER STRIS: I'm sorry,
my name is Peter Stris. I didn't mean to infer that you
should know that, Your Honor. I'll be dealing
with petitioners' statutory challenge. And my colleague,
Ms. Gelfond, will explain why his continued
detention does not violate the United States Constitution. As Mr. McSwain noted, the
relevant statutory provision in today's case is section
1231 A6 of Title 8. And it's set out on
page six of our brief. He also noted-- MARGARET MARSHALL: You think
that we should conclude that it was Congress's
clear intent that Mr. Tan could spend the
rest of his living days, all 82 years, in a detention
center, correct? PETER STRIS: Yes. And that's what all members
of Congress had in mind when they enacted the statute? Yes, Your Honor. WILLIAM FLETCHER: All of them? PETER STRIS: Well, I
don't want to speak for every single
member of Congress. WILLIAM FLETCHER: Do we
need more than a majority on this one? PETER STRIS: I
don't think we do. I appreciate the help,
Justice Fletcher. In all seriousness, I do believe
that was Congress's intent, Justice Marshall. And there's the
provision, because of the excellent procedures that
were put in place by the INS, that my colleague will
talk about, for any alien, like Mr. Tan, to
convince the INS that he is no longer dangerous. And if he is no
longer dangerous-- MARGARET MARSHALL:
He can't do that. I mean, he just can't do it. Because he is dangerous. And you just say,
if he can't convince the INS that he's dangerous, and
that he's a flight risk, tough. PETER STRIS: That's correct. I think it's
reasonable to assume-- MARGARET MARSHALL: That
that's not punishment? PETER STRIS: No, it's not. And my colleague will
deal with that at length. I'm happy to answer any
constitutional questions that you have. JOHN NEWMAN: Well, if he's going
to have to at length persuade us of that
constitutional question, then why don't we come
back to your point and suggest to you,
as your adversary has, that we ought not get
into that at-length constitutional demonstration and
construe this statute narrowly? PETER STRIS: I
think the answer to that question,
Mr. Chief Justice, is that the Constitutional Doubt
Doctrine would mean nothing, if the court were
to hear the merits of the constitutional claim
first, before it then went on to determine whether or not-- JOHN NEWMAN: Well, it would be-- I would agree with
you-- if we were to decide the merits of it. I'm not sure hearing it puts
us in dangerous territory. PETER STRIS: Well,
I respectfully would disagree, Your Honor. Because if you hear the
merits of the claim-- JOHN NEWMAN: We hear all kinds
of arguments that, in the end, we don't accept. PETER STRIS: That's true. However, it really would amount
to stealth constitutionalism, if this court were to
hear the merits of a claim and use its determination,
based upon its full hearing of the merits of the claim, to
then avoid its determination. JOHN NEWMAN: Just hearing
that it's substantial. Courts have to
distinguish all the time between substantial arguments
and insubstantial ones. That doesn't mean they
decide the merits of them. PETER STRIS: I would
submit that that's not the proper way
that the court has not done this in the past. However, insofar as this Court-- JOHN NEWMAN: Well,
what is the doctrine of avoiding constitutional doubt
mean, if it doesn't mean that? PETER STRIS: I
believe if Rust v. Sullivan and this Court's recent
decision of Almendarez-Torres mean anything, it
means that, if this Court believes two things-- number one, that there truly is
an ambiguous statute with two possible interpretations, both
of which the statute can bear, and number two,
this court believes that, when they look
at one interpretation, it is unconstitutional-- JOHN NEWMAN: But
they've given us two arguable interpretations. One is that "beyond"
means forever. And the other is
that "beyond" means considerably less than forever. And I think they tie it to
some reasonable foreseeability of the consummation of a treaty. Those are two
readings, aren't they? PETER STRIS: They're
two readings. I believe only one of them
is supported by the text and history of this statute. MARGARET MARSHALL: But
there's at least one court that doesn't agree with you. JOHN NEWMAN: The text
helps you decide, though, between those two? Which word in the text tilts
it one way or the other? PETER STRIS: I'm happy
to answer that question. I would like to quickly answer
Justice Marshall's question. JOHN NEWMAN: Oh, go ahead. PETER STRIS: Which is, yes,
one court, the Eastern District of California, in [? SoC, ?]
has held what you suggest. Every other federal
court to hear the issue-- MARGARET MARSHALL:
But that makes it sound as if there are
hundreds and hundreds, there are not. PETER STRIS: I
suppose that's true. But I have at least
20 in front of me that I happen to
have written down. MARGARET MARSHALL: Those
are the herd of sheep that are going following each other. I'll tell you what happens. The law clerk looks it up. And the law clerk cites it
and gives it to the judge. And the judge says, sounds like
to me, and then, fortunately, you get an independent-minded
judge out there in California-- I know it's California-- the judge says, wait
a minute, can we go back and read the statute? And does this expressly
give the Attorney General the unlimited power to
detain people forever? PETER STRIS: Well, let me answer
the Chief Justice's question. MARGARET MARSHALL: [INAUDIBLE] PETER STRIS: I certainly
would not answer yours. So I'm going to move on to
the text of the statute. I think the text does
help us, Your Honor. Because the text
provides "may be detained beyond the removal period." And this is a grant of
discretion to the INS. There is no limiting
language in this statute. It doesn't say, maybe detain
beyond the removal period for a few weeks, for a
reasonable period of time, as long as it's foreseeable
that an individual will be repatriated to
his home country. And it's clear
that Congress knew how to place those
sort of limits in this statute
when it wanted to. Look at the Standard
Provision, 1231 A1a. WILLIAM FLETCHER: Now, I know
I'm no longer in California. But I'll hazard the
following question. Under what constitutional
head of power has this statute been adopted? PETER STRIS: This
statute has been adopted under the discretion
of the Attorney General, I assume, the executive
branch, you're talking. WILLIAM FLETCHER: Under what
constitutional head of power has Congress adopted
this statute? PETER STRIS: I guess
I don't understand what you mean by
"constitutional head of power." WILLIAM FLETCHER:
Congress, under Article I, has various heads of power,
commerce clause, and so on, under which it enacts statutes. Under what head of power has
this statute been adopted? PETER STRIS: It's pursuant
to their plenary power. I don't know. WILLIAM FLETCHER:
Well, the answer is there's a head of power
dealing with immigration and exclusion matters. What I'm after then, once
we get to that point, is, well, at what point,
as we read this statute and its possible implementation,
is the continued imprisonment of someone like Mr. Tan
no longer in furtherance of that power and perhaps
in some furtherance of some general desire
of criminal punishment? I mean, is there some-- MARGARET MARSHALL: Well,
keeping a community safe or not being a flight risk. WILLIAM FLETCHER: I'm
trying to figure out what they think they're doing. And is there some
way of construing the statutory language
in front of me? PETER STRIS: OK, I
understand your question. I think that the answer
to that question, unfortunately, would
force this court to delve into the
constitutional issue before it. However-- WILLIAM FLETCHER:
Well, not necessarily. I'm trying to figure out what
they thought they were doing. PETER STRIS: Well, I
believe that they thought that they had a reasonable
regulatory purpose, which was protecting the community
from dangerous criminal aliens. JOHN NEWMAN: What does the
statute, as you read it, literally permit the government
to do with the person who's stateless? PETER STRIS: A person
who is stateless would be in the exact same situation. JOHN NEWMAN: Where would
you repatriate him? PETER STRIS: They'd be
in the same situation as a deportable criminal alien
from Laos, or from Cambodia-- any country with which
the United States does not have a repatriation
agreement and is not attempting to negotiate. JOHN NEWMAN: With
those countries, there is some prospect-- and
perhaps, the State Department may give us some assurance of
the likelihood of a treaty-- if he's stateless, what
assurance could there possibly be? PETER STRIS: I would
submit, Your Honor, that the likelihood is similar. I mean, I'd also put
before you the situation-- JOHN NEWMAN: He's
zero, in your view? PETER STRIS: Very close to that. JOHN NEWMAN: So
therefore, the statute means that, if
you happen to have a person who is
stateless and deportable, you can hold him for his life. PETER STRIS: I believe
that's the case. And I'd point you to the
Mariel Cubans, Your Honor. JOHN NEWMAN: Why do
you push us that far? Why do you want to give it
that sweeping a reading? PETER STRIS: Well, it's
not that I want to-- JOHN NEWMAN: Your guy's
been in 17 months. PETER STRIS: I do believe that
that's what Congress intended. I need not push you that far. Because it's our position
that, even if this court reads a reasonableness cap, whether
it be a period of years, a period of months, a
reasonable period of time, that's met in this case. And I think-- MARGARET MARSHALL: It
stresses that any limitation on Congress-- let me give
you a different example. Congress has all these
deportable aliens. They're all stateless. It doesn't want to
spend any good taxpayer dollars on detention centers. Because it [INAUDIBLE]
all the other people in. So it takes a whole
truckload of people and takes them down to
the Long Island Sound or to the Florida
beaches and says, walk. PETER STRIS: Obviously, that
would not be constitutional. And it wouldn't be
authorized by the statute. MARGARET MARSHALL: Why? PETER STRIS: Because Congress,
when they legislate and they pass a statute like this, they
don't speak to every issue. They didn't speak
to the procedures that are required either. However, whenever they
institute a statute like this, they presume that the agency
that's in charge of the statute will use procedures
that are constitutional. MARGARET MARSHALL: Does
it make any difference to reviewing court that
the nature of what Congress authorized should happen? Makes any difference--
in this case, they said, lock them up
and throw the key away, as I understand your argument. Does it make a difference to
us that we should take that into consideration, as opposed
to, for example, putting them all on Martha's Vineyard
in another alternative? PETER STRIS: Well,
I don't think I would accept the
characterization of lock them all up and throw away the key. Because when they-- JUSTICE MARSHALL: But you just
told me that that was OK to do. PETER STRIS: It was OK. In other words, they gave
that sort of broad discretion to the INS. Because to interpret the
statute any other way would require this court to
sanction the wholesale release of Mariel Cubans, of
stateless aliens, as the Chief Justice pointed to
a moment ago, aliens from countries with which we
had no repatriation agreement. WILLIAM FLETCHER:
Are you sure you mean that, as to Mariel Cubans? Aren't they in a
different category? Aren't they excludables? PETER STRIS: Not for the
purpose of this statute, Justice Fletcher. WILLIAM FLETCHER: Are you saying
that excludables and deporteds are the same? PETER STRIS: They're
certainly not the same. But for the purpose of
the statute, they are. In section 1229 AE2, Congress
removed any distinction between inadmissible
aliens, like the Mariel Cubans, and deportable
aliens, like our petitioner. And the statute at
issue, Section 1231 A6, uses the language "may be
detained beyond the removal period" to apply similarly
to excludable aliens and to deportable aliens. So we can't interpret
Congress's intent differently, as per the Mariel Cubans, as
per someone like petitioner. WILLIAM FLETCHER: And I'm
to construe this statute as if they had never
read the Supreme Court's decision in Plasencia? PETER STRIS: I believe there's
a presumption that Congress is aware of, and there
is some sort of dialogue, between the judiciary
and certainly Supreme Court decisions
and the decisions it makes. After all, there's
a subcommittee specifically in the Senate
and the House on immigration. So that doesn't refer
to a Plasencia case. But I think that it's
reasonable for this court to assume that
Congress was aware that the federal courts were
interpreting its predecessor statute to authorize indefinite
detention of individuals, such as the Mariel
Cubans, such as aliens who could not be deported
because there was no repatriation agreement. And their silence should
be read as intending what-- you say I pushed
the court too far. Because I don't
need to go that far. But I really do believe
that Congress intended that, when they passed this statute. Also, they had the CFRs
before them of the INS interpreting the old statute. They had the CFR of the INS
interpreting this statute. And it was clear-- MARGARET MARSHALL: Maybe you
could address Deputy Attorney General Jamie Gorelick's
representation to Congress, which doesn't
seem to me to be asking for the right for
the Attorney General to detain somebody forever. I mean, essentially what
she seems to be saying-- and that's
notwithstanding one court has suggested--
that she seems to be saying, look, 90 days, that's
fine, but give us a break, OK? I mean, there's paperwork,
there's some procedure. That doesn't sound like
80 years in prison to me. PETER STRIS: Well,
respectfully Your Honor, if for no other reason but to
avoid having this court think of me as an ogre, I
was not suggesting that in the majority of cases,
or even in many cases, criminal aliens were going
to be detained for 80 years and have the key thrown away. That would only be
in the rare case, where a criminal alien continued
to behave in a way, such as Mr. Tan, where he continued
to do something, such as threaten sexual
assault, and the INS said, you're too dangerous to release. JOHN NEWMAN: Well, when you
say, "threaten sexual assault," are we supposed to make
any review decision on what he's been doing lately? PETER STRIS: Well, I believe
that the district court's finding of fact included that. And that would be reviewable. JOHN NEWMAN: Is that
within the grant of cert? PETER STRIS: I don't
believe that it is within the grant of cert. But of course, you can-- JOHN NEWMAN: Well,
if it's not, then why should we pay any attention
to that point at all? PETER STRIS: Well,
it's significant, I believe, Your Honor, in terms
of interpreting this statute and the intent of the INS. Justice Marshall asked
me a moment earlier, what is the true
intent of the INS? And what did they
intend to authorize? And I was suggesting
that they only intended to authorize the
detention of criminal aliens who did not convince them that
they were no longer dangerous. WILLIAM FLETCHER:
Now, that might mean, in certain circumstances,
at least under the procedures as I now see in place, that he
may remain imprisoned until he is 70 years old and decrepit. PETER STRIS: That's true, yes. And I believe that
the statute seems to authorize that on its face. The fact that Congress has
not responded to the CFRs or responded to a virtual
unanimous interpretation of its prior
statute, and the fact that the agency is
interpreting it that way. I mean, you suggest otherwise. However, their are CFR reads
that they're going to-- MARGARET MARSHALL:
I'm not suggesting that there's no other expression
of a different interest. It's just that it
seems, at least to me, that there's some-- I don't want to use
the term ambiguity. But one could look
at different pieces. Because there were a series
of statutory changes. There were different
kinds of hearings. There were different
kinds of statements made by different players. PETER STRIS: Well, that moves
us on to another issue, which is, if there is ambiguity,
what does this court do? I was answering your
earlier question, which is, what did the INS intend? This question seems to
go to the notion of, well, what if there's two
possible interpretations? And I would submit that-- MARGARET MARSHALL:
We don't have to look to what Congress intended,
if, in fact, the statute is unambiguous, correct? PETER STRIS: Yes. MARGARET MARSHALL: We don't
even have to look at that. But the fact that we're
all talking about it suggests to me that perhaps
we may think that it is a little bit ambiguous. PETER STRIS: Well, insofar
as that's the case, we would urge you to defer
to the INS, who is clearly interpreting the statute to
authorize what, in some cases, would amount to
indefinite detention. JOHN NEWMAN: Well, if
your view is it's clear, does it clearly authorize the
continued detention of a person who has been arbitrarily
found to be a danger? PETER STRIS: Well, someone
who was arbitrarily found to be a danger-- I don't think it would
authorize detention of them in the first place. JOHN NEWMAN: Oh,
because we would be so confident the INS
would never do that? Is that the reason? Have they never made
an arbitrary decision in their long history? PETER STRIS: Well, that's
probably not the case, Your Honor. JOHN NEWMAN: I
don't think it is. PETER STRIS: Insofar as they
did do that in a given case, I would hope that the
individual could then convince the INS that they
are no longer dangerous. If they weren't dangerous
in the first place, it shouldn't be that difficult-- JOHN NEWMAN: So your
reading of the statute is the length of
detention has been given to the unreviewable
discretion of the INS, is that right? PETER STRIS: Well, it's
certainly not unreviewable. I believe the
INS's determination that someone is dangerous-- JOHN NEWMAN: Well, when I put
to you an arbitrary decision-- I didn't spell it
out-- the implication was that it was a decision
which, if reviewable, some court would object to. PETER STRIS: Right. JOHN NEWMAN: But, I
take it, your point is Congress took the risk
of an arbitrary decision by the administrator. PETER STRIS: Well, I think
that's true all of the time. There's always the risk that
an agency will abuse a statute. And there's certainly
the provision for review of the INS's
determination of danger. JOHN NEWMAN: Judicial review
or administrative review? PETER STRIS: Administrative
review, Your Honor. JOHN NEWMAN: So you
read the statute to mean there can be detention
without judicial review of the reasonableness
of the fact finding as to dangerousness, right? PETER STRIS: Well, I'm
not sure that there would be no judicial review. I can't, off the top
of my head, think of how it would be reviewed. But if the INS's determination,
as to the dangerousness-- JOHN NEWMAN: Well,
you're the one telling us the statute is clear. So presumably, you
know what it clearly says about that circumstance. PETER STRIS: Well, I think
the place that review would come in, Your Honor, is
in a procedural due process challenge. I mean, that's judicial review. I was suggesting-- WILLIAM FLETCHER:
Are you suggesting that this statute
would be constitutional only if there were judicial
review of the reasonableness of the INS determination? PETER STRIS: It's probably true
that procedural due process would require at
least that for anyone. WILLIAM FLETCHER: Well,
all require that which we don't have in front of us. PETER STRIS: No,
that's not a problem, in this case, Your Honor. Because as we would
argue, there are reasonable procedures
that will safeguard against the INS [INAUDIBLE]. WILLIAM FLETCHER:
As I see it, there's no procedure at all for
judicial review, at the moment. PETER STRIS: Well, in doing the
procedural due process review itself, I would hope that
would safeguard against what Your Honors are suggesting. JOHN NEWMAN: Well then, it
sounds like this statute, which started out to be so clear
that we didn't have to rein it in because of
constitutional doubt, now comes with an outer limit
of procedural due process. PETER STRIS: As does
any statute, Your Honor, I would submit. JOHN NEWMAN: They all do? PETER STRIS: Any statue,
when Congress legislates, it obviously legislates
against the backdrop of the Constitution. And if it's
delegating discretion to an agency, which
is in this case, it presumes that the agency
will administer the statute in a constitutional fashion. MARGARET MARSHALL: I take
it for these purposes, though, the fact that Mr.
Tan was a legal resident makes a difference. Because presumably, somebody
coming up on the boat from Cuba doesn't have those kinds of
procedural due process rights. PETER STRIS: Well, my colleague
will discuss this in a moment. But we believe that
this court should measure the procedures
he's entitled to, as per that of a Mariel Cuban. Because he was ordered removed. MARGARET MARSHALL:
That means almost none. PETER STRIS: That means
very little, basically, what Congress would
suggest rather, yes. MARGARET MARSHALL: And
if Congress says none, that's OK, too. PETER STRIS: Well, I
wouldn't go that far. I think even Mariel Cubans
requires some procedure. So I see my time has run out. In conclusion, I would suggest
that, even if this court found the language not to be clear
and deference to the INS inappropriate, a
reasonable time period cap read into this statute
would still cause this court to reject the petitioner's
statutory challenge because he has been detained for a
reasonable period of time. Thank you. REBECCA GELFOND:
Mr. Chief Justice, and may it please the Court. The Constitution
permits Congress to detain dangerous
criminal aliens who have been ordered
removed and who continue to threaten the
safety of the American public. Nothing in the
due process clause stands in the way of detaining
Mr. Tan while he remains dangerous, and while efforts
to secure his repatriation with Vietnam are proceeding. With respect to
substantive due process-- MARGARET MARSHALL: With respect
to that, again, the question we posed before. How do we know-- how does a reviewing court-- if it's our proceeding, I
don't think any court has quite adopted that standard. Good faith, if it's to
effectuate departure, maybe, but how do we know that? REBECCA GELFOND: Well, how do
we know in this particular case that the efforts to repatriate
Mr. Tan are proceeding? MARGARET MARSHALL: Well, we know
that the United States has made lots and lots of overtures. REBECCA GELFOND: Correct. MARGARET MARSHALL:
Is that enough? So all that's required
is that the United States keep sending requests,
please, please, please. As far as I know,
there's nothing in the record that
suggests that Vietnam has responded positively
to the United States. Am I correct? REBECCA GELFOND: Although
they have not responded, we have, in fact,
sent them a draft. MARGARET MARSHALL: As it stands,
the answer to my question is there's nothing in the record
that Vietnam has indicated, in any way, that it is
remotely interested in having any repatriation agreement
with the United States. REBECCA GELFOND: Actually,
that's not entirely true. If we look back in the
beginning of the relations, Vietnam Ambassador [? Lubang ?]
indicated that a repatriation agreement might be possible
to the extent that, if the United States and Vietnam
improve their relationship. That seemed rather clear. Because he indicated
that the thing standing in the way of a
repatriation agreement was the lack of
relations with Vietnam. And a year later, after
that conversation, we lifted the
embargo with Vietnam. And then-- MARGARET MARSHALL: With respect
to the efforts that the United States is pursuing in any event,
we haven't heard anything back. But if I understand your
constitutional argument, there has to be
something going on. In other words, that's
a necessary prerequisite to our finding the
statute constitutional? REBECCA GELFOND: I do not
suggest that that is, in fact, necessary. In this particular
case, I believe that a repatriation
agreement will, in fact, occur with Vietnam. Because there's nothing in
the record to suggest that one will not eventually be reached. JOHN NEWMAN: Well,
whose view do we take? You say you're confident. And I'm sure you are. We don't have the view
of the State Department. And that's the agency of
the executive branch that really ought to be telling us
the likelihood of a treaty, isn't it? REBECCA GELFOND:
Well, to the extent that the INS deals very closely
with repatriation agreements, with respect to the actual
deportation and removal process, it seems to me that
the INS is due some deference with respect to that
decision, especially given the fact that it
is a political decision. And the last-- JOHN NEWMAN: That's my point. The fact that it's a political
decision, I would have thought, counsels us in
waiting for the views of the key political
agency and drawing some inference for
lack of such a position by the State Department. Certainly, you don't want
us to decide the likelihood of a treaty, do you? REBECCA GELFOND:
No, the judiciary would be the last branch
that I would suggest to decide this, solely
because of the fact that this treaty is
a political question. JOHN NEWMAN: All right,
that's important. So you would say the
likelihood of the treaty is not even judicial business. It's political question, right? REBECCA GELFOND: Indeed. JOHN NEWMAN: All right then,
if it's political question, to whom do we look to decide
whether the circumstances have a sufficient likelihood
of treaty consummation to justify continued detention? REBECCA GELFOND: I would suggest
looking at the relevant facts available here. JOHN NEWMAN: Oh, if we
look at the relevant facts, we're back in the business
of deciding likelihood, which I thought you said we're
not supposed to do, and to which I'm
rather sympathetic. REBECCA GELFOND: Right,
but to the extent that the INS, which is part
of the executive branch, did enter into a
joint stipulation-- JOHN NEWMAN: But
they're in the business of deporting people and holding
people pending deportation. The State Department's
in the business of negotiating treaties. So why on Earth would we pay
the slightest bit of attention to the INS's view
of treaty issue, which is being used
to justify the holding of a resident alien? REBECCA GELFOND:
Well, I would suggest, beyond merely the
INS view, we should look to the joint stipulation
to the undisputed facts here, that there is
absolutely no indication that an agreement with
Vietnam will not take place. But even if you were-- MARGARET MARSHALL: Let me
ask you a different question. I'll concede that. It's imminent. You've made a representation
to this court. It's imminent. I hope you are correct. When you make a
representation to the court, you better be right, so
that we don't have you back here in 15 years
time with me asking you what you meant by "imminent." But why do I even
look at that question? In other words, what's the
constitutional problem? If it isn't imminent,
if the man is stateless, if there's no likelihood
of repatriation, what difference does
that make to me? REBECCA GELFOND:
Well, even if you were to assume that the
likelihood of a repatriation agreement with Vietnam
were very little, Mr. Tan's detention would
still be constitutional. MARGARET MARSHALL:
Well, that's my point. I mean, why do I even
bother with this stuff? Let's just assume
it's a dead deal. It doesn't matter. He's in here for 80 years. JOHN NEWMAN: It would
still be constitutional. And I take it you were
going to say "because". REBECCA GELFOND:
Because as this court held in Kansas versus Hendricks,
the indefinite detention of an individual is
still constitutional. In that particular case, the
individual was a sex offender. And he was found
to be dangerous. And the court upheld his
indefinite detention. MARGARET MARSHALL: But dangerous
and also a little crazy, right? REBECCA GELFOND:
Yes, he did, in fact, have a mental abnormality. MARGARET MARSHALL: So here,
we've just got dangerousness. REBECCA GELFOND: Here, we
have dangerousness, as well-- MARGARET MARSHALL: Is there
some dangerousness, by the way? REBECCA GELFOND: Yes, as of
the last detention review. There were two additional
sexual assaults in between-- MARGARET MARSHALL: Can I
just ask you a question? I understand that rape was
between a man and a woman, correct? REBECCA GELFOND: Yes, she was
a 17-year-old college freshman. MARGARET MARSHALL: Well, she
was a freshman in every brief. But some would've
said she was a woman. So I'm just now
making that sure. But now, I take it Mr.
Tan is with all men? REBECCA GELFOND: It's
not clear on the record. But I think that's probably
accurate to assume. MARGARET MARSHALL: So
we have threats, right? We don't have any
actual assaults. We have threats, so that
we're talking words here. And we're talking words of an
assault, which this man has never committed before, right? He's never had a sexual assault
on another man, correct? REBECCA GELFOND: Not one
that he's been convicted of, Your Honor. MARGARET MARSHALL: Well,
there's nothing on the record. Well, wait a minute,
are you suggesting that there's something
else in the record that I should know
about, that he's had some sexual assaults on a man? JOHN NEWMAN: It
sounds like she's suggesting there's
something on the record you ought not to know. MARGARET MARSHALL:
That's what I thought. REBECCA GELFOND: I'm
suggesting merely that the continuing
threats of sexual assault is itself sufficient
to justify-- MARGARET MARSHALL: Ah,
so you want me to, again, for constitutional
purposes, I have to decide that you are
correct, factually correct. That is to say, factually,
that he is presently dangerous is a necessary
prerequisite to finding this statute constitutional,
in this case, in all cases. REBECCA GELFOND: Well, in
this particular case, if Mr. Tan is neither dangerous
nor a flight risk, then he cannot be detained. MARGARET MARSHALL: You
agree that the INS has caved on the flight risk path? REBECCA GELFOND:
Actually, that's not clear from the record. If we look at-- MARGARET MARSHALL:
It's pretty clear to meet from their last record. In their last letter
to him, they said, "you have failed to prove
that you no longer present a threat to the community." They don't say
anything that you-- They, in fact, set
out, oh by the way, we got another letter from
your family and a letter from your parole
officer stating that you do not present a flight risk. And that's the last
thing they say. REBECCA GELFOND: However, if
you look at the district court's opinion that interprets
the two letters, the district court
opinion indicates that the INS found
that Mr. Tan was unable to prove, by clear
and convincing evidence, that he was neither
dangerous nor a flight risk, as well as the fact that
the letter recognized the "no change in circumstance." And it's clear from the minute
that the original December letter that the INS found that
he did not have sufficient ties to the community. Therefore, it seems that to
the district court, at least-- and I would agree-- that the INS still believe
that Mr. Tan was unable to show that he wasn't a flight risk. JOHN NEWMAN: On this record,
when was his aggravated felony conviction, how long ago? REBECCA GELFOND: In 1992. JOHN NEWMAN: All
right, now, your brief says his conviction of
an aggravated felony verifying his dangerousness? REBECCA GELFOND: Yes. JOHN NEWMAN: So you believe
that '92 conviction shows that in 1999 he is dangerous? REBECCA GELFOND: No. JOHN NEWMAN: No? Well, what did verifying mean? REBECCA GELFOND:
Well, let me give you the context of that sentence. We were suggesting that
the initial removal hearing of Mr. Tan,
which relied on the fact that Mr. Tan was convicted of
rape, of an aggravated felony, justified his order of removal. And in that hearing,
two findings were made-- the finding that he was
convicted of the rape, which resulted in the
inference that he was, at that point, dangerous,
as well as, at that point, that he dangerous,
justifying his detention, and hence removable,
based on that. And the reason that
that's significant is because this court held
in Jones versus United States that a person who was not
guilty by reason of insanity, it was reasonable to infer
from that continuingly mental illness and dangerousness. JOHN NEWMAN: Well, on this
record, if you take the crime he committed in '92 and
the prison misconduct, if I can call it that, that
you have in the record now, and if nothing detrimental
occurs in the future, does there come a point where
he can no longer be held? REBECCA GELFOND:
If Mr. Tan can show by clear and convincing evidence
that he's no longer dangerous. And if you look at the-- WILLIAM FLETCHER: I need to
ask a practical question. Here he is in jail. He's been convicted, validly
and beyond a reasonable doubt, of having committed this
rape at an earlier time. What procedural opportunities
are available to him? He can, from time to
time, appear personally. He can, at alternate
times, write documents. He must prove under the
current regulations, by clear and
convincing evidence, that he is not dangerous. Assume for a moment that
you know nothing about me. You, at the moment, know
next to nothing about me. What would it take for me, by
clear and convincing evidence, to convince you that
I'm not dangerous? You see, I think it is an almost
insurmountable burden for him to show, by clear and
convincing evidence, that he is not dangerous, and to
do it in front of a non-judge, that is to say, in front of
a staff employee of the INS, to do it in a circumstance
where the only review of the INS employee's
decision will be by the district director. We're not even going to go
to the immigration judge system or the BIA
system that we have for almost all other
determinations by the INS. I think he's stuck for
the rest of his life, as a practical matter. He's not getting out of there
unless Vietnam lets him. This dangerousness and so on,
I think that's just a charade. REBECCA GELFOND: Well, let me
start answering that question by suggesting that,
to begin with, to have a showing of beyond
clear and convincing evidence, that he's not dangerous,
Mr. Tan should stop making threats of sexual assault. MARGARET MARSHALL: Now, wait
a minute, wait a minute, wait a minute. Why is a threat an
indication that he'll go out and do anything? He's never done the thing,
never in his entire life, done the thing that he's threatened
twice in how many years since the last review twice? So twice he's said,
as far as I can tell, to some fellow inmate, F
you, or I'm going to F you. This makes him dangerous? I mean, try this audience here. I mean, well, we're going to
have a big problem with all the deportable aliens here. WILLIAM FLETCHER: He might have
been trying to defend himself. That's a hostile place he's in. You don't want to
say, hey, I'm a patsy. You've got to say, hey,
I'm going to get you. Well, that's the only way. How do we know that? REBECCA GELFOND: First
of all, petitioner doesn't refute the situation
in which he was reprimanded for threatening sexual assault.
So I believe that that's probably not the situation. MARGARET MARSHALL:
The problem with that is it doesn't tell me
anything about dangerousness. If you look at the Kansas
against Hendricks case, there's quite an
elaborate determination of how you can actually tell
that he's presently dangerous. One of the difficulties
that I have is that the INS
continues to rely on his past criminal conduct. And so in 15 years' time, do we
still take that into account, even though he's been
through counseling, even though he recognizes it? I mean, it's a problem. REBECCA GELFOND:
Actually, the reason I rely so strongly on the
fact of the continuing threats of sexual assault
is because, if you look at the December
letter and the May letter, the May letter
specifically cites as the reason that Susan
Applegate, the district director in this
case, found that there was no showing that Mr.
Tan was no longer dangerous was, in fact, the two additional
threats of sexual assault that he made. MARGARET MARSHALL:
But they don't call them sexual assaults. You have been reprimanded
two more times for threatening to assault. REBECCA GELFOND:
Yes, Your Honor. MARGARET MARSHALL:
So now, we had rape. Then, we had male-to-male
sexual threat. And now, we just have threat. We're getting kind of weak here. But my point is so what? I mean, does he have
to have an opportunity to prove that he's no
longer dangerous, otherwise the statute is not
constitutional? REBECCA GELFOND: The
statute is constitutional. Because the government,
in ordering him removed, that was the initial
determination. MARGARET MARSHALL:
And he certainly was somebody we wouldn't
want in our borders, that's for sure, correct? We wanted him out, perfectly
rational decision, correct? REBECCA GELFOND:
According to the law, yes. MARGARET MARSHALL: Yes. And we're going to
keep him locked up. We just don't want
allowed in our society. We're just going to
keep him locked up until somebody will take him. Anything wrong with that? REBECCA GELFOND: Well,
although this court in Mezei suggested that
indefinite detention of an excludable alien would,
in fact, be constitutional and it didn't cite the necessary
factor of dangerousness or even flight risk, it's
possible, even if you were to look beyond the fact
that Mr. Tan is being detained because he's dangerous
and because he's been ordered removed. It's possible that
the mere notion that Mr. Tan has been ordered
removed and no longer has a right to remain
here, that itself could be sufficient to detain
him, as this court did, in fact, hold in Mezei. JOHN NEWMAN: Well, all
right, we did it then, many, many years ago. Now, the question
is, what ought we to do now in interpreting
the Constitution? I suppose we could say, yes,
the Mezei court said it. And we're bound by it. But we're also free
to revisit that issue. So what do you say? What does the government say
is the constitutional limit on holding this man based
on his current record? That's why I asked you before,
what if he does nothing worse? Does there ever come a point
where the Constitution says he must be admitted to bail? REBECCA GELFOND: To
the extent that we suggest that he's of the
same constitutional status of an excludable alien, because
he no longer has a right to remain here, even
if this court were to look beyond the
fact, even if you were to find that he's not-- even if you were look beyond the
reasons of dangerousness, which I don't suggest that
you do, because I think there's a strong showing-- WILLIAM FLETCHER: I
mean, they last forever? The 1992 conviction and
the threats in prison mark him as dangerous
in the year 2050? REBECCA GELFOND: No,
Your Honor, which is what I'd like to emphasize. JOHN NEWMAN: Oh, all
right, so there's some point where those facts
don't mark him as dangerous? REBECCA GELFOND:
Yes, to the extent that the district directors-- JOHN NEWMAN: And
can he get out then? REBECCA GELFOND: To the extent
that the district director's opinion letter relies on the
threats of sexual assault, it seems clear that those
were the reasons she found him to be continually dangerous. Now, if he were to stop-- MARGARET MARSHALL:
Here's my problem, OK? I have a very simple problem. I don't like this
man in my community. I don't want him here. He's not a citizen. I don't have to keep him here. So I deport him. I give him terrific
rights, by the way, all kinds of procedures. And I make quite sure
that, yes, he's the person. He did do this terrible thing. Now, I want you out of here. Nobody else in the
world wants you? I don't want you
back in my community. I'm going to keep you locked up. You're not a citizen. I don't have to have
you back in my country. What's wrong with that? REBECCA GELFOND: Well,
this court, like I said, in the United
States versus Mezei held that there was absolutely
nothing wrong with that. Because in that
particular instance-- JOHN NEWMAN: Yeah,
but were they right? What's the right answer to
this constitutional question? WILLIAM FLETCHER:
Or a different way of saying the same
question-- does that decision survive Plasencia
in a circumstance where we have someone who has been
in this country for some time? REBECCA GELFOND: I'd
just like to point out that I'm out of time. WILLIAM FLETCHER:
Yeah, I understand. REBECCA GELFOND: But I'd be
happy to answer the question. JOHN NEWMAN: It's all the
same question, I think. REBECCA GELFOND:
Right, I understand. MARGARET MARSHALL: And
we've got several more. So it doesn't matter. You've got an indefinite
time to respond. REBECCA GELFOND: You remember. WILLIAM FLETCHER: We
will go beyond your time. REBECCA GELFOND:
Mr. Tan does not have a right to remain here. And with Congress's authority
to take away that right, to remove someone
from this country, to remove them from freely
walking about in America, seems to me to come the
same right to segregate him from the same community,
like the court held in Mezei, rather than to be let free
and frustrate Congress's very purpose in
removing and revoking his right to remain here. Therefore, just if I
may say in conclusion, the statute and the
Constitution both permit Mr. Tan's detention,
so should this court. Thank you. JOHN NEWMAN: All
right, thank you. You've reserved rebuttal time. ANDREW EHRLICH: Yes,
Mr. Chief Justice. It may please the Court. The reason this case is judicial
business, Mr. Chief Justice, is because Mr. Tan's case
presents the essential habeas claim. He asked this court to
free him from detention, unwarranted detention,
by executive authority. And I'd like to dispel any
reticence this court may have. JOHN NEWMAN: I wasn't
suggesting the habeas wasn't judicial business, only
whether the determination of the likelihood of a
treaty was judicial business. ANDREW EHRLICH:
Chief Justice Newman, the reason that
this case must be judicial business is that
it falls without the area of plenary power. It is not within the
INS's broad discretion to implement its
immigration mandate, which stems from the sovereign
character of the state to control who enters
and leaves the state. Mr. Tan has been
determined removable. He does not contest that fact. However, he does not lose
his constitutional right under the Fifth Amendment, as
a person within the territory, to retain his substantive
right to liberty and therefore freedom. MARGARET MARSHALL: Once there's
been a determination that he's removable, that means
that he must be permitted, in most circumstances,
to stay in our community, unless we can find some
other country that wants him. ANDREW EHRLICH: That's correct,
Chief Justice Marshall. Because of the
connections that were discussed in Landon
versus Plasencia and that, in here, in the whole idea of
the textual mandate the Fifth Amendment, that he is
within our community and has a long-time history
as a permanent resident. And therefore-- MARGARET MARSHALL:
What if he's only been here as a short-timer
as a lawful resident, couple of years? ANDREW EHRLICH: Nonetheless,
the text is clear. All persons within the
territorial jurisdiction, on American soil, retain
the right to liberty. JOHN NEWMAN: But
we have citizens who have a constitutional
right to liberty. And once they're
convicted of a crime, they can't get bail
on appeal, unless they sustain a very heavy burden. Is that unconstitutional? Some people think it is. But I'm wondering if you do. ANDREW EHRLICH:
Chief Justice Newman, although that's not before us,
because those individuals have been convicted by a valid
criminal process, which Mr. Tan has not, they're in
a fundamentally different position from Mr. Tan. JOHN NEWMAN: But in
a sense, he's worse. He's been determined not
to belong here at all. They've been determined
to belong here, but to be deprived of
liberty for the term of their sentence, which
they're challenging on appeal. But they can't get out on
appeal until they persuade somebody of their burdens. ANDREW EHRLICH: At
least in that case, they have been following
a valid process. In this case, there
is no valid process. The detention is indefinite. And the INS would argue that
this court's holding, Kansas versus Hendricks, would
somehow mandate that Mr. Tan's detention is indefinite. But this is a very different
case from Hendricks. In Hendricks, the
government had to prove beyond a reasonable
doubt to jury, that, in fact, the
individual was both mentally abnormal and dangerous. And at each subsequent
interval of a year, the government had to meet
that burden again affirmatively to a jury, rather than
shifting a burden onto Mr. Tan. So his insurmountable burden,
as you alluded to earlier, is truly insuperable. WILLIAM FLETCHER: Let
me ask this question. Again, I want to understand
how this might work practically in the real world. If we adopt your position,
which I take roughly to be that, either by reading the
statute to say this, or by compulsion of
the Constitution, once we have determined--
or once the United States government has
determined-- that there is no realistic possibility of
his repatriation to Vietnam, and once we have
determined that there is insufficient likelihood
of dangerousness, we have to let him go. ANDREW EHRLICH: That's
correct, Justice Fletcher. WILLIAM FLETCHER: Put
yourself now in the position of a country like Vietnam. Vietnam seems not
particularly anxious to have Mr. Tan or people like
him back in Vietnam. And I think I can fully
understand why they don't. That then gives to Vietnam
essentially a costless way to say, well, we
don't want them. Because they don't
have to bear any burden for taking their own citizens. Because if they don't
take their own citizens, they get released into our
society, the very citizens that they don't want, I
think, for obvious reasons. Are we defenseless against that? ANDREW EHRLICH: Justice
Fletcher, we're not. But that, in fact, is
a political question. That is for the State Department
and the executive branch to work out through the
foreign affairs process. In fact, there's a provision
in the revised INA that creates sanctions
for countries that do not take back their aliens. It wasn't speaking specifically
to those that have no treaties. But even countries
we have treaties with receive sanctions
if they don't receive their criminal aliens. It's part of the interdependent
and international judicial community. And that's something
that the government could redress through other means. And I would like to address
the procedures in this case. Because courts
across the nation-- speaking of the sheep
in the lower courts, the sheep in lower courts
have been very clear, Justice Marshall. They have almost uniformly
held that aliens in Mr. Tan's position both have
the substantive right and that the procedures
in question are deficient. The Third Circuit
called them superficial. The District Court in Colorado
called them perfunctory. JOHN NEWMAN: What's the law? Never mind the
adjectives, what's the procedural deficiency? ANDREW EHRLICH: I see
my time's elapsed. JOHN NEWMAN: Go ahead. ANDREW EHRLICH: The procedural
deficiencies are threefold. One, there is not an
initial determination that Mr. Tan is either
dangerous or a flight risk. He's presumed that. Two, he is saddled
with the burden of demonstrating the negative
to a clear and convincing standard, unlike other
regulatory context, like Salerno and Hendricks. And three, he does not have
an impartial adjudicator. And those, in
combination, if we look at the second prong of Matthews
versus Eldridge, the risk of erroneous deprivation,
that creates an enormous risk of erroneous deprivation. And therefore, because the-- JOHN NEWMAN: The
procedural due process guarantees them the right to
a decision-maker not employed by the executive agency? ANDREW EHRLICH: We believe that
it does, Chief Justice Newman, yes. Because the right
implicated here is liberty. And that's why-- JOHN NEWMAN: But prisoners
facing disciplinary hearings, do they get an
outside adjudicator? ANDREW EHRLICH: I'm not familiar
with all the laws on that. But I would imagine that
probably they vary by state. I would imagine the
answer is probably not yet, no in some cases, sure. But nonetheless, because the
liberty interest [INAUDIBLE] and have this combination,
each procedural deficiency compounds the other. Not only does he
have the presumption, but he has the burden. And therefore, in
conjunction, this court should grant Mr. Tan's writ. Because it violates the
Constitution, or at least-- JOHN NEWMAN: Well, in Mezei,
we said that whatever procedure Congress provides for Mr.
Mezei satisfies due process. Were we wrong? ANDREW EHRLICH: I believe
that you were wrong, Chief Justice Newman. But in that case
actually, Mr. Mezei was an excludable alien,
not a removable alien. So that's actually not the
question presented here. I believe that the holding
in Landon versus Plasencia and even Kwong Hai
Chew versus Colding would dictate that Mr. Tan
gets procedural due process. MARGARET MARSHALL:
Something more than what Congress gives him? ANDREW EHRLICH: Yes, absolutely. It was the providence
of the judiciary to review those procedures-- MARGARET MARSHALL:
That's something that thoughtful judges
clearly consider in a case, and in a evenhanded manner
decides that he will have. So Chief Justice
Newman wants him to have an individualized
hearing with counsel paid for by the state. That's OK. ANDREW EHRLICH: Yes,
Justice Marshall, it is. That would be just fine. Thank you very
much for your time. [APPLAUSE] JESS ALBERMAN: The judges
are about to come in for the final time. I'd like to remind everyone that
there's a reception in the John Chipman Gray Room
immediately following the arguments, in honor of the
judges and the participants. And it's open to everyone. BAILIFF: All rise. JOHN NEWMAN: Preliminarily,
the first thing I want to make clear, on behalf
of Judge Fletcher and myself, is that the decision not to
have Justice Marshall preside was the Ames Court
decision and not ours. Some might view it
as a shocking display of federal and male
chauvinism all at once. MARGARET MARSHALL:
Judge Newman, I assumed it was age before beauty. [APPLAUSE] JOHN NEWMAN: Well, I certainly
hope that was the reason. We are asked to comment
briefly on what's transpired. But the participants wish
to know our decision. And so I'll do that first. But I will preface it
by saying that these were four very good arguments
based on very strong briefs, and grappling with
serious issues, and presenting them very ably. And our sense of assessment-- we were really obliged to
make very fine distinctions. But nonetheless,
we're asked to do so. And so since we get paid to
decide in the real world, we'll decide. But it is seriously a very
close call on all three aspects that we're asked to decide. We're asked to decide the
best oralist, the best brief, and, in some mystical
aggregate sense, the best team. And so we will do that. We have concluded unanimously,
I'm pleased to say, that the best oralist
is Mr. McSwain. [APPLAUSE] We have concluded
also unanimously that the better brief was
submitted by the respondents. [APPLAUSE] And also unanimously,
our aggregate decision, by a process that I would
find very difficult to explain in any sort of reasoned
opinion, but nonetheless it's a result that I'm quite
willing to stand on, is that the winning team, in the
aggregate, are the petitioners. [APPLAUSE] I take it we'll have an
opportunity, in a few moments, to chat with each of you to
either offer some comments or perhaps respond
to your questions as to either why
we asked something or what we thought
about something. So I don't think we want
to go point by point here. I'll just say a couple
of general things. And I think my
colleagues wish to also. There's always a bit of a
discrepancy between moot court success and real world
courtroom success, which always bothers
me in moot courts. Often, I get the sense
that, in moot court, you get points for the
rapidity of your answer. You get marks taken off if
you pause for 20 seconds to think of an answer. In our courtroom, I must
say, the lawyer who says, Your Honor, that question,
I hadn't thought about that, I'd like to think about
it, and may I submit a written answer tomorrow? He gets big points with me. Because he understands
the question and he knows he doesn't know the answer. And he wants to think about it. But you can't do
that in moot court. They're just busy
marking you off. Or saying, may I
finish this thought? I'll get to that in a moment. With some judges,
you can't do that. With most judges, you can. And yet in moot court,
that's a big demerit. You've got to
answer immediately. So there's a certain
artificial aspect to moot court presentation
that I don't think applies in the real world. But I don't want to
overstate the point. You were arguing your
position to us the way it would be argued in a court. The main difference I
noticed on the merits was I don't think that the
government position would have pressed us to the extreme. The government-- indeed most
advocates, it seems to me, ought to be trying in an
appellate argument to figure out a way to get the court
to rule in their favor on the narrowest possible
basis, unless it's institutional litigation and you're
trying to establish, you're carrying the banner
for a cause, and your client-- That creates quite an ethical
problem, incidentally. But it's one that
comes up all the time. But generally, you're trying
to win for your client. And you're trying
to offer the court the most comfortable ground
that will get the judgment to come out your way. That often isn't true in
moot court advocacy either. But within those
parameters, subject to those qualifications, I
thought everybody argued with appropriate
vigor, fluency, grasp of the questions,
bobbed and weaved when bobbing and
weaving was called for, and were forthright when
forthrightness was called for. So I thought these were
really top drawer arguments. Without deciding
the case, I thought the petitioners
were pushing uphill a bit on the merits
of some of the points, but nonetheless handled
them with skill. And from the
government's standpoint, it was skillful to handle a
not terribly savory position, and yet argue it with
conviction and reason. So I thought both sides really
made the best of what they had. And I appreciate the
opportunity to have heard such fine arguments. MARGARET MARSHALL: I liked
Judge Newman's use of the term comfortable. One of the things that I like
when advocates appear before me is to say to me,
we're really not asking you to do anything
new, different, unusual. This is real easy. It's just a little
different, perhaps, but a tiny little
bit of different. And I didn't really get,
from any of you, a sense that you were trying
to make me feel comfortable about
whichever decision you were trying to
ask me to reach. The second thing on both sides,
when you're the government-- the INS, Congress,
the government-- you have to really persuade
me that something terribly important is at risk
here, so that it's not just some great big
juggernaut that's trying to crush some poor
little Vietnamese immigrant, that there really
are some interests that I would care about. And on the other hand, when
you're representing somebody, there's a statute, and
there's a Constitution, and there are all
kinds of things. And it's not that he
hasn't done anything bad. And for both of you, in
a sense, to recognize that the opposing side has
some interest here, I think, is a very effective way of
persuading appellate judges Congress wasn't off
the wall, and my client isn't some mad rapist. There are some competing
considerations here. But on balance when
you look at it, I think you're going to
come down on my side. And I think a slightly less
stringent or strident approach often is a very effective way. As part of that, I think
speed does not necessarily help your cause. Just stopping, pausing,
John Gielguding it, Meryl Streeping it, if that's
the way you want to do it, really does make a difference. I have a difference of opinion
with some of my colleagues. But some of the best appellate
advocates that I've seen are also superb trial lawyers. There is theater. And if you stop and think,
an easy way to say it is that's a good question. I hate it when somebody says
to me, that's a good question. It's like, I get paid a lot of
money to ask good questions. Actually, I don't get
paid a lot of money. But I get paid. But if you can convey
to me that that's a good question
without saying to me, "that's a good question," it
really makes an appellate judge feel terrific. Oh, you really got the gist
of what the problem was here. But I concur with
Judge Newman, and I know Judge Fletcher, that
you were all terrific, really wonderful. WILLIAM FLETCHER: Thank you. As you know from what Dean
Clark said in the introduction, I was a law teacher
for many years. And I am only recently a judge. I've heard many moot courts. I may now, just in
the last month or so, have heard more actual cases
than I've heard moot courts. And I have to say that, among
all the moot courts I've heard, this one ranks very, very high. Both sides were excellent. I thought the written materials
on both sides were excellent. As we discussed, all three
of us in the back room, the distinctions we were
making were razor-thin. And all of you deserve to
be very proud of the jobs that you've done, both on the
briefs and in the arguments. I'd like to amplify a little bit
on something that Chief Justice Marshall said. And that is, as a lawyer
arguing before a court, it is usually the most
effective strategy to persuade the judges that
you're not having to move very far out of established law. Now, that's a different
instinct from the instinct you are being trained to
right now by academics. Because the instinct
of an academic, in writing an
article, is to trumpet how different and
revolutionary this idea is. No one has ever thought
of this wonderful idea. And so you're moving from
one world to the next. And a little bit of
the academic world has stayed with you, as
you're making oral arguments. You're not trying to slide these
things in comfortably, as well within the precedents. Something that's also a little
artificial about the moot court exercise, and this follows on
with what Judge Newman said, is that, in the real
world, very rarely will a judge be asking
a trick question just for the sake of testing you. Ordinarily, the judge will
be asking the question because he or she genuinely
wants to hear the answer. Sometimes, the judge is puzzled. Sometimes, the judge wants
you to answer the question so the judge at the other end of
the table will hear the answer. But the judge wants the answer. In moot court,
there's a little bit more intellectual gamesmanship. And we just have
to play the game. But you'll understand that,
in fact, the enterprise is a little bit different. I don't want to say much
about the merits of this case. Because as you can
tell from, in fact, some of the cases in
the District Court, I'm likely, or my colleagues
on the Ninth Circuit, are likely to see this case,
or one very much like it, in the very near future. We had the Sacramento case. We had the Seattle case with
the five district judges. They're coming up. And I'm going to see
them pretty quick. So I will content myself
with general talk. Particularly as you move
your way up the ladder, and I think this may
account for, I think, the very striking difference
we're seeing in the patterns so far in the district court
and in the Court of Appeal. As you move even higher-- and hypothetically we're arguing
in the United States Supreme Court-- you argue less and less
individualized justice and more and more what does this mean? I mean, how is this going to
work in a large and systematic sense? And several times, Judge Newman
played the role absolutely properly of, well,
we're not really talking about distinction
between this case and what the Fifth Circuit said. We're not really talking as if
the Mezei case is controlling. We're talking about,
well, maybe we should revisit the Mezei case. At this level, you really
are talking broad questions of policy and practicality. And I would encourage
you to allow your arguments to reflect that. I'll close only by saying
what the others have said. These were wonderful arguments. Thank you. [APPLAUSE] The Chief Judge has permitted
me to make one further comment. Speaking from an
all-blue bench, I think the small law school south
of here better watch itself. Because it's got
some good competition from the north, Dean. [APPLAUSE] JOHN NEWMAN: I'm so fascinated
with the light system that I've never
seen before, where you have not only a green
light, a yellow light, and a red light, and even
then it's not the end, you wait until they all
go on simultaneously, that I want to just
share with you in closing a true report and my favorite
account of the problem of time limits in oral argument. This is episode was told to me
by the president of the Delhi Bar Association. They were arguing
a case in Delhi. And you have, in
the British system, rather leisurely
appellate arguments. They bring the books in. And they, My Lord, it says this. And they read, and on and on. And this was a very
important case that commanded the attention of a visitor. Although, I don't think he
was the Lord Chief Justice, but a very high court judge. Because it was a Privy Council
matter that was heard in Delhi. And it was argued not only
leisurely and at length, but beyond a day. It went well into
the second day. And this same lawyer
was making his argument. And finally, the
High Court Judge demonstrated his
impatience, even to permeate the consciousness
of the Indian lawyer, who looked up rather startled. And he said, "My Lord,
is it possible I've exceeded my time?" And the High Court Judge
bellowed to him, "Time?" He said, "You've long
since exceeded your time. You are now trespassing
on eternity." We will not do that. We are adjourned. [APPLAUSE]
