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Amicus Brief Case: 13-56706, 07/27/2018, ID: 10957336, DktEntry: 181, Page 1 of 42 13-56706, 13-56755 IN THE United States Court of Appeals FOR THE NINTH CIRCUIT ALEJANDRO RODRIGUEZd, for himself and on behalf of a class of similarly- situated individuals; ABDIRIZAK ADEN FARAH, for himself and on behalf of a class of similarly-situated individuals; JOSE FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS, Petitioners-Appellees, —and— EFREN OROZCO, Petitioner, —v.— DAVID MARIN, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; KIRSTJEN NIELSEN, Secretary, Homeland Security; JEFFERSON B. SESSIONS III, Attorney General; WESLEY LEE, Assistant Field Office Director, Immigration and Customs Enforcement; RODNEY PENNER, (Caption continued on inside cover) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR CENTRAL CALIFORNIA SUPPLEMENTAL BRIEF OF AMICUS CURIAE HUMAN RIGHTS FIRST IN SUPPORT OF PETITIONERS-APPELLEES HARDY VIEUX EUGENE M. GELERNTER HUMAN RIGHTS FIRST MICHAEL N. FRESCO 805 15th Street, N.W., Suite 900 DANIELLE C. QUINN Washington, D.C. 20005 PATTERSON BELKNAP WEBB (202) 888-7607 & TYLER LLP 1133 Avenue of the Americas ELEANOR ACER New York, New York 10036 ELENI BAKST (212) 336-2000 HUMAN RIGHTS FIRST 75 Broad Street, 31st Floor New York, New York 10004 (212) 845-5200 ROBYN BARNARD HUMAN RIGHTS FIRST 333 South Hope Street, 43rd Floor Los Angeles, California 90071 (213) 294-2648 Attorneys for Amicus Curiae Human Rights First Case: 13-56706, 07/27/2018, ID: 10957336, DktEntry: 181, Page 2 of 42 Captain, Mira Loma Detention Center; SANDRA HUTCHENS, Sheriff of Orange County; NGUYEN, Officer, Officer-in-Charge, THEO LACY FACILITY; DAVIS NIGHSWONGER, Captain, Commander, Theo Lacy Facility; MIKE KREUGER, Captain, Operations Manager, James A. Musick Facility; ARTHUR EDWARDS, Officer-in-Charge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JUAN P. OSUNA, Director, Executive Office for Immigration Review, Respondents-Appellants. Case: 13-56706, 07/27/2018, ID: 10957336, DktEntry: 181, Page 3 of 42 RULE 26.1 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae hereby certify that they have no parent corporations and that no publicly held company owns 10% or more of their stock. i Case: 13-56706, 07/27/2018, ID: 10957336, DktEntry: 181, Page 4 of 42 TABLE OF CONTENTS Page RULE 26.1 CORPORATE DISCLOSURE STATEMENT.......................................i INTEREST OF AMICUS CURIAE............................................................................1 SUMMARY OF ARGUMENT .................................................................................1 ARGUMENT .............................................................................................................4 I. THE PAROLE AUTHORITY IS IGNORED OR USED ARBITRARILY, AND IS NOT AN ADEQUATE SAFEGUARD AGAINST UNCONSTITUTIONAL DETENTION ......................................4 A. For Years, the Parole Authority Has Been Exercised Arbitrarily and Inconsistently..................................................................................4 B. The Government Instituted Policies Intended to Further Restrict Parole and Increase Detention Capacity ...............................................8 C. Contrary to the Government’s Assertions, The Current Administration’s Actions Have Changed Parole Policy and Drastically Decreased Parole Grant Rates ..........................................10 1. Asylum Seekers Entitled to Parole Interviews and Consideration Often Do Not Receive Them.............................13 2. Asylum Seekers Remain Detained Despite Meeting Parole Criteria ...........................................................................14 3. Parole Decisions Are Often Not Based on Individualized Factors, but Rather on Deterrence, Punishment, or Other Concerns....................................................................................16 4. Many Asylum Seekers Are Not Made Aware of Why They Were Denied Parole.........................................................18 II. LONG-TERM AND PROLONGED DETENTION IS HARMFUL TO THE PHYSICAL AND MENTAL HEALTH OF ASYLUM SEEKERS ......................................................................................................21 ii Case: 13-56706, 07/27/2018, ID: 10957336, DktEntry: 181, Page 5 of 42 A. Asylum Seekers Often Suffer from Trauma and Related Mental Health Issues That Are Worsened by Detention.................................22 B. Asylum Seekers Are Unable to Get the Medical Care They Need in Detention Facilities................................................................26 C. Untreated Mental and Physical Health Problems Prevent Detainees from Meaningfully Participating in Their Immigration Proceedings ....................................................................29 CONCLUSION........................................................................................................30 iii Case: 13-56706, 07/27/2018, ID: 10957336, DktEntry: 181, Page 6 of 42 TABLE OF AUTHORITIES Page(s) Cases Abdi v. Duke, No. 17-cv-00721 (W.D.N.Y. 2017).............................................................passim Aracely R. v. Nielsen, No. 17-cv-01976 (D.D.C. 2018).........................................................................18 Damus v. Nielsen, No. 1:18-cv-00578-JEB (D.D.C. 2018).......................................................passim Gutiérrez-Soto v. Sessions, No. 18-cv-00071 (W.D. Tex. 2018) ...................................................................16 Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) ........................................................................21, 22 Mathews v. Eldridge, 424 U.S. 319 (1976)............................................................................................21 Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) ............................................................................21 United States v. Gonzales, 436 F.3d 560 (5th Cir. 2006) ..............................................................................21 Statutes, Regulations, and Rules 8 U.S.C. § 1225.................................................................................................passim 8 C.F.R. § 212.5 .........................................................................................................5 Executive Order No. 13767, 82 Fed. Reg. 8793 (Jan. 30, 2017)......................passim Federal Rule of Appellate Procedure 29....................................................................1 iv Case: 13-56706, 07/27/2018, ID: 10957336, DktEntry: 181, Page 7 of 42 Other Authorities Alan Gomez, Ice to Hold More Pregnant Women in Immigration Detention USA TODAY (Mar. 29, 2018), https://www.usatoday .com/story/news/nation/2018/03/29/ice-hold-more-pregnant- women-immigration-detention/469907002/.......................................................24 American Immigration Council & American Immigration Lawyers Association letter to Dr. Stewart Smith, Immigration and Customs Enforcement 11–12 (June 4, 2018), https://www.americanimmigrationcouncil.org/sites/default/files/ general_litigation/complaint_demands_investigation_into_inadequ ate_medical_and_mental_health_care_condition_in_immigration_ detention_center.pdf ...........................................................................................28 Amnesty International USA, Lost in the Labyrinth: Detention of Asylum-Seekers (1999) .........................................................................................6 Cook, Serrata & Hurtado, Latina Immigrant Women & Children’s Well-Being & Access to Services After Detention: Preliminary Findings (2018).......................................................................................25, 26, 29 Human Rights First, Ailing Justice: Texas – Soaring Immigration Detention, Shrinking Due Process (June 2018), https:// www.humanrightsfirst .org/sites/default/files/Ailing_ Justice_Texas.pdf..............................................................................16, 17, 28, 30 Human Rights First, In Liberty’s Shadow: The Detention of Asylum Seekers in the Era of Homeland Security (2004) .................................................6 Human Rights First, Judge and Jailer: Asylum Seekers Denied Parole in Wake of Trump Executive Order (Sept. 2017), https://www. humanrightsfirst.org/sites/default/ files/hrf-judge-and-jailer-final- report.pdf......................................................................................................passim Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison (2009) .......................................................................6 v Case: 13-56706, 07/27/2018, ID: 10957336, DktEntry: 181, Page 8 of 42 Human Rights Watch & CIVIC, Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention (2017), https://www.hrw.org/sites/default/files/report_pdf/usimmigration0 517_web_0.pdf....................................................................................................27 Human Rights Watch, et al., Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention (2018)..................................................................................................................27 Human Rights Watch, US: Release Singaporean Blogger Amos Yee (April 5, 2017), https://www.hrw.org/news/2017/04/05/us-release- singaporean-blogger-amos-yee...........................................................................16
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