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Case number 13-5362, Billy G. Essamani, Appellant vs. United States Citizenship and Immigration Services, USCIS, a branch of the U.S.

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Department of Homeland Security.

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Mr. Alka Wuha for the appellant, Mr. Kelly for the appellee.

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Good morning, and may it please the Court.

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Kwakuwakoa, Sidley Austin LLP.

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I want to make just a second until everybody gets seated.

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Jumping the gondii, I apologize.

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That's all right.

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Thank you.

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Anxious to go.

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Absolutely.

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All right.

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Thank you.

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May it please the Court.

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Kwakuwakoa, of Sidley Austin LLP, for amicus Jeffrey T. Green of the same firm.

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We thank the Court for the opportunity to present argument this morning in support of Mr. Asimani, the appellate.

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The Three Strikes Rule of the Prisoner Litigation Reform Act reflects two distinct statutory objectives.

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First, to limit baseless prison litigation, it constrains access to the court, and it does so by making prisoners who have had three cases dismissed on qualifying grounds ineligible for leave from standard filing fee requirements.

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Those who cannot pay cannot file.

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Second, and in some tension with the first, the act facilitates access to the court for one class of prisoners, those who are under imminent danger of serious physical injury.

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They can file even if they have three strikes and no money to pay the fee.

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Mr. Asimani is one such prisoner.

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He has three strikes and he concedes as much, but he qualifies for the imminent danger exception if that exception is properly construed in light of the acts' twin objectives and constitutional avoidance principles.

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He timely invoked the exception by raising allegations of imminent danger once the government asserted that he had three strikes.

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Does it matter at all that the government's position is that now that he's in protective custody,

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He is no longer subject to the imminent danger he claims.

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Mr. Al-Samani explained in his opposition to the government's motion to revoke IFPE status that, in fact, protective custody doesn't eliminate the danger that he was facing.

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It's not solitary confinement.

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He still interacts with other prisoners, and he believes that, in that setting, he's still in danger.

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So I assume that protective custody does something.

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At least from the way the allegations are laid out in the pleadings,

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It looks like what happened is that he suffered a couple of assaults and he was placed in protective custody as a consequence of that, or at least in partial consequence of that.

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That's right.

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And so protective custody is not as a protective custody of the same situation he was facing before.

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He was put in protective custody precisely because he'd been.

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Exactly.

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It's not precisely the same situation, but as he explained, he in practice faces the same danger.

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There are prisoners both inside and outside of protective custody, which is just a smaller unit of the prison who are inmate enemies, and so he's exposed to that danger there.

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In fact, this is now going to a point that is after he's filed the complaint, and so not, you know...

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it wouldn't suffice in and of itself to establish he was an imminent danger at the time he filed his complaint, but just to sort of corroborate and establish the point, after he was placed in protective custody, and in fact, after he filed his notice of appeal in this court, he was moved from protective custody into what's effectively solitary confinement because the prison officials in Maryland understood that there was a complaint that was arising in the protective custody setting that was so severe that protective custody was going to be insufficient to protect him.

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So the danger follows all the way through this prison environment, which is why the crux of his complaint is, I need to get out of this medium security facility into a minimum security prison facility where I don't face these enemies.

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All right.

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If someone files a complaint that says the following, I'm under threat of assault.

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I can show that because I actually was assaulted a couple of times by security inmates.

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As a result of that, I was put in protective custody.

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And then the third, that's point two.

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And then the third point is, I continue to face a danger.

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Would you say that that makes out a claim of imminent danger?

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I would.

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He's making a claim that, yes, of course, the Maryland officials have done their job.

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They've been responsive.

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But their response, while helpful, hasn't eliminated the danger.

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That's the basis of the assertion of the imminent danger exception.

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So even though he gets put in protective custody, all he has to do is say,

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Yeah, I was put in protective custody, and yes, protective custody was done to alleviate the danger, but I'm still in danger.

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But it hasn't alleviated the danger, yes.

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I mean, this is a question that comes up in all pleading contexts, and the question is, well, really, does that make any sense?

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And I think he's explained that it does make sense.

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Protective custody, though protective to a degree, doesn't eliminate the danger because he has enemies both inside and outside of protective custody.

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Given that, the staff of the Maryland officials are helpful.

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It doesn't suffice to eliminate the danger and leaves him eligible for the imminent danger exception.

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We do have some cases where individuals made the allegation that they were under duress and in danger.

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They made the, I take it the court is thinking of the Mitchell case, where he's been attacked 17 months before he filed a complaint and didn't allege any ongoing danger.

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In contrast, Mr. Osimony clearly alleged ongoing danger and explained his understanding of why he's in ongoing danger.

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Well, in both, Mitchell must have alleged ongoing danger, at least in the sense that he was seeking to invoke the imminent dangers.

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Yeah.

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He's invoked the imminent danger exception in the sense of saying, I am entitled to file because of the imminent danger exception, but the court was clear in this decision that in fact his allegations didn't point to any ongoing danger.

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The other case along this line is Pinson, where Mr. Pinson's claim was,

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I'm a person with characteristics that puts me in danger in the foreign supermax because it's known to be a danger for people who have cooperated with the government and are homosexual.

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But what the court said there is that all he's done is present sort of generalized allegations that this place is dangerous.

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Mr. Asimani, in contrast, has

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has presented allegations that the point to why this prison for him is specifically dangerous.

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I think that's the distinction.

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So then you accept the proposition to generalize allegations that a situation is dangerous aren't enough, even though they do say I'm in danger?

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Absolutely.

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Absolutely.

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I think that's effectively the whole thing that depends on a pure claim of prisons are dangerous or even this prison is a dangerous kind of place wouldn't suffice.

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I think the court would then need to, the prisoner would have to say why that prison for him in a particular context

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is dangerous, and that's the burden.

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I think that's the burden that Mr. Asimani has met by pointing to the reasons why both outside and inside protective custody, Western Correctional Facility, is dangerous for him.

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So if there was evidence of imminent danger and the correctional officials move the prisoner to what the correctional officials think is a more protective

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status, is there any burden to show imminent danger in that status beyond saying, my enemies are still at the prison?

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Well, I think saying that my enemies are here in a specific and cogent way I think is as important.

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It wouldn't be enough to say.

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I'm just wondering what the limit to that is.

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Sure.

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Given correctional environments.

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Sure.

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I mean, I'm not sure I can provide a better answer than the court would have to look.

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The district court would have to look on a case-by-case basis, as it does in the measuring.

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So even there is no burden, even where his correctional status has changed in an effort to provide him protection, there is no burden beyond pointing to

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the eminence that he suffered in his previous status.

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That's not our position.

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Our position, I hope I can be clear about this, is that if he's been moved to a second facility, effectively his burden is the same as it was in the first facility.

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So in a case where a prisoner hasn't been moved at all, his burden is to show through specific and concrete allegations that he's subject to ongoing danger in facility A. If he's been moved to facility B, he'll need to make the same showing as to facility B. So then how do you draw a distinction with Pinson?

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Because for example, in Pinson the allegation was that

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I'm in a facility and this facility is known to be hostile to homosexual inmates.

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That's right.

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And he obviously, the implication of that is that he's homosexual and therefore he's in danger.

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And here the allegation is I'm in a status protective custody and I'm in danger because I have enemies people don't like me.

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which is the same thing as saying people don't like me because of my sexual orientation.

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There are some similarities, I'll agree.

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I think that the distinction is that Mr. Osamani is pointing to personal facts, establishing that he personally has these enemies, that the fact that he's a target is known to the people who attack him.

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I don't think Mr. Pinson said, you know, I've... What could he have said?

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Because he's made the allegation that I'm homosexual in this facility, people don't like homosexuals.

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I think he was missing one step, which was to explain how that danger was likely to materialize, other than in a very generalized sense.

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So that this group of people are coming after me because of my personal characteristic.

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And as shown by an instance on December 1st, and December 15th, and December 30th, I trust would have qualified.

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So the thing with the incident, I take your point that when you've been alleged in specific incidents,

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raises the degree to which you stated a claim for him in dangerousness.

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But then I think what Judge Rogers was pointing out is that the claims of particular incidents here predated the move to protect the custody.

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That's correct.

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That's correct.

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And so then there I think of all that he can really do is say, well, look, the sword of Damocles is still hanging.

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It would be

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Respectfully, I think we have a pretty pernicious understanding of the rule if it required him to show that now I've been attacked again before he could raise the... Oh, he definitely wouldn't.

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No one would say that he needed to be attacked again.

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Obviously, I think the question is, at what degree of specificity do you need to make allegations that notwithstanding the new protective custody, the danger remains?

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Right.

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And I think it's essentially to explain, as he did, here's why the move doesn't address the danger.

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Can I ask you one question, if we move on from the question of dangerousness?

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Now let's suppose, and I know you disagree with this, but let's suppose that he can't make out the showing on him and the dangerousness.

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So then we get to the question of whether there's a constitutional problem with applying the three-strike provision against him.

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And so there's a lot of law, the Supreme Court's decision in MLB, et cetera, on what sorts of claims are ones as to which someone could state a due process problem with financial obstacles stating the claim, and what sort of claims are ones as to which the financial obstacle doesn't rise to the constitutional level.

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And MLB tells us,

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In criminal cases, that's one thing.

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In civil cases, there are some narrow situations in which you can state a claim based on the fact that you're required to pay before you can seek your judicial relief.

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But the normal rule is that in the civil context, you don't.

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And you're making the argument that, well, this is one of these cases in which it fits within the narrow exception to the general rule because what's at stake is citizenship.

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Yes, absolutely.

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The framework that MLB and other cases explain is that what you look to is the nature and intensity of the individual's stake, and then the government's countervailing interests.

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And I think no one would doubt that an interest in citizenship is of fundamental importance, both generally and to Mr. Osmani specifically, who's trying to avoid deportation to Iran and potential arbitrary detention and torture in Iran, which is what he experienced last time he was there.

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So here's my question about naturalization.

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The point has to be, I think, at the end of the day that naturalization is the sort of fundamental interest as to which it would be unconstitutional to predicate your claim on the requirement to pay.

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Yes.

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Because that's what's at stake.

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Now, I think when outside the prison context entirely, when people apply for naturalization, they have to pay a fee.

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There is a fee waiver that's available under the present regulations of USCRS.

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Is that right?

[00:13:03] Speaker 06:
That's correct.

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It's based on ability to pay?

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Yes, based on ability to pay.

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I see.

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And that's always been there?

[00:13:09] Speaker 01:
I couldn't say it's always been there.

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If they're now, I trust it's been there for some time.

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I see my red lights on.

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I'm happy to keep talking about the constitutional question about that.

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Is there any, do you have any case law?

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for the proposition that, just to follow up on Judge Srinivasan's question, that there's a, I mean, for you to succeed, you have to say that an alien has a constitutional right to pursue naturalization, right?

[00:13:48] Speaker 01:
I don't think that's quite right.

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But that's what your client is, an alien.

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He's not a citizen.

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He's on the outside of citizenship.

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You cite Eisensteiger, but that was citizens.

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That was citizens.

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So are there any cases that say that aliens have, that there's a constitutional right for an alien to pursue naturalization?

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Well, if I could take a half step back, I don't think that the test is whether there's a constitutional right at stake, but rather whether there's a fundamental interest at stake.

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And for that, I would point the court to the body case.

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To which case?

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To the body case, body versus Connecticut.

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which concerned the obligation to pay a fee in divorce proceedings.

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The court didn't say, and I don't think any court, or this Supreme Court has since said at least, that there's a constitutional right to divorce per se.

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What the court pointed to were the constitutional and fundamental interests in marriage, and then moved from

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that for marriage, so people inside to move looking to out and to say that the interest is fundamental enough and important enough to justify fee waivers in that context.

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Here, Mr. Asimani is outside looking in at citizenship, but there's no doubt that citizenship retains a fundamental importance for him as it would for anyone, given all the well-understood rights and benefits that go along with citizenship.

[00:15:08] Speaker 06:
So one strand of MLB though is that there's a difference between a consequence that's visited upon you by the state and a benefit that you seek from the state.

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And in the criminal context, and in the context of MLB itself, and in the context of other situations involving divestiture of parental rights, that's a consequence that's visited upon you by the state.

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And what the court indicated in MLB is, well, in that situation, you have a better chance to make the argument that there's a fundamental interest at stake of the kind that would put you on the right side of the ledger from your perspective as to the civil claims that fall within and the civil claims that fall without.

[00:15:47] Speaker 06:
But when you're seeking naturalization,

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That's not a consequence that's visited upon you by the state.

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That's a benefit if you're affirmably seeking help.

[00:15:55] Speaker 01:
Right.

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I think that language is in the context of drawing a distinction that's maybe better fleshed out in the body case, in Justice Harlan's opinion, between processes that are monopolized by the state.

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And in processes for which someone can, for better or worse, seek self-help, a contract dispute can be ironed out, a bankruptcy dispute from someone who says, look, I'm no longer able to make good on my ongoing obligations, can go to a creditor and say, will we accept $20 instead of $50?

[00:16:28] Speaker 01:
This process, naturalization, and citizenship is monopolized by the state in no

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no less a sense than either the criminal context, termination of parental rights, which was at issue in MLB.

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And then the other thing I would say is that one thing that Mr. Asimani is trying to avoid is he's not just seeking a benefit in the sense of gaining citizenship, but the flip side of the coin, which is he's trying to avoid deportation to Iran, which is very much something that the United States government would be doing to him.

[00:17:14] Speaker 02:
Good morning.

[00:17:15] Speaker 02:
Good morning, Your Honors, members of the panel, and may it please the Court.

[00:17:18] Speaker 02:
My name is Wynn Kelly, appearing today on behalf of the government.

[00:17:22] Speaker 02:
If I could, Your Honors, I'd like to pick up first on the threat of Judge Tatel's question, and Amic has raised this in his reply brief, but as Judge Tatel noted,

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There's no fundamental right to citizenship for an alien and this goes back to the Supreme Court's decision in the United States versus Ginsburg in 1917 and was reaffirmed in Fedorenko versus United States in 1981 by the court.

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where the court said, no alien has the slightest right to naturalization unless all statutory requirements complied with have been met.

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So, Mr. Osmani's interest here takes it well outside the nature of fundamental interest.

[00:18:04] Speaker 06:
Just based on that language alone, I take it that their argument would be that the whole issue is whether the statutory requirements have been met.

[00:18:13] Speaker 06:
And their claim is, I assume, that the statutory requirements have been met, and I just want an opportunity to be able to make that argument.

[00:18:22] Speaker 02:
Well, and that possibly would get to the merits, which this case is in an interesting posture.

[00:18:27] Speaker 02:
We are only at the three-strike stage, and we have not even gotten into the 12b1, 12b6 arguments.

[00:18:37] Speaker 02:
The government would have

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As we noted in our brief in footnote two, this issue has been raised before by Mr. Assamani, the specific issue that Your Honor raised, and the district court in Maryland, affirmed by the Fourth Circuit, found that he had not met the statutory requirements and that he had no grounds to seek naturalization.

[00:19:01] Speaker 02:
This has been an ongoing

[00:19:03] Speaker 02:
process where Mr. Asimani has sought to challenge the USCIS's denial of his petition in this court and in other courts based on his interpretation of Judge Bates of the district courts allowing him to proceed as a U.S.

[00:19:21] Speaker 02:
national for purposes of foreign sovereign immunity.

[00:19:23] Speaker 06:
So are they two different?

[00:19:24] Speaker 06:
So I'm not following entirely the

[00:19:28] Speaker 06:
Other proceeding you were talking about that went to the Fourth Circuit, did that have to do with U.S.

[00:19:32] Speaker 06:
nationality or did it have to do with naturalization to become a citizen?

[00:19:35] Speaker 02:
It had to do with naturalization.

[00:19:39] Speaker 02:
It had to do with Mr. Assamani seeking review of the denial of his naturalization.

[00:19:49] Speaker 02:
And that's Assamani versus Napolitano, the 2010 case.

[00:19:54] Speaker 02:
And again, the reason why it's not, and I apologize to the court, but perhaps the reason why it's not as evident in the record as it normally would be is because the issue in the district court was merely that Mr. Asimani should not be allowed to proceed at all without full prepayment of his filing fee.

[00:20:15] Speaker 02:
And so that gets to the first issue, which is that Mr. Asimani failed to either timely or adequately plead the imminent danger exception to the statutory bar, which, as both Mr. Asimani and Amicus have acknowledged, he concedes he has exceeded the three-strike bar.

[00:20:36] Speaker 02:
Ms.

[00:20:36] Speaker 02:
Rossimani's allegations of imminent danger, first, were not raised in either his petition or his motion for informer pauper status.

[00:20:46] Speaker 02:
And second, the content of them is almost identical to the ones this Court has found wanting in both Mitchell and Pinson.

[00:20:56] Speaker 02:
Judge Srinivasan discussed Pinson

[00:20:59] Speaker 02:
Mr. Pinson made additional allegations that were even more similar to Mr. Asimani's here in that Mr. Pinson stated that he was a former member of a gang and that the special management unit at the Talladega FCI where he was housed

[00:21:15] Speaker 02:
contained rival gang members who were threatening to kill him.

[00:21:20] Speaker 02:
Similar to Mr. Mitchell, Mr. Mitchell claimed that his housing location was known as one that was threatening to snitches.

[00:21:31] Speaker 02:
These are

[00:21:32] Speaker 02:
These exceed the allegations that Mr. Assamani has made here.

[00:21:37] Speaker 02:
Mr. Assamani has made allegations of assaults over a year before, so there's a temporal issue.

[00:21:44] Speaker 02:
There's been a change in his housing status, and any allegations of ongoing harm are the same nebulous general.

[00:21:53] Speaker 02:
There is a vague threat out here that this Court has found wanting in both Mitchell and Pinson.

[00:22:02] Speaker 06:
And again, this court... So there is the allegation in the response

[00:22:14] Speaker 06:
And I'm looking at J.A.

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43.

[00:22:17] Speaker 06:
There's two sets of allegations that seem relevant.

[00:22:23] Speaker 06:
One is that J.A., the appendix 41, where he says that even under protected custody status, he's faithful to the constant threat of violence because of the maximum security nature of other inmates and hostifications, a great many of whom are serving life sentences.

[00:22:35] Speaker 06:
So I think that's the one that you were specifically discussing and describing.

[00:22:39] Speaker 06:
He's generalized, which I understand that argument.

[00:22:42] Speaker 06:
But then there's a separate point on page 43 that he's been beaten up numerous times by other maximum security inmates, and he's documented every single incident.

[00:22:55] Speaker 06:
And what is your reaction to the latter one?

[00:22:59] Speaker 02:
The latter one, again, there's no claim of an ongoing threat, and it still does not contemplate, excuse me, it still does not allege both an ongoing and actual threat, and also does not claim that the protective custody change in status has not ameliorated this concern.

[00:23:20] Speaker 02:
And there's nothing in the record that says that

[00:23:25] Speaker 02:
that he is continuing to be beat up on a daily basis, which is what the type of allegation that this court looked to favorably in Ashley versus Dilworth out of the Seventh Circuit, where it was, I am continuing to be beat up constantly, and my prison custodian is intentionally putting me in the position where I am injured on a constant basis.

[00:23:51] Speaker 02:
Those allegations are not.

[00:23:52] Speaker 06:
It doesn't have to be intentional, I take it.

[00:23:54] Speaker 06:
I don't know why that matters, but.

[00:23:56] Speaker 02:
No, I'm just saying those were the allegations in Dill and Ashley, and those are not present here.

[00:24:03] Speaker 02:
If there were, if there was an allegation of actual imminent harm, of course it would not need to be intentional, but your honor's comment leads to the next question, which is,

[00:24:14] Speaker 02:
USCIS is not Mr. Asimani's custodian, and USCIS has no ability to...

[00:24:23] Speaker 02:
protect him from even these allegations of past assaults.

[00:24:29] Speaker 02:
USCIS is not the one making his custody determination.

[00:24:35] Speaker 06:
But is it not true that if he were to become naturalized, I mean this requires a series of steps obviously, and I take your point that there's going to be some questions at every step, but if he were to become naturalized, the immigration detainer gets dropped.

[00:24:48] Speaker 06:
if the immigration detainer gets dropped, then at least that one criterion by which you get put in a particularly high security status is less likely to be there.

[00:24:58] Speaker 06:
It doesn't eliminate it.

[00:24:59] Speaker 06:
You're right to say that.

[00:25:00] Speaker 06:
There's other reasons why he might well warrant categorization in that category given his conduct in the past, et cetera.

[00:25:07] Speaker 06:
But it would remove one basis upon which that high classification

[00:25:12] Speaker 06:
What is this?

[00:25:13] Speaker 06:
Is that not true?

[00:25:15] Speaker 02:
It is true that it could possibly, yes, Your Honor, it would remove that four or six point category.

[00:25:24] Speaker 02:
It would in no way change automatically his classification.

[00:25:28] Speaker 02:
And there are numerous other factors that have been identified in the record.

[00:25:32] Speaker 02:
And again, as Your Honor pointed out, the Maryland State Custodian, even if he were to go below,

[00:25:39] Speaker 02:
would not have to automatically transfer him to a minimum security prison.

[00:25:43] Speaker 02:
And I think that's the most important issue for the court to consider is, so even if the court were to order this hearing before USCIS despite another federal court finding that his petition was rightfully denied,

[00:26:00] Speaker 02:
even if he were to be successful there, and even if he were to become a citizen, and even if ICE were to remove the detainer, then the state of Maryland still would have discretion under Maryland state law, as interpreted by the Maryland Supreme Court, to determine that he needed to stay in maximum security.

[00:26:20] Speaker 02:
And that leads, Your Honor, to the government's second point, which the Court asked us to brief about it, which is the Nexus requirement.

[00:26:32] Speaker 02:
The Nexus requirement, as the Second Circuit has applied in Pettis v. Morgenthau, is an appropriate crafting by the Court to best accomplish the goals of the Prison Litigation Reform Act.

[00:26:46] Speaker 02:
by ensuring that a prisoner's allegations of ongoing imminent actual harm marry up with the actual claims sought in the prisoner's petition for relief.

[00:27:01] Speaker 02:
As in Pettis, this court has a tool readily available through the redressability prong of

[00:27:09] Speaker 02:
constitutional standing inquiry to apply.

[00:27:13] Speaker 06:
So why would we apply that?

[00:27:14] Speaker 06:
So let's assume that there is a nexus requirement, then the question is what kind of nexus standard do you impose?

[00:27:21] Speaker 06:
And I take it one goal of the PLRA is that when you have a threshold determination like this, which doesn't get to the merits, the inquiry ought to be pretty straightforward.

[00:27:29] Speaker 06:
And if you have the kind of highly contextualized regressibility inquiry that attends normal standing analysis,

[00:27:36] Speaker 06:
It's not the most straightforward thing to apply in every case, whereas a straightforward standard would be, if the relief you seek would take you out of dangerousness, and that relief naturally attends the claim that you're making, well, you get by him into dangerousness, so you get IP status and you get to bring the claim.

[00:27:54] Speaker 06:
doesn't mean you're going to prevail on merits, doesn't mean any of that, but purposes of the threshold inquiry, which is just designed to determine the financial conditions under which you go forward.

[00:28:02] Speaker 06:
We're going to apply a straightforward test to just ask whether the relief you seek for your claim, if it naturally attends your claim, would alleviate the damages.

[00:28:11] Speaker 02:
Correct.

[00:28:11] Speaker 02:
And Your Honor, I see I exceeded my time.

[00:28:12] Speaker 02:
May I answer your question?

[00:28:17] Speaker 02:
It's up to Judge Rogers.

[00:28:17] Speaker 02:
Of course.

[00:28:18] Speaker 02:
Thank you, Your Honor.

[00:28:23] Speaker 02:
The nexus requirement would allow, and the government agrees with Your Honor's contention that this should be a straightforward, easy analysis, but the example would be, and if I may offer a hypothetical, of if a prisoner says, I am in danger for my life on a constant daily basis, I need desperate help, and my claim is for a properly exhausted Freedom of Information Act to the U.S.

[00:28:51] Speaker 02:
Department of Agriculture.

[00:28:52] Speaker 02:
That type of claim, the prisoner has pled actual imminent danger, but should the prisoner be allowed to proceed on that claim under the purposes of the Prison Litigation Reform Act, we believe the statute indicates and the case law interpreting would indicate no.

[00:29:13] Speaker 04:
Any legislative history supporting that case law?

[00:29:16] Speaker 02:
In legislative history, there's the comments by Senator Kyle and Senator Dole about the flood of frivolous litigation.

[00:29:25] Speaker 04:
No, no, I understand, but the theory that if you were facing imminent danger, the bar is removed and therefore you can proceed in court any way you want as distinct from

[00:29:35] Speaker 04:
this nexus requirement.

[00:29:36] Speaker 04:
That's all I was getting at.

[00:29:38] Speaker 02:
Your Honor, there's nothing in the legislative history supporting the nexus requirement.

[00:29:42] Speaker 02:
It's solely based on the purpose of the statute.

[00:29:45] Speaker 02:
It's what the Second Circuit set forward.

[00:29:49] Speaker 04:
Thank you.

[00:29:50] Speaker 02:
If there are no more questions, the government would ask that the district court be affirmed.

[00:29:55] Speaker 04:
Thank you.

[00:30:00] Speaker 04:
Council for Appellate.

[00:30:03] Speaker 01:
A couple of points which go largely to the nexus issue, which I didn't address my first time up.

[00:30:11] Speaker 01:
As to how the relief that he's seeking would bear on his claim, it's true that Maryland wouldn't automatically move him out of medium security into minimum security.

[00:30:21] Speaker 01:
What's also true is that the immigration detainer prevents his custodian from moving him to minimum security.

[00:30:27] Speaker 01:
refer the court to the prison classification rules that are in the addendum to our opening brief.

[00:30:33] Speaker 01:
With the detainer in place, which is nine points out of the 18 that makes mark the threshold between minimum and medium security, he's way over the mark.

[00:30:44] Speaker 01:
Without it, he's under the mark.

[00:30:47] Speaker 01:
And then the classification rule is generally acquired.

[00:30:51] Speaker 01:
Say that he can't be placed any lower than his classification score.

[00:30:54] Speaker 01:
So if he's above 18, he has to be a medium.

[00:30:57] Speaker 01:
If he's below the general rule, he's supposed to be placed in the least restrictive environment and minimal to him.

[00:31:02] Speaker 01:
So I think that's a clear point in his favor.

[00:31:07] Speaker 01:
As to him raising the allegations a year after he first, or he says in his opposition the motion to the watershed cause that the attacks were a year before, but that also accounts for about a nine month period between when he filed his complaint, which is an awkward moment.

[00:31:24] Speaker 01:
and when his order to show cause response comes in.

[00:31:26] Speaker 01:
So it's actually a close in time gap between the last recorded attack noted in his pleading and his move to protective custody.

[00:31:38] Speaker 01:
As to the fundamental right point,

[00:31:39] Speaker 01:
It's equally true in body when we're talking about divorce or in MLB when we're talking about termination of parental rights, that someone who doesn't qualify to get divorced or someone who doesn't qualify to keep their parental rights would lose out.

[00:31:52] Speaker 01:
That's not the nature of the inquiry.

[00:31:54] Speaker 01:
The nature of the inquiry is whether the interest is fundamental.

[00:31:57] Speaker 01:
And I don't think there's any doubt that citizenship is fundamental.

[00:32:01] Speaker 01:
I could point to Peresby for now, to Johnson versus Eidenshaker, to any number of statutes.

[00:32:05] Speaker 01:
Mr. Johnson points out.

[00:32:07] Speaker 06:
What was the first case he said?

[00:32:08] Speaker 01:
Perez v. Brunel.

[00:32:11] Speaker 01:
That much is clear.

[00:32:13] Speaker 01:
And as to the Nexus requirement, if I may offer one word, I do believe, as we've said in our brief, that the Article III standing requirement is too complex and too involved for this circumstance, a test that asks whether the relief sought would advance the prisoner's interest in escaping imminent danger, I think would be appropriate and adequate and easily implemented.

[00:32:34] Speaker 01:
And if there are no further questions, I rest and thank the court again for the appointment.

[00:32:38] Speaker 04:
Well, the court thanks you for your assistance.

[00:32:42] Speaker 01:
Thank you.

[00:32:42] Speaker 01:
Thank you.