The United States Court of Appeals for the D.C. Circuit is now considering the case of several Uighurs, currently detained at Gitmo, who are asking to be released into the Washington metropolitan area. The D.C. Circuit has already ruled against the Uighurs once, affirming the government’s power to exclude them from the country because immigration law bars the admission of aliens that the government reasonably suspects of engaging in certain terrorism-related activities. (In this case, the Uighurs received military training at a camp in Tora Bora, or supported the camp). When I wrote about this case two weeks ago, the Uighurs had submitted a brief urging the litigation to be sent to the district court for further factual development, and the government had not yet filed a responsive brief. The government’s brief was filed last week.

The Uighurs, it is worth recalling, initially were held in military detention in Gitmo as enemy combatants, but in 2008 the U.S. agreed that they should no longer be designated as such. Pursuant to established policy, the Uighurs will not be returned to China due to concerns that they would face torture. Thus, the issue in the Kiyemba litigation has been whether the detainees should be released into the United States. After the D.C. Circuit’s first ruling against the Uighurs, the U.S. Supreme Court granted certiorari. However, the Obama administration was subsequently able to ensure that all the detainees originally part of the litigation were either resettled in third countries, had accepted offers of resettlement, or received but declined such offers. This caused the Supreme Court to vacate the D.C. Circuit’s judgment and remand the case for determination of “what further proceedings … are necessary and appropriate for the full and prompt disposition of the case in light of the new developments.”

The fact that the Uighurs would like the case before the district court makes sense; after all, the district court found that they were entitled to release in the U.S. before its decision was overruled by the D.C. Circuit. When I last wrote about this case, I predicted that the government’s brief would “argue that factual developments in the case are immaterial to what the D.C. Circuit said in its previous decision, and to urge the circuit court to reaffirm that opinion.”

The Government did indeed make this argument, urging the D.C. Circuit to reinstate its own prior decision. The reasoning is simple, since the detainees’ refusal of offers of resettlement overseas does nothing but make their case less compelling than before, when the D.C. Circuit rejected it the first time. As the Government’s brief states:

If an alien who has not been offered resettlement elsewhere has no right to be brought into the United States for release outside the framework of immigration laws, as this Court held, then a fortiori an alien who has been offered resettlement opportunities but turned them down has no such right.

While it is possible that the D.C. Circuit could give the detainees an opportunity to file affidavits or declarations setting forth what they assert to be new facts material to their argument, the detainees have offered no justification for any end result other than reaffirmation of the first D.C. Circuit decision—a decision that recognized the long-standing and well-justified rules preventing foreign detainees from using the federal courts as an end-run around immigration laws.

But not every aspect of this case remains unchanged. The detainees convinced the Supreme Court to take their case by filing a petition that focused on the assertion that, because no other nations had yet offered to accept them, “release into the continental United States is the only possible effective remedy” for what they alleged to be their unlawful confinement. Their petition repeatedly returned to that theme: “[t]he record … is clear … that there is nowhere else to go." The government’s attempts to resettle them elsewhere had “failed”; the detainees were entitled to “release in these circumstances, where no other remedy is available.” Now that the detainees have received the option of release elsewhere, they can no longer lend that kind of urgency to their pleas for release into the U.S. Thus, if the D.C. Circuit again rules against them—as I believe it will—the Supreme Court will be less likely to grant certiorari a second time.

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