Correct the Record, Rights Groups Say After DoJ Admits Mistake

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Written By admin at Monday, May 7th, 2012

Immigrant rights groups asked the Supreme Court Friday to withdraw parts of a 2009 ruling that relied on erroneous information supplied by the Justice Department, saying that lower courts would continue to be misled unless the official record was corrected.

As reported in The Wall Street Journal, last week the solicitor general’s office told the court that in a January 2009 brief, it mistakenly stated that it routinely “facilitates” the return to the U.S. of deported immigrants who later win their appeals. Chief Justice John Roberts cited that claim in his majority opinion in Nken v. Holder, finding that while deportation is a “serious burden for many aliens,” it wasn’t “categorically irreparable” and therefore was permissible in most circumstances while appeals are pending.

The Justice Department said, however, that the government had revised its policies to match its claims in 2009 and therefore no further action from the high court was necessary.

“We appreciate the sentiment in the government’s letter, which retracts its prior submission that it had a policy and practice of facilitating the return of aliens who are removed from the United States while their cases are pending but who eventually successfully challenge their removal,” wrote attorneys for the American Immigration Lawyers Association, Americans for Immigrant Justice, Catholic Legal Services, the Hebrew Immigrant Aid Society, the National Immigrant Justice Center, the National Immigration law Center, Public Counsel, and World Relief.

“Unfortunately, this belated admission…does not by itself solve the problems created by the government’s erroneous earlier claim,” the groups wrote. “Unless this Court modifies its opinion, other courts may well rely on the relevant passage in Nken. Courts, lawyers, and litigants who review the Court’s reported decision in the case may well not know the government subsequently retreated from its position in a separate filing three years after the decision was issued.”

The Justice Department had no comment on the matter Friday.

Immigrant-rights groups had disputed the government’s 2009 claim, saying that in their experience, authorities were more likely to impede the return of aliens who won favorable court rulings than to assist them. They filed Freedom of Information Act requests seeking the basis of the government’s assertion to the Supreme Court, but the government refused to turn over key emails between the solicitor general’s office and immigration officials, claiming they were exempt from disclosure.

After the rights groups sued to force disclosure, Judge Jed Rakoff of U.S. District Court in New York reviewed the emails, and in a February order directing that portions be released, wrote that there was “substantial evidence that the judicial process may have been impugned if the Supreme Court relied upon what may well have been inaccurate or distorted factual representation” by the solicitor general’s office.

Following reports in The Wall Street Journal, lawmakers including Senate Judiciary Committee Chairman Patrick Leahy (D., Vt.) called upon Attorney General Eric Holder to explain whether the Justice Department had misled the Supreme Court and clarify what the government’s policy toward immigrants who win their appeals actually was.

The government had until last week to comply with Judge Rakoff’s order or appeal. In an extraordinary move, the Justice Department decided to disclose virtually the entire email correspondence rather than the limited portion Judge Rakoff ordered released, and send a letter to the high court correcting its prior assertions.

The emails gave no suggestion that lawyers in the solicitor general’s office intended to mislead the Supreme Court, but rather showed that they relied on information provided by officials from the Department of Homeland Security, which oversees immigration enforcement.

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