Wall Street Journal
By Jess Bravin
September 7, 2016
The Justice Department is seeking to bolster its chances in a Supreme Court immigration case by introducing new information at the final stage of litigation, even though the government was recently forced to apologize for erroneous information provided in this way.
Unlike other litigants who generally are limited to the trial record, the government can introduce new evidence when a case reaches the Supreme Court. That enables it to avoid the scrutiny that evidence normally receives at trial, and critics argue it risks introducing incorrect material into the record.
Slated for the Supreme Court’s next term, Jennings v. Rodriguez concerns the government’s power to imprison aliens without bail while their immigration cases are pending. The Obama administration is asking the justices to overturn a 2015 lower court decision holding that the Constitution’s due-process guarantee entitles aliens to seek, if not necessarily obtain, bail after six months of detention.
In a brief filed last month, the government asserts that “in fiscal year 2015, 11,325 of the 27,443 initial case completions by immigration judges for released aliens—41% of the total—were in absentia orders after the alien absconded.” That absentee rate is a “serious problem” justifying a blanket no-bail policy, the government argues.
The statistics come from the Executive Office for Immigration Review, a Justice Department unit that oversees immigration courts. That office also supplied data that recently was proved erroneous in a 2003 case on immigrant detentions, Demore v. Kim. Earlier this month, following a report in The Wall Street Journal documenting the errors, acting Solicitor General Ian Gershengorn sent a letter of apology to the Supreme Court.
In the Rodriguez case, the government didn't make its claims about the aliens’ no-show rate in the trial before U.S. District Court in Los Angeles, where attorneys could have raised questions about it through the adversarial process.
Later, on appeal to the Ninth U.S. Circuit Court of Appeals in San Francisco, the government sought to strengthen its case by inserting the statistics. That court refused to accept them, noting the general rule that appeals courts consider only evidence from the trial record.
The Justice Department declined to comment on its move in the Rodriguez case, saying the litigation was ongoing. “The office of the solicitor general takes its obligation to provide complete and accurate information to the [Supreme] Court with the utmost seriousness.” the department said.
But Michael Wishnie, a professor at Yale Law School, said the practice of introducing new evidence at the Supreme Court level raises questions about its reliability.
“The issue is not how ‘serious’ the office is,” Mr. Wishnie said. “The issue is whether the Supreme Court can reasonably and fairly rely on immigration data and records provided for the first time without any opportunity for the other side to scrutinize it.”
Complicating matters, in a separate case in Seattle, the Justice Department is arguing that different statistics from the immigration-review office should be excluded because they are unreliable.
In F.L.B. v. Lynch, the American Civil Liberties Union contends that the government should be required to appoint lawyers for juvenile immigrants facing deportation proceedings. Relying on data published by the immigration-review office, a plaintiffs’ expert found that juveniles without counsel are up to 20 times more likely to be ordered deported than those who are represented by attorneys.
“There are serious questions concerning the accuracy of the data,” the Justice Department told a federal-district court in August. The department re-examined every Ninth Circuit case over a one-month period involving an unrepresented minor who was ordered deported after appearing at an immigration hearing and found what it depicted as significant errors in the data.
Twice in recent years, the Justice Department has acknowledged introducing incorrect information about immigration policy at the Supreme Court stage. In both instances, doubts over government claims in years-old cases were substantiated through Freedom of Information Act requests filed by immigrant advocates.
In 2012, the department said it had inadvertently misled the Supreme Court in a 2009 case, Nken v. Holder, when it incorrectly asserted that officials routinely help deported aliens return to the U.S. if they later win their immigration appeals.
In the 2003 Demore case, the Supreme Court voted 5-4 to uphold the government’s no-bail policy for certain immigrants, including legal residents with “green cards” who were eligible for deportation because they had committed crimes.
The court cited data saying the average detention period for immigrants appealing removal orders was only four months. But the American Civil Liberties Union later obtained underlying statistics showing that on average the aliens at issue were held without bail for more than a year.
For more information, go to: www.beverlyhillsimmigrationlaw.com