Wall Street Journal: The government may have misled the Supreme Court about its policies on helping improperly deported immigrants return to the U.S., possibly influencing a decision to make it easier to deport thousands of aliens, according to a ruling by U.S. District Judge Jed Rakoff in New York.
The judge's opinion requires the government to disclose by Monday internal emails in which Justice Department lawyers developed the claim they made to the Supreme Court.
In the January 2009 case, the Justice Department told the Supreme Court that when appellate courts ruled in favor of deported aliens, its "policy and practice" provided "effective relief…by facilitating the aliens' return to the United States" and restoring "the status they had at the time of removal."
Chief Justice John Roberts referenced that contention, made without citation, in his April 2009 opinion, writing that aliens deported erroneously wouldn't suffer "irreparable injury" because the government would help them return if they later won their appeals. However, immigration lawyers said they hadn't heard of deported clients being helped to return to the U.S. under a specific policy.
In his 20-page opinion, released this week, Judge Rakoff wrote there is "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. " 'Trust everybody, but cut the cards,' as the old saying goes," Judge Rakoff wrote.
Judge Rakoff, is known for recent rulings challenging actions by the executive branch. In particular, the judge has refused to approve several settlements between the Securities and Exchange Commission and Wall Street banks over alleged misconduct, finding that the deals didn't adequately establish who was at fault or sufficiently punish the wrongdoers.
The Justice Department didn't return requests for comment. Gregory Garre, who was solicitor general in the George W. Bush administration when a brief making the disputed claim was filed in January 2009, declined to comment.
The dispute arose in a case brought by Jean Marc Nken, concerning the criteria under which immigrants facing deportation orders can remain in the U.S. while their appeals are pending. Lawyers for such aliens argued that their clients could suffer irreparable harm if deported, because even if they later won their appeals, they might have no way of returning to the U.S. or even learning the outcome of their cases.
Mr. Nken entered the U.S. legally in 2001 and then sought political asylum, claiming he faced persecution in his native Cameroon for participating in antigovernment protests. Mr. Nken eventually won asylum and now lives in Maryland with his wife and son, his attorney said.
Nancy Morawetz, who co-directs the Immigrant Rights Clinic at New York University School of Law and helped file a friend-of-the-court brief in the Nken case, said she hadn't heard of a policy under which the government aids wrongly deported aliens.
"We see it as a mystery," she said. "How was it that the Supreme Court was told something that was not accurate?"
In response to Freedom of Information Act requests from Ms. Morawetz, the Homeland Security and State departments said they had no information on such a policy. The Justice Department said it did have information—four pages of emails among officials—but refused to release them. The NYU clinic sued on behalf of immigrant rights groups. Judge Rakoff, who heard the case, reviewed the emails and held that portions must be released because they are the only evidence regarding "the putative policy."
"The email chain ... evidences an attempt to cobble together a factual basis for making the representation" to the Supreme Court, Judge Rakoff wrote.
Ms. Morawetz said she wasn't certain what steps she would take next, but said "we would like them to have an effective system" for returning aliens who were improperly deported.
Deborah Rhode, director of the Center on the Legal Profession at Stanford Law School, said the implications could be serious if the government wasn't forthcoming to the high court. "Lawyers for the solicitor general's office carry special responsibilities to present a full and fair record," she said. She said that either the solicitor general's office should confess the error "or the policy should be revised to be what the government said it was."
The judge's opinion requires the government to disclose by Monday internal emails in which Justice Department lawyers developed the claim they made to the Supreme Court.
In the January 2009 case, the Justice Department told the Supreme Court that when appellate courts ruled in favor of deported aliens, its "policy and practice" provided "effective relief…by facilitating the aliens' return to the United States" and restoring "the status they had at the time of removal."
Chief Justice John Roberts referenced that contention, made without citation, in his April 2009 opinion, writing that aliens deported erroneously wouldn't suffer "irreparable injury" because the government would help them return if they later won their appeals. However, immigration lawyers said they hadn't heard of deported clients being helped to return to the U.S. under a specific policy.
In his 20-page opinion, released this week, Judge Rakoff wrote there is "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. " 'Trust everybody, but cut the cards,' as the old saying goes," Judge Rakoff wrote.
Judge Rakoff, is known for recent rulings challenging actions by the executive branch. In particular, the judge has refused to approve several settlements between the Securities and Exchange Commission and Wall Street banks over alleged misconduct, finding that the deals didn't adequately establish who was at fault or sufficiently punish the wrongdoers.
The Justice Department didn't return requests for comment. Gregory Garre, who was solicitor general in the George W. Bush administration when a brief making the disputed claim was filed in January 2009, declined to comment.
The dispute arose in a case brought by Jean Marc Nken, concerning the criteria under which immigrants facing deportation orders can remain in the U.S. while their appeals are pending. Lawyers for such aliens argued that their clients could suffer irreparable harm if deported, because even if they later won their appeals, they might have no way of returning to the U.S. or even learning the outcome of their cases.
Mr. Nken entered the U.S. legally in 2001 and then sought political asylum, claiming he faced persecution in his native Cameroon for participating in antigovernment protests. Mr. Nken eventually won asylum and now lives in Maryland with his wife and son, his attorney said.
Nancy Morawetz, who co-directs the Immigrant Rights Clinic at New York University School of Law and helped file a friend-of-the-court brief in the Nken case, said she hadn't heard of a policy under which the government aids wrongly deported aliens.
"We see it as a mystery," she said. "How was it that the Supreme Court was told something that was not accurate?"
In response to Freedom of Information Act requests from Ms. Morawetz, the Homeland Security and State departments said they had no information on such a policy. The Justice Department said it did have information—four pages of emails among officials—but refused to release them. The NYU clinic sued on behalf of immigrant rights groups. Judge Rakoff, who heard the case, reviewed the emails and held that portions must be released because they are the only evidence regarding "the putative policy."
"The email chain ... evidences an attempt to cobble together a factual basis for making the representation" to the Supreme Court, Judge Rakoff wrote.
Ms. Morawetz said she wasn't certain what steps she would take next, but said "we would like them to have an effective system" for returning aliens who were improperly deported.
Deborah Rhode, director of the Center on the Legal Profession at Stanford Law School, said the implications could be serious if the government wasn't forthcoming to the high court. "Lawyers for the solicitor general's office carry special responsibilities to present a full and fair record," she said. She said that either the solicitor general's office should confess the error "or the policy should be revised to be what the government said it was."
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