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Bloggings on Deportation and Removal

by Matthew Kolken

Did Justice Department Lawyers Lie to the Supreme Court?

The Wall Street Journal reports that a District Court Judge has called out the Justice Department for allegedly making "misleading statements" to influence the Supreme Court in an immigration related decision.  The case invovled the applicable standard that a Court of Appeals must consider in issuing a stay of removal that would block an immigrant's deportation while their petition for review is being considered.

The case was Niken v. Holder, and was argued on January 21, 2009, just one day after President Barack Obama was sworn into office promising to usher in a new era of government transparency and accountability.

Here is the summary from the sylabus:

Petitioner Nken sought an order from the Fourth Circuit staying his removal to Cameroon while his petition for review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings was pending. Nken acknowledged that Circuit precedent required an alien seeking such a stay to satisfy 8 U. S. C. §1252(f)(2), which sharply restricts the availability of injunctions blocking the removal of an alien from this country, but argued that a court’s authority to stay a removal order should instead be controlled by the traditional criteria governing stays. The Court of Appeals denied the stay motion without comment.

Here are the arguments:

The parties dispute what standard a court should apply when determining whether to grant a stay. Petitioner argues that the “traditional” stay standard should apply, meaning a court should consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether [he] will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties … ; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770. The Government argues that §1252(f) should govern, meaning an alien must show “by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law.” Pp. 5–6.

The Court held that: "Traditional stay factors, not the demanding §1252(f)(2) standard, govern a court of appeals’ authority to stay an alien’s removal pending judicial review. Pp. 3–17."

In arguing their case Justice Department lawyers advised the Supreme Court that the government "facilitates" the return of deportees who have been forcibly removed from the United States during the pendency of their appeal, and who ultimately win their case.

Parenthetically, no immigration lawyer I know has ever heard of such practice.

Chief Justice John Roberts relied on that statement specifically finding that: "Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal."    

Justice Roberts reasoned that:

Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. [Emphasis added].

On December 17, 2009, Immigrant rights groups filed FOIA requests with the DOJ, DHS, and DOS seeking release of the factual basis for the un-cited representations made to the Supreme Court.

The FOIA yielded a "mostly-redacted" chain of emails between the attorneys who argued the case before the Supreme Court and government officials.  Presumably, the redacted portions of the emails relate to the information relayed to the Supreme Court.   The FOIA contained no record of the existence of any written policy.

The FOIAs did reveal some interesting facts, however.

  • Citizenship and Immigration Services stated that "USCIS doesnot have a specific policy, program and/or guidance memo regarding a process for aliens wrongfully removed/deported from the UnitedStates."   
  • Customs and Border Protection stated that it has no set procedure for facilitating return, does not track cases referred for judicial action, and has no method for identifying whether an alien has succeeded on appeal.  
  • ICE records show that officials frequently do not know whom they should contact to facilitate return.  
  • In some situations where ICE used parole, agency employees still expressed confusion about how to physically return a deportee.  
  • Other records admit that the Government’s use of parole would not restore the status that removed aliens had prior to their removal.  
  • ICE records do not contain any publicly accessible forms or instructions for individuals whose removal orders have been reversed or vacated.  

Immigrant rights groups have filed suit in the U.S. District Court for the Western District of New York demanding full disclosure of the emails.

The Administration has sought summary judgement arguing that the withholding of information was justified under the work-product privilege, the attorney-client privilege, and the deliberative-process privilege.  

U.S. District Judge Jed Rakoff isn't buying any of it stating that government lawyers "made a factual representation, unsupported by any citation to the record, and intended that the Court rely on it, which the Court did," and that 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."

Judge Rakoff ordered disclosure of the portions of the emails containing the factual statements that specifically relate to the alleged policy and practice of facilitating deported aliens' return and restoring their prior immigration status if they successfully appeal their removal decisions. 

It should be noted that this is not the first example of the Obama administration blocking the release of information relating to its deportaion policies through FIOAs. 

So much for transparency and accountability.

Click here for the original source of this story.

About The Author

Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law – including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.