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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
Courthouse News Service Courthouse News Service

Solicitor General May Have Misled on Immigration

MANHATTAN (CN) - The U.S. Office of the Solicitor General may have misled the Supreme Court about resources the government provides wrongly deported immigrants who win their appeals, a federal judge ruled, ordering the disclosure of redacted emails.

U.S. District Judge Jed Rakoff opened his blistering 20-page order with a quotation he attributed to late 19th century political commentator Peter Finley Dunne.

"'Trust everybody, but cut the cards,' as the old saying goes," the order states. "When the Solicitor General of the United States makes a representation to the Supreme Court, trustworthiness is presumed. Here, however, plaintiffs seek to determine whether one such representation was accurate or whether, as it seems, the Government's lawyers were engaged in a bit of a shuffle."

In 2009, the Office of the Solicitor General told the high court in a brief that by "policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under § U.S.C. 1182(d) (5) if necessary, and according them the status they had at the time of removal."

The Supreme Court relied on that assurance, made without citation, to hold that deportation did not qualify as "irreparable harm" in the case of Nken v. Holder.

On Dec. 17, 2009, the National Immigration Project of the National Lawyers Guild, American Civil Liberties Union Foundation, Immigrant Defense Project, Post-Deportation Human Rights Project and Northeastern University Law Prof. Rachel Rosenbloom challenged the stated policy in a Freedom of Information Act request to six government agencies.

In turn, the Solicitor General's office produced a "mostly-redacted four-page chain of emails between the attorneys who argued before the Supreme Court in Nken and other government officials," the order states.

On May 12, 2011, the civil libertarians sued the U.S. Department of Homeland Security, Citizenship and Immigration Services, Customs and Border Protection, Immigration and Customs Enforcement, Department of Justice and Department of State to lift the redactions from the emails.

On Tuesday, Rakoff ordered the government to produce the emails, which he said seem to refute the government's claims to the Supreme Court.

"In Nken, the OSG made a new factual representation on appeal and cited nothing in the record to support it," the order states. "Moreover, the Government even now has come forward with nothing of consequence to support its representation beyond the facts set forth in the emails."

Saerom Park, an NYU law student working with the plaintiffs, told Courthouse News in a phone interview that the Solicitor General's assertions had "tremendous consequences."

"We can't go back and re-litigate that case, but we think it is important to set the record straight," Park said.

By exposing the facts, Park hopes to build pressure to create policies to help deported immigrants that win their appeals.

"Mainly, we are hoping to expose the scope of this problem so that we can let the immigrant advocacy community know, and put pressure on the government to put the policy in place," Park said, adding later, "We hope the Solicitor General won't make unsupported factual assertions to the Supreme Court anymore."

A spokesperson for the U.S. Attorney's Office declined to comment on the ruling or indicate whether it would issue an appeal.The government must lift the redactions by Feb. 13.

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