08 Feb 2012
FEDERAL JUDGE RULES ON U.S. SOLICITOR GENERAL'S ABUSE OF SUPREME COURT'S TRUST
"FOR IMMEDIATE RELEASE February 8, 2012
CONTACT: Nancy Morawetz, 212-998-6451, nancy.morawetz@nyu.edu; Martha Saunders, 917-327-3120, mjs684@nyu.edu; Saerom Park, 718-757-0352, saerom@nyu.edu
FEDERAL
JUDGE RULES ON U.S. SOLICITOR GENERAL'S ABUSE OF SUPREME COURT'S TRUST
Justice Department ordered to disclose the basis for the Government's
misleading representation to the Supreme Court that a policy exists for
returning wrongfully deported immigrants.
Judge
Jed Rakoff, of the Southern District of New York, issued a decision
late yesterday rejecting the Government's attempts to shield Department
of Justice emails communicating government policy for immigrants who win
their cases post-deportation. On the basis of these emails, the
Solicitor General had argued to the Supreme Court in 2009 that the U.S.
government maintains a policy and practice for returning immigrants who
are deported by ICE while their judicial appeals are pending, but are
later found by the courts to have been wrongfully deported. However, the
experience of immigrants trying to return home stands in stark contrast
to this statement.
The decision
affirms that the Government cannot play a bait and switch by making
unsupported assurances to the Supreme Court that federal agencies can
and will bring back people who are wrongfully deported and restore their
immigration status, but then provide no information to the public or to
those immigrants about how that is to be done. To do so would be "pure
gamesmanship."
The opinion hints at
what may be found in these emails, noting that they "evidence an attempt
to cobble together a factual basis for making the representation the
OSG [Office of the Solicitor General] made to the Court in Nken." The
judge warned, "the judicial process may have been impugned if the
Supreme Court relied upon what may well have been inaccurate or
distorted factual representation."
"The
court's order to disclose the emails shines a light on an alleged
policy that the government refuses to share with the public, if it even
exists. This failure prevents and prolongs the reunion of families for
weeks, months, even years after a person has won their judicial appeal,"
said Trina Realmuto, an attorney with the National Immigration Project
of the National Lawyers Guild, a lead plaintiff in the case. "Judge
Rakoff's decision recognizes that the Solicitor General is not above the
law and that his representations to the nation's highest court must be
transparent."
This decision is an
important part of ongoing litigation aimed at uncovering the lack of
polices or procedures for returning immigrants who prove their right to
stay in the United States in federal court, yet remain stranded outside
of its borders with no clear pathways to return and have their
immigration status restored. On May 12, 2011, the National Immigration
Project, the ACLU Foundation, the Immigrant Defense Project, the
Post-Deportation Human Rights Project, and Professor Rachel Rosenbloom
filed a complaint against the Department of Homeland Security, the
Department of Justice and the State Department for their failure to
produce documents under the Freedom of Information Act about the
agencies' alleged policy and practice of providing effective relief to
immigrants who win their cases from abroad.
"As
it stands, people who are fighting their deportation can be deported
while their appeals are still pending, and even if they win their case,
the government makes no effort to return them. It's 'heads, I win;
tails, you lose,'" said Martha Saunders, a third-year law student in the
NYU School of Law Immigrant Rights Clinic, the organization
representing the plaintiffs. "The limited documents released by the
Department of Homeland Security show deep confusion not only over how to
return individuals who win their immigration cases, but whether to
return them at all."
Each year, the
federal courts may reverse or vacate more than 1,000 removal orders. A
significant number of these cases will be individuals who continue to
fight for their right to remain in the United States from abroad, due to
a policy the government maintains of deporting individuals while their
appeals are pending or before individuals have time to file and appeal.
It is unknown how many people are currently stuck outside of the United
States, separated from their families and communities, because the
government has no effective system for bringing them back."
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