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Immigration Case Challenges Justice Department's Credibility
13 March 2012
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WASHINGTON—The Justice Department said it was prepared to correct its possibly misleading statements that influenced a Supreme Court ruling against immigrants facing deportation.

Justice Department lawyers told the high court in a 2009 case that the government "facilitates" the return of deportees who later win their cases on appeal. Chief Justice John Roberts relied on that statement in finding that while deportation is a "serious burden for many aliens," it wasn't "categorically irreparable" and therefore was permissible in most circumstances while appeals are pending.

Immigration lawyers said they never had seen deported people receive such assistance in returning to the U.S., and began pressing the government for details. None of the agencies queried, including the departments of State and Homeland Security, could find information about such a policy.

The solicitor general's office, which represents the government before the Supreme Court, said there was information about the policy in emails between its lawyers and agencies involved in deportations. But it refused to disclose the emails, claiming they were exempt from the Freedom of Information Act.

Several immigrant-rights groups challenged that claim in court. The case went to U.S. District Judge Jed Rakoff in New York who, after reviewing the disputed emails, wrote that there was "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.

Judge Rakoff, recently in the limelight for challenging government settlements with big banks over alleged securities-law violations, ordered portions of the emails released. He stayed the ruling 60 days while the government considers whether to appeal. A week after his ruling, the government said it had found an additional 16 pages of emails related to the supposed policy.

"Like a flatworm cut in half that returns as two flatworms, this case just gets curioser and curioser," Judge Rakoff wrote in a Feb. 24 opinion.

The solicitor general's office declined to say if it stands by assertions it made in a January 2009 brief in Nken v. Holder that government "policy and practice" included "facilitating the aliens' return to the United States" if they won their appeals.

"The solicitor general's office has a longstanding commitment to candor and accuracy in its representations to the court," a Justice Department spokeswoman said. "If the solicitor general's office concludes that it is appropriate to correct or clarify its representations to the court, it will do so."

Ted Olson, solicitor general under President George W. Bush, said he wasn't familiar with the Nken case, but he said that in general the office's lawyers rely on information supplied by the agencies they represent.

"Each agency has its own little culture and it's possible you might not pick up a nuance" regarding the way it describes its own practices, Mr. Olson said. "It's possible there could have been a misunderstanding."

On Feb. 24, U.S. Immigration and Customs Enforcement issued a directive that it said "describes existing ICE policy for facilitating the return" of people who successfully appeal deportations. The document provided few details, other than stating that "facilitating an alien's return does not necessarily include" paying his airfare "or making flight arrangements." The agency declined to say when the policy began or how many people have received assistance through it.

Spokeswoman Gillian Christensen said the ICE "has long been committed to facilitating the return of aliens who prevail before federal courts," but "had not previously put the policy in writing given the case-specific nature" of each matter.

"The word 'facilitate' suggests doing something affirmatively, not just waiting till there's a lawyer [for an immigrant] who's going to go to court on a contempt action," said Nancy Morawetz, co-director of the Immigrant Rights Clinic at New York University School of Law, who represents the activists seeking information in the case.

Iowa Sen. Charles Grassley, the top Republican on the Judiciary Committee, said he hoped the solicitor general's office would clarify what happened in the case. "The office must be completely above board in all of its representations on behalf of the American people before the court," he said in a written statement.
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