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Significant feud over an SG brief (UPDATED)

UPDATE Tuesday 4:17 p.m.  The government’s request for a stay can be read here.   The immigrant rights group’s opposition is here.  Judge Rakoff has not yet acted on the stay issue.


In a ruling that the Justice Department is seeking to delay while it appeals, a federal judge has concluded that the federal government’s lawyers in the Supreme Court may have misled the Justices three years ago in efforts to win a key case on the rights of non-citizens facing deportation from the U.S.   The New York judge rejected all of the government’s arguments for refusing to disclose significant parts of four pages of e-mail exchanges within the Solicitor General’s office about a policy claim they had made in the government’s brief in the Supreme Court case of Nken v. Holder, decided nearly three years ago.  The new ruling by U.S. District Judge Jed S. Rakoff of New York City can be found here.

Those e-mails, the judge concluded, may contain the only evidence about whether there actually was a policy of the kind that the government lawyers cited, and upon which the Supreme Court partly relied when it decided the Nken case.  The judge’s order would require the government to share with immigration lawyers parts of the e-mail exchanges, while allowing the government to withhold some other parts.  The government has now sought a stay of the ruling, issued last Tuesday.  The decision gained new visibility when the Wall Street Journal published a story on it last Thursday.

Although the government did not win everything it had sought in the Nken case, the Court did rely upon the government’s claim of a policy supposedly favorable to aliens as it turned aside one of the arguments by the non-citizen facing deportation in that case, thus reducing that individual’s chances of avoiding a return to his home country.  He feared persecution in his homeland, Cameroon, because his family had been active in political protests against the dictatorial regime in power there.

The individual, Jean Marc Nken, was married to a U.S. citizen, and their son is a citizen.  His lawyers took the case to the Supreme Court to get clarification of when a federal appeals court could postpone a deportation order, while the non-citizen involved sought to challenge the legal basis for being sent home.   In a 7-2 decision on April 22, 2009, written by Chief Justice John G. Roberts, Jr., the Court accepted Nken’s argument that the traditional factors governing a stay of a court proceeding applied in such a deportation review case, thus turning down the government’s counter-argument that deportation could not be postponed unless the order of deportation was more likely than not illegal.  In that sense, Nken won.

However, Nken appeared to lose when the Roberts opinion focused upon the question of whether he would face “irreparable injury” if sent home while his court challenge to deportation went forward.  The opinion said that “the burden of removal alone” was not enough to satisfy that factor.  The opinion then went on to say: “Aliens who are removed [deported] 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.”  The opinion then cited the Solicitor General’s brief, at page 44.

The government brief (found here) said on page 44: “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 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal.”

Lawyers who specialize in immigration apparently were not aware of any such “policy and practice.”  Eight months after the Supreme Court’s decision in Nken, a coalition of immigrants’ rights groups filed Freedom of Information Act (FOIA) requests with the Justice Department and other government agencies, seeking the facts on which the government’s claim may have been based.  As those efforts proceeded, the Solicitor General’s office ultimately told those groups that a search of its records had turned up four pages in an e-mail exchange, in December 2008 and January 2009, discussing what would be said in the government’s brief to the Supreme Court.

The SG’s office, however, refused to disclose those e-mails.   So, last May, the immigrants’ rights groups filed a lawsuit in District Court in New York City, seeking an order to compel disclosure under the FOIA.  The complaint cited the government’s brief in Nken, arguing that “the government has made repeated public statements that it has a policy and practice of bringing back individuals who prevail in their immigration cases from abroad and continues to oppose motions to stay removal based on this promise to bring back individuals.”

Disputing that, the complaint said that “individuals who prevail in their immigration cases from abroad have faced substantial difficulty returning to the United States.  Despite efforts to seek out the government agencies and components responsible for facilitating return, individuals, their lawyers, and community organizations remain in the dark regarding the actual government process for return.”  In fact, the complaint said, citing several instances, “our government agencies have constructed multiple barriers to return which has resulted in individuals and their advocates spending months and years trying to return to family and community in this country….Generally, there is a lack of clarity or consistency as to which government agencies are responsible for arranging return and an attitude of indifference as to how, if at all, individuals can return.”

The lawsuit noted that, since 2005, federal appeals courts had overturned more than 7,000 deportation orders.  Even so, it contended, the government has had a policy “of removing individuals while their petitions for review or motions to reopen or reconsider are pending.”   And yet, it added, the government, since the Nken ruling, has continued to make public statements about its willingness to help deported aliens who win their cases to return to the U.S.

With the information the immigrant rights’ groups believe may be in the Solicitor General’s e-mails regarding the Nken brief, the coalition hoped to determine whether there was, in fact, any such policy of helping such aliens get back into this country, and how that policy, if it did exist, was supposed to work.   Knowing that, the groups indicated, would be of major assistance to aliens and to their lawyers and advocacy groups. If there is no such policy, they argued, the SG’s mistake in claiming there was should be known to the public.

Their lawsuit ultimately was assigned to District Judge Rakoff.   Both sides moved last year for a summary ruling in their favor, with the government arguing that disclosure of the e-mails was barred under the FOIA, on the basis of three separate legal claims: the attorney-client privilege, the work-product privilege, and the deliberative-process privilege.

In preparing for his ruling, the judge read the four pages of e-mails in the privacy of his chambers.   In his decision, the judge said that he had found in the e-mails “factual statements concerning the aforementioned policy and practice.”   He turned aside each government claim of privilege, “finding none that protects statements of fact in the e-mail chain that related to the representation the OSG made in Nken.”

The judge remarked that, in making a policy argument to the Supreme Court, the Solicitor General’s office made “a factual representation, unsupported by any citation to the record, and intended that the Court rely on it, which the Court did.”  The government’s argument that it should not have to disclose the basis of that representation, the judge added, “is pure gamesmanship.”

The opinion also remarked that, “when the Solicitor General of the Untied 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….The plaintiffs have provided 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 rejected a Justice Department argument that the forced disclosure of the e-mails’ contents would allow those who sue the government to routinely get access to government lawyers’ correspondence whenever it might contain factual materials bearing on the case.  The judge said that argument “completely ignores the highly uncommon circumstances of this case.  In Nken, the OSG made a new factual representation on appeal and cited nothing in the record to support it.  Moreover, the government even now has come forward with nothing of consequence to support its representation beyond the facts set forth in the e-mails.  These highly unusual circumstances render the government’s ‘slippery slope’ argument unavailing.”

In the end, the judge ordered the government to disclose by tomorrow the specific parts of e-mails dated December 31, 2009, and January 2, 5 and 7 that “contain factual descriptions of the putative policy the existence of which the OSG asserted in Nken.”

The Justice Department has now filed a request to stay that ruling while it appeals, and the immigrant rights groups plan to oppose that plea.   The rights group case is being handled in the main by attorneys and law students at New York University’s Immigrant Rights Clinic.   Their clients are the National Immigration Project of the National Lawyers Guild, American Civil Liberties Union Foundation, Immigrant Defense Project, Post-Deportation Human Rights Project, and a law professor at Northeastern University, Rachel E. Rosenbloom, who is currently doing research on unjustified deportations.

Whether the dispute may ever reach the Supreme Court, and whether the Court has any interest of its own in the developments in the Nken case, may not be known for some time.

(UPDATE: Following the Supreme Court ruling in 2009, Jean Marc Nken’s case returned to the Fourth Circuit Court in Richmond, Va., and Mr. Nken won the right to have his plea for asylum reopened by the Board of Immigration Appeals.  The Circuit Court ruling is here.  The issue that the Supreme Court had decided — the factors in considering whether to stay deportation pending court review of a challenge — was not in question on the remand, since the government conceded it would not deport Nken while his appeal was pending.)

Recommended Citation: Lyle Denniston, Significant feud over an SG brief (UPDATED), SCOTUSblog (Feb. 13, 2012, 2:40 PM),