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Regrets, but no apology

Saying they had regrets, but without apologizing directly, the federal government’s lawyers have admitted to the Supreme Court that the partial victory they won in a case three years ago was based on flawed information they had given to the Court.  They filed a letter Tuesday “in order to clarify and correct” that information.  The Court need not do anything about it, the letter suggested.

The problem with the information, supplied in the 2009 case of Nken v. Holder (docket 08-681), was not turned up by the government.  Rather, it turned up in a federal court in New York City when immigrants’ rights attorneys demanded an explanation for a policy statement on which the Supreme Court had relied in deciding the Nken case.  The policy that the goverrment had told the Court existed apparently did not exist. (This controversy over what the Justices had been told by the government was discussed on this blog in this post in February.)

In the new letter to the Court, Deputy Solicitor General Michael R. Dreeben did not concede that the information provided in the government brief in that case was actually wrong.  Rather, it said, the information was designed to “encapsulate” information gleaned within the government as the brief was being prepared.  “The government,” the letter said, “should have provided a more complete and precise explanation.”

The Nken decision came down three years ago this month.  Lately, the government had been resisting — in a federal District Court in New York City — the forced disclosure of an exchange of e-mails that supposedly was in the background of the information supplied to the Justices in Nken.  The District judge had ordered the government to hand over at least parts of those e-mails, and the government earlier this month challenged that ruling in an appeal to the Second Circuit Court.

This week, the government told both that judge and the Supreme Court that it was abandoning that appeal, and would now agree to turn over most — but not all — of those e-mails.   The judge on Wednesday issued a new stay in the case there to allow for the partial disclosure that the government has now promised.

The Nken case involved the rights of non-citizens living in the U.S. who were facing deportation.   The individual at the center of that case, Jean Marc Nken, was a national of Cameroon, but claimed that his scheduled deportation would lead to persecution if he returned to that country.  He was married to a U.S. citizen, and they had a son who 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.

The Court ruled that Nken and non-citizens like him who were deported while their challenges remained in court could seek delays while their appeals were pending, but would not suffer “irreparable injury” if they were deported in the meantime because, the Court said, they could continue their challenges and, if they won, they could return to the U.S. and regain the same status they had had before being deported.  That, the Court said, would be “effective relief.”

Those statements were based on what the government had said in its brief about its policy.  But immigrants’ rights attorneys in response contended that they were not aware of any such policy, and wanted to know just what that policy was so they could pursue it for their clients.  To get at the policy’s origins and explanations, they sued in New York under the Freedom of Information Act.

It was during that proceeding, the letter to the Supreme Court said Tuesday, that the government decided to make a new review of policy on what would happen to a non-citizen who had won a challenge to a deportation order.  After conducting that review, the letter said, “the government is not confident that the process for returning removed aliens, either at the time its brief was filed or during the intervening three years, was as consistently effective as the statement in its brief in Nken implied.  The government therefore believes that it is appropriate both to correct its prior statement to this Court and to take steps going forward to ensure that aliens who prevail on judicial review are able to timely return to the United States.”

The letter then outlined those changes in detail.

In closing the letter, Deputy Solicitor General Dreeben said that “the government recognizes its special obligation to provide this Court with reliable and accurate information at all times.”  It said the federal lawyers had tried to do that in this case in “good faith,” adding that “we regret the necessity for this letter.”

Recommended Citation: Lyle Denniston, Regrets, but no apology, SCOTUSblog (Apr. 25, 2012, 7:51 PM),