Solicitor General Apologizes to the Supreme Court, Again

shutterstock_246417730The moral of this blog post is two-fold. First, stranger things have happened, and second, do not believe everything someone tells you because just saying it does not make it so.

On August 26, 2016, Acting Solicitor General Ian Heath Gershengorn penned a letter to the Honorable Clerk of the Supreme Court Scott S. Harris apologizing for a Department of Justice (DOJ) error committed fourteen years ago. That’s right. In 2002, Mr. Gershengorn’s predecessor told the Supreme Court in Demore v. Kim, that mandatory detention under 8 U.S.C. § 1226(c) was constitutional because the average length of detention when a case was appealed to the Board of Immigration Appeals (BIA) was on average only 233 days. According to DOJ’s apology, however, the statistics provided by the Executive Office for Immigration Review (EOIR), which DOJ had submitted to the court, omitted 15,000 cases, and in fact, appealed cases generally take an average of 382 days. This also resulted in an underestimate of the actual number of cases appealed. Statistics were fudged based on EOIR’s definition of “completion,” which did not take into account, for example, a change of venue. The statistics, by the way, relate back to the year 2001.

Remember, stranger things have happened. This is not the first time the Solicitor General has written to the Supreme Court to correct erroneous “evidence” supplied in a closed case. In 2012, DOJ wrote to express “regret” for incorrect information supplied five years earlier in Nken v. Holder, a case wherein the Government argued against a stay of removal because deportation doesn’t cause “irreparable harm.” After all, according to DOJ’s argument, the Department of Homeland Security (DHS) can bring the non-citizen back through established policies and procedures for the return of victorious litigants. Erroneous may not be the right word. Fabricated more closely fits the bill, as DHS had no return policy at the time.  The “policy” was no more than a series of email communications exchanged between DHS and DOJ during the Nken litigation.

Of course, immigration practitioners understood in both Demore and Nken that the data did not comport with reality. In Nken, the email strings (reflecting an absence of policy) were uncovered by warriors at the National Immigration Project who filed a FOIA lawsuit in National Immigration Project Lawyers of the National Lawyers Guild v. United States Department of Homeland Security. In the case of Demore v. Kim, the incorrect data comes to light as DOJ once again attempts to introduce statistics—at the final stage of the litigation—in Jennings v. Rodriguez. Jennings involves the Ninth Circuit’s injunction requiring that non-citizens detained beyond six months be provided individualized bond hearings. DOJ is filing statistics from EOIR again with the Supreme Court; this time, the 2015 data opines non-detained respondents abscond (thereby receiving in absentia orders) in 41 percent of the cases. And yet, I can’t help but wonder, could it be that EOIR’s statistics are wrong yet again?

And on to point #2: you can’t believe everything someone tells you. The consequences of reliance on erroneous data are serious indeed: detention and deportation. Yet, our Supreme Court was willing to rely on these statistics without question. The Supreme Court is made up of (usually) nine human beings. The problem with human nature is that if people are told something often enough, even if it’s not accurate, they tend to believe it. But we are lawyers and should not fall into this trap. This is why it’s important to stop and consider whether a proffered “fact” is plausible before jumping to conclusions. Lawyers, more than anyone, are called on to check the facts and not blindly believe just because somebody said it.

Which leads me to what I really set out to write about: the status of prolonged detention litigation. As often happens, we have a split in the circuits—hence SCOTUS accepting cert. in Jennings v. Rodriguez. But thankfully, it is a positive situation all around: most circuits have fallen in line with the concept that detention beyond six months becomes constitutionally suspect. So, my dear colleagues, sharpen your pencils and drag out your civil procedure Hornbooks (or better yet, AILA’s resources on federal litigation) and start drafting those bond motions and habeas petitions.

Here is where things stand: in the Second and Ninth circuits, six months in detention is the bright line, after which the government shall give the noncitizen an individualized bond hearing (Rodriguez v. Robbins, Lora v. Shanahan). In the First, Third, Sixth and Eleventh circuits, there is no bright line of six months, but rather, a “case-by-case” approach that considers the procedural routes the case has taken to determine if either party is at blame for any delays. (If attorneys have any questions about the state of habeas petitions for prolonged detention, catch up with me at AILA’s Advanced Business and Removal Issues conference in New York on October 10, 2016.)

The most recent of the habeas decisions is Sopo v. U.S. Att’y Gen. Mr. Sopo was in Immigration and Customs Enforcement (ICE) custody for four-and-a-half years, detained in one of Corrections Corporation of America’s finest facilities, Stewart Detention Center, in everyone’s favorite tourist destination, Lumpkin, Georgia. As our Georgia colleagues can tell you, Lumpkin is two-and-a-half hours from Atlanta, and an hour from Columbus. So your choices are (besides practicing in Atlanta) a flight and a two-and-a-half-hour drive, or two flights and an hour drive.  First goes your wifi, then your cell phone service, and finally—say good bye to due process.

Mr. Sopo, according to the court’s opinion, was in custody for non-violent bank fraud involving some fishy car loan applications. The reason he was in custody for over four years is that DHS refused to give this man, a refugee representing himself pro se, a copy of his original asylum application; the immigration judge ordered him deported for “abandoning” his application; the BIA disagreed and sent it back; the hot potato—I mean case—was bounced around from judge to judge, and finally, he filed a  pro se habeas and the Eleventh Circuit—not known for its crazy liberal leanings—found the delay was caused by the government. The Eleventh Circuit granted Sopo’s petition, finding that four years was “prolonged.”

Do not be fooled and check the facts, because saying it doesn’t make it so, and crazier things have happened. And if your client has been in custody for over six months, and it’s not through your delays, and might even be caused by government shenanigans, check the law of your circuit, and file that motion for bond hearing—or habeas—and see you in New York!

Written by Mary Kramer, Member, AILA EOIR Liaison Committee

Interested in learning more about this subject? As part of AILA’s Advanced Business and Removal Issues Conference, Mary will be participating in a panel October 10th on Advanced Crimmigration, along with experts Matthew L. Guadagno and Isaac Wheeler. Check out the conference program for more details including how to register.

Mary is also the author of the AILA publication: Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants.

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