Judge Rakoff, to put it mildly, is a judicial iconoclast. His most recent exploit? Accusing the United States of misleading the Supreme Court in Nken v. Holder. Jess Bravin has the story:
The government may have misled the Supreme Court about its policies on helping improperly deported immigrants return to the U.S., possibly influencing a decision to make it easier to deport thousands of aliens, according to a ruling by U.S. District Judge Jed Rakoff in New York.
The judge’s opinion requires the government to disclose by Monday internal emails in which Justice Department lawyers developed the claim they made to the Supreme Court.
In the January 2009 case, the Justice Department told the Supreme Court that when appellate courts ruled in favor of deported aliens, its “policy and practice” provided “effective relief…by facilitating the aliens’ return to the United States” and restoring “the status they had at the time of removal.”
Chief Justice John Roberts referenced that contention, made without citation, in his April 2009 opinion, writing that aliens deported erroneously wouldn’t suffer “irreparable injury” because the government would help them return if they later won their appeals. However, immigration lawyers said they hadn’t heard of deported clients being helped to return to the U.S. under a specific policy.
In his 20-page opinion, released this week, Judge Rakoff wrote there is “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. ” ‘Trust everybody, but cut the cards,’ as the old saying goes,” Judge Rakoff wrote.
From is the order:
Specifically, in 2009, in a brief addressed to the Supreme Court, the Office of the Solicitor General (“OSG”) represented that, “[b]y 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.” Brief for Respondent at 44, Nken v. Holder, 129 S. Ct. 1749 (2009) (No. 08-681), 2009 WL 45980 at *44. Although the OSG did not support this assertion with any citation, id., the Supreme Court in Nken, in holding that deportation of an alien before the resolution of an appeal from her order of removal does not constitute irreparable injury, expressly relied on this representation, stating that, “those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. See Brief for Respondent 44.” Nken, 129 S. Ct. at 1761.