From Rakoff’s 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.
Turns out he was right.
The Solicitor’s General Office sent a letter (via SCOTUSBlog) to the Court to “clarify and correct a statement contained in the government’s brief in Nken v. Holder.” The letter is particularly noteworthy in that it provides a window into how the SG prepares for oral argument when it solicits information from other branches of the government. What is even more interesting is that the United States government will *change its policy based on its representation to the Court*! They will even provide for the return of an alien deported if he prevailed on certain grounds.
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 revised policy from the DIrector of ICE is available here.
So my final question concerns timing. Why was this dumped on the eve of the biggest immigration case of the term? Rakoff’s order is from 2/10/12. The ICE policy is dated 2/24/12. The DOJ claimed they stopped relying on Nken after the middle of February.
What took 2 months to figure out for this letter?
Update: A subsequent WSJ piece addresses the timing:
The government had until last week to comply with Judge Rakoff’s order or appeal. In an extraordinary move, the Justice Department decided to disclose virtually the entire email correspondence rather than the limited portion Judge Rakoff ordered released, and send a letter to the high court correcting its prior assertions.
They went up to Rakoff’s deadline. I wonder if Rakoff’s deadline was in any way tied to the close of the Court’s argument calendar?
Also, Deputy SG Drebeen (who is a total badass) signed the letter. The letter noted that the SG and Principal Deputy Solicitor General were recused. Why?