April 22, 2009
The issue in Nken v. Holder, as stated in the Question Presented, was the proper standard for deciding whether to stay removal for a person challenging a removal order. On that point, the Supreme Court decided 7-2 (over a dissent by Justices Alito and Thomas) to reject a heightened standard for the issuance of stays of removal proposed by the government. The government argued that a stay was prohibited unless the non-citizen could show by "clear and convincing evidence" that removal was prohibited as a matter of law (citing 8 U.S.C. § 1252(f)(2)). However, the Court went on to describe an appropriate stay standard in ways which will make it more difficult for immigrants to vindicate their claims.
The National Immigrant Justice Center led the effort to produce an amicus brief arguing that harsher standards supported by the U.S. government for granting stays of removal would harm immigrants with legitimate claims to asylum or other protection. That brief was submitted on behalf of the American Immigration Lawyers Association, Catholic Legal Services, Archdiocese of Miami, the Florida Immigrant Advocacy Center, Hebrew Immigrant Aid Society, the National Immigration Law Center, Public Counsel, World Relief, and the National Immigrant Justice Center.
View the Supreme Court documents in this case on the SCOTUSblog.
The amicus brief filed by NIJC and other groups in 2008 had pointed out that it is very difficult for a noncitizen to return to the United States once removed.
[I]n practice it is extremely difficult for an alien to return once he has been deported, even if his petition for review has been successful. There is no class of visa or other formal reentry mechanism available to aliens who have been previously removed but have successfully challenged their removal orders. As a result, trying to obtain travel documentation that will permit a returning alien to reenter the United States can be onerous, extraordinarily time-consuming, and often entirely improvisatory. Furthermore, the cost associated with return travel and documentation (including the nearly indispensable assistance of counsel in such a difficult endeavor) may be so burdensome that it effectively precludes the petitioner from returning at all.
This reflected NIJC's experience. For instance, in the case of Leonel Jimenez, NIJC prevailed at the Court of Appeals, but the government refused to allow Mr. Jimenez to return to the United States. NIJC ultimately sought the assistance of the Court of Appeals. The government issued the necessary documentation in that case, but only after pro bono attorneys had written numerous emails and letters to ICE, and then filed this extraordinary motion with the Court of Appeals.
However, that was not the Government's position in the Nken case. There, its brief stated 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. The Supreme Court cited the government’s statement in its decision.
A group of immigrant rights organizations filed a Freedom of Information Act lawsuit, seeking the documentation which underlay that claim by the Government. Federal District Court Judge Jed Rankoff eventually reviewed emails from the government, and found that "the judicial process may have been impugned if the Supreme Court relied upon what may well have been distorted or inaccurate factual representation." Here is a link to the documents from that litigation. Senator Leahy then sent a letter to Attorney General Holder, asking the government to correct any misstatements.
The Office of the Solicitor General eventually sent a letter to the Supreme Court to explain what had happened. The government also adopted a return policy, a policy which it had claimed to possess years earlier.
On May 4, 2012, NIJC and its fellow amici asked the Supreme Court to amend its decision in Nken to eliminate any references to the government's purported policy of fostering return.
The Supreme Court has not yet reacted to these developments.