Don’t Tread On Me: A Lesson From the Recent Past


Recently a report appeared in Bender’s immigration Bulletin (19; 1061—Oct. 1, 2014) which illustrated what is perhaps one of the greatest “Catch-22” situations in American legal history.

According to the report, the problem stems from an overzealous use of deportation procedures by ICE and other executive branch agencies against undocumented immigrants. In the scenarios described, immigrants who lose their initial court hearing but decide to appeal can be deported prior to their second proceeding. If the individual’s appeal is successful, they would be free to return to the U.S and regain the same legal status they enjoyed earlier.

But why do the courts allow this? According to the Bender report, judicial procedures were developed in response to above information presented to the Supreme Court by the government in 2009 in the Nken v. Holder case. In Nken, the Supreme Court declared that this return procedure outlined by the government sufficiently provided “effective relief” and in turn shaped their judicial policies in an identical fashion. This practice remained in place until 2012, despite the fact that returning to the United States for these individuals was usually economically impractical and often impossible.

The big problem, however, wasn’t discovered until 2012 when the Office of the Solicitor General admitted to the Supreme Court that the argument they put forth three years earlier in Nken was based on faulty information. According to a 2013 article in the NYU Law Review, this is nothing unusual, and advances an interesting argument as to why:

But it is not at all unusual as an example of unsupported factual statements by government lawyers that are used to support legal arguments. Indeed, unsupported statements appear in OSG briefs on a wide range of issues. These statements benefit from the unusual position of the government: It has access to information not available to other litigants, and it benefits from a presumption of candor that endows its statements with a claim of self-evident authority that no private litigant could match.” (

The OSG only made this admission after repeated FOIA requests from concerned parties, which underscores an important point: any entity with power must be monitored to assure honesty and integrity.

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