In U.S.Justice Department Gave Supreme Court Incorrect Data in Immigration Case
EmailWASHINGTON—The Justice Department said it provided the Supreme Court with erroneous information that helped it win a 2003 case upholding a blanket policy of denying bail to thousands of immigrants imprisoned while appealing deportation orders.
The department, in a Friday letter to the court, said it made “several significant errors” that greatly understated the time certain aliens with criminal records spend in no-bail detention. The 2003 opinion, Demore v. Kim, cited government data to hold that “the very limited time of detention” such aliens face while their appeals are pending is too short to trigger a constitutional right to a hearing to argue for bail.
The new estimate put the average detention period at more than a year, or more than three times the four-month estimate the Supreme Court relied on with the Demore ruling.
The letter by acting Solicitor General Ian Gershengorn is the second time in four years the government has admitted providing incorrect information on immigration policy that helped it prevail before the Supreme Court. In 2012, the Justice Department told the court that it had inaccurately asserted in a 2009 case, Nken v. Holder, that officials routinely “facilitate” the return to the U.S. of deported aliens who later win their immigration appeals.
In both instances, more accurate information emerged through Freedom of Information Act requests filed by immigrant advocates who were skeptical of the government’s claims.
DEMORE V. KIM
Read the Justice Department Letter
The Demore case involved a challenge to the government’s practice of holding without bail aliens, including immigrants with “green cards,” who became eligible for deportation because they committed a crime. A federal appeals court in San Francisco found that the Constitution’s due process guarantee entitled such immigrants to a bail hearing.
By a 5-4 vote, the Supreme Court overturned the appellate ruling. Chief Justice William Rehnquist’s majority opinion relied on data from the government to conclude that resolving deportation appeals “takes an average of four months, with a median that is slightly shorter.”
“The conclusion the court drew is understandable, but it is incorrect,” Mr. Gershengorn wrote. He said the Justice Department’s Executive Office for Immigration Review re-examined the data following records requests and inquiries and determined the average detention period was 382 days, and a median of 272 days. He added the Supreme Court “may wish to amend its opinion to delete” the error.
Mr. Gershengorn said the Demore precedent “is relevant to Jennings v. Rodriguez,” a follow-up case scheduled for the court’s next term. In that case, the government is seeking to overturn an appeals court decision entitling aliens to a bail hearing after six months of detention.
The American Civil Liberties Union, which won at the lower court, filed the records request that disclosed how the immigration-review office used or omitted certain sets of data to generate information in the Demore case.
Nancy Morawetz, co-director of the Immigrant Rights Clinic at the New York University School of Law, said the government’s admission to the court, wasn’t enough. “It’s really outrageous. They say excise this sentence that relied on the wrong data but they’re not saying look at the result you got from it,” she said.
Ms. Morawetz, who was involved in both the Demore and Nken cases, said the problem stems from the solicitor general’s unusual privilege of submitting new information directly to the Supreme Court, outside the record created by the trial court. Unlike evidence from the trial record, information provided at the Supreme Court level isn’t tested through the adversary process of discovery and cross-examination that occurs in the lower courts.
Neal Katyal, a former acting solicitor general, said the office rarely makes such errors and that Mr. Gershengorn took the necessary step in the Demore case.
While the solicitor general’s office lacks the capacity to verify information supplied by the agencies it represents, “officials understand that when a brief is going to the Supreme Court, it’s a solemn obligation to try to get every jot, tittle and statistic absolutely right,” Mr. Katyal said.
“I think there is an expectation that the SG get it right and not simply be a conduit of agency representations,” said Neal Devins, a law professor at the College of William and Mary in Virginia. “This has always been true and is especially true today as the internet makes it much easier to check on factual assertions.”
