GSN_Sep_Final_Yumpu

Government admits providing false information
to Supreme Court
By Joshua Breisblatt
September 2016 - Last week, the
Department of Justice (DOJ) sent
a letter to the Supreme Court alerting
the Justices that it had provided
the Court with incorrect information
regarding how long certain
noncitizens were held in detention.
DOJ initially had provided this false
information to the Supreme Court
in 2002 for the case, Demore v Kim.
The Court heavily relied on the
misinformation provided by DOJ
in holding that the immigration
agencies may deny bond to immigrants
subject to mandatory detention
in removal proceedings. This
extraordinary error has contributed
to years of prolonged detention for
thousands of immigrants, denying
them access to the most basic due
process of a bond hearing.
Back in 2003, the Court found,
based on data provided by DOJ,
that in cases where an individual
was charged with removability on
grounds that trigger mandatory detention
under the immigration laws,
the average detention period was 47
days where there is no appeal, with
15 percent of immigrants who appeal
a deportation
order being
in detention for
four and a half
months. However,
according
to last week’s letter
from Acting
Solicitor General
Ian Gershengorn, the actual average
detention periods were much longer—in
fact, more than three times
longer than they had originally reported.
The letter concludes by stating
that, in light of this error, the
Supreme Court may wish to “amend
its opinion.”
Nancy Morawetz, co-director
of the Immigrant Rights Clinic at
the New York University School of
Law, who worked on the Kim case,
said the government’s admission to
the Court wasn’t enough. Speaking
to the Wall Street Journal, she
explained, “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.” The case has led to immeasurable
numbers of individuals
being kept in prolonged detention,
costing taxpayers billions despite
16
Photo: Stefano Cislaghi
the availability of a broad spectrum
of alternatives to detention.
This admission by DOJ is especially
important in light of the fact
that the Supreme Court is scheduled
this fall to hear arguments in
Jennings v. Rodriguez, a new challenge
to the prolonged detention of
noncitizens in removal proceedings.
At issue in that case is whether the
government can keep a noncitizen
who is fighting her deportation case
locked up for however long the notoriously
lengthy proceedings last,
or whether she must receive a bond
hearing after she has been detained
for six months.
A bond hearing helps ensure that
each person facing potential long
term imprisonment is afforded a
day in court—it allows an immigration
judge to make an individualized
More on page 40