Three years ago, the Justice Department assured the Supreme Court that although it sometimes deported immigrants while they were challenging unfavorable court decisions, it would bring those people back to the United States if they won on appeal. That was U.S. policy, the department asserted. The justices relied on that statement in deciding that immigrants would not suffer irreparable harm if they were forced to leave the country while still appealing their cases.
Now it turns out, according to U.S. District Judge Jed Rakoff, that the government's assertion may have been false. In fact, it may be that those who are wrongfully deported stand little chance of returning.
That has come out only because the Immigrant Rights Clinic at New York University challenged the government's statement after the fact. The clinic filed a Freedom of Information Act request seeking more information about the policy. But the government has refused to release much, and what has come out doesn't support the assertion that such a policy exists. Indeed, in one email that was released, a federal official wrote: "As I always tell people at parties who ask for immigration advice, 'I know how to kick people out, but not how to get them in.'"
The government's response so far has been inadequate. If the solicitor general makes a factual representation to the Supreme Court, the public should be able to verify it. The details are particularly important in this case because if the policy is shrouded in secrecy, how is an immigrant to make sure that the rules apply to him or her? Consider the case of David Gerbier, who was deported to Haiti in 2002 but later won his appeal. He spent eight years unable to return because federal officials rebuffed his requests. He rejoined his family in the U.S. only after the NYU clinic took his case.
The government should come clean. If it has no policy for returning the wrongfully deported, it should adopt new rules that do what it told the Supreme Court it was already doing. What it can't do is continue to exact punishment first and worry about miscarriages of justice later.