Immigrant Rights Clinic scores big win in battle over government deportation policy

Nancy Morawetz '81, Professor of Clinical Law The Law School’s Immigrant Rights Clinic (IRC) won a key battle in a long-running fight with the federal government involving immigrants who are appealing deportation orders. Authorities commonly deport these immigrants while their appeals are pending, but the government contends it mitigates any potential harm because, “by policy and practice,” it helps those who win their appeals return to the U.S., the solicitor general told the Supreme Court in Nken v. Holder, decided in 2009. That was news to many immigrant rights advocates, including Professor of Clinical Law Nancy Morawetz '81, who had assisted with an amicus brief filed in Nken. Since 2005, federal appeals courts have overturned more than 7,000 deportation orders, but in the experience of Morawetz and others, wrongfully deported immigrants often have no way of returning to the U.S., or, in some cases, even learning the outcome of their cases.

Last year, the IRC, representing a coalition of rights groups, went to court, seeking to compel the Justice Department, under the Freedom of Information Act (FOIA), to turn over a group of e-mails that discuss the government’s purported policy and practice of returning deportees. In a Feb. 7 ruling, U.S. District Court Judge Jed Rakoff in Manhattan, who had personally reviewed the e-mails in chambers, ordered the Justice Department to disclose the bulk of their content. His ruling reflected strong skepticism about the government’s position. “The plaintiffs have provided substantial evidence that the judicial process may have been impugned if the Supreme Court relied upon what may well have been inaccurate or distorted factual representation" by the solicitor general, he wrote. The plaintiffs, he said, “seek to determine whether one such representation was accurate or whether, as it seems, the Government’s lawyers were engaged in a bit of a shuffle.”

IRC students Saerom Park '12 and Martha Saunders '12 worked with Morawetz on the FOIA case. One of the named plaintiffs also has an NYU Law connection: Rachel Rosenbloom '02 is a professor at Northeastern University School of Law, specializing in immigration issues. In a press release issued by the IRC following Rakoff’s ruling, Saunders said, "As it stands, people who are fighting their deportation can be deported while their appeals are still pending, and even if they win their case, the government makes no effort to return them. It's 'heads, I win; tails, you lose.'"  Saunders added, "The limited documents released by the [government] show deep confusion not only over how to return individuals who win their immigration cases, but whether to return them at all." It remains to be seen whether the e-mails will be released. The government has moved for a stay of Rakoff’s ruling while it appeals, which the IRC plans to oppose.

Posted February 14, 2012

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