DOJ Announces Assisting The Return Of Those Wrongly Deported

In Nken v. Holder, the Supreme Court made an official acknowledgement of an announcement by the Justice Department that many immigration lawyers would consider a great improvement, if the Justice Department lives up to what it promised to the Supreme Court -- it will provide effective relief to people they deported who then win their appeal after being deported.

In Nken v. Holder, the main issue was what standard to apply when someone has an appeal pending but the government intends to deport the person despite the pending appeal. Under changes by Congress in IRRIRA, this happens often during appeals to circuit courts that challenge a decision by the BIA. It also can come up for certain types of appeals and motions to reopen that do not include an automatic stay of removal.

At page 44 of the brief for the government, the Justice Department announced what appears to be a new rule -- "By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 USC 1182(d)(5) if necessary, and according them the status they had at the time of removal."

Although the Justice Department portrays it as an established policy, it appears to be a new rule. In reality, people who are deported but then win their appeals frequently have difficulty returning to the United States. Will the Justice Department change its ways and live up to its promise to the Supreme Court or will it break its promise and leave deserving immigrants stranded overseas?

The Justice Department controversial promise even made its way into the Supreme Court's decision:

Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. See Brief for Respondent 44.

If the Justice Department does nothing other than tell an immigrant stranded in a faraway land that he or she needs to raise thousands of dollars to fly back to the United States, that would not be effective relief. The Supreme Court demands that the government facilitate their return, not leave them stranded and bankrupt overseas. We'll see if the Justice Department lives up to its promise or whether it has essentially misled the Supreme Court.