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Did the Department of Justice Flat Out Lie to the Supreme Court?

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By Casey C. Sullivan, Esq. on August 31, 2016 12:03 PM

In 2003's Demore v. Kim, the Supreme Court ruled 5-4 that permanent residents were not entitled to bail when in custody and appealing deportation rulings. The opinion's logic was based, in part, on the brevity of those detentions. Government statistics, provided to the Supreme Court by the Department of Justice, showed that removal proceedings concluded quickly, that deportation appeals were rare, and that those appeals, too, were resolved with relative speed.

In a troubling revelation, the Office of the Solicitor General now admits those statistics were wrong, according to a report by Jess Bravin in the Wall Street Journal.

Incorrect Calculations and Significant Errors

In a letter to the Supreme Court, acting Solicitor General Ian Gershengorn lays out the extent of the errors -- and they were fairly extensive. As Demore made its way to the Supreme Court, after the Ninth Circuit ruled that permanent residents were entitled to basic due process, including bail, during deportation proceedings, the Department of Justice asked the Executive Office for Immigration Review for statistics regarding removal proceedings for aliens who had been mandatorily detained.

Those numbers made their way into the Department of Justice's briefs to the Court and finally into Chief Justice Rehnquist's opinion itself. They said, for example, that removal proceedings were completed in an average of 47 days and a median of 30. That deportation orders were appealed in only 15 percent of the relevant cases. That those appeals were typically resolved in just about four months.

The numbers were wrong.

The EOIR's calculation included "significant errors," including excluding 15,000 relevant cases and using inadequate definitions, Gershengorn's letter states. For example, the EOIR defined a case as "completed" when there was a change of venue or case transfer, making it seem like detainees were released earlier than they actually were.

Several of the errors strengthened the government's position that detentions were short and, thus, bail unnecessary. But in other instances, the new data shows that detentions were actually shorter than first understood. For example, when the missing cases are brought in to the EOIR's statistics, the average completion time for mandatory detention cases, where there was no appeal, drops to 34 days, instead of the 47 reported. Yet, in cases where there was an appeal, case completion took an average of 382 days and a median of 272, not the four or so months the Court believed.

Remedial Action?

In their letter to the Supreme Court, the Department of Justice apologized for the errors and said that the mistakes were inadvertent. Safeguards have been put in place to prevent the DOJ from providing inaccurate information in the future, according to the letter.

Yet, those inaccuracies still remain in the Court's opinion. What's to be done? Gershengorn suggests that the Court "may wish to amend its opinion to delete" references to the incorrect information.

And the revelations will likely have an impact in the upcoming term. As the SG notes, Demore is relevant to the upcoming case of Jennings v. Rodriguez. That, again, is an appeal from the Ninth Circuit. In this case, the Ninth had ruled that aliens who face mandatory detention are entitled to bond hearings, this time if their detention lasts more than six months.

The DOJ has yet to file any briefs with the Court in that case, but when they do, let's hope they check their math.

Editor's Note, September 1st, 2016: This piece has been updated with more information on the difference between the actual length of detention in cases that were appealed and the numbers the Court was originally given.

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