Victory Denied: After Winning On Appeal, An Inadequate Return Policy Leaves Immigrants Stranded Abroad (2014, Tianyin Luo and Sean Lai McMahon)

Today, many immigrants who have won their deportation cases on appeal before a circuit court—a filing called a ‘‘petition for review’’—are stranded in their countries of origin, with no way to return to the U.S. This problem is caused by the government’s insistence on deporting immigrants who have a legal right to remain in the United States before they have a chance to prove that right in court. Many immigrants try to stop these premature deportations by asking the courts to issue a stay of removal. The government opposes many of these stays, on the theory that if the immigrant wins her appeal while she is outside the country, she can then return to the U.S. As this report demonstrates, this theory is inoperative in practice. Immigrants who win their cases on appeal while abroad are often effectively denied the benefit of their legal victory, as they are ineligible to be returned under the government’s existing ‘‘return policy,’’ or face immense practical obstacles to returning that prevent them from doing so.

This report illustrates how the government’s inadequate return policy, and its persistent unwillingness to repair this policy, negatively affects individual immigrants’ cases and the entire process of judicial review. It also presents newly acquired government documents that show that the government is well aware of deficiencies in the policy, even as it continues to assure courts that the return policy make stays of removal unnecessary. The introduction of the report provides a brief overview of the issue and explains how the inability to return after winning a case on appeal is detrimental to immigrants. Part I describes the history of the problem, stemming from the Supreme Court case Nken v. Holder, 556 U.S. 418, in 2009, through 2014. It explains how the pattern of obfuscation by Executive Branch agencies, in which entities from the Office of the Solicitor General to the Office of Immigration Litigation have misrepresented, dodged, and willfully ignored the scope of the problem, demonstrates how immigrants have never had a meaningful opportunity to return after winning their case on appeal. Though in Nken, the Supreme Court based its decision in part on the assumption that deported immigrants can return to the U.S. after winning their case in court, the report highlights how this assumption was built on a misrepresentation by the Solicitor General in 2009, and how lower courts, attorneys, and immigrants continue to rely on the assumption. The report further explores how courts have never had the opportunity to meaningfully review this policy and this false assumption, as in the years since Nken, efforts by the government to repair its own error have been perfunctory. It shows this with evidence from a recent FOIA case against the Department of Justice, which indicates that as late as 2013, the Department of Justice knew that immigrants were struggling to return to the U.S. after winning their appeals cases, and that those unable to return may be unable to continue their cases before an immigration judge, yet still sought to suppress the presentation of the issue before a circuit court of appeals. Meanwhile, the government continues to assure circuit courts that its return procedures are sufficient to prevent irreparable harm to those deported before they win their cases.

Part II illustrates the continuing inadequacies of the return policy with the stories of immigrants who have faced enormous obstacles trying to return to the U.S., despite having won their cases on appeal. It explores how the guiding documents of the return policy – one agency policy directive and a letter from the Office of the Solicitor General – fail to adequately include many immigrants who have meritorious claims for staying in the United States, including asylum-seekers, victims of serious crimes and victims of human trafficking. The report explains how the policy places these immigrants in a double-bind, as they not only are unable to return to the United States to press their claims, they are unable to fight their case from abroad because of jurisdictional problems. The report further highlights how even for those immigrants who are entitled to return to the United States by the terms of the existing policy, the practical and bureaucratic obstacles are so enormous that they can effectively foreclose these immigrants from returning. Indigent immigrants are left out in the cold since they lack the funds to arrange travel back from the places to which they were deported.

Part III provides a recommendation to circuit courts. The report asks courts to presume that removal from the United States before an immigrant’s appeal is complete is an ‘‘irreparable injury’’ to her case, such that she should be allowed to stay in the U.S. until her case is finished. The report describes the necessity of this approach for protecting judicial review, given the great difficulty immigrants face getting the benefit of their victory in court once they have already been deported.