Immigration Appeals and Litigation

Ninth Circuit Questions Whether DOJ Leaked

A bizarre and disturbing oral argument at the Ninth Circuit this morning raised questions of whether the Department of Justice had leaked confidential immigration information to the LA Times to influence a Federal Court considering whether to allow detained immigrants to post bonds.

The issue in the case is whether detained immigrants whose appeals are taking more than 6 months should be allowed to ask Immigration Judges for a bond.  The Department of Justice opposes allowing immigrants to make these requests, called “Rodriguez Bonds,” which are currently permitted in the Ninth Circuit.  An oral argument on the subject was scheduled for today in California.  Then, curiously, the LA Times ran a story four days ago citing anonymous “federal authorities” claiming that a sex offender who had been released on one of these bonds had committed a new crime.  The timing of the story was odd enough, because it ran in a newspaper near the court, and it cited anonymous sources in the federal government on the very subject that was before the court.

More than that coincidence angered the court this morning.  Because when the Department of Justice’s attorney began her argument, she specifically referenced that newspaper article in support of her position.  That might not seem odd to everyone, but federal appeals in the immigration context are strictly limited to the record that already exists.  You are never allowed to bring in new evidence, like a newspaper article, on appeal.  It’s not just never done; it’s completely inappropriate, because it asks the court to consider more than the court is allowed to consider.

Judge Wardlaw wondered aloud if the government had leaked the information to the LA Times to influence the case. She noted that given how the LA Times article based on anonymous federal sources explicitly criticizes her 2013 decision allowing these bonds, 4 days before that decision would be back before the court, it would not be “ethical or proper and perhaps could even be criminal to have given information to the LA Times to possibly influence the outcome of this hearing,” and she called the story’s timing “very coincidental.”  Judge Wardlaw also said that the government’s decision to specifically reference that article at oral argument made it all the more curious, because it is not part of the record on appeal. She said “I was hoping you wouldn’t raise it because it’s totally extrajudicial and it’s improper to be raised. But you raised it. So now we have to figure out what to do.”

The court said it could order the DOJ to show who leaked the confidential information to the LA Times and why, calling it “a very serious issue.”

This argument is not the first time Judge Wardlaw has taken a government attorney to task for alleged improprieties.  During an argument in January , 2015, Wardlaw and others on the panel excoriated a government attorney for defending prosecutors who had lied and withheld information to get a conviction.