Something strange is afoot and it may have wide implications for immigrants who get deported while their appeals are pending. We have no confirmation at this time of what is happening, but several recent signs make it seem that ICE is either significantly overhauling or scrapping entirely its “return policy.” If that is true, it would be an unlawful departure from prior representations by the Department of Justice and may require the Circuit Courts and possibly the Supreme Court to overhaul their stay of removal policies.

Background on the “Return Policy”

Under the current law if you are ordered removed and file a federal circuit court appeal, your deportation isn’t automatically stopped. Unless a federal court orders ICE to stop your deportation while the appeal is pending, you may be deported while the appeal is pending and have to await the results from outside the United States.

You can ask the circuit court to grant a stay of removal, but that can be incredibly difficult in some circuits. Getting a stay of removal got a lot harder in 2009 when the Supreme Court issued its decision in Nken v. Holder. In Nken the court said the circuit courts can only grant a stay of removal if you can prove you’ll suffer “irreparable harm” (among other things) and that just being deported isn’t “irreparable harm” because you can always come back if you win the appeal.

The Supreme Court’s ruling was based on a statement by the Solicitor General in the government’s brief and at oral argument that the government had a formal policy of returning people to the United States after they won on appeal.

But for those of us who have been litigating these issues for years, that statement stood out as odd. The government hadn’t previously announced that it had a formal return policy. Ultimately though FOIA litigation the documents that were revealed showed there wasn’t actually a return policy – that the Solicitor General’s statement to the Supreme Court wasn’t true. Then, in an incredibly embarrassing move for the Department of Justice, the Solicitor General sent the Supreme Court a letter explaining it had misstated the existence of the policy and promising to make sure one is in place and to tell future litigants about it. That history is summarized in much more depth in this article by Nancy Morawetz.

Unfortunately, the Nken letter didn’t solve the problem. The genie was already out of the bottle. The Supreme Court had already made it harder to get a stay of removal and relied explicitly on the false statement of the Solicitor General about there being this formal return policy as its justification.

After the Nken letter the government adopted a formal “return policy” and it communicated that policy via its website here.

What Has Changed?

Since the Nken embarrassment, parties have continued to complain that the “return policy” isn’t really much of anything and that successful appellants are routinely denied the right to return to the United States after they’re deported. In fact, I’m in a bit of a fight right now with ICE over the return of a client who has been a permanent resident of the U.S. for years, has won his appeal, and whom ICE refuses to allow to return to the United States.

Until last month ICE was still claiming it had a “return policy,” but now we’re not so sure.

   1. The Return Policy Was Recently Removed From the ICE Website

First, the ICE website outlining its return policy has been taken off line. If you go to the old return policy page, [https ://], this is what you see now:

Return Policy Page Updated

Just a week ago it looked like this:

Old Return Policy

If you need a copy of the whole policy, you can still get it on here.  I’ve also made a .pdf file of the old policy which you can download here:  FAQs on Facilitating Return for Certain Lawfully Removed Aliens _ ICE.

   2. ICE Has Started to Delay Return of People Who Won and is Actively Looking For Reasons to Not Bring Them Back

This second change may be limited to certain cases (ICE isn’t saying), but we’re noticing in the last few months that ICE is actively looking reasons to not bring deported immigrants back and is making it harder to utilize their return policy.

In one case I’m litigating my client was a permanent resident and was deported for a criminal conviction. His conviction was eventually vacated because of an egregious violation of his constitutional rights and ultimately the prosecutor dismissed all charges against him. That means he didn’t just win on a technicality – they decided not to pursue him for criminal charges at all. The problem is that he was already deported because we couldn’t get a stay of removal. The sole reason we couldn’t get a stay of removal was that Nken says you can always come back if you win on appeal.

But even after we’ve won ICE says it’s not sure it’s willing to bring my client back.

The old return policy explains what your status will be if you are deported by win on appeal:

“ICE will regard you as returning to the status you had just prior to the administrative order that the federal court has reversed or vacated. For instance, if you had been a lawful permanent resident (LPR) just prior to the entry of a final removal order in your case, and the court’s decision vacates that order, ICE will consider your LPR status to be reinstated. LPRs are generally permitted to enter and reside in the United States, and ICE will therefore generally facilitate your return to the United States. Because ICE regards you as returning to your prior status, ICE will not treat you as an arriving alien unless you had been charged as an arriving alien prior to removal.”

That statement is pretty unequivocal about who gets to return. But in my recent case ICE won’t say whether it will actually bring my client back. Initially ICE said absolutely not. Then when we threatened to sue, ICE said they would consider it, but now in the last month they’ve grown completely silent.

Multiple times since then ICE has communicated excuses for not wanting to bring our client back. And each time we’ve pointed them back to their formal return policy and the unequivocal statements made in Nken. Only to be met with more silence.

So, What’s Next?

This issue will likely end up back in court.

Of course a new president has the right to change executive policies like this one, and it shouldn’t come as a surprise that President Trump would do so.  The problem here is that a body of case law that makes it easier to deport immigrants relies entirely on the existence of this return policy. If we file an appeal and win, but our client gets deported while it’s pending, he must be allowed to return. If he isn’t allowed to return, then the right to an appeal becomes mere ceremony and isn’t worth anything. And if that’s the case, then courts will have to revisit the stay of removal policy and perhaps start granting more stays of removal to prevent people from being permanently deported even when that process is later found to have been flawed or entirely unlawful.