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To Err is Human, to Correct is ... Highly Unusual

By Robyn Hagan Cain on May 08, 2012 | Last updated on March 21, 2019

As a legal community, we assume that a litigant's statements to the Supreme Court are true. The limited number of cases that reach the Court each year are subject to intense media scrutiny, so surely any falsities would be quickly revealed and horribly embarrassing.

Whether or not it was an outright lie, a rare piece of faulty information made its way to the Nine in the 2009 case, Nken v. Holder, and the Court based its opinion, in part, on that faulty information. Now, some immigrant groups are asking the Court to amend its opinion to correct the mistake.

Before we get to the greater implications of such a correction, let's discuss what went wrong in Nken.

In Nken v. Holder, the Supreme Court was asked to decide whether an alien facing deportation should be allowed to stay in the U.S. while fighting the deportation order.

The majority -- relying in part on an amicus brief from the Solicitor General which stated that the government's "policy and practice" is to help deported aliens who later won their cases to return to the United States -- said that traditional stay factors, not the demanding 8 U.S.C. section 1252(f)(2) standard, govern a Court of Appeals' authority to stay an alien's removal pending judicial review.

In February, New York-based District Judge Jed Rakoff took issue with the Solicitor General's brief when ruling on a FOIA request. Several public interest groups filed FOIA requests with the Justice Department, the State Department and the Department of Homeland Security regarding the alleged "policy and practice" last year, and the Solicitor General's office claimed that internal communications about the "policy" were privileged.

Judge Rakoff asserted that there was no "policy and practice" affording aliens this kind of relief, despite the Solicitor General's indications to the contrary.

Now, the Justice Department admits that it provided incorrect information to the Court and has expressed regret that it failed in its "special obligation to provide this court with reliable and accurate information at all times," according to The New York Times.

A group of immigrants' rights lawyers have asked the Court to modify the Nken opinion. They argue that leaving the opinion as originally written could cause lower courts to rely on it in error, which would negatively impact on immigrants' rights.

SCOTUSblog notes that most Supreme Court corrections come through rehearing petitions, not ordinary correspondence with the Court. Do you think the Court will modify the Nken v. Holder opinion upon a polite request, or do the original litigants need to file a petition?

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