Appeal Revived for Florida Inmate After Rare Confession by Justice Department
The office of U.S. Solicitor General Noel Francicso concedes the government made a mistake when it argued immigration notices went to the right address after a Florida inmate was moved to a new prison.
April 21, 2020 at 06:27 PM
5 minute read
The original version of this story was published on National Law Journal
The U.S. Supreme Court is giving a federal appeals court another chance to review a Florida prison inmate's immigration case due to a mix-up on mailing addresses.
A rare confession of error by the U.S. Office of Solicitor General to the U.S. Supreme Court gives the pro se Jamaican inmate another chance to persuade the U.S. Court of Appeals for the Eleventh Circuit to reject his removal from the country.
Andrew Brown claimed the Eleventh Circuit incorrectly dismissed his appeal as untimely after the federal Board of Immigration Appeals mailed its final decision on his removal to the wrong prison, which kept him from meeting the filing deadline.
In the Supreme Court, U.S. Solicitor General Noel Francisco told the justices that the immigration board and the government now agree the mail went to the wrong address.
Although confessions of error at the Supreme Court are uncommon, Brown's case was remarkable for another reason: Many records in his case are sealed or not otherwise easily accessible. The government's brief confessing error was not publicly accessible on the Supreme Court's online docket.
Brown, a lawful permanent resident since 2012, was convicted in 2015 of two counts of cocaine trafficking and sentenced to eight years on each count. The immigration board issued its final denial July 13, 2018, and mailed it to the Wakulla Correctional Institution. Brown, however, was at the Liberty Correctional Institution.
The delay in receiving the board's decision caused Brown, who previously notified the board of his change of address, to miss the 30-day window for an appeal to the Eleventh Circuit. When he filed his appeal in September 2018, he attached documents showing the board's mistake, but the governmen brief argued the "untimely filing" should not be excused on the ground that the board's decision "was not properly served on him."
The government acknowledged "the board sent notice of its decision to the Wakulla Correctional Institution" but contended the record was "ambiguous" as to whether Wakulla was the right address.
The government also argued Brown had "not presented any definitive evidence" that "he was 'unaware' of the decision until it was too late." The appellate court dismissed Brown's appeal, concluding the board's original decision was mailed to the correct address — Liberty — based on the mistaken view that a Liberty label was placed there by the board. That label, Brown argued, was a forwarding label placed by a Wakulla prison official.
Francisco told the Supreme Court that the Justice Department now agrees the board mailed its original decision to the wrong address and Brown's description of events was accurate. The board, acting on its own legal authority, reissued its removal decision Feb. 27, giving Brown a fresh 30 days to file his appeal.
On Monday, the Supreme Court, acting on Francisco's recommendation, granted Brown's petition for review, vacated the Eleventh Circuit's decision and remanded the case to the appellate court.
Whether Brown actually gets a new 30-day window to appeal is unclear, according to immigration scholar Nancy Morawetz, co-director of New York University Law School's immigration rights clinic. She said the government could argue on remand that Brown should have filed a new appeal in the Eleventh Circuit within 30 days of the board's reissued decision, or by March 26. The Eleventh Circuit, she added, should treat the Supreme Court's April 20 order as foreclosing that argument.
Many files in Brown's case are not easily available to the public. Federal civil procedure and appellate rules issued in 2009 impose restrictions on access to immigration filings in federal courts. The rules are an attempt to balance public access and protection of privacy interests.
The Justice Department's Supreme Court brief confessing error was not accessible on the court's electronic docket or the solicitor general's website. The U.S. Supreme Court's iconic building in Washington has remained closed to the public for weeks, limiting any public access to the clerk's office.
Morawetz, in a blog post Monday, lamented the secrecy in Brown's case.
"The net result is that the Department of Justice, which succeeded in persuading the Eleventh Circuit to dismiss Mr. Brown's case, has engineered a reversal of that decision that does not in any way make the department answerable for the position it took below," Morawetz wrote. "Meanwhile, the positions of the Justice Department and the ways that they deprive pro se individuals of their opportunity for judicial review are unavailable to the public."
Brown's case, she said, shows "how bad things are" in immigration litigation. "Our workaround has been individual [Freedom of Information Act] requests, but those take time," she said. "I think that the lack of transparency in immigration litigation is a real problem."
As of late Tuesday, the Eleventh Circuit's April 20 docket entry for Brown's case showed his Supreme Court petition had been denied. The court fixed the error after The National Law Journal called about the entry. The docket notation now says Brown's petition at the high court was granted.
Read more:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFlorida Law Firms Brace for Category 5 Hurricane Milton
These Florida Courts Are Closing Amid Category 4 Hurricane Milton
$25M Award: Jury Finds Hospital Negligent After Patient Raped
The 'Biden Effect' on Senior Attorneys: Should I Stay or Should I Go?
9 minute readTrending Stories
Who Got The Work
Dechert partners Andrew J. Levander, Angela M. Liu and Neil A. Steiner have stepped in to defend Arbor Realty Trust and certain executives in a pending securities class action. The complaint, filed July 31 in New York Eastern District Court by Levi & Korsinsky, contends that the defendants concealed a 'toxic' mobile home portfolio, vastly overstated collateral in regards to the company's loans and failed to disclose an investigation of the company by the FBI. The case, assigned to U.S. District Judge Pamela K. Chen, is 1:24-cv-05347, Martin v. Arbor Realty Trust, Inc. et al.
Who Got The Work
Arthur G. Jakoby, Ryan Feeney and Maxim M.L. Nowak from Herrick Feinstein have stepped in to defend Charles Dilluvio and Seacor Capital in a pending securities lawsuit. The complaint, filed Sept. 30 in New York Southern District Court by the Securities and Exchange Commission, accuses the defendants of using consulting agreements, attorney opinion letters and other mechanisms to skirt regulations limiting stock sales by affiliate companies and allowing the defendants to unlawfully profit from sales of Enzolytics stock. The case, assigned to U.S. District Judge Andrew L. Carter Jr., is 1:24-cv-07362, Securities and Exchange Commission v. Zhabilov et al.
Who Got The Work
Clark Hill members Vincent Roskovensky and Kevin B. Watson have entered appearances for Architectural Steel and Associated Products in a pending environmental lawsuit. The complaint, filed Aug. 27 in Pennsylvania Eastern District Court by Brodsky & Smith on behalf of Hung Trinh, accuses the defendant of discharging polluted stormwater from its steel facility without a permit in violation of the Clean Water Act. The case, assigned to U.S. District Judge Gerald J. Pappert, is 2:24-cv-04490, Trinh v. Architectural Steel And Associated Products, Inc.
Who Got The Work
Michael R. Yellin of Cole Schotz has entered an appearance for S2 d/b/a the Shoe Surgeon, Dominic Chambrone a/k/a Dominic Ciambrone and other defendants in a pending trademark infringement lawsuit. The case, filed July 15 in New York Southern District Court by DLA Piper on behalf of Nike, seeks to enjoin Ciambrone and the other defendants in their attempts to build an 'entire multifaceted' retail empire through their unauthorized use of Nike’s trademark rights. The case, assigned to U.S. District Judge Naomi Reice Buchwald, is 1:24-cv-05307, Nike Inc. v. S2, Inc. et al.
Who Got The Work
Sullivan & Cromwell partner Adam S. Paris has entered an appearance for Orthofix Medical in a pending securities class action arising from a proposed acquisition of SeaSpine by Orthofix. The suit, filed Sept. 6 in California Southern District Court, by Girard Sharp and the Hall Firm, contends that the offering materials and related oral communications contained untrue statements of material fact. According to the complaint, the defendants made a series of misrepresentations about Orthofix’s disclosure controls and internal controls over financial reporting and ethical compliance. The case, assigned to U.S. District Judge Linda Lopez, is 3:24-cv-01593, O'Hara v. Orthofix Medical Inc. et al.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250