Solicitor General's office at Main Justice in Washington. Credit: Mike Scarcella / NLJ

A rare confession of error by the U.S. Office of Solicitor General to the U.S. Supreme Court may give a pro se prisoner in an immigration case another chance to convince a federal appeals court not to approve his removal from the country.

The prisoner, Jamaican-born Andrew Brown, filed a petition for review in the Supreme Court claiming that the U.S. Court of Appeals for the Eleventh Circuit incorrectly dismissed his appeal as untimely. He argued that the federal Board of Immigration Appeals had mailed its final decision on his removal to the wrong prison address and that prevented him from meeting the appeal deadline.

In the Supreme Court, U.S. Solicitor General Noel Francisco told the justices that the Board of Immigration Appeals and the government agreed now that the board mailed its original decision 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 in Florida of two counts of trafficking in cocaine and sentenced to eight years in prison on each count. The Board of Immigration Appeals issued its final denial of his removal from this country July 13, 2018, and mailed it to the Wakulla Correctional Institution. Brown, however, was at another Florida prison, Liberty Correctional Institution.

The delay in receiving the board's decision caused Brown, who had earlier notified the board of his Liberty 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 government, in the brief it filed in the appellate court, 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 that "the board sent notice of its decision to the Wakulla Correctional Institution," but contended that the record was "ambiguous" as to whether Wakulla was the wrong address.

The government also argued that 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 that the board's original decision was mailed to the correct address—Liberty—based on the mistaken view that a Liberty label appearing at the top of the board mailing was placed there by the board. That label, Brown argued, was a forwarding label placed by a Wakulla prison official.

Francisco, the solicitor general, told the Supreme Court that the Justice Department now agreed the board mailed its original decision to the wrong address—Wakulla—and that Brown's description of the mishap 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—both in the Eleventh Circuit and at the Supreme Court—are not easily available to the public. Federal civil procedure and appellate rules issued in 2009 impose certain restrictions on access to immigration filings in the 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 nor on 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 work-around 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 that 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.

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