Furman Orders 'Comprehensive' Accounting of DHS's Misleading Statements on Global Entry Ban for New Yorkers
The ruling, from U.S. District Judge Jesse M. Furman of the Southern District of New York, approved, for now, a "limited inquiry" into "deeply troubling revelations" that that the Trump administration had mislead the court in defending a lawsuit from New York Attorney General Letitia James.
July 29, 2020 at 06:12 PM
5 minute read
A Manhattan federal judge on Wednesday ordered a "comprehensive" accounting of how the Department of Homeland Security came to make false statements that caused the Manhattan U.S. Attorney's Office to retract arguments it made in defense of a policy to exclude New York from federal programs intended to expedite international travel.
The ruling, from U.S. District Judge Jesse M. Furman of the Southern District of New York, approved, for now, a "limited inquiry" into "deeply troubling revelations" that that the Trump administration had misled the court in defending a lawsuit from New York Attorney General Letitia James.
But it also warned that a more detailed investigation could be on the horizon, noting that the Justice Department to date did not "even purport to provide an exhaustive list" of false statements in order to correct the record in the case.
"For the sake of ensuring an accurate record and to help the court in deciding how to proceed down the line, therefore, it is necessary for defendants to make a comprehensive record of any and all 'inaccurate' or 'misleading' statements in their prior submissions," Furman wrote in a six-page opinion Wednesday afternoon.
The report, Furman said, must summarize who at DHS had made each assertion and "what due diligence, if any" the U.S. Attorney's Office conducted before making those arguments in court papers. The opinion also called for government attorneys to describe "who, when and how" DHS discovered the inaccuracies and alerted its counsel to the errors.
"The person or persons responsible for the report should be prepared to testify about how it was compiled in the event that the court determines that is appropriate," Furman wrote.
The filing, Furman said, is due by Aug. 12
James' office said in a court filing late Tuesday that it was seeking fees and costs in the lawsuit, after DHS on July 23 abruptly reinstated New York New York to the Trusted Traveler and Global Entry programs, which allow low-risk travelers to receive expedited clearance and avoid long lines at airport security.
Government lawyers later said that DHS acknowledged that it had incorrectly asserted that New York was unique in its refusal to give federal authorities access to state Department of Motor Vehicles records without a court order, a statement that formed its "central argument" for banning New Yorkers from the programs.
According to the filing, multiple states, Washington, D.C., and a U.S. territory all had similar prohibitions against sharing information with the federal government. Acting U.S. Attorney Audrey Strauss moved to withdraw the government's motions for summary judgment and to dismiss the suit, both of which were premised on inaccurate information.
"Defendants deeply regret the foregoing inaccurate or misleading statements and apologize to the court and plaintiffs for the need to make these corrections at this late stage in the litigation," Strauss said in the July 23 filing.
James' office, in its own filing Tuesday night, rejected the federal government's argument that the stunning reversal amounted to a "change in law," which rendered New York's lawsuit moot. Instead, James said, the state was entitled to full relief on its claims, including fees, costs and "additional relief for defendants' imposition and maintenance of a ban that they have now conceded was without factual foundation."
According to James, officials at DHS had not given her office any assurances that they wouldn't try to "reimpose the ban just as quickly as they lifted it."
On Wednesday, Furman ordered that both of DHS's motions be withdrawn, but said they would remain on the public docket because they "they may be the subject of further inquiry."
He also ordered briefing on whether the case should be dismissed as moot, and directed the parties to submit a joint letter by Aug. 10 updating the court on the settlement negotiations.
James and New York Gov. Andrew Cuomo have long argued that New York was being singled out for political retribution in response to its so-called Green Light Law, which restricted information sharing with federal immigration officials, as well as other policies that put it at odds with President Donald Trump. The state has since amended its law to give federal authorities access to motor vehicle records of those who apply for trusted traveler status and for cars being shipped in and out of the country.
Last week, Cuomo called for investigations and possible criminal sanctions at DHS and castigated acting Secretary of Homeland Security Chad Wolf and his top deputy Ken Cuccinelli for using their offices to carry out acts of political revenge.
Wolf, for his part, has said that officials at DHS "remain very concerned" that aspects of the new law still jeopardized national security, adding that "we'll continue to work with our Department of Justice colleagues to see what we can do, perhaps through the legal system, to address those concerns."
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