NIJC - DOJ asks 6th Cir not to order return of victorious appellant, says BIA has no authority

DOJ asks 6th Cir not to order return of victorious appellant, says BIA has no authority

Saturday, 19 July 2008

At the end of Rashid v. Mukasey, the Court of Appeals referred to "the government’s apparent concession [in its Answering Brief] that it will return Rashid to the United States for the proceedings that we now require." Indicating that it will not appeal the merits of the decision, the Govt fears the precedent of being ordered to return someone to the U.S., and asked the Court to amend that part of the Court's decision. The Govt argued that it should not have to pay for a proper removal, and gave the following version of its obligations:

The Government’s involvement in returning Petitioner would be limited to facilitating his return if he chooses to do so, by ensuring that Petitioner’s transportation is not prohibited by lack of travel documents and taking other necessary steps to ensure that his entry is effectuated at the border once he presents himself for admission into the United States. For example, the Government would first assess whether Petitioner actually wants to return to the United States. Assuming his desire to return to the United States, Petitioner would have to agree to return to the same custody status from which he was removed. Moreover, once the perimeters of his return were established, the Government would begin the process of generating the appropriate documents to facilitate Petitioner’s processing at the border. In order to generate the appropriate documentation to parole Petitioner into the United States, DHS would coordinate certain matters with Petitioner’s counsel, which would include the completion of a specific forms and other documents.

The Govt also contested the Board's role in refereeing any disputes: "the Board has no statutory or regulatory authority over the procedural nature of the processes involved in Petitioner’s return to the United States. That authority lies exclusively with DHS."

[The return of individuals to the US after a removal order is a major problem, reported by litigators throughout the country. USCIS has no forms that can be filled out; ICE and the State Dept have great trouble coordinating travel documents. The only times the process is simple is where the respondent happened to maintain a travel document, such as an LPR card. While it does seem unlikely that the Govt could be made to pay for the return, an order requiring documentation within a set time period seems not unreasonable. -CR]

Rashid Motion to Stay Mandate

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