Will the Confession of Error in Brown Once Again Block the Courthouse Door? by Nancy Morawetz
The mystery of the Brown v. Barr case (see my ImmigrationProf blog post from Monday) was partially solved when Marcia Coyle at the National Law Journal obtained a copy. See Download Brown. It is still not available on any public site but can be seen here. It remains problematic that the route to a timely copy of an Solicitor General (SG) confession of error is through a nationally prominent legal reporter, but this blog focuses instead on what this filing shows. Unfortunately, the confession of error obscures how Department of Justice (DOJ) is likely to continue to try to prevent Mr. Brown from ever having his case heard in a federal court.
Mr. Brown’s petition for review to the Eleventh Circuit was dismissed as untimely, thereby depriving him of a day in court. The SG’s papers explain that Mr. Brown had been transferred between various facilities in Florida over the course of his immigration and federal court litigation. In its confession, the SG’s office concedes that the Board of Immigration Appeals (BIA) had updated addresses from both Mr. Brown and the government. The BIA nonetheless sent its decision to the wrong address. Mr. Brown, representing himself, sought federal court relief. The Eleventh Circuit, presented by Mr. Brown with proof that he had not timely received the BIA decision, chose to treat the forwarding label on his mail as the original address label. Mr. Brown filed a motion for reconsideration in which he explained that the BIA decision was mailed to his old facility and then forwarded to his current address. The Eleventh Circuit denied that motion. Had Mr. Brown not sought Supreme Court review that would have been the end of his quest for judicial review despite his many efforts as a pro se litigant.
Most disturbingly, it could well be that the SG actions in connection with its confession will also serve to deny review. It appears that the SG reached out to the BIA and arranged for it to reissue its decision. Although the reissued decision is presented by the SG as providing Mr. Brown with a new opportunity to seek federal court review, it is far from clear that it will offer Mr. Brown any such opportunity. The reissued decision is dated February 27, 2020. Assuming Mr. Brown received the reissued BIA decision, there was nothing indicating that it required any action on his part. He had received the same underlying decision before and had gone to the Eleventh Circuit and the Supreme Court. At the time, he was still waiting to hear about his case at the Supreme Court.
The timing of the reissued decision and the Supreme Court disposition could allow the government to once again try to deny Mr. Brown any chance at a hearing in court. The SG filed its brief to the Supreme Court on March 6, 2020 and the Court disposed of the case on April 20, 2020. It would not be at all surprising if the government now argued that Mr. Brown was supposed to file a new petition for review by March 26, 2020, thirty days after the reissued decision. One would hope, of course, that the GVR from the Supreme Court would require the Eleventh Circuit to prevent such a travesty. But at least as of this afternoon, the Eleventh Circuit did not seem to be understanding its obligations in the case. At that time, the docket stated incorrectly that the Supreme Court denied Mr. Brown’s petition for a writ of certiorari when it in fact ordered a grant, vacatur and remand. The entry was only corrected after a call from the National Law Journal.
What should happen? The Eleventh Circuit should appoint counsel for Mr. Brown and should then reinstate Mr. Brown’s petition as timely given the newly reissued decision date. If the Court does not act on its own, DOJ should make sure that it honors the expectation that a remand would provide Mr. Brown with a day in court; the Court is unlikely to have thought that its order would once more be used to slam the door on Mr. Brown as he tries to pursue his case.
What should have happened? Of course, Mr. Brown should have had fair notice from the BIA and the Eleventh Circuit should have credited his proof and heard his case. But the Supreme Court, as well, could be more cautious with confessions of error from the SG. Perhaps Mr. Brown could have received appointed counsel on his petition to protect his right to a fair day in court when the SG issued its confession of error. The Court should not expect that the SG, as an interested and opposing party, will look out for the interests of a pro se petitioner.
Nancy Morawetz is Professor of Clinical Law and faculty director for the Root-Tilden-Kern Program at the New York University School of Law. This post originally appeared on the ImmigrationProf blog.