At oral argument Friday, July 24 in Pasadena, Ninth Circuit Judge Kim Wardlaw admonished a United States Department of Justice attorney for citing a recent Los Angeles Times article entitled, “Sex offender accused of assaulting teen was in U.S. illegally, officials say.”

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The matter originated as a preliminary injunction issued in Alejanro Rodriguez et al. v Timothy Robbins et al. #CV11-0287 2012 WL7653016 (not reported)(C.D. 2012). There, the ACLU successfully initiated a class action on behalf of persons detained by immigration authorities in southern California. In the original published opinion, the court (Wardlaw) held that “individuals detained in Southern California for six months or longer under…immigration statutes”, are entitled to bond hearings. See Rodriguez v Robbins 715F 3rd 1127,1131-2 (0th Cir. 2013). Judge Wardlaw further emphasized: “Contrary to the Governments rhetoric, this injunction will not flood our streets with fearsome criminals seeking to escape the force of American immigration law. The District Courts narrowly tailored order provides individuals, whose right to be present in the United States remains to be decided, a hearing where decision makers can determine whether they might deserve conditional release from the prison-like setting where they might otherwise languish for months or years on end.” Id. 1146– citing Jackson v Indiana 92 S. Ct. 1845 (1972) (internal punctuation omitted).

However, at last Friday’s oral argument, Department of Justice Attorney Sarah Wilson, for whatever reason, mentioned the Times story concerning a Filipino who was released from immigration custody on bond and then was arrested for sexually assaulting a 14 year old girl.

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A basic tenant of appellate work is that attorneys cannot refer to matters outside of the record. And clearly, the L.A. Times story published two days earlier was outside of the record. Thus, it is unclear why a Department of Justice appellate attorney would make such a reference, especially in light of the national controversy recently ignited at the death of Katharine Steinle in San Francisco. Judge Wardlaw, angered by the mention, wondered aloud whether Federal officials had actually leaked the story to the LA Times. Although the government denied the allegations, Judge Wardlaw ominously cautioned: “You may be getting another order to tell us exactly who the source for that story was.”

As the controversy over illegal immigrants committing crimes continues to simmer (learn more about criminal convictions as a basis for immigration consequences, including deportation), some judges and officials have expressed little patience with demagoguery. It is surprising therefore at the least, that a Department of Justice Attorney would mention such a newspaper article to any Federal appellate tribunal.