The Board of Immigration Appeals (BIA) is the administrative body within the Executive Office for Immigration Review (EOIR) responsible for adjudicating appeals from decisions by immigration judges. The BIA’s decisions are binding on the parties in the dispute, unless overturned by the Attorney General or a federal court of appeals. The BIA designates only some of its final decisions as binding precedent—approximately 30 out of 30,000 decisions every year—and those decisions are published and publicly available online. As of 2018, however, the BIA did not make the remaining unpublished decisions publicly available in an electronic format, and it made only a small portion of them available in hard copy at the EOIR Law Library and Immigration Research Center in Falls Church, Virginia.
On June 8, 2018, New York Legal Assistance Group (NYLAG)—one of the largest immigrant services providers in New York City—submitted to a Freedom of Information Act request, asking that the BIA make all of its unpublished decisions since 1996 publicly available electronically under 5 U.S.C. § 552(a)(2), which requires that every federal agency “make available for public inspection in an electronic format” all “final opinions” and “orders.” EOIR denied NYLAG’s request, and NYLAG submitted an administrative appeal. On October 17, 2018, after EOIR and the BIA failed to respond by the statutory deadline, NYLAG filed suit in the U.S. District Court for the Southern District of New York, represented by attorneys at Public Citizen Litigation Group and NYLAG. The lawsuit contended that the BIA’s failure to make its unpublished decisions publicly available in an electronic format violated FOIA or, in the alternative, the Administrative Procedure Act.
After the lawsuit was filed, the government filed a motion to dismiss or, in the alternative, for summary judgment as to both of NYLAG’s claims. In August 2019, the district court granted the government’s motion to dismiss. The court largely adopted the D.C. Circuit’s decision in Citizens for Responsibility & Ethics in Washington v. DOJ, holding that under FOIA a court cannot order the publication of records and that the production of records to an individual requester under FOIA is an adequate remedy precluding review under the APA.
NYLAG appealed the district court’s decision to the U.S. Court of Appeals for the Second Circuit. In an opinion issued in February 2021, the court of appeals reversed the ruling of the district court and ruled in our favor. The court of appeals held that FOIA’s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents publicly available.
After the court of appeals remanded the case to the district court, the parties reached a settlement agreement under which the agency agreed to establish, by October 2022, an electronic reading room where it will post unpublished decisions issued from 2017 onward (plus some decisions from 2016), in accordance with a specified schedule. The BIA will post the first set of opinions by January 2023. To allow time for the BIA to review and redact personal information from the opinions, the settlement agreement provides for a period of several years for the BIA to post the pre-2022 opinions covered by the agreement; it sets a faster schedule for posting future opinions. On February 9, 2022, the court entered the agreement as an order of the court.