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. The remaining unpublished decisions, however, are not made publicly available in an electronic format, and only a small portion of them are available in hard copy at the EOIR Law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York City—submitted a request under the Freedom of Information Act to the BIA, requesting that the BIA make all of its unpublished decisions since 1996 publicly available in an electronic format under 5 U.S.C. § 552(a)(2) as the BIA’s decisions, whether published or unpublished, are “final opinions” and “orders” of the agency. 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. NYLAG contends that the BIA’s failure to make its unpublished decisions publicly available in an electronic format violates FOIA or, in the alternative, the Administrative Procedure Act.
On March 4, 2019, the government filed a combined motion to dismiss and motion for summary judgment, arguing that the court could not order the agency to publicly post unpublished BIA decisions online under either FOIA or the APA. The government also contends that the BIA’s unpublished decisions are not subject to § 552(a)(2), complying with § 552(a)(2) would be an undue burden on the agency, and that a 2016 amendment to FOIA limits the temporal scope of records required to be posted online. On March 29, 2019, NYLAG filed a combined opposition to the government’s motion and cross-motion for summary judgment, explaining that—under the plain language of FOIA—the court can order public posting of records online in compliance with § 552(a)(2); moreover, if the court concludes otherwise, NYLAG lacks an adequate remedy under FOIA and can therefore obtain this relief under the APA. Additionally, NYLAG explained why the BIA’s unpublished decisions are “final opinions” and/or “orders” subject to § 552(a)(2), that complying with a statutory mandate cannot be an undue burden, and that unpublished BIA decisions issued on or after November 1, 1996, are subject to public posting online. Summary judgment briefing is expected to conclude in May 2019.