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Justice Department Is Illegally Failing to Publicly Post Thousands of Decisions in Immigration Cases, New York City Nonprofit Tells Court

Oct. 17, 2018

Justice Department Is Illegally Failing to Publicly Post Thousands of Decisions in Immigration Cases, New York City Nonprofit Tells Court

New York Legal Assistance Group Can’t See Decisions That Affect Its Clients, Sues Board of Immigration Appeals for Access

WASHINGTON, D.C. – The federal government is illegally failing to publicly post thousands of final orders and opinions in immigration cases and should be ordered to post them online, the New York Legal Assistance Group (NYLAG) said in a lawsuit filed today by attorneys at NYLAG and Public Citizen.

The Board of Immigration Appeals (BIA), which is a component of the Executive Office for Immigration Review (EOIR) within the U.S. Department of Justice, makes the unpublished orders available to immigration judges and government attorneys but not to immigrants or their lawyers. The orders are required to be publicly posted under the Freedom of Information Act (FOIA), and the unequal access puts NYLAG clients at a disadvantage, the suit says.

The suit, filed in U.S. District Court for the Southern District of New York, asks the court to order all decisions made since 1996 to be published online. Public Citizen Litigation Group attorneys, along with NYLAG attorneys, are representing NYLAG.

“We are trying to help clients with one hand tied behind our backs,” said Danielle Tarantolo of NYLAG, a New York City nonprofit that provides free legal services to low-income New Yorkers in a variety of areas, including immigration. “The government lawyers seeking to remove our clients rely on these unpublished decisions, as do immigration judges and the BIA itself – but we cannot even access this body of law. The government’s information advantage is fundamentally unfair.”

The BIA hears appeals in cases adjudicated by immigration judges and district directors of the U.S. Department of Homeland Security. Over the past decade, the BIA has voted to designate approximately 30 decisions per year as precedential, which means that BIA publicly posts them online. But thousands of the BIA’s decisions are unpublished and are not accessible in an electronic format to the public, including immigrants and their advocates and attorneys, as required by FOIA.

On June 8, NYLAG submitted a FOIA request asking the BIA to comply with its statutory obligations to post online all unpublished decisions since Nov. 1, 1996, and to make all future unpublished decisions available in the electronic reading room. EOIR denied NYLAG’s FOIA request, and NYLAG submitted an administrative appeal of the denial. NYLAG filed suit after failing to receive a determination on its administrative appeal by the statutory deadline.

“The government’s refusal to publicly post these decisions undermines FOIA’s goals of piercing the veil of government secrecy and opening agency action to the light of public scrutiny,” said Public Citizen Litigation Group attorney Patrick Llewellyn. “The law is clear that these decisions must be publicly posted in an electronic format. We hope that the court will promptly order the government to remedy its decades-long violation of FOIA’s clear requirement.”

Read the lawsuit (PDF).