BOA Agrees to Post Unpublished Opinions Online in Public Citizen Settlement

“This case is a tremendous advance for freedom of information in three ways. First, to get this far, we had to win a landmark decision in the Second Circuit Court of Appeals recognizing that people can sue under FOIA to force agencies to comply with their obligation to publish records online. Second, the online library that this case will create will be of great use to immigrants and their lawyers. Third, this settlement will help DOJ and its components serve as a model of FOIA compliance, as agencies devoted to the rule of law should be.” Scott Nelson, attorney at Public Citizen and lead attorney for NYLAG in the case

Public Citizen Litigation Group won an important victory in February 2022 when the Board of Immigration Appeals agreed to post its unpublished opinions online. The settlement will allow immigrants and their lawyers access to the Board’s opinions, which will help them fight removal and other adverse actions with the same knowledge of case law that attorneys representing the government already have. 

The New York Legal Assistance Group is one of the largest immigrant service providers in New York City. The Board of Immigration Appeals is the administrative body within the Executive Office for Immigration Review responsible for deciding appeals from decisions by immigration judges. Unless overturned by the Attorney General or a federal court of appeals, the Board’s decisions are binding on the parties involved in the disputes, some of which go on to become binding precedent. The decisions that become precedent are supposed to be published online, making them publicly available. 

Before the lawsuit, the Board did not post its unpublished decisions online, and made paper copies of only a few available publicly at an agency library in Falls Church, Virginia.   

In June 2018, New York Legal Assistance Group filed a Freedom of Information Act request for all decisions since 1996, and asking that they be posted online in accordance with the Act. When the request was denied, NYLAG then sued, with Public Citizen Litigation Group as its lead counsel. 

The government moved to dismiss the lawsuit, arguing that FOIA’s requirement that agencies post online final decisions of adjudicated cases was not judicially enforceable. Although the district court agreed and dismissed the case, the court of appeals reversed that ruling. 

After Public Citizen’s  victory on appeal, they, along with NYLAG, negotiated a settlement of the case. Under the settlement, the Board agreed to post online all unpublished decisions issued from 2017 onward (plus some decisions from 2016), in accordance with a specified schedule. The first of the decisions were posted in January 2023. 

The settlement evens the playing field between immigrant advocates and the Department of Justice lawyers on the other side of their cases, by giving immigration lawyers access to the same Board decisions. The case also advances the goals of the Freedom of Information Act by recognizing that the Act’s requirement that agencies make certain information publicly available online, even without a specific request, can be enforced in court.