In a Win for Transparency, Court Orders Board of Immigration Appeals to Make Immigration Court Decisions Public

The Second Circuit has discovered that the Board of Immigration Appeals (BIA) should publish immigration selections, reversing an earlier federal district court docket choice.

The case challenged the Division of Justice’s longstanding apply of failing to publish immigration selections by the BIA—the best administrative court docket deciding immigration circumstances—in any discussion board that may very well be simply accessed by the general public. The choice within the case, introduced by the New York Authorized Help Group, highlights businesses’ obligations below the Freedom of Info Act (FOIA) to make sure data publicly obtainable with out people or organizations having to file particular person FOIA requests to acquire them.

The availability of FOIA that requires businesses to proactively disclose sure company data is typically referred to as the “studying room provision” as a result of businesses preserve FOIA Studying Rooms on their web sites that may be accessed by the general public. Paperwork that have to be offered to the general public with out particular requests embody: insurance policies which were adopted by the company; company manuals and directions to workers; and “remaining opinions . . . in addition to orders, made within the adjudication of circumstances.”

Unpublished selections from the BIA fall into this third class of data.

The court docket identified that greater than 30,000 unpublished selections are issued every year. Although solely about 30 selections a yr are designated as precedential—and subsequently binding on future immigration courts—unpublished selections are also cited in court docket selections.

Authorities attorneys, immigration judges, and even the BIA itself refer to those 30,000 selections though they aren’t publicly obtainable.

Underneath FOIA, paperwork that fall below the studying room provision can’t be “relied on, used, or cited as precedent by an company” except they’re publicly obtainable, or the get together opposing the company has “precise and well timed discover of the phrases thereof.” The truth that the unpublished selections have been cropping up in immigration court docket and BIA selections was very problematic.

The Second Circuit reversed a earlier ruling, discovering courts do have the power to order the BIA to make paperwork publicly obtainable, not simply obtainable to a person FOIA requester. In doing so, the court docket additionally disagreed with the D.C. Circuit, discovering it had wrongly interpreted FOIA to stop courts from ordering public disclosure.

The court docket additionally identified how the federal government’s place conflicted with the spirit of FOIA. FOIA is designed to reject “secret company regulation” and shouldn’t be used to “systematically restrict[] the entry to info of events opposing the federal government in immigration proceedings.”

The choice helps notice Congress’s intent to make sure businesses make info below the studying room provision obtainable to all—not simply to these with the sources to pursue a FOIA lawsuit. It additionally helps stage the enjoying area for immigrants who’ve had to answer authorities arguments and court docket selections based mostly on unpublished BIA selections.

The DOJ is each the dad or mum company of BIA and in command of establishing finest FOIA practices for all authorities businesses. Right here, it ought to have accomplished higher with out court docket intervention. Now, it should.

FILED UNDER: Board of Immigration Appeals, Division of Justice, FOIA