NYLAG Scores Historic Victory for Immigrants, Open Government

NYLAG sued the Board of Immigration Appeals to make a secret body of case law—thousands of unpublished decisions—available to immigrants, their advocates, and the general public. After a resounding victory for NYLAG in the Second Circuit Court of Appeals, the U.S. Department of Justice entered a historic settlement. Under the settlement, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity. By giving immigrants and their lawyers full access to the Board’s opinions, the settlement will allow them to fight removal and other adverse actions with the same knowledge of case law that attorneys representing the government already have, leveling the legal playing field. 

Update: In January 2023, the Department of Justice began posting BIA decisions in an electronic reading room, as required by the settlement. You can access the reading room here. You can read more about the settlement below.

About This Case  

The Board of Immigration Appeals (BIA) is the administrative body within the U.S. Department of Justice (DOJ) that adjudicates appeals from decisions made by immigration judges. Most of the Board’s tens of thousands of decisions each year are kept secret from the public. Only a handful of opinions are made publicly available online, and a small number of additional opinions are available in hard copy at a law library in Falls Church, Virginia.  

The Freedom of Information Act (FOIA) requires that agencies make all their opinions and orders available to the public over the internet, but the Board of Immigration Appeals has ignored this requirement for years and designated almost all the opinions it issues in immigration cases as unpublished. The case arose when NYLAG, which provides free legal services to immigrants in New York, requested that the Board post all of its opinions in immigration cases in its electronic reading room.  

The BIA denied NYLAG’s request and claimed that NYLAG could not use FOIA to force it to comply with the requirement that it post its decisions online. Represented by Public Citizen Litigation Group and its own staff attorneys, NYLAG filed suit to require the Board to comply with the law.   

After a federal district court in New York agreed with the BIA’s view and dismissed NYLAG’s case, NYLAG appealed. The court of appeals reversed the district court and reinstated NYLAG’s case. “The text of FOIA’s remedial provision and the 1974 amendment to it, considered in light of FOIA’s history and purpose, make clear that Congress gave courts the authority to enforce an agency’s obligation to make certain documents publicly available.” Rejecting the government’s argument that FOIA’s proactive disclosure provisions are not enforceable, the court found that FOIA’s text, structure and purpose require the conclusion “that Congress intended to give district courts the authority to order agencies to make documents available for public inspection when they fail to comply with their affirmative obligations,” to do so. 

EOIR Implements Historic Settlement

Under the settlement approved in February 2022, the Board is required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. 

In January 2023, the Board began posting BIA decisions in an electronic reading room located here. By July 15, 2023, DOJ must post unpublished BIA decisions issued between January and September 2022; by October 15, 2023, DOJ must post decisions issued between October and December 2022; and this schedule continues until 2028, when EOIR will required to post all decisions within 6 months of their issuance. DOJ will also post past BIA decisions going back to 2016 on a rolling basis, including a batch of 2016 decisions that it must post by April 15, 2023. The full schedule is in the settlement stipulation at the link below.

If you have questions or concerns about the reading room, please reach out to dtarantolo@nylag.org. NYLAG hopes to work with the Board to resolve any issues faced by advocates.