NYLAG v. Board of Immigration Appeals
NYLAG and its co-counsel, Public Citizen, brought this case to challenge the longstanding failure of the Board of Immigration Appeals (BIA) to make its judicial decisions publicly available, which meant that neither immigrants nor their attorneys could access these crucial documents to help them defend their cases and seek relief. In February 2022, the case resulted in a historic settlement, under which the BIA will for the first time make the vast majority of its decisions available to the public by publishing them online, helping to level the playing field for immigrants.
The Board of Immigration Appeals is the administrative body within the U.S. Department of Justice that adjudicates appeals from decisions made by immigration judges. The Freedom of Information Act (FOIA) requires that federal agencies make all their opinions and orders available to the public over the internet, but the Board of Immigration Appeals ignored this requirement for years and designated almost all the opinions it issues in immigration cases as unpublished and kept them secret from the public. Only a handful of opinions were made publicly available online, and a small number of additional opinions are available in hard copy at a law library in Falls Church, Virginia.
In 2018, NYLAG submitted a FOIA request asking that the Board post all of its opinions in immigration cases in its electronic reading room. When the request was denied, NYLAG and co-counsel Public Citizen Litigation Group 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.
In February 2021, U.S. Court of Appeals for the Second Circuit reversed the District Court’s decision and issued a landmark decision, holding that people can sue to enforce the Freedom of Information Act (FOIA) requirement that federal agencies post certain documents online so that they are accessible to the public.
In February 2022, the United States District Court for the Southern District of New York ordered the Board to establish an online library of its unpublished opinions – the result of a settlement between the NYLAG and the U.S. Department of Justice. 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.
Under the settlement, the Board will be 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. Posting will begin in October 2022 and will be phased in over several years. The settlement ensures that NYLAG and Public Citizen will be able to monitor the Board’s compliance and, if problems arise, seek the help of the court.
- NYLAG submitted the FOIA request on June 8, 2019
- NYLAG and co-counsel Public Citizen filed the lawsuit on October 17, 2018
- On February 5, 2021, the Second Circuit issued a decision in favor of NYLAG, finding that FOIA allows lawsuits seeking that agencies comply with FOIA’s disclosure provisions
- On February 9, 2021, the Court ordered the settlement between the Parties, which provides that the Board will make virtually all opinions available online to the public going forward, and will also retroactively make available opinions going back to 2016.