Every year, immigration courts order the deportation of hundreds of thousands of immigrants from the U.S. These decisions not only have devastating results for the individuals involved, they also apply laws and policies that divide the nation and decide elections. Yet most of these immigration court rulings are kept hidden from the public, creating a body of secret law.
That is, until now. On Feb. 5, the U.S. Court of Appeals for the Second Circuit decided that the Freedom of Information Act requires the Board of Immigration Appeals (BIA), the nation’s highest immigration court, to disclose its opinions, vacating a lower court decision and remanding the case.
That’s a great start. Now the nation’s 460 immigration judges in the 69 lower immigration courts should follow suit.
Every year, the BIA’s 23 judges issue approximately 30,000 decisions on questions such as whether individual immigrants can receive asylum in the U.S., keep their green cards, or avoid deportation because they risk being tortured or killed in their home countries. And yet, remarkably, the BIA makes publicly available on the internet only 20 to 30 of those decisions each year—less than a fraction of 1% of the total. The Second Circuit’s decision in New York Legal Assistance Group v. Board of Immigration Appeals has finally put an end to that practice.
Secret Decisions in Lower Courts
Unfortunately, the BIA is not the only court to keep its decisions in immigration cases secret. Opinions issued by hundreds of immigration judges who decide deportation cases in the first instance—and who are the last word in any case that is not appealed to the BIA—are also rarely available to the public.
Further compounding the problem, the federal judiciary has adopted special rules of procedure that prevent the public from accessing online legal filings in nearly all immigration cases appealed from the immigration courts, even though those same legal documents are made available in almost every other category of case.
For the immigrants who are in deportation proceedings, no legal decision could be more important. A loss before an immigration judge often leads to permanent exile from family and community in the U.S.—sometimes the only country they have known. In asylum cases, deportation can result in persecution and death.
As I have seen first-hand as a lawyer for clients in removal hearings, the immigration courts’ lack of transparency forces immigrants to defend themselves against secret legal standards. Even more unfair, these non-public legal opinions are available to the government lawyers who argue in favor of deportation, as well as immigration judges themselves. Government attorneys can cherry-pick among thousands of cases, citing those decisions that support their arguments for removal and simply ignoring those that help the immigrant. Immigration judges are free to do the same.
Treating like cases alike is a hallmark of any legal system, and a core tenet of due process. But because the BIA does not make its decisions publicly available, no one outside of the government knows whether the facts that justified relief in one case will lead to deportation in another.
It should come as no surprise, then, that legal scholars have found gross disparities in results from one immigration judge to the next. For example, some judges grant asylum to over 60% of those requesting it, while others deny it in almost every case they hear, according to a 2007 study.
Although these disparities surely have many causes, the risk of arbitrary and biased decision making rises precipitously when neither the litigants nor the public can monitor whether courts are being fair and consistent.
Court Secrecy Harms More Than Immigrants
The immigration courts’ secrecy harms not just immigrants caught up in the system, but everyone who cares about the nation’s immigration policy and practices. As in any other court system, immigration judges decide cases by interpreting complex and at times ambiguous statutes and regulations.
In the process, these judges play a vital role in setting immigration policy for the nation, such as by deciding whether gender-based domestic violence qualifies as a ground for asylum or whether a legal immigrant’s shoplifting conviction mandates deportation. Without access to their decisions, the public cannot hold the government accountable for its policy choices or the outcomes of these cases.
As a nation, we are grappling with our legal and ethical obligations to provide a safe haven for those fleeing violence, persecution, and poverty in their home countries, as well as to immigrants who entered the U.S. legally but then fall out of legal status. Debates over these immigration policies played a central role in the 2020 election and are sure to do so going forward. Whatever one’s views on these hard questions, we can all agree that the government should not be keeping its answers secret.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Amanda Frost is the Bronfman Professor of Law & Government at American University. Her book “You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers” was published in January 2021.