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N.Y. Immigrant Advocacy Group’s Open Records Case Revived (1)

Feb. 5, 2021, 4:04 PM; Updated: Feb. 5, 2021, 7:18 PM

An organization that provides legal assistance to immigrants in New York can move forward with its suit seeking access to non-precedential opinions of the Board of Immigration Appeals, after a divided Second Circuit held Friday that federal courts can order government agencies to make certain records available to the general public under the Freedom of Information Act.

The New York Legal Assistance Group aids low-income clients in immigration proceedings, including removal and asylum cases. The group sought access to all “unpublished opinions” issued by BIA since 1996 and going forward, to aid in the representation of its clients. These opinions aren’t routinely made available to the public.

The group invoked FOIA’s requirement that government agencies “make available for public inspection in an electronic format...final opinions...[and] orders, made in the adjudication of cases.” But a district court dismissed the suit, concluding that FOIA’s remedial provision allows courts to order agencies to produce documents to the complainant, but not to the general public.

The U.S. Court of Appeals for the Second Circuit reversed. The text of the remedial provision, considered in light of FOIA’s history and “purpose of opening government actions to public scrutiny,” makes clear that “Congress gave courts the authority to enforce an agency’s obligation to make certain documents publicly available,” the court said.

The case isn’t over, the court noted, as BIA also argues that its non-precedential orders are outside the scope of FOIA’s “public inspection” language, and that NYLAG’s request is unduly burdensome.

The opinion was written by Judge Gerard E. Lynch and joined by Judge Dennis Jacobs.

Judge Michael H. Park dissented. The “complainant, and not the general public, is the intended beneficiary of FOIA’s judicial remedies,” Park said.

“For too long,” the BIA “has shrouded its orders in secrecy, leaving immigrants at a disadvantage in proceedings that are already stacked against them,” said Beth Goldman, NYLAG president and attorney-in-charge. “Today the Court of Appeals confirmed that the Freedom of Information Act does give courts the power to shine light on this body of ‘secret law,’ and keep agencies like the BIA accountable to immigrants, their lawyers, and the public.”

Public Citizen Litigation Group and NYLAG attorneys represent the plaintiff.

The case is N.Y. Legal Assistance Grp. v. Bd. of Immigr. Appeals, 2d Cir., No. 19-03248, 2/5/21.

(Updated with comment from NYLAG in eighth paragraph.)

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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