Wednesday, February 10, 2021

Board of Immigration Appeals must post its unpublished rulings on the Internet

The Freedom of Information Law is more complex than you think. Not all government documents are freely available to the public. This is particularly the case under the federal FOIL law. This case asks whether the Board of Immigration Appeals must make available the many non-precedential, unpublished opinions it issues with respect to the cases that come before it. The Second Circuit says these records are covered by FOIL and they must be produced. 

The case is New York Legal Assistance Group v. Board of Immigration Appeals, issued on February 5. The BIA is like the court of appeals for immigration cases. It issues written opinions in resolving individual disputes, but many of those rulings are impossible to find because they are considered non-precedential and the Board does not make them available on its website. But immigration lawyers want to see these rulings for the same reason that federal practitioners want to see the non-precedential rulings issued by the Circuit courts. While they technically are not precedential, they do give insight into how the courts resolves these issues, and practitioners want to know about decisional patterns that are underneath the radar. Having access to these rulings makes you a better lawyer.

But this is not an easy case. The federal FOIL law has a million exceptions and wiggle room for the government to resist producing records like this. Under the law, the agency must "make available for public inspection in an electronic format final opinions ... and orders, made in the adjudication of cases." Federal courts have authority under the law to prevent the agency "from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Despite this clear language, other federal circuits have ruled in favor of federal agencies with respect to its written rulings. Since the Second Circuit rules in favor of broad access to these materials, we have a circuit split that may have to be resolved by the Supreme Court. Even this case is a split verdict: the Second Circuit rules in plaintiff's favor by a 2-1 vote (Lynch and Jacobs in the majority, Park in dissent).

The critical factor for the majority in this case is that the FOIL's remedial provision requires the agency to make the documents available on the Internet. So we have a dispute about the scope of the relief available to plaintiff. While plaintiff says the documents must be posted in an "electronic reading room," the agency says they only have to be made available to the party requesting the documents. The Second Circuit sides with the plaintiff on this issue. In dissent, Judge Park writes that the remedy of posting the opinions on the BIA website is unprecedented and that the normal remedy is to simply make the documents available to the plaintiff. 

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