American Immigration Lawyers Ass’n v. Executive Office for Immigration Review

In November 2012, the American Immigration Lawyers Association (AILA), a national association of attorneys and law professors who practice and teach immigration law, submitted a Freedom of Information Act (FOIA) request to the Executive Office for Immigration Review (EOIR). AILA sought access to complaints against immigration judges, records relating to the resolution of those complaints, and an index of those requested records that constitute final opinions and orders made in the adjudication of the complaints. EOIR refused to release the requested records and failed to publish electronically, as required by FOIA, those requested records that constitute final opinions and orders made in the adjudication of complaints.

Acting as counsel for AILA, Public Citizen filed suit to compel the disclosure of the requested records and the publication of complaint resolutions because they constitute final opinions and orders. After litigation ensued, the government began producing documents with redactions. However, AILA challenged in litigation the government’s refusal to disclose based on FOIA Exemption 6 the names and certain identifying information about immigration judges who are the subject of complaints and the government’s refusal to publish complaint resolutions. AILA also challenged the government’s redaction of information that the government deemed “non-responsive” from otherwise responsive records. The district court granted summary judgment to the government on the Exemption 6 claim and the affirmative publication claim. It granted in part and denied in part AILA’s claim with respect to disclosure of redactions marked as “non-responsive.”

On appeal, the D.C. Circuit held that the district court erred in approving the categorical withholding of immigration judges’ names and remanded for reconsideration of the application of Exemption 6. It also reversed the district court’s order approving of the redaction of purportedly non-responsive material from responsive records, finding that such redactions have no basis in law. The D.C. Circuit upheld the district court’s decision that resolutions of complaints against immigration judges are not final orders or opinions subject to affirmative disclosure under FOIA. On remand, the government produced information that it had once withheld as nonresponsive. The district court then ordered that the government disclose the names of some immigration judges but approved the government’s withholding of other names.  The parties then agreed to a settlement of the attorney fees we incurred in litigating the case.