Immigration officials violated federal open-records laws denying documents to a lawyer representing a woman who wanted to legalize her immigration status, according to claims made in a lawsuit filed Wednesday by Colorado’s American Civil Liberties Union.
The lawsuit, filed in U.S. District Court, accuses U.S. Immigration and Customs Enforcement and U.S. Citizen and Immigration Services of violating the Freedom of Information Act.
The Freedom of Information Act governs how federal agencies release documents to the public. The law provides nine reasons for an agency to deny records — including when records contain national security or confidential business information.
A Department of Homeland Security report describes the seventh reason as a need to protect documents gathered for law enforcement purposes that “could reasonably be expected to interfere with enforcement proceedings.”
According to the lawsuit, the agency did not provide one of those nine reasons as justification to withhold documents, but instead said it was practice for them to deny “access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts.”
Immigration officials from ICE and USCIS did not respond to a request for comment.
Jennifer Smith, the attorney who filed a records request in May 2013, said representing her client to find a way to fix her status, is impossible without records.
“Unlike other areas of litigation, in immigration court or any immigration proceedings, there is no discovery,” Smith said. “FOIA is really a lifeline to understanding a client’s case.”
The first response to Smith’s request was in August 2013, when USCIS told Smith there were 18 documents responsive to her request, but that the request had to be made to ICE.
ICE officials, according to the lawsuit, took two years to respond. When they did, they claimed Smith’s client was a fugitive and would be denied access to the FOIA process.
ACLU officials say the record denial that Smith encountered is not unique.
“For one thing, ICE describes it as its practice,” said Mark Silverstein, an ACLU attorney who filed the lawsuit. “We had some information that ICE started doing this some years ago and gradually increased the number of times it responded to a request using this doctrine.”
Silverstein said the goal of the lawsuit is to help Smith get the documents she requested, but also to establish clarity on when government agencies can or can’t deny records.
“From a pure law-and-order perspective, we want the government to follow the law,” Silverstein said.
In an annual report from the Department of Homeland Security on FOIA requests, data shows ICE and USCIS as two of the department’s agencies with the highest denial rates.
Numbers in past year reports documented how many denials were made for “reasons other than exemptions.” In 2009, the annual report showed that ICE had denied five requests based on a reason listed as “fugitive.” That number grew each year to 532 denials for “fugitive disentitlement” in 2013.
That data disappeared in subsequent years’ reports, including in 2016.
