In a typical criminal proceeding, defense lawyers are able to gain access to government files pertaining to a client through the process of discovery. In immigration proceedings, however, immigration lawyers have to file Freedom of Information Act (FOIA) requests to receive documents the government has about a client.
Up until recently, Immigration and Customs Enforcement has used an internal policy that it believed allowed it to deny FOIA requests from immigration attorneys seeking documents about immigrant clients that the federal agency deemed to be "fugitives."
"It was a surprise to read ICE denying FOIA requests by saying they deny access to the FOIA process to people they deem to be fugitives. At the time, they didn’t even define what they meant by the word 'fugitive,'" says Mark Silverstein, legal director at the ACLU of Colorado.
But following a December 2019 court ruling in favor of an immigration attorney represented by the ACLU of Colorado, ICE will no longer be able to deny FOIA requests solely on the basis that the subject of the requests is someone they deem to be a fugitive.
Last month, Judge William J. Martinez, who works in the Colorado District Court, ruled in favor of the plaintiff, Jennifer M. Smith, saying that ICE violated open-records law by denying her FOIA request. Smith, who practices immigration law in Glenwood Springs, had originally filed a FOIA request in 2013 seeking documents pertaining to a non-citizen client trying to resolve her immigration status.
In particular, Smith asked for her client's "complete alien file" and "any and all records of entry into the United States or departures from the United States after January 1, 2005" and "any and all records of I-94s pertaining to this person after January 1, 2005."
"This information was necessary for Ms. Smith to properly analyze how best to advocate on behalf of [her client]," according to the original complaint filed by the ACLU of Colorado.
The original FOIA request was filed with U.S. Citizenship and Immigration Services. USCIS forwarded the request to ICE, which responded in 2015.
"ICE’s records indicate that as of September 3, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts," ICE wrote to Smith, according to the original complaint.
When the ACLU of Colorado filed its complaint in August 2016, ICE quickly produced the relevant documents, according to Silverstein, who continued with the suit to get a more sweeping ruling on the practice.
ICE didn't always have a formal policy on what constitutes a "fugitive" when it came to FOIA requests, but its legal team eventually penned one, which the federal agency disclosed to Smith in July 2017. If an immigrant receives a final order of deportation and doesn't leave the country, then he or she is considered a fugitive, according to the policy.
ICE's FOIA office told the court that this policy was applied 333 times out of a total of 111,793 FOIA requests from July 21, 2017, to April 4, 2019.
However, even if infrequently cited, a general denial of FOIA requests simply because of the assertion that the subject of the requests is a "fugitive" violates federal open-records law, Martinez concluded.
"If ICE is going to deny a FOIA request, it needs to rely on one of the nine exemptions in the statute and cannot simply say to the immigration lawyer, 'Your client is deemed to be a fugitive, so you don’t get the documents,'" says Silverstein.
Going forward, ICE will need to cite one of these exemptions already written into law in order to deny a FOIA request.
As for why these documents could be particularly important to an immigration lawyer, Silverstein adds, "The client is often going to be a poor narrator of the facts that are relevant to a lawyer, especially if ICE has mailed things to a client’s former address. The client might not even know about something that happened in an immigration proceeding. That’s just why it’s essential for the lawyer to get the government’s file."
USCIS deferred to ICE for comment on the court ruling for this story. ICE did not immediately comment.
According to Silverstein, the federal government has not yet indicated whether it will appeal the judge's ruling.
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