ImmigrationProf Blog

WaPo Editorial Board Calls for Aslyum System Fixes

Today, the Washington Post Editorial Board printed an opinion piece titled Asylum has become a parallel immigration system. Here’s how to fix that. It's a genuinely interesting read, coming as it does from journalists as opposed to immigration experts.

Here are some of the more interesting nuggets:

• "Last year, DHS asked Congress for funds to expand its roughly 1,000 asylum officers by 2,000 — a staffing level that would have also helped DHS work through its half of the asylum backlog, DHS officials say. Congress funded no expansion; it should find the money."
• "The Justice Department should get more immigration judges.. though... The 600 or so it has represents a doubling since 2014, and still the caseload has grown. Even with 500 more judges, it would take eight years to work through the immigration court backlog..."
• "One key to a more functional asylum system lies outside of it, in wider channels for legal immigration."
• "the United States should seek to share responsibility with other countries to resettle asylum seekers"

I've highlighted the idea I personally find the most compelling.

-KitJ

Noon PST Today on Zoom: Professor Kelly Lytle Hernandez on Her Book Bad Mexicans: Race, Empire, and Revolution in the Borderlands

Bad Mexicans: Race, Empire, and Revolution in the Borderlands

Join us TODAY as UCLA Professor of History, African American Studies, and Urban Planning Kelly Lytle Hernández discusses the migrant rebels who sparked the 1910 Mexican Revolution from the United States.

Kelly Lytle Hernández is a professor of History, African American Studies, and Urban Planning at UCLA where she holds The Thomas E. Lifka Endowed Chair in History and directs the Ralph J. Bunche Center for African American Studies. One of the nation’s leading experts on race, immigration, and mass incarceration, she is the author of Migra! A History of the U.S. Border Patrol (University of California Press, 2010), City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles (University of North Carolina Press, 2017), and Bad Mexicans: Race, Empire, and Revolution in the Borderlands (Norton, 2022). She also leads Million Dollar Hoods, a big data research initiative documenting the fiscal and human cost of mass incarceration in Los Angeles. For her historical and contemporary work, Professor Lytle Hernández was named a 2019 MacArthur “Genius” Fellow. She is also an elected member of the Society of American Historians, the American Academy of Arts and Sciences, and the Pulitzer Prize Board.

REGISTER HERE for livestream,  The event is open to the community.

Co-sponsored by UC Davis Aoki Center for Critical Race and Nation Studies, Global Migration Center, and Chicana/o Studies Department.

KJ

UPDATE 1:30 PST Feb. 1:  Professor Lytle Hernandez offered a wonderful summary of her book.  In discussing the violence against -- including lynching of -- persons of Mexican ancestry in the Texas/Mexico border region, she recommended looking at the website Refusing to Forget.  It provides a wealth of information about the horrific violence and offers background about, among other things, the role of the Texas Rangers in all of it.  Eduardo Diaz of the Smithsonian also suggested this resource on a museum exhibit on lychings ("The Starngest Fruit").  

KJ

U.K. Has Lost Track of >200 Children Seeking Asylum

Several news outlets are reporting on the United Kingdom's recent acknowledgement that it has lost track of more than 200 children seeking asylum. According to a letter penned by charitable organizations, the missing children had been housed in hotels run by the Home Office (the U.K. agency responsible for migration). The charities fear these children have been "trafficked and criminally exploited."

Apparently, the Home Office began housing children in hotels two years ago. That was supposed to be a temporary measure. And yet, two years on, the practice persists. Children are supposed to be turned over to "local authorities" for care (presumably something akin to a state child protective services).

The numbers cited in the letter are large. "4600 children have been accommodated in these hotels since July 2021 with 440 missing episodes and 200 children who have never been found."

-KitJ

Polaris Study of Human Trafficking Survivors: National Survivor Study

Trafficking Survivors Experience Serious Economic and Social Barriers After Exploitation

Polaris, s leading organization to end sex and labor trafficking in North America has published the National Survivor Study, essential research of human trafficking survivors in the United States.  

The study found that survivors face substantial barriers to recovery following exit from their trafficking experience. Key data findings include: 

• 43 percent of survey respondents were making under $25,000 per year, compared to 26 percent of the general US population.
• 54 percent of respondents reported that their own resourcefulness was one of their most valuable sources of support. 
• 40 percent of respondents reported some kind of criminal record as a result of their trafficking experience.
• Over 60 percent of respondents reported experiencing financial abuse by their trafficker.

These results demonstrate that survivors of human trafficking in the United States are far from thriving, and that the systems that are supposed to support them are failing. 

Download the full report for further data about the survivor experience.

KJ

DHS Secretary Mayorkas credits new immigration policy for decline in illegal crossings

 

Department of Homeland Security Secretary Alejandro Mayorkas credits new immigration policy for decline in illegal crossings.  In a press statement on January 25, the DHS stated:

" Encounters of Cuban, Haitian, Nicaraguan, and Venezuelan non-citizens attempting to cross the southwest border unlawfully has decreased drastically since President Biden announced an expanded parole program for these individuals, putting the month of January on track to see the lowest levels of monthly border encounters since February 2021.

Preliminary numbers from January show that encounters of Cubans, Haitians, Nicaraguans, and Venezuelans crossing unlawfully between ports of entry at the southwest border declined 97% compared to December. . . .  

`These expanded border enforcement measures are working,' said Secretary of Homeland Security Alejandro Mayorkas. `It is incomprehensible that some states who stand to benefit from these highly effective enforcement measures are seeking to block them and cause more irregular migration at our southern border.'”

KJ

Maggio Summer Fellowship - applications open until February 10, 2023!

Maggio Summer Fellowship - applications open until February 10, 2023! The application for the 2023 Maggio Immigrants’ Rights Summer Fellowship Program is now accepting applications. Michael Maggio was an extraordinary immigration attorney with a passion for social justice. As an attorney, he took up the defense of asylum-seeking Central Americans threatened with deportation and worked on the landmark Filartiga v. Pena case in 1980. While he sadly lost his battle with cancer in 2008, his passion for helping the most vulnerable continues through this annual Fellowship, strengthening law students’ long-term commitment to promoting justice and equality for vulnerable immigrant groups. Organized and funded by AILA, the National Immigration Project, and the Center for Human Rights and Constitutional Law, the Fellowship is awarded to one law student each summer to work on a student-initiated project. For consideration, each student must submit a project proposal with an organization willing to host the student for 10 weeks and provide a $1,500 stipend. The $1,500 amount may be paid by the host organization or may be provided by the law student through other means, e.g., law school public interest funding, independent fundraising, etc. The Maggio Immigrants' Rights Fellowship will provide an additional $2,500 stipend for a total award of $4,000. More details may be found on the Maggio Fellowship website. On top of this stipend, the Maggio Fellowship also offers complimentary registration to national immigration conferences. For more information on the application and to learn more about the impressive work of past fellows, visit http://maggiofellowship.org. The deadline is February 10, 2023. If you have any questions, please contact me at elynum@aila.org. Thank you!

KJ

Happy Korematsu Day!

Happy Korematsu Day!

On January 30, California celebrates the Fred Korematsu Day of Civil Liberties and the Constitution. It honors the legacy of civil rights hero Fred T. Korematsu and his fight for racial equity, social justice, and human rights for all.

On this day, and every other day of the year, we hope that his story of perseverance in the face of adversity inspires others become more civically involved and to “stand up for what is right.”

To learn more, click here.

Immigration Article of the Day: Hybrid-Status Immigrant Workers by Jacob Hamburger

Hybrid-Status Immigrant Workers by Jacob Hamburger  

Abstract

Precarious work arrangements have become a dominant feature of twenty-first-century political economy. One employer strategy that has contributed to eroding workers’ rights and protections is misclassifying them as independent contractors, avoiding the obligations that come with employee status. Recently, policymakers in some states and at the federal level have sought to combat this trend by expanding the definition of employment, notably by adopting the three-prong standard known as the ABC test. The misclassification problem has received much attention in both legal scholarship and public discourse, but these discussions have not sufficiently addressed how these reforms affect a particularly vulnerable subset of precarious workers: undocumented immigrants without federal employment authorization.

Immigrant workers often depend on independent contractor status to work. Federal immigration law requires employers to verify that all employees are permitted to work in the United States, but does not require such verification for independent contractors. As a result, immigrants can work as independent contractors without having to fraudulently claim work authorization. Independent contractor jobs are no less precarious for immigrants than for their native-born counterparts, but new reforms may improve their working conditions by extending to them many of the protections of labor and employment law. However, these reforms may also have the unintended consequence of shutting immigrant workers out of the formal economy by defining more work arrangements as employment.

This Article examines how efforts to combat employee misclassification can include immigrants without federal work authorization. It argues that immigrant workers can hold a hybrid status: defined as “employees” under new, broader labor and employment law definitions of the term, while remaining “independent contractors” for immigration purposes. As a result, these reforms do not trigger new work authorization verification requirements for employers that make it harder for immigrants to work. At the same time, allowing this hybrid status to coexist between work law and immigration law contexts will likely require action on the part of both state legislatures and federal agencies. In the fast-evolving context of immigration federalism, promoting hybrid status for unauthorized workers promises to be a powerful tool for states seeking to implement an inclusive immigration agenda.

KJ

Immigration Article of the Day: Racial Discrimination in International Visa Policies by Andrew Rosenberg

Racial Discrimination in International Visa Policies by Andrew Rosenberg 

Abstract

Does racial discrimination persist in global mobility rights? While many states explicitly discriminated based on race far into the 20th century, contemporary migration policy-making is now putatively objective. The rise of white supremacist violence against all varieties of migrants, politician statements, and public support for restrictive policies call this supposed color blindness into question. However, existing work is not discerning because most policies appear objective. In this article, I use new data on bilateral visa waiver policies from 1973 to 2013 to show that racial difference predicts whether a country receives a visa waiver, even after accounting for its economic, political, and security context. This conditional racial discrimination has worsened since 9/11. In so doing, I provide evidence of systematic racial discrimination in international visa policy-making. The results have important implications for the study of racial inequality in the international system.

KJ

EU wants to send more migrants away as irregular arrivals grow

In "EU wants to send more migrants away as irregular arrivals grow," Gabriela Baczynska for Reuters reports that "European Union ministers [this week are seeking] ways to curb irregular immigration and send more people away as arrivals rose from pandemic lows, reviving controversial ideas for border fences and asylum centres outside of Europe.

EU border agency Frontex reported some 330,000 unauthorised arrivals last year, the highest since 2016, with a sharp increase on the Western Balkans route."

As readers of the blog probably know, the EU allows relatively free migration among member nations but its the borders at its outer perimeter are robust and have been characterized as the Fortress Europe.  Enforcement of the outer borders have become more difficult with flows of refugees and migrants.  Here is a book on the subject.

KJ

Immigration Article of the Day: Unwed Parents: The Limits of the Constitution by Albertina Antognini

 

Unwed Parents: The Limits of the Constitution by Albertina Antognini | University of Arizona Law, Journal of the American Academy of Matrimonial Lawyers, Vol. 35 - #2, 2023

Abstract

As marriage has evolved to become a more egalitarian institution in both form and substance, nonmarriage remains full of antiquated norms and gendered hierarchies. The Supreme Court has interpreted the Constitution’s applicability to nonmarriage in a number of cases, including in a series addressing unwed fathers; this essay focuses on a close reading of the most recent, Sessions v. Morales-Santana, decided in 2017. In an opinion authored by Justice Ginsburg, the Court struck down the different residency lengths required of unwed mothers and unwed fathers prior to transmitting citizenship to their children as a violation of equal protection. This essay argues that Morales-Santana signals a clear break from earlier unwed fathers cases by identifying the role that law plays in constructing what had previously been presented as unassailable fact. The Court in Morales-Santana exposes a set of ostensibly factual observations as legal judgments that rely on outdated notions of fathers and mothers, and which continue to prop up laws that differentiate between parents on the basis of sex to this day. How constitutional reasoning leads to these outcomes must be carefully scrutinized—if not to change the law, then at least to understand how it comes to be. The point of this essay then is to reveal the mechanisms by which value judgments become hardened into constitutional axioms in order to recover them as contingent, and therefore contestable, opinions.

Part I parses the Court’s reasoning in Morales-Santana and explains how it differs from the cases that have come before it. This Part spends some time analyzing the Court’s decision to consider the unwed mixed-status family contemplated by the citizenship statutes, as opposed to remaining tethered to the American parents. This shift in perspective allows the Court to uncover the gendered assumptions that lie at the root of these laws, and renders the Court’s opinions in related areas vulnerable despite its assurances to the contrary. Part II then turns to what the Court did not do. The opinion in Morales-Santana fails to identify with any specificity the burdens that might accrue to the caretaking parent. It also ignores the ways in which same-sex couples are affected by, and could have helped challenge, the heteronormative family the laws presume. This Part concludes by highlighting the obvious – that the decision not only implicates gender but, critically, citizenship. Yet the Court was silent with regard to the racialized history of the citizenship rules, and fashioned a remedy that wholly ignored the predicament of the respondent, Luis Ramón Morales-Santana. As such, Morales-Santana allows the discrimination it took some steps towards eradicating, to continue.

KJ

Immigration Article of the Day: Kafka’s Bureaucracy: Immigration Administrative Burdens in the Trump Era by Donald P. Moynihan, Julie Gerinza, & Pamela Herd

Kafka’s Bureaucracy: Immigration Administrative Burdens in the Trump Era by Donald P. Moynihan, Julie Gerinza, & Pamela Herd,  Perspectives on Public Management and Governance. 5(1): 22-35.

Abstract

What does a government do when it decides to make a public service as burdensome as possible? We consider this question in the context of immigration policy during the Trump administration. The case demonstrates the deliberate and governmentwide use of administrative burdens to make legal processes of immigration confusing, demanding, and stressful. Many of these changes occurred via what we characterize as formal administrative directives, a level of policy implementation that falls between high-level formal executive legal powers, such as executive orders or rules, and street-level discretion, pointing to the importance of processes such as memos and training as an understudied space of using burdens to make policy. The case challenges the standard portrayal of the principal–agent dilemma, given that the political principals engaged in a disruption of public services akin to sabotage, while the bureaucratic agents remained largely quiescent. The outcome was a system of racialized burdens, where changes were targeted at racially marginalized immigrants. The case also highlights the use of fear as a particular type of psychological cost.

KJ

Should Australia let Kanye West in?

Australia is no stranger to immigration controversies.  Ye, formerly known as Kanye West, also is no stranger to controversy. Mary Crock (University of Sydney) for The Conversation considers Ye's immigration issues in Australia:

"Just one year after then-Immigration Minister Alex Hawke moved to expel tennis star Novak Djokovic from Australia on character grounds, his Labor successor, Andrew Giles, is faced with another controversial visitor in the form of Ye (formerly known as Kanye West).

Although he’s both a musician and rapper, Ye may be best described as a social influencer – and one with very offensive views, especially when it comes to Jewish people and the Holocaust."

Professor Crock concludes by noting that 

"What is clear from previous cases is the fact the immigration minister has long enjoyed extraordinary power to exclude and expel non-citizens whose presence in Australia might prove unpopular. And these decisions inevitably involve political calculations. Just ask Novak Djokovic."

 

KJ

NPR: Migration could prevent a looming population crisis. But there are catches

 

NPR reports that:

"Slowing birth rates in the developed world are resulting in aging populations and smaller workforces. But in parts of the developing world, the youth population is still growing, and some countries are struggling to create enough jobs for an expanding working-age population.

To economists, migration is the obvious solution. But the political implications could be harder to overcome. . . . 

`A real bellwether for the future is South Korea,' said Michael Clemens, a professor of economics at George Mason University.

At 0.79 births per woman, South Korea has the lowest birthrate in the world. To augment the number of young, energetic workers relative to the number of old people, the country relies on migrant workers to fill labor shortages, Clemens said.

. . . .Immigration solves labor shortages in the developed world, and emigration solves job shortages in the developing world."

Both anti-immigrant sentiment and fears of labor exploitation are impediments to relying on immigration to offset the impacts of declining birth rates on the labor market.

KJ

California Supreme Court Decides People v. Espinoza: Important Ruling Addresses California Penal Code 1473.7

Today the California Supreme Court issued an opinion in People v. Espinoza. A copy of the decision is available here.

The decision, authored by Justice Goodwin Liu, addresses a motion to vacate a conviction filed pursuant to Penal Code section 1473.7, a provision that allows noncitizens who have served their sentences to vacate a conviction if they can show it is “legally invalid due to prejudicial error damaging [their] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”

Juventino Espinoza moved to vacate his 2004 plea bargain, arguing that he was not informed by his counsel of the immigration consequences of the conviction. Instead, the attorney's assistant told Espinoza that if he plead no contest "everything was going to be fine."

On review, the California Supreme Court considered the following question: “Did the Court of Appeal err in ruling that defendant failed to adequately corroborate his claim that immigration consequences were a paramount concern and thus that he could not demonstrate prejudice within the meaning of Penal Code section 1473.7?” 

In reversing, the Court held that Espinoza did make such a showing. First, the Court found that Mr. Espinoza established that he "did not meaningfully understand the immigration consequences of his plea." The fact that the trial court provided a general advisement under 1016.5 did not alter this conclusion.

Second, the Court concluded that defendants moving to vacate their convictions must provide “objective evidence” showing that they would have behaved differently if they had meaningfully understood the immigration consequence. Here, the Court found that the totality of the circumstances must be evaluated, and that "[o]bjective evidence includes facts provided by
declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced." Evidence such as ties to the United States, "community involvement following his conviction" and "a declaration from an immigration law expert explaining that he could have pleaded to alternative, immigration-safe dispositions" therefore should have been considered. Another factor, the Court explained, "is whether alternative, immigration-safe dispositions were available at the time of the defendant's plea."

A number of members of our immprof community were involved in this case as amici, including the Stanford Law School Immigrants' Right Clinic, The University of California Davis Immigration Clinic, and the University of California Irvine Criminal Justice and Immigrant Rights Clinic.

IE

Democrats condemn Biden administration’s new asylum limits

U.S. Senator Bob Menendez (D-N.J) and Representative Alexandria Ocasio-Cortez (D-N.Y.-14), alongside Sen. Cory Booker (D-N.J.), Sen. Ben Ray Luján (D-N.M.), Sen. Alex Padilla (D-Calif.), Rep. Greg Casar (D-Texas-35), and Rep. Raúl Grijalva (D-Ariz.-07), today led a bicameral group of nearly 80 lawmakers in a letter urging President Joe Biden to reverse his administration’s expansion of the failed border policy known as Title 42 and to abandon the proposed asylum “transit ban” rule.” The lawmakers also encouraged the President and his administration to work with Congress to ensure they develop safe, humane, and orderly border policies that enforce our immigration laws and uphold the right to asylum under domestic and international law.

“The administration’s announced border enforcement actions circumvent [domestic and international] law by not only expanding Title 42 beyond what is required by any court but by further implementing policies to deter and penalize people exercising their legal right to seek asylum at the border,” wrote the bicameral group of lawmakers to President Biden. “…We are therefore distressed by the deeply inconsistent choice to expand restrictions on asylum seekers after your administration determined it was no longer necessary for public health. Title 42 circumvents domestic law and international law. Human rights groups have extensively documented more than 10,000 violent attacks – including kidnappings, serious assaults, and deaths – against individuals who were expelled to or blocked in Mexico due to Title 42 since the beginning of your administration, with a disproportionate impact on Black, Brown, LGBTQ+, and Indigenous migrants.”

KJ

 

 

How the Arizona Attorney General Created a Secretive, Illegal Surveillance Program to Sweep up Millions of Our Financial Records

Logo courtesy of Wikimedia Commons

 

Last week, the American Civil Liberties Union (ACLU) published a report on a mass surveillance program facilitated by the Arizona Attorney General’s office and the Department of Homeland Security (DHS). The National Hispanic Media Coalition, among others, has expressed outrage at this breach in privacy and the pervasive surveillance and over-policing of Black, Latino, and immigrant communities:

 

"This invasion of privacy is particularly egregious because it disproportionately impacts historically and intentionally marginalized communities, who are already subject to law enforcement overreach: from the over policing of neighborhoods to the implementation of programs like 287(g). Most often, it is Black and Latino households and immigrant communities who utilize these financial service companies because they do not have access to traditional banking and financial services. Given that TRAC specifically targets those who use money transfer services, these communities are undoubtedly overrepresented in the database and therefore bear the burden of being baselessly surveilled for benign financial transactions. 

 

NHMC continuously warned that the over policing of these communities is aggravated by lack of data privacy and protections as we saw when DHS purchased mass amounts of cell phone location records without a warrant. The revelation that this warrantless invasion of privacy is also occurring with personal and financial records through the Arizona Attorney General’s program is unconscionable. NHMC applauds the ACLU’s report and their call to end this financial surveillance program, which is the necessary first step to hold the government accountable. We will continue to call out these example of Black and Brown communities suffering the worst consequences of a lack of data privacy and work towards securing protections for our communities."

 

KJ

Florida joins 19 states to challenge Biden’s new immigration program

 Gary Fineout for Politico reports that Florida has joined 19 states in challenging a new Biden administration program to accept 30,000 migrants a month from the nations of Cuba, Haiti, Nicaragua and Venezuela.

The states, led by Texas, filed a lawsuit in federal court against the U.S. government contending that there is no legal authority for the program rolled out by President Joe Biden ahead of his visit earlier this month to the U.S./Mexico border. The lawsuit also contends that states will be harmed by an influx of migrants from the four countries covered by the program.

The press release of the Florida Attorney General announcing the suit begins as follows:

"Attorney General Ashley Moody is taking action to stop President Joe Biden’s latest unlawful immigration move—Biden wants to stop illegal immigration by attempting to legalize unlawful entry for hundreds of thousands of immigrants. Just days before Attorney General Moody took Biden to court for refusing to enforce federal immigration laws, the president announced a new parole program that could allow up to 30,000 previously inadmissible immigrants into the U.S. monthly. Attorney General Moody and other state attorneys general are taking swift action to stop this latest unlawful immigration program."

KJ

From the Bookshelves: The Great Escape: A True Story of Forced Labor and Immigrant Dreams in American by Saket Soni

The New York Times called it a must-read. The Great Escape by Saket Soni is a non-fiction thriller about immigrant workers from India organizing to blow apart a post-Hurricane Katrina labor trafficking ring. It was featured on NPR's Fresh Air and Chris Hayes' podcast. 

The publisher's blurb on the book:

"The astonishing story of immigrants lured to the United States from India and trapped in forced labor—told by the visionary labor leader who engineered their escape and set them on a path to citizenship.

In late 2006, Saket Soni, a twenty-eight-year-old Indian-born community organizer, received an anonymous phone call from an Indian migrant worker in Mississippi. He was one of five hundred men trapped in squalid Gulf Coast `man camps,' surrounded by barbed wire, watched by guards, crammed into cold trailers with putrid toilets, forced to eat moldy bread and frozen rice. Recruiters had promised them good jobs and green cards. The men had scraped up $20,000 each for this “opportunity” to rebuild hurricane-wrecked oil rigs, leaving their families in impossible debt. During a series of clandestine meetings, Soni and the workers devised a bold plan. In The Great Escape, Soni traces the workers’ extraordinary escape, their march on foot to Washington, DC, and their twenty-three-day hunger strike to bring attention to their cause. Along the way, ICE agents try to deport the men, company officials work to discredit them, and politicians avert their eyes. But none of this shakes the workers’ determination to win their dignity and keep their promises to their families.

Weaving a deeply personal journey with a riveting tale of twenty-first-century forced labor, Soni takes us into the lives of the immigrant workers the United States increasingly relies on to rebuild after climate disasters. The Great Escape is the gripping story of one of the largest human trafficking cases in modern American history—and the workers’ heroic journey for justice."

KJ

BIA's Reading Room for Unpublished Decisions is LIVE!

Check it out, the BIA's reading room for unpublished decisions is now live. Here is the link: https://foia.eoir.justice.gov/app/ReadingRoom.aspx. And here's the NYLAG press release:

Historic Settlement Levels the Legal Playing Field for Immigrant Advocates 

 

Immigrants, Immigration Lawyers Win Access to Secret Case Law 

 

NEW YORK – A federal district court in New York on Wednesday evening ordered the U.S. Board of Immigration Appeals to establish an online library of its unpublished opinions – the result of a settlement between the New York Legal Assistance Group (NYLAG) and the U.S. Department of Justice. By giving immigrants and their lawyers full access to the Board’s opinions, the settlement will allow them to fight removal and other adverse actions with the same knowledge of case law that attorneys representing the government already have. Public Citizen Litigation Group served as lead counsel for NYLAG in the case, along with NYLAG’s own lawyers. 

“This historic settlement will change the practice of immigration law in this country,” said Beth Goldman, NYLAG president and attorney-in-charge. “After our crucial victory in the Second Circuit, the Board has agreed to stop keeping its decisions secret – a practice that, for years, has put immigrants at an unfair disadvantage when asserting their rights in court. Opening up these opinions to the public will finally help even the playing field between immigration advocates and their adversaries, and it will allow the dedicated immigration practitioners at NYLAG and around the country to do their best work advocating for their clients. We are pleased that the Board agreed to make this move toward transparency without the need for further litigation.” 

The Board of Immigration Appeals is the administrative body within the U.S. Department of Justice (DOJ) that adjudicates appeals from decisions made by immigration judges. Most of the Board’s tens of thousands of decisions each year are kept secret from the public. Only a handful of opinions are made publicly available online, and a small number of additional opinions are available in hard copy at a law library in Falls Church, Virginia. 

The Freedom of Information Act (FOIA) requires that agencies make all their opinions and orders available to the public over the internet, but the Board of Immigration Appeals has ignored this requirement for years and designated almost all the opinions it issues in immigration cases as unpublished. The case arose when NYLAG, which provides free legal services to immigrants in New York, requested that the Board post all of its opinions in immigration cases in its electronic reading room. When the request was denied, NYLAG and Public Citizen Litigation Group filed suit to require the Board to comply with the law.  

Under the settlement approved Wednesday, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. Posting will begin in October and will be phased in over several years. The settlement ensures that NYLAG and Public Citizen will be able to monitor the Board’s compliance and, if problems arise, seek the help of the court.  

Public Citizen’s Scott Nelson, the lead attorney for NYLAG in the case, added: “This case is a tremendous advance for freedom of information in three ways. First, to get this far, we had to win a landmark decision in the Second Circuit Court of Appeals recognizing that people can sue under FOIA to force agencies to comply with their obligation to publish records online. Second, the online library that this case will create will be of great use to immigrants and their lawyers. Third, this settlement will help DOJ and its components serve as a model of FOIA compliance, as agencies devoted to the rule of law should be.” 

-KitJ