After more than three years of litigation, the federal district court in Colorado agreed with the American Civil Liberties Union American Civil Liberties Union of Colorado (ACLU) that ICE has been repeatedly violating the Freedom of Information Act (FOIA) by denying immigration lawyers access to their clients’ files when ICE deemed the clients to be “fugitives.” In an extensive 44-page ruling, the court issued a final judgment and imposed a permanent nationwide injunction against the challenged practice.
“ICE invented a reason for nondisclosure that isn’t found anywhere in the FOIA statute,” said ACLU of Colorado Legal Director Mark Silverstein. “Thanks to the court’s ruling, ICE will no longer be able to impede immigration attorneys from advocating for their clients by refusing to disclose documents they are entitled to by law.”
Immigration attorneys are not entitled to court-ordered discovery, so they must rely on FOIA to obtain the government’s documents about their clients. In May 2013, immigration attorney Jennifer Smith filed a FOIA request to U.S. Citizen and Immigration Services (USCIS) for records related to the immigration status of one of her clients. USCIS identified a set of documents as responsive and referred the request to ICE, which refused to release them. In a written denial, the agency said it was ICE’s “practice” to deny access to the FOIA process for those it deemed to be “fugitives,” including Ms. Smith’s client.
“Thanks to the court’s ruling, ICE will no longer be able to impede immigration attorneys from advocating for their clients by refusing to disclose documents they are entitled to by law.”
Mark Silverstein, ACLU of Colorado Legal Director
The Freedom of Information Act requires federal agencies to promptly provide responsive documents to any person who requests them. An agency may only deny a FOIA request based on one or more of nine stated exemptions in the law. In this case, ICE did not provide Smith any legal justification based on the exemptions for denying access to her client’s immigration file.
Soon after the lawsuit was filed, ICE provided the specific documents Ms. Smith had requested and then argued that the case should be dismissed as moot. The litigation continued, however, as the ACLU argued (successfully) that it must prevent future violations of FOIA by ordering ICE to stop invoking its “fugitive” practice entirely.
“Lawyers cannot effectively represent their non-citizen clients without access to information,” Silverstein said. “ICE’s ‘practice’ of denying records requests based on ‘fugitive’ status is arbitrary at best and unlawful at worst. We’re glad that the court agrees.”
In addition to Silverstein, the legal team included ACLU Senior Staff Attorney Sara Neel and ACLU Cooperating Attorney Dan Culhane.
View the U.S. District Court ruling: https://aclu-co.org/wp-content/uploads/2020/01/2019-12-16-92-Order-on-SJ-Motions.pdf
View the ACLU of Colorado complaint: https://aclu-co.org/wp-content/uploads/2016/08/1-Complaint-082416.pdf
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