N.Y. Legal Assistance Grp. v. Bd. of Immigration Appeals

• Decision Date: 05 February 2021
• Docket Number: August Term, 2020,Docket No. 19-3248-cv
• Parties: NEW YORK LEGAL ASSISTANCE GROUP, Plaintiff-Appellant, v. BOARD OF IMMIGRATION APPEALS, Executive Office for Immigration Review, United States Department of Justice, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

987 F.3d 207

NEW YORK LEGAL ASSISTANCE GROUP, Plaintiff-Appellant,

v.BOARD OF IMMIGRATION APPEALS, Executive Office for Immigration Review, United States Department of Justice, Defendants-Appellees.

Docket No. 19-3248-cv

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: September 17, 2020

Decided: February 5, 2021

Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C. (Patrick D. Llewellyn, Public Citizen Litigation Group, Washington, D.C., Danielle Tarantolo, Jane Greengold Stevens, New York Legal Assistance Group, New York, NY, on the brief), for Plaintiff-Appellant.

Benjamin H. Torrance, Assistant United States Attorney, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY (Arastu K. Chaudhury, Assistant United States Attorney, on the brief), for Defendants-Appellees.

William N. Lawton, Eubanks & Associates LLC, Washington, D.C., for Amici Curiae The Animal Welfare Institute and Farm Sanctuary.

Before: Jacobs, Lynch, and Park, Circuit Judges.

Gerard E. Lynch, Circuit Judge:

This case arises from the failure of the Board of Immigration Appeals ("BIA") to make its non-precedential opinions publicly available. Such "unpublished opinions" constitute the vast majority of the final decisions issued by the BIA each year, and are cited and relied upon by the BIA itself, by immigration judges, and by lawyers representing the government in immigration proceedings. Unpublished opinions, however, are not readily available to lawyers representing clients in immigration proceedings. New York Legal Assistance Group ("NYLAG"), a legal services provider, seeks access to the BIA's unpublished opinions to aid in its representation of low-income clients in asylum and removal proceedings.

NYLAG's request for access is based on the BIA's affirmative obligation under the Freedom of Information Act ("FOIA") to "make available for public inspection in an electronic format ... final opinions ... [and] orders, made in the adjudication of cases." 5 U.S.C. § 552(a)(2). Relying on that provision, NYLAG asked the BIA to make publicly available in an electronic format all unpublished opinions issued since November 1, 1996, as well as any future unpublished opinions. The BIA denied NYLAG's request, asserting that the request was overbroad, that the requested opinions were not "final opinions" or "orders" under § 552(a)(2), and that, in any event, NYLAG may only request documents on its own behalf, and may not ask that they be made publicly available.

NYLAG sought relief in federal court under FOIA's remedial provision, which authorizes district courts to "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). The United States District Court for the Southern District of New York (Paul A. Crotty, J .) dismissed NYLAG's complaint, concluding that FOIA's remedial provision allows district courts to order agencies to produce documents to the complainant, but not to make documents available to the public.

This appeal asks us to determine the scope of FOIA's remedial provision – specifically, to decide whether it authorizes courts to enforce FOIA's affirmative disclosure obligations by ordering that documents be made available to the public. We conclude that it does. The text of FOIA's remedial provision and the 1974 amendment to it, considered in light of FOIA's history and purpose, make clear that Congress gave courts the authority to enforce an agency's obligation to make certain documents publicly available.

BACKGROUND¹

I. The Freedom of Information Act

FOIA, 5 U.S.C. § 552, originally enacted in 1966, establishes the public's right to access to government information. FOIA's first three paragraphs impose affirmative obligations on governmental agencies to disclose different categories of information in different ways. First, § 552(a)(1) requires agencies to publish certain information in the Federal Register, including descriptions of the agency's organization, rules of procedure, and substantive rules of general applicability.

Second, and most relevant here, § 552(a)(2) requires agencies to "make available for public inspection in an electronic format" certain categories of information; one such category consists of "final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases."² That provision, the so-called "reading room" provision, is the modernized version of FOIA's original requirement that agencies maintain such documents in a physical "reading room" housed in the agency and open to the public. Since 1996, agencies have instead been required to make those documents available online, in effect creating an electronic "reading room." Section 552(a)(2) also provides that records subject to the reading room provision may not be "relied on, used, or cited as precedent by an agency" unless they are publicly available, or the party opposing the agency has "actual and timely notice of the terms thereof."

Finally, the third obligation imposed by FOIA is the one most often litigated under the statute: under § 552(a)(3), agencies are required to make identifiable records available in response to requests from the public, subject, of course, to a number of exceptions described in § 552(b).

FOIA also creates a private right of action in federal district court to enforce these obligations. Section 552(a)(4)(B), generally referred to as the "remedial provision," provides that:

On complaint, the district court ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.

Finally, as relevant here, § 552(a)(6) sets forth procedures that agencies must follow when responding to requests for information from the public.

II. NYLAG's FOIA Request

NYLAG is one of the largest providers of legal services to people in immigration proceedings in New York City. NYLAG provides low-income clients with a number of services, including direct representation in removal defense and in asylum proceedings.

The BIA, part of the Executive Office of Immigration Review ("EOIR") of the Department of Justice, is tasked with interpreting and applying immigration law. The BIA hears appeals from cases decided by immigration judges and district directors of the U.S. Department of Homeland Security.

From 2012 to 2016, the most recent years for which numbers are available in the record, the BIA issued more than 30,000 decisions per year in individual cases. The vast majority of those decisions are "non-precedential," meaning that, although they are binding on the parties, they are not binding on future immigration courts. The BIA designates only about 30 decisions a year as precedential, and therefore binding on future immigration courts. Such a designation requires a majority vote of the active members of the BIA. 8 C.F.R. § 1003.1(g). Designated precedential decisions are available online in EOIR's electronic reading room.³ A handful of the BIA's unpublished decisions – those that the agency has deemed frequently requested – are also available on the agency's website.⁴ The balance of the BIA's unpublished decisions are not publicly available electronically.⁵

EOIR discourages, but does not prohibit, parties from citing unpublished BIA decisions in immigration proceedings.⁶ Nevertheless, immigration judges and lawyers representing the government cite unpublished decisions in immigration proceedings.⁷ Moreover, despite the BIA's contention that it "discourages parties from citing" these opinions, Appellees' Br. 17 n.3, the BIA itself has cited them in its decisions.⁸

NYLAG seeks access to unpublished BIA decisions so that it can use them in representing clients in immigration proceedings. On June 8, 2018, NYLAG requested, pursuant to § 552(a)(2), that the BIA make publicly available in electronic form all unpublished BIA decisions issued after November 1, 1996. NYLAG also requested that the BIA make publicly available all future unpublished decisions. On July 13, EOIR responded to NYLAG's request by email, stating that the request was overbroad. EOIR also informed NYLAG that it had begun a process of reviewing and releasing to FOIA requesters unpublished BIA decisions from October 2015 through 2017. EOIR offered to expeditiously provide the already-reviewed decisions to NYLAG, along with future unpublished decisions after they had been reviewed, if NYLAG would agree to narrow its request to include only those decisions. NYLAG responded by email on July 17, explaining that it was not willing to narrow its request, and that it was requesting that EOIR make these documents electronically available to the public, pursuant to § 552(a)(2), rather than asking EOIR to produce them directly to NYLAG. NYLAG also offered to work with the agency to establish a reasonable timeline for complying with the request.

On August 8, 2018, EOIR formally denied NYLAG's request by letter. EOIR contended that unpublished BIA opinions are not "final opinions" or "orders" within the meaning of § 552(a)(2). EOIR also contended that the only remedy available when an agency fails to post records under § 552(a)(2) is for the party seeking the records to request them under § 552(a)(3). Finally, EOIR again asserted that NYLAG's request was overbroad.

On September 10, 2018, NYLAG appealed the denial of its request to the Office of Information Policy ("OIP") at the Department of Justice. NYLAG asserted that EOIR was required to publicly post in an electronic reading room all BIA opinions, including unpublished opinions, because they meet the definition of "final opinions ... [and] orders, made in the adjudication of cases" under § 552(a)(2). NYLAG also contended that § 552(a)(2) empowers individuals and organizations to request the public posting of records.

III. Proceedings in the...