American Immigration Council v. Executive Office For Immigration Review

Background

The American Immigration Council and the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law brought this Freedom of Information Act (FOIA) action against the Executive Office for Immigration Review (EOIR) and the U.S. Department of Justice. The plaintiffs sought records concerning motions to stay removal filed with motions to reopen or reconsider immigration proceedings.

The requests covered emergency and non-emergency stay motions from fiscal years 2008 through 2018. They sought data about how the motions were classified, when they were decided, how long decisions took, whether stays and related motions were granted or denied, and related information. The requests also sought policies, procedures, and training materials for immigration-court judges and the Board of Immigration Appeals (BIA), as well as a sample of written decisions.

EOIR produced some responsive records after the lawsuit began. The parties agreed that two categories remained in dispute: information about non-emergency stays and training materials for immigration-court judges and the BIA concerning motions to stay removal.

FOIA search standard

In a FOIA case, the agency must show that its search was adequate. The search must be reasonably calculated to find the requested records, and the agency’s supporting declaration must describe the search in a relatively detailed and nonconclusory way. The adequacy of a search is judged by its method, not simply by whether it found every responsive record. An agency also must follow clear leads it cannot reasonably ignore, although it need not conduct a plainly unreasonable or unduly burdensome search.

Non-emergency stay records in CASE

The court ruled for the Government on this category. EOIR explained that non-emergency stay motions generally were not tracked in the Case Access System for EOIR (CASE). Although the CASE Comments tab sometimes contained an infrequent notation, EOIR said that such notations were not routine and would not contain the information the plaintiffs requested, such as filing and decision dates or the outcomes of the motions and related proceedings.

The responsive paper records were kept in individual Records of Proceedings at more than 80 locations, and searching the 82,989 individual files would have been burdensome. The plaintiffs limited their challenge to whether EOIR should search CASE for comments mentioning a stay or stay request. The court held that EOIR did not have to search CASE because that search was not reasonably calculated to uncover the requested information.

Training materials

The court ruled for the plaintiffs on the adequacy of EOIR’s search for training resources, materials, and modules for immigration-court judges and the BIA concerning the processing and adjudication of stay motions. EOIR’s submissions identified a program office that had been asked to search and included the email transmitting the request, but they did not explain what steps the office took or how the BIA searched its records.

The court held that the declarations did not describe the search method in the required detailed and nonconclusory manner. The court rejected EOIR’s reliance on declarations describing searches for other categories of records and explained that the presumption that agency declarations were made in good faith did not cure the lack of detail about the search for these training materials.

Disposition

The court granted in part the Government’s July 19, 2019 motion for summary judgment and granted in part the plaintiffs’ August 14, 2019 motion for summary judgment. The opinion’s conclusion states those dispositions but does not specify additional relief or the next procedural steps concerning the training-material search.