Entrance to the courthouse for the United States Court of Appeals for the Ninth Circuit located in James R. Browning U.S. Court of Appeals Building – San Francisco, California, USA – July 12, 2019 (Shutterstock)
SAN FRANCISCO –Judge William H. Orrick today, granted summary judgment in favor of two nationwide classes suing the Department of Homeland Security, U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement for failing to timely produce the class members’ immigration files (A-Files). The court found that the agencies’ practice of failing to produce the immigration case files within the deadlines set by Congress under the Freedom of Information Act (FOIA) is a systemic problem and requires a comprehensive, permanent remedy. The court ordered the agencies to clear their backlogs by responding to the more than 40,000 thousand cases outstanding within 60 days; comply with the statutory timeline for responding to case file requests moving forward, and submit quarterly reports to the court and class counsel to verify compliance with the statutory timelines.
In October 2019, the court certified the case as a class action, the first time a court has granted class certification to those seeking relief under FOIA. In both the class certification ruling and today’s order granting summary judgment, the court emphasized that the statutory violations are especially damaging because of the critical nature of these immigration files. The court found that the agencies have a long pattern and practice of delaying, for months and sometimes over a year, immigrants’ access to the very information that they need to defend themselves in the deportation proceedings, challenge their detentions, and apply for immigration benefits.
“Compliance with FOIA deadlines is especially important in the immigration context: It provides an essential safeguard to plaintiffs who require a copy of their A-Files to pursue immigration benefits or defend themselves or their clients against removal,” wrote the Court. “Adherence to FOIA’s timeframes is critical because there is no adequate substitute for the information contained in an A-File and FOIA is the primary, if not the only, mechanism for accessing A-Files. Failure to timely respond to A-File FOIA requests creates an information asymmetry that hinders plaintiffs in successfully applying for immigration benefits, challenging removal orders, or seeking release from detention.”
The suit, Nightingale v. USCIS, was filed on behalf of three immigration attorneys and two noncitizens in June 2019. Plaintiffs and class members are represented by the American Immigration Council, National Immigration Litigation Alliance, Northwest Immigrant Rights Project, and the Law Offices of Stacy Tolchin.
“The court’s ruling brings justice to immigrants who have long suffered from immigrant agencies’ violation of FOIA, a statute that provides the only practical avenue for immigrants to access their own immigration records,” said Emily Creighton, the legal director, transparency at the American Immigration Council. “It is past time agencies properly funded and implemented FOIA.”
“The court’s decision sends a clear message that the era of DHS’s information advantage is over,” said Trina Realmuto, executive director of National Immigration Litigation Alliance, who argued the case for the plaintiffs. “DHS can no longer force noncitizens and their attorneys to face removal proceedings, bond hearings, and benefits applications with one hand tied behind their backs.”
“This is a huge day for immigrants across the country. The court’s ruling requires DHS to correct their longstanding practice of denying immigrants and their attorneys timely access to the very immigration documents they need to defend themselves and apply for immigration benefits,” said Matt Adams, legal director for Northwest Immigrant Rights Project.
The court’s decision can be viewed here.
The prior order granting class certification can be found here.