May 2024

Greetings. This installment of Immigration Disclosures highlights a Freedom of Information Act (FOIA) request to obtain more information on the Executive Office for Immigration Review’s (EOIR) processing of FOIA requests. We also published a blog on the documentary Borderland and a report on how the Trump administration intentionally expelled thousands of children under Title 42. All this was achieved as the Council’s Transparency team co-hosted its annual Transparency Convening of litigators, researchers, advocates, and journalists.

Initial Disclosures:

On May 3, the documentary Borderland produced by Skylight Pictures, made its debut. The documentary features footage from a raid U.S. Customs and Border Protection (CBP) carried out on a humanitarian aid camp set up in an Arizona desert. Check out the Council’s blog about the film and how we helped get footage of the raid through a FOIA request. Read more here.
The Council’s transparency work was featured in a report by the Loyola School of Law demonstrating that the Trump administration willfully neglected the rights and welfare of unaccompanied children under federal law. Documents obtained through FOIA divulged the tumultuous nature of the Trump administration’s efforts in implementing Title 42. The report found that in at least one instance, the administration was motivated to deport as many children as possible, actively disregarding known perils to unaccompanied children. Read more here.

The Council Files a FOIA to Obtain Records from EOIR About FOIA Disclosure Policies

On May 29, the Council filed a FOIA request to obtain records from EOIR about its policies for processing FOIA and Record of Proceedings (ROP) requests. Essentially, EOIR is the subcomponent of Department of Justice that administers the nation’s immigration courts. Its duties include conducting and keeping records of immigration proceedings, responding to requests for these records, and maintaining a FOIA library and reading room for records subject to proactive disclosure.

EOIR currently accords noncitizens and their lawyers two paths in procuring records of immigration proceedings: (1) submitting a FOIA request or (2) submitting a request for the record of proceeding (ROP). While EOIR has published some instructions about obtaining the ROP, the public currently lacks relevant information about EOIR’s policies surrounding processing FOIA. EOIR also has not indicated how it determines which documents the agency subjects to FOIA’s proactive disclosure requirements. Proactive disclosure refers to the practice where agencies publish records on their FOIA libraries or electronic reading rooms prior to receiving specified requisition from the public. This is a key part of FOIA designed to keep citizens informed of governmental actions.

The Council has expressed concern that the agency may be ignoring FOIA’s proactive disclosure requirements. Similarly, due to the lack of information surrounding the processing of FOIA or ROP requests, practitioners have expressed concern that detained noncitizens and those without access to counsel face barriers in obtaining crucial documents for immigration hearings. As such, the Council has requested records on EOIR’s implementation of FOIA, its maintenance of its FOIA library and reading room, and processing of FOIA and ROP requests. It also requested FOIA logs and proactive disclosure of these logs.

Why does this matter?

The requested information will allow the Council to not only disclose any inadequacies in EOIR’s proactive disclosure policies, but also educate noncitizens and advocates about the process of acquiring records from EOIR.
Easy and equitable access to records is crucial for noncitizens in removal proceedings to contest their deportation. Any discrepancy in knowledge between the government and noncitizens regarding previous events in their immigration proceedings renders a just hearing impossible.

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government accountable on immigration issues. We harness freedom of information requests, litigation, and advocacy to expose the wrongdoing and promote transparency within immigration agencies. Make a donation today.

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