Last Tuesday, the District of Columbia Circuit Court of Appeals heard oral arguments in a case filed by the American Immigration Lawyers Association (AILA), which seeks the disclosure of unredacted versions of complaints filed against immigration judges and related documents. To date, the government has refused to turn over the names, locations and genders of immigration judges against whom complaints have been made, shielding both the complaint process and the judges from public scrutiny.
The defendant in the case is the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice that oversees the immigration courts. EOIR’s internal complaint process has been widely criticized. A 2010 report by the American Bar Association highlighted EOIR’s lack of transparency, stating that information about the agency’s complaint process and disciplinary action taken is “generally not available” to the public. The secretive nature of the complaint process raises the question of whether EOIR is able and willing to discipline judges within its ranks.
In an effort to obtain more information regarding EOIR’s complaint process, AILA sent EOIR a Freedom of Information Act (FOIA) request seeking all complaints filed against immigration judges and all documents reflecting the investigation and resolution of those complaints. To date, EOIR has produced approximately 16,000 records, but redacted certain critical information, including the judges’ names, genders and the cities in which they are based. These records reveal that numerous immigration judges have been accused of biased or abusive treatment of individuals appearing before them. One immigration judge allegedly characterized an individual’s autistic child as a “wild animal posing as a child.” Another immigration judge reportedly commented that a noncitizen seeking asylum on the basis of sexual orientation “did not seem gay.”
The government argued that certain FOIA exemptions—i.e., sections of the law that permit the agency to withhold otherwise disclosable information—apply here to protect the identities’ of the judges. Specifically, the government is citing FOIA Exemption 6, maintaining that disclosing identifying information would infringe on the privacy interests of immigration judges, who should be considered “non-supervisory, career civil servants” whose privacy rights outweigh the public interest in revealing their identities.
AILA, represented by Public Citizen and the American Immigration Council, argued that immigration judges’ names and other identifying information are not covered by FOIA Exemption 6. Immigration judges, who make life-and-death decisions that in some cases can only be reviewed for “clear error,” are akin to high-level officials about whom the public has a strong interest in disclosure. Identifying the names of immigration judges would hold judges accountable for their conduct and allow monitoring groups to direct their attention to specific judges’ courtrooms. It would also help the public connect past complaints against judges with any future complaints in order to assess how EOIR imposes progressive discipline going forward.
Last Tuesday’s oral arguments also concerned EOIR’s redaction of words, sentences, and paragraphs within responsive records as “unresponsive”—meaning that according to the government some information contained in the records is not responsive, or relevant, to the specific request made by AILA. AILA argued that such redactions are improper because they directly contradict FOIA’s broad disclosure aim. Furthermore, redacting bits and pieces of information as “non-responsive” is inefficient t because it inevitably leads to delayed responses. Put simply, why is the government spending time redacting information when the more efficient and lawful option would promote transparency?
Finally, the court heard arguments on whether EOIR should be compelled to publish the resolutions on complaints, something AILA argued is crucial to understanding whether the EOIR complaint process is a robust one; that is, where misconduct is found to have occurred, whether immigration judges are disciplined in such a way as to promote future compliance with ethical and judicial standards of conduct. According to AILA, complaint resolutions constitute “final orders or opinions,” which FOIA requires agencies to affirmatively disclose. Pointing to the adversarial nature of the complaint process and the binding effect of the resolutions, AILA likened complaint resolutions to other documents that the D.C. Circuit has deemed “final orders or opinions” for which publication is required.
A decision by the D.C. Circuit Court of Appeals to compel disclosure of the redacted information would foster greater government transparency, in keeping with both the letter and spirit of the FOIA. Such a ruling would also represent a long-overdue step toward holding immigration judges publicly accountable for inappropriate treatment of noncitizens.