By Margaret B. Kwoka

The quality of justice individuals receive in immigration court has been the subject of intense criticism by advocacy groups, news media, and even federal judges for the past many years. See, e.g., Jacqueline Stevens, Lawless Courts, The Nation (Nov. 8, 2010). Reports have detailed conduct of immigration judges that has been unprofessional at best and unethical or abusive at worst. See id. Now, the Executive Office of Immigration Review (EOIR), which oversees the immigration courts, refuses to release records detailing complaints that have been submitted about immigration judges and EOIR’s resolution of those complaints.

Last month, the American Immigration Lawyers Association (AILA), represented by Public Citizen and the American Immigration Council, filed a Freedom of Information Act (FOIA) lawsuit against EOIR and the Department of Justice, where EOIR is housed [complaint]. Under FOIA, AILA had requested the complaints that had been filed about immigration judges, the final decisions of EOIR resolving those complaints, and any records showing the basis or rationale for those final resolutions. AILA also requested a public interest waiver of FOIA processing fees. EOIR never responded to the substance of the request, instead denying AILA its request for a waiver of FOIA processing fees and failing to respond entirely to AILA’s subsequent administrative appeal.

The lawsuit challenges EOIR’s refusal to grant AILA a fee waiver as well as challenging its failure to produce the requested records. AILA also claims that EOIR is violating a provision of FOIA that requires agencies to affirmatively publish all final orders adjudicating cases, insofar as EOIR does not publish the final decisions regarding complaints about immigration judges. 5 U.S.C. § 552(a)(2).

AILA’s fee waiver request is almost unassailable. FOIA provides that requesters are entitled to a waiver of fees “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). AILA, as a non-profit, presumptively has no commercial interest, and it is clear that it would use this information to inform the public about how EOIR is responding to complaints. Moreover, what little the agencies have made available indicates that only one percent of complaints against immigration judges result in formal disciplinary action, while nearly half of complaints ended in “informal action,” a term not defined by the agencies. DOJ EOIR, Complaints Received Between Oct. 1, 2011 and Sept. 30, 2012. As AILA rightly points out, without the records it requested, it is impossible to know whether EOIR’s response to complaints is adequate to ensure fairness for individuals in immigration proceedings, an issue that has already been one of public concern.

Once the threshold matter of the fee waiver is resolved, the parties and the court will move on to the merits. Again, AILA’s position is likely strong. Although decisions reflecting agency deliberations are exempt from mandatory disclosure under FOIA, agencies’ final decisions are not. See 5 U.S.C. § 552(b)(5). Moreover, learning how the government handles complaints of official misconduct—especially when that alleged misconduct could have serious negative consequences for the public—is at the heart of FOIA’s purpose. Accountability in this area is necessary, and AILA’s lawsuit is a step toward realizing public oversight of immigration proceedings.

Margaret B. Kwoka is an assistant professor at the University of Denver Sturm College of Law. Her research focuses on litigation over government secrecy and procedural justice.