A federal court ruled in December that ICE violated the Freedom of Information Act (FOIA) by denying immigration lawyers access to their clients’ files.
Immigration lawyers are not entitled to their clients’ files, so many rely on FOIA requests. ICE defended the practice because the agency deems the lawyers’ clients that are in their custody as “fugitives.”
But that reasoning was not within the nine stated exemptions in the law, and the ACLU decided to file a lawsuit. FOIA requires federal agencies to provide documents to any person who requests them.
“The government needs to follow the law,” ACLU of Colorado legal director Mark Silverstein said. “The government doesn’t get to make up extra exceptions to disclosure. This was a lawless and illegal practice.”
In 2013, Glenwood Springs immigration lawyer Jennifer Smith filed a FOIA request to U.S. Citizen and Immigration Services for information about one of her clients. USCIS then forwarded the request to ICE, who refused, stating “It is ICE’s practice to deny fugitive alien FOIA requesters” in 2015.
Smith then filed a lawsuit in 2016, arguing that there is no FOIA exception that would justify ICE’s practice. Soon after, ICE sent Smith the information she originally requested. Regardless, she continued on with her lawsuit, stating that this was an ongoing problem with ICE.
According to court documents, ICE used this practice as justification to deny FOIA requests at least 333 times between July 21, 2017, and April 4, 2019.
ICE has about a month remaining to appeal, Silverstein said.