19-3248-cv New York Legal Assistance Group v. Board of Immigration Appeals UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2020 Argued: September 17, 2020 Decided: February 5, 2021 Docket No. 19-3248-cv NEW YORK LEGAL ASSISTANCE GROUP, Plaintiff-Appellant, — v. — BOARD OF IMMIGRATION APPEALS, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW , UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellees. B e f o r e: JACOBS, LYNCH, and PARK, Circuit Judges. Plaintiff-Appellant New York Legal Assistance Group (“NYLAG”) seeks access to non-precedential “unpublished opinions” issued by Defendant- Appellee the Board of Immigration Appeals (“BIA”) in immigration cases. NYLAG wants to consult the opinions, which are not routinely made available to the public, to aid in its representation of low-income clients in removal and asylum proceedings. NYLAG asserts that the BIA’s failure to make the opinions publicly available violates the agency’s affirmative obligation under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(2), to “make available for public inspection in an electronic format final opinions . . . [and] orders, made in the adjudication of cases.” In this action under FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), which authorizes district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,” NYLAG seeks an order requiring the BIA to make available to the public all unpublished opinions issued since November 1, 1996, as well as future unpublished opinions. The United States District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed the case, concluding that FOIA’s remedial provision does not authorize district courts to order agencies to make records publicly available. We conclude that FOIA’s remedial provision authorizes the relief NYLAG seeks. FOIA’s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents publicly available. We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion. Judge Park DISSENTS in a separate opinion. SCOTT L. NELSON, Public Citizen Litigation Group, Washington, D.C. (Patrick D. Llewellyn, Public Citizen Litigation Group, Washington, D.C., Danielle Tarantolo, Jane Greengold Stevens, New York Legal Assistance Group, New York, NY, on the brief), for Plaintiff- Appellant. BENJAMIN H. TORRANCE, Assistant United States Attorney, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY (Arastu K. Chaudhury, Assistant United States Attorney, on the brief), for Defendants-Appellees. 2 William N. Lawton, Eubanks & Associates LLC, Washington, D.C., for Amici Curiae The Animal Welfare Institute and Farm Sanctuary. GERARD E. LYNCH, Circuit Judge: This case arises from the failure of the Board of Immigration Appeals (“BIA”) to make its non-precedential opinions publicly available. Such “unpublished opinions” constitute the vast majority of the final decisions issued by the BIA each year, and are cited and relied upon by the BIA itself, by immigration judges, and by ...
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals