Close Up Of Gavel Resting On Its Sounding Block

A U.S. District Court judge in Denver has ruled that U.S. Immigration and Customs Enforcement was in violation of the Freedom of Information Act by withholding certain immigration case files from attorneys.

“ICE invented a reason for nondisclosure that isn’t found anywhere in the FOIA statute,” said ACLU of Colorado Legal Director Mark Silverstein, one of the lawyers for the plaintiff. “Thanks to the court’s ruling, ICE will no longer be able to impede immigration attorneys from advocating for their clients by refusing to disclose documents they are entitled to by law.”

Jennifer M. Smith, an immigration attorney in Glenwood Springs, submitted a FOIA request to the federal government in 2013 asking for the records of one of her clients. Two years later, ICE informed Smith that it considered her client a “fugitive” and would not turn over the entirety of the records. This turned out to be an unwritten policy.

In August 2016, Smith sued the agency. The next month, she received an unannounced delivery of the missing pages from her client’s file. Smith then amended her complaint to ask the court to prevent ICE’s “pattern or practice” of denying similar FOIA requests.

ICE proceeded to modify its fugitive policy in 2017 to create a standard operating procedure, although an administrative error prevented the correct information from getting to requestors immediately.

In his opinion, Judge William J. Martínez slammed Smith for her “gamesmanship,” and stated that “no reasonable factfinder could find that the Fugitive Practice continues (in its original form, at least)”.

However, he wrote that the new standard operating procedure is narrower than the restrictive older policy, “but not in a way that matters. ICE will continue to withhold under the SOP a substantial portion of the records it would have withheld under the Fugitive Practice.”

Since the policy’s adoption, ICE denied 333 FOIA requests on fugitive grounds out of more than 110,000.

Martínez found that while ICE’s databases do contain records “which should not be released due to the potential interference with enforcement proceedings” and could therefore withhold certain information, ICE’s practice of categorically withholding records from those it deemed fugitives meant that Smith “has thus carried her burden to show that there is no set of circumstances under which the SOP is lawful under FOIA.”

The case is Jennifer M. Smith v. U.S. Immigration and Customs Enforcement.

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