Does the Board of Immigration Appeals have the Authority to Solicit Amicus Briefs on Vague Policy Questions?

 

A few days ago the Board of Immigration Appeals posted a super confusing amicus invitation.  

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Some of my colleagues have identified the case behind the solicitation. But why the secrecy? How can "members of the public" weigh in on a case that the invitation declines to mention, especially when the question provides no information on the statute, regulation, or constitutional precedent(s) at stake?

This prompted me to wonder if there were any legal criteria or protocols to which the BIA was supposed to adhere when posing such questions. If so, what were they?

Down the rabbit hole 
Under current regulations, the only apparent authority for the Board to recognize amicus briefs is tied to briefs for "person[s]," not policy questions. 

§ 1292.1 Representation of others. 

(a) A person entitled to representation may be represented by any of the following.... 

(d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby.

A regulation authorizes amicus briefs for the benefit of a person. But nothing here references amicus curiae file a brief to support the Board's policy research.

"EOIR’s Board of Immigration Appeals Launches Pilot Program to Solicit Amicus Curiae Briefs"  -  The list of past solicitations of amicus briefs goas back to 2015.

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The Obama-era program  initiated a pilot project consistent with the ambit of the recent BIA solicitation. Its authority expired in 2016.  That said, an Interim Final Rule published in March, 2026 references the practice, but the practice itself has no independent authority. 

The Department also recognizes that, because these briefing procedures will apply when the Board has not summarily dismissed the case, such cases may present important or novel issues for the Board to resolve on appeal. Thus, this rule does not preclude the Board from exercising its expertise to determine whether to request or accept additional briefing to resolve the appeal. See8 CFR 1003.3(c) (“In its discretion, the Board may request supplemental briefing from the parties after the expiration of the briefing deadline.”); EOIR Policy Manual, pt. III, ch. 4.6(i) (last visited Jan. 30, 2026), https://www.justice.gov/​eoir/​reference-materials/​bia/​chapter-4/​6 [ https://perma.cc/​2QPY-HB5N] (discussing amicus curiae briefs); see also EOIR, Agency Invitations to File Amicus Briefs (Sept. 10, 2025), https://www.justice.gov/​eoir/​amicus-briefs [ https://perma.cc/​6R64-8GAM] (explaining that EOIR “occasionally invites members of the public to file amicus curiae briefs addressing issues of significance” and allowing members of the public to subscribe to receive such invitations).  

Is the incorporation of a protocol that expired in 2016 into an IFR enacted in March of 2026 sufficient to make it legal? No idea.  

Post-2016 authority? 
The authority for the recent solicitation is not tied to the 2026 IFR but to a regulation that itself does not authorize this practice.

The invitation states its authority as  EOIR Policy Manual, Part I: Introduction § 5.3(b)(6):

 (6) Amicus Curiae - An appearance as amicus curiae is not a request to represent a party before the Board.  Therefore, a Notice of Entry of Appearance Form is not required.  

The Board generally limits the appearance of amicus curiae to the filing of briefs.  See Part III, Chapter 3.6(i) (Amicus Curiae Briefs).  Amicus curiae may request an opportunity to present oral argument, but such requests are granted sparingly.  See Part III, Chapter 7.7(d)(5) (Supplemental briefs).  

A person or organization wishing to make an appearance as an amicus curiae must file a written request with the Clerk’s Office, preferably with a cover page labeled “REQUEST TO APPEAR AS AMICUS CURIAE.”  See Appendix A (Directory), Appendix D (Cover Pages).  That request should specify the name and alien registration number (“A number”) of the matter in which an amicus curiae wishes to appear and articulate why amicus curiae should be permitted to appear.  A brief should accompany the request to appear as amicus curiae.  If the Board grants the request, the parties will be provided an opportunity to respond.  See Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs).  The( request and brief should be served on all parties to the proceedings.  See Part III, Chapter 2.2 (Service on the Opposing Party).

The Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors. 

Tunnel One - Chapter 3.6 (i), the first link, has no reference to any authority for soliciting a brief on a question generated by the Board of Immigration Appeals:

(i) Amicus Curiae Briefs

Amicus curiae briefs are subject to the same rules as parties’ briefs.  See Chapter 3.6 (Appeal Briefs), 3.7 (Briefing Deadlines).  The filing of multiple coordinated briefs from different amici that raise similar points is disfavored.  Rather, prospective amici should submit a joint brief along with the request to appear.  See generally Part I, Chapter 5.3(b)(6) (Amicus Curiae).  In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.

Nothing here that allows amicus briefs on behalf of "issues" and not "person[s."

Tunnel Two - Part III, Chapter 7.7(d)(5) (Supplemental briefs) - also no authority for BIA soliciting an amicus brief on a policy question:

  (5) Supplemental briefs - While the Board generally does not accept supplemental briefs, an exception is made for cases that have been granted oral argument.  Parties may submit supplemental briefs in anticipation of oral argument, but parties are not sent a supplementary briefing schedule.  Parties may submit supplemental briefs until 15 days prior to the date of oral argument.  Parties may reply to supplemental briefs up until 7 days prior to the date of oral argument.  Supplemental briefs should be directed to the Oral Argument Coordinator.  Supplemental briefs are subject to the same requirements as other briefs.  See generally Chapters 2 (Filing with the Board), 2.2 (Service), 3.6 (Appeal Briefs), 4.4 (Motion Briefs).  Amicus curiae are subject to the same supplemental briefing rules and limitations as the parties.  See generally Part I, Chapter 5.2(e) (Amicus Curiae); see also Part III, Chapter 3.6(i) (Amicus Curiae Briefs).  Supplemental briefs must be served on the opposing party as expeditiously as they are served on the Board. 

Again, nothing that allows amicus briefs on behalf of "issues."

Tunnel Three - Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs).:

 (h) Reply Briefs

 (1)  Appeals of Immigration Judges’ decisions issued before March 9, 2026 - The Board does not normally accept briefs outside the time set in the briefing schedule, including any brief filed by the appealing party in reply to the response brief of the opposing party.  See subsection (f), above.

The Board may, in its discretion, consider an appealing party’s “reply brief” when the following conditions are met: (i) the brief is accompanied by a “MOTION TO ACCEPT REPLY BRIEF,” (ii) the motion is premised upon and asserts surprise at the assertions of the other party, (iii) the brief identifies and challenges the assertions of the other party, and (iv) the motion and brief are filed with the Board within 21 days of the filing of the other party’s brief.  The brief should comply generally with the rules for motions.  See Chapter 4.2 (Filing a Motion).  If the appeal was filed by a detained alien, see Chapter 3.7(a)(2) (Detained cases).

The Board will not suspend or delay adjudication of the appeal in anticipation of, or in response to, the filing of a reply brief.

(i) Amicus Curiae Briefs

Amicus curiae briefs are subject to the same rules as parties’ briefs.  See Chapter 3.6 (Appeal Briefs), 3.7 (Briefing Deadlines).  The filing of multiple coordinated briefs from different amici that raise similar points is disfavored.  Rather, prospective amici should submit a joint brief along with the request to appear.  See generally Part I, Chapter 5.3(b)(6) (Amicus Curiae).  In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.

So also no additional authority for inviting amicus briefs tied to a policy question and not a specific person.  

Why bother with any of this? 
Because the stakes are huge. Do we want executive agencies appropriating the prerogatives of the judiciary and declaring statutes unconstitutional?  Do we want the Department of Justice in particular to be doing this? What would this mean for the rule of law? If EOIR cannot follow its own internal rules, and if the BIA cannot form an intelligible legal question, do we really want the Board to be making constitutional decisions? Absent a concrete question tracking its own regulations, the only appropriate response to the BIA's solicitaiton appears to be rhetorical.  

 

 

 

 

ICE Releases Hundreds of its Detention Subfield Office Addresses and Phone Numbers, Following Court Order

 ICE, We Know Where to Find You! 
Release from Deportation Research Clinic, Buffett Institute for Global Affairs, Northwestern University

 Chicago Sample List from 1,250 Rows of ICE Subfield Offices Nationwide  
For entire spreadsheet, click here

 

Chicago Sample List of ICE Addresses and Phone Numbers 

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Backstory
In 2009, I encountered an ICE report indicating that ICE had 186 "subfield offices," meaning locations with holding cells designed for 24 hours or less.  I filed a request of ICE requesting a list of their locations.  
 

When I received the list, I was stunned to learn that one of the locations was in the Chelsea Market, a couple blocks from my apartment.  The Chelsea Market is a tourist scene, not to mention home to the Food Network and other glam enterprises.  You can read about my conversation with the guy running the U.S. Marshal operation and coordinating on the third floor with ICE's Fugitive Operations in The Nation, "America's Secret ICE Castles."  The guy in charge  did not appreciate my pointing out that he was using Rachel Ray as a human shield and asked me not to reveal their operations, a request I turned down.  Here's a link to the list and story from 2009.  

About ten years later, I was looking at a release of similar list posted on the National Immigrant Justice Center.  Except it was too short and no addresses or phone numbers were included.

ICE's response to my request for the data for the missing fields was an unreadable PDF.  After years of litigation, and a court order from Illinois Northern District Court Judge Mary Rowland, ICE coughed up this list.  The contact information and specification of responsibilities should be helpful to those trying to assist folks ICE is arresting.

 

Many thanks to my FOIA attorney Nicolette Glazer.  The Deportation Research Clinic operates on a miniscule budget and the work of intrepid undergraduate research assistants, who draft our complaints and analyze productions.  Thanks to Gabriel Sanchez, Class of 2026, who worked on this litigation and many other cases.  
Please consider  supporting our work.      

 

Update, March 13, 2026 - The spreadsheet does not include the 88 Tenth Ave., NYC (Chelsea Market) location where ICE previously operated.  Turns out that the U.S. Marshals et al. relocated a few years ago to Brooklyn.  The new address and phone numbers are listed in the recently released spreadsheet as "NYC ECP" (Enforcement Criminal Prosecutions).   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Evanston Mayor Daniel Biss Defends Free Speech, Rejects Northwestern President Michael Schill's 2024 Demand for "Mass Arrests"

Northwestern University students and staff lock arms during a confrontation with school security officers at the scene of a pro-Palestinian protest at Deering Meadow on April 25. (Betsy Wilson), patch.com

In a 2024 Chicago Tribune op-ed, then President Michael Schill claimed he negotiated an agreement with faculty and students protesting NU's entanglements with Israel because of "core value of universities to engage in dialogue and seek to bridge differences peacefully."  Referring to the "Deering Meadow Agreement" struck April 29, 2024, Schill wrote, "This resolution -- fragile though it might be -- was possible because we chose to see our students not as a mob but as young people who were in the process of learning. It was possible because we tried respectful dialogue rather than force."

Since then, Schill has admitted, bragged in fact, that this was bullshit, and that he had wanted to bring in the police, according to his statement to Congressional staff in August, 2025:  

The mayor of Evanston called me and said he wouldn’t be sending in the police. I said to him, ‘We have a mutual aid agreement.: He said, ‘You know, you can sue me if you want.’ … We talked again the next morning, and he was consistent, and the police chief was consistent. So, we lost the ability to use force to remove the tents.

Schill claimed he could have ordered the 32 UP officers to remove the tents, but decided against it: “We weren’t going to send in a tiny police force.”

That was just a lie.  The Northwestern University Police did indeed try to break up the encampment, shortly after it began on Thursday, April 25, 2024.  Schill sent in the NUPD, as he did on other occasions as well.  But the NUPD didn't have the numbers to disperse the protestors and withdrew.   

Records recently released to me under the Illinois Freedom of Information Act show Schill repeatedly pressured Mayor Daniel Biss to bring down the encampment. In an email time stamped Friday, April 26, 1:34 a.m., Biss told his staff of his recent phone call with Schill and Northwestern's Chief Operations Officer Luke Figora,  "their best option at this point is to clear the encampment and make mass arrests first thing in the morning," they told Biss.   Biss disagreed. "The way I left it was that I would talk with our team and get back to them, but that I was skeptical of their ask. Because I wasn't able to catch Luke [of the City of Evanston], I haven't gotten back to them. I was, however, able to speak with Chief Stewart who shares my view that mass arrests of peaceful protesters would escalate the situation and is nothing we should participate in."

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Email from April 25 makes it clear that Schill saw the students as a "mob" meriting "mass arrests" from day one.

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 Schill later rationalized his negotiations and promises in the Deering Meadow Agreement, many unkept, as in keeping with a view of student protestors as "young people in the process of learning."  

The email from Biss to his staff on his phone call in the early morning hours of Saturday, April 26 states in full:

Please do not share any aspect of or information from this email with anyone.
Tonight around 10am I had a relatively lengthy call with Mike Schill and Luke Figora.
The purpose of the call was for them to explain that:
(1) their best option at this point is to clear the encampment and make mass arrests first thing in the morning;
(2) [REDACTED covering vulnerability assessments, security measures, and tactical response]
(3) EPD should participate in this clearing/arresting operation.
They were well aware that this is not what EPD would like to do; essentially they were calling me to ask Evanston to change its position.
I found their points very unpersuasive and pushed back pretty hard. They were unmoved. I would describe the conversation as respectful but tense
(and at some moments quite pointed).
The way I left it was that I would talk with our team and get back to them, but that I was skeptical of their ask. Because I wasn't able to catch
Luke, I haven't gotten back to them. I was, however, able to speak with Chief Stewart who shares my view that mass arrests of peaceful
protesters would escalate the situation and is nothing we should participate in.
So, my expectation is that as soon as I'm able to connect with Luke in the morning, I'll call Northwestern back and say that EPD is not prepared to
participate in their clearing and arresting operation.
There are several unknowns here:
(1) I don't know if they actually would refuse to try this without our help, or if that was just a bluff;
(2) Either way, I don't know what their public statements will be;
(3) Nobody knows how the protests will evolve, with or without arrests.
I'm really worried that things could spiral in a bad way, especially if NU continues down this path. We're going to need to be careful to make good
decisions and to communicate very well. 

 Biss's text messages with Schill track these events.  (Biss text in blue.)  

 

I also found of interest the email from Rabbi Dov Hillel Klein to Schill, forwarded to First Ward representative Clare Kelly on April 25 - "For your eyes only."  The email was heavy on his emotions and those of certain Jews shared with him, but, save one exception, the statements he found offensive are boilerplate political slogans objecting to U.S. foreign policy toward Israel and the mass slaughter of civilians by an ethnocracy.  These include Klein's concerns about "hearing a faculty member who is on the faculty senate get up in a microphone and not only criticize Israel, Jews, for what is taking place in Gaza in a very violent tone."  A "violent tone"?  Meaning the tone of someone deeply disturbed and angry by war and apartheid?  Klein is not worried about Israel's actual slaughter targeting non-Jews, or the cycle of violence engendered by attachments to the nation-state, but someone's "tone" in a faculty meeting at a university where he does not teach?  And so, Rabbi Klein is entitled to instruct Schill on faculty speech?  

Also offensive to Rabbi Klein, this same faculty member "shouted at the NU Police officers who were there to protect everyone... 'Why are you here?'  The meaning was very clear: leave. All the protestors started shouting with such disrespect and disdain 'Why are you here?'"   I hope Rabbi Klein's pearls survived his clutching, on hearing protestors express the same concern to the NUPD held by Mayor Daniel Biss, about the incompatability of a peaceful demonstration with police interference -- and of course it is very clear now that Schill did not intend the police to "protect everyone," but rather to make mass arrests of those protesting.

The only alarming chant was one Klein did not personally observe: "What got me was when a student who was very shaken up shared with me a video where the crowd was screaming 'How many Jews did you kill today?'"  I asked colleagues on a chat thread who spent time at the encampment if they were familiar with such a chant and no one could recall it, although they did recall the chant, "how many kids did you kill today?" referencing Israel's destruction of children in Gaza.  Another colleague wrote: "No one leading chants wanted to call for 'killing of Israelis and Jews' because Jewish students were right there, leading chants."

I have sent an email to Rabbi Klein requesting documentation and will update if it is forthcoming.  Absent this, the big takeaway is that the calls for dismantling and fears of antisemitism brought to Schill's attention were unfounded.  (Other emails also are alleging antisemitism untethered to any specific antisemitic statements or events.) 

There is a lot more that can be said about these records.  My own takeaway is that they provide further evidence of NU's leadership appropriating a nonprofit university to advance their personal agendas using secrecy, lies, and force.  Schill's op-ed claims that the Deering Agreement "was possible because we sought to follow a set of principles, many of which I would argue are core to the tenets of Judaism."  The Hebrew Bible does include a lot of meshuggeneh ideas, and no small amount of deceit and people smoted; but does Schill really believe that secrecy, lies, and force are "core to the tenets of Judaism"?  

These releases provide further grounds for the Illinois legislature to pass a law that would obligate the same transparency for records held by private institutions of higher education as is required for public universities in Illinois.   

Mayor Biss and the City of Evanston protected free speech in 2024 by refusing Schill's demand for "mass arrests" and are allowing for sunlight today.  If it were not for the state legislature enacting freedom of information laws, and Evanston abiding by them, we would not know of these communications.  We need to pass laws today to insure trustees and officials running Illinois nonprofits do so to benefit the public, and not their profits or their political agendas.      

The full trove of emails responsive to my request are available here, though most pages are repeats of threads.

I requested these records in my capacity as a political science professor who publishes on public policy as well as the current president of the Northwestern University chapter of the American Association of University Professors.  

If you are a faculty member, please feel free to join our chapter (or that of another institution) via aaup.org .

If you are a journalist and wish further comment, I may be reached at jackiestevens AT protonmail DOT com.  

June 26, 2025 Expedited Removal Order to Deport California-born U.S. Citizen, Citing Removal Order Immigration Judge ... Terminated in 2004

ICE Really is Out to Get Miguel Silvestre, a U.S. Citizen  

Miguel reached out to me a couple years ago because he couldn't shake the fear that Immigration and Customs Enforcement might try to mess up his life, again.  Miguel was born in Stockton, California and has a contemporaneous birth certficate.   I pursued records requests so he could obtain the bogus records driving his original deportation as well as the records on its termination in 2004, so that having them might give Miguel some documentation, prevent this from happening again, and give him some peace of mind.  (You can read about his ordeal here.)

Beseiged since early 2025 by reporters who wanted to know how a U.S. citizen could be deported, I posted a few months ago a detailed narrative of Miguel's experiences.  Even though they went back to 1999, 2002, and 2004, the screen shots document how immigration agents then and today work with local law enforcement to deport, or in Miguel's case, simply kidnap, a U.S. citizen.

On July 4, 2025 Miguel had a day off work and called me back. I was so relieved to hear from him.  I wasn't able to reach him earlier in the week and worried he was already picked up. Still, I felt awful about the alarming news I had to break to him.  

A Customs and Border Patrol release of his records to me last week, one I thought would include historical materials, revealed ICE had written up a new arrest warrant and on June 26, 2025 issued a fresh expedited removal order, meaning that any encounter with any law enforcement entity could mean Miguel goes straight to Mexico, without an immigration hearing.  

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Miguel's been working on a construction site a three hour drive from home, waking up at 3:30 in the morning and returning home at 7:30 p.m.  He's still traumatized from the kidnapping experiences 20 years ago and newly worried about a fender bender he caused from his exhaustion, one that involved the exchange of insurance information but not a police report.  We discussed what he could do to prevent another nightmare.  "I carry that 2004 order in my backpack everywhere I go," he told me.  

How is this even possible?  Miguel should be the last person in this country who should be flagged for immediate removal.  I should be more worried about deportation than Miguel.  That's because only Miguel has an order from an immigration judge terminating his deportation and stating Miguel is a U.S. citizen, based on his mother bringing down to Florence, Arizona, a copy of Miguel's birth certificate. 

 

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Miguel is not the only one who should be alarmed.  The U.S. Supreme Court needs to revisit the precedents derived from vague treatises on national sovereignty, on which the Chinese Exclusion Act precedents overturning the Constitution's due process rights were based. Miguel's plight further highlights the toxicity of the "nation" and its "national security" myths on which these cases relied. It's time to use originalism to overturn vague claims that are not grounded in the text of the Constitution.    

On the occasion of our celebration of independence from England, We the People should be able to celebrate our independence of pernicious myths of the U.S. as a nation.  (A chapter reviewing this jurisprudence will appear in a forthcoming collection of essays edited by Nicholas De Genova and Daniel Morales, Border Abolitionism: Migrant Struggles and the Law, Duke University Press.)

Butler County Jail and ICE Violate Labor and Immigration Laws, Line Official Claims Coffee Packets for Work are "Monetary"

 

 

In 2019 I published records on the work program for those in custody under immigration laws at the Butler County, Ohio jail, as well as my interview with the warden.  The gist is that the program was paying people for work with coffee packets.  The sherriff expressed his view that it was fine for him to employ the same protocols for people in custody under criminal laws for people in ICE custody. 

In reporting on this, I contacted ICE's public relations office.  When they failed to answer my questions about the discrepancies between the programs and the law, I filed an additional FOIA request.

Five years after failing to provide responsive records and four years into litigation, ICE yesterday released some damning emails - 169 pp.).  

6:04 p.m.  

The highlights: ICE confirms the Butler County program was not in compliance; the inspection group erroneously claimed the jail did not have a work program and omitted any evaluation of the unlawful practices; and other jails also were and likely are still out of compliance.

6:12 p.m. (DSM = Detention Service Manager, supposed to monitor compliance)

I'll fill in the details later but wanted to make this available asap.  It is further evidence that the compliance reports are garbage and that ICE knows this.  The good news is that ICE did finally release information underscoring the agency's disrespect for the rule of law.  The bad news is that sitting on it so long -- part of a pattern and practice of violating the FOIA -- deprives the public of real-time accountability, though it may still be quite useful for suing Butler and other jails that violated their contracts and the law.

It also raises more questions about what is going with the DOJ's amicus brief supporting the work program protocols ICE officials internally affirmed to be unlawful.  

Judge Orders Executive Office of Immigration Review to Produce Screenshots and other Requested Records, Fails to Find Fault When Agencies Blow Off Deadlines

Sharing the latest motions and order from FOIA litigation. Main takeaways from Northern Illinois Federal District Court Judge Matthew Kennelly's order of October 2, 2023: 

(1) Agencies cannot refuse to search records systems indicated by a requester without demonstrating the search is burdensome:

Federal agencies vary greatly in their size, mission, the type and amount of information they collect and generate, and their record-keeping practices. A request may be unreasonably burdensome for one agency but easy to satisfy for another. Stevens has argued that EOIR's limited role, combined with the manner in which it organizes its records, means that it could "easily" conduct a search of its "emails, case notes, scheduling, and case administration system . . . by the A- number and/or the name of the non-citizen." Pl.'s Resp. at 8. EOIR, on the other hand, has not argued or provided evidence that it could not do so. The Court therefore finds that EOIR did not make "a good faith effort" that was "reasonable in light of the request" when it searched for only the record of proceedings in response to the Silvestre, Archie, Hoang, and Charpentier requests. Rubman, 800 F.3d at 387. The Court orders EOIR to promptly conduct a good-faith and reasonable search for all remaining records specifically identified in the June 2021 Silvestre request, the August 2021 Archie request, the March 2022 Hoang request, and the August 2022 Charpentier request. 1:22-cv-05072 Document 53, 10/02/2, p. 11.

This order is basically just telling the Executive Office of Immigration Review to do its job.  EOIR for years has produced screenshots, calendars, and outputs from case management systems indicating adjournments without a need for a court order.  Whoever is handling EOIR's FOIA office for these requests decided to make life difficult for the folks who need these records, including a guy born in California and deported to Mexico, as well as the AUSA handling their case, the judge, my attorney Nicolette Glazer, and me.  Whoever is behind this waste of time deserves a performance review noting their stunning waste of agency resources.

(2)   Summary judgement granted - Customs and Border Protection must immediately produce records responsive to my request for information about insurance executive and fake nurse Rep. Lauren Underwood's (D-IL) biometric database bill written at the behest of a federal contractor, seemingly General Dynamics. (Click on Lauren Underwood tag below for more on her role in depriving Cook County's poorest residents the health care she hypocritically claims that she supports.)

(3)  Agencies disregarding FOIA deadlines will not receive adverse orders via summary judgment, according to Judge Kennelly. (A bunch of us in the transparency community find the precedents cited here bad law.)

Will update next week with motions.

Court Grants Order in FOIA case for Preliminary Injunctive Relief, Annual Budget Analysis Key to Ruling

      On March 30, 2023, Northern Illinois Federal District Court Judge Matthew Kennelly issued a preliminary injunction ordering Immigration and Customs Enforcement to review at least 1,500 pages/month.  A key rationale for the order was the failure of ICE to account for its refusal to request funds sufficient to maintain its statutory obligations to comply with the Freedom of Information Act:

Although ICE argues that it has received a "dramatic increase in FOIA requests in recent years" and thus "cannot practicably process records any faster," Def.'s Suppl.Mem. at 2, ICE does not respond to Stevens's contention that ICE could have met its FOIA obligations by submitting appropriate budget requests. And it is hard to swallow the proposition that an agency may, by its decisions on how to allocate resources, effectively make FOIA’s expedited processing provision a dead letter. ICE accordingly fails to persuade the Court that granting a preliminary injunction in this case will harm the public interest. See Open Soc'y Just. Initiative, 399 F. Supp. 3d at 168–69 ("DOD's decision to thus far deny itself the technologic capacity to speed its review cannot dictate the Court's assessment of the review pace that is 'practicable' under FOIA.").
Similarly unpersuasive is ICE's vague assertion that any processing rate faster than 500 pages per month risks disclosure of exempted documents. See Elec. Priv. Info. Ctr., 416 F. Supp. 2d at 42 ("Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA
seeks to further—government openness and accountability."). 22-cv-05072 ECF 34, March 30, 2023

 

 

The Order is referencing Plaintiff documention of ICE officials time and time again telling Courts, "sorry, we don't have enough resources to follow the law," but telling Congress "we're good." 

 

Most agencies have a similar track record: telling courts they do not have resources to fund their FOIA operations, while not requesting more funds from Congress. The data on which we relied can be found and used for an identical argument for most agencies. 

Plaintiff documentation of ICE's lapses can be found he    re, including the sources.  (Thanks as ever to my fabulous attorney Nicolette Glazer.)

Postscript - April 5, 2024.  Order is for ICE to review 1,500 pages/month.  After the order, ICE released ZERO pages for several consecutive months, claiming it was reviewing 1,500 pages (without indicating what these were) and finding zero responsive pages.  Attorney did not litigate to push back on ICE assertions.  Case still in litigation. 

ICE, Increase the Real Intelligence Budget!

 

"Planned Activities: Respond to all media, NGO, educational, commercial and individual FOIA requests within the statutory time limits..." From fy 2016 ICE budget

"Don't ask and ye shall not receive."
- FOIA budgeting muse

I was talking with some colleagues today about the well-known problem of Immigrations and Customs Enforcement and other agencies telling requesters and courts that they cannot comply with mandatory Freedom of Information Act  deadlines because of equipment and staffing shortages.  And then the same agency tells Congress in their budget proposals, "Hey, nothing to look at here.  We've got our FOIA operations covered."  

Usually agencies ask Congress for more funds for their programs. What's up with this?  

Of course, ICE's daily mode of breaking the law benefits not one whit from misconduct being revealed.  If ICE had its druthers, I'm guessing it would request $100 billion to run drones to sweep up data on every person on the planet, and its FOIA budget would be "0." 

Congress passed the FOIA in order to deputize citizens to expose agency activities to sunlight necessary for oversight and policy changes.  There have been numerous episodes in which Congressional letters to agencies have gone unanswered but nonprofits and citizens have ferretted out the requested information through their FOIA litigation, especially during the Trump administration.  

The problem with the FOIA budgeting goes to the overarching need for the FOIA in the first place: agency officials make bad decisions, sometimes even ones that are illegal, and they want to keep these secret.

Why would Congress or anyone else think that the very agencies whose top officials are breaking the law would be requesting funding to support a program that effectively reveals their waste, fraud, and unlawful violence?  

A few FOIA lawsuits have been calling out ICE and US Citizenship and Immigration Services on this point. (TRAC's Sue Long at Syracuse University has been a tireless and productive trailblazer.  You can find their cases here and other cases on the incredible FOIA Project case locator.)

A few docs illustrating ICE's budget game can be found in the record of Civil Rights Education and Enforcement Center v. United States Department of Homeland Security et al. 1:18-cv-00302-JLK.  

Here are filings about the budget and ICE's misrepresentations:
Declaration of Catrina Pavlik-Keenan (2018) - She says she has been the director of the ICE FOIA office "since that office was created on December 18, 2006" (1).  (Fwiw, ICE was founded in 2003.) Anyway, she says ICE cannot process the documents as mandated by the law because it lacks the resources.  

Plaintiff Response (2018) - The plaintiffs pull a screenshot from the fy2018 budget and note, correctly, that "the current level of FOIA requests being received by ICE was both predictable and in fact anticipated. Yet the 2018 Budget request makes no mention of any funds needed or requested to address the anticipated increase in the number of FOIA requests" (4).

Plaintiff Motion for Sanctions (2019)  

The fy2018 budget on which CREEC relies does not specify funds expended.  

But other ICE budgets do give us a peek at what's going on.  (DHS budget page, through fy2022.)   

The fy2019 budget has information tied to new House accounting requirements that are requiring ICE to break out expenditures it otherwise does not report in its budget request to Congress.  It looks like of the $6.7 billion Congress appropriated for ICE in 2017, ICE spent just $6.45 million on FOIA operations.  (I agree.  That seems SO low; if anyone has another way of reading page 24 of the pdf, let me know.  The page is reporting figures for programs that going forward will be relabelled, to help budget wonks figure out what's happening when the columns move.)   

 

Otherwise, the FOIA operations are not broken out from the overall "mission support" category, which includes as well fire arm training.

Submitted for

fy 2022 - asks for four more employees/ $782k more for its ongoing FOIA/Privacy Act work.  Does not state amount spent in 2021. (p. 39,pdf).  On the next page, ICE tells Congress to budget $123k less than the previous year, due to one-time ("non-recurring") savings.

fy2021 - The document indicates that in fy2019 mission support included 2,210 total employee and spent  $1,091,898, and that in fy 2020, mission support included  2,210 employees and sent $2,092 $1,271,110.

fy 2020 - "Select Mission Support staff will be dedicated to resolving 86,320 FOIA in FY 2020, a 37% increase from FY 2018" (p. 49 pdf).

fy 2019-  This is the proposed budget that shows enacted budget of $6.45 million for iCE in 2017 (p. 24) and proposed increases to $9.627 million for 2018 and 2019.

fy 2018 -  " As depicted in the graph below,the number of FOIA requests fulfilled in FY 2018 is expected to triple from FY 2014 levels. Higher productivity is attributed to a growing workforce and implementation of new software" (p. 62, pdf).

fy 2017 - pt ii, p. 10. For the section including FOIA officers there are many other requests for increases, but no request to increase funding for FOIA requests: 

An increase of $16.1 million and 4 full-time equivalents (FTE) for the Headquarters (HQ) Managed IT Program to support  critical and long overdue improvements in Identity, Credentials, and Access Management (ICAM), cloud support, and system bandwidth. Funding will support an additional eight personnel (4 FTE) to ensure 24/7/365 availability and to meet
the cybersecurity needs of ICE IT systems, infrastructure, and services. p.10 pdf

fy 2016 - p.1435 Program Change Requests

"Changes ICE requests program changes for the Salaries and Expenses appropriation in the following key areas:
• Increase in new attorney positions…………………………...….….$36.5M (197 FTE)
The request will provide funds for 82 attorney positions requested in the October 2014 Technical Assistance and 282 new attorney positions. OPLA requires additional attorney resources to meet its increasing workload driven by recent increases in the number of Department of Justice (DOJ) immigration judges (IJs) and ongoing southwest border surge operations as well as additional requirements anticipated as a result of an increase in Freedom of Information Act (FOIA) requests and appeals. These additional positions are expected to decrease the average length of stay of detainees by 14 percent.
• Increase in Detention Beds to 34,040 [😕] …….…..………………....$435.392M (0 FTE) To meet operational needs to detain and remove both criminal aliens and recent border entrants, ICE requests an increase in the overall funding for beds to meet operational needs. The proposed increase will fund 31,280 adult beds at an average rate of $123.54 and 2,760 family beds at an average rate of $342.73 from ICE’s discretionary appropriation and fees." 

p. 1438 - "Increase of $482 thousand for annualization of the FY 2015 FOIA enhancement.' 

p. 1441

FY 2016 Planned Activities - "In FY 2016, ICE will"
 ....

One more broken promise...

 ICE did ask for 6 more FOIA employees. Not clear what happened (p. 1583)

 

FOIA Motion for Judgment on the Pleadings

Novel Attempt to Avoid Government Dithering

click to enlarge

A release from ICE that revealed a heretofore secret policy position on its work program took SIX YEARS of FOIA litigation to obtain. So much for the 20 days in the statute.  

In an effort to speed along litigation, attorney Andrew Free is trying out a Motion on the Pleadings. Here's what the litigation looks like to date:

Doc 7 - PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS 5/21/2020 

Doc 7-1 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JUDGMENT ON THE PLEADINGS 5/21/2020

Doc 12 - DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS 6/18/2020 

Doc 13 - PLAINTIFF’S REPLY IN SUPPORT OF JUDGMENT ON THE PLEADINGS 6/23/2020