Smith V. US Immigration and Customs Enforcement

Case No. 2015-18


The ACLU of Colorado filed a Freedom of Information Act (FOIA) lawsuit challenging a practice by Immigration and Customs Enforcement (ICE) of withholding documents, without legal justification, that immigration lawyers require to advocate for clients that the agency deems to be “fugitives.”

Jennifer Smith, an immigration attorney, filed a FOIA request to U.S. Citizen and Immigration Services (USCIS) for records related to the immigration status of one of her clients.  Immigration attorneys have limited discovery options and can generally gain access to a client’s immigration file only by filing a FOIA request.

USCIS identified a set of documents as responsive and referred the request to ICE, which refused to release the documents.   Instead of relying on one of the statutory exemptions, ICE asserted that Ms. Smith’s client was a “fugitive.” In such cases, the agency wrote, it was ICE’s “practice” to deny access to the FOIA process.

The Freedom of Information Act requires federal agencies to promptly provide responsive documents to any person who requests them.  An agency may only deny a FOIA request based on one or more of nine stated exemptions in the law.  In this case, ICE did not provide Smith any legal justification based on the exemptions for denying access to her client’s immigration file.

The ACLU lawsuit seeks release of the files that were denied to Smith, as well as an end to ICE’s practice of denying FOIA requests based on a justification that has no basis in law.

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