The ACLU of Massachusetts, together with law firm Ropes & Gray LLP, has filed a lawsuit challenging the federal government’s ongoing practice of denying access to records that may aid an immigrant’s defense in immigration cases. The government’s practice substantially hinders the just administration of the immigration system, results in violations of federal law and the U.S. Constitution, and hamstrings attorneys’ ability to represent clients.
“Our immigration system operates as a conveyor belt of mass deportations, rather than a system that upholds justice and due process,” said Carol Rose, executive director of the ACLU of Massachusetts. “While his presidency will end soon, President Trump’s ruthless immigration policies threaten to become his enduring legacy. We must chart a different course and create an immigration system centered on fairness, justice, and human rights. That includes putting immigrants and their attorneys on a fair footing when they are involved in legal proceedings with the U.S. government.”
According to the lawsuit, the Department of Homeland Security (DHS) systemically withholds records that may help immigrants who are facing detention, deportation, or another adverse immigration action. DHS follows this nondisclosure policy regardless of whether the records are confidential, and even when the records would show a person’s eligibility for relief. DHS insists that any legal obligation to disclose records is satisfied because immigrants and their attorneys can file requests under the Freedom of Information Act (FOIA). But FOIA responses have often taken so long that immigration matters end—and people are deported—before these responses arrive. Meanwhile, immigration attorneys are forced to work with incomplete information, whereas the government can ambush their clients in court with records it refuses to disclose.
“We work every day to help people in vulnerable situations access justice, but this policy puts our clients at a strong disadvantage right from the start,” said Nancy Kelly, attorney at Greater Boston Legal Services, a nonprofit legal services organization that represents people in immigration and other legal matters. “Because DHS doesn’t disclose records, we have to painstakingly attempt to reconstruct our clients’ files based on their memory and other records that we are able to obtain.”
Challenges presented by this policy have been exacerbated by the COVID-19 pandemic; under a March 2020 order, immigrants and attorneys who appear in Boston immigration court by phone may not be able to examine any documents or evidence introduced by DHS in court.
“This lawsuit is about basic fairness. Whether a person faces deportation or seeks benefits from our immigration system, the government should adhere to principles of fairness and transparency by timely disclosing information in its possession. We abandoned arcane practices, like trial by ambush, centuries ago,” said John Montgomery, senior counsel at Ropes & Gray. “Better, more just decisions by our government will result.”
In recent years, the federal government’s policy has operated against a backdrop of increased immigration enforcement, a swell of immigration court caseloads, and a suite of policies designed to move immigrant court dockets—particularly the cases of detained people—at breakneck pace.
The lawsuit was filed Friday evening on behalf of Greater Boston Legal Services and local immigration attorneys and their law firms, Demissie & Church, Araujo & Fisher LLC, and Graves & Doyle Attorneys at Law.
For more information about Greater Boston Legal Services v. Department of Homeland Security, click here.