N.Y. Legal Assistance Grp. v. Bd. of Immigration Appeals

401 F.Supp.3d 445

NEW YORK LEGAL ASSISTANCE GROUP, Plaintiff,

v.BOARD OF IMMIGRATION APPEALS, Executive Office for Immigration Review, and U.S. Department of Justice, Defendants.

18 Civ. 9495 (PAC)

United States District Court, S.D. New York.

Signed August 13, 2019

Danielle Feldman Tarantolo, Jane Greengold Stevens, New York Legal Assistance Group, New York, NY, Patrick Daniel Llewellyn, Public Citizen Litigation Group, Washington, DC, for Plaintiff.

Arastu Kabeer Chaudhury, U.S. Attorney Office, New York, NY, for Defendants.

OPINION & ORDER

HONORABLE PAUL A. CROTTY, United States District Judge:

Plaintiff seeks an order directing Defendants to make unpublished decisions of the Board of Immigration Appeals ("BIA") publicly available in an electronic reading-room pursuant to the Freedom of Information Act ("FOIA") or the Administrative Procedure Act ("APA"). Plaintiff asserts that the BIA's unpublished decisions are cited, used, and relied upon by government lawyers, immigration judges, and the BIA itself, but cannot be relied upon by immigration advocates because they are not publicly available. Defendants move to dismiss Plaintiff's claims pursuant to Fed. R. Crim. P. 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56(a). For the following reasons, the Court GRANTS Defendants' motion to dismiss and DENIES Plaintiff's motion for summary judgment.

BACKGROUND ¹

Plaintiff New York Legal Assistance Group ("NYLAG") is one of the largest providers of legal services to immigrants in New York City. Dkt. 1 ("Complaint" or "Compl.") ¶ 4. Among other things, NYLAG provides low-income immigrants with comprehensive legal services, including direct representation in removal proceedings and asylum. Id. NYLAG also offers immigrant community education, including "know your rights" presentations, immigration trainings, and fraud awareness and prevention programs. Id.

The BIA is an agency of the United States government and a component of the Executive Office for Immigration Review ("EOIR") and the Department of Justice ("DOJ"). Id. ¶ 7; 8 C.F.R. § 1003.1(a)(1). The BIA has jurisdiction to hear appeals from matters adjudicated by immigration judges and by district directors of the Department of Homeland Security in proceedings where one party is a noncitizen, a citizen, or a business entity, and the other party is the United States government. Compl. ¶ 12; 8 C.F.R. § 1003.1(b).

The BIA's decisions are binding on the parties unless overturned by the Attorney General or a federal court. Compl. ¶ 13; 8 C.F.R. § 1003.1(d)(7) ; 8 U.S.C. § 1252(a)(1). The BIA designates some of its final decisions as binding precedent, see 8 C.F.R. § 1003.1(g), and Defendants make those decisions available online in an electronic reading-room, see EOIR, Agency Decisions (last updated Mar. 20, 2019), https://www.justice.gov/eoir/ag-bia-decisions. Compl. ¶ 15. A majority vote of the permanent BIA members is required to designate a BIA decision as binding precedent. Compl. ¶ 15; 8 C.F.R. § 1003.1(g). Over the past decade, the BIA has voted to designate approximately thirty decisions each year as precedential. Compl. ¶ 15. All of the BIA's precedential decisions are published and made publicly available. See id.

The BIA also makes a small percentage of its unpublished decisions available online, see Compl. ¶ 17, and at the EOIR Law Library and Immigration Research Center in Falls Church, Virginia, see Compl. ¶ 19; Dkt. 31 ("Ziesemer Decl.") ¶ 12. The vast majority of unpublished BIA decisions, however, are not publicly available in an electronic format. Compl. ¶¶ 16, 18. Despite their general unavailability, the BIA's unpublished decisions are cited, used, and relied upon by government lawyers, immigration judges, and the BIA itself. See id. ¶ 24; Ziesemer Decl. ¶ 8.

On June 8, 2018, NYLAG submitted a FOIA request to the BIA under 5 U.S.C. § 552(a)(2), requesting that the BIA make available in its online electronic reading-room: "All nonpublished decisions of the BIA (including concurring and dissenting opinions) from November 1, 1996, through the present." Dkt. 32 Ex. A. On August 8, 2018, EOIR denied NYLAG's request. Id. Ex. C. On September 11, 2018, NYLAG submitted an administrative appeal of EOIR's denial of its FOIA request. Id. Ex. D. The denial was affirmed, id. Ex. F; subsequently, NYLAG initiated this lawsuit, see Compl.

Defendants move to dismiss the Complaint or for summary judgment, Dkt. 24, and Plaintiff cross moves for summary judgment, Dkt. 29.

DISCUSSION

I. Legal Standards

On a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Crim. P. 12(b)(1), the Court must determine whether it has the "statutory or constitutional power to adjudicate" the case. Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). When considering a Rule 12(b)(1) motion, the district court may refer to evidence outside the pleadings. Id. The court must accept all material factual allegations in the complaint as true, see J.S. v. Attica Central Schs. , 386 F.3d 107, 110 (2d Cir. 2004), but Plaintiff has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists, Makarova , 201 F.3d at 113.

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations omitted). As with a challenge brought under Rule 12(b)(1), courts assume "that all of the complaint's allegations are true." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). However, this assumption does not excuse a "plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief." Id. at 570, 127 S.Ct. 1955. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

Under Rule 56(c), summary judgment is warranted when, viewing the evidence in the light most favorable to the non-movant, the Court determines that there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56. The Court must draw all reasonable inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "FOIA cases are generally resolved on motions for summary judgment." N.Y. Times Co. v. U.S. Secret Serv. , No. 17 Civ. 1885 (PAC), 2018 WL 722420, at *3 (S.D.N.Y. Feb. 5, 2015). Under FOIA, "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). The agency may satisfy its burden by affidavits, rather than Local Civil Rule 56.1 statements, N.Y. Times Co. v. U.S. Dep't of Justice , 872 F. Supp. 2d 309, 314 (S.D.N.Y. 2012), but such affidavits must contain more than "conclusory assertions," N.Y. Times v. U.S. Secret Serv. , 2018 WL 722420, at *3, and must provide "reasonably specific detail" justifying the agency's action that is not "controverted by either contrary evidence in the record [or] by evidence of agency bad faith," ACLU v. U.S. Dep't of Def. , 901 F.3d 125, 133 (2d Cir. 2018). Thus, a court may award summary judgment if the affidavits provided by the agency are "adequate on their face." Carney v. U.S. Dep't of Justice , 19 F.3d 807, 812 (2d Cir. 1994).

II. Analysis

A. Freedom of Information Act

5 U.S.C. § 552(a)(2)(A) —the "reading-room provision" of FOIA—provides that: "Each agency, in accordance with published rules, shall make available for public inspection in an electronic format ... final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases ... unless the materials are promptly published and copies offered for sale." "A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—(i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof." Id.

FOIA provides that an individual may make a "request for records ... under paragraph (1), (2), or (3) of [§ 552(a) ]." Id. § 552(a)(6)(A) ; see also id. § 552(a)(6)(C)(i). If the agency fails to respond within the time allotted by statute or if the requester is unsatisfied with the result of the administrative process, the requester may file a complaint in the appropriate federal court. Id. In such a case, the court "has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B).

Here, Plaintiff does not seek to compel Defendants to produce certain documents, but rather to make publicly accessible all unpublished BIA decisions from 1996 to the present in an electronic reading-room. While the BIA may have an obligation to make available for public inspection certain opinions, id. § 522(a)(2), this Court only has jurisdiction to order the production of documents to the complainant, see id. § 552(a)(4)(B). Plaintiff does not seek this relief.

The Court has not located any binding precedent on this issue in the Second Circuit. Plaintiff urges the Court to grant an injunction based on other FOIA cases in this Circuit where the courts acknowledged that injunctive relief could be appropriate in FOIA "pattern or practice" claims. See, e.g. , Panjiva, Inc. v. U.S. Customs & Border Protection , 342 F. Supp. 3d 481, 495-96 (S.D.N.Y. 2018) (recognizing that courts in the Second Circuit "have acknowledged that declaratory or injunctive relief would be appropriate if plaintiffs successfully alleged a FOIA pattern or practice claim"...