Standards for Avoiding Deportation Cannot Be Shrouded in Secrecy

In July and November of 2018, the American Immigration Council, along with the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin Cardozo School of Law, filed two requests under the Freedom of Information Act (FOIA) with the Executive Office for Immigration Review (EOIR), seeking statistical information, as well as policies and guidance, regarding Board of Immigration Appeals (BIA) standards for issuing stays of removal. A stay of removal is a particularly crucial mechanism by which a noncitizen who seeks to reopen a prior unlawful order can avoid swift deportation before an opportunity to have his or her case considered by the immigration courts.

To date, the standards which govern these stays have been largely shielded from public understanding, as the BIA has not issued meaningful guidance on how stays are issued or the criteria it considers in adjudicating these important requests for temporary reprieve from deportation.

Because the government failed to respond to the FOIA request, the Council and the Clinic filed a lawsuit in the Southern District of New York asking the court to order the release of this information. The lawsuit alleges that the public, including noncitizens and their attorneys, have a right to know how their requests for stays will be – and are - decided. It is crucial that the government act with transparency when standards ensuring due process are implicated.