The Choose-Your-Own Exemption Award

Immigration and Customs Enforcement

What's an agency to do when it can't identify a FOIA exemption to justify withholding records? In ICE's case, it created its own.

As is common practice in immigration court, where there is no discovery process, attorney Jennifer Smith sought the immigration file of a client by filing a FOIA request with U.S. Citizenship and Immigration Services (USCIS). USCIS told Smith that it had identified 18 records, but instead of producing those records, it mysteriously instructed Smith to request them from ICE.

Two years later, ICE finally responded that it was withholding the records to "deny fugitive alien FOIA requesters access to the FOIA process when the records could assist the alien in continuing to evade immigration enforcement efforts." While admittedly creative, there is no "fugitive disentitlement" exemption under FOIA. Moreover, this fake exemption countered exactly what immigration attorneys are trying to do: ensure that their clients won't be considered fugitives.

The ACLU of Colorado sued on Smith's behalf, and in 2019, won the case.