Immigration Article of the Day: Between A (Limestone) Rock and a Hard Place: Class Certification in Suits Alleging Pattern Or-Practice FOIA Violations on Immigration Records Requests by Narintohn Luangrath
The Immigration Article of the Day is Between A (Limestone) Rock and a Hard Place: Class Certification in Suits Alleging Pattern Or-Practice FOIA Violations on Immigration Records Requests by Narintohn Luangrath, just published in the Harvard C.R.-C.L. Law Review.
Here is the abstract:
An Alien File (“A-File”) contains official government records that document a noncitizen’s immigration history. These records can help verify a noncitizen’s legal status, facilitate an application for immigration benefits, or even support a defense against charges of removability. However, noncitizens in removal proceedings do not have an affirmative right to their A-Files. Because there is no formal right to discovery in U.S. immigration courts, attorneys from the U.S. Department of Homeland Security (“DHS”) are not required to disclose evidence relevant to a noncitizen’s immigration case. Instead, noncitizens are forced to rely on the Freedom of Information Act (“FOIA”) to access their own immigration records. This Note analyzes the use of pattern-or-practice class actions to challenge systemic FOIA violations by DHS and its components. Specifically, it argues that the class action device offers advantages over individual suits when challenging the agency’s routine failure to issue timely determinations on FOIA requests for A-Files. Even in a post-Wal-Mart Stores, Inc. v. Dukes litigation landscape, recent federal court decisions suggest the growing viability of class actions as a tool to vindicate noncitizens’ FOIA rights against recalcitrant immigration agencies. Accordingly, this Note examines how named plaintiffs and putative classes can satisfy heightened commonality requirements under Wal-Mart. In light of a circuit split on the issue, it also recommends how courts should resolve mootness problems that may arise during the class certification process
