FOIA Lawsuit Seeking Disclosure of the CBP Officers’ Reference Tool

FOIA Lawsuit Seeking Disclosure of the CBP Officers’ Reference Tool

AILA v. DHS et. al., No. 1:16-cv-02470 (D.D.C. filed 12/19/16)

STATUS:
Pending

On behalf of the American Immigration Lawyers Association (AILA), the American Immigration Council, in cooperation with Foley & Lardner LLP, filed a lawsuit under the Freedom of Information Act against U.S. Customs and Border Protection (CBP) seeking the public release of CBP’s Officer’s Reference Tool (ORT). The ORT replaced the CBP Inspector’s Field Manual (IFM), which previously provided guidance regarding the inspection and admission of individuals to the United States at U.S. ports of entry. AILA seeks to ensure that CBP makes a copy of the ORT available to the public, as it did with the IFM.

AILA seeks records relating to the discontinuation of the IFM, the issuance and implementation of the ORT, and a copy of finalized and implemented portions of the ORT. Disclosure of the ORT will aid members of the immigration bar in advising their clients, assist AILA and other non-governmental organizations with ongoing liaison and advocacy efforts with respect to CBP policies and practices, and inform the general public regarding the process of inspection and admission to the United States.

AILA filed suit after CBP failed to respond to its 2013 FOIA request and an administrative appeal filed two years later.   Since then, CBP has disclosed only a handful of documents and moved for summary judgment on the argument that policy documents linked to in the ORT are not “contained” in the ORT and thus do not need to be disclosed.  AILA contends that these policy documents are currently in use by CBP officers in the field and thus are covered by the FOIA request, and seeks a court order that would compel CBP to fully respond to its FOIA request.

On March 30, 2018, the court denied CBP’s motion for summary judgement, finding that the agency is required to review and disclose responsive records, including underlying policies and documents that form the basis of the ORT.

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