When a federal court is considering your case, and the court clerk asks you for a relevant document, don't respond that the clerk should file a Freedom of Information Act request. Here's an excerpt from yet another Judge Posner opinion slamming the federal government's immigration bureaucracy:
The lawyer [for the asylum seeker] filed a written brief, but because he failed to attach the required certificate (see 8 C.F.R. § 1003.3(c)(1)) stating that he had served the brief on the Department of Homeland Security, the Board refused to consider it. (The record is silent on whether he served the department. The brief is not in the record, and when the Clerk of our court asked the Board for a copy of it he was told that he would have to file a request for it under the Freedom of Information Act!) The Board, or rather a single member authorized to act for the Board, went on to affirm the immigration judge’s decision without opinion.
Bad litigation tactics on the government's part, it seems to me. (Note that Judge Posner does not use exclamation points often.) The rest of the opinion has more substantive criticisms of the government's actions, including the immigration service's use of what the opinion calls "junk science."
UPDATE: Whoops -- forgot to include a link to the opinion; just corrected it. Thanks to How Appealing for the link, and to commenter Edward A. Hoffman for the reminder.
This is off-topic, but what the heck is going on in Padilla today?
Could you add a link to the opinion, or at least tell us its name and docket number so we can find it on our own?
Is this really a "litigation tactic"? It sounds like the clerk asked the BIA for a copy of the brief, not DHS. I.e. the clerk asked the lower tribunal for the brief, not the government party.
Telling a Circuit to file a FOIA does beat the cake, I must admit. Of course, they were probably talking to a file clerk who'd once been told "if anyone asks for a copy of a brief, you must tell them to file a FOIA request." They might not have known what the Circuit was... I knew a couple of government legal secretaries, of many years experience, who one day asked me what "certainly denied" meant. They were referring to "cert. denied." I guess they figured it was something beyond just denying a petition -- maybe a minute entry reading: "On petition for certiorari: CERTAINLY NOT!"
Nonesense. The statute says they must respond within twenty business days.
[Rolling on floor hysterically laughing]
I've sometimes gotten responses almost within that limit. Rare, but not impossible. And also quite a few where it took six months before an evasive or false reply, and 1-2 years of litigation.
I have never heard any circuit-court clerk, liberal or conservative, defend the performance of the Immigration Judges, the Board of Immigration Appeals, or the DHS in immigration litigation. It's debatable where the blame lies, though.
I've asked in a few different threads now-- if this is a false rumor, my apologies for hounding you about it. But it's not wildly implausible, as a prof who posts here had threatened banning.
Actually, I've ALWAYS gotten a response in time.
Not a complete response. And certainly not a substantive response. But always a response saying they need more (an undefined amount) time. Heck, just yesterday I recieved a couple of more documents from a simple FOIA I filed in May of 2003 regarding a copy of a power point a senior government official presented in 1998. The response of course, was like all the other responses, non responsive. That is, they weren't actually a copy of the power point we requested.
Just wish I was authorized to sue over this one.
Now if only Congress would get off it's behind and overhaul the INA to reflect some coherent immigration policy (I support open borders, but the INA is just a disaster in drafting no matter what you support).
You must be appearing in front of a different set of IJs. Having been on both sides, there are some hostile (to aliens) IJs, but there are also many who bend over backwards to grant relief (including at least one who has been repeatedly praised by name in reported cases by the 9th Cir.)
This is not to defend the frequently shoddy work of soem IJs and the BIA.
I engaged in a series of FOIA requests and suits over Waco--the whole thing spanned three years. The military was very good at responding. Justice was so-so. ATF was terrible. Same with the suits. We had four requests for extension of time on one motion alone. Over a dozen in one lawsuit. And these weren't complex motions. (On one, I got away with a two-page reply. Gov't argued it shouldn't release an audiotape because it had parts that were inaudible, but possibly they could be cleaned up and made audible, and possibly they would then reveal secrets operation codes or agent names, and it didn't have to clean them up and find out because FOIA does not require an agency to create a file anew. Reply: agency has the burden of proof in asserting an exemption: here, the agency not only fails to assume the burden, it absolutely refuses to do so. We won).