DOJ Required to Release Immigration Policy Memo
Posted Jun 17, 2005
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In a recent victory for civil libertarians, the Second Circuit Court of Appeals issued a unanimous ruling on May 31, 2005 requiring the U.S. Justice Department (DOJ) to make available to the public an internal memorandum on immigration policy. The document had to be released pursuant to a case filed against the government by various groups under the Freedom of Information Act (FOIA).
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What Did the Government Memo Propose to Accomplish?
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The government's "secret" Memo was the result of the current Administration's desire, dating back to 2002, to permit local police to enforce civil, non-criminal immigration laws.
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Criticism of the Government's Policy
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This novel policy of the government was criticized by civil rights groups and many others, including law enforcement officials and police chiefs across the country. These critics say that state and local involvement in civil immigration enforcement would endanger their relationship with immigrant communities and divert resources from the more critical job of protecting the public from crime against persons and property.
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Legal Policy and Position of the Government
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In an effort to find legal support for the policy, an internal legal memo was prepared for use by the DOJ in April 2002 and then-Attorney General John Ashcroft. The Memo was used to justify this significant and unprecedented change in federal policy. The Memo in question outlined the justification relied upon for the government’s core position, wanting local officers to take on the duties previously performed by INS agents.
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Court's Ruling Requiring Release of the Memo
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Despite repeated requests for an opportunity to review this legal memo, groups such as the American Immigration Lawyers Association (AILA), the American Civil Liberties Union (ACLU), and the National Council of La Raza, among others, were denied access and filed a suit under FOIA. The Court’s ruling, while acknowledging the government’s right to obtain frank and confidential counsel when formulating its policies, said that “[W]e cannot allow the Department to make public use of the Memorandum when it serves the Department’s ends but claim the attorney-client privilege when it does not." Therefore, the DOJ could not keep the Memo secret while publicly and repeatedly depended on it as the primary legal authority justifying and driving the major change in government policy.
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This ruling is favorable to the important right of the public to be aware of the policies by which it is governed and the legal basis for those policies.