The Second Circuit has ordered the Board of Immigration Appeals (BIA) to publish immigration decisions, reversing an earlier federal district court decision and challenging the Department of Justice’s longstanding practice of failing to publish BIA decisions in any forum easily accessed by the public. The parties have agreed on a schedule requiring the BIA to post 50% of its past decisions by July 15, 2026, and all past decisions by July 15, 2027.
What changed
The case, brought by the New York Legal Assistance Group, highlights agencies’ obligations under the Freedom of Information Act (FOIA) to make certain records publicly available without individuals or organizations having to file individual FOIA requests to obtain them—a requirement sometimes called the “reading room provision” because agencies maintain FOIA Reading Rooms on their websites accessible to the public.
The court pointed out that more than 30,000 unpublished decisions are issued each year by the BIA, though only about 30 decisions a year are designated as precedential and therefore binding on future immigration courts. Government attorneys, immigration judges, and even the BIA itself refer to these 30,000 unpublished decisions even though they aren’t publicly available.
The Second Circuit reversed a previous ruling, finding courts do have the ability to order the BIA to make documents publicly available, not just available to an individual FOIA requester, and disagreed with the D.C. Circuit, finding it had wrongly interpreted FOIA to prevent courts from ordering public disclosure.
In limited circumstances, however, the BIA may still exempt certain decisions from disclosure, such as when the identity of the individual subject to the decision would be revealed even with redactions.
Why it matters
Under FOIA, documents that fall under the reading room provision cannot be “relied on, used, or cited as precedent by an agency” unless they are publicly available, or the party opposing the agency has “actual and timely notice of the terms thereof.” The fact that unpublished decisions were cropping up in immigration court and BIA decisions was very problematic.
Though these decisions don’t establish precedent, they are extremely important in assisting immigration attorneys determine how an immigration judge or the BIA may rule on certain issues. The unpublished cases include factors the BIA considers in making decisions and can help identify issues that may be ripe for litigation.
The BIA’s settlement in this case presents an important victory not only to the plaintiffs, but also to immigrants who now may be able to discern clues of how their cases could be decided at the appellate level. The decision helps level the playing field for immigrants who have had to respond to government arguments and court decisions based on unpublished BIA decisions.
Way forward
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Monitor the BIA reading room. Beginning July 15, 2026, the BIA will begin posting previously unpublished decisions. Practitioners should regularly check the BIA decisions portal for newly posted decisions relevant to your cases.
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Update your research workflow. As more unpublished decisions become publicly available, factor them into your precedent research and client advisories. These decisions, while non-precedential, can signal trends in how the BIA weighs particular facts and legal arguments.
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Cite with confidence in opposition. When government counsel or immigration judges cite unpublished BIA decisions against your client, you now have a pathway to locate and analyze those decisions to mount an effective counter-argument.
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Track implementation. The full corpus of unpublished decisions will not be available until July 2027. Plan your litigation strategy accordingly, and revisit decisions in light of newly available materials if circumstances permit.
Disclaimer
This article is for informational purposes only and is not legal advice. The information presented is accurate as of the publication date, but immigration policy and court decisions change frequently. We are a software company, not a law firm, and cannot advise on your specific situation. Please consult with a licensed immigration attorney to discuss how this development affects your individual case or practice. Always verify any information against the primary source linked above.