Court Rules Obama DHS Violated FOIA with Stealth Amnesty Secrecy

Judicial Watch recently earned a major victory against the Obama Department of Homeland Security (DHS) in its efforts to uncover records detailing the Obama administration’s “stealth amnesty” initiative. And with DHS releasing thousands of illegal alien criminals onto the streets, it could not have come at a better time.

The United States District Court for the District of Columbia recently ruled that the Obama DHS had failed to comply with the Freedom of Information Act (FOIA) in a Judicial Watch lawsuit seeking records related to the agency’s policy of suspending some illegal alien deportations. The opinion was issued by The Honorable Colleen Kollar-Kotelly.

Our FOIA lawsuit concerns a DHS policy, implemented by Immigration and Customs Enforcement (ICE), which led to the reduction of the deportation docket in Houston, Texas, by dismissing pending enforcement proceedings against illegal immigrants who DHS claimed did not have serious criminal records.  (Now we know this was a lie. Judicial Watch uncovered records showing that multiple deportation cases were dismissed against illegal immigrants who had committed serious felonies. But more on that in a moment.)

In the old days--and by the “old days” I mean 2010--this was called “stealth amnesty.” But there’s nothing “stealth” about the Obama administration’s amnesty campaign now. According to the Associated Press, since mid-February, the Obama administration has openly and proudly released more than 2,000 illegal immigrants facing deportation from jail. Reports indicate that it plans to release 3,000 more this month.

Regarding our lawsuit and the court victory, we filed our original FOIA request with DHS on August 30, 2010, and a subsequent lawsuit on March 23, 2011, after the DHS refused to release the requested records. On January 27, 2012, the U.S. District Court denied a DHS motion to dismiss in part, chastising the agency for its inadequate explanations and giving it one “final” opportunity to establish the applicability of certain privileges in withholding the information from Judicial Watch.

In the February 28, 2013, decision, the District Court ruled that with respect to a substantial number of documents at issue, DHS had continued to withhold information improperly under the “attorney-client” and attorney “work-product” privileges:

  • Regarding DHS attempts to withhold information under an attorney-client privilege, the court ruled in favor of Judicial Watch, declaring, “[E]ach of these documents appears to concern nothing more than the implementation of an agency policy, the withholding of which runs counter to the [DC] Circuit’s [earlier] admonition that a government attorney’s ‘advice on political, strategic, or policy issues [is] not … shielded from disclosure by the attorney-client privilege.’” (The court drew a similar conclusion regarding the DHS effort to withhold information in order to protect attorney “work-product.”)

The records at issue concern internal DHS controversy over how the Houston ICE officials were interpreting the Obama administration’s narrowed immigration enforcement priorities.

Documents previously uncovered by JW show that DHS officials misled Congress and the public about the scope of its immigration enforcement policy change, which gave wide latitude to local immigration officials to dismiss illegal alien deportation cases--including the dismissal of charges against illegal alien criminals convicted of violent crimes. So don’t believe the Obama administration’s lie that public safety is not at issue here. I believe people will die as a result of this new policy. (I cited my reasons for pessimism in last week’s update.)  

But this ruling is good news at a time when the country really needs it.

It proves the Obama administration is willing to go to any extent--including gaming the courts--to continue stonewalling the full story of its lawless release of illegal aliens. Now, with the prison floodgates being thrown open to illegal aliens under the phony pretense of abiding by sequester cuts, it is more important that details of this threat to the public safety be revealed. 

We’re pleased the court would not allow DHS to continue its contempt for FOIA law. We look forward to getting those records.


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