Court Rules Against Lawyers Who Sued DHS Over FOIA Discovery

You are fighting a removal case. Your lawyer asks ICE for the records they plan to use against you. ICE says: file a FOIA request. Weeks pass. The hearing date gets closer. The documents still haven't arrived. This is the situation that a group of Boston immigration attorneys tried to fix in court — and in October 2026, the First Circuit Court of Appeals shut that effort down.

What the court decided — and why it matters

The case was brought by Greater Boston Legal Services, the law firm Araujo & Fisher, LLC, and two individual immigration attorneys. They argued that DHS, ICE, USCIS, and CBP follow an unofficial "Nondisclosure Policy" — meaning the agencies routinely refuse to hand over immigration records directly and instead tell lawyers and their clients to submit Freedom of Information Act (FOIA) requests. FOIA is a federal law that lets the public request government records, but it was designed for transparency, not for building a legal defense in a live immigration case. The attorneys said this practice violated the Immigration and Nationality Act (INA), DHS regulations, and the Fifth Amendment's Due Process Clause.

The First Circuit, in a ruling issued October 29, 2026, did not decide whether the policy itself is legal or illegal. Instead, the three-judge panel — Judges Gelpí, Howard, and Dunlap — ruled that the attorneys who filed the lawsuit did not have "standing" (the legal right to bring a case in federal court). The court found the attorneys could not show the kind of direct, concrete injury that Article III of the Constitution requires to sue. The district court in Massachusetts had earlier dismissed most of the claims; the First Circuit affirmed that result, just for a different reason.

For immigrants in removal proceedings or asylum cases, the practical problem remains unchanged. Agencies can still direct you to FOIA when you ask for your own records. FOIA responses are supposed to arrive within 20 business days, but the agencies regularly miss that deadline — and even on-time responses often omit documents or redact key information. Lawyers in the case described spending hours reconstructing records, filing continuances in immigration court, and preparing backup applications just because they could not get the government's files in time. That burden now falls entirely on you and your attorney to manage, with no court order forcing the agencies to change.

What to do

• If you have an upcoming immigration court hearing or asylum interview, ask your attorney right away which records DHS, ICE, or USCIS may use — and whether a FOIA request has already been filed to obtain your A-file (your complete immigration history file).
• FOIA requests can take months. File as early as possible. Your attorney can submit a request to the specific agency that holds your records: USCIS, ICE, or CBP each have separate FOIA offices.
• If documents do not arrive before your hearing, your attorney can ask the immigration judge for a continuance (a delay) to give more time to gather records. Courts do grant these, but you need to ask.
• If you believe records are missing or heavily redacted, lawyers recommend appealing the FOIA response administratively before going to federal court — that step is usually required before a judge will hear a FOIA dispute.

Related: our step-by-step guide — “Appealing to the BIA”.