NEW YORK—The U.S. Court of Appeals for the Second Circuit today reversed a lower court ruling requiring the Department of State and the U.S. Citizenship and Immigration Services to disclose documents in a Freedom of Information Act (FOIA) lawsuit brought by the Knight First Amendment Institute at Columbia University. The Knight Institute, represented by the Samuelson Law, Technology and Public Policy Clinic at U.C. Berkeley School of Law, sought the release of records relating to the “extreme vetting” of people seeking to come to the United States, a policy introduced by the Trump administration.

“We are disappointed by today’s decision, which allows the government to hide immigration policies and practices that raise significant First Amendment concerns from public view,” said Catherine Crump, director of the Samuelson Clinic, who argued the case in the Second Circuit in January.

In August 2017, the Knight Institute filed a FOIA request for agency records relating to these “extreme vetting” policies and to the government’s claimed authority to exclude or remove non-citizens from the United States based on their speech, beliefs, and associations. Later that year, the Knight Institute filed a lawsuit, Knight Institute v. DHS, to enforce the request. In September 2019, the district court ordered the agencies to release key portions of records that would shed light on these policies, which the government appealed.

“While these policies nominally apply only to foreigners, they have significant implications for Americans as well,” said Carrie DeCell, senior staff attorney at the Knight First Amendment Institute. “The government should not be conducting ideological screening tests for visitors whose views we are constitutionally entitled to hear.”

In response to the Knight Institute’s lawsuit, the government has released thousands of pages of records relating to the government’s ideological screening policies. These records include internal presentations and memoranda noting First Amendment and other “speech related” concerns raised by the Trump administration’s policies, as well as internal emails and databases discussing hundreds of traveler complaints about intrusive questioning or searches at the border. Taking them together—and reading through excessive redactions—these records reveal how extreme vetting policies threaten the freedom of expression and association of people entering the United States. The records are available in a Knight Institute Reading Room here. 

In addition to reversing the district court’s ruling requiring disclosure of two sets of records, the appeals court remanded the case with regard to a third record. Read today’s decision here.

Read more about the lawsuit here.

Lawyers on the case include, in addition to Crump and Megan Graham of the Samuelson Law, Technology and Public Policy Clinic, U.C. Berkeley School of Law; DeCell, Alex Abdo, and Jameel Jaffer of the Knight First Amendment Institute at Columbia University.