A series of FOIA requests regarding the Attorney General’s decision in Matter of Castro-Tum seem to have revealed something strange about that decision: it was edited after the Attorney General issued it.
E-mail messages to and from BIA staff on May 17, 2018, the day the Attorney General purportedly issued the decision, now indicate the decision received from the AG was incomplete and that it was edited by the BIA and its staff and then twice re-uploaded on the agency’s website that evening. It was again edited and again re-uploaded the next morning.
The resulting question is whether the version of that decision which is currently posted on the EOIR’s website is really the decision made by the Attorney General. And if it was edited after the AG issued the decision, is it still binding?
Background on the Certification Process and the AG’s Decision
The Attorney General has limited authority to make immigration policy without an act of Congress. One way permitted by the current regulations is to order the Board of Immigration Appeals to “certify” a pending appeal to the Attorney General and then for the Attorney General to issue a decision. Margaret H. Taylor, a brilliant law professor and expert on administrative law, has written a lengthy explainer on the process (and concerns about whether it is lawful) here.
When the Attorney General issues a decision this way, it is supposed to then guide the BIA and Immigration Judges going forward. One of the decisions the Attorney General certified to himself this year was a BIA Decision in the case of Reynaldo Castro-Tum, a child who had not appeared at his asylum hearing. Because the Immigration Judge hadn’t seen enough evidence the kid actually gotten notice of the hearing, he temporarily paused the case until the kid could be informed.
The Attorney General’s decision currently on the agency’s website here said for the first time that temporarily pausing a case, an action called “administrative closure,” which the agency and courts have recognized as lawful for over 50 years, is suddenly no longer allowed. If that decision is binding, it makes a lot of people’s immigration court cases needlessly more difficult.
So, Did the BIA Edit the Decision After-theFact?
Here’s the timeline from the e-mails we’ve received through via FOIA requests and why I think the BIA and its staff edited the decision after-the-fact at least three times:
1. EOIR Director Receives Decision from AG and Sends to Staff.
On May 17, 2018 at 1:07 PM, EOIR director James McHenry sent an e-mail to unknown participants indicating the AG’s decision in Castro-Tum was finished.
By the way, my FOIA request for McHenry’s e-mails has been referred to the AG’s office for unknown reasons. This version was located in EOIR employee Kate Sheehy’s e-mail, which is here. McHenry’s e-mail said he was attaching a .pdf and a Microsoft Word version of the AG’s decision and that this version purportedly sent to him by the AG’s office was “effective immediately.”
2. EOIR Uploads the AG’s Decision in its Original Form.
At 4:39 PM on May 17, 2018 the decision has been uploaded to the agency’s website here, and this e-mail is sent to the BIA members, the IJs, and most of the EOIR’s staff:
The full pdf of these e-mails, which were obtained via FOIA from EOIR staff member Katherine Reilly, is here.
3. The BIA Edits the Decision and Uploads the New, Edited Version.
At 5:35 PM, Charles Adkins-Blanch, the Vice Chairman of the Board of Immigration Appeals sends this e-mail, saying “please see the attached updated decision.”
At 5:45 PM Mr. Adkins-Blanch indicates that the BIA added additional language to Footnote 13 of the AG’s original decision, and the updated version was uploaded to the agency’s website:
4. The BIA Again Edits and Re-Uploads the Decision.
Then at 5:54 EOIR Director James McHenry wrote to staff saying the decision needed to be edited again to add “headnotes” that had been written by the Office of Legal Counsel.
Then an EOIR staff member said the “BIA folks” should “redo the pdf” and upload the edited version, what would be the third official version of the decision uploaded to the agency’s website:
5. The BIA Apparently Again Edits the Decision and Again Re-Uploads it on May 18.
The last edit we don’t know much about. We only know from the metadata in the document itself that the version on the agency’s website today says it was edited on May 18. Specifically, the metadata contained in the .pdf file of final version on the agency’s website says the current .pdf file was created from a Word document on May 18, 2018 at 9:34 AM.
As far as I can tell, this is at least the third different version of this decision that was uploaded to the agency’s website.
If the BIA Edited the AG’s Decision, Does it Matter?
I think these e-mails show that the AG issued a formal decision, sent it to EOIR staff to upload to its website, and then EOIR staff, including employees of the BIA, edited that decision.
So, what gives? Does this matter?
I think the answer is yes.
There are already substantial questions about whether the Attorney General has authority to, with the stroke of a pen, change 60 years of settled immigration law, which is codified in Federal Regulations and in published federal court decisions. Many of those questions are outlined in Margaret Taylor’s article from 2016.
But let’s assume the AG really does have this authority. If he’s going to issue a decision that commands the BIA to act, shouldn’t his actual decision stand on its own?
What authority does the BIA have to edit a decision issued by the AG which purports to direct the BIA’s conduct? There is certainly no authority for that in the federal regulations or any prior agency or court decision. Was anything else in the decision edited? How much was added or taken away from Footnote 13? And where is the prior versions of the decision, the first of which was purportedly attached to the May 17, 2018 e-mail James McHenry sent at 1:07 PM?
These are not petty concerns. The child in the case of Matter of Castro-Tum was ordered deported as a direct consequence of this decision.
Soon, people negatively affected by the AG’s decision in Matter of Castro-Tum will start seeking federal court review of the decision if they haven’t already. And in those cases the courts will be asked if that decision is a reasonable interpretation of the law. If courts are asked to decide whether the AG’s decision was well-reasoned or makes sense, shouldn’t they get to read the actual decision the AG issued?
If the decision was riddled with errors, contained incomplete sentences in a footnote, or needed to be edited after-the-fact, wouldn’t that matter when a court is deciding whether it was a reasonable action by the Attorney General?
I don’t know the answer to all of these questions. I have a series of additional FOIA requests pending and anticipate we are likely going to have to take some of them to court eventually. But for now, as we try to determine on the ground whether Immigration Judges can administratively close cases (as the regulations say they can but the current version of the AG’s says they can’t), it is going to be important to get to the bottom of this.