Nancy Morawetz

Volume 69, Issue 4, 1271-1310

In the first year of the Trump Administration, the courts played a critical role in reviewing and shaping federal immigration policy. When nonprofits and states filed prominent cases challenging the “travel ban,” the public could follow the court process in real time, as new filings were published on the web. But this access to filings is highly unusual for immigration cases. Due to Federal Rules promulgated in 2009, there are special restrictions on access to immigration filings that mean that filings in cases that are less prominent are impossible to access electronically. Thus, as immigration enforcement continues to ratchet up, there will be a huge difference in the ability of the public and affected individuals to monitor those cases that are sufficiently noteworthy to lead to high level press attention, as compared to the thousands of other cases in which the government seeks to detain and deport noncitizens. The difficulty in scrutinizing these cases is all the greater when noncitizens are detained in remote locations or away from places where they have access to counsel and advocacy organizations. This Article argues that the special rule restricting electronic access to immigration cases does a poor job of balancing competing concerns. The history of the rule shows little consideration of the range of immigration issues before the courts or the impact that the rule might have on the development of doctrine. Furthermore, the rule creates an odd mixture of privacy protection and public access that is poorly suited to any of the purported goals of the exception. The Article proposes changes to the Federal Rules of Civil Procedure and Appellate Procedure that would achieve a better balance between the public interest in overseeing matters before the courts and the privacy interests of litigants.

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