Immigration lawyers have limited access to discovery.  They generally gain access to a client’s immigration file only by filing a request under the Freedom of Information Act (FOIA).

This lawsuit, filed on behalf of immigration attorney Jennifer Smith, challenges what ICE describes as its “practice” of denying access to the FOIA process when the agency regards the attorney’s client as a “fugitive.”

The Freedom of Information Act allows a federal agency to withhold documents only if one of nine specified exemptions to disclosure applies.  None of the specified exemptions authorize an agency to withhold documents on the ground that they relate to a "fugitive." 

Early in the litigation, ICE provided Ms. Smith with the documents she requested regarding her client.  ICE then argued, unsuccessfully, that the lawsuit must be dismissed as moot.    

After granting the ACLU’s motion for summary judgment, the Court issued a nationwide injunction forbidding ICE from refusing to disclose documents on the ground that they concern a person ICE deems to be a “fugitive.” Smith v. Immigration and Customs Enforcement, 429 F.Supp.3d 742 (D. Colo. 2019).

ACLU news releases:



Dan Culhane, Mark Silverstein, ACLU of Colorado Legal Director; Sara Rich, ACLU of Colorado Staff Attorney

Date filed

August 24, 2016

Case number

2015-18, 16-cv-02137,