It's a Sealed Court Document, But if You Cross My Palm with Silver ...

By David North on December 19, 2012

This is not a story about bribery, but another report on the odd mix of secrecy and openness that marks immigration cases in America's courts and semi-courts.

There is a specific employment-based, green-card immigration case, which happens to be in U.S. District Court in Eastern Michigan. The judge's decision intrigued me on PACER, the federal courts' electronic data system, so I read the full text of the judgment.

In any court case, that's the end of the story (the substance of which will be reported in a subsequent blog), but I wanted to know how it started.

Why did the employer file a complaint to open the case? What grief did he say USCIS was giving to him? What had the opposing parties argued in their briefs to the judge?

I scrolled through the documents and went to the first one, the complaint, tried to bring it up on the screen, and ran into this message:

This document is not available for viewing on line. Please contact the clerk's office for further information.

Sometimes, when a case is sealed (made secret by the judge's order) the message is a curt:

You have no right to see this document.

So I called the judge's office and asked the case manager if there was some way I could see the complaint given that I had read the decision on PACER. She said she would check with the clerk's office, and would call me back. She did about half an hour later.

She said there were special rules for immigration and Social Security cases. While you cannot read the files on PACER (for a fee of 10 cents a page), you can send a check to the clerk's office and get the document you want for a $30 filing fee and an additional copying fee of 50 cents a page. Or if you want, you can walk into the office and read a hard copy, for free. (Decisions, apparently, are handled differently.)

But since Detroit is rather distant, I am in the process of sending off a check for $39.50 — it is a 19-page complaint I was told — and we will see what we will see.

Poking around on PACER about some other immigration cases in the Eastern District of Michigan, I soon found that other documents carried the same "contact the clerk" message and in some, but not all, this was true of the decision as well.

I have noted in previous blogs the sharp contrast between the name-all-the-names practices of the U.S. Supreme Court and criminal cases before all federal courts, at one end of the openness spectrum, and the often inept secrecy practices of the case-review segment of USCIS, the Administrative Appeals Office (AAO), which scrubs the names of all lawyers, all aliens, all employers, and all judges from their published records, though sometimes clerks fail to redact names in the texts of the decisions.

My sense is that if an individual or a corporation is suing the United States for an immigration benefit — which is, after all, a government-generated good — and doing so in an open court, that unless there is a highly unusual element like a national security concern, the court documents should be open for all to see. Or, if they must be sealed, they should stay sealed.

But finding that some immigration-case secrecy matters can be unlocked with a check — that's a new, and puzzling, wrinkle to me.