IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DAVID RUBMAN, ) 

 ) 

Plaintiff, ) 

 ) 

vs. ) 

 ) 

JANET NAPOLITANO, Secretary ) 

Of Homeland Security and ) 

ALEJANDRO MAYORKAS, Director ) 

Of U.S. Citizenship and ) 

Immigration Services ) 

 ) 

 Defendants. ) 

COMPLAINT FOR INJUNCTIVE RELIEF 

1. This action seeks an order compelling the USCIS 

to comply with its obligation under the Freedom of 

Information Act (“FOIA”) to publish in its public reading 

rooms and on the Internet all final decisions issued in the 

adjudication of cases. 

PARTIES 

 2. Plaintiff David Rubman is an attorney who 

practices immigration law in Chicago. He has also been a 

professor of immigration law at Northwestern University 

School of Law and writes and speaks on immigration law 

issues. For a law review article he is writing on USCIS’s 

discretionary decision-making process, he requires access 

to USCIS final decisions in areas where it applies its 

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discretion. He resides within the jurisdiction of the 

Northern District of Illinois. 

 3. Defendant Janet Napolitano is Secretary of Homeland 

Security (DHS). DHS is a Department of the Executive 

Branch of the United States Government. 

4. DHS is an “agency” within the meaning of 5 U.S.C. 

552(f)(1). 

5. Defendant Alejandro Mayorkas is Director of the 

United States Citizenship and Immigration Service (USCIS). 

USCIS is a subdivision of DHS. 

6. USCIS is an “agency” within the meaning of 5 

U.S.C. 552(f)(1). 

JURISDICTION 

 7. This Court has jurisdiction over this action 

pursuant to 28 U.S.C. § 1331. 

FACTUAL ALLEGATIONS 

 8. The Freedom of Information Act imposes three 

major obligations on all federal agencies: 

 a. It must publish in the Federal Register 

descriptions of its organization, rules of procedure and 

substantive rules of general applicability; 

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b. It must publish in a public reading room (and, 

since 1996, on the Internet) other specified documents, 

including final opinions, statements of policy and 

interpretations, administrative staff manuals and 

instructions to staff that affect the public, and records 

commonly requested by the public. 

c. It must respond to individual requests for 

information and must disclose documents unless protected by 

specified exemptions. 

9. This case involves the public reading room 

component of the FOIA. In that regard, FOIA provides at 5 

U.S.C. 552(a)(2): 

Each agency, in accordance with published rules, shall 

make available for public inspection and copying –- 

(A) final opinions, including concurring and 

dissenting opinions, as well as orders, made in the 

adjudication of cases. 

. . . 

10. In the Electronic Freedom of Information Act 

Amendments of 1996, Congress mandated that reading room 

documents created after November 1, 2006 be made available 

through electronic means, i.e. on the Internet. 

11. The Department of Homeland Security’s published 

rules about public reading rooms are found at 6 C.F.R. 5.2. 

That regulation provides: 

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a) Records that are required to be maintained by the 

Department in a public reading room will be made 

available electronically at: www.dhs.gov/foia. Each 

Department component will be responsible for 

determining which of the records it generates are 

required to be made available and to make those 

records available either in its own reading room or in 

the Department's central reading room. Each component 

shall maintain and make available for public 

inspection and copying a current subject-matter index 

of its reading room records. Each index shall be 

updated regularly, at least quarterly, with respect to 

newly included records. 

12. The USCIS regulation at 8 C.F.R. 103.9 provides: 

(b) Unpublished decisions. Each district director in 

the United States will maintain copies of unpublished 

Service and Board decisions relating to proceedings in 

which the initial decision was made in his district. 

Each regional commissioner will maintain copies of 

unpublished decisions made by him. The Central Office 

will maintain copies on a national basis of 

unpublished Service decisions. 

. . . 

(e) Public reading rooms. The Central Office and each 

district office in the United States will provide a 

reading room or reading area where the material 

described in this section will be made available to 

the public... 

13. The USCIS regulation at 8 C.F.R. 103.8(b) further 

defines the term “decision” to mean: 

a final written determination in a proceeding under 

the Act accompanied by reasons. Orders made by check 

marks, stamps or brief endorsements which are not 

supported by a reasoned explanation, or those 

incorporating preprinted language on service forms are 

not decisions. 

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14. The USCIS Field Adjudicator’s Manual, the agency’s 

internal rule-book, provides as follows: 

10.13 Public Copies of Decisions. (a) General. Under 

the Freedom of Information Act USCIS is required to 

maintain a public reading room. The location of the 

USCIS reading room is in the Headquarters Building, 

Washington, D.C. In addition to general reference 

materials about the immigration laws, each office is 

required to maintain public copies, with identifying 

details blacked out, of decisions on various types of 

cases. It is not required that public copies be made 

of every decision. Public copies of orders need not be 

prepared and filed in the public reading rooms when it 

is readily known, without research, that an identical 

order has been prepared and filed in a similar case. 

USCIS is also making available on the USCIS Internet 

web site much of the information which is available in 

public reading rooms. [See 8 CFR 103.9 .] 

15. The Field Adjudicator’s manual then provides a 

detailed procedure for the gathering and maintenance of 

duplicate copies of decisions and the redaction of 

identifying material. 

16. USCIS does not follow its regulations and 

Adjudicator’s Field Manual regarding the dissemination of 

final agency decisions. 

17. USCIS only publishes in its public reading room 

and on its website copies of certain final decisions issued 

by the Administrative Appeals Unit (AAU) in cases that are 

under its appellate jurisdiction. 

18. Numerous other final decisions are issued by 

USCIS offices, none of which are published in the public 

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reading room or on the Internet. These include two large 

groups of cases that are not internally appealable (and 

hence not under the AAU’s jurisdiction): 

* Applications for permanent resident status (form I485); 

* Applications to extend or change non-immigrant 

status (form I-539). 

19. These two types of cases give wide discretion to 

USCIS to determine whether an individual may reside 

permanently within the United States (form I-485) or 

whether a temporary visitor may extend or change his or her 

status (form I-539). 

20. Because USCIS does not publish final decisions 

issued in the adjudication of such cases, and because no 

regulations stipulate how discretion is to be exercised in 

those cases, it is impossible for plaintiff and the general 

public to determine how USCIS exercises its discretion in 

individual cases. 

21. In January and February 2012, Plaintiff 

informally raised this issue with two officers in USCIS’s 

Freedom of Information Office. Those officers seized on 

the language in the Adjudicator’s Field Manual that “[I}t 

is not required that public copies be made of every 

decision” as reason to exclude entire classes of decisions 

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(such as I-485 and I-539 cases) from the public disclosure 

obligation. They failed to note the sentence that follows, 

which states that “[p]ublic copies of orders need not be 

prepared and filed in the public reading rooms when it is 

readily known, without research, that an identical order 

has been prepared and filed in a similar case.” 

CAUSE OF ACTION – FOIA 

 22. Defendants have violated the Freedom of 

Information Act, 5 U.S.C. 552(a)(2)(B), by failing to 

make publicly available all final opinions made in the 

adjudication of cases. 

REQUEST FOR RELIEF 

 WHEREFORE, Plaintiff requests that this Court: 

 A. order Defendant to make available on its electronic 

reading room all final opinions made in the adjudication of 

cases; 

 B. award Plaintiff his costs incurred in this action; 

and 

 C. grant such other relief as the Court may deem just 

and proper. 

 

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 /s/ David Rubman 

 ________________________ 

 Plaintiff 

David Rubman 

Attorney at Law 

Rubman and Harris, LLC 

53 W. Jackson Blvd. Suite 750 

Chicago, IL 60604 

(312) 341-1907 

david@rubmanlaw.com

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