Key Points

  • The First Circuit held that immigration attorneys, a law firm and a legal services organization lacked Article III standing to challenge DHS's practice of directing record requests in immigration proceedings to FOIA.
  • The court found that scattered FOIA referrals across ICE and USCIS did not establish a uniform, agency-wide Nondisclosure Policy, so the claimed injury was not concrete.
  • Even assuming such a policy existed, the court held that higher costs of representation and reduced client capacity are voluntary expenditures that do not create organizational standing under Havens Realty Corp. v. Coleman as narrowed by FDA v. Alliance for Hippocratic Medicine.
  • The court said legal service providers may still have standing where a policy directly interferes with their core business activities, citing Marasco & Nesselbush, LLP v. Collins and U.S. Department of Labor v. Triplett.
  • The panel affirmed the district court's judgment for the government on different grounds and did not reach the merits.

Immigration lawyers and a Boston legal aid group cannot sue the Department of Homeland Security over its practice of sending requests for case records through the Freedom of Information Act, a federal appeals court ruled on Oct. 29, holding that the extra cost of representing clients is not the kind of injury that gives a lawyer the right to sue.

The U.S. Court of Appeals for the First Circuit affirmed a judgment for the government, though on different grounds than the trial court had used. Judge Gelpí wrote the opinion for a panel that also included Judges Howard and Dunlap. The panel raised the standing question on its own during oral argument, even though neither the district court nor the government had addressed it.

The decision applies the Supreme Court's 2024 ruling in FDA v. Alliance for Hippocratic Medicine to lawyers who sue on their own behalf. Under that reading, a law firm or legal services provider does not acquire organizational standing merely because a government policy makes its cases more expensive or limits how many clients it can take. "It is not sufficient to allege that a challenged policy makes legal representation more costly," Judge Gelpí wrote.

The plaintiffs on appeal were Greater Boston Legal Services, the law firm Araujo & Fisher, LLC, and attorneys Annelise M. Araujo and Stefanie Fisher. They sued in the U.S. District Court for the District of Massachusetts in January 2021. They alleged that DHS and its components, including U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement and Customs and Border Protection, follow a "Nondisclosure Policy" of directing noncitizens to file FOIA requests rather than producing records needed in immigration proceedings. They claimed the practice violated the Administrative Procedure Act, the Immigration and Nationality Act, a DHS regulation and the Due Process Clause.

The lawyers alleged that the agencies regularly miss FOIA's 20-business-day response deadline and often omit or redact documents. To compensate, they said, they interview clients, relatives and prior attorneys, gather records from numerous courts, seek continuances and prepare otherwise unnecessary applications. Because most of their work is billed at flat fees, they said, they are often not fully compensated for that time, and the effort limits how many clients they can serve.

U.S. District Judge Denise J. Casper narrowed the case in stages. The district court dismissed the due process claim, concluding that only noncitizens themselves could assert it, and dismissed the claims tied to removal proceedings. It then granted summary judgment to the government on the remaining claim about affirmative asylum proceedings, finding that the lawyers had not shown a formal DHS policy existed and that any such policy did not violate the regulation and was not arbitrary or capricious.

At oral argument on May 7, 2026, the First Circuit ordered supplemental briefs on standing under Alliance for Hippocratic Medicine. The government responded that the lawyers could not satisfy the causation and redressability elements of standing because the policy they challenged does not actually exist.

The panel agreed. It found that the FOIA referrals the lawyers cited occurred in different DHS components, in ICE removal proceedings and in USCIS asylum adjudications, and that such scattered instances do not add up to an agency-wide policy. "The purported Nondisclosure Policy is simply Appellants' conclusory label that describes practices whereby various Agencies make varying degrees of information available by varying means in various proceedings," Judge Gelpí wrote. Without a uniform policy, the court held, the claimed injury was not concrete.

The court went on to reject the lawyers' standing theory even assuming the policy existed. The lawyers relied on Havens Realty Corp. v. Coleman, a 1982 Supreme Court case in which a fair-housing group had standing because a landlord's false statements about apartment availability interfered with its "core business activities." They argued the DHS practice made their work "vastly more costly and time-consuming." The government countered that the lawyers better resembled the medical associations in Alliance for Hippocratic Medicine and, like them, were trying to manufacture standing "by means of voluntary expenditures."

Judge Gelpí wrote that the housing group in Havens was injured because the landlord's falsehood directly impaired its ability to counsel tenants, and that its extra spending was a result of that injury rather than the injury itself. The immigration lawyers, by contrast, had other ways to obtain the records their clients needed. "Although the procedure may be more tenuous than preferred, it is nonetheless a feature of the battle that Appellants have volunteered to fight," the court wrote.

The panel warned that accepting the lawyers' theory would stretch Havens to cover "the routine costs that all lawyers bear when they represent clients." Judge Gelpí offered examples, including a Second Amendment advocacy group challenging a firearm ban, and quoted a Supreme Court hypothetical of a medical malpractice attorney challenging tort reform statutes. Such a rule "could functionally eliminate the Article III standing requirements for any lawyer who seeks to invalidate a government policy," Judge Gelpí wrote. "Then the lawyer could walk into court, leave the client at the door, and claim for his own sake that the policy makes it harder to represent the client."

The court said its ruling has limits. "This is not to say that a provider of legal services never has standing to challenge a government policy on its own behalf," Judge Gelpí wrote. The opinion cited a law firm's challenge to a Social Security Administration fee-payment policy and, as an example of lawyers suing for the rights of third parties, an attorney's challenge to a Black Lung Benefits Act fee restriction. In those cases, the panel said, the challenged rules directly interfered with the attorneys' core business. The DHS practice did not.

Sandra H. Masselink represented the appellants, with the American Civil Liberties Union Foundation of Massachusetts and Ropes & Gray LLP on the brief. Simon G. Jerome represented the government, with Justice Department lawyers on the brief. Susan M. Finegan of Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. filed an amicus brief supporting the appellants for the American Immigration Lawyers Association.

Because the lawyers lacked standing, the panel did not decide whether routing record requests through FOIA violates the immigration statute, the DHS regulation or due process. No judge wrote separately, and the district court's judgment for the government stands.