Immigration Reporting Legal Guide – Go Health Pro

This guide was authored in 2025 by Reporters Committee Senior Staff Attorney Jennifer Nelson, Staff Attorney Renee Griffin, Media Litigation Fellow Allyson Veile, Media Law Fellow Matt Singer, and Jack Nelson-Dow Jones Foundation Legal Fellow Ellen Goodrich.

While immigration has been a contested public policy issue at various points in U.S. history, recent changes to immigration policy have heightened public attention on the subject. As a result, many journalists and news organizations are working to inform the public about the government’s enforcement of immigration laws.

This guide seeks to assist members of the press in navigating legal issues that may arise during the course of that coverage, while also explaining some of the tools that the press and the public can use to monitor the government’s actions in this area. Read the Immigration Reporting Legal Guide in Spanish / Lea la Guía Legal para Reportajes de Inmigración en Español.

Part I outlines the relevant immigration agencies that hold public records attainable by Freedom of Information Act (FOIA) requests, and offers recommendations to journalists seeking access to immigration-related public records. The Reporters Committee’s FOIA resource, FOIA.Wiki, offers general information about how to submit FOIA requests and appeals.
Part II explains access to immigration proceedings, as well as the practical obstacles to securing such access given the discretion of immigration judges to limit access and unclear judicial precedent related to a First Amendment right of access.
Part III provides information to reporters seeking to observe and record actions of immigration enforcement officers on the ground. The First Amendment generally protects the right to observe and record law enforcement officers performing their duties, but the right is not absolute, and the government may seek to restrict access in nonpublic locations or in situations where it takes the position that national security interests are especially compelling.

I. Accessing Immigration Records

The American immigration system is made up of a complex web of federal, state, and private entities. Journalists seeking immigration-related public records must understand the different bodies that control this information to ensure they send FOIA requests to the right source. Many of the relevant federal agencies are contained within the U.S. Department of Homeland Security (DHS), and most federal agencies are subject to FOIA.

DHS publishes policies and regulations related to its compliance with FOIA, 5 U.S.C. § 552, here. The federal Office of Government Information Services has also synthesized information about using FOIA to access immigration records here. Additional insight into how some of these agencies process immigration-related records requests has been published by the International Refugee Assistance Project.

Below are further details about how to submit requests to the relevant agencies, as well as a discussion of important FOIA exemptions to be aware of and additional suggestions for reporters seeking immigration records.

A. U.S. Immigration and Customs Enforcement (ICE)

ICE is a federal law enforcement agency within the Department of Homeland Security and operates detention facilities. ICE is tasked with enforcing laws governing border control, customs, trade, and immigration. FOIA requests can be filed online through the DHS FOIA portal or by mail. ICE also has a FOIA library where certain agency records can be viewed publicly without a request.

B. U.S. Citizenship and Immigration Service (USCIS)

USCIS is an agency of the Department of Homeland Security responsible for processing immigration and naturalization applications. USCIS is subject to FOIA, and requests can be submitted online or by mail. You can request:

Your own immigration records.
- USCIS maintains A-Files that contain all records of any active case of a noncitizen going through the immigration process, corresponding to a unique A-Number assigned to that noncitizen by DHS.
  - USCIS maintains custody of A-Files until they are eligible for transfer to the National Archives 100 years after the immigrant’s birth.
  - A-Files can include visas, photographs, affidavits, and correspondence leading to a noncitizen’s naturalization, permanent residency, death, or deportation.
Someone else’s immigration records if you have their written permission.
Agency policies, data, communications, and other records.

C. U.S. Customs and Border Protection (CBP)

CBP is an agency of the Department of Homeland Security and operates immigration detention facilities. U.S. Border Patrol agents are part of CBP. The agency is subject to FOIA, and requests can be submitted here. You can request:

Your own records (or another person’s records if you have their signed consent) of international travel to/from the U.S., apprehensions/detentions by Border Patrol, and secondary inspections at Ports of Entry.
Agency information such as policies, data, communications, etc.

D. Immigration Detention Facilities

ICE oversees more than 100 detention centers across the country where many noncitizens are housed until they go through immigration proceedings and are removed. ICE provides an “Online Detainee Locator System” for identifying the facility at which a detainee may be held at a particular time.

Detention facilities that are owned and operated by the federal government — including the Migrant Operation Center in Guantanamo Bay — are subject to FOIA. Many facilities, however, are privately operated through contracts with ICE, and therefore are not subject to FOIA. But even in those instances, the DHS Office of Inspector General (OIG) handles inspections of detentions at private facilities and is subject to FOIA.

DHS is moving to a new system for processing FOIA requests, and OIG has not fully transitioned to it as of February 2025. Until the move is complete, FOIA requests can be made to DHS OIG by email at FOIA.OIG@OIG.DHS.GOV or by mail. OIG also offers a FOIA Electronic Reading Room, where it provides frequently requested records for public inspection in electronic form. FOIA requests require the signature of the detained individual, as do any requests made under the Privacy Act, 5 U.S.C. § 552a, which controls the federal government’s record-keeping about individuals and allows individuals to access their personal records.

E. Executive Office for Immigration Review (EOIR)

EOIR is a sub-agency of the U.S. Department of Justice, and its chief function is to conduct removal proceedings in immigration courts and adjudicate appeals arising from those proceedings. Access to immigration proceedings held by EOIR is explained in Part II, but accessing records of those proceedings is a separate process.

EOIR differs significantly from federal court, and there are no public dockets available for non-parties to track filings. EOIR is, however, subject to FOIA. Requests for records of removal proceedings can be submitted here (not through the DHS portal, as EOIR falls within DOJ) or by mail.

Individuals who are party to EOIR proceedings (i.e., noncitizens the government is seeking to remove) may also submit a request for their Record of Proceeding (ROP) by submitting an EOIR-59 form, which is a privacy waiver that can only be completed by the person who is the subject of the proceedings. This request falls outside the FOIA process and is made directly to the court in which the proceeding occurred. The ROP will include “the documents that the Department of Homeland Security and the noncitizen have provided, including all the correspondence DHS and the noncitizen have sent to and received from the court.” Journalists working with the individual subject to removal proceedings may wish to include an EOIR-59 form along with any FOIA request.

A journalist can request an ROP without the EOIR-59 form and participation of the respondent using the typical FOIA process. Journalists submitting a request without the EOIR-59 form should specify that they are not seeking personally identifiable information and that they are willing to receive records with that information redacted in accordance with FOIA. Such requests will be subject to standard FOIA exemptions, detailed further below.

Every hearing in front of an immigration judge is recorded, unless the judge has authorized an off-the-record discussion. Those recordings are included in the ROP and are also subject to FOIA. If the decision by the immigration judge is appealed to the Board of Immigration Appeals (BIA), a transcript will be created for the appellate record of the proceeding. Appellate records are subject to FOIA, and a journalist may wish to request the transcript in addition to or in place of the audio recording of the hearing.

EOIR’s Immigration Court Practice Manual section on FOIA requests can be found here, and the Board of Immigration Appeals Practice Manual section on FOIA Requests can be found here.

F. Relevant FOIA Exemptions

FOIA Exemptions 3, 5, 6, and 7 are the most likely to be asserted by the government in the immigration context.[1] Information about other FOIA exemptions can be found on the FOIA Wiki. The government is only permitted to withhold material under FOIA’s discretionary exemptions if the agency “reasonably foresees that disclosure would harm an interest protected by an exemption.” 5 U.S.C. § 552(a)(8)(A)(i)(I); see also Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 369 n.2 (D.C. Cir. 2021) (“[T]he government’s successful invocation of a FOIA exemption cannot justify its withholding of exempt material without a more particularized inquiry into what sort of foreseeable harm would result from the material’s release.”).

1. Exemption 3

Exemption 3 applies to records exempted from disclosure by other statutes. 5 U.S.C. § 552(b)(3). This exemption is commonly invoked in the immigration context in connection with 8 U.S.C. § 1202(f), which states that “records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States.” This was the most common statute relied on by the government in response to FOIA requests between 2010 and 2019, cited 173,879 times. FREEDOM OF INFORMATION ACT: Update on Federal Agencies’ Use of Exemption Statutes, U.S. Gov’t Accountability Off. (Jan. 2021), https://www.gao.gov/assets/720/711741.pdf.

A requester can challenge a denial under this exemption if they are requesting information that does not relate to a past or present visa application, such as a document with “biographical data and information about [an individual’s] activities while in immigration detention.” Immigr. Just. Clinic of Benjamin N. Cardozo L. Sch. v. U.S. Dep’t of State, No. 12 Civ. 1874, 2012 WL 5177410, at *1, 4 (S.D.N.Y. Oct. 18, 2012). To date, courts have only upheld an agency’s invocation of 1202(f) where the requester sought “an actual visa application.” Id. at *2. “Section 1202(f) cannot be extended to cover materials unrelated to a visa issuance or denial simply because those documents are contained in a database among other documents that may pertain to visa issuances and denials.” Darnbrough v. U.S. Dep’t of State, 924 F. Supp. 2d 213, 218 (D.D.C. 2013).

2. Exemption 5

Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.” 5 U.S.C. § 552(b)(5). The U.S. Supreme Court has held that a record must meet two conditions to qualify for this exemption: (1) “its source must be a Government agency,” and (2) it “must fall within the ambit of a privilege against discovery.” U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). Recognized privileges include (1) the deliberative process privilege,[2] (2) the attorney work product privilege, (3) the attorney-client privilege, (4) confidential commercial communications,[3] and (5) statements of fact made to the government during an air crash investigation.[4]

Exemption 5 only applies to inter-agency or intra-agency communications, so would not cover records of communications with non-government third parties.

3. Exemption 6

Exemption 6 exempts “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Individual immigrants who are the subjects of removal proceedings are likely to have a strong privacy interest in their personal information revealed in the course of those proceedings, making this exemption relevant. For instance, cases in which the individual is seeking asylum to avoid removal can include highly sensitive details about persecution the individual claims they faced in their home country.

In the immigration context, this exemption has also been used to protect the identities of ICE employees who, for the purposes of responding to a FOIA request, ran searches of a database holding records of immigration removal proceedings; the court held there was no public interest or benefit in learning the individuals’ names and login information. Rojas-Veja v. U.S. Immigr. & Customs Enf’t, 302 F. Supp. 3d 300, 310 (D.D.C. 2018). However, the D.C. Circuit has refused to apply Exemption 6 to the names of all immigration judges who had complaints against them, stating that “across-the-board redaction of all judges’ names from all responsive documents was inadequately justified” because “not every judge has the same privacy interests at stake and not every complaint would equally enlighten the public about what their government is up to.” Am. Immigr. Laws. Ass’n v. Exec. Off. for Immigr. Rev., 830 F.3d 667, 674–76 (D.C. Cir. 2016) (internal quotation marks omitted).

4. Exemption 7

Exemption 7 permits federal agencies to withhold information compiled for law enforcement purposes, but only if the release of that information could result in one of the enumerated harms: interference with enforcement proceedings, deprivation of right to fair trial, unwarranted invasion of a third party’s privacy, disclosure of confidential sources, disclosure of law enforcement techniques or procedures, and endangerment of an individual’s safety. 5 U.S.C. § 552(b)(7)(A–F). Agencies that do not have law enforcement powers, such as the CIA or USCIS, are unable to invoke the exemption. There is a circuit split on how exactly to determine if the records are compiled for law enforcement purposes. One set of courts has held that any record from a law enforcement agency automatically qualifies for this exemption.[5] Other courts disagree and apply a “rational nexus test,”[6] asking whether the investigation that gave rise to the document relates to the enforcement of federal laws and whether there is a nexus between the investigation and one of the agency’s law enforcement duties. Once the agency establishes that the record was compiled for law enforcement purposes, it must point to the specific harm that would be implicated by disclosure.

Two sub-categories of Exemption 7 are particularly likely to come up in the immigration context. Exemption 7(C) protects information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Agencies also must prove that the harm to the individual’s privacy outweighs the benefits of disclosure. For example, a court found that releasing the names of Border Patrol agents accused of abusing children in DHS custody was significantly in the public interest, because the names were necessary for the public to know whether an agent was a repeat offender and whether DHS had investigated the agent. Am. C.L. Union of Ariz. v. U.S. Dep’t of Homeland Sec., No. CV-15-00247, 2018 WL 1428153 (D. Ariz. Mar. 22, 2018). One court rejected the invocation of Section 7(C) in a suit over a request about a particular immigration raid, finding that the public interest in disclosure of the names of ICE agents who may have acted improperly during an immigration raid outweighed any privacy concerns. CASA de Md., Inc. v. U.S. Dep’t of Homeland Sec., 409 F. App’x 697, 700–01 (4th Cir. 2011) (per curiam). But the Ninth Circuit has held that the names of 149 non-citizens released by ICE were properly exempted from disclosure, holding that there is an “often hostile atmosphere surrounding unauthorized immigration” that created a risk that the individuals, if identified, would be harassed. Tuffly v. U.S. Dep’t of Homeland Sec., 870 F.3d 1086, 1096 (9th Cir. 2017).

The other important sub-exemption is Exemption 7(E), which exempts records compiled for law enforcement purposes that “would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” Agencies have used this to avoid disclosing information such as DHS criteria for ranking immigration enforcement priorities and documents related to the planning and execution of ICE raids. Allard K. Lowenstein Int’l Hum. Rts. Project v. U.S. Dep’t of Homeland Sec., 626 F.3d 678, 681–82 (2d Cir. 2010); Unidad Latina En Acción v. U.S. Dep’t of Homeland Sec., 253 F.R.D. 44, 54 (D. Conn. 2008); see also Am. Immigr. Laws. Ass’n v. U.S. Dep’t of Homeland Sec., 21 F. Supp. 3d 60, 82 (D.D.C. 2014). Courts have also upheld agencies’ redaction of guidelines and procedures, but have held that information such as questions asked to immigrant minors did not involve a “special method or skill” and therefore were not covered by the exemption. Campbell v. U.S. Dep’t of Just., 164 F.3d 20, 32 (D.C. Cir. 1998). The burden falls on the agency to both establish that the technique is not known to the public and that the release of the information would reasonably risk circumvention of the law.

5. Handling Partially Exempted Records

An agency must segregate exempt portions of records from any non-exempt portions and produce any non-exempt portions. 5 U.S.C. § 552(b). This means that even if, for example, a portion of a record has information that is properly deemed exempt pursuant to the privacy interests set forth in Exemption 6, the agency has a duty to redact that private information and provide a requester with the remaining non-exempt portion of the record. This duty also requires the government to “describe what proportion of the information in a [withheld] document is non-exempt and how that material is dispersed throughout the document.” Mead Data Cent. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). The agency is not allowed to issue a denial based on “sweeping, generalized claims of exemption” and instead must explain why the specific passages being withheld are being withheld. Id. at 260.

However, the agency is not required to disclose non-exempt information that is “inextricably intertwined” with the exempt information. Neufeld v. Internal Revenue Serv., 646 F.2d 661, 664–66 (D.C. Cir. 1981). For example, otherwise factual, non-exempt information can be “inextricably intertwined” with an agency’s deliberative process and therefore be deemed exempt under the deliberative process privilege of Exemption 5. Lead Indus. Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d 70, 83–85 (2d Cir. 1979).

As in other contexts, the denial of a FOIA request for immigration records can be appealed through an administrative process within 90 days of the denial. If the agency denies the appeal or misses the deadline to respond, the claimant can file a lawsuit in federal court to seek access to the records.

G. Non-FOIA Requests — State or Local Authorities

Federal law empowers ICE to delegate specific immigration officer functions to state and local law enforcement agencies (LEAs) in what is called the Section 287(g) program. See 8 U.S.C. § 1357(g). ICE publishes a list of participating agencies on its website. According to ICE’s website as of March 2025, LEAs could participate in the Section 287(g) program in three ways: the Jail Enforcement Model, the Task Force Model, or Warrant Service Officer program. ICE, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigr. & Customs Enf’t (last accessed March 12, 2025), https://perma.cc/XMU8-F3PR. The Jail Enforcement Model identifies and processes “removable noncitizens” who are arrested by the local agencies. The Task Force Model enables “agencies to enforce limited immigration authority with ICE oversight during their routine police duties.” The Warrant Service Office program trains local law enforcement to “serve and execute administrative warrants on [noncitizens] in their agency’s jail.”

Importantly, state or local agencies that coordinate with ICE are still subject to their state public records laws, which are separate statutory schemes from federal FOIA. When a state or local agency submits the written agreement to ICE to enter the Section 287(g) program, it must agree to “coordinate with ICE prior to releasing any information relating to, or exchanged under, this [agreement].” Regardless, the agreement does not free them from state-imposed public records obligations, as FOIA does not preempt state laws. See Harper v. Mo. State Highway Patrol, 592 S.W.3d 32, 38–39 (Mo. Ct. App. 2019) (finding that an FBI report that was part of a larger MSHP investigation was subject to disclosure under the Missouri Sunshine Law). Journalists should consult RCFP’s Open Government Guide for their particular state and consider seeking records from any state agencies that coordinate with ICE under the Section 287(g) program.

Separate from the Section 287(g) program, the Immigrant Legal Resource Center has compiled a map of jurisdictions across the country that tracks, by color, the degree to which local authorities assist with federal immigration authorities.

II. Accessing Immigration Proceedings

Proceedings in immigration court — including removal proceedings, through which the government seeks to deport a noncitizen who has entered the United States — are handled by the Executive Office of Immigration Review within the Department of Justice. These proceedings are overseen by immigration judges (IJs). As of February 2025, there are approximately 700 IJs operating in 71 immigration courts and three adjudication centers across the country. See Office of the Chief Immigration Judge, Exec. Off. for Immigr. Rev. (last accessed Feb. 12, 2025), https://perma.cc/Y5GS-GHAX.

In general, immigration proceedings are presumptively open to the public and the press. 8 C.F.R. § 1003.27 (“All hearings, other than exclusion hearings, shall be open to the public” except in enumerated circumstances); Pechter v. Lyons, 441 F. Supp. 115, 117 (S.D.N.Y. 1977) (allowing the public to observe the deportation proceedings of an accused Nazi war criminal even though a federal regulation provided Immigration Judges with the discretion to close hearings); Immigration Court Practice Manual – Hearings Before the Immigration Judges: Public Access, Exec. Off. for Immigr. Rev. (last accessed Feb. 12, 2025), https://perma.cc/4H4E-2WET.

That said, there are a number of limits on this access, and an IJ is likely to have considerable discretion in deciding who is allowed to be in the room for each individual case. See, e.g., Stevens v. Osuna, 877 F.3d 1293, 1312 (11th Cir. 2017) (stressing that 8 C.F.R. § 1003.27 makes immigration hearings presumptively open to the public, but finding a sufficient basis existed to close a hearing). For example, the IJ is allowed to “limit attendance or hold a closed hearing” for “the purpose of protecting witnesses, parties, or the public interest.” 8 C.F.R. § 1003.27(b). The IJ may also limit access if space in the courtroom is limited, if the proceeding involves an abused spouse or child, or if the government seeks a protective order based on national security or law enforcement interests. 8 C.F.R. §§ 1003.27, 1003.46.

Separate from the regulatory guideline that immigration proceedings are presumptively open to the public, there is some legal precedent supporting a qualified First Amendment of access to immigration proceedings — but the existence of such a right is debated.

The U.S. Supreme Court has held that, to determine whether a constitutional right of access applies to a particular proceeding, a court must consider (1) “whether the place and process have historically been open to the press and general public,” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enter. Co. v. Super. Ct. of Cal. (Press-Enterprise II), 478 U.S. 1, 8 (1986). Two federal appellate courts have applied this test to immigration removal proceedings specifically, but with conflicting results: the Sixth Circuit held that there is a First Amendment right of access to such proceedings, Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002), while the Third Circuit disagreed, N. Jersey Media Grp., Inc. v Ashcroft, 308 F.3d 198, 201 (3d Cir. 2002).[7]

These questions arose in the aftermath of the Sept. 11, 2001, terrorist attack, when then-Chief U.S. Immigration Judge Michael Creppy issued a directive restricting access to removal hearings involving “special interest” individuals whom the attorney general believed might have connections to terrorist organizations. N. Jersey Media Group, Inc., 308 F.3d at 199. The Creppy Directive was struck down by the Sixth Circuit but upheld by the Third Circuit in the dueling 2002 cases. Courts have not had occasion to re-address the issue since then, but it appears that DHS continues to designate millions of noncitizens as “special interest.” See Interim Staff Rep. on the Biden-Harris Border Crisis: At Least 1.7 Million Potential National Security Threats, H. Comm. on the Judiciary and S. Comm. on Immigration Integrity, Security, and Enforcement, at 2, 5 (Oct. 3, 2024), https://perma.cc/AKE9-RXYY.

Removal hearings involving such “special interest” noncitizens are likely to be especially difficult for journalists and the public to access. It is also worth noting that an IJ may, under current regulations, restrict access to information submitted in any given proceeding where the government shows that “specific information … will, if disclosed, harm the national security … or law enforcement interests of the United States.” 8 C.F.R. § 1003.46(a).

III. Covering Actions by Immigration Enforcement

Immigration enforcement officers are, in most respects, analogous to other law enforcement officers in terms of press access to them. As discussed further in RCFP’s Police, Protesters, and the Press guide, the First Amendment generally protects filming, audio recording, and photography of government officials engaged in their duties in a public place, including police officers performing their responsibilities. One federal appellate court, the Ninth Circuit, has specifically held that this right to record covers immigration officers carrying out their duties. Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9^th Cir. 2018).

Like other First Amendment rights, however, courts have held that the right to record may be subject to reasonable restrictions on the time, place, and manner of such recording. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 359–60 (3d Cir. 2017). A journalist’s First Amendment rights are strongest in traditionally public places, such as public roads and sidewalks. Elsewhere, access may be more limited.

The Askins case, though not binding on courts outside of the Ninth Circuit, may provide important insight into the scope of the First Amendment right to record and otherwise report on actions by immigration enforcement authorities, especially at the border.

The plaintiffs in Askins were two individual photographers who were removed or reprimanded by law enforcement after they attempted to photograph border officials at two different locations along the California border: (1) the area immediately surrounding the Calexico West port of entry (within 50-100 feet of vehicle inspection area), and (2) a pedestrian bridge immediately above a security checkpoint at the port of entry in San Ysidro. The Ninth Circuit held that, in general, “[t]he First Amendment protects the right to photograph and record matters of public interest. … This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places,” Askins, 899 F.3d at 1044, which is what the plaintiff photographers sought to document. Thus, if the places where the plaintiffs stood were traditional public fora (as the district court below assumed), the “government had the burden of demonstrating that its restrictions on speech were the least restrictive means necessary to serve a compelling government interest.” Id. “They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.” Id. at 1045. The court did not address whether a more specific assertion of a national security interest by the government might suffice to justify removal of the plaintiffs from the area.

Whether a particular location is a traditional public forum is a fact-dependent question, based on “1) the actual use and purposes of the property, particularly [its] status as a public thoroughfare and availability of free public access to the area; 2) the area’s physical characteristics, including its location and the existence of clear boundaries delimiting the area; and 3) traditional or historic use of both the property in question and other similar properties.” Id. at 1046 (quoting Am. C.L. Union of Nev. v. City of Las Vegas, 333 F.3d 1092, 1100–01 (9th Cir. 2003)). The classic examples of traditional public fora are public roads and sidewalks. Courts have held that places such as military bases and airport terminals are nonpublic fora, see id., and in such locations the government will face a much lower burden to justify the expulsion of a reporter from the area or to stop journalists from recording law enforcement action.

Whether reporting on ICE actions at border crossings or elsewhere — for example, at an ICE raid in a non-border city like Chicago — the degree of access to the place where ICE is acting and the freedom to record the action will generally depend on how public the place is. Journalists’ newsgathering activities are most protected by the First Amendment in public locations.

If a journalist is covering ICE activity outside of a public place,[8] an officer may be able to order the journalist to leave and extra care is required to avoid being arrested for an offense like trespassing. Immigration enforcement officers’ primary powers are to interrogate suspected undocumented immigrants, arrest undocumented immigrants or facilitators of immigration crimes, and patrol the border, but they are also authorized to make arrests without a warrant for any federal offense “committed in the officer’s presence” or for any federal felony where there is “reasonable grounds to believe that the person to be arrested has committed or is committing such a felony.” 8 U.S.C. § 1357(a)(5).

Exemption 1, which authorizes agencies to withhold certain matters that pertain to “national defense or foreign policy,” can only be used in accordance with President Obama’s Executive Order 13,526, which set out the procedures for classifying national security information and remained in effect as of February 2025. See Department of Justice Guide to the Freedom of Information Act, Exemption 1, U.S. Dep’t of Just. (posted Jan. 5, 2025), https://www.justice.gov/oip/media/1383286/dl?inline. (Return ↑)
The Deliberative Process Privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks omitted) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). (Return ↑)
See Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 360 (1979). (Return ↑)
See United States v. Weber Aircraft Corp., 465 U.S. 792, 796 (1984). (Return ↑)
This group includes the First, Second, Sixth, Eighth, and Tenth Circuits. Irons v. Bell, 596 F.2d 468, 474–76 (1st Cir. 1979); Ferguson v. FBI, 957 F.2d 1059, 1070 (2d Cir. 1992); Jones v. FBI, 41 F.3d 238, 245–46 (6th Cir. 1994); Kuehnert v. FBI, 620 F.2d 662, 666–67 (8th Cir. 1980); Jordan v. U.S. Dep’t of Just., 668 F.3d 1188, 1195–97 (10th Cir. 2011), cert. denied, 566 U.S. 998 (2012). (Return ↑)
This group includes the D.C., Third, and Ninth Circuits. Pratt v. Webster, 673 F.2d 408, 419–21 (D.C. Cir. 1982); Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 184–86 (3d Cir. 2007); Church of Scientology v. U.S. Dep’t of Def., 611 F.2d 738, 748 (9th Cir. 1979). (Return ↑)
The Second Circuit has not addressed immigration court proceedings specifically, but it seems likelier to side with the Sixth Circuit given its holding in New York Civil Liberties Union v. New York City Transit Authority, 684 F.3d 286 (2d Cir. 2012), that a qualified First Amendment right of public access attached to Transit Adjudication Bureau hearings conducted by the New York City Transit Authority, citing Detroit Free Press and reasoning that “because the TAB, like other administrative agencies, forms a part, albeit small, of a larger web of government authority, free access to it informs the populace of the workings of government and fosters more robust democratic debate.” Id. at 303 (cleaned up). The D.C. Circuit, on the other hand, has expressed doubt about the Sixth Circuit’s reasoning in Detroit Free Press, albeit in the different context of a FOIA lawsuit where it found no First Amendment right of access to “information compiled during the … investigation and prevention of terrorism,” specifically the names of certain noncitizen detainees. Ctr. for Nat. Sec. Stud. v. U.S. Dep’t of Just., 331 F.3d 918, 932, 935 (D.C. Cir. 2003). (Return ↑)
ICE agents can enter and make arrests in private places only with a judicial warrant — that is, a warrant signed by an Article III judge, not merely an immigration judge — unless consent is given to enter the nonpublic location or there are exigent circumstances. Such warrant materials are judicial records subject to public access. See Open Courts Compendium, Reps. Comm. for Freedom of the Press (last visited Apr. 3, 2025), https://www.rcfp.org/open-courts-compendium. (Return ↑)

I. Accessing Immigration Records

II. Accessing Immigration Proceedings

III. Covering Actions by Immigration Enforcement

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