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A New York immigration lawyer has won the release of portions of a government report on abuses of a preferential visa program for wealthy foreigners. Steven E. Perlman had challenged the refusal of the U.S. Department of Justice to release a 143-page report on the EB-5 visa program. The government had claimed the material was exempt under the Freedom of Information Act, and the privacy interests of the former general counsel of the Immigration and Naturalization Service (INS), a subject of the investigation, outweighed the public’s interest in full disclosure. But the 2nd U.S. Circuit Court of Appeals, reversing a lower court judge, has found that the public’s right to the report outweighs the privacy interests of former INS counsel Paul Virtue. The ruling, in Perlman v. United States Department of Justice, 01-6219, dealt with an investigation into allegations that Virtue, while deputy general counsel and general counsel, gave preferential treatment to former INS officials in the administration of the EB-5 Investor Visa Program. Beginning in 1990, the EB-5 program granted special visas to foreigners who invested between $500,000 and $1 million in American businesses that employed a minimum of 10 U.S. workers. The program led to the creation of visa investment companies, which often employed former INS and other government officials. The companies offered foreign investors shares of limited partnerships for far less than the $500,000 minimum, and allowed those investors to pay for their shares with promissory notes in order to receive green cards. The tactic was later approved by the INS. The Justice Department’s Office of Inspector General began probing the program after allegations surfaced that former INS officials were being given special treatment. Perlman sought the report of that probe by filing a request under the Freedom of Information Act (FOIA) in November 1999. The inspector general denied his request based on Exemption 6 of the act, which restricts public access to personal or “similar” files, and Exemption 7(C), which exempts from release reports compiled for law enforcement purposes. An administrative appeal led the Department of Justice’s Office of Information and Privacy to order the release of 49 pages of the report. Perlman then brought suit in the Southern District of New York. After being ordered by Judge John G. Koeltl to review its redactions of the names of agents involved in the investigation, the names of witnesses, and the information concerning Virtue, the Department of Justice released another 30 pages of the report. Koeltl then granted partial summary judgment for the Justice Department, ordering the release of some exhibits but finding that both exemptions applied and that Virtue’s privacy interests trumped the public’s interest in disclosure. Writing for the 2nd Circuit, Judge Rosemary S. Pooler said the court agreed with Koeltl on the exemptions and said the judge was correct to allow the government to redact the names of witnesses and third parties from the report. The “strong” privacy interests of witnesses and third parties are paramount, Pooler said, and are particularly compelling when weighed against the “minimal” public interest in learning their identities because “that information tells little or nothing about either the administration of the INS program or the Inspector General’s conduct of its investigation.” But Pooler said the same could not be said for Virtue, who “stands on different ground from witnesses and third parties.” Virtue’s privacy interest is “somewhat diminished” by his status as a government employee, although that status does not mean he has surrendered all rights to personal privacy, she said. FACTORS MET Judge Pooler said there are several factors that can weigh in favor of disclosure, and Virtue’s case met each factor. Virtue held a “high rank” at the INS; the evidence could not be obtained elsewhere; the report “sheds light on government activity”; and the information was not personal but related to his job function, Pooler said. The court was also persuaded by another factor: the strength of the evidence against Virtue. “Here, a substantial amount of evidence shows that Virtue allowed former INS officials with financial interests in the EB-5 program to exercise improper influence over the program’s administration,” she said. “Further, the degree of wrongdoing alleged is fairly serious, as Virtue’s approval of the limited partnership proposals touted by the visa investment companies may have allowed aliens to improperly come to the United States.” Perlman, a solo practitioner who once served a tour as a visa officer for the U.S. government, said Tuesday that he pursued the release of the report, in part, because legitimate visa applications were being denied while the government allowed visa investment companies to make money on a program that produced virtually no benefit for U.S. business. 2nd Circuit Judges Jose A. Cabranes and Robert Katzmann joined in the opinion. Mark S. Zaid of Lobel, Novins & Lamont in Washington, D.C., represented Perlman. Assistant U.S. Attorneys Andrew D. O’Toole and Gideon A. Schor represented the government.

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