Freedom of Information Act

Freedom of Information Act

This link will discuss the Freedom of Information Act (“FOIA”), an important tool for obtaining a copy of records maintained by the federal government.

FOIA is one of the tools available to an immigration practitioner to help obtain a copy of important information contained in files and records maintained by the federal government. For purposes of explaining FOIA we will provide some background on how files are maintained by the Department of Homeland Security (“DHS”). Immigration records are generally kept in one’s “alien file” and every single foreign national who has ever had any type of interaction with the federal government should have an alien file maintained within the control of the DHS.

Prior to the establishment of the Department of Homeland Security, immigration records were generally maintained by the Immigration and Naturalization Service (“INS”). Until 1983, records relating to appearances before the Immigration Court were also maintained as part of the INS file because Immigration Judges were actually employees of the INS until the establishment of the Executive Office for Immigration Review (“EOIR”). When EOIR came on the scene, it began to maintain its own files that are commonly referred to as a record of proceeding (“ROP”). EOIR records are likewise available through the Freedom of Information Act, however a separate request must be made to obtain such files as EOIR is a component agency of the Department of Justice.

When the Department of Homeland Security was established, the INS ceased to exist and the work of the INS became the responsibility of three new agencies : Customs and Border Protect (“CBP”) ; Immigration and Customs Enforcement (“ICE”) ; and Citizenship and Immigration Services (“CIS” or “USCIS”). Although three agencies now handle the work that was previously consolidated under the INS, each of the agencies do not generally maintain a separate alien file for an individual foreign national. Rather, a single consolidated alien file remains and is shared by each of the three new agencies within the DHS.

The establishment of three new agencies to handle the work previously within the purview of the INS has created many a problem. However, part of the realignment has been a centralization of the requests filed under FOIA and it is actually much easier to obtain an individual’s records than it was before the DHS was created. CIS has taken the responsibility of handling all requests for copies of files and these requests are filed through the CIS National Records Center (“NRC”).

NRC is comprised of abandoned salt mines where files are maintained by the DHS and many other agencies of the federal government and CIS has done an excellent job in handling FOIA requests in the past decade. Whereas files were often times maintained at local Field Offices when INS was in existence, files are now kept at the NRC and only sent the a Field Office or other requesting agency when specifically requested.

Part of the game in the INS days was trying to guess where a file may be located and hoping that the FOIA office at that location would be able to locate the requested file and respond to the request within a prompt period of time, an occurrence that rarely occurred. Rather, FOIA requests could literally take years to complete and often times we would see our requests be completed only after the case was completed and we no longer required the information that was being requested.

When a FOIA request is filed with CIS, a control number is issued. CIS has established a web page where a request’s status can be provided. CIS has a fax number and telephone number available for its FOIA office at the NRC and the office actually responds to its faxes and answers its telephone. Keep in mind that the information provided by this office deals only with the status of a FOIA request, this is not a number where one can call CIS and ask for guidance on the status of a case or to otherwise assist with the substance of a pending application.

Another advance that CIS has implemented is that it employs a multi track processing system to provide priority to certain requests. Sometimes, obtaining a copy of a file is more important in one case than in others and CIS has the ability to set processing priorities through its multi track system. Cases involving matters pending before the Immigration Courts or involving other types of litigation are generally handled quicker than other more routine matters.

When a FOIA request is completed, the alien files are digitized and the results are sent to the requester on a CD containing a PDF file with the file’s contents. When the file is digitized, it is often available to any officer with access to the file. This means that officers sitting at a desk far away from the actual physical file can use the technology available to view a file’s contents during an interview. Digitizing the DHS files is an ongoing process and from our office’s perspective FOIA has been much improved and continues to get better.

When the CD is received it will generally contain a copy of every document in a file. With that said, it is important to understand that the contents of every document are not actually provided. Redactions are made in whole, or in part, to further one of a number of release restrictions. Redactions protect private information that does not belong to the foreign national requesting a file or redactions may involve national security concerns or public safety issues. When a CD is received, there is a cover letter also included in PDF format. This cover letter informs the requester of the response’s contents and the method by which an appeal can be made of the decision to withhold information.

Another important consideration is that some information will not be released directly by CIS in its processing of the FOIA request. Often times, information in the alien file may relate to documents created by ICE, CBP or another agency (like the Department of State). Documents that fall within the purview of another agency involved in the processing of an immigration case will be referred to that agency and a separate response to the FOIA will be received directly by that agency. This does not require a separate FOIA request to be made, however the full FOIA response is received in parts as each agency is sent the request to release documents once CIS has completed its part of the processing.

Once a response is received from each separate agency, the time begins to tick for filing an appeal of the decision to not release information. Most of the time, FOIA responses provide everything that is needed. But sometimes there are documents that are withheld and it may be in a client’s interest to pursue the decision to not release the documentation further. The first level of challenging the decision not to release is through an administrative appeal process within the agency. And if that process does not result in the desired outcome, the possibility of litigating the matter in a United States District Court also exists.

Our office files FOIA request for just about every case that comes our way and for which we believe there is an alien file that exists. We want to know the information that is contained in the alien file that an adjudicating officer will review when a client appears for an interview. And while clients often inform us that they have a complete copy of their file, the truth is that a complete copy of their file is the copy that sits in the hands of the government agency that is handling the case and our office wants that copy.

Sometimes we will not permit a client to hire our services until we have been provided with a copy of a file. The best example of this is when a client approaches us to reopen an order of removal entered in a client’s absence for failing to appear at a scheduled hearing. Truth is that if the filing of the motion can wait, we want to know what an Immigration Judge will be reviewing when a motion to reopen is filed. Luckily, the FOIA requests made to EOIR are often times handled quickly (30-60 days) and this provides added information to us in advising a client on how best to proceed.

One of the concerns that comes our way is a client who wants to obtain a copy of a file but does not know their alien number. FOIA requests can be filed without an alien number, but it is our experience that filing a request without a file number can often be delayed. Often times information is available from government agencies that will point to an alien number that can in turn be used to file a FOIA request. Filing the forms to request a copy of a file is not all that difficult, knowing how to file the request to minimize the time the request takes to complete and maximize the response provided is where experience handling these cases can greatly assist a client in reaching their objectives.

If you or a loved one is concerned with records that are in the hands of the Department of Homeland Security or any government agency, our office is well equipped to handle a request for such information. These requests can be filed on behalf of clients present in the United States and those who are abroad. Our office charges a reasonable fee to both find file numbers, to submit a FOIA request and to then discuss the response. Knowing the contents of an alien file is a very important part of processing any immigration case. If you are looking for an attorney who can obtain the information needed in a prompt and reasonable manner, please contact our office for further information.