FOIA Request Can Help Resolve Some Immigration Cases09 Aug 2017
The Freedom of Information Act (FOIA), in the broadest sense, provides any person with the right to request access to information and records from any federal government agency. There are many ways that filing a FOIA request can help resolve long-pending immigration cases, but there also are limitations on the type of information the government must release under FOIA. Federal regulations require FOIA information to be released within tight deadlines; but, in fact, this rarely occurs in immigration-related FOIA requests.
Basics: Where to Start?
Any individual with an immigration history is likely to have information and documents relating to that history with some of these federal departments and agencies: U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), Department of State (DOS), the Executive Office of Immigration Review (EOIR), and, for some, the Federal Bureau of Investigations (FBI). While FOIA is a federal law, each department, bureau, or agency has varying procedures and requirements for requesting documentation under FOIA. Therefore, it is advisable to do some initial research and/or consult an attorney when considering submitting a FOIA request to a particular federal government department or agency.
Exemptions: Not Everything is Public
While an individual generally can gain access to most of the information pertaining to him/herself, there are exceptions to the types of documents that can be obtained from the government through filing a request under FOIA. The information that cannot be released is protected by nine exemptions contained within FOIA.
The exemptions allow for the protection of documents for reasons including national security concerns. The government also protects documents that would constitute an invasion of personal privacy of the individuals involved. Thus, it may be possible to obtain copies of one’s own records, but not the records of a neighbor, friend, or former spouse. Records compiled as a part of investigations and for law enforcement purposes are subject to certain detailed exemptions. More detail on exemptions can be found on the Department of Homeland Security (DHS) website.
Most commonly, individuals with an immigration history seek to obtain copies of their documents from their respective USCIS “A file.” A FOIA request may be submitted for the purpose of obtaining all the information in the file or it may identify specific documents within that file. Usually, limiting the request to specific document/s, or a limited group of documents, expedites the FOIA processing and release of the documents.
If a release of the entire file is requested, the USCIS may take several months to a year or longer to comply with the request. When the requested documents are released by the USCIS, they will include indications of any omitted or redacted (portions obscured) documents, based on the exemptions written into the law.
When Release of USCIS Documents is Helpful
There are many instances in which obtaining a copy of all or part of one’s “A file” can be helpful. An individual may have made filings with Legacy INS or the USCIS without retaining copies. Copies may have been lost or destroyed over the years. One may never have received a decision on a particular case. This potentially can be obtained through filing a request under FOIA. Many people have complex immigration histories that they do not fully understand. A filing may have been made by a relative or employer without the individual’s complete involvement or control. Family-based cases, in particular, may have been filed years ago, without the full understanding of the results of the case.
In addition to simply understanding the history and status of one’s immigration filings, in some FOIA requests, the USCIS may reveal the history of the case adjudication by releasing notations and worksheets completed by USCIS officers. This documentation may provide important information about the manner and type of adjudication, if any. This may be important in identifying any available legal options to resolve individual immigration complications.
Many individuals who have been sponsored for permanent residence by their employers are not given copies of their labor certifications or I-140 petitions, as these documents are the filed by the petitioning employer. A foreign national may be seeking to “port” her/his permanent residence (green card) case under the American Competitiveness in the 21st Century Act (AC21) portability provisions to new employment. Since it is important to have certain information about the labor certification and the I-140 petition, it may be advisable to file a FOIA request in an effort to obtain this information. An individual who has a pending I-485 adjustment-of-status filing generally is able to obtain copies of the supporting labor certifications and I-140s via the FOIA request.
It sometimes may be necessary to obtain a record of admission at a U.S. port of entry (POE). This can be important to disclose whether a record of inadmissibility was created, or whether there were any other issues that may impact present or future immigration options or travel to the United States. In those cases, one can request information under FOIA to obtain CBP database records pertaining to specific entry/ies or all entries one has made.
When Release of CBP Documents is Helpful
FOIA requests are made for a variety of reasons to the CBP for document release. Most commonly, CBP documents include interview notes made by officers during secondary inspection. These notes often pertain to the admissibility or inadmissibility of an individual. These notes, and related documentation, can impact one’s eligibility for immigration benefits, including future entries to the United States.
Individuals who believe they were wrongfully characterized as having committed acts that resulted in their inadmissibility may find it necessary to obtain copies of their CBP files. The CBP files may help to shed light on the origin of such problems, and possibly prove that the findings were incorrect. The obtained documents may carry information useful in rebutting findings of alleged inadmissibility. In other instances, information and documents related to events at the POE, such as the withdrawal of one’s application for entry or the issuance of an expedited removal, may be extremely helpful.
The DOS documents that can be released under FOIA are limited to those the applicant previously supplied to the DOS. Generally, documents issued by the DOS, which were not provided by the applicant, are not released under FOIA. We note that there are situations in which the DOS communicates with the USCIS about particular applications. Documentation of this exchange of information may be available via FOIA from the USCIS, even though it is not available directly from the DOS.
EOIR records contain any information regarding removal (formerly deportation) proceedings, triggered by a notice to appear (NTA). This may be helpful in cases where an individual seeks to reopen removal proceedings, to obtain any orders issued by the Immigration Judge, and/or to establish that the removal proceedings were terminated or otherwise resolved.
An individual with a criminal history in the U.S. may request a copy of her/his FBI file. This file contains state and federal records of arrests, charges, and convictions. It is important to note, however, that records that have been expunged or otherwise deleted from one’s record do not appear in the FBI file but, nevertheless, may still impact one’s eligibility for immigration benefits. It is advisable, therefore, to consult a knowledgeable immigration attorney regarding issues pertaining to the immigration consequences of any criminal charges.
For the many individuals whose records of their immigration histories may be incomplete, FOIA requests can provide the documentation needed to determine what can and should be done in their particular cases. It is important to remember, however, that given a multitude of specific situations and government agencies that hold a myriad of records, one should be mindful of the specific request that needs to be made. Our attorneys at the Murthy Law Firm are experienced with many types of FOIA requests and can provide assistance when devising a specific strategy for obtaining a copy of documents or information needed, or when demanding documents in a timely fashion if there is a specific urgency in a particular case.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.
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