A foreign national applying for a visa, a green card, or other immigration services may encounter delays or be denied if the U.S. immigration services rely on background information that the foreign national did not know existed. The Freedom of Information Act (FOIA) allows individuals to request information from federal agencies that may be critical to obtaining entrance into the United States. The U.S. government maintains all background information in an “A file,” which can usually be obtained in part or in its entirety with a FOIA request.
The FOIA allows any person, regardless of immigration status, to access information from a federal agency as long as he /she reasonably describes the records requested and submits the request in accordance with the agency’s rules. A person is defined as an individual, partnership, corporation, association, or public or private organization that is not a governmental agency. Therefore, an employer or attorney may request the information on a foreign national’s behalf as long as the third-party has the permission of the foreign national.
Before filing a FOIA case, the applicant should consider whether the information he/she requires is specific to them or general information about the agency. If the information is general, the agency may have proactively released the information on its website. Federal agencies are statutorily required to proactively disclose all final opinions and orders rendered in the adjudication of cases, specific policy statements, and certain administrative staff manuals. If an individual seeks additional information that is not proactively disclosed then he/she should consider submitting a FOIA request to the appropriate agency.
When submitting a request for additional information an individual should be aware that an agency is not automatically required to disclose the information requested. There are several exceptions and exclusion that allow agencies to redact all or part of the requested information. If an agency decides not to provide the requested information the requestor can file an appeal.
Filing A Request
To make an accurate and strong FOIA request, an application should identify the information needed, identify the proper government agency that has the information, and identify the specific reason the information is needed.
1. Provide Specific Information
Generally, providing specific details about what information is needed will help the agency locate and complete the request. A lack of specific information may result in the agency requesting additional information or denying the request. For example, instead of requesting the dates a person entered and exited the United States, request dates within a timeframe – i.e. entrance and exit between January 1, 2000, and January 1, 2010.
2. Identify the Proper Agency and the Agency’s Requirements
Sending an application to the correct agency will help ensure a FOIA request is processed in a timely manner. Generally, most requests regarding background information, one’s A file, will go to the United States Citizen and Immigration Services (USCIS). However, criminal information can be obtained from the Federal Bureau of Investigation (FBI) and specific dates a person had entered and exited the country can be requested from U.S. Customs and Border Protection (CBP).
Other immigration agencies to which a FOIA request can be lodged include Immigration and Customs Enforcement (ICE) for records such as arrests, detentions, investigations; Executive Office for Immigration Review (EOIR) for immigration court records on a client, including transcripts of hearings; Department of Homeland Security (DHS) for information from any of DHS’s specific components such as data from the Office of Biometric Identity Management (formerly US-Visit) which maintains biometric entry records; and U.S. Department of State (DOS) for information such as consular processing, interactions with consular officials and data on passport application.
Each agency has slightly different paperwork that needs to be completed to make a FOIA request. For example, the USCIS requires form G-639 but the Executive Office of Immigration Review requires form DOJ-361. Some agencies require a letter, but do not have a specific form. Most FOIA requests can now be made online on the agencies’ websites.
3. Inform the Agency Why the Information is Requested
Identifying why the information is needed can help expedite a person’s FOIA request. All agencies are required to respond to FOIA requests within 20 business days unless there are “unusual circumstances.”
An unusual circumstance is defined as, (1) the need to search for and collect records from field offices separate from the office processing the request; (2) the need to search for, collect, and examine voluminous amount of records; or (3) the need to consult with another agency with substantial subject matter interests in the request. An agency is given an additional 10 business days – 30 business days total – to complete an unusual request.
Despite these regulatory timeframes USCIS routinely fails to meet either the 20 day- or 30-day timeline and absent any specified urgency such as a pending immigration court proceeding, may take from several weeks to months to process a FOIA request.
Still, identifying the reason why the information is needed can help decrease the amount of time it takes to process a FOIA request. For example, a pending immigration court proceeding, demonstrated by submitting the Notice of Hearing with the FOIA request, will be considered a matter of life and liberty and the request will be marked as urgent.
4. Fees Associated with Making a FOIA Request
Immigration officials will provide the first 100 pages of immigration records for free but will charge if the fees for search time, duplication, and/or review times total more than $14. By submitting a FOIA application, the applicant agrees to pay a processing fee of up to $25. In today’s practice agencies commonly make a digital scan of the documents and release the information on CD’s, free of charge. If the processing fee will exceed $25 an agency will contact the requester, provide the estimated charge for completing the request, and offer the opportunity to narrow the search and reduce the fee. An agency will not continue to the process a FOIA request unless the requester agrees to pay the estimated fee. Processing fees are due even if an agency is unable to release the information because the information is excluded from the FOIA or the agency has the discretion to exempt the information.
To help ensure that information is not unobtainable due to excessive agency processing fees a person may apply for the fee to be waived. To obtain a free waiver, an individual must demonstrate that the “disclosure of information will likely contribute significantly to public understanding of the operations or activities of the government” and the information is not requested primarily for commercial purposes. Requesting the information solely for individual use or the inability to pay the fee is not a legal basis for an agency to waive the processing fee.
Exemptions and Exclusions
Agencies are required to make all records promptly available – 20 business days unless exceptional case – upon a FOIA request. However, under certain circumstances information is excluded from the FOIA and an agency may respond as if the information does not exist, or an agency has the discretion to exempt information from the FOIA. Additionally, an agency has the freedom to redact certain parts of the record and provide the portions that do not fall within an exemption or are not excluded from the FOIA.
Agencies are allowed to respond to FOIA questions about certain law enforcement activity as if the information does not exist. If an agency exercises its authority to exclude information, the requestor may never know the information exists. These exclusions include: (1) records compiled for law enforcement purposes that involve a possible violation of criminal law; (2) records relating to an individual who is assisting law enforcement unless the requestor is the detained individual; and (3) classified records maintained by the Federal Bureau of Investigation (FBI) on counter-terrorism, international terrorism, and foreign intelligence.
There are nine exceptions to the FOIA, but not all are applicable to immigration cases. Only the relevant exceptions are discussed below. All exceptions are discretionary, which means an agency may choose to disclose the information. If an agency does withhold information, it is the agency’s responsibility to demonstrate that it has withheld information subject to an exemption.
First, an agency may withhold records that “related solely to the internal personnel rules and practices of an agency.” For an agency to justify withholding information under this exemption, the information must (1) relate to personnel rules and practices (employee relations); (2) relate exclusively to the personnel rules and practices at issue; and (3) have been traditionally kept within the agency.
Second, a FOIA request may be denied if another statute prevents its disclosure. This exemption is often given within the context of INA § 222(f), which allows an agency to deny a request for information that pertains to past or pending requests for a visa. INA § 222(f) does not give an agency the discretion to withhold all documentation within its possession, but does allow an agency to withhold any documentation that “’reveal[s] the thought-processes of those who rule on the application.’”
Third, an agency may deny a FOIA request if a person seeks material that is generated by a federal agency that would not be available to private parties in litigation with the federal agency. This means the FOIA cannot be used to obtain information that would be subject to attorney-client privilege, the attorney work-product privilege, or the deliberative process privilege – documents that are not final.
Forth, a FOIA request may be denied if a person seeks “personnel and medical files and similar files.” Generally, anyone can receive any information that cannot be directly linked to an individual. This has limited FOIA requests to documents predominately related to either business or government.
Finally, a FOIA request may be denied if a person seeks information that was compiled for law enforcement purposes. The Department of Homeland Security uses this exemption in immigration-related cases to protect techniques used during ICE raids, protect how immigration priorities are ranked, and fraud indicators for H1-B visas. When applying this exemption, it is not necessary for an agency to prove that law enforcement efforts will be circumvented, only that the release of information creates a risk they will be circumvented.
An agency’s decision not to release information or not to waive the processing fee can be appealed through the agency and in district court if the agency does not grant the appeal.
1. Agency Appeal
Each agency can set a specific time frame for which an appeal must be processed. Once an agency receives an appeal, it must respond within 20 business days. An agency can grant an appeal in full or in part, or an agency may deny the appeal. An agency’s decision can be appealed on four grounds: (1) a challenge to the agency’s delay in responding or prompt the agency to produce the documents more quickly; (2) a challenge to the adequacy of the agency’s search; (3) a challenge that any information should not have been redacted due to a statutory exemption; and (4) an appeal for a request for a fee waiver to be granted. If the appeal is denied the agency’s decision may be appealed to federal district court.
2. District Court Appeal
After the requester’s appeal is denied by an agency, he/she may appeal the agency’s decision in district court. All appeals must be made within six years of the agency’s decision. The district court will review the case “de novo,” meaning as if for the first time. If the judge finds the agency abused its discretion a judge will order the agency to release the information in accordance with the FOIA. Courts have dismissed previous cases where plaintiffs have failed to exhaust all administrative remedies; therefore, before filing in district court it is the best follow all administrative procedures.
The FOIA can be a tool to help foreign nationals obtain information that is critical to acquiring a visa, a green card, or other immigration services. The FOIA can be filed without the assistance of an attorney and can be a low-cost way for a foreign national to obtain information that was or will be used by immigration officials. However, with the necessary degree of specificity, numerous exemptions and exclusions, and a complicated appeals process retaining an attorney’s service may help ensure a foreign national retrieve all the information he/she is entitled to under the FOIA.