FREEDOM OF INFORMATION ACT REQUESTS: How to obtain information in the government’s files By Debbie Smith

Freedom of Information Act (FOIA) requests serve a crucial function in revealing government information about large-scale, significant immigration policy issues1 and individual immigration case concerns. Without other means of discovery in immigration proceedings, FOIA requests are one of the few mechanisms for obtaining vital information from Department of Homeland Security (DHS) and Executive Office of Immigration Review (EOIR) files. FOIA requests provide much needed information practitioners require prior to filing applications for immigration benefits such as adjustment of status and naturalization as well as in preparing for removal proceedings.

What Form to Use for a FOIA Request

If you are requesting information from USCIS or other DHS sub-agencies such as Customs and Border Protection (CBP) under FOIA, it is recommended that you use Form G-639. In addition, to verify the identity of the person making the FOIA request, USCIS suggests that the applicant complete and file a Department of Justice (DOJ) Form 361, Certification of Identity, with Form G-639.2

If you are requesting information from the EOIR, agencies under DOJ, such as the Immigration Court or the Board of Immigration Appeals, do not use Form G-639. Instead, the request for information must be in writing with specific facts identifying the information you seek. The request should include the full name and A number of the person for whom records are sought, the country of citizenship, and the location of the immigration proceeding. A DOJ Form 361 will serve to verify identity for the FOIA request to EOIR as well.

Where to File the FOIA Request

In order to know where to file a FOIA request, you must identify the information or record you require and agency or sub-agency most likely to have that information. For example, if you are seeking a copy of a previously filed N-400 naturalization application for a client who is not in removal proceedings, the USCIS FOIA unit is the best place to look. If, however, you are searching for information regarding an expedited removal order, CBP is the sub-agency most likely to possess this record.

1 Thanks to successful FOIA litigation by the Immigration Justice Clinic at Benjamin N. Cardozo School of Law and the Jerome Frank Legal Services at Yale Law School, we now know the Bush administration's immigration home raid strategy was a law enforcement failure and the immigration raids in New Haven appear to be connected to the program to grant municipal ID cards for New Haven residents. See http://www.immigrationadvocates.org/library/folder.182425- Materials_from_government_agencies_and_Congress_on_raids_and_Immigration_En

2 DOJ Certificate of Identity Form 361 http://www.usdoj.gov/oip/forms/cert_ind.pdf The general filing location for a FOIA request to USCIS is: USCIS National Record Center FOIA Division P.O. Box 648010 Lee’s Summit, MO 64064-5570 The phone number for the FOIA division is (816) 350-5570 The fax number for the FOIA division is (816) 350-5785 The email is [email protected]

The most recent Form G-639 Instructions (dated 2-4-09) note that the applicant should not submit his/her FOIA request to the local USCIS office or Service Center.

The Immigration and Customs Enforcement (ICE) FOIA address is: Immigration and Customs Enforcement Freedom of Information Act Office, 800 North Capitol Street, NW, Room 585 Washington, DC 20536 The phone number is (202) 732-0300 or (866) 633-1182 The fax number is (202) 732-0310 The email is: [email protected]

The CBP address for FOIA requests is: U.S. Customs and Border Protection FOIA Division 799 9th Street NW, Mint Annex Washington, DC 20001-4501 The phone number for the FOIA Division is (202) 325-0150

The EOIR filing location for FOIA requests is: Office of the General Counsel Attn: FOIA Service Center Executive Office for Immigration Review 5107 Leesburg Pike, Suite 2600 Falls Church, VA 22041 The phone number for the (703) 605-1297

Although the CBP FOIA location has been centralized (according to the CBP website), practitioners’ listserv comments indicate that it may be advantageous to file the FOIA request with both the Washington, D.C. address and the Port of Entry where the incident occurred.

In general, filing a FOIA request in multiple locations may be safer for the DHS agencies than waiting for a response only to find that the requested information is elsewhere.

What is the Processing Time for a FOIA Request Although government agencies are required to determine whether to comply with the request for information in 20 days--and this time may be extended to 30 days-- practitioners often find that USCIS and CBP may take a year or more to respond to a request.

The unreasonable delay experienced for DHS agency requests is not true for EOIR FOIA requests. A response to EOIR requests is often available in approximately one month.

Is there a Means to Expedite FOIA Requests

The standard for expediting both DHS and EOIR FOIA requests is very stringent. In order to request an expedited request, there must be a compelling need such as:(1) imminent threat to the life or physical safety of an individual; (2) an urgency to inform the public concerning actual or alleged Federal Government activity if the request is made by a person primarily engaged in disseminating information; (3) loss of substantial due process rights; or (4) a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.

In response to the excessive delays in obtaining FOIA responses, in March 2007 USCIS initiated a FOIA fast-track for cases currently in removal proceedings. This new track, while extremely limited, permits practitioners to access immigration files if they are scheduled to appear before an Immigration Judge. In order to be placed in this track, a Form G-639 or other written request for information must be accompanied by either a Notice to Appear, an Order to Show Cause, a Notice of Referral to Immigration Judge, or a written request to continue a scheduled immigration proceeding.

Federal Court Challenges to Delays in FOIA Processing

In the late 1980’s, Attorney Jim Mayock filed a district court action challenging delays in processing immigration FOIA requests. As a result of this litigation, legacy INS entered into a settlement agreement in 1992 that required INS to give priority to requests by FOIA applicants with urgent needs, to process simple requests without regard to pending complicated requests, and to search electronic databases to provide greater specificity on claims of exemption. In March 2008, Attorney Kip Steinberg filed a lawsuit alleging that government defendants violated the terms of a nationwide settlement agreement regarding the processing of FOIA requests reached in the Mayock Settlement Agreement. That complaint remains pending.

The American Immigration Lawyers Foundation website includes a detailed review of the latest developments in FOIA litigation at http://www.ailf.org/lac/clearinghouse_foia.shtml

Are There Other Means to Obtain Information It’s also possible to obtain immigration-related information from an FBI records check. Although this process is much faster than the FOIA procedure and usually provides information within several weeks, it may not contain all of the immigration-related information the applicant requires. However, if it is impossible to obtain documents in a timely manner through a FOIA request, this is a second-best alternative.

In order to obtain FBI records, the applicant must file a written request to the Criminal Justice Information Services (CJIS) Division of the Federal Bureau of Investigation (FBI). Accompany the request with the applicant’s name, date and place of birth, set of roll-inked fingerprints and a certified check or money order for the $18 processing fee. The fingerprints may be taken at local, county or state law enforcement agencies. The FBI will not provide copies of arrest records to anyone other than the subject of the record. Therefore, the applicant must sign the request submitted to the FBI. In addition, it is best to not list “immigration” as the reason for the record request. Requests should be mailed to: FBI CJIS Division, Attn: SCU, Mod. D-2, 1000 Custer Hollow Rd., Clarksburg, West Virginia 26306.