NOVEMBER 2014



Obtaining Your Records under the Freedom of Information Act (FOIA)



By Rhodora Derpo

Immigration Attorney

Immigrant Rights Advocate

info@immigrantadvocate.com

 






A noncitizen should never file any application for an immigration benefit to the immigration government agencies until s/he is relatively certain what the facts are in his/her case. S/he should consider filing a Freedom of Information Act (FOIA) request with the relevant government agencies. In certain cases, it would be wise to do a quick criminal records background check to ensure that a noncitizen's application will not result in the initiation of removal/deportation proceedings.


The Department of Homeland Security (DHS) maintains an Alien File (A-file) for all individuals with an immigration history. An A-file is a compilation of documents which tracks a noncitizen's interactions with immigration agencies including U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), Department of State (DOS), the Executive Office of Immigration Review (EOIR), the former Immigration and Naturalization Service (INS), and, in some cases, the Federal Bureau of Investigations (FBI). The A-file generally contains a noncitizen's official records regarding immigration status, including applications for immigration status, citizenship, or relief. It includes both documents submitted by the noncitizen as well as any investigations, correspondence, statements and memoranda created by the agencies. It also may include other identifying documents, such as birth certificates.


The democratic ideals of government openness and accountability underlie the Freedom of Information Act (FOIA). On July 4, 1967, FOIA took effect and firmly established an effective statutory right of public access to executive branch information in the federal government. The Act provides that any person has the right to request access to his or her records from federal government agencies; and, that virtually every record possessed by a federal executive branch agency be made available to the public in one form or another, unless the record is specifically exempted from disclosure or specially excluded from the Act's coverage.


The nine exemptions of FOIA allow for the protection of documents for reasons including: national security concerns; internal personnel rules and practices of an agency; disclosure prohibited by another federal law; business trade secrets or other confidential commercial or financial information; communications within or between agencies which are protected by legal privileges; invasion of personal privacy of the individuals involved; records compiled as a part of investigations and for law enforcement purposes; supervision of financial institutions; and geological information on gas and oil wells.

 

Challenging the Government's Nondisclosures

 

If a FOIA requester is dissatisfied with the government's disclosures, s/he is given a relative speedy remedy in the United States district courts, where judges determine the propriety of agency withholdings de novo and agencies bear the burden of proof in defending their nondisclosure actions.

 

When to Submit A FOIA Request


Under what circumstances should a noncitizen submit a FOIA request? There are numerous instances in which obtaining a copy of all or part of one's A-file can be beneficial. Many individuals have complicated immigration histories that may be difficult to explain to an attorney. Or, a noncitizen may have lost important immigration documents—obtaining the person's A-file may be the only method in obtaining a copy of those documents. Also, sometimes it is unclear which petition or application was submitted on a person's behalf. In other cases, an individual may have a criminal history in the U.S. and it may be necessary to request a copy of her/his FBI file to determine whether s/he is eligible to receive an immigration benefit.


Obtaining a non-citizens' A-file through a FOIA request not only enables that individual (and/or his/her attorney) to understand the history and status of his/her immigration filings; but, it 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. Obtaining a noncitizen's A-file may help identify any available legal options to resolve his/her immigration complications. Therefore, effective use of FOIA will allow noncitizens to obtain the necessary record and information to properly apply for an immigration benefit and avoid misrepresentations or mistakes.

 

If you have questions regarding FOIA and/or whether it can help your case, please contact my firm at 773.687.9282. Nagsasalita po ako ng Tagalog.•


 

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