As immigrant rights advocates, we have all experienced the frustration of filing – and re-filing – Freedom of Information Act (“FOIA”) requests in order to obtain our clients’ records. The International Refugee Assistance Project decided to find out how USCIS and the Department of State process our FOIA requests…by filing a FOIA.
OUR “meta-FOIA » exposed questionable agency policies. For example, we learned that USCIS routinely delays FOIA requests from advocacy organizations, including AILA (which was distinguished by name), placing these requests on the “complex” processing track.
We also learned how agencies use exemptions – particularly those related to law enforcement – to withhold broad categories of information. For example: the State Department refuses to release any of them documents or information unless the applicant has already seen them– which undermines the entire purpose of FOIA. During this time, USCIS maintains a important list of sensitive words, terms and systems that it regularly removes under the law enforcement exception.
We also learned a number of valuable tips and tricks for requesting immigration records, some of which are summarized below. We encourage you to check out everything we found here.
- Understand who you need consent from: In order to disclose immigration petitions, USCIS requires consent from the subject (i.e. the beneficiary), while the Department of State requires consent from the person who created the document (i.e. the beneficiary), ‘i.e. the plaintiff). If in doubt, consult this painting.
- Some records may not be in a person’s “A file.”: An “A Case” is the primary immigration case that USCIS handles for a particular individual. However, “stand-alone” applications – such as I-130 (family petition), I-131 (travel document, including parole), and I-765 (employment authorization) applications – cannot be grouped into the A file of an applicant. You must request the subject’s A file and “all records” containing the subject’s name. (For more information on A FOIA files, see the Nightingale practice notice).
- Request associated files and supporting documents: If you are requesting documents related to a particular service or request, this phraseology will help ensure that important correspondence (such as requests for evidence and requester responses) is included.
- Adhere to agency guidelines on consent and identity verification: Be sure to closely follow both USCIS And BACK directives, including when requesting information on behalf of minors.
We hope AILA members will use and share this guidance – and challenge agency policies that harm advocates and our clients.