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FOIA Requests: Why Do I Need One? [Immigration]

Allison Lukanich

Many times when I’m doing a consult with a prospective client, I recommend we file a FOIA request with an immigration agency.  Many individuals, anxious to get their cases started, don’t understand why as a lawyer I’m telling them to hang tight, file this form first, and then we can discuss their options and move forward.  However, to fully do my job, sometimes a FOIA request is an absolute necessity so that I can double check my client’s immigration history and ensure they qualify to file the case moving forward.  So what exactly is a FOIA and why is it necessary?

Why Should I Hire an Immigration Attorney?

What is a FOIA?

FOIA stands for “Freedom of Information Act” after the law that allows immigrants, lawful permanent residents, and US citizens the ability to request a copy of their files from the federal government.  You need to make an individual FOIA request to each agency that might have records.

If for example, you once were turned away trying to enter the United States at a port of entry, you would submit the request to Customs and Border Patrol, or CBP, who would have kept record of that encounter.  Or, if you previously applied for an immigration benefit like an employment authorization document, EAD, that was later denied, you would submit the request to U.S. Citizen and Immigration Service or USCIS to get a copy of the application and denial letter.

How do I submit the FOIA request?

Most agencies have an online system for submitting the FOIA request.  While the law does allow the agency to charge an individual to process the request, I have yet to have them apply a fee, and the maximum they can charge is $25.

Depending on which agency you are requesting your file from, it can take anywhere from a few weeks to 6-8 months to get a response.  Usually it takes longer for individuals who have older files from the 1980s and 1990s that may not have been digitized yet.

After the agency processes the request, they will either email you the response with a password protected document or mail you a CD with the files saved for your review.  Oftentimes, there is information or entire pages that are redacted from the file.  This is because the law allows a number of exemptions from the agencies to not disclose certain information.

Why should I request my FOIA?

FOIAs are an excellent tool for clients and attorneys alike to help piece together an individual’s past, specifically when they’ve had multiple encounters with various immigration agencies and aren’t sure of what happened in the past with an application or entry into the US.

Other times, it is helpful to submit the FOIA request if you’ve misplaced or lost copies of previously-submitted paperwork, or if they’ve been destroyed through no fault of your own. 

As an attorney, I usually require a client to obtain a FOIA of their records when there is maybe be present a negative immigration history for which they have no records (a prior encounter at the border, having been to immigration court previously, etc.), or where the client is not sure what petition they’ve filed in the past or what the outcome was.

Are there risks to submitting a FOIA request to the Federal government?

Many individuals who needs FOIAs before moving forward in an immigration process often do because of negative immigration history.  Perhaps they were detained upon entry into the United States and aren’t sure what happened, or had received an order of deportation from the country and hadn’t left yet.  Obtaining the records are crucial for an attorney to ascertain options moving forward, but many prospective clients are fearful to do so, not wanting to trigger a response from Immigration and Customs Enforcement or ICE.

Traditionally, submitting a FOIA response has not triggered a negative response from Immigration and Customs Enforcement, ICE, against an individual.  In the current administration, there have been reports of ICE refusing to disclose certain records for individuals with outstanding deportation orders, as they are considered ICE fugitives. However, this is a seldom practice.  FOIA records can be requested in a safe way through an attorney’s office, with the records being submitted directly to the requestor or attorney, so that the individual is not disclosing their mailing address or other contact information.

What’s next?

FOIAs can be a very useful tool for an attorney to help piece together a client’s immigration history, demonstrate what might have happened with their past visa status or application, and help come up with the best legal strategy moving forward to best represent the client.

Many prospective clients will push back because they want to file their cases immediately, and don’t want to wait a handful of months before doing so.  However, per the Rules of Professional Conduct, all lawyers must represent their clients competently and diligently, and, when appropriate, obtaining a FOIA will provide the missing puzzle pieces to understand an individual’s background and to be able to move forward with their immigration case.

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