In honor of President James Madison, who was born on March 16, 1751 and who championed the free and open dissemination of information in a democratic society, learn about the Freedom of Information Act and how it can be used in immigration cases.
What is the Freedom of Information Act (FOIA)?
Since 1967, the Freedom of Information Act (colloquially known as "FOIA") has provided the public with the right to access records from any one of the approximately 100 federal agencies and departments that are are subject to FOIA.
These federal agencies and departments are required to disclose any information requested unless the information is excluded by the Act or exempted by one of the following 9 exemptions (all of which are intended to protect interests of personal privacy, national security, and/or law enforcement):
Information classified in the interest of national security;
Records related solely to an agency's internal personnel rules and practices;
Information exempted from release by statute;
Trade secrets and commercial or financial information which could harm a company's business interests or competitiveness;
Records related to an agency's deliberative or policy-making processes such as an agency's opinions, recommendations, and inter-agency or intra-agency memos and/or letters;
Information that, if released, would result in a "clearly unwarranted invasion of personal privacy" of the individuals involved;
Records or information compiled for law enforcement purposes, the release of which could interfere with enforcement proceedings, deprive a person of due process, result in an invasion of personal privacy of third parties, disclose confidential sources, disclose law enforcement investigative techniques/procedures, and/or endanger the life or physical safety of an individual;
Information contained in or related to certain reports prepared by, or on behalf of, an agency that is responsible for regulating or supervising financial institutions; and
Geological and geophysical information and data concerning wells (yes, wells!).
As a result of these exclusions and exemptions, some records may be redacted before they are produced, while other records may be withheld entirely.
If the recipient of the records is not satisfied with an agency's initial response (ex., the recipient believes records exist which were not produced or the propriety of a claimed exemption and redaction), an administrative appeal can be submitted.
Which Federal Agencies Have Which Records?
From an immigration standpoint, the Department of State, the Department of Homeland Security (which includes U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protections), and the Department of Justice (which includes the Executive Officer for Immigration Review) are the departments and agencies which would most commonly be expected to maintain immigration-related records.
More specifically, the following are some of the types of immigration records that can be requested:
Department of State
Visa requests from non-citizens seeking to enter the United States;
Applications from U.S. Citizens for U.S. passports Information;
Department of Homeland Security
Prior immigration petitions;
I-94 Arrival records;
Records of interactions with Customs and Border Protection and/or Immigration and Customs Enforcement;
Removal, detention, and deportation records;
Department of Justice
Immigration Court records of proceedings;
Board of Immigration Appeals records;
Can I Request My Immigration Records?
Absolutely! And oftentimes it's a good idea to do so. For example:
If you were previously denied a visa at a consulate or embassy, a FOIA request to the Department of State might produce records that can help you understand why;
If you immigrated to the United States as a child and need a copy of your immigration paperwork, a FOIA request could potentially produce the documents you are looking for; or
If you believe that a recent ancestor might have been a U.S. Citizen, a FOIA request can be made for a copy of any documents that might reveal that citizenship status.
Each agency has its own procedure for submitting a FOIA request, including:
where to send the request;
what information to include in the request; and
the costs associated with the request (such as research and copying costs).
No matter the agency, though, it's important to keep in mind that requests for information about a person other than the requester require either proper written authorization by the other person authorizing their release, or proof that the subject of the request is deceased.
Once a request has been submitted, the amount of time for the request to be reviewed and processed will vary depending on the agency, the amount of FOIA requests received, the complexity of the request, and the age or amount of records sought. In 2021, it took an average of 10 to 50 working days to process simple immigration-related requests, and 35 to 110 working days for complex ones. As a result, it's best to request the records as soon as you think you may need them.
If you would like to schedule a free consultation or need help submitted a FOIA request, click here to view our calendar.
It is important to remember that each is case different, and there is no one-size-fits-all solution. As a result, it is strongly encouraged that you seek the advice of a competent and licensed immigration attorney to help you navigate this process.
Disclaimer: This post is for informational purposes only, and shall not be considered legal advice, or be used as a substitute for competent counsel. No attorney-client relationship exists without a signed agreement.
Comentários