Every year, IRAP files dozens of requests under the Freedom of Information Act (FOIA), seeking information about our clients’ cases and the (often hidden) agency policies that impact them. And every year, we spend hundreds of hours re-requesting the same documents, fighting over exemptions and withholdings, and arguing that agencies failed to locate and produce all of the relevant documents in their possession.
To better understand how U.S Citizenship & Immigration Services (USCIS) and the State Department (DOS) process our FOIA requests behind the scenes, IRAP submitted “meta-FOIA” requests in August 2021. We asked (and subsequently sued) for policies, guidelines, and training materials explaining how these agencies process and respond to FOIA requests. You can find all of the documents the agencies released to IRAP here.
Our lawsuit unearthed some surprisingly juicy details about how USCIS and the State Department handle FOIA requests – including questionable policies and practices that prejudice immigrants and their advocates.
1. How to Get the Documents You Want…On the First Try
In theory, FOIA allows individuals and their representatives to readily access their own immigration records. In reality, FOIA-ing your own records is exceptionally messy, and it can take multiple requests and appeals to track down specific records in your (or your client’s) file. For comprehensive introductory guides on FOIA-ing immigration records, we recommend the general resources listed below. For those already working on FOIA-ing records, here are a few key tips we learned from reviewing internal agency guidance training materials:
When it comes to petitions filed on someone else’s behalf–such as a Form I-130 or I-730 petition for family abroad–USCIS will usually only release records with the consent of the subject of the petition ( i.e. , the beneficiary ) . Make sure to obtain the beneficiary’s consent, including a Form G-28 as needed, and to submit verification of identity. If the beneficiary is a minor, make sure to include proof that the requester is the child’s parent or legal guardian.
On the other hand, DOS will only release records to the person who created the document ( i.e. , the petitioner ). This handy chart describes which documents DOS will release to the beneficiary or the petitioner, and which documents will be withheld from both:
An “A-file” is the main immigration file that USCIS maintains for a particular individual. However, “standalone” applications – such as an I-130 (family petition), I-131 (travel document, including parole), and I-765 (work authorization) – may not be consolidated into a preexisting A-file. In fact, USCIS instructs officers not to disclose the I-765 with the rest of the A-file unless it is specifically requested. To ensure a comprehensive response, request the subject’s A-file and “all records” containing the subject’s name. If a person has applied for multiple immigration benefits and you are particularly interested in one application, it is helpful to specify the exact application you’re interested in. (AIC, NILA, Northwest Immigrant Rights Project, and Stacy Tolchin have also published a helpful practice advisory on how to request immigration files to ensure that USCIS produces responsive records within 30 days).
Make sure to familiarize yourselves with both USCIS and DOS’s guidelines – and to follow these instructions to the letter, including when requesting information on behalf of minors . For example, with respect to scanned PDF documents, USCIS will not accept electronic signatures that are generated by software or signatures that are not notarized or made under penalty of perjury. (Again, the Nightingale practice advisory is a valuable resource to help avoid unnecessary denials based on insufficient consent.)
When USCIS officers conduct their initial search for responsive records, they have the option to check a box to include “related documents” and a box to include “supporting documents.” These boxes are not checked by default. If you are requesting records related to a particular benefit or application, make sure that you ask for “related and supported documents” to ensure that important correspondence (such as requests for evidence and applicant responses) will be included.
USCIS is required to search particular systems before declaring that there are no records responsive to your request. If you suspect that USCIS – or any other agency – failed to locate existing records, it’s helpful to understand where those systems pull data from …and what might be missing.
Not sure where the agency should be searching for records? Check out these indexes of major information systems published by DOS and the Department of Homeland Security (including USCIS, ICE, and CBP systems). DOS and DHS published these indexes in response to IRAP’s litigation and advocacy to improve transparency and compliance with the FOIA’s procedural requirements .
2. Opportunities to Improve FOIA by Challenging Unlawful Policies
IRAP’s lawsuit also revealed questionable agency practices that delay – or prevent – the release of critical information. For example:
Under Department of Homeland Security (DHS) regulations , component agencies like USCIS can distinguish between simple and complex FOIA requests “based on the estimated amount of work or time needed to process the request.” USCIS places incoming FOIA requests on one of three tracks : Track 1 (requests for specific documents), Track 2 (complex cases, including requests for a person’s full A-file), or Track 3 (requests by individuals in immigration court). Requests by media or advocacy organizations – including AILA , ACLU , CAIR , CREW , and EFF – are automatically treated as “complex” and placed on the second (generally slower) track .
Challenging FOIA redactions often feels like a shot in the dark: we can guess at the content of the documents being withheld, but we don’t know what we don’t know. USCIS and DOS’s exemption-by-exemption guidelines provide a telling glimpse into just how broadly the agencies interpret these exemptions.
For example, USCIS produced a list of sensitive terms and systems that should be redacted under exemption (b)(7)(E), which protects records created for law enforcement purposes:
For its part, DOS refuses to release any documents that the applicant has not already seen–an absurd policy that seems to subvert the very purpose of the FOIA.
KEY DOCUMENTS
We encourage you to check out the full document productions – which are searchable by text and helpfully tagged according to the agency, document type, and subject – and to share these lessons broadly. Below, we’ve highlighted a few key documents that we have found most useful in our own work.
GENERAL RESOURCES
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In this case, IRAP sought to compel DHS and the State Department to publish an index and descriptions of their major information systems online, so that FOIA requestors can better understand what information agencies have and how to ask for that information.
IRAP filed a lawsuit challenging USCIS’s policy of refusing to search the database it uses for refugee adjudications (called “WRAPS”) and claiming to have no records of refugee case files when responding to FOIA requests. Consistent with this policy, USCIS failed to produce a single document when IRAP requested its client’s refugee case file.