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Immigration Practice - 14th Edition - Hardcover
Immigration Practice - 14th Edition - Electronic
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Chapter 4
REQUESTS FOR GOVERNMENT FILES
§ 4-1. Introduction.
Often an alien client has an immigration history with which the attorney
needs close familiarity in order to represent the alien properly. Aliens and
their sponsors frequently have not been good about keeping copies of
documents they have submitted to, or received from, the government, and
some documents prepared by the government have never been revealed to
the alien. At least three means exist for obtaining records from government
files relating to immigration matters: (1) request for records by the
applicant under agency regulations; (2) requests for records by the applicant
under the Privacy Act;1 and (3) requests for records by any person under the
Freedom of Information Act (FOIA).2 Different agencies treat all three
avenues differently. DHS and State Department policies and procedures are
discussed below.
In keeping with the Open Government Act, all agencies' approach to
FOIA requests has been affected by the momentous direction given by
President Obama through Federal Register notices, a White House
Memorandum, and an Attorney General Memorandum in 2009, requiring a
presumption of disclosure, requiring the Office of Management and Budget
and the Chief Technology Officer to devise new ways to share information
with the public, and declaring that the Attorney General will defend a
denial of a FOIA request only if (1) the agency reasonably foresees that
disclosure would harm an interest protected by one of the statutory
exemptions, or (2) disclosure is prohibited by law.3
§ 4-2. Department of Homeland Security.
While a DHS application or petition is pending, and afterward (at least for
the purpose of appeal), an alien or his attorney may inspect the DHS "record
of proceeding" (i.e., adjudication file) at a DHS office and/or obtain copies,
ostensibly by letter request to the office with the file or, more practically,
make an Infopass appointment with a request to obtain the file for purposes of
review.4 In Immigration Court proceedings, the alien or attorney should
simply call the DHS district counsel's office and request to see the alien's
file.5 If that is not successful, the alien may ask the Court Administrator for
review of the court file, move the Immigration Judge (IJ) for production of
the alien's DHS file, or make a FOIA request to EOIR (see § 4-4). The Ninth
Circuit has ruled that the government must share non-confidential A file
documents with the respondent in immigration court proceedings without
FOIA request,6 but ICE does not recognize this decision outside that circuit.
Nevertheless, a respondent in proceedings should make a FOIA request and a
letter request to ICE, and perhaps a motion in the immigration court, citing
the Ninth Circuit decision.
Chapter 4
REQUESTS FOR GOVERNMENT FILES
§ 4-1. Introduction.
§ 4-2. Department of Homeland Security.
§ 4-3. State Department.
§ 4-4. Department of Justice.
§ 4-5. Department of Labor.
Robert C. Divine is the Chairman of the Immigration Group of Baker Donelson, a law firm of over 550 lawyers and public policy advisors with offices in 13 cities from Washington, D.C. to New Orleans.
Mr. Divine served in Washington, D.C. from July 2004 until November 2006 as the first presidentially appointed Chief Counsel of United States Citizenship & Immigration Services (USCIS), the world's largest immigration services agency within the Department of Homeland Security (DHS). From July 2005 until July 2006, he served as Acting Director and then Acting Deputy Director of USCIS. In early 2004 he served as an expert for the U.S. Commission on International Religious Freedom evaluating the impact on asylum claims from DHS' implementation of expedited removal procedures.
He has practiced immigration law since 1986 and in the last several years has chaired the American Immigration Lawyers Association's "Inter-Agency" Committee and its Liaison Committee to the U.S. Department of State. He has served as an expert witness in U.S. and foreign courts.
His practice includes all aspects of U.S. immigration law, representing large and small international and domestic employers, investors, developers, regional centers, family sponsors, and individual foreign nationals. He has also litigated significant business matters, including class action employment discrimination, contract, commercial, product liability, antitrust, ERISA benefits, business torts (including RICO, misrepresentation, Consumer Protection Act), and immigration-related criminal matters.
