07.21.10 Immigration Court FOIA Reform
Change Immigration Court Policy to Promote Due Process of Law and Save Taxpayer Money
We have in the United States an immigration court system in which hundreds of thousands of immigrants every year defend their right to stay in this country. It is astonishing that people facing such dire circumstances â incarceration, permanent separation from family members, or even removal to a country where they may face persecution or death â must file Freedom of Information Act (FOIA) requests with the government to obtain copies of their own case records. The time between filing a FOIA and receiving the requested documents can, in some cases, take as many as six months â needlessly delaying the immigrantâs hearing and often requiring prolonged detention, away from family and without employment. Unfortunately, this six-month wait is considered the âfast-track.â More commonly, the wait spans one to two years â at best, leaving the immigrant with inadequate time to prepare his case, and in reality, egregiously violating basic principles of fairness and due process. The FOIA requirement as it stands hardly holds up American courts as shining beacons of fairness, legitimacy and efficiency.
In the end, both the Bureau of U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security and the Executive Office for Immigration Review (EOIR) of the Department of Justice, which maintain various parts of the case records, deny less than one percent of properly submitted FOIA requests for immigration case files. The request process, then, is nothing more than a hollow bureaucratic requirement that obstructs justice. It also inflates costs for the agencies and frustrates the ability of immigration judges to run their dockets efficiently. For fiscal year 2008, USCIS employed 185 people full-time solely to review FOIA requests. The cost of processing those requests exceeded $12 million, with filing fees only paying about 0.04 percent of that amount. Taxpayers picked up the rest of the tab. Similarly, EOIR employed 10 people full-time at a cost to taxpayers exceeding $1 million. Because of these arcane and arbitrary roadblocks to obtaining case files, judges often must delay hearings or require the immigrant to proceed without access to his or her records.
Immigrants should be given immediate and automatic access to their case records maintained by USCIS and EOIR. On DOJâs part, this would simply involve providing immigrants and counsel with the ability to make copies of the relevant files. These documents may already be accessed, but filing a FOIA request is currently the only way to obtain hard copies such that immigrants can adequately prepare for hearings. Simply adding a line to the Immigration Court Practice Manual and reminding the courts to reasonably accommodate requests for files would alleviate the current backlog caused by processing superfluous FOIA requests. Appleseed has already drafted these proposed language changes.
For DHS, improving document availability is only slightly more complicated. Acknowledging national security considerations that would be protected under FOIA anyway, we propose a limited mandatory disclosure rule, similar in sentiment to disclosure obligations under Brady v. Maryland. Any documents that prosecutors plan on submitting into evidence in an immigration hearing should be made available to immigrants automatically, including routine documents such as arrest warrants, petitions, and files related to visas. The FOIA requirement would be limited to more sensitive documents concerning national security, or situations in which immigrants believe certain files have been wrongfully withheld. We hope to meet with DHS and other organizations and individuals in the immediate future to discuss the development of such a rule.
Neither of our recommendations to improve document availability entails funneling more resources into new programs. These simple steps targeting a wasteful FOIA requirement will instead save taxpayer money, enable judges to run their dockets efficiently, and allow immigrants the ability to raise their claims in a timely manner. Appleseed intends to discuss the next steps with both agencies. It is time to act.