Knowing the information a United States government agency has in your file is essential when applying for any kind of immigration benefit (citizenship, permanent residence, asylum, nonimmigrant visa or visa status entry into the U.S.) or relief (fighting removal).
The U.S. Department of Homeland Security (DHS), the U.S. Department of State (DOS), the U.S. Department of Justice (DOJ) and the U.S. Department of Labor (DOL) are some of the government agencies that play a part in the U.S. immigration process. Often one or more of these agencies will have records that are needed by a foreign national to apply for a U.S. benefit or relief. Learning how to file a request for documents under the Freedom of Information Act (FOIA) is an essential skill for anyone seeking to enter or remain in the US.
FOIA entitles anyone the right to access certain U.S. government documentation about themselves or others. The key factors to consider when filing a FOIA request are:
- The document needed by the applicant
- The appropriate agency within DHS (ICE: Immigration and Customs Enforcement; CBP, Customs and Border Patrol; and USCIS, U.S. Immigrant and Citizenship Services) to file the request with
- The reason for needing the document
- Any additional information provided by the applicant
Making a FOIA Request
FOIA requests can be submitted via mail, email, fax or online. In general, FOIA requests should include a letter to DHS describing the exact documentation requested. (with the exception of CBP, which only uses an online form). According to the regulations, the request “must describe the records sought in sufficient detail to enable DHS personnel to locate them with a reasonable amount of effort. A reasonable description contains sufficient information to permit an organized, non-random search for the record based on the component’s filing arrangements and existing retrieval systems.”
We suggest that the letter include at least the following:
- The name of the individual
- The name of the lawyer filing the request
- The date of the request
- Case numbers, if any
- Reference numbers, if any
- Exact documents being requested
It is essential to describe the exact information that is being requested in order to get a complete copy of your record. Vague FOIA requests will result in processing delays or an incomplete copy of the record.
For certain DHS FOIA requests, Form G639 may be filed online with USCIS. Before filing the G639 we suggest a consultation with a lawyer to make sure only the relevant information requested on Form G639 is provided.
Filing the FOIA request with the appropriate agency within DHS is crucial. While DHS’s FOIA guidelines are helpful, they do not shed light on all FOIA situations. Often times it is the exact facts and circumstances of a particular case that will dictate what FOIA request is needed and where the FOIA request should be directed.
Requesting an Expedited FOIA Request
FOIA requests are processed on a first in, first out basis. Consequently, it can take several months for a FOIA request to be processed. Per 6 C.F.R. § 5.5(e)(1), an applicant can ask for their request to be expedited if it involves:
- Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual
- An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information
- The loss of substantial due process rights
- A matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence
Alternatively, the immigrant or client can write a cover letter and apply to move their request onto DHS’s track for accelerated processing. Eligibility requirements for this fast track include having currently scheduled hearing before an immigration judge. All expedite requests under this track must include:
- Notice to Appear (Form I-862) documenting a future scheduled date of the subject’s hearing before the immigration judge
- Order to Show Cause (Form I-122) documenting a future scheduled date of the subject’s hearing before the immigration judge
- Notice of Referral to Immigration Judge (Form I-863)
- A written notice of continuation of a future scheduled hearing before the immigration judge
Most FOIA requests are filled without charge but by filing the FOIA, the applicant agree to pay up to $25 for results. In the event a fee is levied, a fee waiver may be requested in specific circumstances.