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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

FOIA In Flux

by Jill Sheldon, Esq.

The process for requesting an individual's immigration-related information through the Freedom of Information Act (FOIA) has grown more complicated after INS was replaced by USCIS, ICE and CBP. In the past, when everything was under INS, the FOIA process for getting information on an individual was relatively straightforward. The main complaint was often the time it would take to receive a response to a request, which varied wildly by district. It was not necessarily an efficient process, but it was relatively easy to navigate in most cases. It is no longer so easy. The forms are still the same, but the issues have changed. The questions now are which agency or agencies to file the FOIA request with, where to submit a request within that agency, and how long a request will take to process.

Information on the new FOIA procedures has been trickling in by bits and pieces as practitioners get new, unexpected, and very delayed responses to FOIA requests. A lot of what I have learned about the new procedures has come through tracking a single FOIA request I filed nine months ago and which I will discuss below. This request is still pending. In response to questions raised on a national level, USCIS has also provided some guidance to CLINIC on some of the new FOIA procedures at USCIS, which I will also share. This article will focus on some of the changes in FOIA processing at USCIS.

While there is still considerable uncertainty about the new FOIA procedures, a few things seem clear. First, it seems evident that all three agencies are in the midst of centralizing their processing of FOIA requests. Second, it is apparent that there are definitely jurisdictional issues regarding FOIA requests that did not exist under INS. For example, while one agency has actual possession of an individual's alien file, USCIS, ICE and CBP often control different documents within that single file for purposes of a FOIA request. The strange processing path that the FOIA request discussed below has taken so far, and the fact that it is still pending nine months after its original filing, illustrates many of the new issues and uncertainties in this evolving process.

A Case Study: Nine Months and Counting

It started out so simple: An individual in removal proceedings, whom the ICE alleged entered without inspection, described his entry into the United States in a way that made me think it was possible he had actually been inspected and paroled into the country by Border Patrol. If this were the case, this individual could adjust status in immigration court. So, in October 2004 I prepared a very narrow FOIA request asking for information on this single entry and sent it to the FOIA officer at CBP in the district where the individual reported being processed by Border Patrol.

Not long after I filed my FOIA request, a CBP FOIA officer called to tell me that the CBP records systems had turned up no responsive records. She was forwarding my request to the local USCIS office in case they had responsive records. To my surprise, she also suggested that I send a separate FOIA request to Border Patrol, even though Border Patrol was a part of CBP, explaining that some of their records systems were, at least at that time, still separate.

Following the CBP FOIA officer's suggestion, I re-filed the same FOIA request with Border Patrol in December 2004. In the interim I had received a letter from the local USCIS office that it had forwarded my transferred request to another local office that it thought might have the records being requested. A few weeks later I called to follow up on my FOIA request to Border Patrol and was transferred to a CBP attorney who informed me that that office had in fact found several pages of responsive records. He said these records were being electronically sent to the National Records Center (NRC), which he indicated was doing the actual processing of Border Patrol and CBP FOIA requests sent to that office. The NRC, a USCIS facility, would then mail me the records after they completed processing.

My request to Border Patrol did in fact get transferred to the NRC. I got an acknowledgment letter from them in January with a control number. The NRC has a public telephone number you can call regarding pending FOIA requests and actually speak to a person who can give you information that is actually helpful. The number is 816-350-5570.

In May, I received a status letter from NRC telling me that my request was approximately number 4,000 in a line of 28,000 pending requests. According to a staff member in the FOIA division at the NRC, their facility processes between 5,000 and 6,000 FOIA requests each month and they are in the process of doubling their staff and moving to a 24-hour processing system. Using my limited math skills I thought this meant it I might receive a response to my request by June, but I did not. I did however receive other correspondence from the NRC in June a letter informing me that my request in the same case had just been transferred to their office and assigning me yet another control number. After many minutes of confusion I realized that this must be the request that was first forwarded by the local CBP office to the local USCIS office last October and then forwarded again to another local office. It had apparently been bouncing around and then perhaps sitting around local offices for months before finally making it to the NRC, the new location for much of the USCIS FOIA processing. Under this second control number, nine months later I was in the back of the line in the first-come, first-served FOIA system. I was suddenly very thankful for the first control number that seemed to have me nearing the front of the FOIA processing line. I thought that my records would arrive any day.

I was wrong. When I called NRC this week for an update on my pending request I was informed that while the system indicated my request was now around number 600 in line for processing at the NRC, it was also showing that my request had recently been forwarded to USCIS Headquarters and that Headquarters had in fact completed processing. The staff person and I were both confused by this new and contradictory information. She indicated she was going to send an inquiry and that I should call for another update next week.

USCIS Provides Some Guidance to CLINIC

Thankfully, USCIS recently provided CLINIC with some guidance on the evolving FOIA procedures at the agency. Specifically, USCIS confirmed to CLINIC that it is in the process of centralizing most FOIA processing at the National Records Center (NRC). As part of this process, USCIS reported that the following local district offices and sub-offices are no longer handling FOIA requests: Atlanta; Baltimore; Chicago; Charlotte; Kansas City; Memphis; Miami; New Orleans; Philadelphia; Seattle; San Diego; St. Paul; San Juan; and Washington, DC.

The following Service Centers are no longer handling FOIA requests:

  • Texas Service Center
  • Vermont Service Center.
All requests pending at these offices at the time of closure should have already been transferred to the NRC and a notice should have been sent out to the requester notifying them of this transfer. All future requests that previously would have been filed at these local offices should now be sent directly to the NRC.

USCIS reported that eventually all local processing of FOIA requests will end and that the NRC will be processing most USCIS FOIA requests by December 2005. As each local USCIS office shuts down FOIA processing, they have been instructed to notify requesters of the new address to send requests.

USCIS also reported that there are some offices that have been "partially" centralized, but did not identify these offices. They instructed that all FOIA requests for these offices should still be filed at the local office and that requesters will be sent an acknowledgment letter informing them as to which office (local or NRC) will be processing their request.

If in doubt as to where to file a FOIA request for USCIS information, the agency instructed that requesters could send their request to either the local district office or the NRC and that the request will then be directed to the appropriate office for processing. A staff member at the NRC stated that when in doubt it is probably better to file at the NRC because their processing system is more automated and therefore any necessary redirection of a request will likely be completed in a more timely manner.

The address for FOIA requests sent to the NRC is:
    DHS/USCIS
    National Records Center
    P.O. Box 648010
    Lee's Summit, MO 64064-8010
If the NRC is processing a FOIA request, the requester can call the NRC FOIA division at 816-350-5570 between 7:00 a.m. to 1:30 p.m. and 3:30 p.m. - 6:30 p.m. (central time) to check on the status of the request or to ask questions. In my limited experience, the FOIA staff members that answer this line are helpful.

USCIS also indicated that as soon as it gets confirmation from the districts still processing FOIA requests locally as to when the agency will cease such processing, USCIS will generate a Federal Register Notice informing the public of the remaining processing offices, the type of request that these offices are responsible for, and the addresses for each.

FOIA Process If USCIS Not In Possession of A-file

In theory, there is only one alien file, or A- file, per individual. That file could be in the possession of USCIS, CBP or ICE. USCIS will first check to see if they are in possession of the file. If USCIS receives a request for an A-file that is the possession of ICE or CBP, USCIS will do one of two things, depending on whom you ask: (1) transfer the request to the controlling agency and ask them to process the request (if the request is transferred, USCIS will send the requester a notice of the transfer); or (2) return the request to the requester with a notice informing him/her that the file is not in USCIS possession, which agency has possession of the file, and where to redirect the FOIA request.

In general, requests for information on entries and exits is under the purview of CBP, and FOIA officers at both the NRC and at Headquarters confirmed that they are transferring or directing such requests to:

    Joanne Roman Stump
    Chief, Disclosure Law Branch
    1330 Pennsylvania Avenue, NW
    Washington, DC 20229
Alien files that are found to be in ICE control are being transferred or redirected to:
    Marshall Fields
    Office of Investigations, Room 4038
    ICE Headquarters
    425 I Street NW
    Washington, DC 20536
FOIA Process When USCIS Possesses Some Documents Controlled by CBP or ICE

Even if USCIS does have possession of an A- file, different documents within that file may now be controlled by different agencies. For example, in my case example above, the individual who is the subject of my FOIA request had significant contact with all three agencies: CBP at entry, USCIS since his arrival, and ICE since being placed in removal proceedings. Thus all three agencies conceivably control different parts of the information in this individual's alien file.

According to a FOIA official at USCIS Headquarters, this is the process when they receive a FOIA request and find that some of the records in a file are under another agency's purview: If the A-file is in USCIS possession, USCIS will take that file, process the request and determine if any documents in the file belong to ICE or CBP. If any documents in the file do belong to ICE or CBP, USCIS will then send the agency those documents and ask them to process that part of the FOIA request. USCIS will then send a letter to the FOIA requester informing them that USCIS has referred part of the request to ICE or CBP.

Requesting Records that May Not Be Included in the A-file

While there is only one A-file for an individual, the A-file does not necessarily contain all the information the agencies have on a particular individual. For example, as an official in the FOIA division at USCIS Headquarters pointed out, ICE might have an investigation file on an individual that would not be included in the individual's A-file. Therefore, it is conceivable that if a requester files a FOIA request with USCIS for a copy of an A-file in USCIS's possession, they may not actually be getting all information on an individual unless they also separately file a FOIA request with the other agencies.


About The Author

Jill Sheldon, Esq. is the Southeast Field Office Attorney for the Catholic Legal Immigration Network, Inc. (CLINIC) in Miami. A 1999 graduate of the Georgetown University Law Center, Ms. Sheldon also previously worked for three years as a CLINIC detention attorney in both Pennsylvania and Florida, representing detained immigrants before DHS, EOIR and the BIA. As CLINIC's Southeast Field Office Attorney, Ms. Sheldon is responsible for conducting trainings in immigration law throughout the Sourtheast region. She can be reached via email at jsheldon@cliniclegal.org.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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