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Litigation Challenging USCIS FOIA Processing

by Kip Evan Steinberg

The Law Offices of Kip Evan Steinberg has filed a lawsuit (C 08 1350 RMW) in the Northern District Of California challenging the procedures employed by USCIS to implement the Freedom of Information Act (FOIA).

Currently USCIS only allows expedited processing for individuals scheduled for a hearing before an immigration judge. Under USCIS' multi track system for responding to FOIA requests, this is known as "Track Three". The lawsuit alleges that under the terms of a nationwide settlement agreement obtained as a result of the litigation in Mayock v. INS, 714 F.Supp 1558 (N.D. Cal. 1989), rev'd and remanded sub nom, Mayock v. Nelson, 938 F. 2d 1006 (9th Cir. 1991), the government agreed to expedite FOIA requests upon a showing that "substantial due process rights of the requestor would be impaired by the failure to process immediately, and the information sought is not otherwise available."

The lawsuit alleges that the government has undermined the interests protected by the Settlement Agreement by gutting its essential due process protections for aliens who need copies of their files in order to have due process for appeals, motions to reopen, and fair hearings in situations other than hearings before an immigration judge. Examples of such cases include, but are not limited to: appeals of denials of citizenship under 8 U.S.C. 1447, appeals to the Board of Immigration Appeals under 8 C.F.R 1003.3, appeals to the Administrative Appeals Office under 8 C.F.R 103.3, appeals to the Legalization Appeals Office under 8 C.F.R 245a.2(p), and persons with final orders of deportation filing a motion to reopen or reconsider under 8 C.F.R. 1003.2. The lawsuit also challenges other USCIS FOIA practices such as the failure to process FOIA requests in twenty days as required by the statute.

To read the Hajro v. USCIS Complaint for Declaration and Injunctive Relief, please see here.

About The Author

Kip Evan Steinberg is a Certified Specialist in Immigration and Nationality Law and has received the highest possible rating ("AV") for legal ability. He previously taught immigration law as an Adjunct Professor at Hastings College of the Law and is listed in the Bar Register of Preeminent Lawyers. Mr. Steinberg was named as a Northern California Super Lawyer in San Francisco Magazine in 2007.

I am seeking declarations from immigration attorneys whose clients have needed to obtain their files on an expedited basis in order to protect their due process rights to adequately file an appeal or motion to reopen, but were unable to do so under the current USCIS FOIA Track Three policy. Please contact me at or 415-453-2855.

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