Post-Conviction Relief for Immigrants

One way to obtain official information about a client’s general immigration status is to submit a Freedom of Information Act (FOIA) request to the INS on the person’s behalf.  Counsel need not reveal the client’s address, but can request that the information be sent to counsel's office.

            To submit a FOIA request, use Form G‑639 and a Certification of Identity.  To avoid delay, the letter and envelope should be clearly marked “Freedom of Information Act Request,” circled in red.  Provide the client’s name, date of birth and “A number” (eight‑digit number beginning with “A,” found on INS documents), if the client has one.  If the client does not have an “A number,” it is unwise and unnecessary to identify your client as an alien.  Regulations governing FOIA requests are found at 8 C.F.R. § 103.10.

            The DHS can impose a fee for copying if the file is more than several pages long.  Federal law requires the immigration authorities to respond to your request within 10 days.  In the past the INS would delay response for months or years, but response has quickened considerably.[27]  This may be changing for the worse after September 11, in light of Ashcroft's antipathy toward the FOIA.

            The FOIA request should yield all immigration records, correspondence, applications submitted by the client, decisions on applications, etc.  Sometimes the government will refuse to divulge portions of the file; this refusal can be challenged on appeal if necessary.

            A FOIA request can be sent to any district or regional office.  Send the FOIA request to all district offices most likely to have had contact with your client.  Address it to “DHS, Freedom of Information Act Request,” followed by the address.

[27] 5 U.S.C. § 552(a)(6).  See Mayock v. INS, N.D. Cal., No. C‑85‑5169 (July 6, 1988) (compelling INS to respond to FOIA requests within 10 days); see also O'Rourke v. U.S. Department of Justice, 684 F. Supp. 716 (D.D.C. 1988).