Criminal Defense of Immigrants


§ 3.32 A. FOIA Requests

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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 DHS 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. [113]  In the past the DHS would delay response for months or years, but response has quickened considerably.  In 2007, the DHS created a special FOIA processing track for noncitizens in removal proceedings, with the goal of expediting the processing of those FOIA requests.[114]  Properly submitted “Track III” FOIA requests are currently being processed in three to six weeks.


                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.


[113] 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).

[114] Special FOIA Processing Track for Individuals Appearing Before an Immigration Judge, 72 Fed. Reg. 9017 (Feb. 28, 2007).



Seventh Circuit

Rubmand v. USCIS, __ F.3d __ (7th Cir. Aug. 31, 2015) (USCIS failed to conduct adequate search in response to FOIA request, since USCIS did not look for the type of record (statistics) requested).

Ninth Circuit

Hajro v. USCIS, 832 F.Supp.2d 1095 (N.D.Cal., Oct. 13, 2011, final Judgment May 5, 2012) (finding USCIS in violation of FOIA for causing excessive delays and issuing injunction to force USCIS to promptly reply to FOIA request).


Hajro v. USCIS, ___ F. Supp. 2d ___, 2011 WL 4854021 (N.D.Cal. Oct. 13, 2011) (USCIS must process FOIA cases in 20 days, track three cannot be limited to just persons in removal proceedings, and FOIA requests must be expedited upon a showing that substantial due process rights of the requestor would be impaired by the failure to process a request immediately). Thanks to Kip Evan Steinberg.
"As part of an ongoing effort to enhance its service to the immigration community, the Board of Immigration Appeals (Board) announced today that by March 1, 2009, it will begin to provide a copy of its final decision to all aliens in proceedings, regardless of whether the alien is represented by counsel." EOIR, Dec. 19, 2008.
New FOIA Legislation: Openness Promotes Effectiveness in our National Government Act of 2007 or the OPEN Government Act of 2007, S. 2488, signed Dec. 31, 2007.
"Beginning October 1, 2007, please forward all new FOIA requests to the following address: U.S. Customs and Border Protection, 1300 Pennsylvania Ave., NW, Attn: Mint Annex Building, FOIA Division Washington, D.C. 20229. The phone number for the new FOIA office is (202) 572-0640. . . . FOIA requests for records that are maintained in national computer systems, and are accessible to the FOIA staff, will be processed from start to finish by the new FOIA office - to include receiving and logging the request, querying and identifying responsive records and exemptions, redacting, and submitting the final response to the requestor. FOIA requests for records that are not maintained in national computer systems, will be received and logged-in by the FOIA office and processing will be coordinated directly with the appropriate office." For more info, visit:
Freedom of Information Act Requests (FOIA) United States Department of Justice Executive Office for Immigration Review Office of the General Counsel-FOIA/Privacy Act Requests 5107 Leesburg Pike, Suite 2600 Falls Church, VA 22041 (703) 605-1297 See Immigration Court Practice Manual, Chapter 12
AILF Litigation Clearinghouse for FOIA cases.
"All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA." Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009.
The Government has been denying FOIA requests from attorneys representing "fugitive aliens." An AILF practice advisory on this issue can be found here:
"Pursuant to the President's directive that I issue new FOIA guidelines, I hereby rescind the Attorney General's FOIA Memorandum of October 12, 2001... ." DOJ, Mar. 19, 2009.