FOIA Ombuds Observer, No. 2018-01, Companion

The Office of Government Information Services (OGIS) offers dispute resolution services to Freedom of Information Act (FOIA) requesters and agencies. This function allows OGIS to observe and examine the interactions between requesters and agencies across the Federal government, and note common questions and issues that arise in the FOIA process. The FOIA Ombuds Observer addresses questions and issues frequently seen in our individual cases. Our goal is to increase efficiency and transparency in the FOIA process.

Using FOIA to Access Immigration Records
Questions and Answers

September 26, 2018

No. 2018-01, Companion  
 

This companion document to the FOIA Ombuds Observer, No. 18-01, Using FOIA to Access Immigration Records captures questions and answers that arose during the August 30, 2018 Multi-Agency FOIA Forum on immigration records as well as frequently asked questions submitted by the following agencies that participated in the forum: 

• U.S. Citizenship and Immigration Services (USCIS),
• U.S. Immigration and Customs Enforcement (ICE),
• the Department of State,
• U.S. Customs and Border Protection (CBP),
• Office of Refugee Resettlement (ORR)/Department of Health and Human Services (HHS)
• Executive Office for Immigration Review (EOIR)/Department of Justice (DOJ), and
• the National Archives and Records Administration (NARA).

U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE)  

Q: Can a petitioner get access to documents filed with USCIS without the consent of the beneficiary?

A: It depends on whether the petition has been adjudicated. If adjudicated, the petition is consolidated into the beneficiary's Alien File, or, A-File. In order to get access to A-File documents a requester must have the consent of the subject of the record (the beneficiary in this case).

Q: What is the minimum amount of information required in order to request an A-File?

A:  For verification of identity purposes, the Department of Homeland Security (DHS) FOIA regulation requires that the requester provide the subject's full name, current address, date and place of birth.

Q: Refugees who have applied for refugee resettlement through the U.S. Refugee Admissions Program undergo an adjudication with USCIS officers. Yet when these records are requested through FOIA requests that include a name and A number or other identifying information, USCIS commonly responds that it could not locate responsive records, despite the individual having undergone a USCIS adjudication.

Does USCIS have guidance or training materials for staff who are responding to FOIA requests for refugee files?

What is the Department of State and USCIS process for capturing and transferring refugee records?

A:

• Yes, USCIS training materials include information on the handling of all A-File requests, including those for refugees.
• State maintains records related to applications of refugee status. Once there is a final determination regarding the application, State has six months to transfer the records to USCIS. If USCIS issues a "no records" response for refugee records, the agency suggests that the requester submit a request to State and/or send a new request to USCIS in six months.

Q: For immigration record requests to USCIS other than A-Files for individuals in removal proceedings—such as a refugee requesting their records after their resettlement application is rejected:

What are the average processing times?

Who handles these applications? Who is responsible for reviewing the records prior to release?

Are records requests and searches handled manually, and what portions can be done electronically?

A:

• Requests for refugee files are likely to be placed in USCIS' Track 2 along with requests for entire A-Files. The average processing times for USCIS' tracks are posted on the website.
   
• If the A-File has been created, USCIS is responsible for responding to the FOIA request. Written procedures provide that refugee documents are sent to USCIS for A-File creation six months after a final decision is made on the refugee's application and any reconsideration request.  Prior to creation of an A-File, the Department of State maintains all refugee records
   
• Requests: Most USCIS FOIA requests are sent via US mail. Requesters can also send requests via email, or using fax. Once USCIS' new FOIA processing system FIRST, is fully operational, requesters will be able to submit requests directly online.
   
• Searches: Although the majority of A-Files are paper based, these files are tracked and controlled in an automated system, RAILS.  Electronic searches in several USCIS systems can identify an A-File associated with a particular individual. Ordinarily, searches associated with non A-File related requests, such as those seeking policy documents, are handled by USCIS program offices running keyword searches against various electronic repositories.

Q: Why will a requester get different responses from DHS components?

A: Unless components enter into an agreement which authorizes USCIS to process documents belonging to the component which are found in an A-File, USCIS must refer documents to the DHS component for handling.  In these situations the requester receives multiple responses to the FOIA request. USCIS currently is authorized to process A-File documents for the following: Department of Health and Human Services, Department of State,  the Federal Bureau of Prisons, , Office of Biometric Identity Management, and Customs and Border Protection.

Q: How long does the transfer of A-files from USCIS to NARA take?

A:  USCIS transfers A-Files to NARA’s legal custody in five-year blocks based on year of birth of the subject of the A-File.  Files cannot be transferred until 100 years after the birth of the subject of the file. When NARA receives a transfer, USCIS provides access data points (name, DOB, port of entry, country of origin, date of entry) that NARA then uploads into the National Archives Catalog once NARA accepts the transfer. All A-Files are screened before release to protect the privacy information of living third parties (such as children of the subject of the file).

Department of State

Q: What information is helpful when submitting a FOIA request for visa records

A:

• The request subject's Full Name (surname(s), given name(s), other distinguishing information (such as Jr., Sr., III), and any aliases or other names used)*
• The request subject's Date and place of birth (country, state/province, and city)*
• The request subject's Case number or receipt number if the case number is unknown (this is for immigrant visas only)
• A description of the specific documents the requester seeks
• The requester's current address, phone number
• The attorney's email address - visa record FOIA responses can be sent to an authorized attorney's email and may reduce the time it takes to receive records.
  * notes information that is required in order to process a FOIA request for visa records.

Q: What records will I receive if I submit a FOIA request for visa records?

A: The State Department will release only those documents consistent with the court ruling in Medina-Hincapie v. Department of State, et.al., 700 F2.d 737 (DC Cir. 1983). The Department of State will release only those documents that were submitted or received by the applicant/requester or others who have provided written authorizations for release of their documents. Example: The Petitioner provided the I-130 Form in an immigrant visa application case.  If there is no authorization from the petitioner, then the State Department will not release the I-130 to the beneficiary.

Q: Will a request for visa records pertaining to a deceased person be released?

A:  Visa records continue to be protected under the visa confidentiality provisions of INA Section 222(f) even after the subject is deceased.  Section 222(f) the Immigration and Nationality Act, 8 U.S.C. § 1202(f), protects from disclosure records pertaining to the issuance or refusal of visas and permits to enter the United States. We learned from USCIS that information obtained from individuals on USCIS Form I-918, "Petition for U Nonimmigrant Status" and USCIS Form I-914, "Application for T Nonimmigrant Status," fits squarely into the perimeters of the non-disclosure provision of the Immigration and Nationality Act. Information on Forms I-918 and I-914 includes geographic, crime and other information. Thus, consistent with FOIA Exemption (b)(3) and the decision in Medina-Hincapie v. Department of State, et al., 700 F.2d 737 (D.C. Cir. 1983), they will not be released, even if the request is submitted with a copy of the death certificate.  

U.S. Customs and Border Protection (CBP)  

Q: When will CBP's online FOIA site be fully functional?

A: It is anticipated that all records will be migrated by September 30, 2018.  If a requester received notification from CBP's FOIA office that a request has been completed and the requester is unable to access the records via his or her FOIAonline account, the requester should contact the CBP FOIA office at 202-325-0150.

Q: Why are CBP FOIA officers redacting the respondent's A number?

A: The respondent's A number should not be redacted. CBP will remind all the staff.  

Q: Why are CBP requests closed without informing the requester?

A: CBP informs all requesters when a case is closed. The agency is upgrading its online portal, FOIAonline. The responses to requests may not have yet migrated. All data should be migrated into the upgraded version of FOIAonline by September 30, 2018.

Q: Will CBP refuse to provide records?

A:    CBP will not categorically refuse to provide any requested record. It will be processed under FOIA. If documents are denied, a reason for denial will be provided.

Office of Refugee Resettlement (ORR)/Department of Health and Human Services (HHS)

Q: I received the case file but the sponsor's information was redacted. Why was the sponsor's information redacted?

A: Because the sponsor did not consent to the release of his or her information.  

Q: I am not representing Unaccompanied Alien Children (UAC) in immigration court and am only requesting the file for research purposes. Do I need to provide any supporting documents? 

A: Yes, if you are an attorney who is not funded by the Office of Refugee Resettlement, you will need to provide a signed G-28 Form; EOIR-27 Form; or EOIR-28 Form.  

Q: When is a request considered urgent? 

A: If the minor has a court hearing date within 30 days of the date of the request or if the minor ages out within 30 days.  

Executive Office for Immigration Review (EOIR)/Department of Justice (DOJ)  

Q: What does EOIR require of someone seeking records about another person or himself?

A:  Please be sure that verification of identity and/or authorization to release, as appropriate, is/are enclosed when you mail your FOIA request and is/are attached if you email your FOIA request. Failure to provide a signed verification of identity or authorization to release information, as appropriate, may impede EOIR's release of information if the disclosure would constitute a clearly unwarranted invasion of privacy. Additionally, please note that prior to releasing any information EOIR assesses the applicability of all FOIA exemptions.  

Q: Can I ask to have records about me to be corrected?

A: The Privacy Act provides a United States citizen or Legal Permanent Resident the opportunity to request correction or amendment of records that are retrieved by name or other personal identifier in a system of records maintained by EOIR. See 28 C.F.R. Please note that, pursuant to 28 C.F.R. §§16.83 and 16.84, the Privacy Act cannot be used as a correction mechanism for "official records," i.e., information contained in EOIR record of proceedings (ROP). Requests for amendment of correction of records should be marked PRIVACY ACT AMENDMENT REQUEST and addressed to:

Office of the General Counsel
Attn: Joseph Schaaf
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 1903
Falls Church, VA 22041

National Archives and Records Administration (NARA)  

Q: Do I need to file a FOIA request to get access to accessioned records in the National Archives?

A:  Generally no. Due to the age of most of NARA's archival holdings, most accessioned records are open to the public in their entirety. However, a minority of records in NARA's permanent archival holding do have sensitive information. Those files are identified at the time of accessioning and the access status is captured in NARA's finding aids, including the National Archives Catalog. If records are identified as "restricted" in the National Archives Catalog, requesters must file a FOIA to obtain access. For information on submitting a FOIA request, refer to the NARA FOIA Reference Guide.  

Q: Do I need to submit a FOIA request to receive copies of an individual's naturalization record?

A: No. The naturalization records in the National Archives' custody are part of Record Group 21, Records of the United States District Courts and are generally available without restriction.  Generally, the records of Federal courts are open to the public without restriction.  

Q: What A-Files have been accessioned by the National Archives?

A:  The United States Citizenship and Immigration Service (USCIS) and NARA signed an agreement on June 3, 2009, to make the A- Files a permanent series of records, transferred to NARA custody 100 years after the immigrant's year of birth.

• As of August 1, 2012, the National Archives at Kansas City received the following holdings: More than 400,000 A-Files for individuals who were born 1910 and before.  
• As of May 14, 2012, the National Archives at San Francisco received the following holdings: 43,836 A-Files for individuals who were born 1910 and before, largely from the Immigration and Naturalization Service (INS)-Honolulu and INS-Guam District Offices.  
• A-Files at the National Archives at San Francisco were formerly maintained by the San Francisco, Honolulu, Reno, and Guam District Offices of INS.  However, researchers seeking A-Files for individuals who may have lived in these areas should check both the National Archives at San Francisco and Kansas City for A-Files.  

All Agencies  

Q: Are there differences in responses based on the requester's ethnic group?

A: No, agencies do not require requesters to provide their ethnicity when filing a request.

Q: What are the reason for agency backlogs and how are agencies tackling the backlog?

A:

• USCIS has the largest backlog in the government at around 48,000 as of the end of FY 2018. The backlog at USCIS has waxed and waned over the years. One thing that is unique to immigration litigation is that attorneys cannot use discovery to access documents, they must use FOIA. That is a contributing factor to the increase in FOIAs.  
• State noted that the agency's backlog is an issue, but it is working to process requests more quickly.  
• CBP attributes its increase in backlog to an increase in requests, and noted that it is offering staff overtime to work on backlog reduction. CBP added that despite the increase in requests, it has e had no increase in staff.  
• ICE also said that its backlog has waxed and waned over the years, and that it is also offering staff overtime to reduce backlog.  
• ORR noted that it has been able to bring on new staff and that the office does not currently have a backlog.  
• EOIR said that the backlog is a budget issue and it is using its resources as creatively and flexibly as possible to respond in a timely fashion. The complexity of requests has increased, which means that staff take more time to process a request.  
• NARA said it is hard to tell what portion of the agency's backlog is immigration records because the agency's FOIA process is decentralized and the regions receive very different kinds of FOIA requests. There is no backlog for requests for open records, such as court naturalization files.  

Q: What is the standard practice for use of fees?

A:

• USCIS, CBP, and ICE all responded that they generally do not charge fees for immigration records because they do not meet the FOIA statute timelines. ORR explained that fee issues are handled by the Administration for Children and Families (ACF).  
• EOIR said it does not charge fees for first-party requests, but might charge fees for complex requests or commercial requests.  

• NARA charges for reproduction based on its published archival reproduction fee schedule. NARA is exempt from the fee waiver provisions of the FOIA (except for operational records it creates as an agency of the executive branch). For archival records, NARA does not charge for search and FOIA processing and will provide released records to the requester in NARA research rooms free of cost.  

Q: Which agencies use FOIA's law enforcement exemptions?

A:

• USCIS has a small branch concerned with fraud protection and will use Exemption 7, which protects personal information in law enforcement records, to protect sources and methods  
• State uses Exemption 7 because it liaises with law enforcement agencies and conducts investigations.  
• CBP and ICE both routinely use Exemption 7 as both are law enforcement agencies.  
• ORR will use Exemption 7 if the records involve an incident that has been investigated.  
• EOIR is not a law enforcement agency, but will use Exemption 7 on another agency's behalf

Q: Can you please explain the referral process?

A:

• CBP refers requests for A-Files to USCIS. If CBP receives a referral, it is processed on a first-in-first-out basis, which—given the backlog—means it may be four to six months before the requester receives a response.  
• ICE receives a large number of referrals from USCIS.  
• ORR and EOIR signed a memorandum with USCIS so that USCIS processes any ORR records in A-Files.  
• EOIR might refer out requests for policy-related documents.  
• USCIS has memoranda to process records in A-Files that belong to State, BOP, ORR, OBIM, and CBP.

Q: How would you improve the process for requests for statistics?

A:

• State replied that agencies collect a great deal of information on forms that are relevant to the process, but the agency does not report that information. (For example, gender may be relevant for identifying a person, but is not something the agency reports). The agency may not be collecting this "additional" information in a way that is reportable, and is not obligated create a new record in response to a FOIA request.  
• ICE commented that not all of the data it collects is gathered electronically. One way to improve requests is to improve education about what the agency collects and what is available.
• USCIS is attempting to improve the process for these types of significant interest requests through one-on-one contact with requesters to discuss the scope of a request. Through this communication, USCIS will also ask requesters for search terms and then ask the program office what kinds of records the terms are likely to produce.