FOIA Requirement Jams Immigration Courts

September 17, 2009

Red Tape Obstructs Due Process for Immigrants
FOIA Requirement Jams Courts and Wastes Millions of Dollars

In support of Appleseed’s comprehensive efforts to reform the U.S. immigration court system, Chicago Appleseed, in collaboration with the National Office, will each month draft and release a policy statement on a major recommendation from Assembly Line Injustice.

The latest statement highlights a proposal that will not only ensure fairer, timelier hearings for immigrants, but avert needless expense to taxpayers. The proposal concerns the bizarre requirement that immigrants submit a Freedom of Information Act (FOIA) request in order to obtain copies of their own case files – a requirement that should be eliminated.

Facing continued incarceration, permanent separation from family, or even removal to country where persecution and death await, “these immigrants must be given immediate and automatic access to their files,” said Malcolm Rich, executive director of Chicago Appleseed.

The FOIA roadblock, rarely found in other American court systems, unnecessarily delays an immigrant’s hearing – the average processing time for these requests in 2008 was 230 days – thus prolonging detention away from family and without employment. Meanwhile, without direct access to their records, immigrants are left with insufficient time to prepare a case.

In the end, the requirement proves to be nothing more than bureaucratic obstruction: both the U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security and the Executive Office for Immigration Review (EOIR) of the Department of Justice, which maintain various parts of immigration case records, deny less than one percent of properly submitted FOIA requests for the files.

To make matters worse, the requirement increases costs for those agencies and frustrates the ability of immigration judges, who must often delay hearings, to run their dockets efficiently. During the 2008 fiscal year, USCIS used 185 full-time employees solely to review FOIA requests – at a cost of more than $12 million. Filing fees paid for only 0.04 percent of that amount, leaving taxpayers to pick up the rest of the tab. Similarly, EOIR employed 10 people full-time at a cost of more than $1 million.

As pointed out in the policy statement, simple changes to the DOJ’s Immigration Court Manual would help unclog sytem. Such changes would save taxpayer money, keep hearings on schedule, and allow immigrants who have valid claims to stay in the U.S. the ability to raise those claims in a timely manner. Appleseed has already drafted the proposed language changes for DOJ. Now it is their time to act.