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More on Immigration Records

Immigrants under the threat of deportation, such as Na Lay, aka Annie Kum Chee, was around 1900, sometimes must rely on FOIA requests to obtain records for their defense. (ARC Identifier 298177)

An OGIS-sponsored forum on immigration records on May 23 brought together FOIA professionals from five agencies which maintain immigration records with immigration attorneys and others interested in such records. The FOIA Ombudsman is spot-lighting each agency and the types of immigration records each holds. See previous posts on U.S. Citizenship and Immigration Services (USCIS); Immigration and Customs Enforcement (ICE); Customs and Border Protection (CBP).

When one thinks of immigration records, the State Department (State) and the Executive Office of Immigration Review (EOIR) may not be the first agencies that come to mind. But both maintain specific types of immigration records subject to records requests under FOIA and, for some individuals, the FOIA process is crucial to whether they remain in this country or are deported.

EOIR—pronounced “Eeyore” like the Winnie-the-Pooh character—oversees immigration courts, which decide whether foreign-born individuals charged with violating U.S. immigration law should be removed from the U.S. or allowed to stay. EOIR is not a law enforcement agency nor is it part of the Department of Homeland Security (DHS).

EOIR, part of the Department of Justice (DOJ), maintains records pertaining to the Office of the Chief Immigration Judge, the Office of the Chief Administrative Hearing Offices and the Board of Immigration Appeals Records. Such records include statistics on immigration courts, documents about free legal services and attorney discipline records.

Because there is no discovery process in the immigration court system as there is with the Federal district court system, lawyers use FOIA to obtain records to help defend their clients in immigration court. (That’s also why DHS FOIA regulations establish a quick track for requests from people facing deportation who present proof—an Order to Show Cause and Notice of Hearing—of a scheduled hearing date in U.S. Immigration Court.)

Before filing a FOIA request with EOIR to obtain records regarding yourself or, if you are an attorney, your client, check with the field office court administrators, which offer file reviews on certain dates.  Here is a list of court administrators.

If you do make a FOIA request, include your or your client’s full name, aliases, immigration hearing location and the alien registration number, or A number. If the A number is not known or if the case occurred before 1988, EOIR asks that you provide the date of the Order to Show Cause and Notice of Hearing, the country of origin and the location of the immigration hearing. All EOIR requests should be sent to EOIR headquarters in suburban Virginia, just outside of Washington, D.C. You may email your request to EOIR.FOIARequests@usdoj.gov or visit the agency’s FOIA web site for the mailing address.

First-party requesters (and their attorneys) generally receive their entire EOIR file. Form DOJ-361, which certifies a requester’s identity, must accompany such first-party requests. Although not required, attorneys and other representatives of requesters also are encouraged to submit form EOIR-27 or form EOIR-28 with the requests.

State records regarding immigration generally pertain to visas, including non-immigrant visa classification applications, immigrant visa applications and visa denials. The State Department receives about 800 referrals a month from U.S. Citizenship and Immigration Services (USCIS) for visa-related records.

FOIA is not an efficient way to gain access to State Department visa records, particularly if you wish to learn the reason a visa is denied. Instead, State suggests writing to the office that processed the application or emailing legalnet@state.gov.  

First-party requesters will generally obtain access to visa-related documents, while third-party requesters are generally denied access to such records under Exemption 3 of FOIA, 5 U.S.C. § 552(b)(3), which incorporates other, separate statutes that requires information to be withheld from release. In these cases, State will withhold this information under 8 U.S.C. § 1202(f), which exempts from disclosure under FOIA records pertaining to the issuance or refusal of visas to enter the U.S.