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What is FOIA and how can I use it?

What is FOIA and how can I use it?

What is the Freedom of Information Act (FOIA)?

The Freedom of Information Act, or FOIA, is a law that requires the U.S. government to disclose certain information and documents upon request. This includes agencies that handle immigration matters, such as USCIS, ICE, CBP, and the U.S. Department of State. FOIA is, therefore, a critical tool to get information or documents from the government that are related to immigration matters, whether regarding a specific individual or the public at large.

How is FOIA useful in immigration matters?

Through FOIA, a person can ask the U.S. government for a variety of documents related to immigration, including:

  • Documents that are specific to an individual’s immigration history or application (such as their A-File, a list of their entries into and departures from the U.S., or information on which government office is adjudicating an applicant’s petition)
  • Documents revealing a government agency’s policies or procedures, such as manuals or instructions to government employees, or templates that are provided to employees when evaluating petitions
  • Data and statistics, such as the frequency of denials or approvals on a specific visa application type

This is a small sample of the documents that might be revealed through a FOIA request. For a few examples of ways in which FOIA is used, see Syracuse University’s Transactional Records Access Clearinghouse (TRAC), which regularly publishes articles based on information discovered in FOIA requests. Or, just take a look at today’s newspaper – newspaper articles are frequently based on or supported by information and documents that reporters acquire through FOIA requests.

I am undocumented. Can I still file a FOIA request against the government?

Yes – anyone can file a FOIA request, regardless of immigration status.

Is there anything the government is not required to disclose under FOIA?

Yes, there are a number of exemptions and limitations that apply to what the government is required to disclose under FOIA. Keep in mind that even if part of a document is protected or exempt, the government will be required to disclose the remaining portions of the document that are not protected. Below are a few examples of categories of documents and information that is protected from disclosure.

One category of information or documents that is protected from disclosure is those that are specifically protected by law. Documents that would disclose the reasoning behind a decision to issue or deny a visa, for example, are usually not disclosed on this basis.

Documents are usually protected from disclosure if they represent communications between agencies or within an agency regarding its decisionmaking. The idea behind this protection is that agencies should be free to deliberate about decisions, and should not be required to disclose their internal discussions and debates.

Documents and information will also be protected if its release would disclose personal or private information about an individual.

Documents and information will also be protected if they were created for the purpose of law enforcement. This exemption frequently arises in the context of immigration enforcement. The government will typically withhold documents that might reveal, for example, inspection procedures at ports of entry, methods the government uses to detect fraud, or documentation regarding the carrying out of immigration raids.

How do I file a FOIA request?

Many federal government agencies include instructions on their websites describing the steps to make a FOIA request (including USCIS, CBP, ICE, and the U.S. Department of State).

When drafting the FOIA request, it is important that the request include details about the specific document or documents being requested. This may include specifying the date the document was created or the relevant time frame that the document should cover. Keep in mind that you want to make it as easy as possible for the agency to find the document you are requesting – your description should leave as little doubt as possible regarding what document you seek. And, of course, the requestor will want to be sure that they are submitting the request to the agency that actually has the documents – for example, USCIS will not disclose documents that are exclusively in ICE’s custody, and vice versa.

Keep in mind that the government might require additional proof of authorization if you are requesting information or documents about a third party (such as a friend or family member).

How long does it take the government to respond to a FOIA request?

In general, government agencies are required to respond to the FOIA request within 20 days. The agency may not provide the requested documents by this date – the amount of time the government will require to respond to the FOIA request depends on a number of factors, including the extent of the search required and the size of the documents produced. For this reason, it may be advantageous to narrowly focus your search parameters.

If the government is taking a long time to respond to the request, most agency websites will provide information on how to make an inquiry about a pending FOIA request.

Is there a fee to request records under FOIA?

Agencies frequently will not charge a fee if the size of the produced documents is relatively small. However, if the production is large, the agency might require a reasonable fee before providing the documents.

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