Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

I have to wait years for a FOIA?

Question: I filed for a FOIA years ago and still do not have a response. Is there anything I can do?

Answer: It has taken longer and longer. The Freedom of Information Act (FOIA) does allow you to get a copy of of your file from Immigration to basically see what information they have on you. There was actually a case in U.S. District Court which had this same issue. In that case, Mirsad Hajro is a lawful permanent resident of the United States who applied for naturalization in 2003. In October 2007, Hajro received notice that his application had been denied based on evidence in his alien registration file that allegedly revealed false testimony regarding his foreign military service. On or about November 9, 2007, Hajro filed an appeal pursuant to 8 U.S.C. 1447(a) and requested a review hearing before an immigration officer. Hajro also filed a request under FOIA with the Department of Homeland Security (“DHS”), USCIS, National Records Center, seeking a copy of his alien registration file. Hajro has since applied for and been denied naturalization a second time on the same grounds.

Hajro requested expedited processing of his FOIA request under the terms of a 1992 national settlement agreement (“Settlement Agreement”). The Settlement Agreement provides for the establishment of a national policy on priority for processing FOIA / Privacy Act requests to be used by Immigration and Naturalization Service (“INS”) officers. The policy requires immediate processing of an expedited request, where the failure to process a request immediately would either: (a) jeopardize life or personal safety; or (b) impair “substantial due process rights of the requester” and the information sought is not otherwise available. Hajro’s request noted that he needed the copy of his alien registration file in order to see the alleged evidence upon which the denial was based in time to prepare his appeal.
Basically, Hajro needed to get a FOIA to see what evidence was in the file against him to claim that he has committed fraud. It certainly was impairing his due process rights by not having it. Likewise, most people who file FOIA’s are not just filing them because they want an extra copy of their file. They are filing it because they are being denied some benefit from Immigration or not able to move forward with some immigration process.
Question: Well, I’m assuming he did not get his FOIA which was the basis for the suit. Why not?
Answer: On November 19, 2007, Cejka, the Director of the San Francisco Office of USCIS, sent a letter acknowledging receipt of Hajro’s FOIA request and informing him that it did not qualify for expedited processing and would be processed on the Track 2 “complex track.” The Settlement Agreement notwithstanding, since 2007, USCIS has used a three-track system for processing FOIA requests: “Track 1” for simple requests, “Track 2” for complex inquiries that require additional time, and “Track 3” for expedited processing for individuals subject to removal proceedings and scheduled for a hearing before an immigration judge.
Question: So what was the ultimate ruling in the case?
Answer: Plaintiffs argue that the unlawful withholding of information underlying USCIS’s denial of Hajro’s naturalization application violated his fundamental due process rights to a fair hearing. Specifically, Plaintiffs contend that Hajro has a constitutional right to see the evidence relied upon by Defendants in their decision to deny citizenship, and that denial of citizenship should not be based on “secret evidence” unless national security is involved. Plaintiffs also point out that Hajro’s counsel needed to see the evidence in order to prepare his client’s appeal, such that these circumstances, like those discussed in other attorney declarations submitted by Plaintiffs, constituted a situation where expedited processing of the FOIA request would have been warranted under the due process protections of the Settlement Agreement.
Therefore, the Judge ruled that Hajro should have received the FOIA within 20 days of requesting it. Likewise, if you have such a case, especially where allegations are being alle`ged against you, make sure you get a FOIA and if there is a delay, you can sue them in Federal Court.

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