The Freedom of Information Act (FOIA) is an extremely valuable tool. It allows an immigrant and his attorney to see what information the government has about him in its files.
U.S. immigration laws are extremely complex. Formulating a successful immigration strategy can be compared to playing poker. Wouldn’t it greatly increase your odds of success if, before you placed your bet, you knew what cards your opponent was holding? Of course!
This is the beauty of FOIA. You can learn what materials about you are in the files of the USCIS and the Executive Office for Immigration Review (which consists primarily of the Immigration Courts and the Board of Immigration Appeals) before you submit an application for immigration benefits.
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Let’s say, for instance, that you are applying for a green card through your job or through a relative. You overstayed your visa a few years ago, and an Immigration Judge ordered you to leave the U.S., which you did. However, you are unsure whether the Judge ordered you deported or whether he granted you voluntary departure. If you were deported, you are ineligible to return to the U.S. for 10 years, but if you left under voluntary departure, you are not subject to this bar.
If you simply apply for a green card, and learn at your interview that you are subject to the 10-year-bar, you could be in big trouble. When I worked as an INS Trial Attorney, I saw many people apply for green cards through their U.S. citizen spouses who did not realize that a Final Order of Deportation had been entered against them because they failed to appear for a deportation hearing. Often, this occurred because the Immigration Court sent the notice to an old address. Nevertheless, they were arrested at their interviews, and detained by the government while their lawyers attempted to reopen their cases.
Or imagine that you could only adjust your status in the U.S. if you qualify for benefits under Section 245(i). You think that your U.S. citizen aunt may have petitioned for your mother and the rest of the family back in the 1980s when you were a minor. The only problem is that both your aunt and your mother have passed away, and you have no proof that a petition was ever submitted. What is the solution? Order your mother’s immigration file under FOIA, and find out.
All in all, it often makes sense to obtain a copy of your file before you apply for immigration benefits. Our law firm submits over 100 FOIA requests each year.
Here are a few things that you should know about FOIA:
1) There are no filing fees for submitting a FOIA application, although the government may charge you a small copying fee if your immigration file is huge;
2) If you are afraid that your file may contain negative information, you may wish to hire an immigration attorney to obtain and review your file. The attorney does not have to reveal your address on the FOIA application;
3) The USCIS often withholds certain parts of your file from you based on exemptions specified in the FOIA law. However, you have a right to appeal the USCIS’ decision;
4) I have yet to see a case where EOIR withheld any part of the file from the applicant;
5) If you are undergoing removal proceedings, you are entitled to receive your FOIA file more quickly; and
6) The processing times for FOIA requests to the USCIS have dropped from one year at the beginning of 2009 to four months currently. EOIR often processes FOIA requests in just two to three months.
Having worked for the INS, and since 1982, in private practice, I believe that it is better to be safe than sorry. If you or your immigration attorney have the slightest doubt about your eligibility for immigration benefits based on something that may be in your government file, you should first submit a FOIA request and obtain a copy of your file.
For more information, see our Freedom of Information Act page.
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