Federal judge criticizes immigration agency's response to FOIA request

Monika Fidler | Freedom of Information | News | December 3, 2012

Attorneys seeking records from U.S. Citizenship and Immigration Services hope that a strongly worded opinion released recently by a federal judge criticizing the agency for failing to quickly and adequately respond to a federal Freedom of Information Act request will push the agency to change how it responds to other FOIA requests.

In a Nov. 27 opinion, U.S. District Court Judge James Boasberg ordered the release of two-thirds of the records requested by the American Immigration Council from Citizenship and Immigration Services, a component of the Department of Homeland Security, and also took issue with the agency's response.

“Defendant U.S. Citizenship and Immigration Services produced a response riddled with errors," Boasberg wrote. "The affidavit meant to demonstrate the adequacy of USCIS's search for responsive records discloses almost nothing about the search itself."

After waiting almost a year for USCIS to respond to the request, the AIC’s Legal Action Center and co-counsel Dorsey & Whitney LLP filed a FOIA suit on behalf of the AIC, claiming that the agency had failed to respond adequately to the request.

“We feel somewhat vindicated because it showed that the agency did not do an adequate job in how they searched, where they searched and what they were looking for and we suspect that there are additional documents out there that we have not received,” said Beth Werlin, deputy director for AIC.

Werlin said the decision should push Citizenship and Immigration Services to change how it handles FOIA requests and hopes that those changes include better processing of two other requests that AIC has pending with the agency.

The FOIA request was made after immigration attorneys raised concerns that the Department of Homeland Security interferes with noncitizens' rights to legal representation by preventing attorneys from accompanying their clients during inspections, limiting the scope of representation, refusing to accept supporting documentation proffered by attorneys, and actively dissuading noncitizens from hiring attorneys, according to the complaint filed by AIC.

In its opinion, the court found that USCIS’s attempted justification for withholding records “oscillates between sloppy and misleading.” The court concluded that “USCIS must do better.” Boasberg ordered the government to turn over the improperly withheld records and submit a new affidavit to demonstrate the adequacy of its search for records.