FOIA Updates: Changes and Delays
By Debbie Smith
There have been significant changes to and delays in the processing of Freedom of Information Act (FOIA) requests at the three DHS sub-agencies over the past months. On March 12, 2014, USCIS and ICE implemented an online FOIA request system, joining CBP in offering a web-based FOIA procedure. The online request system is intended to improve the FOIA processing. Nonetheless, the online CBP FOIA procedure continues to experience the same serious delays that plagued the paper-filed FOIA process.
Benefit of FOIA
The Freedom of Information Act, 5 USC § 552, generally provides that any person has the right to request access to federal agency records or information except to the extent the records are protected from disclosure by any of nine exemptions contained in the law or by one of three special law enforcement record exclusions. FOIA requests provide a mechanism to obtain individual immigration case files and offer one of the few means of discovering vital information about previous immigration applications, immigration arrests, orders of removal, and other immigration-related information. However, lengthy delays in processing CBP FOIA requests have harmed noncitizens seeking to determine whether a CBP stop was an expedited removal or a turn-around at the border.
New USCIS and ICE Online FOIA Requests
The March 2014 DHS announcement provides a link to the DHS FOIA request submission form. The submission form is relatively short and contains seven basic questions. In the first section of the request, the section called "DHS Component," a drop-down menu asks whether the FOIA request is directed to USCIS, ICE, or another DHS sub-agency. The "Contact Information" portion of the request asks for information regarding the person making the FOIA submission, including information regarding whether the requester is asking for his/her own records. If the request is made by the individual seeking his/her own records, the requester must declare under penalty of perjury that the information is correct and provide an electronic signature.
In the "Description" section, the requester must describe the records and provide the name, A-number, and date of birth of the individual whose records are sought. The "Agreement to Pay" section asks for the amount of fees that the requester is willing to pay. In the "Requester Category" portion of the submission, the requester must identify whether he/she is seeking information for personal use or whether he/she has an institutional affiliation, such as a representative of a news media. Most FOIA requests will be submitted on the basis of a request for information for personal use. If the requester is seeking a fee waiver, an explanation of the fee waiver is required in the "Fee Waiver" section. Finally, in the "Expedite Processing" section of the form, the requester may request expedited processing based on one of four possible reasons.
The online FOIA submission form does not contain a place to attach a G-28. The Assistant Center Director for the USCIS FOIA Division indicated that DHS may add the capacity to up-load a G-28 and other forms to the FOIA online submission at a later date. For now, an attorney or accredited representative seeking a document on behalf of a client must use the existing FOIA submission form and USCIS may notify the representative if other information is needed.
USCBP FOIA Processing Delays
In a March 6, 2014 AILA Liaison call with CBP, the agency stated that the current processing time for a FOIA request is 10 to 12 months. The CBP website includes a link to check the status of previously submitted FOIA request. New FOIA requests may be submitted online. 
Although federal agencies are required to respond to a FOIA request within 20business days,practitioners report that it is virtually impossible to obtain a timely response to a CBP FOIA request. These unreasonable delays affect potential applicants for adjustment of status, consular processing, and provisional waivers because they must determine the nature of a CBP stop before submitting an application.
A requester has the right to file an administrative appeal for USCBP's failure to respond to a FOIA request. The FOIA appeal may be submitted online or by filing an appeal at: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, Washington, D.C. 20229.
US-VISIT FOIA Request
Another avenue for obtaining information regarding immigration arrests at the border is through a FOIA to US-VISIT, currently called OBIM. In order to obtain information from US-VISIT, the individual should complete a fingerprint card, G-28, Form G-639, and include the individual's name, date of birth, country of nationality, and A-number and Social Security number, if applicable. This information should be sent to OBIM FOIA, 245 Murray Lane, SW, Washington, DC 20598-0628.
Tracking FOIA Delays
It is important to track cases where DHS does not timely respond to FOIA requests. When you submit a FOIA, whether an online or a paper-filed FOIA, DHS will issue a case number. Print a copy of the online FOIA and the case number you receive upon filing. One way to organize your FOIA requests is to keep an additional copy of the request and case number in a separate FOIA file by filing date. If you file an appeal of the FOIA, keep a copy of the appeal also. Several immigrants’ rights organizations are concerned about the significant delays in CBP FOIA applications and are interested in tracking these delays for possible litigation.