Immigration Agencies Violate FOIA, Harming Immigrants and Government Transparency Alike

Immigration Agencies Violate FOIA, Harming Immigrants and Government Transparency Alike

Immigration agencies have a problem with transparency. With an immigration system as complex as ours and Freedom of Information Act offices that are chronically underfunded, it’s no surprise that immigration agencies violate FOIA—a statute created to strengthen our democracy by helping regular citizens understand what the government is up to—by failing to timely provide details about policies and programs to the public. It also is no excuse.

Immigration agencies’ troubles with FOIA have spanned administrations. Sunshine Week offers an opportunity to reflect on the ways immigration agencies can do better.

Our current FOIA system, for instance, isn’t functional. It’s baffling that each year, tens of thousands of immigrants have no alternative but to submit FOIA requests to obtain their own records. Access to immigration records is necessary to apply for an immigration benefit or defend against deportation.

As a result, the majority of FOIA requests submitted to the Department of Homeland Security are requests for individual immigration records such as immigration files (“A-Files”), biometric information, and documentation of encounters with immigration officials.

The volume of requests submitted to DHS in comparison to other agencies that receive first-person requests is stark. A recent study determined that among 70 agencies that received a significant number of first-person FOIA requests in FY 2020, DHS received 397,671 total FOIA requests, the highest number by far. Though DHS does not report the percentage of its total requests that are first-person requests, in 2020, 99 percent of the FOIA requests to U.S. Citizenship and Immigration Services (USCIS) were first-person requests for immigration files. USCIS received approximately half of all DHS requests.

In the case of a deportation proceeding, a lawyer representing the government can easily access records to support a case against an immigrant. But an immigrant navigating our byzantine immigration system to try to defend themselves against deportation must submit a FOIA for the same records. If the FOIA system worked efficiently, a person might have quick access to these records. But historically, FOIA offices have been unable to meet the demand of individual records requests. As a result, significant FOIA backlogs have developed, and the agencies have failed to respond to FOIA requests within the required 20 to 30 days.

The volume of first-person requests clearly affects the person requesting the records. But it also impacts individuals, journalists, researchers, and advocates who are seeking to understand immigration policies, programs, and trends. When faced with court orders, immigration agencies have devoted resources to address backlogs and delays. Generally, however, when court mandates or other surge approaches are not in place, backlogs inevitably return.

To improve the agencies’ compliance with FOIA and ensure individuals have timely access to their own records, immigration agencies should remove requests for copies of individual immigration files from the FOIA queue. Creating a system for individuals to access all or some portion of their immigration records could appreciably reduce backlogs and delays and improve compliance with FOIA across immigration agencies.

Solutions outside of FOIA are not unprecedented. Recently, with little fanfare, the Department of Justice’s Executive Office for Immigration Review developed a process that allows immigrants’ attorneys to obtain records of immigration court proceedings directly from immigration courts. The process has been imperfect, but it has become clear that with agency commitment, removing records from the FOIA queue is not an impossible task.

The process for first-person FOIA requests is in desperate need of reform. Immigrants face an uphill battle in securing their own records and all FOIA requesters seeking information from DHS have little choice but to rely on the deeply flawed FOIA system. DHS FOIA processing challenges undermine the purpose of FOIA and have resulted in, among other things, FOIA litigation against DHS and a general sense that immigration agencies are not transparent.

Consensus—across parties and stakeholders—on an immigration issue seems inconsistent with the ideological clashes that define our conversation on immigration. We rightly are focused on Republican governors busing and flying migrants to sanctuary cities and on upheaval at the border with the imminent end of Title 42. Yet, a better functioning FOIA system and greater government transparency is necessary to help inform these conversations.

There should be broad bipartisan agreement that removing thousands of records from the FOIA queue to allow immigration agencies to timely provide information to the public benefits us all. The number of first-person requests to DHS agencies is only increasing and the agencies seem perpetually unprepared to respond. It is simply good government policy to rethink a process that isn’t functioning properly and finally stop shoehorning first-person requests for information into a FOIA process.

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