CIS Ombudsman Teleconference: "FOIA - How is it Working for You?" December 6, 2010

1.  What was the purpose of centralization of FOIA processing? Was it accomplished?  How many FOIA staff are at the NRC?  Are there staff located elsewhere?

USCIS Response: The purpose of the U.S. Citizenship and Immigration Services (USCIS) Freedom of Information Act (FOIA) centralization project was to bring USCIS into compliance with statutory requirements, reduce costs, gain efficiencies, improve customer service and reduce backlogs, following the establishment of the National Records Center (NRC) in 1999. Centralization of the FOIA operations was proposed in July 2001, approved in 2002, and completed in 2005.

Transparency is an overarching goal throughout USCIS, and it is pivotal to the NRC FOIA process.  Consequently, it is essential that the USCIS FOIA Operations staff are able to provide a timely response to each FOIA request.  Currently, FOIA Operations has 120 federal employees dedicated to processing FOIA requests, all of which are located at the NRC in Lee’s Summit, Missouri.  Also, 30 additional employees have been assigned to FOIA Operations in FY 2011. 

Currently, across the entire Federal government, USCIS receives one of the highest number of FOIA requests each month, with nearly 10,000 requests.  The agency has made significant progress with a daunting backlog of more than 88,361 FOIA requests in 2006, ending FY 2010 with approximately 8,000 backlogged cases.

2.  Is there a public POC for FOIA problems at the NRC? At Headquarters? In District and Field Offices? At Service Centers? Lockboxes?

USCIS Response: All FOIA concerns are handled at the NRC, which means that there is one place for a requester to contact with FOIA-related problems.  To increase customer service and ensure the FOIA staff can concentrate on the workload, USCIS has implemented the use of the National Customer Service Center (NCSC); the requester may call the NCSC at 1-800-375-5283.  Alternatively, requesters may fax inquiries to the NRC at (816) 350-5785, or e-mail questions to uscis.foia@uscis.dhs.gov.  These options increase the personal attention given to customer concerns, and encourage greater public involvement in the FOIA process.  The agency has also implemented the online FOIA Request Status Check, which is available at www.uscis.gov.
 
3.  Is it necessary to have a G-639 to request a file under FOIA?

USCIS Response: No, it is not necessary to submit Form G-639, Freedom of Information/Privacy Act Request.  However, the form contains all necessary information to file a perfected request and would assist requesters in ensuring that they have provided all of the information.  Requesters who choose to submit a letter for their request should ensure that all required information is included.  Regardless of the form of the request, if individuals are seeking records about themselves, they must verify their identity as required by 6 C.F.R. § 5.21(d).

After receiving a perfected request that includes enough information to positively identify the file, as well as the necessary consent to release the file, FOIA Operations staff send an acknowledgment letter to the requester confirming the receipt of the FOIA request.  All acknowledgment letters will contain information relating to the track in which the request is placed, fees, and a telephone number to call with questions.

If additional information is needed to positively identify the subject of the file, a form requesting additional information or documentation is attached to the acknowledgment letter.  Requesters must respond, either affirmatively or negatively, within 45 days. If the requester does not respond to a request for additional information within 45 days, the case will automatically close.

After having received the acknowledgement letter with a control number, the requester can check the status of the request using the online FOIA Request Status Check.

4.  How should a requester indicate that they need expedited FOIA processing?  What qualifies as a FOIA expedite?  

USCIS Response: FOIA provides expedited processing of requests for records in certain circumstances, but it is only granted to those requesters who demonstrate a compelling need. Compelling need is determined as follows:

1. Circumstances exist in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
2. An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information.
5 U.S.C.A. § 552(a)(6)(E)(i), (a)(6)(E)(v)(ii); 6 C.F.R. § 5.5(d)(1).

This decision is made on a case-by-case determination.  If USCIS determines that a particular request meets either of the criteria identified above, USCIS will inform the requester that the request for expedited processing was granted.

The agency will still issue a final response letter with appeal rights for any withheld information. 
 
If a requester is not granted expedited processing, then USCIS will notify the requester of the denial and inform the requester of the right to appeal that ruling.  If USCIS denies a request for expedited processing, USCIS will place the request in the appropriate track and process the request pursuant to the requirements set forth in 6 C.F.R. § 5.5(a).

5.  How can an individual who has a deadline in federal court ask for an expedited FOIA response on a USCIS file?

USCIS Response: Most FOIA requests are processed on a first-in/first-out basis within one of three tracks:

• Track One:  Routine requests that require minimal documents, research or review, such as a request for a copy of a green card or a naturalization certificate
• Track Two:  Complex inquiries that normally necessitate additional search and review time (most requests for full copies of A-files fall into this category)
• Track Three:  Requests by individuals scheduled for a hearing before an immigration judge

Unless a requester is able to qualify for expedited processing (see Question 4, above), the only way for a requester to receive quicker processing is to meet the requirements for Track Three processing. 

Those requesters that have a hearing scheduled before an immigration court may ask that their request be placed into Track Three.  A federal court deadline in and of itself, however, does not meet the criteria for Track Three.  This track allows for accelerated access to A-files requested through the FOIA process, provided an individual or the individual’s representative includes at least one of the following documents with the FOIA request:

• Notice to Appear (Form I-862) documenting a future scheduled date of the subject’s hearing before an immigration judge
• Order to Show Cause (Form I-122) documenting a future scheduled date of the subject’s hearing before an immigration judge
• Notice of Referral to Immigration Judge (Form I-863)
• A written request of continuation of a scheduled hearing before the immigration judge

A request to move a pending FOIA request to Track Three for processing must be made in writing and comply with the above requirements. 

6.  Please describe what the term “fugitive disentitlement” means and when it is applied.  What is the legal authority for fugitive disentitlement denials to persons who have prior orders of deportation/removal?

USCIS Response: When USCIS was processing these cases, it applied the doctrine to aliens who had been ordered deported by an immigration judge, exhausted all appeals, had been served with a “bag and baggage” letter and failed to depart the United States.  USCIS determined that, once these factors were present, the alien was a fugitive from the immigration system and it would not be appropriate to allow such an individual to use the FOIA process.  USCIS derived its definition of the fugitive disentitlement doctrine from such cases as Keith Maydak v. U.S. Department of Education; Bureau of Citizenship and Immigration Services; U.S. Postal Service; Transportation Security Administration; U.S. Department of Transportation; U.S. Department of Justice, Civil Action No. 04-4436, 150 Fed. Appx. 136, 2005 WL 2293376 (3d Cir. 2005).

Cases in which an individual has been determined to be a fugitive are now handled by our sister agency, U.S. Immigration and Customs Enforcement (ICE).  Additional questions should be referred to them.  

7.  Describe the process of appeal for an individual who does not want to accept a FOIA denial.

USCIS Response: USCIS is required to follow the appeals procedures that are set forth in 6 C.F.R. § 5.9.  With regard to appeals of USCIS FOIA decisions, a requester may submit his or her appeal to:

USCIS FOIA/PA Appeals Office
150 Space Center Loop, Suite 500
Lee's Summit, MO 64064-2139

USCIS appeal decisions are issued by the USCIS Office of Chief Counsel.  If the initial decision is sustained in whole or in part, the decision identifies the rationale for sustaining that portion of the decision.  The decisions of the USCIS Office of Chief Counsel are the final stage of the administrative process and inform the requester of the requirements for seeking review in federal court.

8.  If an individual has a FOIA request pending and needs the file to prepare his current application for immigration benefits, how would you suggest that he appeal for a faster response? 

USCIS Response: Unless a request meets the criteria for expedited processing (see Question 4, above), USCIS is required to process all requests on a first-in/first-out basis pursuant to 6 C.F.R. § 5.5(a). 

9.  Please describe the basic categories of information that are withheld from USCIS FOIA Requesters.

USCIS Response: FOIA contains a number of exemptions which authorize an agency to withhold information from a requester.  USCIS routinely uses the following exemptions:

FOIA Exemptions, 5 U.S.C. § 552:

• Exemption (b)(2): internal agency rules and practices.
• Exemption (b)(5): inter-agency or intra-agency communications that are protected by legal privileges.
• Exemption (b)(6): information involving matters of personal privacy.
• Exemption (b)(7)(C): records or information that could reasonably be expected to constitute an unwarranted invasion of personal privacy. 
• Exemption (b)(7)(E): records or information that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or procedures.

The 2010 Annual FOIA Report, which provides a breakdown on the number of exemptions, will be available in February and may be downloaded from the DHS FOIA website at www.dhs.gov/FOIA.

10.  What would you say to an individual who complains that his USCIS FOIA request has been pending for 18 months?  Is there another avenue to obtain that information more quickly?

USCIS Response: While it is true that at the height of USCIS’s FOIA backlog the average processing time for a FOIA request extended out beyond 12 months, it is not common for a case to remain on backlog for that long.  In fact, USCIS currently does not have any A-File requests that have been pending for more than 18 months, and the majority of FOIA requests are A-File requests.  There are some complex cases that do not involve an A-File request that do require more time to resolve, but USCIS has made great strides to reduce the pending cases, and has brought that number from 89,000 cases to less than 10,000. Our average processing time for Track Two requests, the complicated request track, is now 43 working days. A requester seeking A-file material will not be waiting 18 months. 

A request made under either FOIA or the Privacy Act (which applies to United States citizens and lawful permanent residents) is the only authority by which an individual can obtain information from USCIS.

11. Please advise why asylum officer decisions in cases referred to immigration court are sometimes withheld under a (b)(5) exemption relating to pre-decisional information. The decision of the asylum officer is not pre-decisional, as the case is resolved by the officer’s decision.

USCIS Response: The decisions of asylum officers are not withheld if the request was made by the individual who filed the asylum application.

12.  Please advise what the best method is to obtain information about expedited removal orders or other border information, such as voluntary returns.

USCIS Response: Removal and border information is handled by USCIS’s sister agencies, ICE and U.S. Customs and Border Protection (CBP).  For any information relating to removal or border issues, a requester should file a FOIA request with ICE or CBP.
 
13.  What should a stakeholder do if a case is beyond the processing times you announced on the call, and they still have not received a response?

USCIS Response: The best way to check the status of a request is through the use of the online FOIA Request Status Check. This tool is available on the USCIS website at www.uscis.gov. You may also send a status request by e-mail to our FOIA mailbox at: uscis.foia@uscis.dhs.gov.