It is very rare that an attorney will have a client who will present himself/herself with a nice organized file with every document pertaining to his/her immigration status. Because of this, the first step to getting the “ball rolling” is to get the file. Sometimes you can get the file from predecessor counsel, but more often you are stuck purchasing the file under the Freedom of Information Act. In a perfect world, you’d have a response to your request in 20 days. We do not live in a perfect world!
These delays made us look bad. Clients wondered “how can I trust this man to represent me if he can’t even get my file?” Despite a statute mandating tight deadlines for the Government to respond to FOIA suits, US-CBP has taken months (and even years) to respond to request. Request for records are heavily redacted and it appears that the redaction is by hand. Often the names of the officers who administer warnings to your client are carefully redacted out and it appears the redaction is done by hand.
In 2015, the American Immigration Council filed suit challenging the delays at US-CBP. After the Government lost their motions to dismiss, a settlement agreement was promptly reached which provided for streamlined processing of most requests. The trial court’s order denying the motion to dismiss was pretty critical of CBP and CBP must have read the handwriting on the walls. Hopefully this settlement will close an ugly chapter.
For those wishing to take advantage of this newly reenergized FOIA, the ABA has published a nice guide to using the Freedom of Information Act and Privacy Act to obtain records from US-CBP, ICE, and US-CIS.
The one sticking point seems to come in cases involving complex processing. As noted above, border crossing records contained in the TEC database will take a lot of redaction (unless CBP changes its attitude on disclosure) and are likely to trigger complex designations on future requests. This has caused me to change my strategy. In a perfect world, the attorney would request all documents at once, but this article is about the fact that we don’t live in a perfect world. It does not appear that US-CBP is going to change their policies about redaction which has made this writer decide to bifurcate his request. I am now going to request the core documents in the first round of requests, and then seek the records from US-CBP’s TEC database separately. (For more information on what is available in their database, checkout this report).
Sound like a plan?