Featured Issue: The Freedom of Information Act (FOIA)

The Freedom of Information Act (FOIA), 5 U.S.C. §552 provides any individual a right of access to any non-exempt federal government record. The Privacy Act (PA), 5 U.S.C. §552a provides lawful permanent residents and U.S. citizens a right of access to records filed in an agency system of records, which are retrieved by their name or personal identifier.

In FY2019, DHS released:

• About 40 million pages of records;
• About 210,000 pages through the appeal process; and
• Almost 430,000 pages through litigation.

DHS FOIA Processing | Expedited Processing | Instructions for Filing FOIAs | AILA Practice Resources | Advocacy Resources | AILA FOIAs | Member FOIAs | Advocacy FOIAs | Government Resources | Litigation | Media Resources

DHS FOIA Processing

In general, the FOIA requires an agency to respond to FOIA requests within 20 business days after the office that maintains the responsive records receives the request. The business day response requirement is not necessarily the time frame for releasing responsive documents.

The Department processes its requests by date of receipt at the proper office maintaining the required records on a first-in, first-out basis, except for exceptions outlined in the FOIA and the Department of Homeland Security FOIA implementing regulations.

Expedited Processing

Under certain conditions, your request may receive expedited processing if you meet the criteria established in our regulations. However, an expedited request will be processed on a first-in, first-out basis with other expedited requests.

Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve:

• Circumstances 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;
• An urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information.

Instructions for Filing FOIAs

• General Information
  • FOIA.gov
  • National Archives’ Office of Government Information Services FOIA Resources
• CBP
  • Practice Pointer: How to File FOIA Requests with CBP - December 23, 2020
  • CBP FOIA Instructions
  • Submit FOIA online
  • What Records Can CBP Provide Under FOIA
• DHS
  • Practice Pointer: How to File FOIA Requests with DHS and USCIS - December 22, 2020
  • FOIA
  • DHS FOIA/Privacy Act Request Submission Form
  • Five Steps to File a FOIA Request
• DHS OBIM
  
  • Practice Pointer: How to File DHS OBIM FOIA Requests – May 10, 2021
• DOL
  • Practice Pointer: How to File FOIA Requests with DOL - December 23, 2020
• DOS
  • Practice Pointer: How to File FOIA Requests with DOS - December 22, 2020
  • Freedom of Information Act Request
  • Visa Records Contact Information
• EOIR
  • Practice Pointer: How to File FOIA Requests with EOIR - December 23, 2020
  • How to Submit a FOIA or Privacy Act Request
• ICE
  • Practice Pointer: How to File FOIA Requests with ICE - December 23, 2020
  • Submit your request to ICE if you are looking for:
    • Information pertaining to contracts at detainee facilities
    • Statistics on people in particular detention & removal facilities
    • Project “Return to sender”
    • Inspection of detainee facilities
    • Worksite enforcement statistics or projects
    • Records on aliens or detainees
    • Information pertaining to human trafficking/smuggling
    • Information pertaining to gangs
    • Information pertaining to child pornography investigations, “Operation Predator”
    • Information pertaining to arrest reports or other records pertaining to ICE investigations
    • Student and Exchange Visitor Information System (SEVIS) statistics
    • Immigration & Customs Enforcement policies, handbooks and directives
  • Submitting FOIA Request
• USCIS
  • Practice Pointer: How to File FOIA Requests with DHS and USCIS - December 22, 2020
  • Submit your request to USCIS if you are looking for:
    • Documents in the Alien File
    • Applications by non-U.S. citizens seeking asylum in the U.S.
  • Request Records through the Freedom of Information Act or Privacy Act

AILA Practice Resources

• Practice Pointer: Requesting Attorney’s Fees and Costs After FOIA Litigation - November 17, 2020
• American Immigration Council: FOIA for Immigration Lawyers
• Practice Alert: Office of Biometric Identity Management FOIA Delays – October 8, 2020
• USCIS Expands Digital Delivery of FOIA Requests - June 25, 2019
• Litigation Briefing: Using FOIA in Immigration-Related Litigation - January 17, 2019
• USCIS Continues to Expand Digital Delivery of FOIA Requests - July 24, 2018
• USCIS to Implement Online Processing of FOIA Requests - May 30, 2018

Advocacy Resources

• American Immigration Council’s FOIA Resources
• ILRC: A Step-by-Step Guide to Completing FOIA Requests with DHS
• CLINIC Resources on Freedom of Information Act

AILA FOIAs

• Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases
• New FOIA Request Filed to Force Agency to Release Immigration Court Operations Information on COVID-19 Pandemic
• AILA and the American Immigration Council Obtain EOIR Hiring Plan via FOIA Litigation
• FOIA Request on Immigration Courts and Adjudication Centers
• CBP Releases Officer's Reference Tool Documents
• H-1B Wage Level and Specialty Occupation Documents Released in FOIA Lawsuit
• EOIR Responds to AILA’s FOIA Request Regarding Matter of A-B-
• AILA’s Policy Brief: FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog
• AILA Receives Records Relating to EOIR Misconduct in FOIA Lawsuit
• FOIA Reveals EOIR’s Immigration Court Organizational Structure Staffing Implementation Plan
• FOIA Response Highlights Importance of Independent Judges, Court Reform

Member FOIAs

• DOL Releases Information Related to DHS’s Use of OOH in Adjudicating H-1Bs
• EOIR Releases ECAS Handbooks and Manuals
• EOIR Releases Materials from the 2018 Legal Training Program for Immigration Judges

Advocacy FOIAs

• TRAC’s Immigration Tools – The Transactional Records Access Clearinghouse (TRAC) uses FOIA to obtain data from the government’s internal databases. TRAC then organizes the data in meaningful ways and makes it available to the public.
• National Immigration Law Center: Pushing for Information on the Trump Administration’s Decision to End DACA
• IRAP Obtains USCIS Guidance on Humanitarian Parole Applications Through FOIA Litigation
• CLINIC Obtains FOIA Disclosures on EOIR’s Office of Policy
• Sunlight Foundation Reports on Removal of Asylum Training Documents from USCIS Website
• FOIA Litigation Results in Helpful Guidance on Motions Practice Before the BIA
• FOIA Response Details Guidance on Processing of Travel Ban Waivers

Government Resources

• DHS OIG Issues Report on DHS’s Process for Responding to FOIA and Congressional Requests - July 23, 2020
• GAO Report Says DHS Needs to Reduce Backlogged FOIA Requests and Eliminate Duplicate Processing - October 17, 2019

Litigation

• Lawsuit Seeks to Uncover Problematic Board of Immigration Appeals’ Hiring Procedures - March 19, 2020
• District Court Grants Class Certification in Case Challenging USCIS and ICE FOIA Delays (Nightingale et al. v. USCIS et al., 10/15/19)

Media Resources

• ABC News: Civil rights organizations file requests to preserve ICE records – February 19, 2020
• NBC News: Attorneys worry over increased secrecy for Customs and Border Protection officers – February 5, 2020

Information found on AILA.org is not legal advice. Materials found on AILA’s websites are not a substitute for independent legal advice based on a thorough review and analysis of the facts of each individual case, or for independent research based on statutory and regulatory authorities; case law; policy guidance; and, for procedural issues, federal government websites.

Cite as AILA Doc. No. 20022703.