Ustun Law Group, PLLC

“Thousands of Immigrants Waiting for Access to Their Immigration Records Granted Class- Action Status”

 What does that mean?

Basis of Litigation:

Plaintiffs challenged the systematic delay noncitizens face in obtaining access to immigration case files maintained by the U.S. Department of Homeland Security (“DHS”), and its component agencies, U.S. Citizenship and Immigration Services (“USCIS”) and U.S. Immigration and Customs Enforcement (“ICE”) (collectively “defendants”).

These files, commonly referred to as Alien Registration Files (“A-Files”), contain documents relating to all interactions that a noncitizen has had with the immigration system, and therefore are critical to defending against removal or determining eligibility for immigration benefits. The only way a noncitizen can obtain an A-File is by submitting a Freedom of Information Act (“FOIA”) request from the same agency adjudicating their case. Congress mandated that FOIA requests must be answered within 20 business days. Adherence to this statutorily prescribed time frame is especially important for A-File FOIA requests, yet while defendants push to accelerate adjudication of immigration cases they routinely fail to timely provide noncitizens a copy of their A-Files.

Background Information:

The plaintiffs in, three immigration attorneys and two noncitizens, are represented by the American Immigration Council, the Northwest Immigrant Rights Project, and the Law Offices of Stacy Tolchin. They filed the lawsuit in June seeking to force the agencies to provide timely access to immigration files, which are critical to assessing immigration options in the United States and defending against deportation. Defendants possess A-Files that contain information that is critical to determining a noncitizen’s eligibility to apply for an immigration benefit, to change their existing immigration status, to defend against removal, to work, and to travel freely.

What kind of information do these A files contain?

  • The information includes an “individual’s past interactions with immigration agencies and petitions and/or applications previously filed by or on behalf of the individual.
  •  A-Files are vital in different immigration situations, such as applying for lawful permanent resident status, asylum, or rebutting charges in removal proceedings
  • Noncitizens in removal proceedings particularly rely on FOIA requests because discovery is not available
  • Obtaining A-Files from defendants is critical in immigration cases
  • Delays in obtaining A-Files leave noncitizen and their attorneys “in legal limbo” that inflicts substantial hardship
  • Without A-Files, noncitizens are at risk of having their applications for immigration benefits denied based on a statement or testimony considered to be inconsistent with a previous statement in the A-File
  • A-Files also contain reasons why previous applications were denied, and such information is crucial in determining eligibility for future benefits or relief from deportation

Difficulties faced by noncitizen without the timely release of A-files:

  • Attorneys cannot respond to allegations that ICE has made against their clients without knowing the factual basis for the allegation or being able to review the evidence being used against the client
  • Immigration attorneys need A-Files to avoid the risk of being accused of misrepresentation if clients were to make an innocent mistake that turns out to be inconsistent with prior information or documents in the A File
  • Noncitizens seeking their records without the assistance of counsel are especially disadvantaged by delays
  • For those who are represented by counsel, their attorneys also need A-Files to effectively prepare them for interviews or hearings and effectively litigate appeals.
  • Delays in obtaining A-Files also put noncitizens at risk of missing other competing deadlines. For example, asylum applications must be filed within one year of arrival
  • Requests for continuances due to delays in obtaining A-Files can also be risky because it can lead to outright denial of the application

To make matters worse, removal proceedings for detained noncitizens are normally expedited and expected to move much faster than proceedings for non-detained noncitizens BIA appeal process will proceed on its own timeline independent of any response to FOIA request. Processing delays in the production of A-Files are especially harmful given the recent changes in immigration policy that accelerate adjudication timelines. Immigrations judges are under extreme pressure to complete cases, and hence they are not typically willing to delay due to counsel’s need to first receive and review the results of an A-File FOIA request.

Basis for granting Class- Action Status

Plaintiffs are three immigration attorneys who regularly file A-File FOIA requests on behalf of their clients, and two noncitizens who have filed A-File FOIA requests from defendants. Id. ¶ 1. The plaintiffs allege that defendants have a “pattern or practice” of failing to answer these requests within the statutory deadline set under FOIA. Id. ¶ 23. The FOIA statute requires that an agency make a determination on a FOIA request within 20 business days. Id. ¶ 21 (citing 5 U.S.C. § 552(a)(6)(A)(i)). An agency may extend its response time in case of “unusual circumstances,” by no more than 10 business days provided it sends the requestor “written notice.”

Facts about ongoing USCIS’ FOIA backlog:

  • The number of requests that have gone unanswered past the statutory deadline—has more than doubled in the last few years
  •  The FY 2018 DHS FOIA Report indicates that there were 41,329 pending requests in the USCIS backlog and at least 17,043 referrals unaccounted for by ICE in the most recent fiscal year, which are in addition to the ICE backlog total of 1,332 pending requests
  •  DHS has not disclosed how many of these pending requests are for A-Files, but plaintiffs estimate that the number of pending A-file FOIA requests with defendants are in the thousands
  •  When USCIS finally responds to A-File FOIA requests, plaintiffs claim that “it routinely fails to produce the entire A-File because portions are referred to ICE for it to make a determination about disclosure
  • Even then, the DHS regulations make clear that FOIA requests will be handled based on when the request was initially received “by the first component or agency, not any later date.”
  •  Plaintiff asserts ICE also regularly exceeds the 20-business day statutory timeframe for making determinations

Legal Timelines:

  • On June 16, 2019, plaintiffs filed this class action lawsuit, claiming that the defendants’ pattern or practice of failing to meet the statutory deadline with respect to A-File FOIA requests violates FOIA
  •  On July 31, 2019, defendants filed an answer, denying each and every allegation in the Complaint
  • On August 8, 2019, plaintiffs filed a motion seeking certification of two (USCIS & ICE Ref) classes

“USCIS Class: All individuals who filed, or will file, A-File FOIA requests with USCIS which have been pending, or will be pending, with USCIS for more than 30 business days without a determination.

ICE Referral Class: All individuals who filed, or will file, A-File FOIA requests with USCIS that USCIS has referred, or will refer, to ICE and which have been pending, or will be pending, for more than 30 business days from the date of the initial filing with USCIS without a determination. Mot. 1.

All attorney plaintiffs and noncitizen plaintiff Lopa seek to represent the USCIS Class, and all attorney plaintiffs and noncitizen plaintiff Carandang seek to represent the ICE Referral Class. Accompanying their motion, plaintiffs also filed multiple declarations collected from immigration attorneys across the nation that attest to the importance of A-Files and the hardships caused by delays in attaining them from defendants.

What is “Class Certification?”

“Before certifying a class, the trial court must conduct a rigorous analysis to determine whether the party seeking certification has met the prerequisites of Rule 23.” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (internal quotation marks omitted). The party seeking certification has the burden to show, by a preponderance of the evidence, that certain prerequisites have been met.”

  • Certification under Rule 23 is a two-step process
  • The party seeking certification must first satisfy the four threshold requirements of Rule 23(a). Specifically,
  • Rule 23(a) requires a meeting the following criteria:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Result

A single injunction or declaratory judgment would provide relief to each member of the proposed classes – the timely determination on their time-sensitive A-File FOIA requests. William H. Orrick United States District Judge, For the reasons set forth above, plaintiffs’ motion for class certification is GRANTED class certification to both the USCIS Class and the ICE Referral Class.

A copy of the order granting class certification can be found here.