Photo illustration by Michelle Kanaar A class action lawsuit is pressuring the government to process freedom of information requests for critical immigration documents faster. However, immigrants and advocates worry that the recent changes are not enough.
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When Cassie Amich was 16 years old, she became an undocumented American.
The West Michigan resident was born in Russia in 1999. One year later, she was adopted by an American couple, and she became a naturalized citizen a few months after when Congress passed the Child Citizenship Act. But as a teenager, Amich’s family lost track of her citizenship records. She has since been living without documentation.
“I can’t even set up a bank account,” Amich, the mother of a one-year-old boy, said in early February. “I can’t cash a check if I need to. I can’t fly anywhere if I wanted to. I just basically can’t prove who I am.” Until she gets some form of identification, whether a U.S. passport or state ID, she also cannot legally work or fulfill her dream of going to cosmetology school.
“It has been a struggle trying to find any information on myself,” Amich said.
She decided to work with a lawyer to explore her options. On Jan. 13, Amich’s attorney Marc Asch filed a Freedom of Information Act request to United States Citizenship and Immigration Services for Amich’s A-File, or Alien File. They hoped it would hold proof of her citizenship.
Cassie Amich. Photo courtesy of Cassie Amich
Until this year, immigrants like Amich could expect to wait months for a response to FOIA requests, despite the federal law requiring federal agencies, including USCIS, to respond within 20 days. But a federal class action lawsuit, filed in 2019, has put pressure on immigration authorities to reduce backlogs and lengthy weight times. Between September 2020 — just months leading up to the ruling — and April 2021, average wait times were cut by one-third. But immigrants and their advocates worry that the recent changes are not enough to fix a system they argue is broken.
The Importance of A-Files
A-Files contain records of all interactions between a noncitizen and immigration agencies and officers. Some of these documents are copies of essential forms, such as birth certificates and passports. Others are more confidential government documents, such as law enforcement investigations or an asylum officer’s notes of an asylum interview.
Without their A-Files, noncitizens and naturalized citizens are less equipped or simply unable to confirm their legal status, apply for immigration benefits, defend against potential removal, adjust their status and more.
A-Files are a critical resource in immigration courts, which are overseen by the Department of Justice. But defendants can access them only by request, and hope they receive the documents in time to prepare for trial. By contrast, in local, state and federal courts, the prosecution is required to disclose all pertinent documents to the defense prior to trial.
Emily Creighton, the legal director of transparency at the American Immigration Council, described this as “an enormous due process issue.”
“It is fundamentally unfair that a person can’t see what the government attorney prosecuting the case has on his table, in the same courtroom,” she said.
Some people who are detained request A-Files to obtain documents that could help them defend themselves in removal proceedings. But many requests take far longer than 20 days and aren’t processed before their court dates, leading people to request a continuance — the suspension or postponement of a trial or court proceeding. Meanwhile, they sit in detention centers, waiting.
Another solution is suing the government to release A-Files. But attorneys say individual lawsuits are too expensive and time-consuming to rely on filing them.
Courts have sought to create other means for people to request their A-Files. In the 2010 case Dent v. Holder, the Ninth Circuit declared a mandatory access law that entitles people in immigration proceedings and their attorneys to receive A-Files directly from the government without having to use FOIA.
The ruling, however, has a limited scope. It isn’t binding outside of the Ninth Circuit, which covers the western United States, Guam and the Northern Mariana Islands. Nor does it apply to requesters who are not in immigration proceedings.
According to several immigration attorneys that Borderless Magazine spoke to, many government attorneys also do not respect the ruling, so FOIA requests remain the only way to reliably obtain A-Files. Bay Area attorney Courtney McDermed has tried to receive clients’ documents directly from the government following Dent v. Holder but was told to file FOIA requests instead.
“[Attorneys] narrowed their interpretation under Dent to about three documents,” McDermed told Borderless Magazine. “It became ridiculous to even ask for anything [through the mandatory access law] so I continue to use FOIA.”
Nightingale Class Action Lawsuit
In 2018, the average wait time for A-Files on USCIS’s “complex” FOIA track, where most A-File requests are processed, was roughly 80 business days, according to the DHS FOIA Report from that year. This is about four times the 20-workday federal deadline, which allows for one 10-day extension under “unusual circumstances” that USCIS frequently invokes.
A June 2019 lawsuit sought to prevent future delays in responding to FOIA requests. The plaintiffs — three attorneys, including McDermed, and two immigrants — in Nightingale v. USCIS claimed that delays have increased immigrants’ time spent in detention centers, hampered their ability to defend themselves against removal orders and made it more difficult to apply for immigration benefits. It is the first ever federal class action lawsuit about FOIA.
Historically, the immigration system has been unable to meet the FOIA deadline. Between 2008 and 2020, there were only two years during which USCIS’s average processing time for FOIA requests on the “complex” track was fewer than 30 business days.
Graph by Alexander Shur
Immigration authorities have long attributed the extensive wait times to the high volume of FOIA requests they receive. Since the establishment of USCIS in 2003, the agency has received more than 2 million FOIA and Privacy Act requests. Every year has yielded a backlog of cases, according to a Borderless analysis of DHS’s Annual FOIA Reports, which count backlogs before the end of each fiscal year.
Court records show that as of Aug. 31, 2020, USCIS faced 25,446 backlogged requests. Those times were further delayed by months in cases when USCIS referred parts of FOIA requests to ICE for processing, the plaintiffs in the suit said. Records show ICE had 56,661 backlogged FOIA requests on Aug. 11, 2020, which USCIS had referred to the agency.
Lead plaintiff Zach Nightingale, who has been a practicing immigration attorney since 1996, routinely files FOIA requests for A-Files. He said he filed the lawsuit because those requests were taking “longer and longer and the government [had] gotten slower and slower about responding.” In 2019, the year he filed the suit, A-File requests constituted around 98 percent of USCIS’s FOIA requests and took between 55 and 90 days to process.
More than a dozen attorneys and immigrants contributed to the plaintiffs’ argument in declarations detailing issues that they have faced because of processing delays.
Nightingale wrote about H.S., a lawful permanent resident who was detained while facing removal proceedings that stem from a criminal conviction. (For privacy reasons, the attorneys did not provide their clients’ full names.) According to the declaration, Nightingale sent USCIS a request for his client’s A-File on March 7, 2019 to learn about the government’s investigation into the charge. USCIS sent him part of the A-File three months later, with 170 pages missing as they had been referred to ICE for approval. Nightingale, who said those pages were critical to his defense, had yet to receive them by the time he filed his declaration on July 19, 2019. The processing delay, he said, would require his office to ask the court for a continuance and keep his client in detention at least until the government produced the A-File.
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Attorney Kursten Phelps wrote about an attorney at the Tahirih Justice Center, a nonprofit that provides legal and social services to women and girls fleeing violence. The lawyer had requested in December 2018 the A-File of a person with asylum status who wanted to become a lawful permanent resident and then a U.S. citizen. The request was still pending in July 2019.
Attorney Patrick Taurel wrote about R.B., an orphan adopted by U.S. residents who lost her green card, which was her only form of identification and sole proof of her citizenship. R.B. couldn’t replace her green card without proof of identification, leading Taurel to file a request for his client’s A-File in January 2019. The request was still pending on July 31, 2019.
In December 2020, the judge presiding over the Nightingale lawsuit, William Orrick III, ruled that DHS, USCIS and ICE must adhere to the FOIA deadline; make determinations on all A-File FOIA requests in the departments’ backlogs within 60 days; and provide quarterly compliance reports, with the first report due 90 days from the judge’s ruling.
“FOIA is the primary, if not the only, mechanism for accessing A-Files,” Orrick wrote in his order. He also said USCIS and ICE’s habitual noncompliance “undermines the fairness of immigration proceedings, particularly for the vast number of noncitizens who navigate our immigration system without assistance of counsel.”
On Feb. 12 — just days before the 60-day compliance deadline — USCIS and ICE appealed the judge’s decision without processing every backlogged A-File request.
“It is disappointing the agency has elected to appeal this decision,” said Trina Realmuto, one of the plaintiffs’ attorneys. “We are confident, however, that the District Court judge ruled correctly and that his decision will be upheld on appeal.”
USCIS spokesperson Matthew Bourke said in a statement that the agency would not comment on pending litigation.
Shorter Wait Times, But Bigger Issues Remain
Despite the appeal, the agencies have made significant improvements in request processing times this year. Between the December court order and mid-March, USCIS cleared 97 percent of its backlog of A-File FOIA requests and ICE cleared the entirety of its backlog, according to a court-ordered compliance report filed by DHS.
USCIS, which now handles every A-File FOIA request, has reduced its average processing time to 21 days as of May 20. The agency also submitted a request to DHS for $150 million in Congressional appropriations to support its FOIA program between 2022 and 2026, which was denied.
DHS stated in a March 2020 report that its component agencies “regularly undertake efforts to reduce the backlog,” including hiring contractors, authorizing overtime and increasing its staffing before the fiscal year ends. These methods, the department noted, “only serve to improve statistics temporarily.”
But the accelerated processing times after the court ruling were possible only because USCIS recruited roughly 136 non-USCIS FOIA personnel from within DHS to help work through its backlog. Whether the backlog accumulates again without outside help remains to be seen.
Immigration attorneys and activists said that issues of access can be solved only with systemic change. And it is the government who must take responsibility, said Creighton, of the American Immigration Council, who also represents the plaintiffs in the federal lawsuit.
“The government attempts to create a narrative where the onus is on the requester,” Creighton said. “That’s not how the law is written. The law is about the requester having access to records within a relatively short period of time.”
Advocates and attorneys also propose creating an independent immigration court. A Feb. 2020 letter signed by Refugees International, Human Rights Watch, Amnesty International USA, American Immigration Lawyers Association and other legal and advocacy organizations argued that the Department of Justice’s control of immigration courts impedes defendents’ due process. In the current system, defendants are not entitled to counsel, which is otherwise guaranteed by the Sixth Amendment. (According to an American Immigration Council report, 63 percent of all immigrants who go before court each year represent themselves.) Judges also answer to the U.S. Attorney General, the country’s chief prosecutor, which critics say creates a conflict of interest.
While bigger issues remain, some immigrants have seen direct results from the Nightingale case.
To her delight, Amich received her A-File on Feb. 26 after her attorney requested the documents on Jan. 13. As they suspected, her file included proof of her U.S. citizenship.
Her attorney is now helping her obtain official citizenship papers and a passport. The process may take several months, but Amich said that she finally feels relief. The records she received — from her birth certificate and entry data to information about her birth mother — gave Amich a window into her past, and the reassurance that a future with documentation lies close ahead.
Amich has a long list of things she wants to do after getting her documents, from finishing high school to going to a bar to opening a bank account. “I’m going to the Social Security office to get my social security card and my ID,” she said. “And then I’m going to go straight to beauty school.”
