{"id":6044,"date":"2021-06-01T15:18:44","date_gmt":"2021-06-01T20:18:44","guid":{"rendered":"https:\/\/borderlessmag.org\/?p=6044"},"modified":"2022-09-30T13:01:32","modified_gmt":"2022-09-30T18:01:32","slug":"la-victoria-de-la-foia-refuerza-el-llamamiento-en-favor-de-una-verdadera-reforma-de-la-inmigracion","status":"publish","type":"post","link":"https:\/\/borderlessmag.org\/es\/2021\/06\/01\/foia-victory-bolsters-calls-for-real-immigration-reform\/","title":{"rendered":"La victoria de la FOIA refuerza la petici\u00f3n de una verdadera reforma de la inmigraci\u00f3n"},"content":{"rendered":"
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Never miss a story.\u00a0Sign up for our Thursday newsletter<\/a>\u00a0to learn the latest about Chicago\u2019s immigrant communities.<\/em><\/p>\n<\/div>\n<\/div>\n

When Cassie Amich was 16 years old, she became an undocumented American.<\/span><\/p>\n

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\u2019s family lost track of her citizenship records. She has since been living without documentation.<\/span><\/p>\n

Leer en espa\u00f1ol<\/strong><\/span><\/a><\/p>\n

\u201cI can’t even set up a bank account,\u201d Amich, the mother of a one-year-old boy, said in early February. \u201cI 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.\u201d 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.<\/span><\/p>\n

\u201cIt has been a struggle trying to find any information on myself,\u201d Amich said.<\/span><\/p>\n

She decided to work with a lawyer to explore her options. On Jan. 13, Amich\u2019s attorney Marc Asch filed a Freedom of Information Act request to United States Citizenship and Immigration Services for Amich\u2019s A-File, or Alien File. They hoped it would hold proof of her citizenship.\u00a0<\/span><\/p>\n

\"documentation,

Cassie Amich. Photo courtesy of Cassie Amich<\/p><\/div>\n

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 \u2014 just months leading up to the ruling \u2014 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.<\/span><\/p>\n

The Importance of A-Files<\/span><\/h4>\n

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\u2019s notes of an asylum interview.<\/span><\/p>\n

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.\u00a0<\/span><\/p>\n

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.\u00a0<\/span><\/p>\n

Emily Creighton, the legal director of transparency at the American Immigration Council, described this as \u201can enormous due process issue.\u201d<\/span><\/p>\n

\u201cIt is fundamentally unfair that a person can’t see what the government attorney prosecuting the case has on his table, in the same courtroom,\u201d she said.\u00a0<\/span><\/p>\n

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\u2019t processed before their court dates, leading people to request a continuance \u2014 the suspension or postponement of a trial or court proceeding. Meanwhile, they sit in detention centers, waiting.\u00a0<\/span><\/p>\n

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.<\/span><\/p>\n

Courts have sought to create other means for people to request their A-Files. In the 2010 case <\/span>Dent v. Holder<\/span><\/i><\/a>, 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.\u00a0<\/span><\/p>\n

The ruling, however, has a limited scope. It isn\u2019t binding outside of the Ninth Circuit, which covers the western United States, Guam and the <\/span>Northern Mariana Islands<\/span>. Nor does it apply to requesters who are not in immigration proceedings.\u00a0<\/span><\/p>\n

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\u2019 documents directly from the government following <\/span>Dent v. Holder <\/span><\/i>but was<\/span> told to file FOIA requests instead.<\/span><\/p>\n

\u201c[Attorneys] narrowed their interpretation under Dent to about three documents,\u201d McDermed told Borderless Magazine. \u201cIt became ridiculous to even ask for anything [through the mandatory access law] so I continue to use FOIA.\u201d\u00a0<\/span><\/p>\n

Nightingale Class Action Lawsuit<\/span><\/h4>\n

In 2018, the average wait time for A-Files on USCIS\u2019s \u201ccomplex\u201d FOIA track, where most A-File requests are processed, was roughly 80 business days, according to the <\/span>DHS FOIA Report<\/span><\/a> from that year. This is about four times the 20-workday federal deadline, which allows for one 10-day extension under \u201cunusual circumstances\u201d that USCIS frequently invokes.<\/span><\/p>\n

A June 2019 lawsuit sought to prevent future delays in responding to FOIA requests. The plaintiffs \u2014 three attorneys, including McDermed, and two immigrants \u2014 in <\/span>Nightingale v. USCIS<\/span><\/i> claimed that delays have increased immigrants\u2019 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.\u00a0<\/span><\/p>\n

Historically, the immigration system has been unable to meet the FOIA deadline. Between 2008 and 2020, there were only two years during which USCIS\u2019s average processing time for FOIA requests on the \u201ccomplex\u201d track was fewer than 30 business days.<\/span><\/p>\n

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