FOIA in Immigration Proceedings
Freedom of Information Act requests are frequently submitted during immigration proceedings because there are no discovery rights in these actions. The Department of Homeland Security (DHS), which is charged with administering immigration laws, receives the largest number of FOIA requests of any department or agency in each fiscal year. Out of the 644,165 FOIA requests received by all departments and agencies in fiscal year 2011, 175,656 of those were directed to DHS.
Federal Departments and Agencies
Most FOIA requests made in connection with immigration proceedings target either the Department of Homeland Security or the Department of State (DOS). DHS contains numerous subdivisions, including U.S. Customs & Border Protection, U.S. Citizenship & Immigration Services (USCIS) and U.S. Immigration & Customs Enforcement (ICE), and controls a wide array of records in connection with these agencies. DOS maintains records related to, among other things, formulation and execution of U.S. foreign policy, operation of DOS and U.S. missions abroad, and visa requests from non-citizens to enter the U.S.
Response Times
Average response times for perfected requests vary between departments and agencies, despite the statute’s allotment of a maximum of twenty days for determinations. It takes DOS an average of 96 days to respond to a FOIA request. DHS reports an average response time of 118 days. Administrative appeals are likewise subject to delays, with DOS appeals taking an average of 524 days to close and DHS appeals taking an average of 47 days to close. This is extremely problematic in the context of immigration proceedings, where actions are often time-sensitive. For instance, refugees who have been denied an initial application for resettlement are afforded a mere ninety days to file a Request for Review of the decision.
Expedited Review
Expedited review may be extended to FOIA requests in certain situations. Agency regulations govern the process for soliciting expedited review. Expedited processing is granted in cases where a person demonstrates a “compelling need,” which may be found where “the failure to obtain requested records…could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.” If accelerated review is granted, the request will be processed out of order. Processing and appeal times are substantially shorter for cases qualifying for this fast track, but still impose cumbersome time barriers on the dissemination of information.