Recommendations to Practitioners
In light of the current FOIA framework, there are a number of steps practitioners can take to best represent their clients in refugee and asylum cases. The first step is to file Freedom of Information Act requests with each and every relevant agency as soon as the attorney-client relationship is established. Although statistics suggest that these requests will be denied, it is important to file nonetheless. Against all odds, an agency may provide the client with helpful records or documentation.
A FOIA denial can also be a useful tool in and of itself. Referencing a denial in a brief can provide the attorney with an opportunity to explain filing delays or request an occasion to present further arguments in the event that new information surfaces. The client may also want to consider appealing a denied FOIA request. Although potentially expensive and time consuming, FOIA appeals are surprisingly successful. In 2012, almost 50% of the administrative FOIA appeals adjudicated by DHS resulted in the original decision being reversed at least in part. Appeals can focus on a decision’s mistakenness based on the merits or the agency’s failure to follow proper procedures.
The attorney should be mindful of timing in filing FOIA requests. Because processing times are presently very long, it is imperative that requests be submitted as soon as possible. The practitioner should also refrain from waiting for a FOIA request response before commencing work on other aspects of the case. The likely result of the request will be a denial, and freezing case progress in the hopes of receiving FOIA records can severely prejudice the client. The length of a FOIA proceeding is not considered a legitimate reason for missing a court or agency filing deadline.
The FOIA request should be drafted with specificity. For instance, if a client’s name can be transliterated more than one way, each version of the name should be included in the request. Likewise, if particular government documents or manuals are sought, they should be specified by title. Detailing the searches that the agency would ideally conduct is another good tactic. To properly execute this approach, it is advisable to familiarize oneself with the agency’s search engines. Another strategy could be to tailor requests to avoid implicating FOIA Exemptions 2, 5, 7(C) and 7(E).
In putting together the client’s application and coaching the client through hearings/interviews, it is important to keep in mind that the government may possess files that the client does not. The practitioner should carefully interview the client with regards to any prior interactions with immigration officials in order to try and anticipate the impeachment and exclusion issues that could arise. Good questions to ask the client may include: “Did the official spend a lot of time asking you about any topic in particular?” or “Did the official appear to get angry or frustrated at any point during the conversation?” The client should be well versed in his or her narrative prior to any hearings or interviews.
Lastly, the practitioner should address all problematic aspects of a refugee or asylum application in the brief. Without government records, it is often difficult to nail down the facts that an asylum officer will take issue with. It is safer to address all troublesome elements of a case from the outset, including security concerns as well as cessation and exclusion grounds.
A FOIA denial can also be a useful tool in and of itself. Referencing a denial in a brief can provide the attorney with an opportunity to explain filing delays or request an occasion to present further arguments in the event that new information surfaces. The client may also want to consider appealing a denied FOIA request. Although potentially expensive and time consuming, FOIA appeals are surprisingly successful. In 2012, almost 50% of the administrative FOIA appeals adjudicated by DHS resulted in the original decision being reversed at least in part. Appeals can focus on a decision’s mistakenness based on the merits or the agency’s failure to follow proper procedures.
The attorney should be mindful of timing in filing FOIA requests. Because processing times are presently very long, it is imperative that requests be submitted as soon as possible. The practitioner should also refrain from waiting for a FOIA request response before commencing work on other aspects of the case. The likely result of the request will be a denial, and freezing case progress in the hopes of receiving FOIA records can severely prejudice the client. The length of a FOIA proceeding is not considered a legitimate reason for missing a court or agency filing deadline.
The FOIA request should be drafted with specificity. For instance, if a client’s name can be transliterated more than one way, each version of the name should be included in the request. Likewise, if particular government documents or manuals are sought, they should be specified by title. Detailing the searches that the agency would ideally conduct is another good tactic. To properly execute this approach, it is advisable to familiarize oneself with the agency’s search engines. Another strategy could be to tailor requests to avoid implicating FOIA Exemptions 2, 5, 7(C) and 7(E).
In putting together the client’s application and coaching the client through hearings/interviews, it is important to keep in mind that the government may possess files that the client does not. The practitioner should carefully interview the client with regards to any prior interactions with immigration officials in order to try and anticipate the impeachment and exclusion issues that could arise. Good questions to ask the client may include: “Did the official spend a lot of time asking you about any topic in particular?” or “Did the official appear to get angry or frustrated at any point during the conversation?” The client should be well versed in his or her narrative prior to any hearings or interviews.
Lastly, the practitioner should address all problematic aspects of a refugee or asylum application in the brief. Without government records, it is often difficult to nail down the facts that an asylum officer will take issue with. It is safer to address all troublesome elements of a case from the outset, including security concerns as well as cessation and exclusion grounds.