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All about FOIA requests

On Behalf of | Apr 16, 2024 | Immigration Law

The Freedom of Information Act (FOIA) was created to promote open, transparent government. The Act has provided people the right to request access to records from any federal agency, including USCIS. FOIA states that any person has the right to request records or information from federal agencies. Under the FOIA, federal agencies are required to disclose any information requested unless it falls under one of nine exemptions relating to national security, law enforcement, and personal privacy. When a foreign national applies for an immigration benefit or is fighting removal, requesting past records under FOIA can be helpful and, sometimes, necessary. A client can request his or her entire “A-file” or a record of their past entries into and departures from the United States. Past immigration records may be helpful when needing to ascertain what information was included on previous applications, determining what relief is possible, and assessing the risks in applying for certain benefits.

To request USCIS records, the fastest method is through the FOIA FIRST Portal at https://first.uscis.gov/#/. (You will need to create an online account with USCIS if you do not yet have one.). To request Customs and Border Patrol (CBP) or Immigrations and Customs Enforcement (ICE) records, you can now file requests via the Secure Release portal at www.securerelease.us. When seeking information about a third party, the requester typically must submit proof of the third party’s authorization for the FOIA request, or proof that the third party is deceased (e.g., death certificate, obituary).

According to DHS, the FOIA requires an agency to respond within 20 business days after the office that maintains the responsive records receives the requests. Unfortunately, the law does not reflect reality. In practice, FOIA requests can sometimes take months or years. To address FOIA delays, requestors can contact the appropriate government agency through a messaging portal. Alternatively, requestors can find contact information for FOIA officers at https://www.dhs.gov/foia-contact-information. Requestors may file administrative appeals to agency responses (or lack thereof) within 90 business days for requests with DHS and 90 calendar days with EOIR. Following an agency determination of the appeal, you have six years to file an action in district court.

General tips for making FOIA requests are as follows:

  • Keep requests narrow and targeted. A FOIA request is more likely to return a result in less time if specific documents are requested, rather than the entire file. (FOIA officers discourage language with “any and all”).
  • Include specifics that will help the agency locate the documents.
  • Describe the records with as much detail as possible.
  • If USCIS claims “no records exist” for someone, refile the FOIA request with any available immigration document.