Notice & Comment

Access to Public Records in Immigration Law: Reviewing Margaret B. Kwoka’s Saving the Freedom of Information Act, by Ingrid Eagly

*This is the seventh post in a symposium on Margaret Kwoka’s new book, Saving the Freedom of Information Act. For other posts in the series, click here.

In Lee’s Summit, located just outside Kansas City, Missouri, the federal government holds millions of immigration records in an old limestone mine known as “the Cave.” Margaret Kwoka visited the facility, which is operated by U.S. Citizenship and Immigration Services (USCIS), as part of her research for her pathbreaking new book, Saving the Freedom of Information Act. The resulting volume is a must-read for anyone interested in government transparency and access to information. Beautifully chronicled and meticulously researched, Kwoka has penned the definitive volume on the history, development, and current state of the Freedom of Information Act (FOIA).

USCIS’s gigantic underground Cave houses more than twenty million paper files, known as “A-Files” that document the immigration history of new arrivals to the United States (p. 167). The immense record collection, Kwoka explains, is enough “to fill four football fields,” and swells larger each day as semitrailer trucks arrive brimming with new files to store (p. 167). Yet, immigration records are not just stashed at the Cave. Additional U.S. government agencies holding relevant records include Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), the Department of Justice’s (DOJ) Executive Office of Immigration Review (EOIR), and the Department of State. Access to the records of these agencies is vital for noncitizens seeking to obtain visas, pursue citizenship, defend against removal charges, demonstrate eligibility for relief from removal, and establish facts that merit the favorable exercise of discretion.

Unlike in the criminal system, however, there is no formal right to discovery in immigration proceedings. Therefore, noncitizens must rely on FOIA to request their own records from the government. FOIA allows “any person” to access government records and makes this right to public access enforceable in court.

As those of us who have represented clients in immigration proceedings know well, figuring out which agency holds the relevant records can be daunting. And even if proper requests with all the necessary formalities are filed with the multiple agencies that may hold the immigrant’s records, massive delays in producing those records mean that immigrants are often denied benefits or deported without first being able to review their own records. Accessing records in a timely manner is particularly challenging for immigrants held in the sprawling web of prisons, jails, and detention facilities, where 86% lack counsel. Without an attorney, immigrants in proceedings likely do not even know that FOIA is a route for them to obtain records relevant to their case.

Each year, as Kwoka demonstrates through her exhaustive empirical analysis, nearly half of all FOIA requests are for immigration records (pp. 61-63, App. A). The sheer volume of requests is staggering. As Kwoka found, in only one year USCIS received 177,732 requests, CBP 66,690, and ICE 63,385 (p. 64). EOIR, the agency that houses immigration judges within the DOJ, received another 35,500 requests, and the Department of State received 27,856 (p. 65, App. A). Moreover, most requests flooding these agencies are from individuals seeking their own records, what Kwoka calls “first-person requesters” (p. 59). For example, a whopping 96% of FOIA requests made to the various components of the Department of Homeland Security (USCIS, ICE, and CBP) are first-person requests (p. 172).

FOIA has been heralded as a law that keeps Americans informed about their government and promotes transparency in democratic society. Supporters generally view FOIA as a law that gives journalists, researchers, and nonprofits access to information so that the public can stay better informed about their government. Consistent with this vision, I frequently rely on FOIA for my own academic research to enhance understanding of the internal workings of the immigration system. And, when I teach a seminar at UCLA Law on public interest lawyering, I incorporate a full class session on FOIA and the importance of accessing public records in policy-oriented legal work. Yet, as Kwoka shows, these kinds of research and policy-focused FOIA requests are the exception rather than the norm. This is particularly true in the immigration system where FOIA operates almost entirely as mechanism for giving people their own records—and often fails miserably at this basic task.

Kwoka’s proposals for change are a breath of fresh air. A proactive system for disclosure, more akin to the criminal process, could be adopted to require robust and affirmative disclosure of exculpatory evidence in immigration proceedings, as well as any evidence that the government plans to rely on in its decision-making (pp. 202-211). Immigration agencies, Kwoka argues, should also eliminate the bewildering “request and return” practice that requires, for example, applicants for immigration benefits to produce copies of documents that the government itself holds (pp. 212-13). Together, these reforms could go a long way toward repairing FOIA.

Additional agency reforms targeted at recordkeeping and prosecutorial practices could further enhance Kwoka’s reform agenda. First, immigration agencies should move away from past practices of relying exclusively on paper files. Some of this reform is already underway. USCIS, for example, has an online system for filing various forms, ICE has an eService portal for electronic service of documents to an ICE counsel, and the immigration courts have a digital audio recording system for court proceedings. Although Luz Herrera and Fatma Marouf caution that an entirely paperless A-File system is not likely in the near future, they point out that doing so would “conserve significant resources in terms of the paper, time, and labor involved in making hard copies.” Related to this goal of a paperless file system, the various components of the Department of Homeland Security (DHS) and DOJ could centralize their record keeping practices so that first-person requesters can access all their records with a single inquiry. Second, immigration agencies should enhance online methods of providing individuals with their government records, without requiring a FOIA request. One modest development in this direction is the EOIR’s online automated case information system that allows individuals to obtain information about their case pending before EOIR immigration judges. Third, more attention needs to be given to reforming practices of ICE prosecutors who, as Jason Cade explains, often withhold documents in their possession, resulting in tremendous information asymmetry between the parties. Geoffrey Heeren has shown that more robust discovery rules are also needed, given that existing immigration discovery practices on the ground vary dramatically from court to court, and prosecutor to prosecutor. DHS should work within its ranks to promote norms of openness and transparency in the enforcement context.

Today federal immigration agencies are busier than ever. Apprehensions, detentions, and removals of noncitizens have skyrocketed. The backlog in U.S. immigration courts has reached historic highs. The time has come to take seriously the need for those affected by this immense enforcement bureaucracy to have a dependable way to access their own records. Kwoka’s book makes an essential contribution in showing how agency adjudication can be restructured in ways that will both reduce the overwhelming demands on FOIA and improve overall transparency and accountability.

Ingrid Eagly is a Professor of Law and Faculty Director of the Criminal Justice Program at UCLA School of Law.

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