United States: Requirements and procedures to obtain a copy of an asylum claim, including information on the forms, identity information needed, and how long requests take to process; circumstances under which an individual would not be able to obtain their asylum record [USA103925.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

Under the United States (US) Freedom of Information Act (FOIA), any person, both citizen and non-citizen, can make a request for documents from US federal agencies (US n.d.a). According to the US government website about the FOIA, FOIA requests must be made in writing and will receive the fastest response if sent directly to the individual federal agency that keeps the records being sought (ibid.).

The US Department of Homeland Security's (DHS) Office of Immigration Statistics explains that asylum claims in the US can be made in one of two ways: "affirmatively" through an officer at the DHS's US Citizenship and Immigration Services (USCIS), or "defensively," during the removal process, through an immigration judge of the Department of Justice's Executive Office for Immigration Review (EOIR) (ibid. May 2011, 4). USCIS has a FOIA department that processes requests for records (ibid. 7 Dec. 2011), as does the EOIR (ibid. Dec. 2011).

Procedures to obtain records from USCIS

According to the USCIS website, all FOIA requests for records must be made in writing and can be mailed, faxed, or sent as an e-mail attachment (US 7 Dec. 2011).

Individuals wishing to obtain copies of their records should provide their alien registration number (if known), as well as the following required information:

  • full name
  • current address
  • date of birth
  • place of birth (ibid. n.d.b, 7)

The requester must sign the request and either have the signature notarized or submit it "under 28 U.S.C. 1746 (penalty of perjury in lieu of notarized signature)" (ibid.). The penalty of perjury statement, if executed outside the United States, should read,

"I declare (or certify, verify or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on (date).
(Signature)." (ibid., 8)

If executed within the United States, it should read:

"I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on (date).
(Signature)." (ibid.)

USCIS has an optional form (Form G-639) that can be used to make a FOIA request (US n.d.c). Information sought on the form includes: Name of Requester; Date; Daytime Telephone Number; Address; Signature of Requester; Consent to Release Information (for persons other than the requester); Information Needed to Search for Records; Purpose (optional); Family Name; Given Name; Middle Name; Other Names Used; Name at time of entry to the US; I-94 Admission no.; Alien Registration Number (A#); Petition or Claim Receipt #; Country of Birth; Date of Birth; Names of Family Members that may appear on requested record(s); Country of Origin; Port of Entry into the US; Date of Entry; Manner of Entry; Mode of Travel; Verification of Subject of Record’s identity; Signature of Subject of Record; Notary; Signature (ibid.). A copy of the form is attached to this Response.

The address to mail FOIA requests for USCIS records is:

U.S.Citizenship and Immigration Services
National Records Center, FOIA/PA Office
P.O. Box 648010
Lee's Summit, MO 64064-8010
USA (ibid. 7 Dec. 2011)

USCIS FOIA records can also be faxed to (816) 350-5785 (ibid.). In addition, the FOIA request can be sent as an e-mail attachment if the subject of the record's notarized signature or signature made under penalty of perjury is scanned (ibid.). The e-mail address is uscis.foia@dhs.gov (ibid.).

Procedures to obtain records from the Department of Justice

According to the website of the US Department of Justice (DOJ), the FOIA Service Center of the EOIR is centralized and processes requests from individuals to obtain records from immigration courts (US Dec. 2011).

Information on DOJ's website indicates that individuals seeking their own records must confirm their identity by doing one of the following:

  • completing and signing Form DOJ-361 (ibid. n.d.f);
  • having their signature witnessed by a notary; or
  • including the following statement immediately above their signature on their request letter: "I declare under penalty of perjury that the foregoing is true and correct. Executed on (date)." (ibid. n.d.d)

Form DOJ-361, the Certificate of Identity form, is attached to this Response.

In addition, the EOIR instructs requestors to "thoroughly describe the records sought and include identifying information such as full name, aliases, immigration hearing location and alien registration number (if known)" (ibid. Dec. 2011). In a case in which the alien registration number is unknown, or if the case was prior to 1988, the requestor should provide the date of the Order to Show Cause, country of origin and the location of the immigration hearing (ibid.).

The address for mailing requests for EOIR records is:

Office of the General Counsel
Attn: FOIA Service Center
Executive Office for Immigration Review
Department of Justice
Suite 2600, 5107 Leesburg Pike
Falls Church, VA 22041 (ibid. n.d.e)

Processing FOIA requests

Sources report that, by law, requests for asylum records should be processed within 20 working days (US n.d.d; The Recorder 24 Oct.2011; San Francisco Chronicle 19 Oct.2011). However, US government websites explain that the time it takes to respond to requests depends on the complexity of the request and the backlog of requests at the agency; some requests require more time than the standard one-month time limit (US n.d.a; ibid. n.d.d).

Processing times at USCIS

According to the USCIS website, there is a three-track system for processing FOIA requests made to the agency (ibid. 12 Dec. 2011). The different tracks, and their average processing times, as of 12 December 2011, were noted on USCIS's website as follows:

Track Description Average Time
1 Simple requests 113 days
2 Complex requests that normally necessitate additional search and review time 164 days
3 Requests from individuals scheduled for a hearing before a US immigration judge 52 days

(ibid.)

According to data from the US government FOIA website, in 2010, there were 20,653 "simple" requests (ibid. 29 Dec. 2011a) and 65,244 "complex" requests (ibid. 29 Dec. 2011b) made to USCIS. According to the data, the length of time to process simple requests in 2010 was as follows:

Simple requests
Processing time 1-20 days 21-40 days 41-60 days 61-80 days 81-100 days 101-200 days 201-400 days 400+ days
Number of cases 4,280 7,651 4,703 1,559 1,212 361 168 719

(ibid. 29 Dec. 2011a)

According to the data, the length of time to process complex requests in 2010 was as follows:

Complex requests
Processing time 1-20 days 21-40 days 41-60 days 61-80 days 81-100 days 101-200 days 201-400 days 400+ days
Number of cases 6,721 4,554 16,071 24,749 4,539 4,738 316 3,556

(ibid. 29 Dec. 2011b)

Media sources report that, on 13 October 2011, a US magistrate in San Jose, California found that the USCIS had a "pattern and practice" of violating the 20-day time limit for responding to requests for records (San Francisco Chronicle 19 Oct.2011; The Recorder 24 Oct.2011). These sources report that the magistrate said he would issue an injunction calling for the USCIS to provide copies of requested files within the 20-day time limit (ibid.; San Francisco Chronicle 19 Oct.2011). The magistrate’s judgement in Hajro and Mayock v.USCIS et al.referred to 27 immigration attorneys having attested that the USCIS took "months and in some cases years in responding to aliens' requests for their registration files" (13 Oct.2011).

In a telephone interview with the Research Directorate, the Senior Counsel at Human Rights First, a New York-based organization that assists asylum seekers, similarly noted that the Department of Homeland Security had a significant backlog of FOIA requests, and that requests for copies of asylum records usually take five months or longer to process (Human Rights First 5 Jan.2012).

Processing times at EOIR

According to the DOJ's website, not all FOIA requests are processed within the standard deadline of 20 working days (US n.d.d). However, the DOJ notes that "'simple'" requests, those with a small volume of material, are processed more quickly (ibid.).

In a telephone interview with the Research Directorate, a FOIA specialist at the EOIR explained that requests for asylum records are treated as "'simple'" requests and usually take approximately 4 to 6 weeks to process (ibid. 21 Dec. 2011). Similarly, the Senior Counsel at Human Rights First found that, in her experience, FOIA requests for asylum records made to the DOJ are typically processed within four weeks (Human Rights First 5 Jan.2012).

According to data from the US government FOIA website, in 2010, of 16,969 "simple" requests to EOIR, the length of time it took to process claims was as follows:

Simple requests
Processing time 1-20 days 21-40 days 41-60 days 61-80 days 81-100 days 101-200 days 201-400 days 400+ days
Number of cases 8,375 5,677 1,838 516 227 318 18 0

(US 29 Dec. 2011c)

Fees and tracking

For both USCIS (ibid. n.d.b, 15) and DOJ (ibid. n.d.d), there is typically no charge for the first two hours of search time and the first 100 pages of copies. For requests expected to exceed US$25 in processing fees, the agency sends a written estimate of the cost and an offer to narrow the scope of the request (ibid. n.d.a). According to the EOIR, most requests do not require any fees (ibid. Dec. 2011).

The US government FOIA website indicates that, once an agency receives the FOIA request, it usually sends a letter of acknowledgement with a tracking number (US n.d.a). According to the USCIS, requesters can check the status of their requests online, by e-mail (uscis.foia@dhs.gov), by fax (816-350-5785), or by calling the National Customer Service Unit (1-800-767-1833) (ibid. n.d.b, 11). Questions regarding FOIA requests sent to EOIR, can be directed to the FOIA Requester Service Center (703-605-1297) (ibid. n.d.e).

Circumstances in which documents pertaining to asylum claims are not released

According to the USCIS FOIA guidelines, there are a number of exemptions for release of documents, and the staff member processing the request will "determine portions to be exempt from release according to the law, then redact and apply the appropriate exemptions" (US n.d.b, 12). Exemptions from disclosure include, among others, "national security information," "personal information belonging to a third party," certain types of law enforcement records, such as manuals, checkpoint locations, and surveillance techniques, and documents protected by attorney-client privilege (ibid., 12-13). Hajro and Mayock v.USCIS et al.notes that in one of the plaintiff's FOIA requests, 356 pages of the file were released in full, 8 pages in part, and 78 pages were withheld; the released documents did not include the "'alleged testimony'" that the plaintiff sought (13 Oct.2011, 4).

The Senior Counsel at Human Rights First said that the DHS sometimes takes an "expansive view" of FOIA exemptions, and may redact or withhold some information from the files (5 Jan.2012). She added that information about other people and information about the decisions, such as interviewer notes, are sometimes redacted (ibid.). She expressed the view that information in the file that was provided by the applicant, such as the application for asylum and statements made by the applicant, "should be accessible," although she had one case in which an applicant's statement was withheld (ibid.).

The Senior Counsel also noted that she has had cases in which the USCIS returned FOIA requests because the names of the requester's parents were not included on the form, even though the relevant file number and the requester's personal information was included (ibid.).

For her part, the FOIA specialist at the EOIR, when asked about individuals requesting copies of their own records, did not "foresee" any reason why asylum records would be denied to an applicant (US 21 Dec. 2011). She said that it is easier to locate the record when the Alien Registration Number is included, but that they still look for the record using the name and personal information of the applicant when the number is unknown (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Hajro and Mayock v.USCIS et al.13 October 2011. United States District Court for the Northern District of California. <http://docs.justia.com/cases/ federal/district-courts/california/candce/5:2008cv01350/ 201306/77/0.pdf?1318585165> [Accessed 4 Jan.2012]

Human Rights First. 5 January 2012. Telephone interview with the Senior Counsel.

The Recorder [San Francisco]. 24 October 2011. Ginny LaRoe. "Relief Seen in Immigration Ruling." (Factiva)

San Francisco Chronicle. 19 October 2011. Bob Egelko. "Legal Snafus Exposed in Citizenship Cases." (Factiva)

United States (US). 29 December 2011a. Department of Justice (DOJ). "Processing Time for Simple FOIA Requests, DHS, 2010." <http://www.foia.gov/data.html> [Accessed 29 Dec. 2011]

_____. 29 December 2011b. Department of Justice (DOJ). "Processing Time for Complex FOIA Requests, DHS, 2010." <http://www.foia.gov/data.html> [Accessed 29 Dec. 2011]

_____. 29 December 2011c. Department of Justice (DOJ). "Processing Time for Simple FOIA Requests, DOJ, 2010." <http://www.foia.gov/data.html> [Accessed 29 Dec. 2011]

_____. 21 December 2011. Department of Justice (DOJ), Executive Office for Immigration Review (EOIR). Telephone interview with a Freedom of Information Actspecialist.

_____. 12 December 2011. Department of Homeland Security (DHS), U.S.Citizenship and Immigration Services (USCIS). "FOIA Request Status Check and Average Processing Times." <http://www.uscis.gov/portal/site/uscis/menuitem. 8d416137d08f80 a2b1935610748191a0/?vgnextoid=f3a2ba87c7a29110 VgnVCM1000004718190aRCRD&vgnextchannel=f3a2ba87c7a29110Vgn VCM1000004718190aRCRD> [Accessed 21 Dec. 2011]

_____. 7 December 2011. Department of Homeland Security (DHS), U.S.Citizenship and Immigration Services (USCIS). "Freedom of Information Act (FOIA)." <http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac 89243c6a7543f6d1a/?vgnextchannel=34139c7755cb9010VgnVCM100000 45f3d6a1RCRD&vgnextoid=34139c7755cb9010VgnVCM10000045f3d6a1RCRD> [Accessed 21 Dec. 2011]

_____. December 2011. Department of Justice (DOJ), Executive Office for Immigration Review (EOIR). "How to Submit a FOIA/PA Request." <http://www.justice.gov/eoir/efoia/foiafact.htm> [Accessed 21 Dec. 2011]

_____. May 2011. Department of Homeland Security (DHS), Office of Immigration Statistics. Daniel C. Martin. Refugees and Asylees: 2010. Annual Flow Report. <http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_rfa_fr_2010.pdf> [Accessed 29 Dec. 2011]

_____. N.d.a. Department of Justice (DOJ). "What is FOIA.gov?" <http://www.foia.gov/faq.pdf> [Accessed 29 Dec. 2011]

_____. N.d.b. Department of Homeland Security (DHS), U.S.Citizenship and Immigration Services (USCIS). USCIS FOIA Request Guide. <http://www.uscis.gov/USCIS/uscisfoiarequestguide(7).pdf> [Accessed 21 Dec. 2011]

_____. N.d.c. Department of Homeland Security (DHS), U.S.Citizenship and Immigration Services (USCIS). "Form G-639, Freedom of Information/Privacy Act Request." <http://www.uscis.gov/files/form/g-639.pdf> [Accessed 21 Dec. 2011]

_____. N.d.d. Department of Justice (DOJ). "Making a FOIA Request to DOJ." <http://www.justice.gov/oip/foia-request.html> [Accessed 21 Dec. 2011]

_____. N.d.e. Department of Justice (DOJ). "Attachment B, Listing and Descriptions of Department of Justice Components, FOIA Requester Service Centers and FOIA Public Liaisons, Descriptions of Information Routinely Made Publicly Available, and Multi-track Processing Information." The Department of Justice Freedom of Information Act Reference Guide (revised 2010).<http://www.justice.gov/oip/attachmentb.htm> [Accessed 21 Dec. 2011

_____. N.d.f. Department of Justice (DOJ). "Certification of Identity." <http://www.justice.gov/04foia/forms/cert_ind.pdf> [Accessed 21 Dec. 2011]

Attachments

United States. Department of Homeland Security (DHS), U.S.Citizenship and Immigration Services (USCIS). "Form G-639, Freedom of Information/Privacy Act Request." <http://www.uscis.gov/files/form/g-639.pdf> [Accessed 21 Dec. 2011]

_____. Department of Justice (DOJ). "Certification of Identity." <http://www.justice.gov/04foia/forms/cert_ind.pdf> [Accessed 21 Dec. 2011]