To challenge these systemic violations and the harm they cause, the American Immigration Council and its partners, Northwest Immigrant Rights Project (NWIRP) and the Law Offices of Stacy Tolchin, have filed a nationwide class action in federal district court on behalf of immigration attorneys and two individuals.
The lawsuit highlights how this impacts immigrants and their attorneys. A-Files contain important information for immigration cases that can affect an individual’s eligibility for immigration benefits or their ability to defend against deportation.
The delays are part of a systemic breakdown at USCIS where case processing delays across the board have increased at alarming rates in recent years.
Individuals and their attorneys need access to their full immigration history, including government documents. This complete history is critical to assessing their options and make decisions that often have life-long consequences for themselves and their families.
Under current law, people should be able to obtain a copy of A-Files within 20 business days by submitting a FOIA request to USCIS. The agency is afforded an additional 10 days only in limited circumstances.
In almost no cases does USCIS meet this timeframe. In fact, the agency’s own website indicates that average processing times for different categories of FOIA requests exceed the legally allowable timeframe for responding—in some cases, by months.
The backlog of FOIA requests at USCIS has doubled between fiscal years 2015 and 2017, with no clear plan to reduce it. At the end of FY 2018, USCIS reported 41,329 cases were stuck in a backlog.
Despite their delays in response times, USCIS has failed to allocate enough budgetary resources or hire the necessary number of employees to address the backlog. The result has left many noncitizens and their attorneys without A-Files for months past the legally-allowed timeframe for the agency to respond.
USCIS also sends portions of A-Files to Immigration and Customs Enforcement (ICE) for further review. While ICE is required by law to treat the request as having been received on the date it was received by USCIS, ICE routinely fails to respond to the request on time. As a 2012 government watchdog report indicated, this inefficient referral process often results in an unnecessary duplication of efforts, increased costs, and lengthy processing times.
The plaintiffs in the class action have collectively filed numerous FOIA requests that USCIS ignored. Several of those referred to ICE have been pending for over a year.
This class action represents the ongoing effort to hold the government accountable for its responsibilities under FOIA. Lawyers for the plaintiffs are asking that the Court issue a nationwide injunction ordering USCIS and ICE to respond to pending FOIA requests within 60 days of the Court’s order and to respond to future FOIA requests in accordance with the law.
Routine and excessive delays cause unnecessary emotional and financial hardship for individuals seeking their own immigration files. USCIS needs to do better so individuals are not left in legal limbo while they wait to obtain records that hold the key to evaluating their immigration options in the United States.
FILED UNDER: FOIA, Immigration and Customs Enforcement, Nightingale et al. v. USCIS et al., USCIS