How the Freedom of Information Act Affects Immigration

By Tanner Bowen

Tanner Bowen is a sophomore at the University of Pennsylvania studying business.

Within the last few years, the topic of immigration has come to the forefront of American politics. From the recent shooting this summer by an undocumented immigrant of a woman in San Francisco to the different plans set forth by presidential hopefuls about how to fix the “immigration problem,” the topic is unfortunately as difficult to discuss as it is complicated. [1] One of the agencies at the forefront of this debate is the United States Citizenship and Immigration Services. In particular, there are numerous allegations that the USCIS is purposefully delaying the Freedom of Information Act requests that immigrants need for their citizenship hearings.

To provide some context, the Freedom of Information Act was passed in 1967 to provide residents within the United States with the ability to request significant amounts of information from any federal governmental agency. [2] Throughout the naturalization process to become citizens, immigrants applying for citizenship need various items of documentation from the U.S. government whenever they appear before an immigration judge. In addition, if their petition for citizenship is denied, people often submit FOIA requests to obtain additional evidence to appeal the ruling.

The dynamic between the USCIS and immigration attorneys has often been toxic at best, and came to a head at the Ninth Circuit Court of Appeals. In the case Hajro v. United States Citizenship and Immigration Services, the Ninth Circuit heard allegations that the USCIS had taken excessive time to process a FOIA request from the plaintiff, Hajro, whose citizenship was being denied over an apparent misunderstanding on his application about his foreign military service. In order to alleviate the issue, Hajro and his attorney Maycock filed the FOIA request in dispute with the USCIS.

The issue arose because of a twenty-day rule, which states that if the USCIS cannot process a FOIA request within that time period, it must notify the requestor of “unusual circumstances” which have lengthened the process. Hajro never received such a notification and thus filed suit against the USCIS in district court.

The unusual part of this case came from its status as not only a personal injury case by plaintiff Hajro, but also by his attorney, Maycock. Back in 1992, Maycock brought a similar suit against the USCIS’s predecessor, after which he entered into an agreement with the then-Immigration and Naturalization Services to expedite requests for clients whose life or safety was threatened by deportation.

Over a decade later, still alleging that the USCIS had engaged in decades of FOIA violations, Maycock brought this case against the USCIS claiming that they had broken the agreement into which they had entered in 1992. The Ninth Circuit ended up using the Supreme Court’s decision in Kokken v. Guardian Life Insurance Co. to rule that since the district court in 1992 did not have jurisdiction over the agreement, the district court now had no authority to enforce the agreement’s terms.

In addition to this, the court ruled that Maycock did not have standing to bring the case within the first place. In the time that the decision was pending appeal, the plaintiff Hajro succeeded in his citizenship appeal and became a naturalized citizen. With this in mind, the case being brought could now be considered moot. However, Maycock argued that he had personally suffered injury as a result of the USCIS’s actions by not being able to effectively represent his clients due to these FOIA request delays.

Although there are merits to this argument, it does seem somewhat far-fetched to bring a personal injury claim for over $300,000 based on not being able to “adequately represent” one’s client. In this situation, the job of the immigration lawyer is to help his or her client obtain citizenship status, not personally profit from the client’s misfortunes.

To make matters even more interesting, the Ninth Circuit remanded the case to the district court to check the facts and make sure that the USCIS actually violated the time constraint on these FOIA requests.  This ruling comes despite the plaintiff providing over thirty affidavits from other immigration lawyers arguing that this was a reoccurring issue with the USCIS.

As odd as this case may sound, this ordeal provides just a slight glimpse into the dynamic world of immigration law within the United States. There is often much animosity and misunderstanding on both sides, and what every party involved needs to remember is that one’s entire livelihood that he or she built within the United States could be stripped away via deportation whenever other interests are involved. In an immigration system that desperately needs to reform, it is important to not forget that in this issue, human beings lives should take precedence to any other ulterior motives, personal or political.


[1] Hughes, Trevor. "San Francisco Shooting Case Shows Disconnect on Immigration." USA Today. July 7, 2015. Accessed November 4, 2015.
http://www.usatoday.com/story/news/2015/07/06/san-francisco-pier-shooting/29776179/
[2] "What Is FOIA?," FOIA.gov. August 14, 2015. Accessed November 4, 2015.
http://www.foia.gov/about.html

Photo Credit: Flickr User Jens Schott Knudsen

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