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  • Roger Nayar

Reprieve from FOIA delay tactics

On December 17, 2020 Judge William H. Orrick in the case of Nightingale v USCIS granted summary judgment in favor of two nationwide classes suing the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) for failing to timely produce the class members’ immigration files (A-Files). The A-files FOIA requests are paramount to defending an immigrant's removal proceedings, applying for benefits and citizenship. The Freedom of Information Act was established in 1967 and gives the people the power to request access to records from any federal agency. According to statutory guidelines the federal agencies are supposed to respond to FOIA requests within 20 days unless they require more information from the requestor. This really is a hypocritical stance from these agencies because if an immigrant were to miss their deadline with any immigrant application, there will be a denial from these same agencies without any reprieve, which has a immediate detrimental effect on the immigrant's life.

This decision comes in the form of a sweet revenge for the class of immigrants.

The A-file FOIA requests with the DHS, USCIS and ICE are backlogged and these agencies have failed to follow the above statutorily-mandated guidelines for at least the past 8 years. This creates an insurmountable task for immigrants and their lawyers in defending a case against these same federal agencies without all the required information. This is a landmark victory against DHS, USCIS and ICE.

The decision by the Judge as cited from the decision states, "(i) defendants are permanently enjoined from further failing to adhere to FOIA statutory deadlines for adjudicating A-File FOIA requests; (ii) within sixty (60) days of this order, defendants must make determinations on all A-File FOIA requests in USCIS’s and ICE’s backlogs; (iii) defendants must provide the court and class counsel with quarterly compliance reports, with the first report due within ninety (90) days of this order.

The 9th circuit that houses the progressive state of California, seems to be the forerunner in the establishment of immigration reforms that will ultimately alleviate the issues of any individual caught up in the brutal world of deleterious immigration laws.

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