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FOIA: The Importance of Having Your Full Immigration Record

May 20, 2019

FOIA: The Importance of Having Your Full Immigration Record

Author: New York Immigration Attorney Alena Shautsova

FOIA stands for Freedom Of Information Act and is essential for one’s Immigration case. By filing FOIA request, one may not only receive a copy of his/her Immigration file form an Immigration court, Board of Immigration Appeals or USCIS, but also obtain records of one’s interactions with the CBP at the border; receive notes about one’s testimony during his/her Asylum interview and obtain records from the Stokes interview.

A response to FOIA has to be current: if you received a “CD” (the government usually delivers responses to FOIA requests on CDs) in the past but since then had some immigration history: forms filed, a decision made, etc, you need to obtain a “fresh” FOIA response.

One of the most overlooked and underused FOIA requests is an OBIM FOIA: U.S. Office of Biometrics Identity Management (“OBIM,” formerly US-VISIT). Basically, if you would like to receive your files regarding interactions with the Border Patrol officials, you need to file a request for FOIA with OBIM. OBIM requests may be submitted by letter request; Form G-639 by mail, fax, or email; or electronically through the DHS Online Request Form. They should include an original fingerprint card or A-number.

Another important source of information is CBP. A request for records to the CBP may reveal:

Apprehensions and detentions at the border: • Interactions with CBP at the border or in the interior • Form I-94 records • Voluntary return records • Records of entries and exits xi • Expedited removal orders • Advance parole records obtained through CBP.

Unfortunately, the government does not have to disclose all the information. Often,  important information is being withheld according to the provisions allowing the government not to share information that they use for investigation purposes, for example. If, however, an adverse decision is made in one’s case, he/she is entitled to have an opportunity to review and respond to the adverse information in the file.

Finally, often, as a result of the lawsuits, the government is forced to share previously withheld information. What was not available 8 years ago, now, may be available, in other words. If you are seeking to “fix” an old Immigration problem, a FOIA request is a must. It takes several months before you receive a response, but the wait is worth it. Through FOIA you can also obtain copies of lost documents; information regarding old filings that potentially can qualify you for an Immigration benefit; and, of course, information that was filled in the forms which can be checked for accuracy.

If you need assistance in obtaining your files, please call 917-885- 2261 for an appointment.

Privacy Laws Change For Non-USC and Non-LPR

April 30, 2017

Privacy Laws  Change For Non-USC and Non-LPR

New York Immigration Lawyer Alena Shautsova

The Trump administration has announced new changes to privacy laws that will affect non US citizens and non permanent residents.  Since 2007, the government, and DHS in particular, extended privacy laws protection enjoyed by USC and LPRs to non-immigrants and immigrants (Privacy Policy Guidance Memorandum 2007-01/Privacy Policy Directive 262-12, DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Information on Non-U.S. Persons). Basically, the agency could not release or share information regarding a specific individual freely. It could be done only in specific situations and when  a subject of record would provide a release.  After new Executive order, the administration is changing its policies to strip non citizens and non LPRs from privacy protection. According to the Memo released on April 27, 2017, “Section 14 of E.O. No. 13,768 requires that “[a]gencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” Privacy Policy Guidance Memorandum 2007-01/Privacy Policy Directive 262-12 is inconsistent with Section 14 of E.O. 13,768.”

What does this really mean? If one looks at the Memo in question, he/she will find that its language is rather convoluted and the real meaning is hidden somewhere between the lines.

Analyzing the document as a whole, one can make at lease these two conclusions:

1. No Privacy Act protection means easy exchange of collected data by any and all government participants. Like in a Red Riding Hood, the wolf had big eyes to better see the girl, here, the government opens its volts of data to better see potential deportees.

2.  The government will have free hands with regard to  collection, use, dissemination, or maintenance of personally identifiable information.  The only limitation specified in the DHS Memo is “any sharing of such information outside the agency must be compatible with the purposes for which the information was originally collected.” ” Seeking consent is always a preferable privacy practice, and consent should be sought when practical.” However, it is well known that once information is collected and available, to track the purpose of its usage is extremely hard. It is even harder to prove (for a regular person) that his/her information was mishandled and shared in violation of restrictions. And, I have never heard of a situation where a government official would reach out to a non-immigrant and ask for his/her consent prior to share his info with, let’s say, another consulate…

3. The Memo states that ” People not covered by the Privacy Act or Judicial Redress Act (JRA) (which is non USC or non LPRs) still may obtain access to records consistent with FOIA unless disclosure is prohibited by law or if the agency reasonably foresees that disclosure would harm an interest protected by an exemption.” It is in this line that many practitioners may see a problem: will their clients still be allowed to have copies of the government records pertaining to their full immigration history?

To sum it up, there come significant changes in how the government is going to collect and share information regarding non citizens and non-permanent residents. Perhaps, about citizens and LPRs as well…