Attorneys who represent foreign national clients facing deportation may file a Freedom of Information Act request in order to obtain documentation from the U.S. Citizenship and Immigration Services that may be critical to preparing a defense. The problem is that one never knows when a FOIA request will be answered. It can be difficult to competently formulate a defense without having access to all the evidence. FOIA requests have taken so long to get through the backlog, in some cases, that the request is not answered until long after the person has been deported.
The law requires federal agencies to respond to FOIA requests within 20 days, and this may be extended to 30 days under unusual circumstances. The USCIS says that it responds to FOIA requests on a first-in first-out basis. It gets about 100,000 FOIA requests annually and has reduced the backlog within the last five years. However, delays still do exist.
Immigration judges frequently deny requests to delay deportation proceedings for people who are waiting for documents from a FOIA request. In some cases, a court may compel the federal agencies to provide documents when there is a delay.
For a court to move forward with deportation proceedings while the subject of those proceedings is helplessly waiting for documents that may be critical to a defense would seem to violate that person’s right to due process under the Constitution. What makes this appear especially unfair is that the government can pursue a person’s deportation, while at the same time denying that person access to possible exculpatory evidence.