Council Seeks Information About Access to Immigration Records in Removal Proceedings

In order to better understand how U.S. Immigration and Customs and Enforcement (ICE) is complying with the decision, Dent v. Holder, the Council submitted a FOIA request for information about the agency's implementation of the decision.

In Dent v. Holder, the Ninth Circuit found that the Immigration and Nationality Act (INA) requires the government to turn over copies of documents in a respondent’s immigration records or A-File in cases where removability is contested. 627 F.3d 365 (9th Cir. 2010). Significantly, the court held that the respondent’s access to his or her records is not conditioned on filing a request under the Freedom of Information Act (FOIA). The decision interprets a statutory provision - INA §240(c)(2)(B) – “the mandatory access law.” This provision states that where a respondent in removal proceedings must establish lawful presence in the United States, he or she “shall have access” to the “visa or entry document” and any other records and documents “pertaining to the alien’s admission or presence in the United States.” When the decision issued, many believed the court’s reasoning suggested that the government should routinely produce A-files in removal proceedings. The case has not had that effect however, and individuals in removal proceedings and their attorneys still must rely on FOIA requests to obtain A-files.

The request asks for the following information:

• Current ICE Office of Principle Legal Advisory (OPLA) policies and guidance regarding Dent v. Holder, 627 F.3d 365 (9th Cir. 2010);
• Current ICE OPLA policies and guidance regarding 8 U.S.C. § 1229a(c)(2)(B); and
• Current ICE OPLA policies and guidance governing how ICE responds to respondents’ requests for documents in removal proceedings.

The Council filed the FOIA with ICE to clarify what ICE considers its obligations to provide certain records to individuals in removal proceedings. By obtaining and analyzing current agency guidance, the Council can assess whether the agency abides by the Court’s order and agency policy directives.