Access to Counsel Before USCIS

The American Immigration Council, with co-counsel Dorsey & Whitney LLP, filed a lawsuit against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) to compel the release of records relating to noncitizens’ access to counsel. The Council initially pursued disclosure of these records through a FOIA request filed in March 2011. Despite the importance of counsel to immigrants appearing before DHS, the thousands of immigrants who are required to appear at agency examinations or proceedings every year may face barriers to accessing counsel. Federal law clearly provides a right to legal representation in many proceedings before DHS, but that right is often unrecognized, restricted, or denied. 

In response to the suit against USCIS, the agency located over 2000 pages of responsive documents, but withheld or redacted the vast majority of them. Many of the released documents outline the review and amendment of the Adjudicator’s Field Manual’s (AFM) counsel-related provisions and indicate that advocacy efforts by the Council and AILA prompted USCIS to prioritize amending the AFM.

USCIS eventually filed a motion to dismiss the lawsuit. The Council contested the agency’s claims, and in November 2012, the court issued an opinion which agreed in large part with the Council’s arguments, concluding that “USCIS must do better.” The court ordered the government to turn over improperly withheld records and better explain the searches it had conducted. USCIS released previously withheld records in January 2013. Pursuant to a subsequent settlement agreement, the agency conducted additional searches and released responsive records, including training materials related to the AFM updates.