Lawsuit Challenges Systemic USCIS and ICE FOIA Delays

Under the Freedom of Information Act (FOIA), individuals must receive a determination on requests for information within a maximum of 30 days. However, individuals and attorneys who file FOIAs with the United States Citizenship and Immigration Services (USCIS) for copies of immigration files, or “A-Files”, routinely face waiting times well over 30 days ⁠— in some cases, the wait can be months. 

Further, USCIS exacerbates delays by often referring requests to Immigration & Customs Enforcement (ICE) to handle responsive FOIA documents in ICE’s possession. As a result, USCIS and ICE have substantial FOIA backlogs and individuals live in legal limbo, enduring emotional and financial hardship as they grapple with how ⁠— or whether ⁠— to proceed with an immigration benefit or defense. 

To challenge these systemic violations, the American Immigration Council and its partners, National Immigration Litigation Alliance (NILA), Northwest Immigrant Rights Project (NWIRP) and Law Offices of Stacy Tolchin, filed a nationwide class action in federal district court. The lawsuit alleges that the Department of Homeland Security (DHS), USCIS, and ICE routinely violate the FOIA statute and fail to allocate enough resources to reduce backlogs and provide timely determinations on FOIA requests. 

On October 15, 2019, the court certified two classes:  

USCIS Class: All individuals who filed, or will file, A-File FOIA requests with USCIS which have been pending, or will be pending, with USCIS for more than 30 business days without a determination.  

ICE Referral Class: All individuals who filed, or will file, A-File FOIA requests with USCIS that USCIS has referred, or will refer, to ICE and which have been pending, or will be pending, for more than 30 business days from the date of the initial filing with USCIS without a determination. 

The parties completed summary judgment briefing and a hearing took place on December 9, 2020. On December 17, the court ruled in Plaintiffs’ favor, granting injunctive and declaratory relief. The court:

1. permanently enjoined defendants from further failing to adhere to FOIA statutory deadlines for adjudicating A-File FOIA requests;
2. ordered defendants to make determinations on all A-File FOIA requests in USCIS’s and ICE’s backlogs within sixty (60) days; and
3. ordered defendants to provide the court and class counsel with quarterly compliance reports, with the first report due within ninety (90) days.

On March 17, Defendants provided a report, with accompanying declarations from agency officials, detailing agency compliance with the court order. The compliance report indicated that, in the last three months, ICE and USCIS have taken the following steps:

1. USCIS has reduced its A-File FOIA backlog by approximately 97% - from approximately 21, 986 requests to 574 requests.
2. ICE has eliminated its A-file referral backlog, except for 47 A-Files with “technical issues.”

To accomplish the backlog reduction, according to the compliance report, the agencies took the following steps:

1. USCIS increased its staff with approximately 116 staff members from other DHS components, as well as approximately 20 non-FOIA employees of USCIS (these employees were trained to perform USCIS FOIA duties).
2. USCIS assigned FOIA staff who typically respond to requests for non-A-File material to work strictly on A-File FOIA requests.
3. USCIS leadership approved $1.26 million to fund employee overtime and approximately $4.057 million in emergency funds, which included $106,404 for contractor overtime, $2.2 million to extend USCIS’s backlog contract, and $1.7 million for additional scanning capabilities.
4. As a result of increased funding, USCIS was able to assign approximately 15,105 hours of overtime for USCIS FOIA staff; fill eight vacancies for permanent positions in its FOIA Office (with 14 additional vacancies in progress to be filled); fill six one-year positions supported by the 2020 Memorandum of Agreement between USCIS and ICE (with 19 additional employment offers extended and awaiting security clearance); increase contractor overtime assistance; and extend USCIS’s backlog contract through October 29, 2021.

Defendants submitted the second compliance report on June 15, 2021. In that report, USCIS stated it has continued to reduce its own backlog and has timely processed almost every new request the agency has received. Between March 17, 2021 and June 15, 2021, the agency timely completed approximately 99.3% of requests.

After appealing the district court’s decision granting injunctive relief, Appellants DHS, USCIS and ICE requested their appeal be dismissed. The court granted Appellants’ motion for dismissal on July 30, 2021. As a result, the district court’s order stands. DHS, ICE and USCIS are 1) must adhere to FOIA statutory deadlines for adjudicating A-File FOIA requests after clearing their backlogs of requests and 2) must continue to provide the court and class counsel with quarterly compliance reports.

On October 15, 2022, U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement requested that a district court set aside its injunction for six months. Defendants argue the court should set aside the order for all Track 1 and 2 A-file FOIA requests because Defendants are overwhelmed by the increasing number of A-file requests and need to train staff to process the requests. USCIS admitted that its backlog has increased to 5,361 requests. 

Plaintiffs oppose the motion, stating that what Defendants call a “dramatic and unprecedented number of requests for A-Files” is a predictable increase and that USCIS has seen similar percentage increases in the past. USCIS has more staff and funding than it did when the lawsuit was filed; USCIS has failed to properly staff A-file FOIA processing; and Defendants have mismanaged their FOIA programs, including failing to identify 13,500 requests that were sent to ICE where they languished before they were rerouted to USCIS for processing. If Defendants did not have to comply with the Court’s order, Plaintiffs and tens of thousands of class members who depend on timely receipt of their Track 1 (“simple” requests or requests for discrete documents within the A-file) or Track 2 (“complex” requests or requests for the entire A-file) requests would be harmed. A hearing on Defendants’ motion will take place on October 25, 2022.