Seeking Records from Immigration Courts about Processing FOIA and Records of Proceedings Requests

Wednesday, May 29, 2024

Records access is critical for noncitizens in removal proceedings to contest their deportation. When noncitizens lack the same information as the government on what occurred previously in their immigration proceedings (e.g., notes from asylum interviews with U.S. Citizenship & Immigration Services or allegations against them from U.S. Immigration & Customs Enforcement), it is nearly impossible for them to have a fair hearing or obtain relief.

The Executive Office for Immigration Review (EOIR)—which administers immigration courts—provides two avenues for noncitizens and their lawyers to obtain records of proceedings: (1) Submitting a request under the Freedom of Information Act (FOIA); or (2) Requesting the record of proceedings (ROP) via a recently implemented e-mail system.

Scant information exists about how EOIR processes requests for records of proceedings or under FOIA. EOIR encourages noncitizens and their attorneys to request ROPs through the e-mail system but may withhold certain portions of the record as "prohibited.” While FOIA also allows for withholdings, it gives requesters a means to dispute the withholdings in court and prompt action on languishing requests. Practitioners are concerned that detained noncitizens and those who lack access to counsel face barriers to obtaining crucial documents through both processes.

FOIA also requires EOIR to disclose many records to noncitizens and other members of the public proactively. EOIR publishes certain data and policy documents in its FOIA library, but the public lacks meaningful information about how the agency decides what information is posted on their FOIA library.

On May 29, 2024, the Council filed a FOIA request with EOIR to obtain information about how the agency processes requests for immigration records and how it decides to provide the public with information in its FOIA library.

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