Class Action Lawsuit Challenging CBP Delays in Responding to FOIA Requests

In March 2015, the American Immigration Council, in collaboration with the Law Office of Stacy Tolchin, the Northwest Immigrant Rights Project, and the National Immigration Project of the National Lawyers Guild, filed a class action lawsuit against CBP over its nationwide pattern and practice of failing to timely respond to requests under the Freedom of Information Act (FOIA). The plaintiffs included both immigration attorneys and individuals, all of whom had FOIA requests pending for over 20 business days.

FOIA requires an agency to respond to a properly filed FOIA request within 20 business days. CBP routinely fails to comply with this deadline, often not responding for months and in some cases for longer than a year. At the time the suit was filed, CBP had a backlog of more than 30,000 cases that had been pending for longer than 20 business days.

On September 17, 2015, the district court denied CBP’s motion to dismiss in a strongly worded decision. The Court recognized that “CBP’s records are critical to noncitizens and their attorneys in evaluating immigration options and the possibility of remaining legally in the United States,” and roundly rejected the government’s claim that CBP’s failure to meet the statutory deadlines is not actionable.

During the course of the lawsuit, CBP implemented new procedures for handling FOIA requests and added staff. In light of this, the parties reached a settlement and, On October 5, 2016, the district court dismissed the case pursuant to this settlement.  At the time of the settlement, CBP’s backlog had been reduced to approximately 3,000 FOIA requests, most of which were complex, and CBP generally was responding to new requests within 20 days. In the settlement, CBP committed to continuing its efforts to timely process FOIA requests.  Additionally, the agency committed to increased transparency about its performance; CBP will now post monthly FOIA statistics to its website, including the total number of FOIA requests pending, how long they have been pending, how many new requests are received each month, and how many are processed.