Immigration Court Reform: Amendment to S. 744
On May 20, 2013 by voice vote, the U.S. Senate Judiciary Committee passed the Coons Amendment to S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act. Through his amendment, Senator Coons has put into place Chicago Appleseed’s and National Appleseed’s long-held belief that there should be no requirement that non-citizens in removal proceedings in the Immigration Courts should have to file FOIA requests to obtain essential documents. We at Appleseed and Chicago Appleseed have been working with Senator Coons and the Democratic Judiciary Committee staff to implement these common-sense solutions consistent with civil litigation practice that will make immigration proceedings more efficient while protecting any confidential information.
The following is from the analysis prepared by National Appleseed and Chicago Appleseed:
Introduction
Requiring immigrants in removal proceedings to submit FOIA requests to obtain documents in the government’s possession wastes government resources, delays hearings, and denies basic due process protections. Appleseed identified the problems with requiring FOIA requests for document production in immigration court proceedings in its 2009 Report “Assembly Line Injustice” (.pdf) and documented the continued failures of DHS to develop a better document production protocol in the 2012 Report “Reimagining the Immigration Court Assembly Line” (pdf). You can find both reports and additional documents at www.chicagoappleseed.org, under the Community Justice/Immigration Court tabs.
Congress should remove the requirement that non-citizens in removal proceedings submit a FOIA request in order to obtain certain documents from DHS (known as the “A-File”). This requirement stems from DHS’s policies and regulations regarding the use of FOIA for a non-citizen request for government records about himself, and does not account for the inefficacy of this approach as applied to the relatively fast-paced immigration court litigation context. Appleseed proposes simple amendments to S.744 to include mandatory document disclosure requirements similar to those used in civil proceedings under Federal Rule of Civil Procedure (FRCP) 26, thereby eliminating the burdensome and time-consuming FOIA process for those cases where a non-citizen is in removal proceedings.
The proposed amendment includes mandatory document disclosure of pertinent documents, while acknowledging that some records may not be immediately available or may be eligible for withholding or redaction by DHS. In addition, the proposed amendment gives immigration judges, upon objection by a non-citizen, the authority to review any grounds of withholding or redaction of documents by DHS and order further disclosure to the non-citizen.
Non-citizens facing removal proceedings have a particular need for quick access to A-File documents and any documents relevant to the alien’s immigration status, grounds for removal, or claim(s) for relief. As Appleseed has reported, this FOIA requirement can delay immigration court proceedings and prevent non-citizens from obtaining documents necessary to defend against removal or prove entitlement to relief. Furthermore, the FOIA requirement does not appear to serve any significant government interest, as less than one percent of properly submitted requests were denied.
Appleseed and Chicago Appleseed are not suggesting that Congress wholly eliminate the FOIA process, but do so solely in the context of removal proceedings where the non-citizen has an urgent need for ready access to critical documents. In the interests of fairness and efficiency, FOIA should not be the document request process for pending removal proceedings.