Nationwide Class Action Affirms Immigrants’ Rights to their A-Files
Tiffany Lieu, Staff Attorney with National Immigration Litigation Alliance
Every day, thousands of immigrants face deportation or detention in prison-like conditions without the crucial documents they need to defend themselves: their so-called Alien File (A-File). These are the government’s records of all information related to an individual’s immigration background or status. This information is critical to determining whether an immigrant is deportable, is entitled to immigration relief, or is in fact a citizen. Expeditious receipt of A-Files, therefore, is imperative; yet, for years the government agencies solely responsible for providing A-Files have delayed weeks, months, and sometimes even years in turning them over. The result for many immigrants is that, by the time they receive their A-Files, it is too late. They have been deported, suffered prolonged detention, or been driven to choose to self-deport because they can no longer stand detention in such prison-like conditions. When it comes to A-Files, justice delayed is justice denied.
Take, for instance, C.J., who has lived in the United States for nearly his entire life but is now in deportation proceedings. The government has detained him in prison-like conditions for over a year while it delays in producing his A-File, without which CJ cannot defend himself against being deported and reunite with his family. During this prolonged detention, his mental health has gravely deteriorated.
The very government agencies seeking to deport individuals are the same ones withholding the information necessary to vindicate immigrants’ rights.
This injustice stems from a pernicious reality: the very government agencies seeking to deport individuals and deny them immigration relief and citizenship are the same agencies withholding the information necessary to vindicate immigrants’ rights. This is because the only way to obtain a complete A-File is by filing a Freedom of Information Act (FOIA) request with U.S. Citizenship and Immigration Services (USCIS), which has declared itself the sole custodian of all A-Files. By statute, FOIA requires that the government respond to A-File requests within 20 or 30 days. USCIS, however, regularly exceeds this deadline—as of December 2020, the agency on average takes 71 days to produce most A-Files. Yet, while this delay prevents immigrants, the vast majority of whom are unrepresented, from reviewing their A-Files, U.S. Immigration and Customs Enforcement (ICE) prosecutors typically have access to those same A-Files throughout removal proceedings. Thus, the government’s A-File delays render an already imbalanced system nearly insurmountable.
To end this unlawful practice, the National Immigration Litigation Alliance (NILA), along with the Northwest Immigrants’ Rights Project, American Immigration Council, and the Law Offices of Stacy Tolchin, filed a nationwide class action against USCIS, ICE, and Department of Homeland Security (DHS) in September 2019. Nightingale v. USCIS, No. 3:19-cv-03512-WHO (N.D. Cal. Sept. 2019) challenges the agencies’ years-long pattern or practice of untimely responding to A-File FOIA requests in violation of FOIA’s statutory deadlines. Acknowledging that the case would be the first certified FOIA class action, Judge William H. Orrick of the U.S. District Court for the Northern District of California certified two classes—one for those whose A-File FOIA requests were delayed with USCIS and the other whose A-File requests were referred from USCIS to ICE.
This litigation has yielded an unprecedented victory. On December 17, 2020, Judge Orrick issued an order vindicating immigrants’ right to timely receive their A-Files. Finding an “unmistakable history of failing to make timely determinations on A-File FOIA requests,” the court granted declaratory relief that USCIS, ICE, and DHS have a pattern or practice of violating FOIA’s statutory deadlines. This violation, the court wrote, “undermines the fairness of immigration proceedings, particularly for the vast number of noncitizens who navigate our immigration system without assistance of counsel.” Recognizing the need for enforceable and longstanding relief, the court permanently enjoined USCIS, ICE, and DHS from further violations, and ordered defendants to reduce the backlog of A-File FOIA requests within sixty days and release quarterly compliance reports. Read the order here.
The victory in Nightingale is a critical step towards dismantling the power asymmetry endemic to our immigration system. NILA is committed to continuing to fight systemic injustices on behalf of immigrants in need. Learn more about NILA’s work here.