Five Benefits of Having a Copy of Your "A File" from USCIS or the Immigration Court through a FOIA Request

Obtaining a copy of your "Administrative" or "A" file from the U.S. Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review (EOIR) has many benefits.  As most of our readers know, USCIS is part of the U.S. Department of Homeland Security and it is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration services policies and priorities.  The Immigration Courts are a component of EOIR under the U.S. Department of Justice.

The request for a copy of the A-file is done through a Freedom of Information Act (FOIA) request. The "A file" is basically a person's record maintained by USCIS (and legacy INS) since at least 1955. Generally speaking each individual should have only one A-file.  The A-file is created when action is required for a particular individual. This "action" can include for example petitioning for an immigrant visa, requesting an immigration benefit, the initiation of removal proceedings, or submitting an adjustment of status petition.  The A-file can also be created at "any other time a case file is needed". Once created, it contains all immigration records  for that particular non-citizen applicant.

I'm not very fond of the word "alien" so I use "non-citizen applicant" instead.  In all fairness to our friends at USCIS, the term "alien" is actually a statutory term defined in the Immigration and Nationality Act (INA).  INA section 101(a)(3) defines an "alien" as any person not a citizen or national of the United States.

Although there are many reasons why an applicant should have a copy of his or her A file, here are some:   

• It helps you determine whether or how to proceed with an application. In some cases the A file will reveal facts that may have not been disclosed previously or were simply forgotten.  Some of the information contained in the A file may affect eligibility for the benefit desired, or may affect where and how the application has to be submitted.
• It will help you see what the immigration officer is seeing.  The A file will have the documents you submitted and those that others have submitted on your behalf.  The interviewing officer will be making his or her decision in part by what's in the record. It's important that the applicant also know what's in the file.
• It helps you prepare.  By knowing what you have in the file, you can prepare adequately for an interview and anticipate issues that may be addressed.  In some cases many years have passed since the original A file was created and it's important to review the file. 
• It helps you determine eligibility. In some cases obtaining a copy of the A file will help determine eligibility for the relief sought such as a Motion to Reopen or assist in documenting an application for relief.
• It's free (for the most part). Most requests have no fees associated with them (unless the records are voluminous or take several hours to research).

Keep in mind that each agency has different procedures on how they handle FOIA requests.  Because every agency has different FOIA procedures, Customs and Border Protection and Immigration and Customs Enforcement should be contacted separately.  Below is some information on how to submit a FOIA request with USCIS and EOIR. 

• USCIS.  Utilize Form G-639.  USCIS' website has a lot of useful information that will assist you in preparing and submitting the application. 
• EOIR (Immigration Court).   The request should be made in writing to EOIR. The request should have some information such as a description of the records sought, the applicant's name, "A number", and the date and court location of the proceedings.  A Certification of Identity (Form DOJ-361) may also be required.   For more information please review EOIR's Fact Sheet on FOIA requests. 

Done with time, the results of a FOIA request can be a very useful tool.  Keep in mind that FOIA requests take several months to process. Submitting the request as early as possible is the way to go.

CBP On Your Side: Four Primary Programs To Address Customer Complaints

For the vast majority of travelers their experience with Customs and Border Protection (CBP), an agency within the U.S. Department of Homeland Security, is - if not pleasant per se - at least uneventful. For some travelers though, their experience is anything but pleasant. When faced with such situations, it's important to know what to do and where to go for assistance.   

Take for example the unfortunate case of a client of mine who is a full-time Pastor who was returning with his wife from a short business trip to Central America. Upon presenting their U.S. passports they were placed in secondary inspection.  This couple, who are naturalized U.S. citizens, are elderly and one of them has a hearing impediment.  They were both accused of lying because they were "too old" to have gone on a business trip, and were also accused of having fake U.S. passports because they couldn't communicate well in English and they had an accent. After all, you can't have an accent if you're a U.S. citizen - right?  Well, after several hours of questioning, that included a CBP officer wanting to force the wife to sign a document where she "confessed" to having a fake U.S. passport, they were simply released with no apologies offered. 

This case is by all means the exception - rather than standard operating procedure. That's just my humble opinion, I'm pretty sure others would differ.  I will concede however that these events happen more than what one would suspect. Although no comfort to those affected, it's important to keep things in perspective. CBP is tasked with protecting our nation’s borders from, among other things, terrorism, human and drug smuggling, and agricultural pests.  This is no small task and that is why CBP employs more than 52,000 employees to man, among other things, the 327 official ports of entry in the United States and 15 Preclearance offices in Canada and the Caribbean. CBP is also responsible for guarding nearly 7,000 miles of land border the United States shares with Canada and Mexico. At the same time CBP does all of that, they must also work to facilitate the movement of legitimate trade and travelers, as the agency processes all people, vehicles and cargo entering the United States. According to CBP's website, on a typical day in fiscal year 2008, CBP processed approximately 1 million passengers and pedestrians; 70,000 containers; and 331,000 privately owned vehicles. 

CBP has four primary programs to receive and address customer complaints. These programs are explained in CBP's Fact Sheet, which include the Passenger Service Manager program, Comment Cards, Customer Service Centers, and Port Director or Supervisor direct response program. In addition to these programs, CBP has separate procedures for submitting a complaint, reporting officer misconduct, discrimination, and illegal activity. Each program has different procedures for receiving and handling complaints. Alternatively, complainants may contact a CBP Public Information Officer by telephone at 703-526-4200. You can also see a list of questions and answers relating to the complaint process.

Travelers are encouraged to visit CBP's website to avoid delays.  On their website travelers will find useful information like CBP's Top Ten Traveler Tips and the Traveler's Checklist along with a very handy "Know Before You Go" manual for U.S. Residents.  For those family members (and we all have them - I think), that try to sneak in "empanadas" "quesitos" and a host of other native delicacies and traditional herbs and remedies, you might want to point them to CBP's list of prohibited foods and other products. 

Hopefully none of the readers have to through what my clients went through, but if they do, you now know where to go.  Safe travel to all.

Custom and Border Protection (CBP) Revokes Notice to Appear (NTA) for Client Returning From Trip Abroad

Our law firm recently worked with Customs and Border Protection (CBP) to have them return our client’s alien registration card or “green card” and to have them revoke the Notice to Appear (NTA) which had placed our client erroneously in removal proceedings. Our client was returning from a trip abroad and was detained upon inspection when their system showed incomplete information regarding a past criminal matter that did not result in a conviction.

The whole ordeal began when our client was returning from a short trip abroad. Like many times before, she presented her alien registration card or "green card" to the CBP officer upon disembarking the plane. This time though, she was in for an unpleasant surprise. As the CBP officer reviewed his computerized system, he noticed a "hit" or arrest in our client's background and placed her in secondary inspection. Secondary inspection is a separate, more thorough screening that normally lasts several hours. During this secondary inspection, the CBP officers involved misread the information on their computer, and instead of inquiring further with their legal department, they confiscated our client's green card and issued a Notice to Appear (NTA) which basically placed our client in removal proceedings.

When our client first came to see us she was understandably upset about the entire situation. Upon further review of her case, and close examination of her record, we determined that there were in fact no convictions and therefore the NTA should not have been issued. We contacted CBP and for the next several days corresponded back and forth until the issue was resolved in favor of our client. The NTA was ultimately revoked and our client got her green card back.

On a recent blog we discussed the dangers lawful permanent residents face when traveling abroad when they have previous criminal convictions. We encourage our readers to review that entry as it outlines factors that LPRs should consider before traveling. LPRs that have been arrested in the past but never convicted should travel with a certified copy of the Final Disposition Record. However, it is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. Thus, a person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. We will discuss the immigration definition of what constitutes a conviction on a different post. LPRs that are not sure whether they have a conviction for immigration purposes are urged not to travel until they have an experienced immigration attorney review their record.

PLEASE NOTE THAT THE RESULTS OF PAST CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN FUTURE CASES.

Attention Lawful Permanent Residents With Past Criminal Convictions: Your Trip Abroad Might Just Be The Last One

Lawful Permanent Residents with past criminal convictions should think twice before traveling abroad. Every year the Department of Homeland Security (DHS) removes scores of LPRs that were detained and placed in removal proceedings upon their return from a trip abroad. At a minimum, prospective LPR travelers should seek the guidance of an experienced immigration attorney to determine whether their particular conviction subjects them to removal from the U.S.

Although traditionally an LPR was not deemed to make a new admission into the U.S. upon his or her return if the trip was "innocent, casual, and brief", presently Congress has defined when an LPR will be regarded as seeking a new admission. This issue of "admission" is significant for an LPR who would not be subject to removal from the U.S. but who might be inadmissible upon their return from a trip abroad.

An LPR will be regarded as seeking a new admission if he or she has committed a criminal offense under the provisions of the Immigration and Nationality Act (INA) that deal with the criminal grounds of inadmissibility. The process normally works as follows. An LPR is returning from a trip abroad and presents his green card (I-551) to the Customs and Border Protection (CBP) officer in order to be admitted. The officer reviews his/her computerized system and notices a “hit” or arrest in the person’s background. They place the LPR in secondary inspection which is a separate, more thorough screening that normally lasts several hours. In this secondary inspection the LPR is questioned about, among other things, the arrest or conviction at issue. While the LPR is waiting in the secondary inspection area, CBP officers are reviewing their data and checking with their supervisors whether they have enough to charge the LPR under one of the grounds of inadmissibility. If CBP confirms that the prior conviction is not a ground of inadmissibility, they will release the LPR and return the alien registration or “green card” back to him or her.  The LPR being released should not expect an apology from CBP - none will be forthcoming unfortunately.  Also, the LPR being released should not expect not to go through the same procedure next time around. If CBP believes that the conviction renders the LPR inadmissible, or they simply can’t confirm whether it is or not, they will confiscate the alien registration card, and issue the charging document which is the Notice to Appear (NTA). The LPR is now placed in removal proceedings, and if not subject to mandatory detention, will be released to await his or her hearing before an immigration judge.

Keep in mind that the fact that an LPR with a criminal background has managed to travel back and forth for a period of time without being detained is no protection or guarantee at all. I’ve had several clients that have traveled for years without being detained, until their last trip when the CBP officer noticed their arrest and conviction. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. An LPR is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. An individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can and will be removed, depending on the nature of the conviction.

An LPR with a criminal background should weigh his or her options carefully before traveling abroad. At a minimum the person should seek the assistance of an immigration attorney in order to make an informed decision about their travel plans.  Being aware of the possible consequences gives the LPR an opportunity to not only make an informed decision, but to prepare accordingly.