from the government-now-just-making-up-FOIA-exemptions dept
The government doesn't care much for a level judicial playing field. That whole checks and balances thing? It's just getting in the way of speedy prosecutions. Federal and state prosecutors have engaged in routine Brady violations -- the withholding of exculpatory evidence from defendants.
Immigration and Customs Enforcement (ICE) is taking this to a whole new level. It's refusing to turn over FOIAed records to a defendant's lawyer expressly because they could be used to mount a defense against the government's charges. Of course, ICE doesn't say so in those exact words, but the words it does use leave that distinct impression.
The ACLU of Colorado notes that defense lawyers in immigration cases are even more hamstrung than most when going up against the government.
Jennifer Smith, an immigration attorney, filed a FOIA request to U.S. Citizen and Immigration Services (USCIS) for records related to the immigration status of one of her clients. Immigration attorneys have limited discovery options and can generally gain access to a client’s immigration file only by filing a FOIA request.
From the FOIA lawsuit [PDF]:
In order for Ms. Smith to determine what steps, if any, needed to be taken on behalf of Ms. Sanchez, on or around May 22, 2013, Ms. Smith submitted a FOIA request to USCIS.
Specifically, Ms. Smith’s FOIA request sought Ms. Sanchez’s “Complete Alien File (A-File)” and “any and all records of entry into the United States or departures from the United States after January 1, 2005” and “any and all records of I-94s pertaining to this person after January 1, 2005.” This information was necessary for Ms. Smith to properly analyze how best to advocate on behalf of Ms. Sanchez.
ICE doesn't want Smith's client to be advocated for with any sort of skill or competence or even with documents the agency has no right to withhold. It withheld the records in full. ICE stated no applicable FOIA exemption when doing so. Instead, it simply claimed it's standard procedure for it to prevent defendants in immigration proceedings from being defended properly. And it delivered this FOIA GFY after a delay of more than two years.
When USCIS produced documents to Ms. Smith, the 18 pages that had been referred to ICE were blank except for the words “Referred to Immigration and Customs Enforcement” printed at the top. USCIS provided no basis for withholding the 18 pages of documents under any of the FOIA exceptions enumerated above, or for any reason at all. Instead, USCIS apparently takes the position that it satisfied its FOIA obligations by “referring” the documents and FOIA request to ICE for further handling.
On September 3, 2015 (more than two years after the FOIA request was submitted to USCIS), ICE responded to Ms. Smith as follows:
ICE’s records indicate that as of September 3, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts.
ICE doesn't want the defendant to "evade" justice. That's why it's decided it won't allow the defendant's lawyer to view any documents related to her. This is ICE's "practice:" to withhold documents possibly vital to a suspect's defense under the theory -- but not under any actual FOIA exemption -- that the information sought might somehow be used to defend against enforcement efforts. To ICE, files helpful to the defense are little more than getaway cars for fugitive aliens.
By refusing to hand over these documents, ICE hopes to prevent its prosecutions from being slowed by the adversarial process. Smith's lawsuit points out that the agency's "practice" erects obstacles that become almost insurmountable when combined with language barriers and the plethora of federal agencies involved in securing our nation's borders.
ICE’s “practice” of denying access to the FOIA process imposes significant burdens on lawyers who represent non-citizens in connection with immigration issues. In many cases, lawyers cannot effectively represent their non-citizen clients—or even determine whether there is a way to help them—without access to information or records the client may be unable to provide.
Many non-citizens lack familiarity with the immigration system and U.S. law enforcement in general, and do not know or understand the difference between various agencies with which they might interact. The Department of Homeland Security, for example, has several branches that a non-citizen may encounter, but with different roles within the system. These agencies include, among others, Customs and Border Patrol, ICE, and USCIS. Often, noncitizens (and citizen non-lawyers, for that matter) may simply know they are talking to an officer wearing a badge, without understanding what jurisdiction and/or authority that person represents. Thus, anon-citizen’s understanding of a contact with government agents is often insufficient to inform an immigration attorney as to what occurred and the outcome of any agency investigation.
Furthermore, the client may not remember events that occurred long ago, or may not have received mailings or notices from USCIS and/or ICE. In other cases, the non-citizen might be unaware of proceedings that occurred where the non-citizen was not present, or if present, where the non-citizen failed to understand what happened, or the significance of what happened. Or there may be procedural irregularities that a lawyer could discern from the government’s documents that her client, as a layperson, might not recognize. Or, in some cases it is possible that a deportation order issued in absentia that the non-citizen knows nothing about. Or a non-citizen may not know whether a claim of asylum was properly acted on, or was even presented to the proper agency.
As a result, immigrants seeking legal advice may be unable to explain to their attorney which agency they met with, and what type of interaction transpired, and what the legal issues may be. In these circumstances the only way the non-citizen’s lawyer may obtain this kind of information is through a FOIA request. Without access to the FOIA process, a lawyer may have literally no place to start in assisting her client.
"No place to start" is exactly where ICE likes opposing lawyers. Smith and the ACLU are hoping to change this. They're seeking not only a judgment that will force ICE to turn over the requested files, but also prevent it from using its wholly-madeup FOIA "practice" to deny records in the future.