ICE Denies FOIA Request From Lawyer Because It Might Help Her Better Defend Her Client
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.
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Filed Under: foia, ice, transparency
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Classic government doublespeak.
Then it's clear the ICE doesn't understand what justice is.
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"ICE doesn't understand what justice is."
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Re: Classic government doublespeak.
That's what a plain English reading of the laws (common, statutory and constitutional) would indicate they require.
Alas, our courts are so corrupt that they don't even think of it as corruption anymore. As if bribery were the only form of corruption possible, and as long as they avoid bribes they can't possibly be corrupt.
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Re: Re: Classic government doublespeak.
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Re: Classic government doublespeak.
Don't see "justice" there, do you?
What seems to be overlooked by the author and most of the commenters is that the attorney's client is not pending a court hearing. She is a fugitive. It was in the response the attorney received from FOIA, and is not refuted anywhere in her filing to the court. Once the respondent is in custody and/or immigration proceedings, that attorney is entitled to have access to the entire A-File.
Let's look at it another way: you're a cop chasing a serial killer on the run. You get a FOIA request from someone claiming to be the fugitive's lawyer asking for everything you have on them. Are you going to just turn over everything you have, informants, operating procedures, possible leads? Or are you going to say, "nope!", at let the lawyer have everything once the fugitive is in custody?
Same thing here. Sanchez is on the run, and once she's caught or turns herself in, she'll get her day in court and applicable rights.
The lawyer, imo, is just create a smokescreen around the fact that she was told to wait her turn and, based on the clause in the filing about attorney's fees, trying for a payday.
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Re: Re: Classic government doublespeak.
"You're a fugitive" is not one of the reasons a government agency is permitted to deny a FOIA request. ICE is making up law here.
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Re: Re: Re: Classic government doublespeak.
5 U.S.C. § 552(b)(7)(A), states that exemption is allowed for the "withholding of a law enforcement record the disclosure of which would reasonably be expected to interfere with enforcement proceedings. This exemption protects an active law enforcement investigation from interference through premature disclosure" (http://www.foiadvocates.com/exemptions.html).
There is a two step analysis that will more than likely be the subject of the majority of the case when it is heard, but this is not new law. I suspect the lawyer already knows this, but is going to argue the details.
That being said, as I've stated before, the respondent and her lawyer will have the opportunity to examine the file, once she is no longer considered a fugitive.
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Re: Re: Re: Re: Classic government doublespeak.
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The Heavy Hand of Justice
You will note that I am not holding my breath at the moment.
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Whatever happened to respect for the law?
What has happened to turn our government officials into bandits?
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Re: Whatever happened to respect for the law?
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Re: Re: Whatever happened to respect for the law?
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Re: Re: Re: Whatever happened to respect for the law?
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Re: Whatever happened to respect for the law?
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Re: Whatever happened to respect for the law?
That is the problem! All other concerns are secondary. As George Washington said... citizens have a penchant for enduring government corruption until it reaches a breaking point. For some like the BLM this has already occurred, however for most it has not.
Every Nation gets the Government it Deserves!
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Re: Re: Whatever happened to respect for the law?
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Re: Re: Re: Whatever happened to respect for the law?
Altruism has always been very hard to come by. In order to get "The People" to rise up, enough have to be harmed to get them to see the benefit in the effort of stopping the Tyranny.
Right now, most can still go to work and enjoy a safe and peaceful home life, so there is no reason for them to make the effort to help prevent the government from putting innocents in jail, robbing citizens left and right of property, murdering, or harassing citizens.
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Re: Re: Re: Re: Whatever happened to respect for the law?
There you go, that's why. These are not the only people who think that way.
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Re: Re: Whatever happened to respect for the law?
You're always quick to say the public had it coming when the subject of government abuse of power or something similar comes up, but I don't think I've ever seen you suggest what could and/or should be done to fix the problem, so by all means tell us poor peons what we can and should do to fix a system broken and corrupted from top to bottom.
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Re: Re: Re: Whatever happened to respect for the law?
https://en.wikipedia.org/wiki/Kshama_Sawant
The trick is to be willing to support them. I'm not a fan of socialism but I'm learning a lot from Kshama's experiences. Basically, you need to be part of a popular movement for change, and be willing to put the time and effort into being part of that change.
What typically happens is that people outsource solutions to politicians instead of actively taking part in political processes, e.g. attending meetings, etc. Then they're all surprised when Golden Joe turns out to be a prat on the take, just like all the others. Politicians are like dogs, you need to keep them on a short chain and be willing to tug hard on it when they make a mess.
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Re: Whatever happened to respect for the law?
Basically it kicked off a right-wing takeover predicated on Red Scare politics. The results you see are what happens when people don't so much stick to the program but take it to its logical extreme. It's why we have such polarisation and why corporations are pretty much running the planet. I'm fairly sure Powell would be horrified by what he has unleashed if he was aware of it.
Think about it: if you have to keep taxes low per small government doctrines and Red Scare politics, but you're still expected to deliver a particular service, the service itself becomes dedicated to a) self-perpetuation and b) collecting the revenues required to perpetuate it.
Add to that the corporations willing and able to take advantage of this dysfunction to advance their own agendas (to fleece us like sheep) and honestly, I'm surprised that you're surprised.
The solution is to stop drinking the Kool Aid and start challenging what you're told if the underlying aim appears to be to turn you against a particular individual or group or to scare you into accepting the status quo.
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It would explain so much...
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Re:
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easy challenge?
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Illegal Justice
However, be an American by birth, and desire to leave, and the government, by default, will take almost everything you own and look for every way possible to prevent you from leaving. This isn't 'America the Great', it's 'America: The New Concentration Camp', and it's thanks to bleeding hearts for illegal invaders that a lot of this has happened.
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Re: Illegal Justice
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Re: Illegal Justice
wannabe who uses a fake name
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What a joke. Everyone thinks Trump is crazy for building a wall, but we already have a fence. What is the difference.
Illegal aliens are illegal. Want to solve the immigration problem? Just enforce the laws that are on the books. No new laws need to be written, just enforce the law.
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Re:
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Why is it that people believe that law has meaning?
If we enforced all laws, every soul considered competent (and many who aren't) would be in prison. Perpetually.
Only prosecutorial discretion and the lack of interest by officials keeps you free.
So if you're calling someone else illegal or demanding laws be enforced, you better be doing so from behind bars or another nation. Or the only reason you're where you are is because law isn't being enforced.
Get it?
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Re:
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Re:
Clerical error?
Then what, genius?
Fuck it?
Deport them anyways?
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Re:
You seem to think everyone's guilty before that's been sufficiently proven.
Douchebag.
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Simple response for the judge
They're turning the court into a sham conviction factory by deliberately withholding relevant documents to hamstring the defense, you'd hope a judge at least would have more respect for the concept of justice and not feel like being a party to that.
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Re: Simple response for the judge
A situation like this, where the documents were necessary to a possibly criminal defense, merits an immediate dismissal with prejudice of any and all charges, and serious fines and jail time for the people - not the agency, the people - who refused to turn them over, followed by massive fines to the agency for the same thing.
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Re: Simple response for the judge
My guess is that these agencies are ganbling on their likelihood that they'll get a friendly judge, rather than one who still has dignity and a modicum of decency. I suspect they're waging on good odds.
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Lost Paperwork.
http://www.chugh.com/newsroom/1009-Immigration-Updates---December-2014.html
http://blog.htp-usa. com/files/2011/11/I-941.jpg
In other words, the U.S. Citizen and Immigration Services/U.S. Immigration and Customs Enforcement alleges that Counselor Smith's client over-stayed her visa, and the client claims she did not, and Counselor Smith wants to obtain the records of repeated officially permitted arrivals and departures to prove that there was a paperwork error.
In other words U.S. Citizen and Immigration Services/U.S. Immigration and Customs Enforcement is attempting to cover up the fact that its clerks are inefficient, and are not able to maintain correct records. Clerks who are employed to type in paperwork sometimes hide or destroy the paperwork as a means of avoiding work. It is a commonplace of office life to find that someone has done that with a bunch of order-blanks, and that customers are distinctly unhappy.
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Re: Lost Paperwork.
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No paper trail, no legitimacy.
Part of due process is Habeus Corpus, the right of the accused to understand in detail the crimes for which he is accused, and the legitimacy of the court and enforcing bodies to act to deprive him of life and liberty.
So yes, it is necessary for a fugitive to have full access to his files, those files, and the fugitive's access to them are the what declares that person a fugitive. If those files are lost by the state or inaccessible to the public, the fugitive is an ordinary person, and his detention becomes extrajudicial.
Persuing officers are not (or rather shouldn't be) just a bandit gang looking to perform a hit on the behalf of some capo. There needs to be a thorough paper trail that leads all the way back to the laws broken, the evidence showing it was broken by the fugitive, and a preciding judge whose signature authorizes officers to hunt the fugitive down.
These records, and their free and available access to the public without obstruction, is essential to the legitimacy of the state.
The idea that fugitives shouldn't have full access to their files isn't that crazy.
It is if you're wanting to live in a state of laws. Without it, you're living in a state of lords. What our Constitutional framers would call a tyranny.
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Re: No paper trail, no legitimacy.
If we are living in a state of laws, doesn't the person in question have an equal responsibility to follow the law? Withholding details of an investigation that would assist a fugitive in further avoiding her legal obligations seems reasonable to me.
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Re: Re: No paper trail, no legitimacy.
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Re: Re: Re: No paper trail, no legitimacy.
In federal cases, all we ever have to go on is the word of the executive branch and the defense until the courts adjudicate. The attorney in this case doesn't appear to be disputing that her client is somehow avoiding proceedings and is therefore a fugitive.
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Re: Re: Re: Re: No paper trail, no legitimacy.
Where did you read that?
In federal cases, all we ever have to go on is the word of the executive branch and the defense until the courts adjudicate.
Right, and isn't it important for the defense to have access to any useful evidence? Why is it OK for the government to make up reasons to deny documentation? Note that ICE did not cite any of the allowed reasons to deny a FOIA request, they made up one of their own that isn't in the Freedom of Information Act.
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Re: Re: Re: Re: Re: No paper trail, no legitimacy.
You make a good point about ICE not citing one of the allowed reasons - especially since there is an exemption for law enforcement records that would seemingly cover the government's concerns about not assisting a fugitive.
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Re: Re: No paper trail, no legitimacy.
If that was the case then law enforcement would merely have to decide that someone was not participating in due process proceedings in order to deny anyone of the public access.
However, you appear to be stating that a fugitive has a right review every piece of information the government has collected against her before deciding whether or not she will turn herself in or appear in court.
I'm saying exactly that. If not, then all law enforcement need do is state (not prove) someone is a fugitive in order to deny them their right to Habeus Corpus.
As demonstrated by the abuse by police of good faith exceptions in order to secure unreasonable searches, or civil forfeiture laws in order to unreasonably seize property, there is no reason we should give anyone in the DoJ the benefit of doubt. They will abuse any exception we give to allow them circumvention of due process.
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Re: No paper trail, no legitimacy.
Agreed. So, once she IS in custody (or at least turns herself in), and NO LONGER a fugitive, she will be informed of those facts. The applicable phrase being "a person under arrest", ie, in custody or whose whereabouts are known to the court.
Or are you saying that someone who has committed, or at least accused of, a crime can't be considered a fugitive until a government official explains to them, in person, that they're a fugitive and why?
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Re: Re: No paper trail, no legitimacy.
Fugitive: Running away or fleeing, as from the law. (http://www.thefreedictionary.com/fugitive)
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Re: Re: No paper trail, no legitimacy.
If you're lucky, none of the marshals will fear for their safety, and you'll know not to resist, lest they perforate your nice clothes.
Heck Dotcom is a fugitive having never stepped foot on US soil, because he's providing legal resistance to extradition. We're already seeing how fugitive is turning into a catch-all to deprive human beings of life and liberty.
So, yes. Someone accused of a crime should be able to have access at any time to the records that detail how and by whom he is accused and what evidence informs the warrants against him.
Always.
Or we're back to the state of lords, in which people in nice suits get to choose who does or doesn't retain life and liberty at any time.
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Re: Re: Re: No paper trail, no legitimacy.
It's what should be.
Obviously, it's not what is, and the integrity of our nation suffers for it.
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Re: Re: Re: Re: No paper trail, no legitimacy.
If, however, I fled after I allegedly committed a crime and was not in custody, I would considered a fugitive. Until I were captured, at which time, guess what? I have the right to Habeas Corpus and can see exactly why I'm in custody. Clear enough yet?
B) No one is denying Sanchez or her lawyer the opportunity to examine the documents in the case. At the appropriate time, ie, when she is not actively fleeing from the appropriate authorities, ie, not arrested or in custody, ie, not a fugitive.
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Re: Re: Re: Re: Re: No paper trail, no legitimacy.
What part of the Freedom of Information Act permits ICE to deny a request on the basis that the requester is a fugitive? And if there is any, did ICE cite that in their denial?
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Re: Re: Re: Re: Re: Re: No paper trail, no legitimacy.
"5 U.S.C. § 552(b)(7)(A), states that exemption is allowed for the "withholding of a law enforcement record the disclosure of which would reasonably be expected to interfere with enforcement proceedings. This exemption protects an active law enforcement investigation from interference through premature disclosure" (http://www.foiadvocates.com/exemptions.html)"
Just in case that is unclear - generally a law enforcement proceeding and/or investigation is when an officer of the law is looking for a bad guy. You know, a fugitive?
Did ICE base their denial on that basis? That's subject to interpretation. I expect that the lawyers are going to be arguing that in court. ICE stated it was their policy to deny information to fugitives, instead of quoting the FOIA exemption verbatim. Like many civil cases (which this is), it's going to come down the interpretation of the judge on the intentions of the parties involved.
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Re: Re: Re: Re: Re: Re: Re: No paper trail, no legitimacy.
Anonymous Coward, Sep 8th, 2016 @ 2:58pm
That was me^
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Re: Re: Lost Paperwork.
If ICE declared you a fugitive, would you believe you're entitled to some evidence that you are in fact violating a law? Or would you believe that you should be deported without any meaningful adversarial procedure?
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Re: Re: Re: Lost Paperwork.
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Re: Re: Lost Paperwork.
Look, we all have periodic to-do's with the tax authorities, because pieces of paper have gone astray, and the tax authorities are generally the most competent of government bureaucrats. Why should immigration be any different?
I decided to see if I could find out something about the client. Spanish surnames work on a different system than English surnames, and are likely to get mangled in translation.
The name stated in the filing,
Marta Alicia del Carmen Orellana Sanchez (Ms. Sanchez)
Would be: Given names: Marta Alicia
Father's family name: Orellana
Mother's family name: Sanchez
Husband's family name:: Carmen
Understandably, she would not use the whole mouthful. I don't know if Sanchez is her preferred name (which would make her a feminist), or if it is just the one the government arbitrarily picked for her, the way it did for both of my maternal great-grandfathers at Ellis Island, circa 1900. At any rate, when I did a Google search, I came up with, for example, a cute girl from Bolivia who is chief cashier (store manager?) in a supermarket in northern Chile. I presume we are not talking about the high school social studies teacher in El Salvador.
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Re: Re: Re: Lost Paperwork.
You make a good point. It is possible, however unlikely, that Sanchez's attorney is simply trying to get the information from ICE to prepare a case for her return to the United States.
I would, however, point out that the lawyer does not dispute the point that her client is a fugitive in her filing. To be fair, and give your point some credence, she doesn't HAVE to address that issue as a point in her argument. It is interesting, though.
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Re: Re: Re: Re: Lost Paperwork.
A second point is this: how do you cease to be a fugitive from American justice in, say, Bolivia, if the United States Government does not want to extradite you, or provide you with travel documents, if the United States Government's attitude is one of "good riddance?" The United States Courts do not operate in Bolivia, nor does the Department of Justice (legally, at least). There is no representative of the United States Government, whom you could turn yourself in to, without that person committing a grave crime under Bolivian law, for which he could be declared Persona Non Grata. In one of the cheat-sheets I looked up, there was a statement that United States consulates do not deal with I-94 matters, which must be resolved by postal or internet correspondence with Washington, DC.
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Re: Re: Re: Re: Re: Lost Paperwork.
ICE: "Our records show your client is a fugitive, so we're not going to give you the papers that would make it easier for her to remain a fugitive"
Attorney Smith: "She's not a fugitive, she lives in South America, here's proof (presents plane tickets, copy of passport, bill, dated photo, something, anything, showing her living there)"
ICE: "Oh! Well in that case, here is what we can provide you"
This is oversimplified, of course.
I cannot, however see it going like this:
ICE: "Our records...(etc)"
Attorney Smith: "She's not a fugitive, she lives in South America, but I'm not going to tell you that and I'm going to sue you!"
By the way, I'd like to direct your attention to the fact that the lawyer requested the entire A-File (a complete record of the alien's case, including immigration detention papers, bonds, notices to appear in court, government evidence (including criminal records), any evidence presented by the alien to immigration court, etc), as well as any and all entry and exit documents after January 2005. This was in addition to the I-94s that were requested.
So again, it's possible, although unlikely, that your scenario could be the case. I doubt it, though.
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Are you a citizen? Have you overstayed your visa? Case closed, ship them out.
We are not talking about Harold and Kumar goes to Gitmo. here. If you overstay your visa, you are breaking US law.
Again, case closed.
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Re:
And there you have it, ladies & gentlemen!
The government is always right.
(And you might want to try the "reply to this" link when replying to a thread. It'll make your comments look slightly more coherent, and apply some context to what otherwise looks like miscellaneous ramblings.)
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