Class Certified in A-File FOIA Lawsuit: Nightingale v. USCIS

AIC, Oct. 15, 2019

"Today, a federal court in San Francisco certified two nationwide classes of immigrants and attorneys claiming that U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement have a systemic pattern and practice of failing to provide access to immigration case records within deadlines set by the Freedom of Information Act. The case records, known as A-files, contain information about individuals’ immigration history in the United States. This is the first time a court has certified a class in a lawsuit alleging a pattern and practice of violating FOIA.

The plaintiffs in Nightingale v. USCIS, three immigration attorneys and two noncitizens, are represented by the American Immigration Council, the Northwest Immigrant Rights Project, and the Law Offices of Stacy Tolchin. They filed the lawsuit in June seeking to force the agencies to provide timely access to immigration files, which are critical to assessing immigration options in the United States and defending against deportation.

By law, immigration agencies have—at most—30 business days to respond to requests for immigration case files. However, both USCIS and ICE routinely take several months to respond to such requests. At the end of Fiscal Year 2018, USCIS reported a backlog of 41,320 pending requests. As Judge William H. Orrick stated in the decision, “[t]he irony should not be lost on anyone that the agencies that are delaying noncitizens’ right to timely obtain copies of their A-Files are the same agencies pushing to accelerate proceedings in immigration cases.”

Members of the certified classes are individuals who filed or will file an A-file FOIA request with USCIS that has been pending or will be pending for more than 30 business days without a determination, including requests that USCIS has sent or will send to ICE for additional review.

“The government’s routine and excessive delays cause unnecessary emotional and financial hardship for noncitizens left in legal limbo while they wait to obtain their records,” said Emily Creighton, directing attorney with the American Immigration Council. “This ruling allows class members a meaningful opportunity to challenge current practices.”

“USCIS and ICE systematically disregards the clear timelines established by Congress, despite the harm it causes noncitizens who need their immigration files to defend themselves,” said Matt Adams, legal director at the Northwest Immigrant Rights Project.

“The government violates the law by delaying its response to nearly every single FOIA request that I have filed for my clients. There is no other way to obtain those records, so this repeated violation needs to be corrected,” said Zachary Nightingale, an immigration attorney in San Francisco and a plaintiff in the lawsuit. “The illegal delay is particularly harmful to clients in removal proceedings who need access to their own records in order to defend themselves in court. Solving this problem on a class-wide basis will fundamentally improve the whole legal process.”

“By failing to timely provide copies of my clients' files to counsel, the government is effectively limiting my ability to fully represent my clients and needlessly delaying their cases,” said Courtney McDermed, an immigration attorney in Oakland and a plaintiff in the lawsuit. “The delays cost my clients countless hours of frustration and worry. If we could obtain the files in a timely manner, our representation will be more efficient and more effective.”

A copy of the order granting class certification can be found here.

For more information, contact:

Maria Frausto at the American Immigration Council, mfrausto@immcouncil.org or 202-507-7526; or Matt Adams at the Northwest Immigrant Rights Project, matt@nwirp.org or 206-957-8611."