The U.S. District Court in the Northern District of California granted partial summary judgment, ordering USCIS to respond to Alien file requests in 20 days absent “unusual circumstances.” The Court further found that Track 3 violates a 1992 settlement agreement and was promulgated in violation of the APA and FOIA. The case is Hajro v. USCIS.
The issue here is that Congress did not specifically permit discovery in removal proceedings. However, Congress did indicate that an alien has a right to review his/her alien file. DHS/USCIS have fought back and indicated they are not allowing defense attorneys to simply review the file as the scope of that review is limited by the Freedom of Information Act and Privacy Act. Some judges have held this to be incorrect and ordered DHS to produce the file. Some have agreed with DHS.
That said, the underlying basis for obtaining the majority of the alien file is to file a FOIA request. According to regulation the response must be answered within 20 days. There is a settlement agreement frm 1992 that controls. As USCIS is so far behind and simply cannot answer all the FOIA requests in a timely manner, the adopted a procedure to allow for faster dissemination of the responses for those in removal proceedings; Track 3. The ND CAL held that Track 3 is incorrect and that USCIS must respond within 20 days.
Interesting that President Obama has preached transparency of government and is promoting jobs. It seems like a very simple fix here. Add in an additional hundred or two hundred FOIA responders and comply with the regulations and settlement agreement. Remember, the President does not need Congressional approval for this fix; he's the head of the executive branch and has unfettered control over the agencies in said branch.
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