Summary of State Bar of Texas meeting with top CDJ Consular Officials
May 6, 2009 by Thomas Esparza
Filed under Attorneys
April 24, 2009
Camino Real Hotel - El Paso, Texas
Laura Dogu, Deputy Consul General said:
· Visa floor (1st floor) has 87 windows, USC services floor (2nd floor) has 22 windows
· Goal is to get applicants in and out within one hour (not yet accomplished!)
· City of Juarez is building new holding center next door (to get people off the street), but it’s not done yet. They will eventually have places to sit in this climate-controlled facility, probably parking, and snacks/drinks. They are in talks about whether this facility would organize the appts by hour, and then when CDJ radios over that they’re ready for the next group, this facility would send them over. This is just in the idea stages right now.
· CDJ is largest U.S. Consulate in the world
· PER DAY, CDJ processes 800 to 1200 IVs, 1000 NIVs, 70 to 150 waivers, & 50 to 100 USC services/Federal benefits
· In 2008, CDJ processed 150,000 IVs and 130,000 NIVs (a record year for them) and they caught up on their backlog. This means that all IVs that come through NVC are immediately scheduled for IVs in CDJ.
· CEAC form DS-160 has been released recently – being used in CDJ for NIVs (but NOT for Ks! K1s are to continue bringing duplicate DS-156s and DS-156K and K3s are to bring duplicate DS-156s.)
· Eventually they want to make the DS-230s electronic, but not yet.
· Applicants are to arrive 15 mins prior to time of IV. They have a problem with applicants/family members standing in crowds in front of the Consulate – Attys should encourage clients NOT to arrive more than 15 mins early for IV!! Paseo de la Victoria is a busy 6-lane street (two-way traffic)!
· There are greeters outside to help deal w/the applicants who arrive early. They send them inside to the security office, where they are issued a numbered ticket.
· As of June 1, 2009, all USCs must have a passport (or passport card if traveling by land).
· New CDJ Inquiry form on their website – seems to be working pretty well. If they can’t answer the question right away, they send an email that they are researching the case and will get back to you.
· To reschedule an IV, you must call the CDJ Call Center.
· If you have Qs about a pending I-601, you must contact Warren Janssen’s unit directly (cdj.uscis@dhs.gov).
· CDJ prefers that applicants NOT pay in cash. They would rather the applicants pay with U.S. Postal Service money order or Visa/Mastercard/Discover/Diners/American Express. You can get prepaid credit cards or visa gift cards, and they encourage this. They will take cash, but prefer not to because of security/safety reasons.
· Medical clinics now accept Visa/Mastercard, either credit or debit cards, and prepaid international Visa/Mastercards (no Discover card or Diners card)
· Administrative processing can mean all sorts of things. A special team does NIV & IV admin processing. Once the admin processing is done, check the website for your case number, and then you can go back to CDJ to the Info Window at the front of the Consulate.
· Don’t come too early, don’t bring family, don’t bring thumb drives (or any other electronic device)…look at list of items not allowed in, because if you bring them, you have two options: 1) return to your hotel to leave the item, or 2) you lose it! CDJ does not have the capability to hold it for you.
· There is a parking lot across the street in the Centro Comercial. Apparently there are lockers somewhere over there for rent if your hotel isn’t nearby and you have belongings that are prohibited from CDJ.
· Fraud Prevention Unit….all FPUs from Mission Mexico (meaning all the Consulates in MX) now work together. If CDJ has a case in another state in MX, they box up the case and send it to another Fraud unit that’s closer to do the investigation.
· If your case lands in the FPU and it’s a birth issue, CDJ likes to speak with the birth mother. Communicate w/CDJ to schedule an IV for the birth mother to come in and speak with a Consular Officer. (FPU schedules appt.)
Roger Rigaud, Director of NIV Unit said:
· CDJ still processes some Third Country Nationals when renewing H/L/Es, but no more new Es for TCNs.
· Mission Mexico comprises of 11 U.S. Consulates
· Several big changes:
o Switch to DS-160 (since 1/20/09) – responses MUST be in English, must complete form as thoroughly as possible, only need to bring confirmation sheet to NIV. Are still working out the bugs in this form.
o Shift to Applicant Service Center (ASC – the location of the old US Consulate). Right now they have a next-day policy, meaning go in for biometrics at ASC on one day and have NIV the next day. Soon will do same day service. $26 for photo/IV/DHL. Take to NIV: receipt for $26 and receipt from Banamex for $131 NIV fee. Computer Sciences Corp runs ASC. Call CSC to schedule appt for biometrics. Appt takes 9-15 minutes, so applicants can do it on their lunch hour or before or after work. Hours of ASC are 7 AM to 6 PM.
o Administrative Processing: see more info above in Laura Dogu’s section.
o NIV also use the pass back system (DHL), so when the applicant goes to the ASC for biometrics, he/she checks in at the DHL counter to leave an address where the DHL packet can be sent. Right now, it’s only within Mexico.
Santiago Burciaga, Director of IV Unit said:
· Now have Courier (DHL) pass back of docs. Pay DHL after waiver IV and leave Consulate. DHL can only deliver to two DHL offices in CDJ at the moment, but they are working on opening up more options, like to the applicant’s home in MX. DHL’s 800 number tells them which of the two DHL offices in CDJ has their docs.
· Two medical clinics – one at old location, and one at new location. 8-10 doctors and 2 panel psychologists at each one. Are building new medical clinic directly behind the Clinica Medica Internacional (at the new Consular location), but it’s not open yet. The old Medical Clinic will move there once the building is ready. Children ages 2 to 14 must plan to do medical exam FOUR days prior to IV because of TB skin test. TB skin test must be read in 72 hours, which means that they do not do these exams on Thursdays since it would have to be read on a Sunday, and they are not open Sundays. They are open Saturdays though, so they will do child medicals M-W and F.
· If applicant has been arrested, CDJ wants arrest reports AND final court dispositions, not just the court docs.
· If the applicant is 221(g) (missing docs), and if the Officer doesn’t need to speak with the applicant again, can just drop off docs at Info Window at the front of the Consulate, and they’ll get their visa thru DHL pass back.
· See Paul Virtue memo re: 212(A)(9)(c) issues for minors – CDJ is taking a tough line on these minors, unlike before.
· NVC now does all CDJ’s scheduling for initial IVs.
· If a petitioner who is living in MX legally wants to file I-130 for spouse, must do so at the U.S. Consulate that has jurisdiction over where he/she actually lives (in MX), such as MX City, Monterrey, etc. CDJ will accept I-130s if the petitioner lives within their jurisdiction. I-130s filed at the Consulate are usually processed within 30 to 90 days. They do require evidence from PR that he/she is legally living in MX (such as utility bills, rent receipts, etc.)
· Check stateside if a child can derive citizenship from a parent before filing the I-130 and proceeding to Consular Processing. Saves the IV unit time!
· I-601 waivers: If the applicant is denied for an IV because of unlawful presence (or whatever other reason) and qualifies for a waiver, the Consular Officer will give them written instructions on how to file waiver. Call CDJ Call Center 48 hrs after IV to schedule the appt. Day of IV: show confirmation sheet to greeters outside, then go straight to Cashier inside Consular building to pay $545. Then take a number and wait to talk to FSN (Foreign Service National) who will check waiver packet to make sure it is complete. The FSN passes the case on to a CIS Officer who will adjudicate the case the next day. It is currently taking about 4 business days to receive decision by DHL.
· 18 to 20% of cases are found ineligible for an IV
· ~60% are NOT represented by an atty!
· ~85% of petitioners accompany applicant to CDJ (but are NOT let into the Consulate unless specifically requested for some reason)
Warren Janssen, Field Office Director for USCIS (I-601 waivers)
· Added 2 new AOs (Adjudications Officers) to Waiver Unit in 2008. Now have a total of 4 AOs.
· There are 9000 to 10,000 pending referred waivers right now!!!
· International Affairs is building new branch office in Los Angeles solely to help CDJ adjudicate waivers!!!!! Will have 8 new AOs and CDJ will send lots of their pending referred waivers to LA. In future, the LA office will also support other Posts who need assistance with adjudicating waivers, so it is permanent.
· As of 6/1/2009, CDJ will send approximately 4000 referred waivers to the Miami Asylum Office for additional help in adjudicating backlogged waivers. This is just a temporary solution for just a few months whereas the LA office is permanent.
· LA office will have all new hires. Majority of AOs are asylum officers, and all (including Miami office) will receive specialized training in adjudicating waivers. Training to start in a few weeks.
· Goal: process referred waivers within 6 months or less, but might not reach goal until the end of 2009.
· Best to send translations of any docs not in English since the AOs might not speak Spanish. They will try to have at least one in LA that speaks Spanish.
· Pilot Program Same Day/Next Day adjudications is permanent fixture now!
· 50% of cases are approved with pilot program.
· Mexico City has been helping adjudicate backlogged waivers. Approval rate is 30%.
· When FSN goes over waiver packet w/applicant, will ask applicant Qs about unlawful presence dates, and maybe a few other Qs for clarification
· Atty/petitioner will probably NOT be notified if/when case is transferred to LA or Miami
· If we need to mail more evidence of hardship, should just continue to send it to P.O. Box in El Paso, and it should get forwarded on to LA or Miami (wherever case has been TF’d)
· CDJ processes about 100 waivers per day (with 3 Officers) – not enough to keep up with demand. That’s why it’s taking several days to receive decision by DHL.
· 2 month backlog before applicant can get waiver IV (from date of IV)
· 19,000 waivers were processed in 2008.
· An atty asked Janssen what constitutes a good waiver, and he was reluctant to answer, but did give us this:
o Medical issues are typically the strongest factor
o Family ties in the U.S.
o Ability to relocate to Mexico
o Psych evaluations are given some weight (depending on what they cover in the eval)
o Financial issues (when combined with other factors)
Psych issues that stem from separation of applicant and USC/LPR spouse are given less weight than pre-existing psych issues (so if your petitioner has a history of depression, include supporting docs of this!!)
ICE brief about the Orosco v Mukasey Issue at the Bia
April 22, 2009 by Thomas Esparza
Filed under Attorneys
CBP FOIA Reference Guide
April 3, 2009 by Thomas Esparza
Filed under Attorneys
(11/12/2008)
I. Introduction The Freedom of Information Act (FOIA), which can be found in Title 5 of the United States Code, section 552, was enacted in 1966 and provides that any person has the right to request access to federal agency records or information. All agencies of the United States government are required to disclose records upon receiving a written request for them, except for those records that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. This right of access is enforceable in court. The federal FOIA does not, however, provide access to records held by state or local government agencies, or by private businesses or individuals. All states have their own statutes governing public access to state and local records; state agencies should be consulted for further information about them.
This Reference Guide is designed to familiarize you with the specific procedures for making a FOIA request to Customs and Border Protection (CBP). The process is neither complicated nor time consuming. Following the guidance below will make it more likely that you will receive the information you are seeking in the shortest amount of time. This guide also may include descriptions of the types of records maintained by different parts of the CBP, some of which are available through means other than the FOIA.
Initially, it is important to understand that there is no central office in the government which processes FOIA requests for all federal agencies. Each agency responds to requests for its own records. Therefore, before sending a request to Customs and Border Protection you should determine whether this agency is likely to have the records you are seeking. Each agency should have its own FOIA reference guide, so if the records you are interested in are kept by another agency you may wish to request a copy of that agency’s guide from its FOIA office or view it on that agency’s FOIA site on the World Wide Web. Here is a list of the FOIA offices of other agencies.
Other general sources of information about how to make a FOIA request include:
“Your Right to Federal Records,” available for 50¢ from the Federal Consumer Information Center, Department 320JJ, Pueblo CO 81009 or by calling 1 (888) 8 PUEBLO, that’s 1-888-878-3256. The publication can also be ordered on the FCIC website. ( The Federal Citizen Information Center )
“A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records.” This report is published by the Committee on Government Reform of the House of Representatives. It is available from the U.S. Government Printing Office, stock number 052-071-01287-7. It also can be accessed on the World Wide Web. ( The Library of Congress )
In addition, the “Consumer Action Handbook” describes which federal agencies are responsible for specific consumer problems and where to write for assistance. Free single copies of the current Consumer Action Handbook are available by writing Handbook, Federal Consumer Information Center, Pueblo, CO 81009 or by calling 1 (888) 8 PUEBLO, that’s 1-888-878-3256. The handbook can also be ordered on the FCIC website. ( The Federal Citizen Information Center )
The formal rules for the making of FOIA requests to Customs and Border Protection are set forth in Part 103 of Volume 19 of the Code of Federal Regulations. This multiple-volume set is available in all law libraries and federal depository libraries. These regulations also can be accessed on the World Wide Web. ( Title 19- Customs Duties ) However, in most cases this Reference Guide should provide you with the basic information that you will need.
II. Access to Certain Records Without a FOIA Request All agencies are required by statute to make certain types of records, created by the agency on or after November 1, 1996, available electronically. If you have access to the World Wide Web, you will not need to make a FOIA request to obtain access to these records. Such records include: (1) final opinions and orders made in adjudicating cases; (2) final statements of policy and interpretations which have not been published in the Federal Register; (3) administrative staff manuals and instructions to staff that affect a member of the public; (4) copies of records that have been the subject of a FOIA request and that are of sufficient public interest or curiosity that the agency believes other persons are likely to request them; and (5) the agency’s annual FOIA report - which includes such information as the number of requests received by the agency, the amount of time taken to process requests, the total amount of fees collected by the agency, information regarding the backlog of pending requests, and other information about the agency’s handling of FOIA requests. (Such records that were created prior to November 1, 1996, may be inspected in an agency reading room. Here is a listing of Customs and Border Protection reading room locations.)
Customs and Border Protection has a site on the World Wide Web which can be accessed at www.cbp.gov, and which contains FOIA-related information. This site also includes a link to Customs and Border Protection Government Information Locator Service (GILS) site. Another good general source of information can be found under “Publications.”
Customs and Border Protection maintains a FOIA home page. ( FOIA ) This site includes or links to Customs and Border Protection annual FOIA report, various reference materials, information on how to make a FOIA request, and copies of the relevant statutes. Additionally, this site provides links to the reading room which contains the geographic addresses of the conventional reading rooms, as well as links to records required by the FOIA to be made electronically available.
Customs and Border Protection also makes certain information, such as publications, available in paper copy without requiring a formal FOIA request. These types of materials are described here.
A listing of CBP’s major information systems can be found here.
III. Where to Make a FOIA Request Effective October 1, 2007, CBP will open a new Freedom of Information Act (FOIA) office under the Office of International Trade. This new office supports the President’s Executive Order (13392) to improve agency disclosure of information, and the Government-wide initiative to improve FOIA processing and reduce backlog.
The new office will centralize CBP FOIA functions and provide overall management and support to the program. Mr. Mark Hanson will serve as the Acting FOIA Director, and a staff of experienced employees will process FOIA requests. The new FOIA office will also prepare statistical reports for CBP management, the Department of Homeland Security and Department of Justice.
FOIA requests for records that are maintained in national computer systems, and are accessible to the FOIA staff, will be processed from start to finish by the new FOIA office – to include receiving and logging the request, querying and identifying responsive records and exemptions, redacting, and submitting the final response to the requestor. FOIA requests for records that are not maintained in national computer systems, will be received and logged-in by the FOIA office and processing will be coordinated directly with the appropriate office.
Please forward all new FOIA requests to the following address: U.S. Customs and Border Protection FOIA Division 799 9th Street NW, Mint Annex Washington, DC 20001-4501
The phone number for the new FOIA office is (202) 325-0150.
IV. How to Make a FOIA Request A FOIA request can be made for any agency record. This does not mean, however, that Customs and Border Protection will disclose any record sought. As noted above, there are statutory exemptions that authorize the withholding of information of a sensitive nature. When CBP does withhold information from you, it ordinarily must specify which exemption of the FOIA permits the withholding. As a matter of policy, CBP will consider making a discretionary disclosure of exempt information whenever possible. You should be aware that the FOIA does not require agencies to do research for you, to analyze data, to answer written questions, or to create records in order to respond to a request.
Although, as discussed immediately below, certain information may be required from a FOIA requester, no special form is required by CBP. Requests must be in writing, either handwritten or typed. While requests may be submitted by fax, most offices of CBP have not yet developed the capability to accept FOIA requests submitted through the World Wide Web.
In order to protect your privacy, whenever you request information about yourself you will be asked to provide either a notarized statement or a statement signed under penalty of perjury stating that you are the person that you claim to be. If you request information about yourself and do not follow one of these procedures, your request cannot be processed. This requirement helps to ensure that private information about you will not be disclosed to anyone else.
Likewise, files relating to another person regarding a matter that would invade that person’s privacy ordinarily will not be disclosed. For example, if you seek information that would show that someone else (including even your spouse or another member of your immediate family) has ever been the subject of a criminal investigation - or even was mentioned in a criminal file - you will be requested to provide either: (1) a statement by that other person authorizing the release of the information to you which has been signed by that person and either was witnessed by a notary or includes a declaration made under penalty of perjury (using the language quoted in the preceding paragraph), or (2) evidence that the subject of your request is deceased, such as a death certificate, a newspaper obituary, or some comparable proof of death. Without proof of death or the subject’s consent, in almost all cases offices of CBP will respond to a request made for information concerning another person’s role in a law enforcement matter by advising that it will “neither confirm nor deny” the existence of responsive records. Such law enforcement information about a living person is released without that person’s consent only when no privacy interest would be invaded by disclosing the information, when the information is already public or required to be made public, or when there is such a strong public interest in the disclosure that it overrides the individual’s privacy interest.
In making your request you should be as specific as possible with regard to names, dates, places, events, subjects, etc. In addition, if you want records about a court case, you should provide the title of the case, the court in which the case was filed, and the nature of the case. If known, you should include any file designations or descriptions for the records that you want. You do not have to give a requested record’s name or title, but the more specific you are about the record or types of records that you want, the more likely it will be that CBP will be able to locate those records. For example, if you have been interviewed in connection with a law enforcement investigation and you wish to request a copy of the interview report, your listing of the date and location of the interview, and the name of the interviewing agent and subject of the investigation, if known, will be helpful to the office in determining where to search and in determining which records respond to your request. Additionally, you should be aware that CBP ordinarily will use the date upon which they begin a record search as the “cut-off” date for including records.
When a Customs and Border Protection office receives your FOIA request, it ordinarily will send you a letter acknowledging the request and assigning it an initial request number. If you do not provide the necessary information, the office will not process your request, but will advise you of what additional information is required.
Under certain circumstances you may be entitled to receive more information under the Privacy Act of 1974 (a separate federal statute) than under the FOIA. Under the FOIA anyone can request any agency record. Privacy Act requests are more limited and can be made only (1) by U.S. citizens or aliens lawfully admitted for permanent U.S. residence, (2) who are seeking information about themselves, (3) which is in a system of records maintained under their names or other personal identifiers. Even if a request does not mention the Privacy Act, however, CBP automatically treats requests as being made under both the FOIA and the Privacy Act whenever it is appropriate to do so. In this way, requesters receive the maximum amount of information available to them by law.
V. Response Times Under the statute, all federal agencies are required to respond to a FOIA request within twenty business days, excluding Saturdays, Sundays, and legal holidays. This period does not begin until the request is actually received by the FOIA office that maintains the records sought. An agency is not required to send out the releasable documents by the last business day; it can send you a letter informing you of its decision and then send out the documents within a reasonable time afterward.
Some offices of Customs and Border Protection receive thousands of requests each year. Many of these requests require a line-by-line review of hundreds and even thousands of pages of documents. Although the CBP is making every effort to respond to FOIA requests as promptly as possible, in some cases it simply cannot do so within the specified time period. This may be due either to the size of the request or to the fact that the office has a backlog of previously received requests that are awaiting processing. Some offices use “multitrack processing” queues to deal with their heavy FOIA workloads.
Under the FOIA, CBP may extend the response time for an additional ten business days when: (1) the office needs to collect responsive records from field offices; (2) the request involves a “voluminous” amount of records which must be located, compiled, and reviewed; or (3) the office must consult with another agency which has a substantial interest in the responsive material or among two or more other offices of CBP. When such a time extension is needed, the office may notify you of this in writing and offer you the opportunity to modify or limit your request. Alternatively, you may agree to a different timetable for the processing of your request.
When a determination on your request is not made within the deadline described above and you have not agreed to a different response deadline, you may file suit in federal court to obtain a response. If, however, the court concludes that you have unreasonably refused to limit your request or to accept an alternate timetable for response, the court may find that the office’s failure to comply within the statutory time period is justified. The court also may approve a delay if it concludes that the office is experiencing an unexpected, substantial increase in the number of requests received. In addition, the court may excuse the lack of a timely response if the office demonstrates that it has a backlog of requests that were received before yours, that it processes its requests on a first-come/first-served basis, and that it is making reasonable progress in reducing its backlog. In such cases, the court may postpone its consideration of your lawsuit until the agency reaches your request in its processing backlog.
VI. Expedited Processing Under certain conditions you may be entitled to have your request processed on an expedited basis. However, you should realize that whenever a FOIA request is expedited for a particular requester, it results in an additional delay for previous requesters who have been waiting for a response. Therefore, in an effort to treat all requesters equitably, CBP ordinarily will process a FOIA request ahead of others only in cases in which there will be a threat to someone’s life or physical safety, or where an individual will suffer the loss of substantial due process rights if the records are not processed on an expedited bases. In most cases, a request will not be expedited simply because the requester is facing a court deadline in some judicial proceeding. In both criminal prosecutions and civil litigation there is a process known as “discovery,” which gives the parties certain rights to obtain relevant information apart from the FOIA. These discovery rights are usually sufficient to protect the requester’s due process rights. In administrative proceedings that do not include such procedures for obtaining access to necessary information, expedited access may be granted when time is of the essence.
The FOIA also requires that requests be processed on an expedited basis if made by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity. Requests are not expedited under this provision merely because the requester is a representative of the news media. Similarly, CBP also expedites requests when the subject is of widespread and exceptional media interest and the information sought involves possible questions about the government’s integrity which affect public confidence.
A request for expedited processing must be accompanied by a statement setting forth the reasons why your request should be expedited. You should certify that the reasons you have given are true and correct. The office will be required to notify you of its decision about whether to grant expedited processing within no more than ten days after receiving your letter. If the office denies your request for expedited processing, you will be advised of your right to submit an administrative appeal of that denial, which will be handled expeditiously.
VII. Fees There is no initial fee to file a FOIA request and, in the majority of requests made to CBP, no fees are ever charged. By law, however, an agency is entitled to charge certain fees, which depend on the category of requester you fall into.
For the purposes of fees only, the FOIA divides requesters into three categories. Commercial requesters may be charged fees for searching for records, processing the records, and photocopying them. On the other hand, educational or noncommercial scientific institutions and representatives of the news media are charged only for photocopying expenses, after the first 100 pages of copies. Requesters who do not fall into either of these two categories are not charged for processing; they are charged only for record searches and photocopying - and there is no charge for the first two hours of search time or for the first 100 pages of photocopies. CBP currently charges 10 cents per page for photocopying (but no charge for Privacy Act searches). In all cases, if the total fee does not exceed a minimum amount, currently $14.00, CBP will not charge any fee at all.
You may always include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, CBP will assume that you are willing to pay fees of up to $25. If an office estimates that the total fees for processing your request will exceed $25, it will notify you in writing of the estimate and offer you an opportunity to narrow your request in order to reduce the fees. If you continue to want all of the records involved, you will be asked to express your commitment to pay the estimated fees and the processing of your request will be suspended until you agree to do so. You ordinarily will not be required to actually pay the fees until the records have been processed and are ready to be sent to you. If, however, you have failed to pay fees within 30 days of billing in the past, or if the estimated fees exceed $250, you may be required to pay the estimated fees in advance, that is, before the records are processed. If you agree to pay fees and then fail to do so within 30 days of billing, you may be charged interest on your overdue balance and CBP will not process any further requests from you until payment has been made in full. If you agree to pay fees for searching for records, be aware that you may be required to pay such fees even if the search does not locate any responsive records or, if records are located, they are withheld as entirely exempt.
VIII. Fee Waivers If you expect or are advised that a fee will be charged, you may request a waiver of those fees. However, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester. Requests for fee waivers from individuals who are seeking records pertaining to themselves usually are denied under this standard because such disclosures usually will not result in any increase of the public’s understanding of government operations and activities. In addition, a requester’s inability to pay fees is not a legal basis for granting a fee waiver.
IX. Initial Request Determinations Once the office has processed your request and any fee issues have been resolved, the office will send you a written initial determination. In the vast majority of cases, Customs and Border Protection offices will include any documents that can be disclosed along with the determination letter, although in exceptional cases the documents themselves may be sent within a reasonable time afterward. The FOIA provides access to all federal agency records (or portions of those records), except for those records that are withheld under any of nine exemptions or three exclusions (reasons for which an agency may withhold records from a requester). The determination letter will advise you of whether any information is being withheld pursuant to one or more of the exemptions. When a page is being withheld in its entirety, the office usually either will specify the number of pages being withheld or will make a reasonable effort to estimate the volume of the withheld information.
The exemptions authorize federal agencies to withhold information covering: (1) classified national defense and foreign relations information; (2) internal agency rules and practices; (3) information that is prohibited from disclosure by another federal law; (4) trade secrets and other confidential business information; (5) inter-agency or intra-agency communications that are protected by legal privileges; (6) information involving matters of personal privacy; (7) certain types of information compiled for law enforcement purposes; (8) information relating to the supervision of financial institutions; and (9) geological information on wells. The three exclusions, which are rarely used, pertain to especially sensitive law enforcement and national security matters. Even if information may be withheld under the FOIA, the office still may disclose it as a matter of administrative discretion if that is not prohibited by any law and would not cause any foreseeable harm, although the office is not legally obligated to do so. CBP strives to achieve maximum responsible information disclosure through this discretionary disclosure policy.
X. Appeals You may file an administrative appeal if you are not satisfied with the office’s initial response. You may disagree with the office’s withholding of information or you may believe that there are additional records responsive to your request that the office failed to locate. You also may file an administrative appeal if you have requested expedited processing or a fee waiver and the office has not granted your request. You may also appeal a determination that a record does not exist, that a record is not readily reproducible in the form requested, that the requested information is not a record subject to the FOIA, or any disputed fee matter. You should be advised of your right to file an appeal in the initial determination letter sent by the office or in the letter denying your request for expedited processing or a fee waiver. Ordinarily, your appeal must be received within sixty days of the date of the office’s determination letter. This time may be extended if the office failed to notify you of your right to appeal in its determination letter. All appeals must be made in writing and addressed to:
FOIA Appeals Officer United States Customs and Border Protection 799 9th Street NW, Mint Annex Washington, DC 20001-4501
Both the front of the envelope and the appeal letter should contain the notation “Freedom of Information Act Appeal.”
There is no specific form or particular language needed to file an administrative appeal. You should include the initial request number that the office assigned to your request and the date of the office’s action. If no request number has been assigned, it will help if you enclose a copy of the office’s determination letter. Please do not attach copies of released documents unless they pertain to some specific point you are raising in your appeal. You may explain the reasons why you disagree with the office’s action, but a simple statement that you are appealing the decision ordinarily is sufficient. If, however, you are appealing because you believe there are additional records that have not been located in response to your request, you should specify why you think such records exist and, if possible, where you believe they might be located.
Appeals from all offices of CBP are reviewed by an attorney in the Office of Regulations & Rulings. The attorney will ordinarily have available all of the documents processed in connection with your request and will make an independent determination as to whether the office has properly processed your request.
Under the FOIA, the Office of Regulations & Rulings is required to make a determination on your administrative appeal within twenty business days. The Office of Regulations & Rulings may take one of several actions on your appeal. It may affirm the office’s action in full, in which case it will identify which exemptions (if any) have been appropriately claimed. Or it may affirm part of the office’s action (identifying the applicable exemptions), but order the release of other information previously withheld. Finally, under some circumstances, it may return or “remand” the request to the office for complete reprocessing. When a case is remanded, you will have an opportunity again to appeal to the Office of Regulations & Rulings after the office has reprocessed the records if you remain dissatisfied with the office’s action in any respect.
XI. Judicial Review If you still believe that CBP has not handled your FOIA request in accordance with the law after your appeal has been decided, you have the right to challenge the agency’s action in a lawsuit filed in federal court, through the litigation process known as “judicial review.” Before doing so, you ordinarily will be required first to have filed an administrative appeal and to have received a response. If CBP fails to respond to either your initial request or your appeal within the time limits discussed above, however, you may file suit as soon as the time limits have expired.
If you do bring a court action, you may file your suit in a federal district court in any of the following places: (1) where you reside, (2) where you have your principal place of business (if any), (3) in the District of Columbia, or (4) where the records are located, if they are not located in the District of Columbia. If you have waited until you have received an administrative appeal determination, that final administrative response letter will advise you of your right to seek judicial review and will specify where you can do so. You have six years to file suit from the time your right to sue begins. Lastly, please understand that attorneys and employees of CBP are prohibited from giving legal advice to members of the public on any matters, including Freedom of Information Act litigation.
Thomas Esparza, Jr.
A Professional Corporation. Attorney at Law
Board Certified Specialist - Immigration and Nationality Law since 1985.
31 years experience
1811 South First Street, Austin, Texas 78704
512-441-0062
Sign up for my free immigration newsletter, watch my educational videos & read the latest immigration news at my web site. starlightpress.com.
Interim Decision #3637 Matter of Juan Carlos ZORILLA-VIDAL, Respondent
March 30, 2009 by Thomas Esparza
Filed under Attorneys
Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637
768
Matter of Juan Carlos ZORILLA-VIDAL, Respondent
File A045 240 272 - Miami, Florida
Decided March 20, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Outside the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a
conviction for criminal solicitation under a State’s general purpose solicitation statute is a
conviction for a violation of a law “relating to a controlled substance” under section
237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006),
where the record of conviction reflects that the crime solicited is an offense relating to a
controlled substance.
Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), reaffirmed.
Coronado-Durazo v. INS
FOR RESPONDENT: Sandra Echevarria, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kathy Giraitis, Assistant Chief
Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated July 3, 2007, an Immigration Judge terminated removal
proceedings against the respondent. The Department of Homeland Security
(“DHS”) has appealed from that decision. The respondent opposes the appeal
and urges that we affirm the Immigration Judge’s decision. The appeal will
be sustained, the proceedings will be reinstated, and the record will be
remanded to the Immigration Judge for further proceedings.
The respondent, a native and citizen of Colombia, was convicted on
February 26, 2003, of criminal solicitation in violation of section 777.04(2) of
the Florida Statutes, based on his plea of no contest to a charge that he solicited
the delivery of cocaine, an offense in violation of section 893.13(1)(a)(1) of the
Florida Statutes. Under Florida law, the elements of criminal solicitation are
(1) commanding, hiring, requesting, or encouraging another person to commit
a crime and (2) the intent that the other person commit the crime.
Bar v. Marable
Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637
1
Circuit’s in
Dolt, see United States v. Liranzo
decision to be distinguishable, both because the Sentencing Guidelines do not employ the
“relating to” phrase and because the Board was entitled to deference in this context.
v. Gonzales
2
In Coronado-Durazo v. INS, supra
statute precluded the construction placed upon it by
Matter of Beltran.
769
Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), where the record of conviction reflects
that the crime solicited is the delivery of cocaine. We answer this question
in the affirmative and hold that our own precedent decision in
Beltran
Matter of Beltran
237(a)(2)(B)(i) of the Act will be sustained and the Immigration Judge’s
decision to the contrary will be vacated.
We recognize that the Ninth Circuit has adopted precedent that
is directly at odds with our holding in
Matter of Beltran, supra. See, e.g.,
Coronado-Durazo v. INS
the Sixth Circuit has held that the Florida solicitation statute at issue here does
not define a “controlled substance offense” for purposes of the career offender
provision of the United States Sentencing Guidelines, even where the solicited
crime was trafficking in cocaine.
See United States v. Dolt
(6th Cir. 1994). Yet two other circuits—the Second and the Fifth—have
affirmatively upheld the rule of
Matter of Beltran
precedents.
Mizrahi v. Gonzales, 492 F.3d 156, 164-65 (2d Cir. 2007);1
v. Ashcroft
United States v. Dolt, supra
change in nationwide law as to whether a conviction for soliciting the delivery
of cocaine under Florida’s general purpose solicitation statute can constitute a
conviction for violating a law “relating to a controlled substance” within the
meaning of section 237(a)(2)(B)(i) of the Act. On the contrary, the fact that the
more recent Federal circuit court decisions are consistent with
Matter of Beltran
reinforces our continuing view that it was correctly decided and remains viable
outside the Ninth Circuit.
2
Cite as 24 I&N Dec. 768 (BIA 2009) Interim Decision #3637
770
In conclusion, we reaffirm our precedent in
Matter of Beltran
that the respondent’s Florida conviction for soliciting the delivery of
cocaine is a conviction for an offense under State law relating to a controlled
substance that makes him removable from the United States under section
237(a)(2)(B)(i) of the Act. Accordingly, the DHS’s appeal will be sustained,
the removal proceedings will be reinstated, and the record will be remanded to
the Immigration Judge.
ORDER:
the decision of the Immigration Judge is vacated, and the removal proceedings
against the respondent are reinstated.
FURTHER ORDER:
further proceedings consistent with the foregoing opinion and for the entry of
a new decision.
How to File a Freedom of Information Act Request with EOIR
March 21, 2009 by Thomas Esparza
Filed under Attorneys
U.S. Department of Justice
Office of the Director
5107 Leesburg Pike, Suite 2600
Falls Church, Virginia 22041
FACT SHEET
Contact:
(703) 305-0289 Fax: (703) 605-0365
Internet:
October 9, 2008
How to File a Freedom of Information Act Request with EOIR
To file a Freedom of Information Act (FOIA) request with the Executive Office for
Immigration Review (EOIR), your request:
• Must be in writing, either handwritten or typed.
• Must describe the records you seek.
• Must include identifying information such as the full name of the alien whose
records you are requesting, the date and court location of the proceedings, and the
alien registration number (if known).
To request information about yourself, your request must include either:
• A completed
Form DOJ-361
Form G-639), or
• A notarized statement from a notary public who has witnessed your signature on
the request, or
• The following statement, written immediately above your signature on the
request: “I declare under penalty of perjury that the foregoing is true and correct.
Executed on [date].”
To request information about another individual, or on behalf of another individual, your
request must include a notarized statement from that individual giving his or her consent to
release the information to you.
To request information about a deceased individual, your request must include proof of
the individual’s death. (Proof of death may be a death certificate, newspaper obituary, or some
other form of comparable proof.)
For more information see
http://www.usdoj.gov/eoir/efoia/foiafact.htm
further questions, please contact the FOIA Service Center at (703) 605-1297.
–– EOIR ––
Office of Legislative and Public Affairs
How to File a Freedom of Information Act Request with EOIR
Page 2
The Executive Office for Immigration Review (EOIR) is an agency within the Department
of Justice. Under delegated authority from the Attorney General, immigration judges and the
Board of Immigration Appeals interpret and adjudicate immigration cases according to
United States immigration laws. EOIR’s immigration judges conduct administrative court
proceedings in immigration courts located throughout the nation. They determine whether
foreign-born individuals—who are charged by the Department of Homeland Security with
violating immigration law—should be ordered removed from the United States or should be
granted relief from removal and be permitted to remain in this country. The Board of
Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR’s
Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment
cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates.
Executive Office for Immigration Review
