Brian Nicholson, Deseret News
SALT LAKE CITY — Hector Valencia has a deportation hearing June 11. But before he faces an immigration judge, he wants a copy of his complete immigration file to prepare his defense.
His attempt to get the documents from the U.S. Citizenship and Immigration Services under the Freedom of Information Act hit a wall, so he has asked a federal court to compel the agency to provide the documents.
Salt Lake immigration attorney Aaron Tarin blames government red tape and indifference for the delays, which he says create big problems for immigrants facing deportation.
"You just never know when those FOIAs are going to come in," he said. "I've had some come in long after my client was deported."
Tarin said the government plays "hide-and-go-seek" with immigration files. "We can't defend our clients unless we have access to all the evidence," he said.
Furthermore, he said local immigration court judges routinely deny requests to delay deportation for people waiting on their immigration files.
"Right now, it's a losing battle in Salt Lake City with our judges," said Tarin, who doesn't represent Valencia. "It's a total deprivation of due process and constitutional rights."
USCIS spokesman Tim Counts acknowledged the agency has difficulty honoring FOIA requests in a timely fashion and that people are deported before the information gets to them.
"We certainly understand it's an issue," he said, noting USCIS receives more requests than any federal agency. "Some of these requests are very, very complex. They're asking for things that have been stored in caves in Missouri for many, many years."
USCIS processes about 100,000 requests a year and has significantly reduced the backlog the past five years. The agency employs 150 FOIA workers and intends to hire 30 more, he said.
"We have been working diligently to reduce the number of pending cases," Counts said.
Valencia entered the United States from Venezuela on a six-month tourist visa last October. The lawsuit does not explain why he faces deportation, and his attorney, Leonor Perretta, declined to discuss the case at his request.
Valencia, of Layton, faxed the FOIA request from his attorney's office to USCIS on March 26. The agency entered the request into its system April 2, placing it on a "fast track" for individuals scheduled to appear before an immigration judge. It noted the processing time for that track is 34 days, according to court documents.
A letter from USCIS to Valencia says the agency responds to FOIA requests on a first-in, first-out basis. His request was number 660 of 956 pending requests for those in immigration proceedings when he filed the complaint last Wednesday.
According to the law, federal agencies have 20 days to respond to a FOIA request and can extend that 10 days under "unusual circumstances," Valencia's complaint says. Federal courts may intervene if it finds the requested records were improperly being withheld.
"Such a court order is especially appropriate when plaintiff establishes an 'exceptional need or urgency,' such as the need to prepare a defense in immigration proceedings," the complaint says.
Tarin said files might contain critical information such as an I-94 form showing the person entered the United States legally. He said he files an FOIA request for every client.
"I'm constantly surprised at what I find in the alien file," he said.
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