By Attorneys Robert L. Reeves and Jeff L. Khurgel
The Obama Administration wasted no time in assuming its executive role as the leader of the United States. In President Obama’s first week in office, he suspended pending Bush administration federal regulations, attended numerous briefing regarding both foreign and domestic concerns, and—in an action which may be beneficial to many people hoping to immigrate to the U.S.—issued a directive to federal agencies which will ease the ability of individuals to obtain their federal records.
The method by which an individual obtains their federal records is by submitting a request for information under the Freedom of Information Act (FOIA). The FOIA was passed by Congress in 1966 to establish the public’s right to see records and to ease access to those records. An individual is eligible to request their federal records regardless of immigration status. The legislation was passed in the spirit of openness and transparency; the theory being that people should be able to know what their government is doing.
However, the effectiveness of FOIA has been faltering in recent decades. Records requests which should take several weeks, can take years, often at great cost to the requestor. Federal agencies, mired in bureaucratic inefficiency, routinely stall in producing requested documents. Additionally, federal government secrecy—which reached unprecedented heights during the recent Bush administration—has led to an increase in the abundant and seemingly arbitrary classification of documents. As a result, the requestor of records is often left missing vital information.
For individuals hoping to immigrate to the U.S. or to legalize their status if within the U.S., and their attorneys, FOIA requests can be critical. A FOIA request may yield proof of a previously filed petition or application for labor certification, thereby providing the basis for protection under a section of law which helps individuals who are out of status. FOIA requests can also provide copies of documents establishing proof of residency in the U.S., which may be helpful in establishing amnesty or registry eligibility. A request may also yield copies of previously filed asylum or legalization applications, which may help an individual in rebutting government assertions of past fraud.
Realizing the importance and urgency in restoring transparency to the nation’s governance, on January 23, 2009 President Obama directed the Attorney General to issue new guidelines governing FOIA to all federal agency heads. “In the face of doubt,” President Obama wrote to all federal agencies, “openness prevails.” In his directive, the President also stated that all agencies should adopt a “presumption in favor of disclosure” and that such disclosure should be timely.
President Obama’s apparent willingness to uphold the FOIA may be beneficial to many aspiring immigrants. With immigration reform also likely to be a part of his agenda in the future, there is reason for cautious hope for individuals hoping to immigrate to the U.S. or to legalize their status if within the U.S.