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Saturday, May 18, 2024 | Back issues
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FOIA Suit Ends Happily for Immigration Lawyer

SAN FRANCISCO (CN) - Immigration officials will no longer fight a lawyer who claimed that quality representation hinged on accessing the notes asylum officers took on his clients.

San Francisco-based immigration attorney Jeffrey Martins sued the U.S. Citizenship and Immigration Services and its director, Alejandro Mayorkas, as well as the Department of Homeland Security and then-DHS Secretary Janet Napolitano under the Freedom of Information Act. While immigration officials made good on some of Martins' recent requests, they specifically withheld the notes officers took at asylum interviews, contained in alien records known as "A-files."

At that time, the agencies had withheld the A-files of 10 of Martins' clients - all of whom face immigration hearings and possible deportation this year. The agencies argued that the interview notes are protected by the deliberative process privilege, therefore exempting them from FOIA requirements.

In July, U.S. District Judge Laurel Beeler ordered the government to hand over the notes, finding officials had failed to show how the deliberative process applies to the A-files. The judge had also credited Martins' claim that the notes are near-verbatim transcripts of the interviews and therefore factual information that falls outside the FOIA exemption.

Since then, immigration officials have produced complete, unredacted sets of the 10 A-files Martins requested. And in exchange for dismissing the suit, Martins and U.S. Attorney Melinda Haag agreed that agents will receive additional training to make sure A-files continue to flow into the hands of immigration attorneys.

"Within three months, USCIS shall instruct officers, employees, and agents involved in the processing of FOIA requests, including those made by plaintiff on behalf of his clients, for A-Files or for asylum officer interview notes specifically, that records reflecting information, instructions, and questions asked by officers and responses given by applicants in asylum interviews shall be produced," the parties state in the agreement. "This instruction will preclude the withholding of such documents on the basis that asylum interview notes are generically protected by the deliberative process privilege by virtue of their status as asylum interview notes. This agreement will not prevent the withholding or redaction of such documents on the basis of any other applicable privilege or FOIA exemption."

Beeler signed off Tuesday on the agreement, which also contains a clause that prohibits Martins from resurrecting his claims with regard to the 10 A-files that have already been produced. Nothing prohibits him from taking the government back to court again if the training is not implemented or if the agencies refuse future FOIA requests, however.

Thomas Burke of Davis Wright Tremaine and Robin Goldfaden from the Lawyers' Committee for Civil Rights of the San Francisco Bay Area represented Martins in the action.

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