ICE Won’t Let Attorney See Her Client’s File

DENVER (CN) — In a lawsuit out of a Kafka novel, an immigration attorney claims the federal government won't let her see a client's immigration file because it might help her "evade enforcement efforts."

Jennifer Smith, a Glenwood Springs attorney, sued U.S. Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services in Federal Court, for refusing to respond to her FOIA request.

USCIS told her it had 18 pages of "responsive" documents, but referred her to ICE, which gave her nothing, citing "its 'practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade enforcement efforts,'" Smith says in the Aug. 24 complaint.

"That's insane," a veteran immigration attorney told Courthouse News. He asked that his name be withheld because he has to deal with ICE and USCIS on a daily basis.

There are nine statutory exemptions under the Freedom of Information Act, and Smith details them in the lawsuit. ICE cited none of them when it sent her 18 blank pages in response to her FOIA request.

More than two years after she appealed the refusal, ICE sent her a letter: "ICE's records indicate that as of September 3, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE's practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts."

Smith says ICE's refusal makes it impossible for her to represent her client.

"Lawyers cannot effectively represent their non-citizen clients — or even determine whether there is a way to help them—without access to information or records the client may be unable to provide," the complaint states.

Many immigrants — in fact, most — have little or no information about immigration laws. "Immigrants seeking legal advice may be unable to explain to their attorney which agency they met with, and what type of interaction transpired, and what the legal issues may be. In these circumstances the only way the non-citizen's lawyer may obtain this kind of information is through a FOIA request. Without access to the FOIA process, a lawyer may have literally no place to start in assisting her client," Smith says in the complaint.

She is represented by Daniel Culhane with the ACLU's Denver officer, which office did not immediately respond to a request for comment Monday.

Luis Vera, general counsel for the League of United Latin American Citizens, told Courthouse News that ICE may deny such FOIA requests only if there is an ongoing criminal case that might cause the information to be considered privileged.

"The statute is very clear," Vera says. "If there's an ongoing criminal investigation, they don't have to turn over certain documents. There are certain government privileges on privileged documents, especially internal documents. If it's privileged information, they usually don't have to give that.

"What they do have to give is ... any documents that are excluded from the privileged side of the government. If you request a file on you by the FBI, unless there's an ongoing criminal investigation on you, they have to turn over whatever they have on you."

The USCIS said it does not comment on pending litigation.

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