United States: Whether immigration judges issue written reasons for decisions made in asylum claims; if this is the case, requirements and procedures for the claimant to request the written reasons, including if the claimant is outside the country

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Use of Written and Oral Decisions by Immigration Judges

The Executive Office for Immigration Review (EOIR), the branch of the Department of Justice responsible for the nationwide administration of the Immigration Courts, issued the Immigration Court Practice Manual, which "describes procedures, requirements, and recommendations for practice before the Immigration Courts" (US 10 June 2013, Sec. 1.1). According to the Manual, immigration judges can render decisions either orally at the hearing or in writing on a later date (ibid., Sec. 1.5(g) and 4.16(g)). Similarly, the US federal regulation on immigration, Title 8 - Aliens and Nationality, states that a "decision of the Immigration Judge may be rendered orally or in writing" (US 2010, Sec. 1003.37). Several sources corroborate that US immigration judges issue written decisions in some asylum cases and give oral decisions in others (Freedom House Detroit 14 July 2014; American Gateways 15 July 2014; AILA 16 July 2014).

In correspondence with the Research Directorate, a senior counsel for the Refugee Protection Program of Human Rights First (HRF), a New York-based human rights NGO that offers a pro-bono legal program to assist asylum seekers (HRF n.d.), explained:

U.S. immigration judges issue a written document describing the decision made in all asylum cases, but they do not typically issue the reasons for that decision in writing. In most asylum cases, immigration judges issue oral decisions. In many cases they rule from the bench at the conclusion of the evidentiary hearing; sometimes they will reserve decision and reconvene the parties at a later date in order to issue an oral decision.

...

Where the judge issues an oral decision, a written order is given to the parties, but that form (typically a two-page document) simply summarizes the outcome-whether the respondent was ordered removed, granted voluntary departure, etc., and, with respect to any applications for relief from removal (including asylum), whether these were granted, denied, or withdrawn, and whether either side reserved the right to appeal. (HRF 15 July 2014)

Sources corroborate that, for oral decisions, claimants are given an order showing if their claim was granted or denied, but it does not specify the reasons for the decision (Freedom House Detroit 14 July 2014; American Gateways 15 July 2014; AILA 16 July 2014). In a telephone interview with the Research Directorate, a general counsel for American Gateways, an Austin-based NGO that provides immigration legal services to asylum seekers (American Gateways n.d.), said that the document is a one-page order and that it is a form, often with standard wording (ibid. 15 July 2014).

The Senior Counsel for HRF said that immigration judges may also choose to issue written decisions, meaning "written analysis of the facts and the law and of the reasons for the outcome in the case," but that this happens in a "minority of cases" (HRF 15 July 2014). In correspondence with the Research Directorate, the chair of the Asylum and Refugee Committee for the American Immigration Lawyers Association (AILA) also said that most decisions are rendered orally (AILA 16 July 2014). She explained that immigration judges will usually issue written decisions in cases in which the judge "needs to complete additional factual or legal research prior to issuing a decision or if there are particularly difficult issues involved in the case and the judge needs more time to consider them" (ibid.). In these cases, she noted, the claimant receives both the written decision and the written order by mail (ibid.). According to Title 8 - Aliens and Nationality, if the decision is in writing, it is served on the parties by first class mail (US 2010, Sec. 1003-37).

Sources indicate that US immigration hearings are recorded electronically, including oral decisions (US 10 June 2013, Sec. 4.10(a).; HRF 15 July 2014; AILA 16 July 2014). Sources indicate that if the decision of the immigration judge is appealed, the hearing is transcribed and the transcript is sent to the parties (US 10 June 2013, Sec. 4.10(b); Freedom House Detroit 14 July 2014; American Gateways 15 July 2014). In a telephone interview with the Research Directorate, a Senior Attorney with Freedom House Detroit, an NGO that provides comprehensive services to asylum seekers, including legal assistance (Freedom House Detroit n.d.), said that it takes approximately three to four months for claimants who appeal to receive the transcript of the immigration court proceedings (Freedom House Detroit 14 July 2014). She said that in her experience, this procedure is "automatic" and claimants making an appeal do not experience difficulties receiving the transcript (ibid.).

Sources indicate that in asylum cases in which the decision is not appealed, the oral decision is not transcribed (HRF 15 July 2014; American Gateways 15 July 2014; AILA 16 July 2014).

The Immigration Court Practice Manual states the following regarding documents that are kept on file by the EOIR in cases before the Immigration Courts:

The official file containing the documents relating to an alien's case is the Record of Proceedings, which is created by the Immigration Court. The contents of the Record of Proceedings vary from case to case. However, at the conclusion of Immigration Court proceedings, the Record of Proceedings generally contains the Notice to Appear (Form I-862), hearing notice(s), the attorney's Notice of Appearance (Form EOIR-28), Alien's Change of Address Form(s) (Form EOIR-33/IC), application(s) for relief, exhibits, motion(s), hearing tapes (if any), and all written orders and decisions of the Immigration Judge. (US 10 June 2013, Sec. 4.10(c))

2. Procedures for Requesting Asylum Records from the Immigration Court

The Immigration Court Practice Manual states that "[a]s a general rule, parties may only obtain a copy of the record of proceedings by filing a FOIA [Freedom of Information Act] request" (US 10 June 2013, Sec. 12.2(a)(i)(B)). The Senior Counsel for HRF and the General Counsel for American Gateways corroborate that claimants can request copies of their records by making a FOIA request to the Department of Justice (HRF 15 July 2014; American Gateways 15 July 2014). According to the Chair of the Asylum and Refugee Committee for the AILA, the procedure is to file the request with the EOIR section of the Department of Justice (AILA 16 July 2014).

The Immigration Court Practice Manual indicates that the EOIR does not have an official form for FOIA requests and that requests must be made in writing (US 10 June 2013, Sec. 12.2(b)(i)). The request should contain the full name and alien registration number of the person and "should thoroughly describe the records sought and include as much identifying information as possible regarding names, dates, subject matter, and location of proceedings" (ibid., Sec.12.2(b)(ii)).

Two sources indicate that there are no time limits for making a request for documents (HRF 15 July 2014; AILA 16 July 2014).

The website of the Department of Justice provides the following contact information for the FOIA branch of the Executive Office for Immigration Review:

US Department of Justice

Executive Office for Immigration Review

Office of General Counsel--FOIA Service Center

FOIA/Privacy Act Requests

5107 Leesburg Pike, Suite 1903

Falls Church, Virginia 20530

703-605-1297 (US Oct. 2013)

The Chair of the Asylum and Refugee Committee for the AILA said that an applicant can seek the recordings of the immigration court proceedings through a FOIA request and may receive an audio CD of the proceedings in response (AILA 16 July 2014). The General Counsel for American Gateways said that her NGO has been able to receive CDs of the hearing through FOIA requests (American Gateways 15 July 2014).

Sources indicate that the Department of Homeland Security (DHS) keeps files on non-citizens in the US known as "A-files," which contain further information on asylum claimants (American Gateways 15 July 2014; HRF 15 July 2014), including documents related to asylum claims that are decided "affirmatively" [1] by the DHS's US Citizenship and Immigration Services (USCIS) (HRF 15 July 2014). For information about FOIA requests for USCIS documents see Response to Information Request USA103925.

2.1 Fees

According to the Immigration Court Practice Manual, there is no fee for filing a FOIA request, but fees may be charged to locate, review and copy files (US 10 June 2013, Sec.12.2(b)(iii)). This information is corroborated by the website of FOIA, which, in addition, explains that there is "usually no charge for the first two hours of search time or for the first 100 pages of duplication" (US Feb. 2011). The FOIA website also notes that if processing a request is expected to exceed US $25, the requester is notified in writing of the estimate and offered a chance to limit the request (ibid.).

According to the FOIA website, in order to protect privacy, if a person is requesting his or her own records, he or she is required to provide certification of their identity (US Feb. 2011). The person is required to provide either a notarized statement or a statement signed under the penalty of perjury confirming his or her identity (ibid.). The American Gateways General Counsel also noted that the person is required to provide a certification of identity to swear that he or she is who they claim to be (15 July 2014).

2.2 Processing Time

The Immigration Court Practice Manual states that FOIA processing times vary depending on the request and the location of the records (US 10 June 2013, 152). While the standard time limit set by FOIA is approximately one month [20 business days], the FOIA website concedes that the time it takes to process the request varies depending on the complexity of the request and the pending backlog at the agency, and that some requests exceed the FOIA one-month time limit (US Dec. 2010). According to the FOIA website, the Department of Justice's EOIR processed 25,190 "basic" FOIA requests in 2013 (US 4 July 2014). Of these, 20,286 (80 percent) were processed within the 20 day limit, 3,280 (13 percent) were processed in 21-40 days, while the remainder took longer (ibid.).

2.3 Requesting Documents from Abroad

The General Counsel for American Gateways did not think there would be any issues with making a FOIA request from outside the US, noting that the requirement to provide a certification of identity can be done from anywhere (American Gateways 15 July 2014). The Senior Counsel for HRF said that it is possible to make a FOIA request where the applicant is outside the United States, but clarified that she has no experience in cases where both the asylum applicant and lawyer are outside the US (HRF 15 July 2014). Further information about procedures for obtaining written decisions from US immigration courts from abroad could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.4 Materials Exempted from Release

According to the Immigration Court Practice Manual, "[c]ertain information in agency records, such as classified material and information that would cause a clearly unwarranted invasion of personal privacy, is exempted from release under FOIA" (US 10 June 2013, Sec. 12.2(d)(i)). In such cases, the same source explains, the sensitive information is redacted (ibid.). The Chair of the Asylum and Refugee Committee for the AILA said that information which is commonly withheld includes information deemed classified to "protect national security or law enforcement priorities," such as whether the asylum seeker has provided "'material support'" to "'terrorist organizations'," which are "extremely broad concepts under the current legal interpretation" (AILA 16 July 2014). For further information about exemptions to FOIA see Response to Information Request USA103925.

2.5 Challenges Obtaining Documents Through FOIA Requests

The Senior Counsel for HRF said that in her capacity working as an attorney in the US she has experienced occasional challenges obtaining documents through FOIA requests, including:

Having the results get lost in the mail

Receiving incomplete files or missing documents

Having documents withheld under exceptions to FOIA without justification (HRF 15 July 2014)

Information about challenges for applicants outside the US to receive documents could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note:

[1] The US asylum system has two different streams overseen by two different government agencies. The chair of the Asylum and Refugee Committee for the AILA explained that there is "both an affirmative process (individuals seeking asylum affirmatively by filing applications with the Department of Homeland Security's US Citizenship and Immigration Services) and a defensive process (individuals seeking asylum in defense of their removal from the US while in removal proceedings before the Department of Justice Executive Office for Immigration Review" (AILA 16 July 2014).

References

American Gateways. 15 July 2014. Telephone interview with a general counsel.

_____. N.d. "About American Gateways." [Accessed 16 July 2014]

American Immigration Lawyers Association (AILA). 16 July 2014. Correspondence from the Chair of the Asylum and Refugee Committee.

Freedom House Detroit. 14 July 2014. Telephone interview with a senior attorney.

_____. N.d. "Services." [Accesed 14 July 2014]

Human Rights First (HRF). 15 July 2014. Correspondence from a senior counsel.

_____. N.d. "Asylum." [Accessed 16 July 2014]

United States (US). 4 July 2014. Freedom of Information Act (FOIA). "Processing Time for Simple FOIA Requests.Department of Justice in 2013: EOIR" [Accessed 4 July 2014]

_____. October 2013. Department of Justice, Executive Office for Immigration Review (EOIR). "Freedom of Information Act." [Acccessed 4 July 2014]

_____. 10 June 2013. Department of Justice, Executive Office for Immigration Review (EOIR). Immigration Court Practice Manual. [Accessed 4 July 2014]

_____. February 2011. Freedom of Information Act (FOIA). "Frequently Asked Questions" [Accessed 15 July 2014]

_____. December 2010. Freedom of Information Act (FOIA). "How to Make a FOIA Request." [Accessed 4 July 2014]

_____. 2010. "Title 8 - Aliens and Nationality." Code of Federal Regulations. [Accessed 21 July 2014]

Additional Sources Consulted

Oral sources: Attempts to contact representatives of the following organizations were unsuccessful within the time constraints of this Response: Heartland Alliance's National Immigrant Justice Center; Northwest Immigrant Rights Project; US - Department of Justice, Executive Office for Immigration Review.

Internet sites, including: American Immigration Council; Americans for Immigration Justice; Factiva; Freedom House; Human Rights Watch; Heartland Alliance's National Immigrant Justice Center; Northwest Immigrant Rights Project.