Updates on Requesting Immigration Court Records From EOIR
The Executive Office for Immigration Review (EOIR) recently made updates to the two processes available for requesting immigration court records with the stated goal of increasing agency transparency and efficiency for those seeking records. The two avenues or processes for obtaining records are through 1) a Record of Proceeding (ROP) request or 2) a Freedom of Information Act (FOIA) or Privacy Act (PA) request. To prevent delays in obtaining records through each process, particular attention should be paid to differences in the following: who can make a request; what information is available through a request; what a request must contain; how a request can be submitted; and how responses can be delivered. Special considerations may apply for requests involving closed or inactive archived cases as well as those that require expedited processing. The two separate processes are described in further detail below.
In March 2022, EOIR significantly updated the ROP request process by allowing an attorney or representative of record, a respondent, or a respondent’s parent or guardian to request case records directly from the immigration court with jurisdiction over a case. An ROP request can be made for audio recordings of proceedings and records from an official case file. This includes all correspondence filed by the Department of Homeland Security or a respondent, and all information sent to or received from the court. Detailed instructions on how and where to submit a request are available on EOIR’s ROP request website. This request may be submitted by postal mail, email, or in person. Responses through this process could be available on the same day requested, particularly for electronic files, except from the Board of Immigration Appeals (BIA) where same-day service is not provided. As a practical matter, the ROP request will likely produce a faster response than a FOIA request for records that exist electronically. The same would apply to any paper records requested from an active or inactive case that is located at the immigration court and not archived at the Federal Records Center (FRC).
The ROP request process is only available to attorneys or representatives of record and not to third parties. However, a respondent who needs to request a copy of their own ROP may find it relatively straightforward to request the file on their own utilizing the new ROP process.
Practitioners should be aware that it may take time for individual courts to implement this process fully and that timelines for responses may vary by court. CLINIC is aware of reports that practitioners in certain jurisdictions have had difficulties obtaining records through the new ROP request process. However, others have reported success with the new ROP request process, including quick processing of the request. In some cases, requesting the ROP through the court has also resulted in the conversion of the paper ROP to an electronic ROP, which can facilitate future filings for attorneys or representatives of record.
Generally, a subject of record or a third-party requestor with authorization from the subject of record may request an EOIR ROP or audio of proceedings through a FOIA or PA process. Additionally, a FOIA request can be made for any agency record, including, but not limited to, EOIR internal policies and procedures. FOIA or PA requests are processed by a centralized unit rather an immigration court.
In August 2021, EOIR launched an online portal Public Access Link (PAL) with the stated goal of streamlining these requests and accelerating processing and delivery of responses. EOIR stated that effective Dec. 1, 2022, it will no longer accept FOIA or PA requests by email; after this date, these requests must be submitted by postal mail or through the PAL online portal. Where records requested concern a case that has is closed or inactive, a FOIA request may produce a faster response than an ROP request if the case file has moved to an archive location at the FRC. Details on what is required for the FOIA or PA process are available on EOIR’s FOIA website. Notably, while EOIR’s website provides information about processing time and how to expedite a request, practitioners have noted serious delays in EOIR’s recent processing of FOIA requests, with the agency taking over a year to produce responsive records
Tips for Practitioners
Which process should be utilized?
A practitioner who is already the representative of record for a case that is currently pending before the immigration court will find the ROP request process to produce quicker results in almost every case. However, this process is not available to third parties, so a practitioner merely considering representation will need to proceed with the FOIA request process or advise respondents that they may obtain the ROP on their own through the ROP request process. Where records requested concern a closed or inactive case that is archived, the FOIA process could produce quicker results. Similarly, those seeking information on internal EOIR policies or procedures will utilize the FOIA process.
Should both processes be utilized at the same time?
If a request concerns records that are not available electronically, it is recommended that practitioners do not file both an ROP request and a FOIA request for the same case at the same time because this could cause delays in the processing of either request.
Is expedited processing available for both ROP requests and FOIA requests?
No. Even though some courts may respond quickly to ROP requests, it should be noted that EOIR did not implement any specific way to expedite an ROP record request. However, federal law requires that agencies provide for expedited processing of FOIA requests. 5 USC § 552 (a)(6)(E). EOIR’s FOIA website outlines how expedited processing of a request requires demonstrating a compelling need such as: (1) imminent threat to the life or physical safety of an individual; (2) an urgency to inform the public concerning actual or alleged federal government activity if the request is made by a person primarily engaged in disseminating information; (3) loss of substantial due process rights; or (4) a matter of widespread and exceptional media interest where there exist possible questions about the government's integrity that affect public confidence.
I requested a full copy of an EOIR court file, but I did not receive any audio recordings of the case hearings. How can I obtain a copy of the audio of proceedings?
A practitioner who needs a copy of the digital audio recording (DAR) of proceedings should specifically ask for the DAR through their ROP or FOIA request, as it may not be produced otherwise.