Government Must Provide Copies of an Immigrant’s A-file in Removal Proceedings

Dent v. Holder (9th Cir. 2010) 

Sometimes a case comes along with a decision so obvious and sensible that you wonder why the issue had not been decided the same way earlier.  Dent v. Holder is such a case.  Here, the Ninth Circuit found that an alien in removal proceedings has a right to a copy of his entire A-file from the government.  The A-file is a compilation of documents which the government maintains on an immigrant.  It contains the history of the immigrant’s various interactions with the different government agencies, including DHS, ICE, USCIS, CBP, and the former INS.  The government uses the information in an A-file to enforce immigration laws.  The A-file contains all of the immigrant’s official record materials such as any naturalization certificate, forms and their attachments, photographs, applications and petitions for immigration benefits, biometrics, identity papers, reports of investigations, statements, correspondence, and any memorandum on the immigrant which has been created by a government agency.  If there existed a document which pertains to an immigrant regarding an immigration related matter, it should be in the A-file.  Often times, evidence which the government uses in removal proceedings against an immigrant is found in the A-file.

The case arose because the petitioner was placed in removal proceedings after he had been convicted of an aggravated felony.  He had lived in the U.S. since 1981, after he had been adopted by an American citizen.  Throughout his case, he insisted that he was an American citizen, which made him non-removable.  ICE disputed his contention because he could not establish his citizenship.  ICE also disputed that his adopted mother was an American citizen.  The petitioner claimed that his adopted mother had been issued a U.S. passport (thus making her a citizen), and had filed a naturalization application for him when he was a minor.   He also filed a naturalization application when he became an adult.  All this, he claimed, could be proven with records which the government kept.  He requested his A-file from DHS, but they never delivered the complete file to him, only bits and pieces.  Due to the passage of time and the destruction of records, the petitioner had trouble getting copies of all the documents pertaining to his case from his own sources.  This is a common scenario, as few people keep their records for more than a few years, let alone two decades.

Because he was unable to prove his case, the petitioner was found removable by the immigration judge.  On appeal, however, the government found additional documents from his A-file.  Notably, they discovered the two naturalization applications his mother and he had filed in the 80’s.  Neither of these applications had been acted upon.  If they were properly processed, it would be likely that the petitioner was a U.S. citizen, and therefore, not removable.  More importantly, these documents had always been in the government’s possession.  It could have been easily delivered them to him.

In the past, the government’s position was that it had no obligation to produce an immigrant’s A-file, even in removal proceedings.  The only proximate way to obtain such a file was to file a written Freedom of Information Act (FOIA) request with the appropriate agencies.  Such a request would take many months, as there is a backlog.  Even when produced, a FOIA response may not contain the entire file, as sometimes the government would refuse to produce certain types of documents it deems to be protected or non-responsive to the request. Also, in order to obtain a complete record as possible, it is sometimes necessary to file a FOIA request with several different agencies who may have had contact with the petitioner.

This case does away with the above system.  The court found that, as a matter of law, the government has a duty to produce the entire A-file of an immigrant who is in removal proceedings.  The court agreed with the petitioner that denying him his A-file was tantamount to denying him his due process rights.  The government was able to use information contained in the A-file to remove him, but he is unable to use information in the A-file to defend himself because he does not have ready access to it.  Such a situation invites error and unfairness to the system.  The court pointed out that pursuant to 8 U.S.C. § 1229a(c)(2)(B), Congress provided that an alien in removal proceedings shall have access to any document not considered by the Attorney General to be confidential that pertains to the alien’s admission or presence in the U.S.

There was no reason why the government could not produce the A-file.  None of its contents are secret.  It would not have been much of a burden to copy the file and furnish it to petitioner.  During critical points in the removal proceedings, the petitioner was denied access to documents which would have helped his case.  Likewise, the immigrant judge was not able to make a fully informed decision because he did not have access to the A-file, either.  The entire process, therefore, was tainted with unfairness.  For these reasons, the court ruled that the government had a duty to produce to the petitioner his entire A-file.

From an immigration practitioner’s view, this case is a milestone, and not merely academic.  More often than not, what is contained in a petitioner’s A-file may make or break a case.  Due to the confusing nature of immigration law, many petitioners do not know their status, and what immigration benefits they have been granted.  They often do not know what has been filed on their behalf by sponsors.  To better understand what types of relief is available to a petitioner in removal proceedings, it is necessary to know the documents and information contained in his A-file.  This was not possible in the past.  The government always had more information on the petitioner than he had of himself.  With this ruling, however, the odds have evened out just a bit.

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2 Responses to “Government Must Provide Copies of an Immigrant’s A-file in Removal Proceedings”

  1. humberto andrade says:

    como puedo hacer para obtener el A archivo

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