A whistleblower report published today in Government Executive shows how U.S. Citizenship and Immigration Services (USCIS) is circumventing a court order that requires the agency to provide immigrants with their immigration records within the legal timelines.

The revelations state that USCIS has adopted certain practices leading the agency to reject thousands of requests for Alien Files, or A-Files, under the Freedom of Information Act (FOIA) that would have been processed in the past. The whistleblower disclosed to Congress that these rejections allow the agency to lower the number of requests it is processing to avoid the court’s requirement that it substantially comply with the FOIA deadline.

The only way in which immigrants can get their immigration history is by filing a request under FOIA for their A-Files. In June 2019, the Council, along with National Immigration Litigation Alliance, Northwest Immigrant Rights Project, and the Law Offices of Stacy Tolchin filed a lawsuit, Nightingale v. USCIS, on behalf of three immigration attorneys and two noncitizens to ensure USCIS responded to these requests within the 20 business-day deadline, or 30 business days under some circumstances, established by FOIA.

In December 2020, Judge William H. Orrick, of the U.S. District Court for the Northern District of California, granted summary judgment in favor of the plaintiffs. The court ordered USCIS to substantially comply with the statutory timeline for responding to A-File requests moving forward and submit quarterly reports to the court to verify compliance. In its decision, the court highlighted the important role A-Files play in noncitizens’ immigration processes, particularly those in removal proceedings. Unlike in criminal proceedings, the government does not provide noncitizens in immigration court with their records; they must obtain them through FOIA requests.

Prior to Judge Orrick’s order, immigration attorneys, legal representatives, and individual requesters had to wait several months before USCIS gave them their records. In its compliance reports filed with the court, USCIS often reported that it processed approximately 90% of the FOIA requests for A-Files it received under the 30 business-day deadline.

The latest compliance report filed by USCIS claims the agency processed more than 99% of A-File FOIA requests within the statutory deadlines. The agency reported this high completion rate despite the reporting period including the government shutdown and that USCIS previously reported substantial reduction in their FOIA processing office due to DOGE funding cuts.

Now we know how.

What the whistleblower report says

The whistleblower report revealed several strategies USCIS implemented, beginning in March 2024, to reject FOIA requests for A-Files and reduce the number of requests it processed.

One of the first changes adopted to speed up review of A-Files was to apply redactions of forms and other information in the A-files under exemptions allowed by FOIA. USCIS would redact pages in their entirety, even if the document at issue was information provided by the requester themselves, such as birth certificates. The agency also withheld key information from forms such as the I-213, a document that often contains key information about how a noncitizen is arrested by immigration authorities. These over-redactions violate the FOIA.

Another change USCIS implemented was rejecting requests with slight differences between the information included in the request and the information in the A-File. These rejections occurred even if the different information was optionally entered by the requester. For example, the A-File request forms ask for certain “optional” information, which may be submitted by the requester to verify their identity. This optional information includes the name of requesters’ parents. If a requester’s parents used two last names at some point in their immigration history, but the A-File FOIA request only included one, such minor variation led USCIS to close the case rather than produce the records despite the agency locating the A-File requested.

The agency also changed the type of address it accepts as valid to submit a request. Immigration practitioners often use their office address when filing A-File FOIA requests for vulnerable populations such as victims of domestic violence or special immigrant juveniles. The legal representative’s address allows attorneys to protect their clients’ whereabouts and ensure that the records are not sent to temporary residences. The whistleblower reported that USCIS began rejecting requests completed with attorneys’ addresses.

The whistleblower report states that these changes were adopted specifically to circumvent Judge Orrick’s order in Nightingale. Further, the report claims USCIS hoped that by reporting these manufactured compliance rates to the court, Judge Orrick would end the agency’s reporting requirements.

None of these changes were announced or publicized by USCIS before their implementation, ensuring that requests would face rejections rather than giving an opportunity for requesters to adhere to the new policies.

These changes reflect the dozens of stories the Council has received from immigration practitioners from all over the country. In response to these stories, the Council filed a FOIA request on November 25 to find out more about changes to USCIS’s A-File request processing practices. USCIS has not yet produced records in response to this request.

The Trump administration is avoiding accountability and impeding due process

The whistleblower’s revelations are an example of a bigger problem: USCIS is willing to thumb its nose at court-ordered accountability. Judge Orrick’s court order is clear—the agency must make the A-Files available to requesters within the time allowed by the FOIA. The Trump administration, however, seems to have come up with strategies to cook the numbers and mislead the court. In the past, USCIS blamed its lack of compliance on the agency’s limited resources. But this excuse is doubtful given the influx of billions of dollars that the U.S. Department of Homeland Security, USCIS’ parent agency, received as part of the Big Beautiful Bill earlier this year.

In practice, the lack of access to A-Files makes it harder for noncitizens to apply for immigration benefits or defend themselves from removal. It can also lead to delays in adjudications in immigration courts, as immigration attorneys must request continuances of court hearings due to their inability to review their clients’ immigration history.

Denying timely access to A-Files, and the information contained in them, erodes due process, a right guaranteed under our Constitution and a cornerstone of our democracy.