Criminal Defense Lawyers

FOIA Requests for Complete A-File Before Individual Hearing

THE A-FILE CONTAINS YOUR IMMIGRATION LIFE STORY

Your A-File — that’s your Alien File, your permanent immigration record — holds every single document you’ve submitted to USCIS since the day you first entered the immigration system. We’re talking about everything. Your I-94 arrival records, your asylum applications, your marriage certificates, your employment authorization documents, every Form I-485 you’ve filed, even that tourist visa application from 15 years ago that got denied. The government keeps it all, in one massive file that follows you through every immigration proceeding. Most people don’t realize: USCIS adds documents to your A-File that you’ve never even seen. Internal memos about your case, notes from interviews you didn’t know were being documented, correspondence between different government agencies about you — it’s all there.

But when you show up to your individual hearing in immigration court, you better have copies of everything in that file. Because if you don’t, and the government does, you’re walking into an ambush. Missing documents from your A-File aren’t just inconvenient — they destroy cases. Removal orders get issued because someone couldn’t produce their original I-94, even though USCIS had it sitting right there in the A-File. The immigration judge won’t care that you never got a copy. They’ll assume you’re hiding something, or that you’re unprepared. Either way, you’re done. According to USCIS’s own guidance, your A-File can contain over 20 different types of documents, and missing even one can derail your entire case.

MOST ATTORNEYS SKIP FOIA REQUESTS – A FATAL MISTAKE

Most immigration attorneys don’t bother filing FOIA requests for their clients’ complete A-Files before hearings. They think they can piece together the case from whatever documents the client saved, maybe request a few specific forms if they’re feeling thorough.

This is legal malpractice waiting to happen.

Because when you walk into that courtroom, the DHS trial attorney has already reviewed your complete A-File — the whole thing — and they’re looking for inconsistencies, missing evidence, anything they can use against you. Look at what happened in Matter of L-A-C-, where the Board of Immigration Appeals upheld a removal order because the respondent couldn’t produce corroborating evidence that was supposedly in their possession. The immigration judge denied the continuance request, saying the respondent should have been prepared. But how can you be prepared to defend against documents you’ve never seen? The BIA’s decision makes it clear: judges have wide discretion to deny continuances, and “I don’t have my documents” isn’t considered good cause.

Immigration courts deny continuance requests in over 40% of cases where missing documentation is cited as the reason.

THE 90-DAY FOIA PROCESSING NIGHTMARE

USCIS loves to advertise that FOIA requests take “approximately 90 days” to process.

Fantasy.

Current USCIS processing data shows average FOIA processing times stretching to 6-8 months, sometimes over a year for complex A-Files. And that’s if they don’t lose your request, which happens more than you’d think. Clients submit FOIA requests three times before getting any response. The Track One expedite system is supposed to help if you have a hearing coming up, but it’s basically worthless. You submit proof of your upcoming hearing date, explain that you need your documents for court, and USCIS… ignores you. They’ll process your “expedited” request in maybe 5 months instead of 8. Meanwhile, your hearing is in 3 months. The math doesn’t work, and USCIS knows it. They’ve created a system where it’s literally impossible to get your own immigration records in time for your hearing, then they let DHS use those same records against you in court.

YOUR HEARING DATE WON’T WAIT FOR FOIA

Immigration courts are scheduling individual hearings 2-3 months out in detained cases, maybe 6-12 months for non-detained. Sounds like plenty of time, until you realize your FOIA request will take longer than that to process. So you file a motion for continuance, explaining that you need your A-File to prepare your defense. The government opposes it, arguing you’ve had “ample time” to gather your documents. The judge looks at the crowded docket, sees 50 other cases waiting, and denies your motion. A 2017 GAO report found that immigration judges face pressure to move cases quickly, with performance metrics that penalize them for granting too many continuances. Your need for documents doesn’t outweigh their need to clear cases. And once that denial comes down, you’re stuck. You can’t appeal a continuance denial until after your final removal order, by which time it’s too late. The damage is done — you went to hearing without your complete file, made arguments based on incomplete information, and now you’re facing removal based on documents you never had a chance to review.

BUILDING YOUR CASE WITHOUT COMPLETE RECORDS

So here you are, preparing for the most important hearing of your life with half the puzzle pieces missing. You’re trying to reconstruct your immigration history from memory, guessing at dates, hoping you’re not contradicting something in a document you’ve never seen. This guessing game is dangerous because any inconsistency becomes a credibility issue. You say you entered on a tourist visa in 2018, but your A-File shows a denied entry attempt in 2017 that you forgot about.

Now you’re a liar in the judge’s eyes.

The prosecutors know this. DHS trial attorneys are specifically trained to exploit these gaps. They’ll ask specific questions about documents they know are in your A-File but not in your possession. When you can’t answer, or worse, when you guess wrong, they pounce. “Your Honor, the respondent claims he’s never been arrested, but Exhibit 7 from his A-File shows a 2019 arrest record.” Your credibility is shot, your case is over, all because of a minor arrest you forgot about and never saw the paperwork for. Strong asylum claims get rejected because the judge decided the applicant was “not credible” based on inconsistencies with documents they’d never seen. The A-File becomes a weapon against you, and you handed them the ammunition by not getting your complete records.

EMERGENCY ALTERNATIVES WHEN FOIA FAILS

When FOIA fails, you need backup plans. InfoPass appointments used to be an option, where you could go to a USCIS office and request copies of specific documents. But USCIS killed InfoPass in 2019, replacing it with a useless online system that doesn’t let you request records.

Some attorneys try subpoenaing their own client’s A-File.

Immigration judges rarely grant these subpoenas, viewing them as fishing expeditions or delay tactics. Third-party document reconstruction means contacting every government agency that might have copies — State Department for visa records, CBP for entry records, local court systems for criminal records. It’s time-consuming, expensive, and you’re still just guessing at what’s in the actual A-File. CBP processes some FOIA requests faster than USCIS, but they only have border-related documents. State Department visa records require a separate FOIA request with its own delays. You’re fighting a multi-front war against bureaucracy while your hearing date approaches.

THE GOVERNMENT’S OWN A-FILE ACCESS

While you’re struggling to get your own records, DHS trial attorneys have complete access to your A-File with a few keystrokes. They log into their system, pull up your entire immigration history, and start building their case against you. Every application you’ve filed, every statement you’ve made to any immigration officer, every piece of derogatory information any government agency has ever collected about you. They know your case better than you do. This information asymmetry is intentional. The government wants you at a disadvantage. They want you fumbling in the dark while they hold all the cards. In any other area of law, this would be a due process violation — imagine a criminal trial where the prosecution had evidence the defense couldn’t access. But in immigration court, it’s standard practice. The Executive Office for Immigration Review pretends this is fair because technically you “have access” to your records through FOIA. Never mind that the process is so slow it’s useless. Never mind that EOIR’s own rules require you to submit all evidence before your hearing.

You can’t submit what you don’t have. But they’ll remove you anyway.

CONSEQUENCES OF PROCEEDING WITHOUT FULL DOCUMENTATION

When you go to hearing without your complete A-File, you’re not just risking losing — you’re setting yourself up for long-term immigration consequences that follow you forever. Every word you say in that hearing becomes part of your permanent record. Every document you submit gets measured against the documents you didn’t submit. If you lose, your appeal options shrink dramatically. The Board of Immigration Appeals won’t consider new evidence that you “could have” presented at your original hearing. Courts of Appeals give extreme deference to credibility findings, so if the judge decided you lied because your testimony contradicted an A-File document you’d never seen, that finding stands.

The specific grounds for appeal that get rejected are brutal.

“Ineffective assistance of counsel” claims fail because courts say your attorney can’t be faulted for not having documents the government made inaccessible. “Due process” claims fail because technically you had the “opportunity” to request your records, even if the timeline made it impossible. “New evidence” claims fail because A-File documents aren’t “new” — they existed all along, you just couldn’t get them. People get ordered removed, barred from returning for 10 years or life, because they couldn’t access their own immigration records in time. They become ghosts in the system, their lives destroyed by documents they never saw. Once you have a removal order based on adverse credibility findings, good luck ever getting any immigration benefit again. That stain follows you forever, poisoning every future application, all because the government rigged the game from the start.