Court Issues Decision Against Federal Government in Challenge to Withholding of Documents From Asylum Seekers

For Immediate Release
Media Contact: Candice Francis / Communications Director / LCCR / 415.543.9697 x216 / cfrancis@lccr.com 

(San Francisco, CA)– On July 10, 2013, a federal judge ruled that immigration officials have been improperly withholding notes taken by asylum officers to document interviews that are a key part of the asylum application process. The decision came in a lawsuit that charges that the government has been violating the Freedom of Information Act (FOIA) and other federal law in withholding the notes from applicants and their attorneys. In its ruling, the court agreed with the arguments made by The Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and pro bono counsel Davis Wright Tremaine LLP that such notes are not exempt from production under FOIA and that they are crucial to fair representation in immigration proceedings.

The case was brought because the asylum interviews are not recorded, so the notes taken by the Asylum Officers conducting the interviews often provided the only means of understanding what may have transpired during the interviews. This information can be crucial for attorneys when they are representing asylum seekers whose applications are not granted by the Asylum Office. When that happens and the individual does not have lawful immigration status, she is referred for deportation proceedings at the Immigration Court. There, she can renew her application for asylum, but the application will be contested by a government attorney.

Immigration attorney Jeffrey Martins, the plaintiff in the lawsuit, explained why the notes of the interview can be so important at that point, even though there can be mistakes in them. “The notes often reflect misunderstandings on the part of the asylum officer or miscommunications between the officer and the applicant. They can also show where an important line of inquiry was not pursued or fully developed, with the applicant’s eligibility for asylum not coming through well as a result.”

For years, attorneys representing asylum seekers in Immigration Court have used the FOIA to secure the interview notes to better understand their clients’ cases and help them prepare for their hearings. Then the government changed course and started refusing to release the notes, claiming that the FOIA allows it to withhold this material from applicants and their attorneys. Despite this position, the government frequently used the very same notes to oppose asylum in the hearings at the Immigration Court. At that point, the notes were sometimes released to the asylum applicant and her attorney, but by then, they came too late. Evidence that could have been gathered earlier can be difficult and sometimes impossible to secure when hearings are held months and even years after the original interviews.
Robin Goldfaden, a senior immigrants’ rights attorney with the Lawyers’ Committee, explained that the lawsuit is both about access to information and about the principles involved. “The stakes for asylum seekers fleeing persecution are incredibly high. The government’s policy of refusing to produce these documents to applicants and their attorneys is not only wrong on the law. It is also a violation of basic fairness in a process where the wrong outcome can literally mean being sent back to torture and even death,” said Goldfaden.

Thomas R. Burke, a partner with Davis Wright Tremaine LLP, lauded the court’s decision. “The court rightly saw that the Government has no defense for its policy. We hope that the court’s findings will move the Government to reverse course and honor the requirements of the law not just for Mr. Martins but for all attorneys like him.”

The lawsuit, Martins v. USCIS, is before the United States District Court for the Northern District of California. Attorneys for the plaintiff in the case include Robin Goldfaden of the Lawyers’ Committee and Thomas R. Burke and Jeff Glasser of Davis Wright Tremaine LLP.