Rooting Around in the Dark: Agencies Refusing to Comply with Dent Motions
Emily Burns
Introduction
The Freedom of Information Act (“FOIA”) is the principal mechanism that allows people to request records held by agencies within the Federal government.[1] In the immigration context, a very common type of FOIA record request is for an A-file, which is a record of every interaction between a non-citizen and an immigration related federal agency.[2]
For people in immigration proceedings, obtaining an A-File allows noncitizens and their lawyers to access information crucial to defending against deportation or gaining immigration benefits, such as entry and exit dates from the United States, copies of past applications submitted to Federal agencies, or statements made to U.S. officials.[3] To obtain an A-File, non-citizens must affirmatively request the file through FOIA from an agency such as United States Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement (ICE).[4] However, one carve-out to this process exists, available only in the Ninth Circuit: Dent motions.[5] Dent motions exist due to the case of Dent v. Holder, where the Ninth Circuit recognized that the government violated Sazar Dent’s right to Due Process when it required Mr. Dent to request his A-File through FOIA rather than summarily handing the file over to him when requested in a prior court proceeding.[6]
Dent v. Holder (2010)
Mr. Dent was born in Honduras. He was an orphan who was adopted by an American citizen at age fourteen and brought to the U.S. in 1981.[7] When the adoption was finalized in 1981, Mr. Dent believed that he had become a U.S. citizen.[8] After receiving two criminal convictions as an adult, the Department of Homeland Security (DHS) brought a removal order against him, finding him deportable due to the two convictions and the fact that he was, in their view, only a legal permanent resident and not a U.S. citizen.[9] Mr. Dent defended against his removal pro se, arguing in part that he was an American citizen.[10] In the first proceeding of the case, the immigration judge allowed for two continuances for Mr. Dent to gather the evidence necessary to prove his adoption, which included proving his mother was a U.S. citizen.[11] With the help of the original lawyer who had handled his adoption case, he was able to produce his adoption decree and school records. However, Mr. Dent was unable to produce his adoptive mother’s birth or death certificates.[12] Mr. Dent argued to the court that the government itself had a record of his mother being a U.S. citizen, stating that she had a U.S. passport and social security number, both of which she would have used to authorize his adoption.[13] The immigration judge found that Mr. Dent had not sufficiently proven his case and ordered him removed.[14]
For the next few years, the case followed a circuitous path. It was appealed to the Board of Immigration Appeals (BIA), remanded back to an immigration judge which again ordered removal, this time on an additional criminal ground, and appealed back to the BIA, which affirmed the immigration judge’s order of removal.[15] Mr. Dent then appealed to the Ninth Circuit, arguing that the government should have given him access to naturalization petitions located in his A-file.[16] During his case’s circuitous path, in which he was trying to prove his mother’s status as a U.S. citizen to prove his own citizenship, the government was sitting on information critical to Mr. Dent’s case.[17] Mr. Dent had, in his first appeal, asked explicitly for assistance in getting a copy of records that would help him prove his and his mother’s citizenship. When the case made its way to the Ninth Circuit, Mr. Dent argued that the government’s failure to provide his A-File in the prior appeal violated his Due Process rights.[18] The government argued that since Mr. Dent had not affirmatively requested his A-File by using FOIA, [19] it had no obligation to produce the file, despite their awareness that the A-file existed and probably contained crucial information for Mr. Dent’s case.[20] The Ninth Circuit found this reasoning unpersuasive. It held that Mr. Dent was statutorily entitled to his A-file under 8 U.S.C. § 1229a(c)(2)(B)[21], reasoning that the statute enshrined a non-citizen’s right to mandatory access to their A-File in removal proceedings.[22]
This holding was “a groundbreaking decision” for advocates; it effectively required the government to routinely hand over A-files to people in removal proceedings who were trying to prove that their presence in the United States was in fact lawful.[23] In practice, immigration agencies have refused to comply with this precedent.
After the Ninth Circuit’s decision, ICE, in a meeting with the American Immigration Lawyers Association (AILA), stated that the agency would only allow Dent’s effects to apply within the Ninth Circuit and that FOIA was the proper mechanism for obtaining an A-file.[24] But even within the Ninth Circuit, agencies have limited Dent’s effectiveness. The BIA held, in two cases originating from the Ninth Circuit,[25] that DHS was not compelled to produce documents within the respondents’ A-files, overturning the immigration judges’ production orders for the A-files.[26]
In 2020, in the Ninth Circuit District Court case of Nightingale v. U.S. Citizenship & Immigr. Servs., a group of noncitizens received class certification to challenge DHS, ICE, and USCIS’s delays in processing A-files, a case in which the agencies collectively admitted they had not complied with FOIA deadlines for A-file requests for at least eight years.[27] During the litigation, the agencies stated that “‘if requested by a respondent in an immigration proceeding (such as a removal proceeding) within the jurisdiction of the Ninth Circuit, government attorneys may provide A-File materials where appropriate,’” effectively transforming the language of 8 U.S.C. § 1229a(c)(2)(B)’s mandated “shall” into a permissive “may.”[28]
It is not surprising, given immigration agencies’ abysmal failures to adhere to FOIA deadlines, that the agencies refuse to comply with a decision that would require them to affirmatively hand over A-files in a timely manner. However, these bureaucratic failures impose dire consequences upon noncitizens. For Mr. Dent, access to his A-File was a critical factor of whether he would remain in the U.S. or be deported back to Honduras, a country plagued by political instability and violence, with “the second highest homicide rate in Latin America and the Caribbean.”[29] ICE and other immigration agencies can alleviate these dangers and Due Process violations by simply handing over A-files, but they actively choose not to. They choose to keep information obfuscated, whether that’s by years-long delays or by refusing to follow established precedent. These actions force courts and non-citizens to “root[]” around in the dark” for information that the government will use against them in their immigration proceedings.
References
[1] Justin Cox, Maximizing Information’s Freedom: The Nuts, Bolts, and Levers of FOIA, 13 N.Y. City L. Rev., 387, 390-91 (2010).
[2] Alien Files (A-Files), National Archives, https://www.archives.gov/research/immigration/aliens (last visited Nov. 17, 2024); 72 FR 1756.
[3] See Nightingale v. U.S. Citizenship & Immigr. Servs., 507 F. Supp. 3d 1193, 1198 (N.D. Cal. 2020); Immigrant Legal Resource Center, A Step-By-Step Guide To Completing FOIA Requests With DHS (September, 2020), https://www.ilrc.org/sites/default/files/resources/a_step_by_step_guide_to_completing_foia_requests_with_dhs.pdf.
[4] Cox, supra note 1, at 390.
[5] Thomas Hutchins, Immigration Pleading & Practice Manual § 2:12.
[6] Dent v. Holder, 627 F.3d 365, 374-75 (9th Cir. 2010).
[7] Dent, 627 F.3d at 368-69.
[8] Id. at 369.
[9] Id. at 368.
[10] Id.
[11] Id. at 386-69.
[12] Id. at 386-69. Mr. Dent’s adoptive mother was born in 1905; in 1911, a fire occurred where her birth certificate and those of the same county were stored causing all birth certificates produced before 1911 were destroyed. Id. at 369. His adoptive mother died while on a trip to Honduras and his adoption lawyer advised him that he would not be able to obtain a death certificate. Id.
[13] Id. at 369.
[14] Id.
[15] Dent, 627 F.3d at 368.
[16] Id. at 370.
[17] Id. at 372.
[18] Id at 372-73. At the time of this first BIA appeal in which Mr. Dent asked for help getting copies of records, Mr. Dent was in jail and his mother was deceased. Id.
[19] Id. at 373-74.
[20] Id at 373.
[21] 8 U.S.C. § 1229a(c)(2)(B) (“In meeting the burden of proof under subparagraph (B), the alien shall have access to the alien’s visa or other entry document, if any, and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien’s admission or presence in the United States.”).
[22] Dent, 627 F.3d at 374.
[23] American Immigration Council, Practice Advisory: Dent v. Holder And Strategies for Obtaining Documents From the Government During Removal Proceedings 1 (June 12, 2012) https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/dent_practice_advisory_6-8-12.pdf.
[24] American Immigration Council, supra note 23, at 4.
[25] In Re: Julio Cesar Lopez Hernandez, A089 653 692, 2012 WL 5473614 (B.I.A Oct. 9, 2012); In Re: Jose Rosario Cuevas, A095 282 946, 2012 WL 1951058 (B.I.A May 7, 2012).
[26] Thomas Hutchins, supra note 5, at § 2:12.
[27]Nightingale v. U.S. Citizenship & Immigr. Servs, 507 F.Supp. 1193, 1195-96 (N.D. Cal. 2020).
[28] Nightingale, 507 F. Supp at 1199 n. 2. Plaintiffs in the case stated that “Dent requests are ‘virtually always ineffective’ because ‘OCC [Office of the Chief Counsel] and DHS have not recognized an obligation under Dent to provide any evidence at all, let alone the entire A-File.’” Id.
[29] Honduras Events of 2023, Human Rights Watch, ,
https://www.hrw.org/world-report/2024/country-chapters/honduras#:~:text=Honduras%20is%20one%20of%20the,of%2038%20per%20100%2C000%20people(last visited Nov. 22, 2024).
[30] Dent, 627 F.3d at 373.
This cite I kept the same instead of accepting your change; it’s the recommended cite from the publisher
You edited this as needed a full case cite, but I think it can be short cited since I’ve spoken about the case throughout?