July 25, 2010

Appendix B

Re: Freedom of Information Act Request

Office of the General Counsel Attn: FOIA Service Center Executive Office for Immigration Review 5107 Leesburg Pike, Suite 2600 Falls Church, VA 22041

 

December 4, 2009

 

To Whom It May Concern:

This letter constitutes a request to the Executive Office for Immigration Review (“EOIR”) pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), submitted on behalf of Human Rights Watch (“HRW,” or “Requester”). 

HRW seeks records concerning noncitizens with mental disabilities or mental illness [290] in immigration removal and asylum proceedings from September 1, 2004 until the present. To facilitate EOIR’s search for records and the utility of the information provided, HRW requests that if the information requested is available as electronic data, electronic copies of the data be provided to HRW pursuant to 5 U.S.C § 552 (a)(3)(C).  To the extent that EOIR has not compiled any of the requested information in electronic databases, then HRW requests any other records containing the requested information.  Additionally, if the specific information requested below, or portions of that information, is available in summary or report form, HRW requests access to the summary or report records, rather than the individual records from which that summary data was generated.

Specifically, HRW requests the following records:

 

  1. All records identifying the number of immigration judges that have been employed by EOIR each year since 1996.
  2. All records identifying the number of people who go through an immigration removal or an asylum proceeding each year since 2004.
  3. All records identifying in how many cases immigration judges have refused to accept admissions from noncitizen respondents on the basis of mental incompetence since 2004.
  4. All records identifying the number and/or percentage of cases in which a competency evaluation has been ordered for a respondent by the court since 2004.
  5. All records identifying the number and percentage of cases in which a competency evaluation has been requested for a respondent any of the parties since 2004.
  6. All records identifying the number of cases in which EOIR has conducted a competency hearing since 2004.
  7. All documents, guidelines, communications or protocols for immigration judges indicating the procedures for handling a case where the respondent has or is suspected of having mental disabilities.
  8. All records identifying the number and/or percentage of cases that have been administratively closed due to respondent’s mental illness or mental incompetence since 2004.
  9. All records identifying the number and/or percentage of cases that have been administratively closed for any reason since 2004.
  10. all records identifying the number of individuals whose cases have been administratively closed and who have subsequently been given a competency evaluation.
  11. All records identifying the number of motions to reopen or reconsider that have been filed on the basis of a litigant’s incompetence since 2004, and all records identifying how many of those motions to reopen/reconsider have been granted.
  12. All records identifying the number and percentage of removable noncitizens since 2004 with criminal convictions (for immigration removal purposes) who were previously found incompetent at some point in their criminal proceedings.

 

Request for Public Interest Fee Waiver

FOIA allows for fee waivers if “disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and disclosure of the information is not primarily in the commercial interest of the requester.” 28 F.R. § 16.11(k)(i)-(ii). 

Pursuant to DOJ regulations, fee waivers are appropriate if four factors are satisfied: (1) the subject of the requested records must concern identifiable operations or activities of the federal government; (2) the disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities; (3) the disclosure must contribute to a reasonably broad audience of persons interested in the subject - a requester’s expertise in the subject area and ability and intention to effectively convey information to the public shall be considered; and (4) the public’s understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent.  28 CFR §16.11 (k)(2)(i)-(iv).

HRW satisfies all of these factors:

 

1.  Operations or Activities of Government

HRW’s request deals directly with the operations or activities of the federal government because it relates to procedural safeguards in place for noncitizens with mental disabilities in immigration removal and asylum proceedings conducted by the EOIR.  In addition, according to the EOIR website, the agency “interprets and administers federal immigration laws by conducting immigration court proceedings, appellate reviews, and administrative hearings.” One of the agency’s stated responsibilities is a commitment to “providing fair, expeditious, and uniform application of the nation's immigration laws in all cases.” This Request undoubtedly deals with the operation of EOIR as it expressly deals with the agency’s mission.

2.  Contributing to the Public’s Understanding

This request concerns information that is of significant value to informing the public.  The information is not already in the public domain, so its disclosure will provide new and important information about the enforcement of the nation’s immigration and detention laws.  See 28 CFR §16.11 (k)(2)(ii).  The information requested will increase the public’s understanding of the federal government’s operations, as noted above, because it will reveal individual and statistical information about procedural safeguards in immigration proceedings, which, especially in light of legislative changes to immigration law in 1996, the attacks of September 11, 2001, and recent public debate over detention of aliens in U.S. facilities, is of particular interest to the public.

3.  Reasonably Broad Audience of Persons Interested in Subject

This factor concerns an organization’s ability to disseminate information.  HRW employs over 150 professionals, among them lawyers, journalists, and academics.  These professionals work to uncover and report on human rights issues around the world.  In order to reach the broadest audience possible, the organization publishes detailed reports on human rights issues of interest to a broad spectrum of people.  These reports are made available in print and on HRW’s website.  HRW also uses its extensive contacts in the media to draw greater attention to the issues, and HRW employees often comment on issues in the media.  On average, forty citations to HRW appeared in publications around the world on each day from December 1, 2008 to December 1, 2009. [291]

HRW intends to publish a report using the information provided in response to this request.

4.  Enhancement of Level of Public Understanding

This factor generally deals with the availability of the information in the public domain, including how readily available information of a similar nature is to the general public.  As discussed above, no comprehensive report of this nature currently exists in the public domain. Currently, there is little public understanding of the procedural challenges facing noncitizens with mental disabilities in immigration removal and asylum proceedings.  Without information from the disclosure requested, it is difficult, if not impossible, to have true public understanding of the experiences of noncitizens with mental disabilities in navigating immigration legal proceedings.   The report HRW plans to publish will enhance the public understanding of the challenges facing immigration respondents with mental disabilities because the breadth of analysis is not something currently available to the public.

This request meets all the statutory and regulatory requirements for a fee waiver.  Consequently, we request that you disclose the requested information without charge.

*              *              *

We thank you for your attention in this matter and look forward to your response within 20 business days.  5 U.S.C. §552(a)(6)(A)(i).  Please respond to Sarah Mehta, Aryeh Neier Fellow at US Program/Human Rights Watch, 350 Fifth Ave, 34th Floor, New York, NY 10118-3299, telephone (212) 377-9437, email mehtas@hrw.org.

Signed: 

                                               

Sarah L. Mehta

Aryeh Neier Fellow

Human Rights Watch/American Civil Liberties Union

350 Fifth Ave, 34th Floor

New York, NY 10118-3299

tel: 212-377-9437

mehtas@hrw.org

                                                                                                                               

[290]Noncitizens or respondents with “mental disabilities” or “mental illness” refer to any individuals who have been diagnosed with, display symptoms of, are suspected of having a mental impairment. 

[291] In the past year Human Rights Watch has appeared in Agence France Presse 1,157 times; Reuters News 817 times; 604 Associated Press Newswires; All Africa 573 times; States News Service 559 times; Targeted New Service 539 times; The Guardian 315 times; 300 Reuters Daybook Reports; The Gulf Daily News 260; and The Canadian Press 255 times.  Additionally, Human Rights Watch has appeared in major US Papers such as The Wall Street Journal, The New York Times, USA Today, The Los Angeles Times, The Daily News, The Washington Post, The Houston Chronicle, The Philadelphia Inquirer, The San Francisco Chronicle, The Boston Globe, The Denver Post, The Arizona Republic, The Star Tribune, The Detroit Free Press, The Dallas Morning News, and The Chicago Tribune. Internationally, Human Rights Watch has been cited by Der Spiegel (Germany), The Daily Nation (Kenya), The Buenos Aires Herald (Argentina), Folha de São Paulo (Brazil), Emol (Chile), El Mundo (Mexico), El Universal (Venezuela), Express India, The Times of India, The Guardian (Nigeria), eKantipur (Nepal), Al-Ahram (Egypt), The Bangkok Post (Thailand), Haaretz (Israel), The Korea Times (South Korea), The Japan Times, The Sydney Morning Herald (Australia), The Herald Sun (Australia), Al Jazeera (Qatar), as well as hundreds of other news sources in print and online around the world.