As a part of the asylum process, applicants go through the interview, where USCIS officers ask questions and take notes. If things go well for the applicant, and the asylum is granted, then that chapter ends happily for the applicant, who can reside in the United States and the government, that can be proud because it protects victims of political persecutions. Sometimes things are not going well for the applicant, and the application is denied. The denial can be reviewed by the immigration court, where the applicant can ask the court to disagree with USCIS determination. To ask the court more effectively, the applicant, among other things, needs to be truthful and persuasive. Truthfulness and persuasion, in turn, require applicant’s position to be consistent. One way for applicant to ensure such consistency is effectively followed (i.e. not affected by the fading memories, which is a part of human nature), is to review government records. Of course, in order to review records, an applicant must first ask for them, utilizing the procedure known as Freedom of Information Act Request, or FOIA. FOIA label is the reminder to the USCIS (a part of Executive branch), that in openness of government is essential to the democratic principles upon which the United States is based (i.e. in order to have truly representative government, a citizen must be informed about decisions the government makes in the name of the People). FOIA request can be made through USCIS Form G-639 or free form letter.
Applicant may receive most of information, but not all of information. Some of information may be withheld by the USCIS. Readers and applicants may wonder, how it is consistent with democratic virtues of the U.S.? According to the U.S. Congress, even democratic governments have secrets. Congress (on behalf of the People) specified the kinds of secrets that U.S. democratic government can withhold from the People. These are listed under 5 U.S.C. § 552(b) and include certain foreign policy and national defense matters, certain internal policies and communications, as well as “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” The last one is sometimes called as “deliberative process privilege.”
USCIS interpreted these exceptions to include interview notes which are taken by the USCIS officer during the asylum interview. The problem for the applicant, is that unavailability of interview notes can deprive her or him from presenting the case most effectively. Moreover, the government (ICE) has an advantage in the courtroom because unlike the applicant it has access to the whole file, including the interview notes. Does is sound unfair? Perhaps, a due process 5th Amendment infringement? In the opinion of Magistrate Judge Laurel Beeler these are valid concerns.
In Martins v. U.S. Citizenship & Immigration Servs., Judge Beeler dealt with a question of whether deliberative process privilege applies to interview notes that are taken by the USCIS immigration officer during the asylum interview. On the facts provided, the court held that deliberative process privilege does not apply to interview notes, and applicant (or applicant’s attorney) is entitled to review the interview notes.
