Case 1:11-cv-01971-JEB Document 1 Filed 11/08/11 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL

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1331 G Street, NW, Suite 200

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Washington, DC 20005-3141

)

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Plaintiff,

) CASE NUMBER-----

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v.

)

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UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY

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Office of the General Counsel

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20 Massachusetts Avenue, NW

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Washington, DC 20528

)

)

and

)

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UNITED STATES CITIZENSHIP AND

)

IMMIGRATION SERVICES

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Office of the Chief Counsel

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2675 Prosperity Avenue

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Fairfax, VA 20598-2400,

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)

)

Defendants.

)

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Introduction
1. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosure of records concerning individuals' access to legal counsel during their interactions with U.S. Citizenship and Immigration Services ("USCIS"). The American Immigration Council ("AIC") seeks declaratory, injunctive, and other appropriate relief with respect to USCIS's unlawful withholding of these records.
2. Access to counsel is at the very core of our legal system and is integral to ensuring that all noncitizens seeking admission, asylum, or lawful permanent residence, or facing removal are afforded a fair process and a meaningful opportunity to be heard. Without lawyers,

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noncitizens confront the daunting and often insurmountable task of navigating a complicated set of immigration statutes, regulations, and court decisions.
3. Under the U.S immigration system, the majority of decisions about the legal status of noncitizens are made not by immigration judges in courtrooms, but by various
Department of Homeland Security ("DHS") officials, including users officers, in interview
rooms and offices. These interactions can have dramatic consequences that may include denial of U.S. citizenship, asylum, or other lawful immigration status (such as permanent residency), and may lead to arrest, detention, and removal.
4. Reports from immigration lawyers across the country indicate that USCIS imposes unwan·anted limitations on access to counsel. USCIS officers have prevented attorneys from communicating with their clients and from speaking on their clients' behalf during interviews. In addition, USCIS officers have refused to accept documents proffered by counsel.
5. These limitations, which are not mandated by existing regulations, are fundamentally unfair, and in some cases, violate applicable statutory and regulatory protections. They also undermine the quality and efficiency of immigration decision making. The reported problems were geographically varied and widespread.
6. USCIS's policies on access to counsel are difficult to ascertain and are arbitrarily applied. As a result, they are a source of great confusion for immigration lawyers, their clients, and the general public. To clarify these policies, the American Immigration Council submitted a FOIA request to USCIS, a DHS agency, in March 2011. USCIS's failure to turn over requested records violates the FOIA, and is impeding AIC's efforts to educate the immigration bar regarding the right to counsel and to effectively advocate for justice and fairness
for noncitizens in their interactions with users.
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Jurisdiction and Venue 7. This Court has subject matter jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. §§ 701-706 and 28 U.S.C. § 1331. This Court has jurisdiction to grant declaratory and further necessary or proper relief pursuant to 28 U.S.C. §§ 2201-2202 and Federal Rules of Civil Procedure 57 and 65. 8. Venue in this district is proper under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e).
The Parties 9. Plaintiff AIC is a tax-exempt, not-for-profit educational and charitable organization under section 501 (c)(3) of the Internal Revenue Code, with its principal place of business at 1331 G Street, Suite 200, in Washington, D.C. Founded in 1987, AIC's mission is to educate the American public about immigrants' contributions to American society, to promote sensible and humane immigration policy, and to advocate for the just and equitable enforcement of immigration laws. AIC's Immigration Policy Center ("IPC") and Legal Action Center ("LAC") help carry out this mission by reaching out to the public and to attorneys practicing in the immigration arena to promote a better understanding of immigration law, policy, and practice. The IPC targets policymakers, the media and advocates using a range of publications, new media, and presentations to inform the public debate on immigration. The LAC undertakes administrative advocacy, impact litigation and education to advance the fair administration of immigration laws. The LAC has historically focused on access to counsel issues by educating the immigration bar about the relevant laws, advocating for fair standards and procedures to remedy ineffective assistance of counsel, and encouraging better access to counsel in proceedings before DHS and its agencies, including USCIS.
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10. Defendant DHS is a Department of the Executive Branch of the United States Government and is an agency within the meaning of 5 U.S.C. § 552(f). DHS is responsible for enforcing federal immigration laws. DHS has possession and control over the records sought by AI C.
11. Defendant USCIS is a component of DHS and is an agency within the meaning of 5 U.S.C. § 552(f). USCIS oversees lawful immigration to the United States. As such, US CIS adjudicates a wide range of applications for immigration status in the United States (including lawful permanent residence, asylum, and temporary worker status), as well as applications for U.S. citizenship. USCIS has possession and control over the records sought by AIC.
AIC's FOIA Request 12. On March 14, 2011 AIC submitted a FOIA request to USCIS seeking: [A]ny and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Depmiment of Homeland Security and/or U.S. Citizenship and Immigration Services (USCIS), whether issued or maintained by USCIS Headquarters offices, regional offices, district offices, field offices and/or any other organizational structure, and which relate or refer in any way to any of the following:
• Attorneys' ability to be present during their clients' interactions with USCIS;
• What role attorneys may play during their clients' interactions with USCIS;
• Attorney conduct during interactions with USCIS on behalf of their clients;
• Attorney appearances at USCIS offices or other facilities. A copy of the March 14 letter is attached hereto as Exhibit A.
13. AIC asked that USCIS and DHS waive all fees associated with its FOIA request because disclosure of the records is "likely to contribute significantly to public
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understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor." 5 U.S.C. § 552(a)(4)(iii). See Exhibit A at 3.
14. On April15, 2011 , USCIS acknowledged receipt of AIC's FOIA request, but made no substantive determination in response to it. A copy of the April 15 letter is attached hereto as Exhibit B.
15. On May 2, 2011, USCIS notified AIC that its request for a fee waiver had been granted. A copy of the May 2 letter is attached hereto as Exhibit C.
16. On July 12, 2011, in response to AIC's request for information about the status of its FOIA request, US CIS informed AIC that it had "just sent an updated inquiry to the program offices we are requesting records from and asked for an update. They are currently working on gathering and searching for records pertaining to your request." A copy ofthe July 12 letter is attached hereto as Exhibit D.
17. Under 5 U.S.C. § 552(a)(6)(A), USCIS was required to make a determination on AIC's FOIA request within twenty business days. Because it still had not done so nearly five months after the submission of the request, AIC submitted an administrative appeal to USCIS on August 11, 2011, stating that it considered USCIS' s failure to act on its request to be a constructive denial. A copy of the August 11 letter is attached hereto as Exhibit E.
18. On August 16,2011, USCIS acknowledged that it had not acted on AIC's request within the statutory time limit. USCIS further stated that "you may, if you choose, treat this letter as a denial of your appeal and bring action in an appropriate federal court." A copy of the August 16 letter is attached hereto as Exhibit F.
19. AIC has exhausted its administrative remedies.
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20. To date, USers and DHS have not disclosed agency records responsive to ArC's FOrA request.
21. USers and DHS have violated the applicable statutory time limit for the processing of FOrA requests.
22. USers and DHS have wrongfully failed to release responsive records to Ale. FIRST CAUSE OF ACTION
Violation of Freedom of Information Act for Failure to Disclose Responsive Agency Records 23. Are repeats, alleges and incorporates the allegations in paragraphs 1-22 as if fully set forth herein. 24. users and DHS are obligated under 5 U.S.e. § 552(a)(3) to conduct a reasonable search for and to produce records responsive to Are's FOrA request. Ale has a legal right to obtain such records, and no legal basis exists for USeiS's and DHS's failure to search for and disclose them. 25. Defendants' failure to conduct a reasonable search for records responsive to Are's request and its failure to disclose responsive records violates 5 U.S.e. §§ 552(a)(3)(A), (a)(3)(e), and (a)(6)(A), as well as the regulations promulgated thereunder.
SECOND CAUSE OF ACTION Violation of the Administrative Procedure Act (APA) for Failure to Timely Respond to Request for Agency Records 26. Ale repeats, alleges and incorporates the allegations in paragraphs 1-22 as if fully set forth herein. 27. Defendants' failure to timely respond to plaintiffs requests for agency records constitutes agency action unlawfully withheld and unreasonably delayed in violation of the APA,
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5 U.S.C. §§ 701 -06. Defendants' failure to timely respond is arbitrary, capricious, and an abuse of discretion, not in accordance with law and without observance of procedure required by law, all in violation ofthe APA.
WHEREFORE, AIC requests that judgment be entered in its favor against Defendants USCIS and DHS, and that the Court:
(a) Declare that Defendants' failure to make a determination with respect to AIC's FOIA request within the statutory time limit and Defendants' failure to disclose responsive records violate FOIA;
(b) Declare that Defendants' failure to timely respond to Plaintiffs requests for agency records violates the APA;
(c) Order Defendants and any of Defendants' departments, components, other organizational structures, agents, or other persons acting by, through, for, or on behalf of Defendants to conduct a reasonable search for records responsive to AIC's FOIA request;
(d) Enjoin Defendants, and any of their departments, components, other organizational structures, agents, or other persons acting by, through, for, or on behalf of Defendants from withholding records responsive to AIC's FOIA request and order them to promptly produce the same;
(e) Award AIC its reasonable attorneys' fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E) and 28 U.S .C. § 2412; and
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(f) Grant all other such relief to AIC as the Court deems just and equitable. Respectfully submitted,

Dated: November 8, 2011

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DORSEY & WHITNEY LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 Telephone: (202) 442-3000 Fax: (202) 442-3199 magid.chi p @dorse y.com
Melissa Crow (#453487) American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 Telephone: (202) 507-7500 Fax: (202) 742-5619 mcrow@immcouncil.org
Attorneys for Plaintiff American Immigration Council

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Case 1:11-cv-01971-JEB Document 1-1 Filed 11/08/11 Page 1 of 4
AMERICAN
IMMIGRATION COUNCIL
COY!Ml:\ITY EfiUCAri!l'i CE'iTEH ·!MM!GHATTO~ POL!CYC!'';VfCP. • !~TEH~•\T!O'IAL EXCHANGE CL.\TEH ·LEGAL ACTIO\ ClXfEH
March 14,2011
FOIAOffice U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office P.O. Box 648010 Lee's Summit, MO 64064-8010
Re: Freedom of Information Act Request
Dear Sir or Madam:
The American Immigration Council (AIC) submits this letter as a request for information under the Freedom of Information Act (FOIA), 5 U.S.C. §552, et. seq.
1. RECORDSSOUGHT
AIC requests any and all records 1 which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department ofHorneland Security and/or U.S. Citizenship and Immigration Services (USCIS), whether issued or maintained by USCIS Headquarters offices, regional offices, district offices, field offices and/or any other organizational structure, and which relate or refer in any way to any of the following:
• Attorneys' ability to be present during their clients' interactions with USCIS; • What role attorneys may play during their clients' interactions with USCrS; • Attorney conduct during interactions with users on behalf of their clients; • Attorney appearances at USers offices or other facilities.
The above records may include, but are not limited to:
1) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client to an interview regarding an I-485, Application to Register for Permanent Resident or Adjust Status, or what role the attorney may play during such questioning;
2) Guidance or any information obtained by the agency regarding circumstances under which an attorney may accompany a client to an interview regarding an r-130, Petition for Alien Relative, if the client is the petitioner, or what role the attorney may play during such questioning;
1 The term "records" as used herein includes all records or communications preserved in electronic or written form, including but not limited to correspondence, documents, data, videotapes, audiotapes, e-mails, faxes, files, guidance, guidelines, evaluations,
instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules, manuals, technical
specifications, training manuals, and studies.
www.americanimmigrationcouncil.org
Suite 200, 1331 GStreet, NW, Washington, DC 20005·3I41·1elephone, 202.507.7500 •Fax, 202.742.5619
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3) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client to an interview regarding an I-130, Petition for Alien Relative, if the client is the beneficiary of the Petition, or what role the attorney may play during such questioning;
4) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning pursuant to the client's I-140, Immigrant Petition for Alien Worker, or what role the attorney may play during such questioning;
5) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client to an interview regarding an I-751, Petition to Remove the Conditions of Residence, or what role the attorney may play during such questioning;
6) Guidance or any information obtained by the agency regarding circumstances under which an attorney may accompany a client to an interview regarding an N-400, Application for Naturalization, or what role the attorney may play during such questioning;
7) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning related to the National Security Entry-Exit Registration System (NSEERS), or what role the attorney may play during such questioning;
8) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a minor during any USCIS interview, or what role the attorney may play during such interviews;
9) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client to an interview regarding an I-918, Petition for U Nonimmigrant Status, or what role the attorney may play during such interviews;
10) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client to an interview regarding an I-914, Application forT NonimmigrantStatus, or what role the attorney mayplay during such interviews;
11) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client to an interview regarding an I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or what role the attorney may play during such interviews;
12) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during "credible fear" screenings, or what role the attorney may play during such screenings;
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EXHIBIT A

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13) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during "reasonable fear" screenings, or what role the attorney may play during such screenings;

14) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during an asylum interview, or what role the attorney may play during such interviews;

15) Guidance or any information obtained by the agency regarding the circumstances under
which an attorney may accompany a client during questioning by users regarding any other
pending application for benefits, or what role the attorney may play during such questioning;

16) Guidance or any information obtained by the agency regarding procedures for notification of attorneys with Form G-28 on file ofUSCIS's intention to question their clients.

AIC requests that records existing in electronic form be provided in electronic format or on a compact disc. If any of the requested records or information is not in a succinct format, we request the opportunity to view the documents in your offices.

If under applicable law any of the information requested is considered exempt, please describe in detail the nature of the information withheld, the specific exemption or privilege upon which the information is withheld, and whether the portions of withheld documents containing non-exempt or non-privileged information have been provided.

2. REQUEST FOR WAIVER OF ALL COSTS

AIC requests that all fees associated with this FOIA request be waived. AIC is entitled to a waiver of all costs because disclosure of the information is " .. .likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). See also 6 C.F.R. § 5.11 (k) (Records furnished without charge or at a reduced rate if the information is in the public interest, and disclosure is not in commercial interest of institution). In addition, AIC has the ability to widely disseminate the requested information. See Judicial Watch v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) (finding a fee waiver appropriate when the requester explained, in detailed and non-conclusory terms, how and to whom it would disseminate the information it received).

i.

Disclosure ofthe Information Is in the Public Interest

AIC educates citizens about the enduring contributions of America's immigrants, supports sensible and humane immigration policies that reflect American values, and works to ensure that immigration laws are enacted and implemented in compliance with fundamental constitutional and human rights. AIC's Immigration Policy Center (IPC) and Legal Action Center (LAC) help carry out this mission by reaching out to the general public to promote a better understanding of immigration law, policy and practice. The IPC researches issues related to immigration (such as the impact of immigration on the economy, jobs and crime), and regularly provides information to leaders on Capitol Hill and the media. The LAC works with other immigrants' rights organizations and immigration attorneys across the United States to advance the fair administration of immigration laws. Relevant to this FOIA request, the LAC has historically focused on

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access to counsel issues. Specifically, the LAC educates the public about the law surrounding access to counsel for inunigrants in removal proceedings, advocates for fair standards and procedures to remedy the effects of ineffective assistance of counsel, and encourages better access to counsel in proceedings before the Department of Homeland Security and its sub-agencies.
Disclosure of the requested information will contribute significantly to public understanding of non-citizens' access to counsel in interactions with ICE. The disclosed records will inform attorneys who represent noncitizens at risk of removal from the United States; the noncitizens themselves; and other members of the public who are concerned with immigration agency proceedings and policies. Because there is no publicly available comprehensive guidance directly governing attorney representation and conduct in interactions
with users, the dissemination of these records will significantly inform significantly public understanding
of the scope of representation permitted before USCIS. AIC has the capacity and intent to disseminate widely the requested information to the public. To this end, the LAC and the IPC will post the information on the AIC website, a website that is accessible by any member of the public. In addition, the LAC and IPC will publish this information in an LAC report, an LAC newsletter and an IPC blog. The LAC newsletter is directly distributed to 12,000 recipients and the IPC blog is distributed to 25,000 recipients. These publications also are available on the AIC website.
ii. Disclosure of the Information Is Not Primarily in the Commercial Interest of the Requester
AIC is a 50l(c)(3), tax-exempt, not-for-profit educational, charitable organization. Inunigration attorneys, noncitizens and any other interested member of the public may obtain information about counsel-related issues on AIC's frequently updated website. AIC seeks the requested information for the purpose of disseminating it to members of the public who access AIC's website and other AIC publications, and not for the purpose of conunercial gain.
Please inform us if the charges for this FOIA production will exceed $25.00.
Thank you in advance for your response to this request within twenty working days, as FOIA requires. See 5 U.S.C. § 552(a)(6)(A)(i). If you have any questions, please feel free to contact me at (202) 507-7505.
Sincerely,

Emily Creighton Staff Attorney American Inunigration Council Suite 200 1331 G Street, NW Washington, DC 20005-3141 Telephone: (202) 507-7505 Fax: (202) 742-5619 E-mail: ecreighton@inuncouncil.org
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EXHIBIT A

Case 1:11-cv-01971-JEB Document 1-2

Filed 11/08/1U1.S. DPeapagrteme1ntooff H2omeland Security
National Records Center
P.O. Box 648010 Lee's Summit, MO 64064~80 10

U.S. Citizenship and Immigration
Services

Aprill5, 2011
Emily Creighton ArC 1331 G Street, NW, Suite 200 Washington, DC 20005-3141

COW2011000252

Dear Emily Creighton:

We received your request on March 31, 20 II for all records which may have been prepared, received, transmitted, or collected which relate or refer in any way to the following:

• Attorneys' ability to be present during their clients' interactions with USCrS; • What role attorneys may play during their clients' interactions with users; • Attorney conduct during interactions with USCIS on behalf of their clients; • Attorney appearances at USCIS offices or other facilities.

Your request is being handled under the provisions of the Freedom of Information Act (5 U.S.C. § 552). It has been assigned the following control number: COW20 II 000252. Please cite this number in all future correspondence about your request.

We respond to requests on a first-in, first-out basis and on a multi-track system. Your request has been placed in the complex track (Track 2). You·may wish to narrow your request to a specific document in order to be eligible for the faster track. To do so, please send a written request, identifying the specific document sought, to the address above. We will notify you if your request is placed in the simple track.

Please note that your request for a fee waiver and/or expedited processing will be addressed in separate

correspondence.

·

This office will be providing your records on a Compact Disc (CD) for use on your personal computer. The CD is readable on all computers through the use of Adobe Acrobat software. A version of Adobe Acrobat"'ill_bei!lClll<kc!<>ntileC:::J:>, ..YolJUecords_can_beYiewed.onyour computer screenandcan.be
printed onto paper. Only records 15 pages or more are eligible for CD printing. To request your
responsive records on paper, please include your COW number and write to the above address Attention: FOWPA Officer, or fax them to 816-350-5785.

You may check the status of your FOIA request online, at www.uscis.gov. Click on "FOIA Request Status Check" located on the left side of the web page under "Other Services", and follow the instructions. If you have any questions concerning your pending FOIA/PA request, or to check the status of a pending application or petition, please call The National Customer Service Center at 1-800-375-5283. Please be aware that the National Records Center no longer accepts FOWPA related questions directly by phone.

www.uscis.gov
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COW20 II 000252 Page2 All FOIA/PA related requests, including address changes, must be submitted in writing and be signed by the requester. Please include the COW number listed above on all correspondence with this office. Requests may be mailed to the FOIA/PA Officer at the PO Box listed at the top of the letterhead, or sent by fax to 816-350-5785. You may a'!so submit FOWPA related requests to our e-mail address at uscis.foia@dhs.gov.
Jill A. Eggleston Director, FOIA Operations
EXHIBIT B

Case 1:11-cv-01971-JEB Document 1-3

Filed 11/08/11 U.SP. aDegpeart1meonft o1f Homeland Security
National Records Center P.O. Box 648010 Lee's Summit, MO 64064-8010

U.S. Citizenship

and Immigration

j

Services

May2, 2011
Emily Creighton AIC 1331 G Street, NW, Suite 200 Washington, DC 20005-3141

COW2011000252

Dear Emily Creighton:
This is a response to your Freedom of Information Act/Privacy Act (FOlA/PA) request received in this office relating to Attorneys' ability to be present during their clients' interactions with USCIS on March 31, 2011.
As it relates to your fee waiver request, I have reviewed your letter thoroughly and have determined that for the reasons stated in your request, you qualify for a fee waiver. Therefore, your fee waiver request has been granted.
~7~
Jill A. Eggleston Director, FOIA Operations

www.uscis.gov
EXHIBIT C

Case 1:11-cv-01971-JEB Document 1-4

Filed 11/08/11U.S. DPeapagretm1entooff1Homeland Security
National Records Center P.O. Box 648010 Lee's Summit, MO 64064-8010

U.S. Citizenship
and Immigration
Services

July 12, 2011
Emily Creighton AIC 1331 G Street, NW, Suite 200 Washington, DC 20005-3141

COW2011000252

Dear Emily Creighton:
This letter is in response to your status request, regarding the Freedom of Information Act request for information about the subject: Attorneys' ability to be present during their clients' interactions with USCIS, received on March 31, 20 II. We have just sent an updated inquiry to the program offices we are requesting records from and asked for an update. They are currently working on gathering and searching for records pertaining to your request.
Your request is currently number 253 of 357 pending requests in Track One.
You may check the status of your FOIA request online, at www.uscis.gov. Click on "FOIA Request Status Check" located on the left side of the web page under "Other Services", and follow the instructions. If you have any questions concerning your pending FOIAIPA request, or to check the status of a pending application or petition, please call The National Customer Service Center at 1-800-375-5283. Please be aware that the National Records Center no longer accepts FOIAIPA related questions directly by phone.
All FOIAIPA related requests, including address changes, must be submitted in writing and be signed by the requester. Please include the control number listed above on all correspondence with this office. Requests may be mailed to the FOIAIPA Officer at the PO Box listed at the top of the letterhead, or sent by fax to (816) 350-5785. You may also submit FOIAIPA related requests to our e-mail address at uscis.foia@uscis.dhs.gov.

Jill A. Eggleston Director, FOlA Operations

www.uscis.gov
EXHIBIT D

Case 1:11-cv-01971-JEB Document 1-5 Filed 11/08/11 Page 1 of 2
August 11, 2011
Jill A. Eggleston Director, FOIA Operations U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office P.O. Box 648010 Lee’s Summit, MO 64064-8010 E-mail: uscis.foia@dhs.gov
Re: Freedom of Information Act Request Reference Number COW2011000252
Dear Ms. Eggleston:
We are in receipt of your letter dated April 15, 2011, acknowledging receipt of our March 14, 2011, FOIA request for all records prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Citizenship and Immigration Services (USCIS) which relate or refer in any way to any of the following:
• Attorneys’ ability to be present during their clients’ interactions with USCIS; • What role attorneys may play during their clients’ interactions with USCIS; • Attorney conduct during interactions with USCIS on behalf of their clients; and • Attorney appearances at USCIS offices or other facilities. It has been nearly four months since you acknowledged receipt of our FOIA request. On July 12, in response to a status inquiry from our office, you indicated by letter that USCIS is working on processing our request, but that our request is currently number 253 of 357 pending requests in Track One.
When a party submits a FOIA request, the agency has 20 business days to determine whether to produce records responsive to the request. 5 U.S.C. § 552(a)(6)(A)(i). In unusual circumstances, this deadline may be extended for a maximum of ten additional business days. 5 U.S.C. § 552(a)(6)(B)(i). When an agency fails to meet the response times required by FOIA, requesting parties may deem the agency’s delay a denial of the FOIA request and appeal the denial. See, e.g., Ruotolo v. Dep’t of Justice, 53 F.3d 4, 8 (2d Cir. 1995) (“[A]dministrative remedies are ‘deemed exhausted’ if the agency fails to comply with the ‘applicable time limit’ provisions of the FOIA.”); Voinche v. Fed. Bureau of Investigation, 999 F.2d 962, 963 (5th Cir. 1993) (“If an
EXHIBIT E

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agency has not complied within the statutory time limits of a FOIA request, the requestor shall be deemed to have exhausted his administrative remedies and [may] bring suit.”). You have failed to respond to our FOIA request within the twenty days provided under the FOIA statute. Accordingly, please consider this letter an appeal of your constructive denial of our FOIA request. Sincerely,
Emily Creighton Staff Attorney American Immigration Council Suite 200 1331 G Street, NW Washington, DC 20005-3141 Telephone: (202) 507-7505 Fax: (202) 742-5619 E-mail: ecreighton@immcouncil.org
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EXHIBIT E

Case 1:11-cv-01971-JEB Document 1-6

Filed 11/08/1U1.S. DP.eapgaretm1entooff H1Omeland Security
Office ofGeneral Counsel 20 Massachusetts Avenue NW, Room 4210 Washington, DC 20529

August 16, 2011

U.S. Citizenship
and Immigration
Services

Emily Creighton American Immigration Council 1331 G Street, NW, Suite 200 Washington, DC 20005-3141

APP2011000703

Dear Emily Creighton:
Re: COW2011000252
You appealed the action of the National Records Center regarding your request for access to records pertaining to Attorneys' ability to be present during their clients' interactions with USCIS, dated March 31,2011.
We have notified the National Records Center of your communication. Although the Freedom of Information Act authorizes you to treat the failure to act on your request within the specified time limit as a denial thereof, this Office cannot act until there has been an initial determination by the office having jurisdiction of the records. Our function is limited to the review of those records to which access is in fact denied.
In the event that the National Records Center still has not responded to your request at the time you receive this letter, you may, if you choose, treat this letter as a denial of your appeal and bring action in an appropriate federal court. We hope that, in making a decision, you will give sympathetic consideration to the fact that this agency has many requests pending at this time and is making every possible, reasonable effort to process them.

o_g Sincerely,
·r-d.

~

Peter D. Gregory, Chief,

Commercial & Administrative Law Division

Department of Homeland Security

Citizenship and Immigration Services

www.uscis.gov
EXHIBIT F

Case 1:11-cv-01971-JEB Document 1-7 Filed 11/08/11 Page 1 of 2

CIVIL COVER SHEET

JS44 Rev. 2/11 DC)
.I-(-a-) -P-L-A-I-N-T-I-F-F-S---------------------------------

--1-
lD-E-F-E-N--D-A-N-T-S------

-

--

''- lG1 r
----------------

-

--

-

--

---

--

:AMERICAN IMMIGRATION COUNCIL

: :u.S. Department of Homeland Security and U.S. :

-(:)-:

: :citizenship and Immigration Services

:

00_[_ - c~~:;:~F-R~:~~~-c~ ~: :l:S-T-L~S~:D-P~.:~~~~~: - -,,

I

COUNTY-OF RESiDENC~j~~~J.~zA~~f~k-~~:~sDi~z~; --------------I

(EXCEPT IN li.S. PLAINTIFF CASES)

- ---- --- --- --- --- -- -------- -. .- - - - - - - - - - - - - - - - (c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) ...

-

:Creighton R. Magid, Esq., Dorsey &Whitney LLP, :

:1801 K Street, N.W., Suite 750, Washington, D.C. :

:20006 (202) 442-3555
I

,_ --- - --- - - -- - ---- - - ---- -- - - - --- - - -- - -- -- -- -- - -·

NOTE IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF
-

Case: 1: 11-cv-01971

I

Assigned To : Boasberg, James E.

I I

I

Assign_ Date: 11/8/2011

I I

Description: FOIA/Privacy Act

I I

I

:..:;..:..

II. BASIS OF JURISDICTION
(PLACE AN x IN ONE BOX ONLY)

III CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX
FOR PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

0 I U S Government Plamt1tT
~J 2 U S Government Defendant

0 3 Federal Question
(US Government Not a Party)

C1t1zen of th1s State

PTF DFT
0 10I

0 4 D1vers1ty (lnd1cate C1t1zensh1p of Part1es m Item III)

0 0 C1t1zen of Another State

2

2

CitiZen or SubJect of a Fore1gn Country

0 3 03

~"' ~ DFT

'"'"'""'"' """""""' of Busmess m Th1s State

0 4

0 0 Incorporated and Prmc1pal Place

5

5

of Busmess m Another State

Fore1gn Nat1on

0 6 06

IV. CASE ASSIGNMENT AND NATURE OF SUIT
(Place a X in one cate~ory, A-N, that best represents your cause of action and one in a correspondin~ Nature of Suit)

0 A. Antitrust D 410 Antitrust

0 B. Personal Injury/ Malpractice
0 310 Airplane 0 315 Airplane Product Liability
0 320 Assault, Libel & Slander D 330 Federal Employers Liability D 340Marine D 345 Marine Product Liability D 350 Motor Vehicle
0 355 Motor Vehicle Product Liability 0 360 Other Personal Injury
D 362 Medical Malpractice D 365 Product Liability
0 368 Asbestos Product Liability

0 C. Administrative Agency
Review
0 151 Medicare Act
Socia 1Security: 0 861 HIA ((!395ft)
0 862 Black Lung (923)
0 863 DIWCIOIWW (405(g) 0 864 SSID Title XVI
D 865 RSI (405(g)
Other Statutes
0 891 Agricultural Acts 0 892 Economic Stabilization Act D 893 Environmental Matters D 894 Energy Allocation Act
CJ 890 Other Statutory Actions (If
Administrative Agency is Involved)

0 D. Temporary Restraining
Order/Preliminary Injunction
Any nature of suit from any category may be selected for this category of case assignment.
*(If Antitrust, then A governs)*

0 E. General Civil (Other)

OR

0 F. ProSe General Civil

Real Property 0 210 Land Condemnation 0 220 Foreclosure
0 230 Rent, Lease & Ejectment
0 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property
Personal Property 0370 Other Fraud 0371 Truth in Lending 0380 Other Personal Property Damage 0385 Property Damage Product Liability

Bankruptcy
0 422 Appeal28 USC 158
0 423 Withdrawal28l.ISC 157
Prisoner Petitions
D 535 Death Penalty
0 540 Mandamus & Other
0 550 Civil Rights
0 555 Prison Condition
Property Rights 0 820 Copyrights 0830 Patent 0 840 Trademark

Federal Tax Suits 0 870 Taxes (US plaintiff or
defendant 0 871 IRS-Third Party 26
usc 7609

Forfeiture/Penalty 0 610 Agriculture 0 620 Other Food &Drug 0 625 Drug Related Seizure
of Property 21 USC 881 0 630 Liquor Laws 0 640 RR & Truck
0 650 Airline Regs
0 660 Occupational Safety/Health
0690 Other
Other Statutes
0 400 State Reapportionment 0 430 Banks & Banking 0 450 Commerce!ICC
Rates/etc.
0 460 Deportation

0 462 Naturalization Application 0 465 Other Immigration Actions
0 470 Racketeer Influenced & Corrupt Organizations
0 480 Consumer Credit D 490 Cable/Satellite TV O 810 Selective Service D 850 Securities/Commodities/
Exchange
O 875 Customer Challenge 12 USC
3410
D 900 Appeal of fee determination
under equal access to Justice
D 950 Constitutionality of State
Statutes 0 890 Other Statutory Actions (if
not administrative agency review or Privacy Act

Case 1:11-cv-01971-JEB Document 1-7 Filed 11/08/11 Page 2 of 2

0 G. Habeas Corpus/ 2255
D 530 Habeas Corpus-General 0 510 MotionNacate Sentence D 463 Habeas Corpus - Alien
Detainee

0 H. Employment Discrimination
D 442 Civil Rights-Employment
(criteria: race, gender/sex, national origin, discrimination, disability age, religion, retaliation)

--...
t!} I. FOIAIPRIVACY
ACT
~ 895 Freedom of Information Act
890 Other Statutory Actions
(if Privacy Act)

0 J. Student Loan
D 152 Recovery of Defaulted
Student Loans (excluding veterans)

*(If prose, select this deck)*

*(If pro se, select this deck)*

0 K. Lahor/ERISA (non-employment)
D 710 Fair Labor Standards Act D 720 Labor/Mgmt. Relations D 730 Labor/Mgmt. Reporting &
Disclosure Act
D 740 Labor Railway Act D 790 Other Labor Litigation D 791 Empl. Ret. Inc. Security Act

(V!).RIGIN 1 Original 0 2 Removed

Proceeding

from State

Court

0 L. Other Civil Rights
(non-employment)
D 441 Voting (if not Voting Rights
Act)
D 443 Housing/Accommodations D 444 Welfare D 440 Other Civil Rights 0 445 American w/Disabilities-
Employment
D 446 Americans w/Disabilities-
Other

0 M. Contract

ON. Three-Judge Court

D 110 Insurance D 120 Marine D 130 Miller Act D 140 Negotiable Instrument D 150 Recovery of Overpayment &
Enforcement of Judgment
D 153 Recovery of Overpayment of Veteran's Benefits
D 160 Stockholder's Suits D 190 Other Contracts D 195 Contract Product Liability D 196 Franchise

D 441 Civil Rights-Voting (if Voting Rights Act)

0 3 Remanded from
Appellate Court

0 4 Reinstated
or Reopened

0 5 Transferred from
another district (specify)

0 6 Multi district
Litigation

0 7 Appeal to
District Judge
from Mag. Judge

v__ {:t\_Qs_~ 9f.~{:n9~_lCHE.1I:!F;. !J.§'"qy!t:.~T_A_TJJJLUl"P1=~-'YI:!IS:JI.XQll~13~ n.LJ~G t.\~v _\YI!.IH.:-""_B_RJH ~TAT_EME_N_T_QF_ <.;~(ls_Ej_ I
1 U S.C § 552, seeking dtsclosure of records concerning indtviduals' access to legal counsel during thetr interactions wtth U S Cttizenshtp & lrnmtgration •

VII. REQUESTED IN

CHECK IF THIS IS A CLASS

COMPLAINT

D

ACTION UNDER F R c p 23

DEMAND$ ~ _____ • ______ : Check YE~fdemanded

lam!

JURY DEMAND:

YES L_j N

VIII. RELATED CASE(S)

(See mstructwn)

YES~ D NO

If yes, please complete related case form

IF ANY

1 / DATE

SIGNATURE OF ATTORNEY OF RECORD

INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS-44 Authortty for Ctvtl Cover Sheet

The JS-44 ctvll cover sheet and the mformatlon contamed herem netther replaces nor supplements the filmgs and serv1ce ofpleadmgs or other papers as reqwred by law, except as prov1ded by local rules of court Th1s form, approved by the Jud1e1al Conference of the Umted States m September 1974, IS reqUired for the use of the Clerk of Court for the purpose of mttlatmg the c1vtl docket sheet Consequently a c1v1l cover sheet 1s submitted to the Clerk of Court for each c1v1l complamt filed Listed below are tips for completmg the c1v1l cover sheet These t1ps comc1de w1th the Roman Numerals on the Cover Sheet

I.

COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County ofres1dence Use 11001 to md1cate plamttff 1s rest dent of

Washmgton, DC, 88888 1fplamt1ff 1s res1dent of the Umted States but not ofWashmgton, DC, and 99999 1fplamt1ff1s outside the Umted States

III.

ClTrZENSHIP OF PRINCIPAL PARTIES Th1s section ts completed 2L!J.r 1f d1vers1ty of cttlzenshtp was selected as the Bas1s of Junsd1ct10n under SectiOn

II

IV.

CASE ASSIGNMENT AND NATURE OF SUIT The ass1gnment of a Judge to your case will depend on the category you select that best represents the

llli!lli!!Y cause of actiOn found m your complamt You may select only~ category You must also select one correspondmg nature of swt found under

the category of case

VI.

CAUSE OF ACTION Cite the US Ctvtl Statute under whtch you are filing and wnte a bnefstatement of the pnmary cause

VIII.

RELATED CASES, IF ANY If you mdtcated that there 1s a related case, you must complete a related case form, whtch may be obtamed from the Clerk's Office

Because of the need for accurate and complete mformat10n, you should ensure the accuracy of the mformat10n prov1ded pnor to s1gnmg the form

 
 Case 1:11-cv-01971-JEB Document 25 Filed 03/15/13 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL, )

)

Plaintiff

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY, et al.,

)

)

Defendants.

)

_________________________________________ )

Civil Action No. 11-1971 (JEB)

STIPULATION OF SETTLEMENT AND DISMISSAL

Plaintiff, American Immigration Council (“AIC” or “Plaintiff”), and Defendants, United

States Department of Homeland Security and United States Citizenship and Immigration

Services (“USCIS” or “Defendants”), (hereinafter collectively referred to as the “Parties”),

hereby enter into this Stipulation of Settlement and Dismissal (“Stipulation”) to settle and

compromise the above-entitled lawsuit (“AIC Complaint”) brought under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, as amended. In consideration of the mutual promises

and obligations of this Stipulation, the Parties agree and covenant as follows:

RECITIALS

1. AIC submitted a FOIA request dated March 11, 2011, requesting information

concerning individuals’ access to legal counsel during their interactions with USCIS (“AIC

FOIA Request”). The AIC FOIA Request was assigned USCIS case number COW2011000252.

2. On November 8, 2011, AIC filed this action.

3. On February 6, 2012, USCIS released, in part or in full, 833 pages of responsive

records to AIC.

1

Case 1:11-cv-01971-JEB Document 25 Filed 03/15/13 Page 2 of 6
4. On January 30, 2013, USCIS released an additional 199 pages of responsive records to AIC.
TERMS AND CONDITIONS 5. USCIS agrees to produce the January 14, 1986 memo from the Immigration and Naturalization Services (INS) General Counsel’s Office to the Assistant Commissioner for Refugees, Asylum and Parole regarding a refugee applicant’s right to counsel. USCIS will provide this document prior to the Court’s dismissal of the AIC Complaint. 6. USCIS shall conduct a search for written training documents USCIS developed to implement the December 21, 2011 interim memo (PM-602-0055) and the May 23, 2012 final memo (PM-602-0055.1) amending the counsel related provisions of the Adjudicators Field Memo. 7. USCIS shall conduct a search limited to the USCIS Orlando, Florida Field Office for records responsive to the AIC FOIA Request. 8. USCIS shall conduct a search for USCIS Standard Operating Procedures that are responsive to the AIC FOIA Request. 9. USCIS will produce to AIC all responsive, non-exempt documents identified through the searches set forth in paragraphs 6-8, above, on a rolling basis in accordance with the following schedule: (a) USCIS’s first production will occur within thirty (30) business days after the Court dismisses the complaint. (b) USCIS’s second production will occur within thirty (30) business days following the first production described in paragraph 9(a), above; and
2

Case 1:11-cv-01971-JEB Document 25 Filed 03/15/13 Page 3 of 6
(c) USCIS’s final production will occur within thirty (30) business days following the second production, described in paragraph 9(b), above.
10. The search and production, if any, of responsive, non-exempt records relevant to paragraph 6-8 of this Stipulation will be considered a new FOIA request submitted by AIC to USCIS, it will be assigned a new USCIS FOIA case number, and USCIS will process the request pursuant to the FOIA and DHS’s implementing FOIA regulation. USCIS agrees to process the FOIA request described in paragraph 6-8 pursuant to the schedule described in paragraph 9, above. USCIS further agrees to the following:
(a) Within thirty (30) business days following dismissal of the suit, USCIS shall provide AIC with a status report regarding the search for records as described in paragraphs 6-9, above, and the Parties will confer about whether AIC will agree to narrow the search. At that time, the Parties will, if necessary, amend the schedule described in paragraph 9 for the rolling production of documents, which also shall reflect any narrowing of the search.
(b) USCIS will produce to AIC all responsive, non-exempt documents no later than ninety (90) business days following the Court’s dismissal of the complaint, unless by mutual agreement of the Parties, the production schedule is extended.
11. Except for the specific records searches described in paragraphs 5, 6, 7, 8 and 9 of this Stipulation, this Stipulation shall not be construed by the Parties to require USCIS to conduct a search for records responsive to the AIC FOIA Request. The Parties agree that USCIS no longer has an obligation to search for and produce any records responsive to the AIC FOIA Request, except for the records and records searches described in paragraphs 5, 6, 7, 8 and 9 of this Stipulation. Moreover, the Parties agree that any documents that were already identified in
3

Case 1:11-cv-01971-JEB Document 25 Filed 03/15/13 Page 4 of 6
the Agency’s Vaughn Index (Doc. 16, Ex. 7) as responsive to the AIC FOIA Request, regardless if they were withheld or released, are not considered responsive to any of the searches described in paragraphs 5, 6, 7, 8 and 9, above.
12. AIC agrees that USCIS’s original search for records responsive to the AIC FOIA Request was adequate and it will not dispute, in any tribunal, USCIS’s original search for records responsive to the AIC FOIA Request. AIC does not waive its right to challenge, consistent with the FOIA and DHS’s implementing FOIA regulation, USCIS’s search and production of records as described in paragraphs 5, 6, 7, 8 and 9 of this Stipulation.
13. To the extent there are any challenges to the productions, adequacy of searches and/or applicability of any FOIA exemptions as a result of actions taken by USCIS pursuant to this Stipulation, these challenges will be addressed in a separate lawsuit and in no way shall be the subject of this lawsuit. Standard FOIA procedures (i.e., administrative appeal followed by judicial review) will govern any such challenges and the Court in this matter will not maintain jurisdiction over the enforcement of any such challenges.
14. USCIS shall pay AIC $ 45,000 in attorneys’ fees and costs. Payment of this money will be made by electronic funds transfer after notification of the Court’s entry of this Stipulation and dismissal of the AIC Complaint. Counsel for Plaintiff will provide the necessary information to counsel for Defendants to effectuate the transfer. Payment shall be made as promptly as practicable, consistent with the normal processing procedures followed by the Department of Justice and the Department of the Treasury, following the dismissal of the AIC Complaint.
15. This Stipulation of Settlement and Dismissal constitutes the full and complete
4

Case 1:11-cv-01971-JEB Document 25 Filed 03/15/13 Page 5 of 6
satisfaction of any and all claims arising from (a) the allegations set forth in the complaint filed in this lawsuit and (b) any litigation or administrative proceedings that Plaintiff has brought, could bring, or could have brought regarding Plaintiff’s FOIA request in this case.
16. This Stipulation does not constitute an admission of liability or fault on the part of Defendants, the United States, its agents, servants, or employees, and is entered into by both parties for the sole purpose of compromising disputed claims and avoiding the expenses and risks of further litigation.
17. This Stipulation is binding upon and inures to the benefit of the Parties hereto and their respective successors and assigns.
18. For purposes of construing this Stipulation, this Stipulation shall be deemed to have been drafted by all Parties to this Stipulation and shall not, therefore, be construed against any Party for that reason in any subsequent dispute.
19. The undersigned represent and warrant that they are fully authorized to execute this Stipulation on behalf of the Parties.
20. This Stipulation may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Stipulation.
21. This Stipulation is effective on the date of signature of the last signatory to the Stipulation. Facsimiles of signatures shall constitute acceptable, binding signatures for purposes of this Stipulation.
22. The Parties understand that this Stipulation contains the entire agreement between the Parties hereto regarding this lawsuit; that no other promise or inducement has been made except as set forth herein, and that no other representations or understanding, whether written or
5

Case 1:11-cv-01971-JEB Document 25 Filed 03/15/13 Page 6 of 6

oral, between the Parties, that is not expressly set forth herein shall be of any force and effect in connection with this Stipulation.
23. The Stipulation may not be altered, modified, withdrawn, waived, rescinded or supplemented except by written instrument executed by duly authorized representatives of all parties.
24. Execution and filing of this Stipulation of Settlement by counsel for Plaintiff and counsel for Defendants constitutes a dismissal of this lawsuit, with prejudice, pursuant to Fed. R. Civ. P. 41(a)(1)(ii). Any and all remaining issues are waived.
Respectfully submitted,

_/s/ Michelle S. Grant _____ MICHELLE S. GRANT CREIGHTON R. MAGID DC Bar # 476961 Dorsey & Whitney LLP 1801 K Street, N.W., Suite 750 Washington, DC 20006 Telephone: 202-442-3000 Facsimile: 202-442-3199 Email: grant.michelle@dorsey.com
Melissa Crow (#453487) American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 Telephone: 202-507-7500 Fax: 202-742-5619 mcrow@immcouncil.org
Counsel for Plaintiff

RONALD C. MACHEN JR. DC Bar # 447889 United States Attorney
DANIEL F. VANHORN DC Bar # 924092 Chief, Civil Division
By: /s/ Marian L. Borum MARIAN L. BORUM DC Bar # 435409 Assistant United States Attorney Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530 Telephone: (202) 514-6531 Facsimile: (202) 514-8780 Email: Marian.L.Borum@usdj.gov
Counsel for Defendants

6

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL,
Plaintiff, v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 11-1971 (JEB)

MEMORANDUM OPINION After sitting on a fairly standard Freedom of Information Act request by Plaintiff American Immigration Council for almost a year, Defendant U.S. Citizenship and Immigration Services (a component of the Department of Homeland Security, the other Defendant) produced a response riddled with errors. The affidavit meant to demonstrate the adequacy of USCIS’s search for responsive records discloses almost nothing about the search itself. The Vaughn index, moreover, which should justify all withholdings of documents, oscillates between sloppy and misleading. After in camera review, the Court concludes that two-thirds of the withheld records contested by the Council should have been largely or wholly released. FOIA cases count on agencies to do their jobs with reasonable diligence. USCIS must do better. I. Background FOIA requires that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . , shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). The Act makes exceptions

1

for certain categories of records, however, which are described as FOIA exemptions. See 5
U.S.C. § 552(b).
In March 2011, the Council submitted this FOIA request about the role of counsel in
immigration proceedings to USCIS:
AIC requests any and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Citizenship and Immigration Services (USCIS), whether issued or maintained by USCIS Headquarters offices, regional offices, district offices, field offices and/or any other organizational structure, and which relate or refer in any way to any of the following:
• Attorneys’ ability to be present during their clients’ interactions with USCIS;
• What role attorneys may play during their clients’ interactions with USCIS;
• Attorney conduct during interactions with USCIS on behalf of their clients;
• Attorney appearances at USCIS offices or other facilities.
Compl., Exh. A (Letter from Emily Creighton, Am. Immigr. Council, to FOIA Office, USCIS
(March 14, 2011)), at 1 (footnote omitted). The request “include[d], but [was] not limited to”
sixteen specific types of records. Id.; see, e.g., id. at 2 (“[(6)] Guidance or any information
obtained by the agency regarding circumstances under which an attorney may accompany a
client to an interview regarding an N-400, Application for Naturalization, or what role the
attorney may play during such questioning”).
After eight months without receiving a determination, the Council filed suit in this Court.
See 5 U.S.C. § 552(a)(6) (agency normally must make initial determination in 20 days, with
another 20 days allotted for administrative appeal). Three months later, USCIS finally
responded – releasing 455 pages in full, 418 in part, and withholding 1169 in full. See Mot.,
Exh. G (Letter from Jill A. Eggleston, Dir., FOIA Operations, USCIS, to Creighton (Feb. 6,
2012)).
2

USCIS has now filed a combined Motion to Dismiss (asserting partial mootness) and Motion for Summary Judgment (defending the sufficiency of the response itself). The Council contests only the Motion for Summary Judgment. II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by
3

evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). III. Analysis
Because the Council maintained its original Complaint even after USCIS responded to the FOIA request, it falls to the Court to prune away the stale grievances. As the Council agrees, the Complaint’s second cause of action – “Violation of the Administrative Procedure Act (APA) for Failure to Timely Respond to Request for Agency Records,” Compl. at 6 – must now be dismissed as moot. See Opp. at 2 n.1. For the records released in full and the portions of records released in part, moreover, the Council’s FOIA claim is now moot. See Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam) (“a case becomes moot when the issues presented are no longer live”) (internal quotation marks omitted). Any complaints relating to those records must also be dismissed. Finally, while USCIS’s Motion included a lengthy defense of its Exemption 6 withholdings, the Council ignores Exemption 6 in its Opposition. The Council has therefore forfeited any challenge to these withholdings, and the Court will grant USCIS summary judgment as to the portions of records withheld under that Exemption. See Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 136 (D.C. Cir. 2012).
Just two disputes remain. First, the Council complains that USCIS has not demonstrated that it conducted an adequate search. Second, the Council objects to USCIS’s application of Exemption 5 and claims that many documents withheld under that Exemption should be turned over to the Council. The Court takes each issue in turn.
4

A. Adequacy of Search “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” ValenciaLucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). The adequacy of an agency’s search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. Id. “If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542. Here, to demonstrate the adequacy of its search, USCIS offers a declaration by Jill Eggleston, Assistant Center Director of USCIS’s FOIA Unit. See Reply, Exh. 1 (Second Decl. of Jill A. Eggleston). She explains that USCIS broke its search here into two steps. First, an officer from USCIS’s central FOIA office selected which program offices within USCIS to ask for responsive records. Second, the chosen program offices independently searched for responsive records, turning anything that they deemed responsive over to the FOIA officer. The Council challenges both steps.
5

1. Selection of Program Offices Eggleston’s Declaration focuses primarily on the first step. Because the Council’s FOIA request raised “complex” issues, the FOIA Unit assigned the request to its “Significant Interest Team.” Id., ¶¶ 8-9. The Significant Interest Team then “identif[ied] all USCIS program offices potentially possessing records responsive to the request” by “consult[ing] a variety of sources containing organizational and operational information about the agency and its various components, such as a reference guide entitled, USCIS Functional Profiles.” Id., ¶ 9 & n.2; see also id., ¶ 11. “Essentially, the focus of a given FOIA request is compared to the various USCIS components’ assigned areas of responsibility in search of matching, comparable and/or compatible subject matters. The FOIA request is then sent to any USCIS component charged with responsibilities encompassing the FOIA requester’s stated area(s) of interest.” Id., ¶ 9 n.2. For the Council’s FOIA request here, the Significant Interest Team concluded that five program offices might have responsive records: the Service Center Operations; the Office of Policy and Strategy; the Field Operations Directorate; the Refugee, Asylum, and International Operations Directorate; and the Office of Chief Counsel. See id., ¶ 12. For each of those offices, Eggleston’s Declaration explains the Significant Interest Team’s thinking. See, e.g., id., ¶ 13 (The Service Center Operations “is responsible for the direct oversight and support of USCIS service centers located within the United States that adjudicate, manage and deliver immigration decisions and benefits. The [Significant Interest] team determined that it might be possible that SCOPS had issued guidance to staff on dealing with attorneys and other representatives of individuals seeking immigration decisions and benefits.”); see also id., ¶¶ 1417 (giving similarly detailed explanations for the other four offices).
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Despite those details, the Council objects that the Declaration explains only why the five chosen offices made the cut – not why USCIS passed over many other offices. The Fraud Detection and National Security Directorate, for example, visits worksites to verify information in visa petitions, and the Council claims that those visits can give rise to access-to-counsel issues. See Opp. at 7. Indeed, the Council submits notes from a USCIS meeting that discusses the role of counsel in such worksite visits (although it is not clear whether the Directorate was involved in the meeting or whether its files would include the notes). See Opp., Decl. of Beth Werlin, Exh. B (USCIS, Questions and Answers: USCIS American Immigration Association (AILA) Meeting (Oct. 27, 2009)), at 10-13.
While the issue is close, the Court concludes that Eggleston provided a sufficient explanation on this point. The D.C. Circuit has explained that, “[a]t the very least,” an agency must “explain in its affidavit that no other record system was likely to produce responsive documents.” Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (emphasis added). Here, USCIS has cleared that bar. USCIS’s general methodology – comparing the FOIA request to program offices’ functions deduced from “sources containing organizational and operational information about the agency and its various components, such as a reference guide entitled, USCIS Functional Profiles,” Eggleston Decl., ¶ 9 n.2 – is sound. USCIS could justifiably conclude that the Fraud Detection and National Security Directorate probably did not hold responsive records because its functions seem far removed from access-to-counsel issues. See Fraud Detection and National Security Directorate, U.S. CITIZENSHIP & IMMIGR. SERVICES, http://www.uscis.gov/portal/site/uscis (follow “About Us” link; then follow “Directorates and Program Offices” link; then follow “Fraud Detection and National Security” link) (last visited Nov. 27, 2012). As to the actual meeting notes submitted by the Council, “the issue to be
7

resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg, 745 F.2d at 1485 (emphasis in original). USCIS’s FOIA office had no way to know about this meeting, so the Significant Interest Team was not unreasonable in excluding the Directorate.
2. Searches by Program Offices Once the searches moved to the program offices, however, the Declaration’s detail thins. Eggleston explains that each chosen program office “was tasked to conduct a search for documents responsive to AIC’s FOIA request.” Eggleston Decl., ¶ 12. She adds that each office “conduct[ed] the search in the manner it deem[ed] most appropriate and best calculated to locate records responsive to the specific FOIA request.” Id. And that’s it. The Declaration says nothing about what kinds of records the offices keep, which records or databases the offices searched through, or how the offices conducted their searches. Indeed, Eggleston herself seems not to know what the chosen program offices did after receiving the requests. The Declaration says only that the chosen offices turned responsive records over to the Significant Interest Team. See id., ¶¶ 13-18. Eggleston’s Declaration gives this Court no way to know if the chosen offices conducted adequate searches with reasonable methods. Over and over again, the D.C. Circuit has told agencies that this type of conclusory declaration will not do. See, e.g., Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (“[A]fter describing how a single FOIA request must be divvied up between multiple component units within the CIA, Dorn states that ‘each component must then devise its own search strategy, which includes identifying which of its records systems to search as well as what search tools, indices, and terms to employ.’ But the two brief paragraphs in the Declaration explaining the search itself provide no information about the search strategies of the
8

components charged with responding to Morley’s FOIA request. Dorn merely identifies the three directorates that were responsible for finding responsive documents without identifying the terms searched or explaining how the search was conducted in each component. . . . Consequently, the Declaration’s terse treatment of the CIA’s efforts to locate documents that were responsive to Morley’s FOIA request lacks the detail necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.”) (citations, brackets, and some internal quotation marks omitted); Steinberg, 23 F.3d at 551-52 (“While the document describes in general how the EOUSA processed appellant’s FOIA request, it fails to describe in any detail what records were searched, by whom, and through what process.”); Oglesby, 920 F.2d at 68 (“The affidavit does not show, with reasonable detail, that the search method, namely searching the Central Records, was reasonably calculated to uncover all relevant documents. Nor does the affidavit identify the terms searched or explain how the search was conducted. . . . Because State’s affidavit did not adequately describe the agency’s search, summary judgment on the adequacy of the search was improper.”); Church of Scientology of Cal. v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986) (“Summary judgment on this point would require an affidavit reciting facts which enable the District Court to satisfy itself that all appropriate files have been searched, i.e., that further searches would be unreasonably burdensome. Such an affidavit would presumably identify the searched files and describe at least generally the structure of the agency’s file system which makes further search difficult.”); Weisberg v. Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980) (“Unlike earlier cases in which summary judgment was predicated in part on a finding that the document search was complete, the agency affidavits now before us do not denote which files were searched or by whom, do not reflect any systematic approach to document location,
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and do not provide information specific enough to enable Weisberg to challenge the procedures utilized. Under these circumstances, issues genuinely existed as to the thoroughness of the FBI search, and consequently summary judgment was improper.”) (footnote omitted).
The Court cannot yet say whether the search was adequate, but the Eggleston Declaration certainly was not. The Court will therefore deny USCIS’s motion for summary judgment with respect to the adequacy of the search. Such motion may be renewed upon the submission of sufficiently detailed affidavits.1
B. Exemption 5 After sorting through the responsive documents identified by program offices, USCIS withheld many of them under FOIA Exemption 5. Exemption 5 allows agencies to withhold “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.” 5 U.S.C. § 552(b)(5). The “interagency or intra-agency memorandums or letters” can include documents from private parties working with agencies if the private parties play a role similar to agency personnel. See Nat’l Inst. of Military Justice v. Dep’t of Def., 512 F.3d 677, 680-87 (D.C. Cir. 2008). The Supreme Court has construed Exemption 5 “to exempt those documents, and only those documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). “The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption 5 are the deliberative process privilege (referred to by some courts as ‘executive privilege’), the attorney work-product privilege, and the attorney-client privilege.” DEP’T OF JUSTICE, GUIDE TO THE FREEDOM OF INFORMATION ACT 359 (2009 ed.) (footnotes omitted).
1 The Council also objects to summaries of the FOIA request that the Significant Interest Team sent to each chosen program office. Without knowing how the program offices conducted their searches, the Court cannot assess the impact of those summaries. For now, the question remains open.
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Through its Vaughn index, USCIS claims all three privileges – in varying combinations –
in its withholdings. A Vaughn index briefly describes each withheld record and explains why
the record was withheld. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). USCIS
first produced a 122-page Vaughn index, see Mot., Exh. H (Vaughn Index), then submitted an
“amended” 93-page Vaughn index with its reply brief. See Reply, Exh. 2 (1st Amended Vaughn
Index).
While the Council broadly opines that “most – if not all” – of the entries in the Vaughn
index are too conclusory, Opp. at 14, it “specifically contests the applicability of the exemption”
for only fifteen of the withheld records. Id. at 15. Because USCIS’s explanations in the Vaughn
index called its application of Exemption 5 into doubt, the Court ordered USCIS to produce
those fifteen contested records (consisting of single documents or groups of similar documents)
for in camera inspection. See Minute Order, Nov. 9, 2012.
In conducting its in camera review, the Court relied for the most part on the amended
Vaughn index. Where the amended Vaughn index contained obvious mistakes, however, the
Court looked to the original Vaughn index.2 The D.C. Circuit has emphasized that such errors
are unacceptable:
The purpose of the Vaughn index is to permit adequate adversary testing of the agency’s claimed right to an exemption, and those who contest denials of FOIA requests – who are, necessarily, at a
2 Three notable errors in the records that the Court reviewed in camera: First, the original description of and justification for withholding Record 6 disappeared in the amended Vaughn index, leaving a blank line. See 1st Amended Vaughn Index at 65. The Court filled in the blanks with the justifications that USCIS offered in the original Vaughn index. Second, while USCIS initially relied on the deliberative-process privilege under Exemption 5 to withhold Record 13, the amended Vaughn index asserted only Exemption 6. It is clear from a glance at the document that Exemption 6 is way off base; indeed, the top of each page of the Record says “PAGE WITHHELD PURSUANT TO (b)(5).” Again, the Court used the original Vaughn index for this Record instead of the amended one. Third, the Vaughn indices (both original and amended) describe Record 13 as a letter spanning FOIA response pages 1981-83. Yet the three-page document produced to the Court has two pages of letters and a page of internal minutes of a meeting. These pages are thus not part of the same document. Because the documents produced for in camera inspection do not give the FOIA page numbers, it is unclear if the Vaughn index is off or if the wrong page was produced for in camera review.
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disadvantage because they have not seen the withheld documents – can generally prevail only by showing that the agency’s Vaughn index does not justify withholding information under the exemptions invoked. FOIA litigants are entitled to assume that the agency’s Vaughn index is accurate in every detail. And so is the court. There is no excuse for submitting a Vaughn index that contains errors, even minor ones. We expect agencies to ensure that their submissions in FOIA cases are absolutely accurate. Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) (citation and internal quotation marks omitted), abrogated on other grounds, Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011). Yet the errors in the form of the index turn out to be the least of USCIS’s woes here. Having now examined the withheld records, the Court concludes that most of the challenged Exemption 5 withholdings were improper, although the reason that USCIS was wrong changes with each record. The variety in errors suggests that USCIS, although it invoked Exemption 5 often, did not grasp even the basic points of this Exemption. 1. Deliberative-Process Privilege The deliberative-process privilege shields internal agency “advisory opinions, recommendations and deliberations” in order to “protect[ ] the decision making processes of government agencies.” Sears, Roebuck & Co., 421 U.S. at 150 (internal quotation marks omitted). To qualify under this privilege, a record must meet two requirements. First, it must be predecisional – i.e., “antecedent to the adoption of an agency policy.” Jordan v. Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc) (emphasis omitted), overruled in part on other grounds, Crooker v. ATF, 670 F.2d 1051 (D.C. Cir. 1981) (en banc). Even when an agency subsequently makes a final decision on the issue discussed in the record, the record remains predecisional if it was produced before that final decision. See Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360 (1979). Second, a record must be deliberative – i.e., “a direct part of the deliberative process in that it makes recommendations or expresses opinions
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on legal or policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). “A document that does nothing more than explain an existing policy cannot be considered deliberative.” Public Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Cir. 2010).
“Exemption 5, properly construed, calls for disclosure of all opinions and interpretations which embody the agency’s effective law and policy, and the withholding of all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.” Sears, Roebuck & Co., 421 U.S. at 153 (internal quotation marks omitted). A “strong theme” of this Circuit’s decisions on the deliberative-process privilege “has been that an agency will not be permitted to develop a body of ‘secret law,’ used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege because it is not designated as ‘formal,’ ‘binding,’ or ‘final.’” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980). Yet USCIS repeatedly casts records as predecisional when they actually convey what the Agency’s policymakers have decided. See id. at 868 (“a document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made”).
First up is Record 1, which comprises five versions of PowerPoint slides used in presentations by USCIS’s Office of the Chief Counsel to train agency employees about interacting with private attorneys. These training slides are neither predecisional nor deliberative. A training is not a step in making a decision; it is a way to disseminate a decision already made. Indeed, by teaching USCIS employees to go forth and apply the information in the slides, USCIS entrenched its policies. The deliberative-process privilege thus cannot protect
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these slides from disclosure. (USCIS also asserts that the attorney-client and attorney workproduct privileges protect Record 1. The Court considers those privileges below.)
Record 3 is a series of e-mails between USCIS employees and the private American Immigration Lawyers Association’s liaison to USCIS. (The Vaughn index mischaracterizes the document by concealing that an outsider – the liaison – was part of the exchange.) The e-mail chain begins with the liaison asking USCIS employees to clarify specific agency policies and practices, and follows with the employees’ responses, which are meant to be distributed to lawyers in AILA. Most of these e-mails are not “inter-agency or intra-agency memorandums or letters,” flunking the threshold requirement of Exemption 5. See 5 U.S.C. § 552(b)(5). E-mails between a private liaison and an agency could satisfy that threshold requirement if the agency solicited advice from the liaison, using the liaison as a consultant. See Nat’l Inst. of Military Justice, 512 F.3d at 687. When the liaison initiates the contact, however, and communicates “with [her] own, albeit entirely legitimate, interests in mind” – as the liaison did here – the emails cannot be considered an inter-agency or intra-agency communication. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 12 (2001). Even aside from the threshold problem, moreover, all of these e-mails (including the few in the chain that leave off the private liaison) deal with USCIS’s existing policy. As these employees are not considering new policies, their discussions are neither deliberative nor predecisional. For each of these reasons, Record 3 cannot be withheld under Exemption 5.
Next is Record 5, a document of unclear provenance and purpose. USCIS describes this three-page document as “Internal USCIS policy on interviews and interview techniques.” 1st Amended Vaughn Index at 88. In places the document seems to be directed to USCIS adjudication officers (who conduct immigration interviews), while in other places the document
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seems like instructions to attorneys appearing before the adjudication officers. Either way, the document again conveys existing policies instead of searching out new policies. USCIS asserts that Record 5 is privileged because “it discusses policy and techniques to be utilized during interviews with benefits seekers.” Id. at 89. That explanation, however, has nothing to do with the deliberative-process privilege. Because Record 5 is neither predecisional nor deliberative, it cannot be withheld under Exemption 5.
Record 6 consists of two documents given to immigrants by USCIS. The first – titled “Important Information for Applicants and Petitioners: Know Your Rights – Protect Yourself from Imposters” – lists lawyers who are ineligible to appear before USCIS (presumably because they have been disciplined in the past). The second warns immigrants to know their rights and to use accredited counsel. Again, because both of these documents were distributed to the public, they (1) are not intra-agency or inter-agency records, thus failing Exemption 5’s threshold requirement, and (2) represent settled USCIS policy, not fluid policy that still must congeal. USCIS offers no defense for withholding the second document, but argues that the first should be protected because the list of attorneys is no longer current. But just as predecisional documents do not lose protection when the agency subsequently reaches a final decision, see Fed. Open Mkt. Comm., 443 U.S. at 360, a document embodying a then-final decision does not gain protection when it becomes outdated. Record 6 should be disclosed.
Record 8 is an “Interoffice Memorandum” concerning access to agency space and information from the USCIS District 3 Director to all District 3 employees. As the Coastal States court incisively observed, “[A] document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made.” 617 F.2d at
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868. Record 8 falls precisely into that latter camp. The memo decrees policy; it signals no interest in employee reactions. Because the memo is neither predecisional nor deliberative, USCIS cannot withhold Record 8 under the deliberative-process privilege.3
Record 10 includes a series of e-mails parallel to those in Record 3, with the same USCIS employees discussing the same topic with the same private liaison from AILA. Except for the first two e-mails on page 1904 (time stamped February 29, 2008, at 8:20 a.m. and February 28, 2008, at 9:38 a.m.), which involve solely agency employees discussing an unsettled policy, pages 1904-06 of Record 10 are like Record 3 and cannot be withheld under Exemption 5.
Record 12 presents the first close question. An e-mail from a USCIS “Supervisory Adjudications Officer” to USCIS employees (who the sender appears to supervise), Record 12 instructs one employee to post an attached written notice at the reception window and to implement the notice’s policy immediately. On the one hand, this seems to be another document from superior to subordinate, meaning that it is “more likely to contain instructions to staff explaining the reasons for a decision already made.” Coastal States, 617 F.2d at 868. By including a long list of employees on the e-mail, moreover, the supervisor seems to aim to inform many employees (not just the one in charge of posting the notice) about the new policy. On the other hand, because the e-mail precedes the posting, arguably the decision has yet to reach its final culmination. The e-mail, moreover, encourages employees to contact the supervisor with any questions about the policy. At the end of the day, the Court concludes that even if some facts suggest that the e-mail is predecisional, it is not deliberative. There is no hint that the supervisor is still weighing her options or wants feedback from the employees; asking if
3 In a footnote in its reply brief, USCIS suggests that Exemption 7(F) would justify this withholding. See Reply at 17 n.11. The Court responds in like manner. USCIS has forfeited this argument thrice over by failing to assert this ground in its Vaughn index, see SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); by failing to raise the argument in its opening brief, see Coal. for Responsible Regulation, 684 F.3d at 136; and by summarily making the argument in a footnote. See United States v. Saani, 650 F.3d 761, 763 n.* (D.C. Cir. 2011).
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employees have questions is not the same as asking if they have suggestions. Record 12, therefore, falls outside the bounds of the deliberative-process privilege.
Returning to more familiar terrain, Record 13 has two versions of letters given to new adjudication officers selected to interview immigrants, introducing the training program they will undergo and providing basic interview tips. This is another communication from superior to subordinate teaching the officers about settled USCIS policies. It is neither predecisional nor deliberative. Except for the meeting minutes that slipped in with the letters, see supra note 2, which are covered by the deliberative-process privilege, Exemption 5 cannot protect Record 13.
Record 15 is a two-page 1997 memorandum from the Deputy Director of then-INS’s asylum division to all asylum directors, supervisory officers, and officers. The memo gives guidance on what role consultants can play during credible-fear interviews. USCIS argues that the memo is predecisional because it states that INS is “developing further guidance on working with consultants and representatives” that “will follow shortly.” “More guidance soon,” however, does not undercut the finality of the guidance already given. Although Charles Dickens published David Copperfield in monthly serialization, each installment fixed the chapters it published. As one would expect from a widely distributed memo from a higher-up, the memo here sets out definitive agency policies. Because the memo is neither predecisional nor deliberative, Record 15 cannot qualify for withholding under Exemption 5.
Despite this inauspicious track record, a handful of USCIS’s withholdings were actually correct. Record 4 – a draft of a memo from a USCIS legislative counsel to USCIS’s Chief Counsel on the legality of certain USCIS policies – falls under the deliberative-process privilege. (If USCIS had asserted it, Record 4 also could have been withheld under the attorney workproduct privilege.)
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Record 7 is an e-mail exchange between agency employees trying to figure out a policy for disruptive attorneys. Similarly, Record 9 consists of two e-mail chains with agency employees trying to decide how to answer problematic parole requests. Record 10 has two comparable e-mail exchanges with USCIS employees: one of responses to a request for agenda items for an agency meeting, and the other discussing issues that emerged from that meeting. (As noted above, Record 10 also includes an e-mail exchange with an outside liaison that must be mostly disclosed, so USCIS gets only partial credit for withholding Record 10.) Record 11 includes a single withheld e-mail between USCIS employees on clarifying a new USCIS policy. All of these e-mail exchanges are deliberative and appear to be predecisional, and they thus fall under Exemption 5.
Record 14, finally, is a jumble of internal minutes from various meetings that USCIS held with AILA, a private association. Because AILA appears to have been presenting complaints about the adjudication process in these meetings at the behest of USCIS, the minutes qualify as intra-agency or inter-agency records under Exemption 5. See Nat’l Inst. of Military Justice, 512 F.3d at 687. And because the minutes focus on the problems that AILA pointed out interspersed with responses that USCIS is considering, the minutes are predecisional and deliberative, and were thus justifiably withheld.
2. Attorney Work-Product Privilege The attorney work-product privilege protects “documents and tangible things that are prepared in anticipation of litigation or for trial” by an attorney. Fed. R. Civ. P. 26(b)(3); see also Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997). “[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift
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what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).
As in most work-product cases, the disputes here revolve around whether documents were “prepared in anticipation of litigation.” To qualify, the document must have been prepared or obtained “because of” the threat of litigation, meaning that “the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (citation omitted). The “litigation” anticipated by the work product can “include proceedings before administrative tribunals if they are of an adversarial nature.” 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2024, at 502-03 (3d ed. 2010).
A document is prepared in anticipation of litigation when litigation is “foreseeable,” “even if no specific claim is contemplated.” Schiller, 964 F.2d at 1208. Yet the “mere possibility” of litigation is not enough. Coastal States, 617 F.2d at 865. “[I]f the agency were allowed to withhold any document prepared by any person in the Government with a law degree simply because litigation might someday occur, the policies of the FOIA would be largely defeated.” Senate of P.R. v. Dep’t of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987) (internal quotation marks omitted). The Circuit has drawn a line between “neutral, objective analyses of agency regulations” and “more pointed documents” that recommend “how to proceed further with specific investigations” or “advise the agency of the types of legal challenges likely to be mounted against a proposed program, potential defenses available to the agency, and the likely outcome.” Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987) (citing Coastal States, 617 F.2d 854). Neutral, objective analysis is “like an agency manual,
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fleshing out the meaning of the” law, and thus is not prepared in anticipation of litigation. Id. More pointed advice, however, anticipates litigation. See id.
Here, USCIS claims the work-product privilege in its Vaughn index for only two records. Record 1, discussed above, is PowerPoint slideshow for presentations by USCIS’s Office of the Chief Counsel to teach USCIS employees how to interact with private attorneys during USCIS proceedings before adjudicators. While those slides are literally “in anticipation of litigation” – the agency proceedings before adjudicators – they do not anticipate litigation in the manner that the privilege requires. The attorneys giving the training were not worrying about litigation ensuing from any “particular transaction.” In re Sealed Case, 146 F.3d at 885. Nor were they assembling information, sifting through facts, preparing legal theories, or planning strategy for USCIS’s case. See Hickman, 329 U.S. at 510-11. Instead, the lawyers prepared the slides to convey routine agency policies. The fact that those policies happen to apply in agency litigation does not shield the slides from disclosure. Record 1 is not attorney work product.
Record 2 is a harder call. It is a three-page 1992 memorandum (actually, three copies of the memorandum) from INS’s General Counsel to INS’s Office of International Affairs. The memo resolves whether an INS regulation creates a right to counsel for people seeking admission as refugees. Without examining the memo, it is not obvious whether Record 2 is a “more pointed document” or falls into the camp of “neutral, objective analysis of agency regulations.” See Delaney, Migdail & Young, 826 F.2d at 127. It is easy to imagine a memo that considers whether a court, applying the appropriate standard of deference, is likely to uphold some proposed agency interpretation. Record 2, however, is not that hypothetical memo. Instead, this memo seeks the best interpretation of the regulation at issue, with no hint that the decision was influenced by litigation, let alone that the memo was written “because of” litigation. See In re
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Sealed Case, 146 F.3d at 884. The memo, indeed, states that it “supersedes” a previous memo to the contrary – indicating that it is a legal opinion meant to bind the agency, not a memo plotting litigation strategy. Work-product privilege thus cannot shield Record 2 either.
3. Attorney-Client Privilege “The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services. The privilege also protects communications from attorneys to their clients if the communications rest on confidential information obtained from the client.” Tax Analysts, 117 F.3d at 618 (citation and internal quotation marks omitted). For the Government, “the ‘client’ may be the agency and the attorney may be an agency lawyer.” Id. The Vaughn index asserts the attorney-client privilege only as to Record 1, the PowerPoint slides that the Office of the Chief Counsel used to train USCIS employees about interacting with private attorneys. Because these slides are a communication from attorney to client (here, USCIS), they are confidential only insofar as they rest on confidential information obtained from the client. See id. USCIS offers no explanation of what confidential client communications might underlie these slides, and the slides themselves do not hint at underpinning confidentialities. Nor should they. The slides were used for general trainings by USCIS lawyers, and such generally applicable legal advice will rest on none of the factual particularities conveyed in a typical confidential communication by a client. Because USCIS has not shown that the slides rest on its own confidential communications in the role of a client asking for legal advice, attorney-client privilege does not apply here. Therefore, none of the asserted privileges cover Record 1, and it, too, must be turned over.
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IV. Conclusion

For the aforementioned reasons, the Court will grant Defendants’ Motion to Dismiss and

for Summary Judgment in part and deny it in part. The Complaint’s second cause of action will

be dismissed as moot. The portions of the Complaint relating to released records will also be

dismissed as moot. The Court will deny summary judgment as to the adequacy of Defendants’

search; instead, USCIS must submit a new affidavit to demonstrate the search’s adequacy. The

Court will also deny summary judgment as to Defendants’ withholdings under Exemption 5 for

(using the numbering of records on pages 15-18 of Plaintiff’s Opposition Brief): Records 1, 2, 3,

5, 6, 8, 12, and 15 in full; FOIA response pages 1904-06 of Record 10, except for the first two

e-mails on page 1904; and Record 13 in full, except for the internal meeting minutes.

Defendants must make all of those records and portions of records available to Plaintiff. The

Court will grant summary judgment to Defendants as to other withholdings under Exemption 5

and all withholdings under Exemption 6. A separate Order consistent with this Opinion will be

issued this day.

Date: November 27, 2012

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

22

 
 Case: 1:11-cv-1971 As of: 03/12/2017 12:36 AM EST 1 of 5
CLOSED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:11−cv−01971−JEB

AMERICAN IMMIGRATION COUNCIL v. UNITED STATES Date Filed: 11/08/2011

DEPARTMENT OF HOMELAND SECURITY et al

Date Terminated: 03/18/2013

Assigned to: Judge James E. Boasberg

Jury Demand: None

Cases: 1:12−cv−00856−JEB

Nature of Suit: 895 Freedom of

1:11−cv−01972−JEB Cause: 05:552 Freedom of Information Act

Information Act Jurisdiction: U.S. Government Defendant

Plaintiff

AMERICAN IMMIGRATION COUNCIL

represented by Beth Jennifer Werlin AMERICAN IMMIGRATION COUNCIL 1331 G Street, N.W. Suite 200 Washington, DC 20005 (202) 507−7522 Fax: (202) 742−5619 Email: bwerlin@immcouncil.org

Creighton R. Magid DORSEY & WHITNEY LLP 1801 K Street NW Suite 750 Washington, DC 20006 (202) 442−3555 Fax: (202) 442−3199 Email: magid.chip@dorsey.com ATTORNEY TO BE NOTICED

Melissa E. Crow AMERICAN IMMIGRATION COUNCIL 1331 G Street, N.W. Suite 200 Washington, DC 20005 (202) 507−7523 Fax: (202) 742−5619 Email: mcrow@immcouncil.org ATTORNEY TO BE NOTICED

Michelle S. Grant DORSEY & WHITNEY LLP 50 South Sixth Street Suite 1500 Minneapolis, MN 55402 (612) 340−5671 Fax: (612) 340−2868 Email: grant.michelle@dorsey.com PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
UNITED STATES DEPARTMENT OF HOMELAND SECURITY

represented by Marian L. Borum FEDERAL DEPOSIT INSURANCE CORPORATION Legal Division, Professional Liability Unit 3501 Fairfax Drive Arlington, VA 22226

Case: 1:11-cv-1971 As of: 03/12/2017 12:36 AM EST 2 of 5

(703) 562−2438 Fax: (703) 562−2482 Email: mborum@fdic.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

represented by Marian L. Borum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/08/2011
11/08/2011 11/08/2011 11/15/2011
11/23/2011 11/23/2011 12/08/2011 12/09/2011 12/12/2011 12/13/2011 01/18/2012
01/18/2012

# Docket Text
1 COMPLAINT against UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350, receipt number 4616043611) filed by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Civil Cover Sheet)(rdj) (Entered: 11/09/2011)
Summons (2) Issued as to UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (rdj) (Entered: 11/09/2011)
2 NOTICE OF RELATED CASE by AMERICAN IMMIGRATION COUNCIL. Case related to Case No. 11−1972. (rdj) (Entered: 11/09/2011)
3 Summons Returned Unexecuted by AMERICAN IMMIGRATION COUNCIL as to All Defendants., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/10/2011. ( Answer due for ALL FEDERAL DEFENDANTS by 12/10/2011.) (Magid, Creighton) (Entered: 11/15/2011)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/14/2011. (Magid, Creighton) (Entered: 11/23/2011)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES served on 11/15/2011 (Magid, Creighton) (Entered: 11/23/2011)
6 NOTICE of Appearance by Marian L. Borum on behalf of All Defendants (Borum, Marian) (Entered: 12/08/2011)
7 MOTION for Extension of Time to Answer, Move or Otherwise Respond to Plaintiff's Complaint by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 12/09/2011)
MINUTE ORDER granting 7 Motion for Extension of Time. Defendants shall respond to Complaint on or before 2/10/2012. Signed by Judge James E. Boasberg on 12/12/2011. (lcjeb3) (Entered: 12/12/2011)
Set/Reset Deadlines: Defendants shall respond to Complaint on or before 2/10/2012. (ad) (Entered: 12/13/2011)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Beth Jennifer Werlin, :Firm− American Immigration Council's Legal Action Center, :Address− 1331 G Street, N.W., Suite 200, Washington, D.C. 20005. Phone No. − 202−507−7522. Fax No. − 202−742−5619 by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Declaration Beth Jennifer Werlin, # 2 Text of Proposed Order)(Magid, Creighton) (Entered: 01/18/2012)
MINUTE ORDER granting 8 Motion for Admission Pro Hac Vice of Beth Jennifer Werlin. Signed by Judge James E. Boasberg on 01/18/2012. (lcjeb3) (Entered: 01/18/2012)

Case: 1:11-cv-1971 As of: 03/12/2017 12:36 AM EST 3 of 5

01/26/2012 01/26/2012 02/09/2012 02/09/2012 02/10/2012 03/09/2012 03/09/2012 03/09/2012 03/09/2012 03/09/2012 04/24/2012 04/25/2012
04/25/2012 05/02/2012
05/02/2012 05/31/2012

9 NOTICE of Appearance by Beth Jennifer Werlin on behalf of AMERICAN IMMIGRATION COUNCIL (Werlin, Beth) (Entered: 01/26/2012)
10 NOTICE of Appearance by Melissa E. Crow on behalf of AMERICAN IMMIGRATION COUNCIL (Crow, Melissa) (Entered: 01/26/2012)
11 Consent MOTION for Extension of Time to File Dispositive Motion by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 02/09/2012)
MINUTE ORDER granting 11 Motion for Extension of Time. Defendants shall respond to Plaintiff's Complaint on or before March 12, 2012. Signed by Judge James E. Boasberg on 2/9/2012. (lcjeb3) (Entered: 02/09/2012)
Set/Reset Deadlines: Defendants shall respond to Plaintiff's Complaint on or before 3/12/2012. (ad) (Entered: 02/10/2012)
12 ENTERED IN ERROR.....Joint MOTION for Extension of Time to File Briefs by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) Modified on 3/9/2012 (dr). (Entered: 03/09/2012)
NOTICE OF CORRECTED DOCKET ENTRY: re 12 Joint MOTION for Extension of Time to File Briefs was entered in error at request of counsel, and will be refiled.(dr) (Entered: 03/09/2012)
13 Joint MOTION for Extension of Time to File Briefs by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 03/09/2012)
MINUTE ORDER granting 13 Joint Motion for Extension of Time to File. Defendants' dispositive motion will be due May 1, 2012; Plaintiff's Opposition will be due June 1, 2012; and Defendants' Reply will be due June 18, 2012. Signed by Judge James E. Boasberg on 3/9/2012. (lcjeb3) (Entered: 03/09/2012)
Set/Reset Deadlines: Defendants' Dispositive Motion due by 5/1/2012; Plaintiff's Opposition to Dispositive Motion due by 6/1/2012; Defendants' Reply to Opposition to Dispositive Motion due by 6/18/2012. (tg, ) (Entered: 03/09/2012)
14 Consent MOTION for Extension of Time to file Defendants' dispositive motion by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Borum, Marian) (Entered: 04/24/2012)
MINUTE ORDER granting 14 Consent Motion for Extension of Time: Any dispositive motion by Defendants shall be filed on or before 5/31/2012, Plaintiff's Opposition shall be filed on or before 7/2/2012, and Defendants' Reply shall be filed on or before 7/17/2012. Signed by Judge James E. Boasberg on 4/25/2012. (lcjeb3) (Entered: 04/25/2012)
Set/Reset Deadlines: Any dispositive motion by Defendants shall be filed on or before 5/31/2012; Plaintiff's Opposition shall be filed on or before 7/02/2012; And Defendants' Reply shall be filed on or before 7/17/2012. (ad) (Entered: 04/25/2012)
15 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Michelle S. Grant, :Firm− Dorsey & Whitney LLP, :Address− 50 South Sixth Street, Minneapolis, MN 55402. Phone No. − 612−340−5671. Fax No. − 612−340−2868 by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Text of Proposed Order)(Magid, Creighton) (Entered: 05/02/2012)
MINUTE ORDER granting 15 Motion for Admission Pro Hac Vice of Michelle S. Grant. Signed by Judge James E. Boasberg on 5/2/2012. (lcjeb3) (Entered: 05/02/2012)
16 MOTION to Dismiss, MOTION for Summary Judgment by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Declaration, # 2

Case: 1:11-cv-1971 As of: 03/12/2017 12:36 AM EST 4 of 5

07/02/2012
07/12/2012 07/12/2012 07/13/2012 08/15/2012 08/15/2012 08/15/2012 09/06/2012 11/09/2012
11/09/2012 11/27/2012

Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit Vaughn Index)(Borum, Marian) (Entered: 05/31/2012)
17 Memorandum in opposition to re 16 MOTION to Dismiss MOTION for Summary Judgment filed by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Statement of Facts Response to Defendants' Statement of Material Facts as to Which There Is No Genuine Dispute, # 2 Declaration Declaration of Beth Werlin, # 3 Exhibit Exhibit A to Declaration of Beth Werlin, # 4 Exhibit Exhibit B to Declaration of Beth Werlin, # 5 Exhibit Exhibit C to Declaration of Beth Werlin, # 6 Declaration Declaration of Matthew Farr, # 7 Exhibit Exhibit A to Declaration of Matthew Farr, # 8 Declaration Declaration of Elise Fialkowski, # 9 Exhibit Exhibit A to Declaration of Elise Fialkowski, # 10 Text of Proposed Order Proposed Order)(Werlin, Beth) (Entered: 07/02/2012)
18 Consent MOTION for Extension of Time to File Response/Reply as to 16 MOTION to Dismiss MOTION for Summary Judgment by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 07/12/2012)
MINUTE ORDER: Defendants' 18 Consent Motion for Extension of Time to File a Reply is hereby GRANTED; Defendants shall file their reply on or before August 16, 2012. Signed by Judge James E. Boasberg on 7/12/12. (lcjeb4) (Entered: 07/12/2012)
Set/Reset Deadline: Defendants shall file their reply on or before 8/16/2012. (ad) (Entered: 07/13/2012)
19 Consent MOTION for Extension of Time to File Response/Reply as to 16 MOTION to Dismiss MOTION for Summary Judgment by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 08/15/2012)
MINUTE ORDER granting Defendants' 19 Consent Motion for Extension of Time: Defendants shall have until and including September 6, 2012, to file a Reply in this matter. Signed by Judge James E. Boasberg on 8/15/2012. (lcjeb3) (Entered: 08/15/2012)
Set/Reset Deadlines: Defendants Reply due by 9/6/2012. (tg, ) (Entered: 08/16/2012)
20 REPLY to opposition to motion re 16 MOTION to Dismiss MOTION for Summary Judgment filed by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration, # 2 Exhibit)(Borum, Marian) (Entered: 09/06/2012)
MINUTE ORDER: By November 15, 2012, the Court ORDERS Defendants to produce to the Court, for in camera review, the fifteen documents listed on pages 15−18 of 17 Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss and for Summary Judgment. Signed by Judge James E. Boasberg on 11/9/2012. (lcjeb2) (Entered: 11/09/2012)
Set/Reset Deadlines: In−Camera Submission due by 11/15/2012. (tg, ) (Entered: 11/09/2012)
21 ORDER granting in part and denying in part 16 Defendants' Motion to Dismiss and for Summary Judgment. Defendants' Motion is GRANTED as to the Second Cause of Action, which is DISMISSED AS MOOT. Defendants' Motion is GRANTED as to the portions of the Complaint relating to released records, which are DISMISSED AS MOOT. Defendants' Motion is DENIED as to the adequacy of Defendants' search. Defendants' Motion is DENIED as to Defendants' withholdings under Exemption 5 for (using the numbering of records on pages 15−18 of 17 Plaintiff's Opposition Brief): Records 1, 2, 3, 5, 6, 8, 12, and 15 in full; FOIA response pages 1904−06 of Record 10, except for the first two e−mails on page 1904; and Record 13 in full, except for the internal meeting minutes. Defendants must make all of those records and portions of records available to Plaintiff. Defendants' Motion is GRANTED as to other withholdings under Exemption 5 and all withholdings under Exemption 6. On or before December 13, 2012, the parties shall submit a joint proposed schedule for the remainder of the case. Signed by Judge James E. Boasberg on 11/27/2012. (lcjeb2) (Entered: 11/27/2012)

Case: 1:11-cv-1971 As of: 03/12/2017 12:36 AM EST 5 of 5

11/27/2012 11/28/2012 12/13/2012 12/13/2012
12/14/2012 03/13/2013
03/13/2013
03/13/2013 03/15/2013 03/15/2013 05/29/2013 05/30/2013

22 MEMORANDUM OPINION to 21 Order. Signed by Judge James E. Boasberg on 11/27/2012. (lcjeb2) (Entered: 11/27/2012)
Set/Reset Deadline: On or before 12/13/2012, the parties shall submit a joint proposed schedule for the remainder of the case. (ad) (Entered: 11/28/2012)
23 Joint MOTION for Briefing Schedule by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 12/13/2012)
MINUTE ORDER granting 23 Motion for Joint Proposed Briefing Schedule. The Court ORDERS that: (1) Defendants shall file a renewed motion for summary judgment by March 13, 2013; (2) Plaintiff shall file its opposition by April 12, 2013; and (3) Defendants shall file any reply by April 29, 2013. Signed by Judge James E. Boasberg on 12/13/2012. (lcjeb2) (Entered: 12/13/2012)
Set/Reset Deadlines: Defendants shall file a renewed motion for summary judgment by 3/13/2013; Plaintiff shall file its opposition by 4/12/2013; Defendants shall file any reply by 4/29/2013. (ad) (Entered: 12/14/2012)
24 Consent MOTION for Extension of Time to File Renewed Motion for Summary Judgment by UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 03/13/2013)
MINUTE ORDER granting Defendant's Consent 24 Motion for Extension of Time to File its Renewed Motion for Summary Judgment. The Court ORDERS that Defendant's renewed motion shall be filed on or before March 20, 2013. Signed by Judge James E. Boasberg on 3/13/2013. (lcjeb3) (Entered: 03/13/2013)
Set/Reset Deadline: Defendant's renewed motion shall be filed on or before 3/20/2013. (ad) (Entered: 03/13/2013)
25 STIPULATION of Settlement and Dismissal by AMERICAN IMMIGRATION COUNCIL. (Grant, Michelle) (Entered: 03/15/2013)
MINUTE ORDER: For the reasons set forth in the parties' 25 Stipulation of Settlement and Dismissal, the Court ORDERS that the case is DISMISSED WITH PREJUDICE. Signed by Judge James E. Boasberg on 3/15/2013. (lcjeb2) (Entered: 03/15/2013)
26 MOTION Publish Court's November 27, 2012 Opinion by AMERICAN IMMIGRATION COUNCIL (Grant, Michelle) (Entered: 05/29/2013)
MINUTE ORDER: Plaintiff has filed a 26 Motion to Publish the Court's November 27, 2012, Opinion. Such a motion is perplexing for two reasons. First, it is West Publishing, not this Court, that decides which opinions to publish in its Federal Supplement. Second, in addition to publishing the Opinion in Westlaw, West has already determined it will publish this Opinion in the Federal Supplement, as a quick Westlaw search reveals. See Am. Immigration Council v. U.S. Dep't of Homeland Sec., −− F. Supp. 2d −−, 2012 WL 5928643 (D.D.C. Nov. 27, 2012). Plaintiff's Motion, accordingly, is DENIED as moot. Signed by Judge James E. Boasberg on 5/30/2013. (lcjeb2) (Entered: 05/30/2013)

 
 INTERIM MEMO FOR COMMENT

Posted:

01-17-2012

Comment period ends: 02-14-2012

This memo is in e ect until further notice.

U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000

December 21, 2011

PM-602-0055

Policy Memorandum
SUBJECT: The Role of Private Attorneys and Other Representatives; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42
o Purpose
This policy memorandum (PM) provides guidance regarding the role of private attorneys and other representatives who appear before USCIS.
m Scope e This PM applies to and is binding on all USCIS employees. This PM replaces AFM Chapter 12,
parts 1-5 and Chapter 15, part 1(b)(2), parts 2-4, and adds new Appendix 12-1.
M Authority
Section 292 of the Immigration & Nationality Act
Interim 8 CFR 103; 292
Introduction U.S. Citizenship and Immigration Services (USCIS) is committed to ensuring the integrity of the immigration system. This goal is furthered when USCIS adjudicators recognize the range of individuals who may represent applicants and petitioners, respect the relationship between client and representative, and conduct interviews professionally. The Department of Homeland Security has rules of professional conduct for employees and practitioners who practice before the Department. This policy memorandum provides guidance to adjudicators and balances the meaningful role of attorneys and representatives in the interview process with the important responsibility of adjudicators to conduct fair, orderly interviews.
Background An applicant or petitioner for immigration benefits may be represented by an attorney in the United States, an attorney outside the United States (in matters occurring outside the geographical confines of the United States), or an accredited representative of a recognized organization.1 In addition, whenever an examination is required, the person involved has the right to be represented by an attorney or representative.2 This does not provide any applicant for admission to the United States with the right to representation, in either primary or secondary

1 8 CFR 103.2(a)(3) (2011) 2 8 CFR 292.5(b) (2011)

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 2
inspection at a port of entry or in an interview regarding a request for classification as a refugee, unless the applicant is the focus of a criminal investigation and has been taken into custody.
Prior to 1994, the regulations governing the adjudication of applications and petitions (8 CFR 103.2) did not include provisions specifically addressing the representation of applicants and petitioners during such proceedings. In 1991, the Immigration and Naturalization Service (“Service”) proposed amending the regulations at 8 CFR 103.2 to provide that an applicant or petitioner may be represented by an attorney in the United States, an attorney outside the United States (in matters occurring outside the geographical confines of the United States), or an accredited representative of a recognized organization.3 The Service proposed limiting the categories of eligible representatives in application and petition proceedings from the “broad
o range” of representatives listed in 8 CFR 292.1. Moreover, in order to properly document
representation, the Service proposed revising 8 CFR 292.4(a)(4) to require that an applicant or petitioner sign the notice of appearance in order to authorize representation before the Service.4 In adopting these changes in a final rule in 1994, the Service determined that the reasons cited in
m the supplemental information in the proposed rule supported requiring the signature of the
applicant or petitioner on the G-28 and that this was also a way to help combat the unauthorized
e practice of law by ineligible individuals.5 This final rule included the language in
8 CFR 103.2(a)(3) that exists today6 and added to 8 CFR 292.4 the requirement that the notice of appearance form be signed by the applicant or petitioner in order to authorize representation
M before the Service.7 Interim In 2010, the regulations at 8 CFR 292.1 were revised to specifically reference the limited
categories of eligible representatives in application and petition proceedings set forth in 8 CFR 103.2(a)(3).8 The change reinforced the determination that the other categories of representatives listed in 8 CFR 292.1 (law students, law graduates, reputable individuals and accredited officials) may not submit a notice of appearance form in application and petition proceedings before DHS, and notification regulations do not apply to them.9 These other categories of individuals may appear as “other representatives” at interviews or other in-person meetings with USCIS officials. However, the appearance of these “other representatives” is subject to the approval of the USCIS official after the individual submits a statement addressing the requirements specified in 8 CFR 292.1(a)(2) and (3).
3 Changes in Processing Procedures for Certain Applications and Petitions for Immigration Benefits, 56 Fed. Reg. 6120161202 (proposed Dec. 2, 1991) (to be codified at 8 CFR 103, 214, 223, 223a, 248, 264 and 292) 4 Id. 5 Changes in Processing Procedures for Certain Applications and Petitions for Immigration Benefits, 59 Fed. Reg. 1455 (Jan. 11, 1994) (amending 8 CFR 103, 214, 223, 223a, 248, 264 and 292) 6 Id. at 1460. 7 Id. at 1466. 8 Professional Conduct for Practitioners: Rules, Procedures, Representation, and Appearances, 75 Fed. Reg. 5225, 5227 (Interim rule with request for comments Feb. 2, 2010) (amending 8 CFR 1 and 292) 9 Law students and law graduates are permitted to provide their name and sign the Form G-28 filed by the supervising attorney or accredited representative. Instructions to Form G-28.

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 3
Policy Effective immediately, USCIS Officers will follow the instructions contained in Chapter 12 of the AFM as amended by this PM.
Implementation The AFM is revised as follows.
 1. Revise the Table of Contents for Chapter 12 to read:
Chapter 12 Private Attorneys and Other Representatives
o 12.1 Representation in Immigration Proceedings
12.2 Notice of Entry of Appearance 12.3 Proper Service of Documents & Notices 12.4 Interviews
m 12.5 Conduct of Attorneys & Representatives
12.6 Role of USCIS District Directors in the Board of Immigration Appeals
e Recognition and Accreditation Process. M References
Section 292 of the INA
Interim 8 CFR 103 and 292
 2. Revise Chapter 12 to read:
Chapter 12: Private Attorneys and Representatives
Chapter 12.1 Representation before USCIS
(A) General
An applicant or petitioner may be represented by an attorney in the United States, an attorney outside the United States (in matters occurring outside the geographical confines of the United States), or an accredited representative of a recognized organization.10 In addition, whenever an examination is required, the person involved has the right to be represented by an attorney or representative.11 This does not provide any applicant for admission the right to representation, in either primary or secondary inspection or in an interview regarding a request for classification as a refugee, unless the applicant is the focus of a criminal investigation and has been taken into custody.
10 8 CFR 103.2(a)(3) (2011) 11 8 CFR 292.5(b) (2011)

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 4
Title 8 CFR 292.1 lists the types of individuals who may represent an individual before USCIS. Attorneys in the United States, attorneys outside the United States, and accredited representatives may provide legal representation after filing a Notice of Entry of Appearance on Form G-28 or G-28I. See below for specific details. Title 8 CFR 292.1 also lists other categories of representatives – reputable individuals, law students, law school graduates, and accredited officials – who may assist an individual before USCIS. These individuals must provide additional information to the DHS official before whom they seek to appear, and that official must permit their appearance. These representatives are not eligible to file a notice of appearance (Form G-28) in application and petition proceedings, and USCIS does not communicate with
o them in writing regarding application or petition proceedings.12 Each of these
representatives must file a statement or declaration described in greater detail below. The original of this document is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding.
m These individuals may not engage in the practice of law, but may apply to appear ine person before a DHS official at an interview or other meeting or appointment at a
USCIS office in order to support an applicant or petitioner and provide non-legal assistance. However, these guidelines do not preclude any individual (such as a family
M member, friend, colleague, etc.) from helping an applicant or petitioner with the
completion of forms, so long as the assistance does not constitute practice or
Interim preparation, as that term is defined in 8 CFR 1.1(k).
(B) Attorneys in the United States
An “attorney” is any person who is eligible to practice law in and is a member in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the United States, or of the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law.13  An attorney need not be admitted to practice in the state in which his or her office is
located or where the applicant or petitioner resides, and may have an office outside the United States, as long as he or she is an attorney as defined in the regulations.  USCIS employees must routinely consult the DHS Disciplinary Counsel website for information on how to verify the eligibility of an attorney.  An attorney must submit a “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form G-28) in each case in which he or she seeks to appear. The form must be properly completed and signed by the petitioner or applicant in order for the appearance to be recognized by USCIS.14
12 Id. 13 8 CFR 1.1(f) (2011) 14 8 CFR 292.4(a) (2011); Instructions for Form G-28 (Rev. 04/22/09)N

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 5
(C) Attorneys outside the United States
An “attorney outside the United States” is an attorney (other than one who fulfills the requirements of an “attorney” in the United States) “who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which he or she resides and who is engaged in such practice.”15  An attorney outside the United States may only represent applicants or petitioners in
matters outside the geographical confines of the United States at a USCIS overseas office. He or she must receive permission to appear from the USCIS official before whom he or she wishes to appear.  In order to establish eligibility, such an attorney must establish that he or she resides
o outside the United States in the country in which he or she was admitted to the
practice of law, and that he or she is engaged in practice in that country.  An attorney outside the United States must submit a “Notice of Entry of Appearance
as Attorney in Matters Outside the Geographical Confines of the United States”
m (Form G-28I) in each case in which he or she seeks to appear.
 The form must be properly completed and signed by the petitioner or applicant for
e the appearance to be recognized by USCIS.16 M (D) Accredited Representatives
An “accredited representative” is a person who represents an organization that has
Interim been recognized by the Board of Immigration Appeals (BIA) to practice before the
Executive Office for Immigration Review (EOIR), including the immigration courts, the BIA and DHS.17  EOIR maintains a list of Recognized Organizations and accredited representatives
who have authority to represent individuals before EOIR and DHS at www.justice.gov/eoir/legalrepresentation.htm.  Accredited representatives must submit a “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form G-28) in each case in which they seek to appear.  The form must be properly completed and signed by the petitioner or applicant for the appearance to be recognized by USCIS.18
(E) Reputable Individuals
A reputable individual is an individual of good moral character who appears on an individual case basis at the request of the person entitled to representation. The reputable individual must have a pre-existing relationship with the applicant or petitioner (e.g., relative, neighbor, clergyman, business associate or personal friend), and must
15 8 CFR 292.1(a)(6) (2011) 16 8 CFR 292.4(a) (2011); Instructions for Form G-28I (04/22/09) 17 8 CFR 292.1(a)(4) & 8 CFR 292.2 18 8 CFR 292.4(a) (2011); Instructions for Form G-28 (Rev. 04/22/09)N

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 6

not receive payment directly or indirectly for his representation.19 A USCIS official may
waive the requirement that a pre-existing relationship exist between the applicant or
petitioner and the representative in cases where adequate representation would not otherwise be available.20

 The reputable individual must submit a declaration that states that he or she is

appearing without direct or indirect remuneration. (See Sample Declaration in


 

Appendix 12-1).
The reputable individual must receive permission from the DHS official before whom he or she wishes to appear. In order to determine whether or not to grant the request of a person seeking to appear as a reputable individual, the DHS official
o should review the declaration presented and ask the individual questions regarding
his or her eligibility and record this information in the record of proceedings. Permission will not be granted to any individual who regularly engages in immigration and naturalization practice or preparation or holds himself or herself out
m to the public as qualified to do so.21
USCIS does not accept Forms G-28 filed by reputable individuals, as they are not
e included in the limited category of representatives in 8 CFR 103.2(a)(3).22
The reputable individual who is granted permission to appear with an applicant or petitioner may appear only in person in that case. The reputable individual will not
M receive copies of notices or other written communication that USCIS sends to the

individual being represented.23

Interim (F) Law Students and Law School Graduates
Law students who are enrolled in an accredited U.S. law school and law graduates of an accredited U.S. law school not yet admitted to the bar may provide representation, constituting practice and preparation, with the supervision required in 8 CFR 292.1(a)(2).
 Law students and law graduates must seek permission to appear in proceedings before DHS officials.24 The USCIS officer may require that the supervising faculty member, attorney, or accredited representative appear with the law student or law graduate.25
 A law student enrolled in an accredited U.S. law school must file a statement that states that, he or she is participating under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or

19 8 CFR 292.1(a)(3) (2011) 20 8 CFR 292.1(a)(3)(iii) (2011) 21 8 CFR 292.1(a)(3)(iv) (2011) 22 8 CFR 103.2(a)(3); 292.1(a); 292.4(a) (2011) ; Instructions for Form G-28 (Rev. 04/22/09)N 23 8 CFR 103.2(a)(3) and 292.5(a) (2011).
24 8 CFR 292.1(a)(2)(iv) (2011) 25 8 CFR 292.1(a)(2) (2011)

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 7
clinic conducted by a law school or non-profit organization, and is appearing without direct or indirect remuneration from the individual he or she represents.26  A law school graduate of an accredited U.S. law school who is not yet admitted to the bar must file a statement that states that he or she is appearing under the supervision of an attorney or accredited representative, and is appearing without direct or indirect remuneration from the applicant or petitioner.27  The supervising attorney or accredited representative of a law student or law graduate must submit a “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form G-28) on which the law student or law graduate provides his or her name and signature.28 All notices and communication to the applicant/petitioner’s representative in such cases should be addressed to the
o supervising attorney or accredited representative listed on the G-28 (not the law
student or law graduate).  If the USCIS officer observes an action by a law student or graduate that provides
good cause for the officer to believe that the representation by the law student or
m graduate will impair the efficient conduct of the proceeding, the USCIS officer may
alert a USCIS supervisor who may contact the supervising faculty member, attorney,
e or accredited representative. M (G) Accredited Officials
Although it is rare, an accredited official of the alien's home government (e.g., a
Interim consular officer) may represent an alien if the official is in the United States and appears
solely in his official capacity and with the applicant or petitioner’s consent.29  In exercising discretion to allow an accredited official to appear before DHS, DHS
officials should ensure that the individual does not regularly engage in immigration practice or preparation or hold himself out to the public as qualified to do so. To properly document this exercise of discretion, DHS officials should request such individuals submit a written statement in support of their appearance, addressing the relevant factors. (See Sample Statement in Appendix 12-1.)  DHS does not send notices or other written communications to accredited officials.
12.2 Notice of Entry of Appearance
(A) Filing a Notice of Entry
Attorneys, attorneys outside the United States, and accredited representatives must establish their eligibility to appear on the form designated by DHS in each case.30
26 8 CFR 292.1(a)(2) (2011) 27 8 CFR 292.1(a)(2) (2011) 28 8 CFR 292.1(a)(2) (2011); Instructions to Form G-28. (Submitted to OMB on Oct. XX, 2011 for 60 day notice) 29 8 CFR 292.1(a)(5) (2011) 30 8 CFR 292.4(a) (2011)

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 8
 Attorneys and accredited representatives must submit a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative.
 Attorneys outside the United States must submit a Form G-28I, Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States.
 The Form G-28 and Form G-28I must be properly completed and signed by the applicant or petitioner in order for the appearance to be recognized by USCIS. Once the Form G-28 or Form G-28I is accepted, the appearance will be recognized until the conclusion of the matter for which it was entered.
 When filing an appeal with the Administrative Appeals Office on Form I-290B, the attorney or accredited representative must file a new Form G-28.
o  Other representatives (law students and law graduates, reputable individuals, and accredited officials) may not submit Form G-28 or Form G-28I and may only appear after filing a statement in which they provide specific information listed in the regulations.31 The appearance of these other representatives is subject to m the approval of the USCIS official before whom they seek to appear.32
e USCIS officers may verify an attorney’s or accredited representative’s eligibility and
require further proof of authority to act in a representative capacity. Officers should seek more information at the DHS Disciplinary Counsel website and at
M www.justice.gov/eoir/legalrepresentation.htm. Officers should also reference the list of
disciplined practitioners at http://www.justice.gov/eoir/discipline.htm, which includes
Interim attorneys and accredited representatives who are currently expelled or suspended from
practice before DHS and EOIR. USCIS officers should be aware of individuals who have falsely claimed to be attorneys or accredited representatives when they are not and individuals who have been the subject of federal state or local court action to stop their unauthorized practice of law or theft of fees for legal services they may not lawfully provide. USCIS is not to communicate with such individuals, even if they submit a “Notice of Entry of Appearance as Attorney or Representative” (Form G-28) in a case.
(B) Substitution or Withdrawal of Representation
It is not uncommon for applicants or petitioners to wish to change representatives or elect to forgo representation during the course of a proceeding. Substitution or withdrawal of an attorney or accredited representative may be made upon the written withdrawal of the attorney or accredited representative of record or upon notification of the new attorney or accredited representative.33 An applicant or petitioner may elect to proceed without his or her representative, but must submit a written statement to the USCIS official that he or she has voluntarily chosen to proceed without representation.
31 8 CFR 292.1(a)(2), (3) and (5) (2011). 32 See fn. 28. 33 8 CFR 292.4 (2011)

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 9
12.3 Proper Service of Documents & Notices
Once an attorney (whether in or outside the United States) or accredited representative has filed a properly completed Form G-28 or Form G-28I on behalf of an applicant or petitioner, USCIS is required to serve documents and notices on the attorney or accredited representative.34 Original notices and documents evidencing lawful status in the United States based on the approval of a benefit request will be sent to the attorney or accredited representative whom the applicant or petitioner has authorized to receive such notices and documents on his or her behalf. In such instances, a copy of the benefit notice will also be sent to the applicant or petitioner. EXCEPTION: Secure identification documents such as Form I-551, Permanent Resident Card or Form I-766,
o Employment Authorization Document, can only be sent to the applicant.35
In all other instances (e.g., where the applicant or petitioner is not represented), original benefit notices and documents evidencing lawful status that are issued based on the
m approval of a benefit request will be sent directly to the applicant or petitioner. e In matters where the Form G-28 or Form G-28I is not accepted because the individual is
not an eligible representative or because the form is not properly signed, the application or petition will be processed as if the applicant or petitioner is unrepresented.36 The
M receipt notice and any other notices will be sent only to the applicant or petitioner. Interim 12.4 Interviews
When an examination is to be conducted in immigration proceedings, the person involved has the right to be represented, at no expense to the government, by an attorney or representative, as defined in 8 CFR 292.1(a). The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected.
Only an attorney, an attorney outside the United States, an accredited representative, or a law student or law graduate appearing with proper supervision and with the permission of a DHS official may provide legal advice to an applicant, petitioner, or witness.37 USCIS may allow other eligible representatives (including reputable individuals, law students, and law school graduates), who have obtained the consent of the applicant, petitioner, beneficiary or other witness, to appear at interviews with the individual. These individuals must seek permission from the presiding DHS official to appear at the interview. Other categories of representatives may provide non-legal assistance and support that does not constitute practice or preparation, as defined in 8 CFR 1.1.
34 8 CFR 292.5 (2011). 35 8 CFR 103.2(b)(19) 36 8 CFR 103.2(a)(3) (2011) 37 8 CFR 1.1(i), (j) and (k).

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 10
When conducting an interview of a petitioner and beneficiary simultaneously, attorneys or eligible representatives of both the petitioner and beneficiary will be permitted to appear at the interview.38 In visa petition proceedings, representatives who have obtained the consent of the petitioner should be recognized in interviews with the petitioner. Representatives who have obtained the consent of the beneficiary should be recognized in interviews with the beneficiary. Any individual appearing in a representative capacity may not respond to questions the interviewing officer has directed to the applicant, petitioner, or witness, except to ask clarifying questions.
An attorney or representative of an applicant or petitioner may not simultaneously serve
o as his or her client’s interpreter during an interview.39 If, after being so advised, the
attorney or other representative continues to interpret for the applicant or petitioner or otherwise disrupts the interview, USCIS may terminate the interview and advise the parties that the interview cannot be completed under these circumstances and that
m USCIS will proceed to make a decision based on the record of proceedings. e 12.5 Conduct of Attorneys and Representatives
DHS has rules of professional conduct for practitioners who practice before the
M Department’s immigration agencies.40 Under the rules, practitioners (attorneys,
accredited representatives and other categories of representatives permitted to appear
Interim by DHS) are subject to discipline for criminal, unethical, or unprofessional conduct.
Complaints of professional misconduct by practitioners should be reported to the DHS Disciplinary Counsel. USCIS officers should visit the Disciplinary Counsel website for more information on professional conduct, reporting misconduct, and how to verify the eligibility of an attorney or accredited representative.
Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview. If a discussion becomes argumentative, the officer should seek assistance from a supervisor. The attorney or representative may raise an objection on an inappropriate line of questioning and, as a last resort, may request supervisory review without terminating the interview. Where necessary, disagreements between USCIS officers and attorneys or other representatives regarding the appropriate role of the attorney or other representative in USCIS interviews, should be elevated to the Field Office Director. USCIS employees may not file complaints directly to state bar disciplinary authorities. Complaints of unethical and unprofessional conduct by attorneys or other representatives should be reported to DHS Disciplinary Counsel through appropriate supervisory channels.
38 8 CFR 103.2(a)(3) (2011) 39 Exceptions may be made if the interests of the Government will not be prejudiced. 40 8 CFR 292.3 (2011)

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 11
 3. Add Appendix 12-1 the Table of Contents for Appendices.
Appendix 12-1 Sample Statements and Declarations

Memo



Interim 4. Appendix 12-1 is added as follows:

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 12
Appendix 12-1 Sample Statements and Declarations

SAMPLE STATEMENT OF LAW STUDENT REQUESTING PERMISSION TO APPEAR BEFORE A USCIS OFFICIAL

I, John Smith, seek permission to appear before Mary Jones, a USCIS official, on behalf

of Jane Doe, a person entitled to representation, as a law student enrolled in Anystate Law School, an accredited U.S. law school.
I am appearing at the request of Jane Doe, a person entitled to representation.
o I am participating under the direct supervision of Sam Samuels, a faculty member,
Susan Williams, a licensed attorney, or Joe Johnson, a BIA accredited representative in a legal aid program or clinic conducted by a law school or non-profit organization.
m I am appearing without direct or indirect remuneration from the individual I seek to
represent.

Me John Smith

January 1, 2012

Interim ______________________________
Signature

______________________________ Date

I, Mary Jones, the USCIS official before whom John Smith seeks to appear as a representative, in the exercise of discretion GRANT the request.

Mary Jones
_____________________________ Signature

January 1, 2012
_____________________________ Date

The original of this document is to be maintained by the USCIS official in charge of the

office in which the request was made, with a copy filed in the record of proceeding.

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 13
SAMPLE STATEMENT OF A LAW GRADUATE REQUESTING PERMISSION TO APPEAR BEFORE A USCIS OFFICIAL

I, John Smith, seek permission to appear before Mary Jones, a USCIS official, on behalf of Jane Doe, a person entitled to representation, as a graduate of Anystate Law School, an accredited U.S. law school, who is not yet admitted to the bar.

I received my law degree on June 1, 2011 and will take the bar examination on February 21, 2012; or, sat for the bar examination on July 24, 2011 and have not yet received my results.
o I am appearing at the request of Jane Doe, a person entitled to representation.
I am appearing under the supervision of Susan Williams, a licensed attorney, or Joe
m Johnson, an accredited representative. I am appearing without direct or indirect
remuneration from the individual I seek to represent.

Me John Smith

January 1, 2012

Interim ______________________________
Signature

______________________________ Date

I, Mary Jones, the USCIS official before whom John Smith seeks to appear as a representative, in the exercise of discretion GRANT the request.

Mary Jones
_____________________________ Signature

January 1, 2012
_____________________________ Date

The original of this document is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding.

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 14
SAMPLE DECLARATION OF A REPUTABLE INDIVIDUAL REQUESTING PERMISSION TO APPEAR BEFORE A USCIS OFFICIAL

I, John Smith, seek permission to appear before Mary Jones, a USCIS official, on behalf of Jane Doe, a person entitled to representation, as a reputable individual of good moral character, as defined in 8 CFR 292.1(3).

I am appearing on an individual case basis at the request of Jane Doe, a person entitled to representation. I am appearing without direct or indirect remuneration. I have a preexisting relationship with Jane Doe as a relative, neighbor, clergyman, business
o associate, and/or personal friend.

I am not regularly engaged in immigration and naturalization practice or preparation, nor do I hold myself out to the public as qualified to do so.

m I declare, under penalty of perjury under the laws of the United States of America, that e this statement is all true and correct.

M John Smith

January 1, 2012

______________________________

______________________________

Interim Signature

Date

I, Mary Jones, the USCIS official before whom John Smith seeks to appear as a representative, in the exercise of discretion GRANT the request

Mary Jones
_____________________________ Signature

January 1, 2012
_____________________________ Date

The original of this document is to be maintained by the USCIS official in charge of the

office in which the request was made, with a copy filed in the record of proceeding.

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 15
SAMPLE STATEMENT OF AN ACCREDITED OFFICIAL REQUESTING PERMISSION TO APPEAR BEFORE A USCIS OFFICIAL

I, John Smith, seek permission to appear before Mary Jones, a USCIS official, on behalf of Jane Doe, a person entitled to representation, as an accredited official of the Nowhereland government to which Jane Doe owes allegiance.

I am not regularly engaged in immigration and naturalization practice or preparation, nor do I hold myself out to the public as qualified to do so.
o I am appearing with the consent of Jane Doe, a person entitled to representation.

John Smith
m ______________________________ e Signature

January 1, 2012
______________________________ Date

M I, Mary Jones, the USCIS official before whom John Smith seeks to appear as a

representative, in the exercise of discretion GRANT the request.

Interim Mary Jones
_____________________________ Signature

January 1, 2012
_____________________________ Date

The original of this document is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding.

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 16
 5. Revise Chapter 15.1(b)(2) to read:
15.1 Interview Policies
(b) Scheduling Interviews and Evaluating Requests for the Rescheduling of Interviews . [Revised 11-23-2005]
(2) Evaluating Requests for the Rescheduling of Interviews (See 8 CFR 103.2(b)(9) )
Prior to and at the date and time of the interview, an applicant or petitioner may (a)
o withdraw the application or petition; or (b) request, for good cause, that the interview be
rescheduled.
In order to reschedule the interview, the adjudicator, in his or her discretion, must
m determine that the applicant, petitioner, beneficiary, or other individual is unable to
appear at the scheduled date and time because of circumstances beyond the
e individual’s control.
If the adjudicator determines that good cause exists for the applicant or petitioner’s
M request, the adjudicator will reschedule the interview and mail a new interview notice. If
the adjudicator determines that no good cause exists, the adjudicator will adjudicate the
Interim application or petition as instructed in AFM Chapter 15.1(d)(2) .
An attorney or representative authorized to act on behalf of the applicant or petitioner may also submit a good cause request for rescheduling the interview.
If an attorney or other representative is unable to attend an interview for good cause, the local office should make best efforts to accommodate a timely request to reschedule an interview. Such requests are considered to be for good cause when the attorney or other representative has notified the local office that he or she is unable to appear at the scheduled date and time because of circumstances beyond his or her control, including but not limited to, scheduling conflicts resulting from a requirement that the attorney or other representative appear in court, previously planned travel, and any situation where two interviews of clients represented by the same attorney or representative are scheduled at the same time.
When an attorney or other representative is unable to attend the interview for any reason, the individual being interviewed may elect to proceed with the interview without his or her representative. The applicant’s or petitioner’s decision to proceed without his or her attorney or accredited representative must be voluntary. If the individual wishes to proceed without his or her representative the USCIS official should obtain a written statement from the individual. When possible, the attorney or accredited representative should communicate his or her consent to proceed without him or her present. The

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 17
officer may still consider statements and submissions by the individual’s attorney or other representative in his or her absence.
 6. Revise Chapter 15.2 to read:
15.2 Interview Environment.
(a) Adjudications Environment
It is essential that the person being interviewed appreciate the importance and
o seriousness of the proceedings. To ensure this, the setting in which the interview takes
place must be orderly and official in appearance. Desktops should be uncluttered and files should be housed in cabinets. Flags, USCIS and DHS seals and other official displays can enhance the official appearance. Excessive amounts of personal items
m should not be displayed in view of applicants as these may be distracting or detract from
the serious nature of the proceedings.
e Because adjudications units in local USCIS offices are generally very busy with a high
volume of applicants appearing for adjustment, naturalization, marriage fraud and
M conditional resident removal interviews, it is essential that adequate office space be
provided for each district adjudications officer.
Interim Sufficient seating for the officer and applicant, attorney or other representative and
family members should be provided. The attorney or other representative should be seated directly next to the person being interviewed to facilitate appropriate participation unless the physical layout of the interview space cannot accommodate it. If the officer has a concern that the seating arrangements may be inhibiting or negatively impacting the interview process, he or she should contact a supervisor for guidance.
(b) General Office Environment
Ideally, individual offices or high-walled, acoustically insulated, modular offices with doors should be provided to ensure a reasonable level of privacy. Offices should be equipped with video or audio taping devices. If the district lacks sufficient recording equipment, arrangements should be made to provide such equipment for, at least, the most difficult cases. Each work station should be provided with sufficient storage space for files, supplies, research materials and personal items, so that the office remains uncluttered. Acoustical ceiling tiles or other sound dampening material should be installed to minimize noise from other interviews and protect the privacy of each applicant. Lighting and ventilation should be adequate for a pleasant, comfortable and efficient working environment. USCIS will make every effort to make reasonable accommodations for applicants with disabilities. When possible, the public waiting area

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 18

should be reasonably proximate to the interview area to minimize lost time between interviews.

 7. Revise Chapter 15.3 to read:

15.3 Officer Conduct and Appearance

(a) Appearance
It is imperative that the officer conducting the interview dress in a professional manner. Both males and females should wear appropriate business attire, although some offices
o may permit "business casual" attire on certain days.
(b) Conduct and Attitude
m All interviews should be conducted in a courteous and businesslike manner. The
following guidelines will ensure that the interview is conducted professionally:
e  Maintain control of the interview at all times. "Maintaining control" does not mean being overbearing or abusive; on the contrary, it requires that the officer maintain M a professional demeanor at all times. The exact nature of that professional demeanor will sometimes vary, according to the interview techniques being


  

Interim employed (see below). The ability of the officer to maintain control of him/herself
is instrumental in maintaining control of the interview. Speak clearly, distinctly and not too rapidly, using plain and simple language when questioning an applicant, petitioner or witness. Avoid complex and lengthy questions, and always obtain a responsive answer before proceeding to the next question. Avoid using USCIS or government jargon. At all times, maintain due regard for the rights of the person being questioned. Avoid arguments with the person being interviewed, as well as remarks of a personal nature that may be taken as a reflection of a judgment of a personal lifestyle. Refrain from making any extraneous comments or asking extraneous questions, as they are irrelevant to the purpose of the interview and detract from the professional demeanor that the officer should maintain. Avoid questions about a person’s religious beliefs or practices unless they are relevant to determine the

individual’s eligibility for a benefit. Do not make any comments that might be

taken as a negative reflection upon any other person, race, religion, or country.

 Maintain professional conduct even if the interviewee becomes abusive or if

derogatory information is developed. If necessary, contact a supervisor.

 Be fair, courteous, and patient without diminishing in any degree full and

complete development of the material facts, whether they be favorable or

adverse to the person being interviewed or any other person.

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 19
 When questioning persons concerning sexual relations, always avoid questions which can be construed solely as prurient or prying.
 Ensure that your demeanor is unprejudiced, impartial, and creates no foundation for complaints that you have been unfair or have used any mistreatment or duress.
 8. Revise Chapter 15.4 to read:
15.4 Interview Procedures
(a) Basic Interview Procedures and Techniques
o Conducting successful interviews is a skill which requires knowledge and experience.
Successful approaches will vary widely depending on the interviewer, the interviewee, and subject and purpose of the interview. Certain standards (such as those relating to
m the rights of the individual and the need for professionalism) remain constant; others
change according to the circumstances.
e Interview proceedings are not to be adversarial in nature. The purpose of the interview
is to obtain the correct information in order to make the correct adjudication of the case,
M not to prove a particular point or to find a reason to deny the benefit sought. The
purpose is to cover (and discover) all the pertinent information, both favorable and
Interim unfavorable to the applicant.
The following observations apply to all interviews:
(b) Preparing for the Interview
 The successful interview process begins when USCIS issues a call-in notice. In addition to accurately explaining the purpose of the interview, the notice should instruct the attorney (or in an unrepresented case, the interviewee(s)) on what to bring to the interview. In all cases, the notice should at least instruct the attorney / interviewee(s) to bring the originals of all documents previously submitted as photocopies.
 Do not commence an interview, even though time may be limited, until you have reviewed the application or petition and relating material, including submissions made by the applicant or the applicant’s attorney or representative. Depending upon the case, this may range from a rapid scanning of the file to an intensive study of all available material. However, it is essential that the review of the material be made before commencing the questioning in order for the adjudicator to have the requisite knowledge and understanding of all the facts and circumstances involved in the case. Otherwise, the questioning may not cover all pertinent points. The review should be sufficiently thorough to enable the adjudicator to cover all issues necessary for an adjudication, thereby avoiding

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 20

any need for recalling the applicant, petitioner, or witness for further questioning

on an issue which could have been covered during the initial interview. Review

of the applicable provisions of the law and precedent decisions also should be

made, if necessary, to ensure thorough familiarity with any legal issue that may

be developed by questioning. In addition, when possible the adjudicator should

review submissions made at the time of an interview that may assist in resolving

legal issues. The more complete the preliminary preparation of the case prior to

beginning the interview, the better equipped you will be to conduct an efficient interview, without time-wasting repetition or needless questions.  If complex issues are involved, prepare an outline of the logical sequence of questioning to be followed, the information to be developed, and the evidence to
o be utilized. Such outlines are most conducive to eliciting all essential facts.
Additionally, it may be advisable to select certain material from the file or relating files and arrange such material in the sequence of the plan of questioning. The extent of necessary preliminary preparation depends upon the issues involved in
m the individual case. e (c) At the Interview
 Greet the interviewee in a polite, dignified manner to put him or her at ease.
M  Identify yourself, giving your name and title.

 Begin the interview with an explanation in non-technical terms of the purpose of

  

Interim the interview.
Obtain identification from all parties to the interview, including interpreters, attorneys, and/or other representatives, unless identity has been previously established. Administer the following oath: "Do you solemnly swear (or affirm) that the statements you are about to make will be the truth, the whole truth, and nothing but the truth?" The oath or affirmation should always be administered in such a manner as to impress upon the person being interviewed the solemnity of the occasion and the importance of the testimony that he is about to give. The adjudicator and the person(s) to be sworn or affirmed should stand and raise their right hands during the administration of the oath or affirmation. The fact that the interview is being conducted under oath or affirmation should be noted in the transcript or in the file. If a verbatim question and answer statement is taken, the exact wording of

the oath or affirmation should be included in the transcript. If such statement is

not taken, the memorandum record of the interview should show that the person

was under oath or affirmation.

 An applicant or the applicant’s attorney or representative should be permitted to

present documents or other evidence that may help to clarify an issue of concern

to the interviewer. When possible, such evidence should be submitted and

reviewed before the interview, and when relevant, should be added to the

applicant’s file.

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 21

 In certain other types of cases where more than one individual is to be

questioned, it is generally best to question each party separately, asking each

party several of the same questions in order to identify inconsistent answers. It

may be necessary to recall either party for further questioning if contradictory

answers are provided. In other types of interviews, an entire family group may

be interviewed collectively.

 In a case where there is reason to believe that a witness under oath has given or

may give false testimony, it may be advisable to inform the subject that willfully giving false testimony on a material matter under oath constitutes the crime of perjury, and that a person convicted of perjury is subject to a penalty of a fine, imprisonment or both. (However, see the comment below about challenging
o every false statement immediately.)
 Should the interviewing officer be required to leave the office for any reason during the interview, the relating file(s) should be removed to avoid unauthorized review during the officer's absence.
m (d) Questioning Techniques e  All questions are either "closed-ended" or "open- ended."
o Closed-ended questions call for specific, factual and usually brief
M responses (e.g., “Have you ever been arrested?”).

o Open-ended questions solicit views, opinions, thoughts and feelings and



Interim generally call for longer, narrative-type responses (e.g., "Tell me about
any arrest you have had."). Open-ended questions are normally more useful in assessing an individual's credibility and for eliciting statements which may later be supported or contradicted. o Leading questions, which assume a controversial fact or suggest the answer, should be avoided except to expedite obtaining preliminary identifying material. For example, the leading question "You have never been arrested?" anticipates and assumes the subject’s answer.
Persons being questioned should be permitted to give a full explanation of any issue involved in the case. Fairness requires consideration of all relevant evidence. In some instances, detailed questioning may be desirable in order to make it more difficult for the subject to disavow his statements at a later time or to fabricate a new story. In this connection, however, remember that an adjudicator is duty-bound to develop the facts, favorable as well as unfavorable,

with equal fairness to the subject and to the interests of the Government.

(e) Concluding or Terminating an Interview

An adjudicator should not unnecessarily prolong an interview, but should conclude it when all necessary information has been elicited. The subject(s) should be thanked for cooperating and providing information.

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 22
On some occasions it may be necessary to terminate an interview even though all essential information has not been elicited; however, termination should be avoided whenever possible. Termination may be necessary in the following situations, which are not intended to be exclusive:
 The interviewee is unable to communicate without an interpreter and one is not available.
 An interpreter clearly has difficulty in translating effectively.  The officer has reasonable doubts about either the ability or impartiality of an
interpreter supplied by the interviewee, and a USCIS or DHS interpreter is not
o immediately available.
 An attorney or other representative of an applicant or petitioner insists on responding to questions or coaching the person being interviewed.
 An attorney or other representative of an applicant or petitioner insists on
m interpreting for his or her client during an interview.
 The subject refuses to respond to questions essential to the successful
e completion of the interview.
The interviewing officer should explain the reason(s) for the termination. When
M appropriate, the interview should be rescheduled and (if needed) arrangements made
for a competent interpreter. If the subject(s) or representative insists on continuing, a
Interim supervisor should be informed of the reason for the termination. It is the responsibility
of the supervisor to determine if termination is warranted and to deal with the subject(s) and/or representative if they refuse to accept an unfavorable determination.
(f) After the Interview
 An alien, or attorney or accredited representative with a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28), may request a personal review and/or copy of the record of proceedings, including any written record of an interview conducted before a USCIS officer. The requesting party may file a Freedom of Information/Privacy Act Request (Form G-639) with USCIS to gain access to other record material.
[See also Appendix 15-2, Techniques for Interviewing and Preparing Sworn Statements.]

PM-602-0055: The Role of Private Attorneys and Other Representatives; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 23

 9. The AFM Transmittal Memoranda button is revised by adding new entries, in numerical order, to read:

AD11-42

 Chapter 12

This PM amends the AFM to include a

12/21/2011

 Appendix 12-1

revised Chapter 12, Private Attorneys

 Chapter 15.1(b)(2) and Other Representatives; new

 Chapter 15.2

Appendix 12-1, Sample Affidavits; and

 Chapter 15.3  Chapter 15.4

revisions to Chapter 15.1(b)(2), Chapter 15.2, Chapter 15.3, and Chapter 15.4.

o Use
This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in
m removal proceedings, in litigation with the United States, or in any other form or manner. e Contact Information
Questions or suggestions regarding this PM should be addressed through appropriate channels to
M your Directorate.

Interim

 
 U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000

May 23, 2012
Policy Memorandum

PM-602-0055.1

SUBJECT: Representation and Appearances and Interview Techniques; Revisions to Adjudicator’s Field Manual (AFM) Chapters 12 and 15; AFM Update AD11-42

Purpose This policy memorandum (PM) provides guidance regarding representation and appearances and interview techniques in certain application and petition proceedings before USCIS.
Scope This PM applies to the adjudication processes of the Field Operations and Service Center Operations Directorates and the International Operations Division of the Refugee, Asylum, and International Operations Directorate. This PM replaces AFM Chapter 12, parts 1-5 and Chapter 15, parts 1(a), 1(b)(2), 2-4, and adds new Appendix 12-1. This PM does not apply to the Asylum Division or the Refugee Affairs Division of the Refugee, Asylum, and International Operations Directorate or site visits conducted by the Fraud Detection and National Security Directorate, which are governed by other established procedures, guidance, and lesson plans.
Authority Section 292 of the Immigration & Nationality Act 8 CFR 1; 103; 292
Introduction U.S. Citizenship and Immigration Services (USCIS) is committed to ensuring the integrity of the immigration system. This goal is furthered when USCIS adjudicators recognize the range of individuals who may represent applicants and petitioners, respect the relationship between client and representative, and conduct interviews professionally. The Department of Homeland Security has rules of professional conduct for employees and practitioners who practice before the Department. This policy memorandum provides guidance to adjudicators and balances the meaningful role of attorneys and other representatives in the interview process with the important responsibility of adjudicators to conduct fair, orderly interviews. This policy memorandum provides guidance for appearances and interview techniques in application and petition proceedings before USCIS; however, it does not apply to asylum or refugee processing procedures or site visits conducted by the Fraud Detection and National Security Directorate, for which specific guidance exists. In the refugee processing context, among other differences in

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 2
interviewing procedures, refugee applicants do not have the right to representation as such applicants are deemed to be applicants for admission.1
Background An applicant or petitioner for immigration benefits may be represented by an attorney in the United States, an attorney outside the United States (in matters occurring outside the geographical confines of the United States), or an accredited representative of a recognized organization.2
Prior to 1994, the regulations governing the adjudication of applications and petitions (8 CFR 103.2) did not include provisions specifically addressing the representation of applicants and petitioners during such proceedings. In 1991, the Immigration and Naturalization Service (“Service”) proposed amending the regulations at 8 CFR 103.2 to provide that an applicant or petitioner may be represented by an attorney in the United States, an attorney outside the United States (in matters occurring outside the geographical confines of the United States), or an accredited representative of a recognized organization.3 The Service proposed limiting the categories of eligible representatives in application and petition proceedings from the “broad range” of representatives listed in 8 CFR 292.1. Moreover, in order to properly document representation, the Service proposed revising 8 CFR 292.4(a)(4) to require that an applicant or petitioner sign the notice of appearance in order to authorize representation before the Service.4 In adopting these changes in a final rule in 1994, the Service determined that the reasons cited in the supplemental information in the proposed rule supported requiring the signature of the applicant or petitioner on the G-28, and that this was also a way to help combat the unauthorized practice of law by ineligible individuals.5 This final rule included the language in 8 CFR 103.2(a)(3) that exists today6 and added to 8 CFR 292.4 the requirement that the notice of appearance form be signed by the applicant or petitioner in order to authorize representation before the Service.7
In 2010, the regulations at 8 CFR 292.1 were revised to specifically reference the limited categories of eligible representatives in application and petition proceedings set forth in
1 Consistent with the longstanding position of the former Immigration and Naturalization Service and USCIS, refugee applicants do not have the right to representation during an interview regarding a request for classification as a refugee, unless the applicant is the focus of a criminal investigation and has been taken into custody as outlined in 8 CFR 292.5(b). Furthermore, the Department of State (DOS) is responsible for scheduling refugee applicants for an interview with USCIS, and therefore, interview notifications and rescheduling policies for refugee applicants are governed by DOS procedures. 2 8 CFR 103.2(a)(3) (2011) 3 Changes in Processing Procedures for Certain Applications and Petitions for Immigration Benefits, 56 Fed. Reg.
6120161202 (proposed Dec. 2, 1991) (to be codified at 8 CFR 103, 214, 223, 223a, 248, 264 and 292) 4 Id. 5 Changes in Processing Procedures for Certain Applications and Petitions for Immigration Benefits, 59 Fed. Reg.
1455 (Jan. 11, 1994) (amending 8 CFR 103, 214, 223, 223a, 248, 264 and 292) 6 Id. at 1460. 7 Id. at 1466.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 3 8 CFR 103.2(a)(3).8 The change reinforced the policy that the other categories of representatives listed in 8 CFR 292.1 (law students, law graduates, reputable individuals and accredited officials) may not file a G-28 in application and petition proceedings before USCIS, and notification regulations do not apply to them. Policy Effective immediately, USCIS Officers in the Field Operations and Service Center Operations Directorates and the International Operations Division of the Refugee, Asylum, and International Operations Directorate will follow the instructions contained in Chapter 12 and 15 of the AFM as amended by this PM.
8 Professional Conduct for Practitioners: Rules, Procedures, Representation, and Appearances, 75 Fed. Reg. 5225, 5227 (Interim rule with request for comments Feb. 2, 2010) (amending 8 CFR 1 and 292)

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 4
Implementation The AFM is revised as follows.
 1. Revise the Table of Contents for Chapter 12 to read:
Chapter 12 Representation and Appearances
12.1 Representation before USCIS 12.2 Appearances before USCIS 12.3 Proper Service of Documents and Notices 12.4 Interviews 12.5 Rules of Professional Conduct for Practitioners 12.6 The Role of USCIS District Directors in the Board of Immigration Appeals
Recognition and Accreditation Process1
References
Section 292 of the INA 8 CFR 103 and 292
 2. Revise Chapter 12 to read:
Chapter 12: Representation and Appearances
Chapter 12.1 Representation before USCIS
(a) General
An applicant or petitioner may be represented in matters filed with USCIS.2 Whenever an examination is provided for under the regulations, the person involved has the right to be represented by an attorney or representative before USCIS.3
1 The Role of USCIS District Directors in the Board of Immigration Appeals Recognition and Accreditation Process; Revisions to the Adjudicator’s Field Manual, New Chapter 12.6, AFM Update AD 11-34. Interim Memo for Comment, PM 602-0039 (June 7, 2011).
2 8 CFR 103.2(a)(3) (2011) 3 8 CFR 292.5(b) (2011). Refugee applicants do not have the right to representation, as such applicants are deemed to be applicants for admission. Consistent with the longstanding position of the former Immigration and Naturalization Service and USCIS, refugee applicants do not have the right to representation during an interview regarding a request for classification as a refugee, unless the applicant is the focus of a criminal investigation and has been taken into custody as outlined in 8 CFR 292.5(b). Accordingly, this guidance does not apply to the Refugee Affairs Division or the Asylum Division of the Refugee, Asylum, and International Operations Directorate, which are governed by other established procedures, guidance, and lesson plans. This guidance does not apply to site visits conducted by the Fraud Detection and National Security Directorate, which are governed by other established procedures, guidance, and lesson plans.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 5
Title 8 CFR 292.1 lists the categories of individuals who may represent a “person entitled to representation” before DHS, “subject to the limitations in 8 CFR 103.2(a)(3).” An applicant or petitioner may be represented by an attorney in the United States, an attorney outside the United States (in matters occurring outside the geographical confines of the United States), or an accredited representative of a recognized organization.4 Only these categories of representatives may file a notice of appearance on Form G-28 or G-28I in an application or petition proceeding before USCIS.
Law students and law graduates may engage in practice5 and preparation6 under the requirements described in the regulations7 but may not be the official representative of record on Form G-28. USCIS provides notices in writing to the supervising attorney or accredited representative identified as the representative on the Form G-28. Law students and law graduates may attach a statement with the information required in 8 CFR 292.1(a)(2) to the Form G-28 filed by their supervising attorney or accredited representative, or in person at a USCIS office. A law student or law graduate who has filed the required statement in a case may communicate with USCIS in writing. Substantive filings require the signature of the supervising attorney or accredited representative. See section 12.1(e) for additional information.
Reputable individuals and accredited officials may assist a person entitled to representation before USCIS. Unless otherwise licensed to do so, reputable individuals may not engage in the practice of law, but may apply to appear in-person before a DHS official at an interview or other meeting or appointment at a USCIS office. These individuals may not file a Form G-28. They must provide a written declaration to the USCIS official before whom they seek to appear, and may participate in the interview process only if that official permits their appearance. The original of this written declaration is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding. An accredited official of the government to which an applicant or petitioner owes allegiance may appear at an interview solely in his or her official capacity and only with the applicant’s or petitioner’s consent.8 See section 12.1(f) for additional information.
USCIS does not provide notices in writing to reputable individuals or accredited officials.9
(b) Attorneys in the United States
An “attorney” is any person who is eligible to practice law in and is a member in good
4 8 CFR 103.2(a)(3) (2011) 5 8 CFR 1.2 6 8 CFR 1.2 7 8 CFR 292.1(a)(2) (2011) 8 8 CFR 292.1(a)(5) (2011) 9 Id.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 6
standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the United States, or of the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law.10  An attorney need not be admitted to practice in the state in which his or her office is
located or where the applicant or petitioner resides, and may have an office outside the United States, as long as he or she is an attorney as defined in the regulations.  USCIS employees must routinely consult the DHS Disciplinary Counsel website for information on how to verify the eligibility of an attorney.  An attorney must submit a “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form G-28) in each case in which he or she seeks to appear. The form must be properly completed and signed by the petitioner or applicant in order for the appearance to be recognized by USCIS.11
(c) Attorneys outside the United States
An “attorney outside the United States” is an attorney (other than one who fulfills the requirements of an “attorney” in the United States) “who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which he or she resides and who is engaged in such practice.”12  An attorney outside the United States may only represent applicants or petitioners in
matters outside the geographical confines of the United States at a USCIS overseas office. He or she must receive permission to appear from the USCIS official before whom he or she wishes to appear.  In order to establish eligibility, such an attorney must establish that he or she resides outside the United States in the country in which he or she was admitted to the practice of law, and that he or she is engaged in practice in that country.  An attorney outside the United States must submit a “Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States” (Form G-28I) in each case in which he or she seeks to appear.  The form must be properly completed and signed by the petitioner or applicant for the appearance to be recognized by USCIS.13
(d) Accredited Representatives
An “accredited representative” is a person who represents an organization that has been recognized by the Board of Immigration Appeals (BIA) and has been accredited by the BIA to represent others in immigration proceedings before the immigration courts and the BIA of the Executive Office for Immigration Review and/or DHS.14
10 8 CFR 1.2 (2011) 11 8 CFR 292.4(a) (2011); Instructions for Form G-28 (Rev. 04/22/09)N 12 8 CFR 292.1(a)(6) (2011) 13 8 CFR 292.4(a) (2011); Instructions for Form G-28I (04/22/09) 14 8 CFR 292.1(a)(4) & 8 CFR 292.2

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 7
 EOIR maintains a list of Recognized Organizations and accredited representatives who have authority to represent individuals before EOIR and/or DHS at www.justice.gov/eoir/legalrepresentation.htm. Accredited representatives who are listed as “partially accredited” are authorized to practice only before DHS.
 Accredited representatives must submit a “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form G-28) in each case in which they seek to appear.
 The form must be properly completed and signed by the petitioner or applicant for the appearance to be recognized by USCIS.15
(e) Law Students and Law Graduates not yet admitted to the bar
Law students who are enrolled in an accredited U.S. law school and law graduates of an accredited U.S. law school who are not yet admitted to the bar may engage in practice16 and preparation,17 constituting representation18 under supervision as required in 8 CFR 292.1(a)(2).  The supervising attorney or accredited representative of a law student or law
graduate must submit a “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form G-28) in application and petition proceedings before USCIS.  A law student enrolled in an accredited U.S. law school must file a statement that he or she is participating under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization and is appearing without direct or indirect remuneration from the individual he or she represents.19  A law school graduate of an accredited U.S. law school who is not yet admitted to the bar must file a statement that he or she is appearing under the supervision of an attorney or accredited representative, and is appearing without direct or indirect remuneration from the applicant or petitioner.20  The statement from the law student or law graduate may be attached to the Form G28 filed by the supervising attorney or accredited representative, or submitted in person at a USCIS office. (See Sample Statement in Appendix 12-1.)  Law students and law graduates must seek permission from the DHS official before whom they seek to appear with an applicant or petitioner in person at a USCIS office.21 If the DHS official does not permit a law student or law graduate to appear, the reason for this decision shall be provided to the law student or law graduate in writing.
15 8 CFR 292.4(a) (2011); Instructions for Form G-28 (Rev. 04/22/09)N 16 8 CFR 1.2 (2011) 17 8 CFR 1.2 (2011) 18 8 CFR 1.2 (2011) 19 8 CFR 292.1(a)(2) (2011) 20 8 CFR 292.1(a)(2) (2011) 21 8 CFR 292.1(a)(2)(iv) (2011)

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 8
 The USCIS officer may require that the supervising faculty member, attorney, or accredited representative appear with the law student or law graduate.22 Law students and law graduates who are accompanied by the supervising attorney or accredited representative shall be permitted to appear at the interview or other examination.
 If the USCIS officer observes an action by a law student or law graduate that provides good cause for the officer to believe that the representation by the law student or law graduate will impair the efficient conduct of the proceeding, the USCIS officer may alert a USCIS supervisor who may contact the supervising faculty member, attorney, or accredited representative if they are not present.
 All notices and communication to the applicant/petitioner’s representative in such cases should be addressed to the supervising attorney or accredited representative listed on the Form G-28 (not the law student or law graduate). Law students and law graduates who have submitted a statement with the information required in 8 CFR 292.1(a)(2) may communicate in writing with USCIS with regard to procedural issues, such as rescheduling of interviews or biometrics appointments. Substantive filings, such as the filing of briefs or submission of evidence, require the signature of the supervising attorney or accredited representative.
(f) Reputable Individuals
A reputable individual is an individual of good moral character who appears on an individual case basis at the request of the person entitled to representation. The reputable individual must have a pre-existing relationship with the applicant or petitioner (e.g., relative, neighbor, clergyman, business associate or personal friend), and must not receive payment directly or indirectly for his or her representation.23 A USCIS official may waive the requirement that a pre-existing relationship exist between the applicant or petitioner and the representative in cases where adequate representation would not otherwise be available.24
 The reputable individual must submit a declaration that states that he or she is appearing without direct or indirect remuneration. (See Sample Declaration in Appendix 12-1.)
 The reputable individual must receive permission from the DHS official before whom he or she wishes to appear. In order to determine whether or not to grant the request of a person seeking to appear as a reputable individual, the DHS official should review the declaration presented and ask the individual questions regarding his or her eligibility and record this information in the record of proceedings. Permission will not be granted to any individual who regularly engages in
22 8 CFR 292.1(a)(2) (2011) 23 8 CFR 292.1(a)(3) (2011) 24 8 CFR 292.1(a)(3)(iii) (2011)

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 9
immigration and naturalization practice or preparation or holds himself or herself out to the public as qualified to do so.25  USCIS does not accept Forms G-28 filed by reputable individuals, as they are not included in the limited category of representatives in 8 CFR 103.2(a)(3).26  The reputable individual who is granted permission to appear with an applicant or petitioner may appear only in-person in that case.  USCIS does not send notices or other written communications to reputable individuals.27
(g) Accredited Officials
An accredited official of the alien's home government (e.g., a consular officer) may represent an alien if the official is in the United States and appears solely in his official capacity and with the applicant’s or petitioner’s consent.28  In exercising discretion to allow an accredited official to appear before DHS, DHS
officials should ensure that the individual does not regularly engage in immigration practice or preparation or hold himself out to the public as qualified to do so. To properly document this exercise of discretion, DHS officials should request such individuals submit a written statement in support of their appearance, addressing the relevant factors. (See Sample Statement in Appendix 12-1.)  USCIS does not send notices or other written communications to accredited officials.29
12.2 Appearances before USCIS
(A) Filing a Notice of Entry of Appearance as Attorney or Accredited Representative
Attorneys, attorneys outside the United States, and accredited representatives must establish their eligibility to appear on the form designated by DHS in each case.30 Notices of entry appearance may be filed at any stage in the proceedings.
 Attorneys and accredited representatives must submit a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative.
 Attorneys outside the United States must submit a Form G-28I, Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States.
 The Form G-28 and Form G-28I must be properly completed and signed by the applicant or petitioner in order for the appearance to be recognized by USCIS.
25 8 CFR 292.1(a)(3)(iv) (2011) 26 8 CFR 103.2(a)(3); 292.1(a); 292.4(a) (2011) ; Instructions for Form G-28 (Rev. 04/22/09)N 27 8 CFR 103.2(a)(3) and 292.5(a) (2011). 28 8 CFR 292.1(a)(5) (2011) 29 8 CFR 103.2(a)(3) and 292.5(a) (2011) 30 8 CFR 292.4(a) (2011)

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 10
Once the Form G-28 or Form G-28I is accepted, the appearance will be recognized until the conclusion of the matter for which it was entered.  When filing an appeal with the Administrative Appeals Office on Form I-290B, the attorney or accredited representative must file a new Form G-28.  Other representatives (law students, law graduates, reputable individuals and accredited officials) may not submit Form G-28 or Form G-28I.  See section 12.1(e) for additional information on law students and law graduates.
USCIS officers may verify an attorney’s or accredited representative’s eligibility and require further proof of authority to act in a representative capacity. Officers should seek more information at the DHS Disciplinary Counsel website and at www.justice.gov/eoir/legalrepresentation.htm. Officers should also review the list of disciplined practitioners at http://www.justice.gov/eoir/discipline.htm, which includes attorneys and accredited representatives who are currently disbarred or suspended from practice before DHS and EOIR. USCIS officers should be aware of individuals who have falsely claimed to be attorneys or accredited representatives when they are not and individuals who have been the subject of federal, state, or local court action to stop their unauthorized practice of law or theft of fees for legal services they may not lawfully provide. USCIS officers should not communicate with these individuals, even if they submit a “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form G-28) in a case.
(b) Substitution or Withdrawal of Representation
It is not uncommon for applicants or petitioners to wish to change representatives or elect to forgo representation during the course of a proceeding. Notification to USCIS of the substitution or withdrawal of a representative may occur in a written notice of withdrawal by the representative of record or upon the filing of a properly completed G-28 or G-28I by the new representative.31 Written notifications are to be filed in the record of proceedings. An applicant or petitioner may elect to proceed without his or her representative, but must submit a written statement to the USCIS official that he or she has voluntarily chosen to proceed without representation.
12.3 Proper Service of Documents and Notices
Once an attorney (whether in or outside the United States) or accredited representative has filed a properly completed Form G-28 or Form G-28I on behalf of an applicant or petitioner, USCIS is required to serve documents and notices on the attorney or accredited representative.32 Original notices and documents evidencing lawful status in the United States based on the approval of a benefit request will be sent to the attorney or accredited representative whom the applicant or petitioner has authorized to receive such notices and documents on his or her behalf. In such instances, a copy of the
31 8 CFR 292.4 (2011) 32 8 CFR 292.5 (2011).

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 11
benefit notice will also be sent to the applicant or petitioner. EXCEPTION: Secure identification documents such as Form I-551, Permanent Resident Card, Form I-766, Employment Authorization Document, Form I-327 Re-entry Permit, and Form I-571 Refugee Travel Document can only be sent to the applicant.33
In all other instances (e.g., where the applicant or petitioner is not represented), original benefit notices and documents evidencing lawful status that are issued based on the approval of a benefit request will be sent directly to the applicant or petitioner.
In matters where the Form G-28 or Form G-28I is not accepted because the individual is not an eligible representative or because the form is not properly signed, the application or petition will be processed as if the applicant or petitioner is unrepresented.34 The receipt notice and any other notices will be sent only to the applicant or petitioner.
12.4 Interviews
When an examination is to be conducted in immigration proceedings, the person involved has the right to be represented, at no expense to the government, by an attorney or representative, as defined in 8 CFR 292.1(a). The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected.
When conducting an interview of a petitioner and beneficiary simultaneously, attorneys or other representatives of both the petitioner and beneficiary will be permitted to appear.35 In visa petition proceedings, representatives who have obtained the consent of the petitioner should be recognized in interviews with the petitioner. Representatives who have obtained the consent of the beneficiary should be recognized in interviews with the beneficiary. An attorney or representative may not respond to questions the USCIS officer directs to the applicant, petitioner, or witness, except to ask the USCIS officer to clarify the question asked. An attorney or representative may ask the applicant or petitioner additional questions at the conclusion of the interview by the officer.
An attorney or other representative of an applicant or petitioner may not simultaneously serve as his or her client’s interpreter during an interview.36 If, after being so advised, the attorney or other representative continues to interpret for the applicant or petitioner or otherwise disrupts the interview, USCIS may terminate the interview and advise the parties that the interview cannot be completed under these circumstances and that USCIS will proceed to make a decision based on the record of proceedings.37
33 8 CFR 103.2(b)(19) 34 8 CFR 103.2(a)(3) (2011) 35 8 CFR 103.2(a)(3) (2011) 36 Exceptions may be made if the interests of the Government will not be prejudiced. 37 This language does not apply to examinations governed by 8 CFR 312.4.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 12
See Chapter 15 for additional guidance on Interview Techniques. 12.5 Rules of Professional Conduct for Practitioners
DHS has rules of professional conduct for practitioners who practice before the Department’s immigration agencies.38 Under the rules, practitioners (attorneys, accredited representatives and other categories of representatives permitted to appear by DHS) are subject to discipline for criminal, unethical, or unprofessional conduct. Complaints of professional misconduct by practitioners should be reported to the DHS Disciplinary Counsel. USCIS officers should visit the Disciplinary Counsel website for more information on the rules of professional conduct, reporting misconduct, and how to verify the eligibility of an attorney or accredited representative. Attorneys and other representatives have a duty to represent their clients zealously. They must, however, do so within the bounds of the law and in accordance with the Rules of Professional Conduct for Practitioners.
Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview. If a discussion becomes disruptive, abusive, or otherwise interferes with the orderly process of the interview, the officer should seek assistance from a supervisor. The attorney or representative may object to the appropriateness of a line of questioning and, as a last resort, may request supervisory review without terminating the interview. Where necessary, disagreements between USCIS officers and attorneys or other representatives regarding the appropriate role of the attorney or other representative in USCIS interviews, should be elevated to the Field Office Director. USCIS employees may not file complaints directly to state bar disciplinary authorities. Complaints of unethical and unprofessional conduct by attorneys or other representatives should be reported to DHS Disciplinary Counsel through appropriate supervisory channels.
 3. Add Appendix 12-1 the Table of Contents for Appendices.
Appendix 12-1 Sample Statements and Declarations
38 8 CFR 292.3 (2011)

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 13
 4. Appendix 12-1 is added as follows:
Appendix 12-1 Sample Statements and Declarations

SAMPLE STATEMENT OF LAW STUDENT REQUESTING PERMISSION TO APPEAR BEFORE A USCIS OFFICIAL
I, John Smith, seek permission to appear before Mary Jones, a USCIS official, on behalf of Jane Doe, a person entitled to representation, as a law student enrolled in Anystate Law School, an accredited U.S. law school.
I am appearing at the request of Jane Doe, a person entitled to representation.
I am participating under the direct supervision of Sam Samuels, a faculty member, Susan Williams, a licensed attorney, or Joe Johnson, a BIA accredited representative in a legal aid program or clinic conducted by a law school or non-profit organization.
I am appearing without direct or indirect remuneration from the individual I seek to represent.

John Smith
______________________________ Signature

January 1, 2012
______________________________ Date

I, Mary Jones, the USCIS official before whom John Smith seeks to appear as a representative, in the exercise of discretion GRANT the request.

Mary Jones
_____________________________ Signature

January 1, 2012
_____________________________ Date

The original of this document is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 14
SAMPLE STATEMENT OF A LAW GRADUATE REQUESTING PERMISSION TO APPEAR BEFORE A USCIS OFFICIAL
I, John Smith, seek permission to appear before Mary Jones, a USCIS official, on behalf of Jane Doe, a person entitled to representation, as a graduate of Anystate Law School, an accredited U.S. law school, who is not yet admitted to the bar.
I received my law degree on June 1, 2011 and will take the bar examination on February 21, 2012; or, sat for the bar examination on July 24, 2011 and have not yet received my results.
I am appearing at the request of Jane Doe, a person entitled to representation.
I am appearing under the supervision of Susan Williams, a licensed attorney, or Joe Johnson, an accredited representative. I am appearing without direct or indirect remuneration from the individual I seek to represent.

John Smith
______________________________ Signature

January 1, 2012
______________________________ Date

I, Mary Jones, the USCIS official before whom John Smith seeks to appear as a representative, in the exercise of discretion GRANT the request.

Mary Jones
_____________________________ Signature

January 1, 2012
_____________________________ Date

The original of this document is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 15
SAMPLE DECLARATION OF A REPUTABLE INDIVIDUAL REQUESTING PERMISSION TO APPEAR BEFORE A USCIS OFFICIAL

I, John Smith, seek permission to appear before Mary Jones, a USCIS official, on behalf of Jane Doe, a person entitled to representation, as a reputable individual of good moral character, as defined in 8 CFR 292.1(3).

I am appearing on an individual case basis at the request of Jane Doe, a person entitled to representation. I am appearing without direct or indirect remuneration. I have a preexisting relationship with Jane Doe as a relative, neighbor, clergyman, business associate, and/or personal friend.

I am not regularly engaged in immigration and naturalization practice or preparation, nor do I hold myself out to the public as qualified to do so.

I declare, under penalty of perjury under the laws of the United States of America, that this statement is all true and correct.

John Smith

January 1, 2012

______________________________ Signature

______________________________ Date

I, Mary Jones, the USCIS official before whom John Smith seeks to appear as a representative, in the exercise of discretion GRANT the request

Mary Jones
_____________________________ Signature

January 1, 2012
_____________________________ Date

The original of this document is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 16
SAMPLE STATEMENT OF AN ACCREDITED OFFICIAL REQUESTING PERMISSION TO APPEAR BEFORE A USCIS OFFICIAL
I, John Smith, seek permission to appear before Mary Jones, a USCIS official, on behalf of Jane Doe, a person entitled to representation, as an accredited official of the Nowhereland government to which Jane Doe owes allegiance.
I am not regularly engaged in immigration and naturalization practice or preparation, nor do I hold myself out to the public as qualified to do so.
I am appearing with the consent of Jane Doe, a person entitled to representation.

John Smith
______________________________ Signature

January 1, 2012
______________________________ Date

I, Mary Jones, the USCIS official before whom John Smith seeks to appear as a representative, in the exercise of discretion GRANT the request.

Mary Jones
_____________________________ Signature

January 1, 2012
_____________________________ Date

The original of this document is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 17
 5. Revise Chapter 15.1(a) to read:
(a) General.
In accordance with 8 CFR 103.2(b)(9), an applicant, a petitioner, a sponsor, a beneficiary, or other individual residing in the United States at the time of filing an application or petition may be required to appear for an interview.
This chapter discusses policies and procedures to be followed in conducting interviews that involve immigration benefits. The basic principles for conducting interviews are outlined and defined below. The policies set forth below apply to all officers, and all personnel interviewing applicants for immigration benefits should be familiar with the contents of this chapter. No adjudicator should be assigned to conduct interviews until his/her first line supervisor is satisfied that the officer is fully competent to do so.
The purpose of an interview is to obtain accurate and complete information from the individual and to make a determination regarding the individual’s credibility. The fundamental objective is to obtain the facts necessary to make a correct decision. Therefore, the length of the interview may vary for many reasons including, but not limited to the following:
The amount and complexity of material being covered; Any fraud indicators that may be present; The number of individuals interviewed in connection with the case; The degree to which all required documents have been submitted; The need for an interpreter or the need to tailor questioning to an individual’s
background and experience; and The degree and ease with which IT, recording and other equipment is used.
Interviews conducted by adjudication officers are non-adversarial in nature, as opposed to a court proceeding involving two attorneys where each advocates a particular position.
Developing the skills necessary to conduct such an interview takes time and practice, there are a number of reference guides that can be of assistance. Please see Appendix 15-2.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 18
 6. Revise Chapter 15.1(b)(2) to read:
15.1 Interview Policies
(b) Scheduling Interviews and Evaluating Requests for the Rescheduling of Interviews.
(2) Evaluating Requests for the Rescheduling of Interviews (See 8 CFR 103.2(b)(9))
Prior to and at the date and time of the interview, an applicant or petitioner may (a) withdraw the application or petition; or (b) request, for good cause, that the interview be rescheduled.
In order to reschedule the interview, the adjudicator, in his or her discretion, must determine that the applicant, petitioner, beneficiary, or other individual is unable to appear at the scheduled date and time because of circumstances beyond the individual’s control.
If the adjudicator determines that good cause exists for the applicant or petitioner’s request, the adjudicator will reschedule the interview and mail a new interview notice. If the adjudicator determines that no good cause exists, the adjudicator will adjudicate the application or petition as instructed in AFM Chapter 15.1(d)(2).
An attorney or representative authorized to act on behalf of the applicant or petitioner may also submit a good cause request for rescheduling the interview.
If an attorney or other representative is unable to attend an interview for good cause, the local office should make best efforts to accommodate a timely request to reschedule an interview. Such requests are considered to be for good cause when the attorney or other representative has notified the local office that he or she is unable to appear at the scheduled date and time because of circumstances beyond his or her control, including but not limited to, scheduling conflicts resulting from a requirement that the attorney or other representative appear in court, previously planned travel, and any situation where two interviews of clients represented by the same attorney or representative are scheduled at the same time.
When an attorney or other representative is unable to attend the interview for any reason, the individual being interviewed may elect to proceed with the interview without his or her representative. The applicant’s or petitioner’s decision to proceed without his or her attorney or accredited representative must be voluntary. If the individual wishes to proceed without his or her representative, the USCIS official should obtain a written statement from the individual. Written statements are to be filed in the record of proceedings. When possible, the attorney or accredited representative should communicate his or her consent to proceed without him or her present. The officer

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 19
should still consider statements and submissions by the individual’s attorney or other representative in his or her absence.
 7. Revise Chapter 15.2 to read:
15.2 Interview Environment.
(a) Adjudications Environment
It is essential that the person being interviewed appreciate the importance and seriousness of the proceedings. To ensure this, the setting in which the interview takes place must be orderly and official in appearance. Desktops should be uncluttered and files should be housed in cabinets. Flags, USCIS and DHS seals and other official displays can enhance the official appearance. Excessive amounts of personal items should not be displayed in view of applicants, as these may be distracting or detract from the serious nature of the proceedings.
Because adjudications units in local USCIS offices are generally very busy with a high volume of applicants appearing for interviews, it is essential that adequate office space be provided for each district adjudications officer.
Sufficient seating for the officer and the person being interviewed, attorney or other representative and family members should be provided. The attorney or other representative should be seated directly next to the person being interviewed to facilitate appropriate participation unless this cannot be accommodated due to the physical layout of the interview space. If the officer has a concern that the seating arrangements may be inhibiting or negatively impacting the interview process, he or she should contact a supervisor for guidance.
(b) General Office Environment
Ideally, individual offices or high-walled, acoustically insulated, modular offices with doors should be provided to ensure a reasonable level of privacy. Offices should be equipped with video or audio taping devices. If the district lacks sufficient recording equipment, arrangements should be made to provide such equipment for, at least, the most difficult cases. Each work station should be provided with sufficient storage space for files, supplies, research materials and personal items, so that the office remains uncluttered. Acoustical ceiling tiles or other sound dampening material should be installed to minimize noise from other interviews and protect the privacy of each applicant. Lighting and ventilation should be adequate for a pleasant, comfortable and efficient working environment. USCIS will make every effort to make reasonable accommodations for applicants with disabilities. When possible, the public waiting area should be reasonably near the interview area to minimize lost time between interviews.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 20
 8. Revise Chapter 15.3 to read:
15.3 Officer Conduct and Appearance
(a) Appearance
It is imperative that the officer conducting the interview dress in a professional manner. Both men and women should wear appropriate business attire, although some offices may permit "business casual" attire on certain days.
(b) Conduct and Attitude
All interviews should be conducted in a courteous and businesslike manner. The following guidelines will ensure that the interview is conducted professionally:
 Maintain control of the interview at all times. "Maintaining control" does not mean being overbearing or abusive; on the contrary, it requires that the officer maintain a professional demeanor at all times. The exact nature of that professional demeanor will sometimes vary, according to the interview techniques being employed (see below). The ability of the officer to maintain control of him/herself is instrumental in maintaining control of the interview.
 Speak clearly, distinctly and not too rapidly, using plain and simple language when questioning an applicant, petitioner or witness. Avoid complex and lengthy questions, and always obtain a responsive answer before proceeding to the next question. Avoid using USCIS or government jargon.
 At all times, maintain due regard for the rights of the person being interviewed.  Avoid arguments with the person being interviewed, as well as remarks of a
personal nature that may be taken as a reflection of a judgment of a personal lifestyle.  Refrain from making any extraneous comments or asking extraneous questions, as they are irrelevant to the purpose of the interview and detract from the professional demeanor that the officer should maintain. Avoid questions about a person’s religious beliefs or practices unless they are relevant to determine the individual’s eligibility for a benefit. Do not make any comments that might be taken as a negative reflection upon any other person, race, religion, or country.  Maintain professional conduct even if the person being interviewed becomes abusive or if derogatory information is developed. If necessary, contact a supervisor. See section 15.4(e) for guidance on Concluding or Terminating an Interview.  Be fair, courteous, and patient without diminishing a full and complete development of the material facts, whether they are favorable or adverse to the person being interviewed or any other person.  When questioning persons concerning sexual relations, always avoid questions which can be construed solely as prurient or prying.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 21
 Ensure that your demeanor does not imply or reflect prejudice. Interviews should proceed in a fair and impartial manner so as to avoid complaints regarding the conduct of USCIS officers.
 9. Revise Chapter 15.4 to read:
15.4 Interview Procedures
(a) Basic Interview Procedures and Techniques
Conducting successful interviews is a skill which requires knowledge and experience. Successful approaches will vary widely depending on the interviewer, the interviewee, and subject and purpose of the interview. Certain standards (such as those relating to the rights of the individual and the need for professionalism) remain constant; others change according to the circumstances.
Interview proceedings are not to be adversarial in nature. The purpose of the interview is to obtain the correct information in order to make the correct adjudication of the case, not to prove a particular point or to find a reason to deny the benefit sought. The purpose is to cover (and discover) all the pertinent information, both favorable and unfavorable to the applicant.
The following observations apply to all interviews:
(b) Preparing for the Interview
 The successful interview process begins when USCIS issues a call-in notice. In addition to accurately explaining the purpose of the interview, the notice should instruct the attorney (or in an unrepresented case, the person(s) being interviewed) on what to bring to the interview. In all cases, the notice should at least instruct the attorney / person being interviewed(s) to bring the originals of all documents previously submitted as photocopies.
 Do not commence an interview, even though time may be limited, until you have reviewed the application or petition and relating material, including submissions made by the applicant or the applicant’s attorney or representative. Depending upon the case, this may range from a rapid scanning of the file to an intensive study of all available material. However, it is essential that the review of the material be made before commencing the questioning in order for the adjudicator to have the requisite knowledge and understanding of all the facts and circumstances involved in the case. Otherwise, the questioning may not cover all pertinent points. The review should be sufficiently thorough to enable the adjudicator to cover all issues necessary for an adjudication, thereby avoiding any need for recalling the applicant, petitioner, or witness for further questioning on an issue which could have been covered during the initial interview. Review

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 22
of the applicable provisions of the law and precedent decisions also should be made, if necessary, to ensure thorough familiarity with any legal issue that may be developed by questioning. In addition, when possible the adjudicator should review submissions made at the time of an interview that may assist in resolving legal issues. The more complete the preliminary preparation of the case prior to beginning the interview, the better equipped you will be to conduct an efficient interview, without time-wasting repetition or needless questions.  If complex issues are involved, prepare an outline of the logical sequence of questioning to be followed, the information to be developed, and the evidence to be utilized. Such outlines are most conducive to eliciting all essential facts. Additionally, it may be advisable to select certain material from the file or relating files and arrange such material in the sequence of the plan of questioning. The extent of necessary preliminary preparation depends upon the issues involved in the individual case.
(c) At the Interview
 Greet the person being interviewed in a polite, dignified manner to put him or her at ease.
 Identify yourself, giving your name and title.  Begin the interview with an explanation in non-technical terms of the purpose of
the interview.  Obtain identification from all parties to the interview, including interpreters,
attorneys, and/or other representatives, unless identity has been previously established.  Administer the following oath: “Do you solemnly swear (or affirm) that the statements you are about to make will be the truth, the whole truth, and nothing but the truth?”  The oath or affirmation should always be administered in such a manner as to impress upon the person being interviewed the solemnity of the occasion and the importance of the testimony that he is about to give. The adjudicator and the person(s) being interviewed should stand and raise their right hands during the administration of the oath or affirmation. The fact that the interview is being conducted under oath or affirmation should be noted in the transcript or in the file. If a verbatim question and answer statement is taken, the exact wording of the oath or affirmation should be included in the transcript. If such a statement is not taken, the memorandum record of the interview should show that the person being interviewed was under oath or affirmation.  An applicant or his or her attorney or representative should be permitted to present documents or other evidence that may help to clarify an issue of concern to the interviewer. When possible, such evidence should be submitted and reviewed before the interview, and when relevant, should be added to the applicant’s file.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 23
 In certain other types of cases where more than one individual is to be questioned, it is generally best to question each party separately, asking each party several of the same questions in order to identify inconsistent answers. It may be necessary to recall either party for further questioning if contradictory answers are provided. In other types of interviews, an entire family group may be interviewed collectively.
 In a case where there is reason to believe that a witness under oath has given or may give false testimony, it may be advisable to inform the subject that willfully giving false testimony on a material matter under oath constitutes the crime of perjury, and that a person convicted of perjury is subject to a penalty of a fine, imprisonment or both. (However, see the comment below about challenging every false statement immediately.)
 Should the interviewing officer be required to leave the office for any reason during the interview, the relating file(s) should be removed to avoid unauthorized review during the officer's absence.
(d) Questioning Techniques
 All questions are either “closed-ended” or “open-ended.” o Closed-ended questions call for specific, factual and usually brief responses (e.g., “Have you ever been arrested?”). o Open-ended questions solicit views, opinions, thoughts and feelings and generally call for longer, narrative-type responses (e.g., “Tell me about any arrest you have had.”). Open-ended questions are normally more useful in assessing an individual's credibility and for eliciting statements which may later be supported or contradicted. o Leading questions, which assume a controversial fact or suggest the answer, should be avoided except to expedite obtaining preliminary identifying material. For example, the leading question “You have never been arrested?” anticipates and assumes the subject’s answer.
 The person(s) being interviewed should be permitted to give a full explanation of any issue involved in the case. Fairness requires consideration of all relevant evidence. In some instances, detailed questioning may be desirable in order to make it more difficult for the subject to disavow his statements at a later time or to fabricate a new story. USCIS officers are reminded that the purpose of the interview is to develop the facts, favorable as well as unfavorable, with equal fairness to the subject and to the interests of the Government, in order to properly adjudicate the application or petition.
(e) Concluding or Terminating an Interview
An adjudicator should not unnecessarily prolong an interview, but should conclude it when all necessary information has been elicited. The person(s) being interviewed(s) should be thanked for cooperating and providing information.

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 24
On some occasions it may be necessary to terminate an interview even though all essential information has not been elicited; however, termination should be avoided whenever possible. Termination may be necessary in the following situations, which are not intended to be exclusive:
 The person being interviewed is unable to communicate without an interpreter, and one is not available.
 An interpreter clearly has difficulty translating effectively.  The officer has reasonable doubts about either the ability or impartiality of an
interpreter supplied by the interviewee, and a USCIS or DHS interpreter is not immediately available.  An attorney or other representative of an applicant or petitioner insists on responding to questions or coaching the person being interviewed.  An attorney or other representative of an applicant or petitioner insists on interpreting for his or her client during an interview.  The person being interviewed refuses to respond to questions essential to the successful completion of the interview.  The conduct of the attorney or other representative has exceeded the bounds of zealous representation and interferes with the ability of the officer to conduct the interview.
The interviewing officer should explain the reason(s) for the termination. When appropriate, the interview should be rescheduled and (if needed) arrangements made for a competent interpreter. If the person being interviewed(s) or the attorney or other representative insists on continuing, a supervisor should be informed of the reason for the termination. It is the responsibility of the supervisor to determine if termination is warranted and to deal with the subject(s) and/or the attorney or representative if they refuse to accept an unfavorable determination.
(f) After the Interview
 An applicant or petitioner, or attorney or accredited representative with a properly executed “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form G-28), may request a copy of the record of proceedings, including any written record of an interview conducted before a USCIS officer, by filing a Freedom of Information/Privacy Act Request (Form G-639).39
[See also Appendix 15-2, Techniques for Interviewing and Preparing Sworn Statements.]
39 8 CFR 292.4(b) (2011)

PM-602-0055.1: Representation and Appearances and Interview Techniques; Revisions to AFM Chapters 12 and 15; AFM Update AD11-42 Page 25

 10. The AFM Transmittal Memoranda button is revised by adding new entries, in numerical order, to read:

AD11-42 5/23/2012

 Chapter 12  Appendix 12-1  Chapter 15.1(a)  Chapter 15.1(b)(2)  Chapter 15.2  Chapter 15.3  Chapter 15.4

This PM amends the AFM to include a revised Chapter 12, Private Attorneys and Other Representatives; new Appendix 12-1, Sample Affidavits; and revisions to Chapter 15.1(a), Chapter 15.1(b)(2), Chapter 15.2, Chapter 15.3, and Chapter 15.4.

Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
Contact Information Questions or suggestions regarding this PM should be addressed through appropriate channels to your Directorate.