On October 9th, U.S. Citizen and ICVA Member "Jessica" filed a FOIA/PA request with U.S. Citizenship and Immigration Services (USCIS), requesting that anything "pertaining to" her be released for her review and correction, per the Privacy Act of 1974, which governs the collection, maintenance, use, and dissemination of personal information maintained in systems of records by federal agencies.
According to the Privacy Act, 5 U.S.C. 552a(d)(1): "Each agency that maintains a system of records shall...upon request by any individual to gain access to his record OR to ANY information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him..."
USCIS responded to Jessica's FOIA/PA request by denying her any and all access to her own information "pertaining to" her, without her first obtaining a signed release from the alien she had sponsored and allegedly defrauded her.
Jessica sponsored an immigrant, who first arrived in the United States on a K-1 visa, subsequently married her in January 2012, and then obtained a Conditional Permanent Residency (CPR) status in October, 2012 based upon that marriage coupled with Jessica's I-864 Affidavit of Support Contract. The I-864 is a mandatory component of all family-based CPR applications and the contract requires Jessica to be financially responsible for the immigrant for infinite amounts and indefinite terms. The "consideration" of that contract is USCIS' granting of "permanent residency" to the immigrant.
Prior to their 2nd year immigration anniversary (October 16, 2014) and after the immigrant allegedly revealed he had fraudulently induced Jessica into marriage and into entering the I-864 contract with the sole purpose of obtaining an immigration benefit, the immigrant and Jessica were divorced on May 5th, 2014. Jessica notified USCIS of the allegations and their divorce, and requested she be released from all liability from the I-864 contract. Based upon the information Jessica submitted, USCIS revoked the immigrant's status on July 1st, 2014, also revoking the "consideration" for the I-864 contract.
However in spring of 2015, USCIS held a secret ex-parte proceeding between the immigrant and USCIS official, which determined the validity of Jessica's marriage to the immigrant, and whether the immigrant would be re-issued the "consideration" for Jessica's contract, and ultimately force her to extend the I-864 contract against her will, indefinitely for infinite amounts of support to the alien who allegedly defrauded her.
Within that proceeding the immigrant was allowed to supply evidence which according to the Administrative Procedures Act is not required to conform to Federal Rules of Evidence and may include virtually anything, including hearsay arguments, fabricated social media accounts, and falsified legal documents, which go unverified and unchallenged by the subject of those allegations, as USCIS refuses access to any information pertaining to any individuals other than immigrants.
Jessica is clearly aware that USCIS maintains a file containing information "pertaining to" her, as the USCIS FOIA Offices has admitted to receipts corresponding to her, yet she has been denied access to all of it without first obtaining approval from the immigrant who allegedly defrauded her. Jessica's own marriage was the subject of an administrative proceeding held without her knowledge and without her participation, yet she was denied any access to the information USCIS relied upon to make their decision and which ultimately forced her into an unlawful contract. She was even denied a simple copy of her own I-864 contract which she entered into with the Federal Government (The immigrant is not the contract holder), and all of this is due to an abuse of power by USCIS who has created internal policies which favor immigrant applicants, and deny all others, including U.S. Citizen Sponsors their rights afforded to them by law.
The response from the USCIS FOIA/PA office, has essentially declared that after performing a search within the system, two receipts were found which were retrieved by Jessica's personal identifiers. One receipt was transferred to the Department of State (as that application is visa related) and the other receipt refers to the original CPR (a.k.a green card) application and includes the original copy of the I-864 financial affidavit of support contract, yet because USCIS chooses to place Jessica's information into the alien's file, they have denied her access to her own information without her first obtaining permission to access her own information from the immigrant who allegedly defrauded her.
Specifically the office writes, "It is the policy of USCIS to file ANY adjudicated petitions in the beneficiary's record after issuance of a visa. Beneficiary consent is required to obtain any petitions from their record."
This policy, therefore, denies a U.S. Citizen the following:
- Access to a copy of their OWN I-864 contract held with the Federal Government
- Knowledge of the CURRENT STATUS of that contract
- Any information pertaining to the I-864 contract
- Any information affecting the I-864 contract
- Any proceedings which may EXTEND the I-864 contract and the sponsor's liability
- Any information the immigrant presents regarding the U.S. Citizen (allegations or hearsay of any kind)
- Knowledge of the commencement of a proceeding which affects the sponsor's rights under the contract
- Any knowledge of the outcome of such proceedings and the affects on the I-864 contract
The department of Justice has mentioned the possibility for this abuse in their overview of the Privacy Act of 1974 explaining, "Indeed, a major criticism of the Privacy Act is that it can easily be circumvented by not filing records in name-retrieved formats. See Privacy Commission Report at 503-04 & n.7, available at http://epic.org/privacy/ppsc1977report. Recognizing this potential for abuse, some courts have relaxed the “actual retrieval” standard in particular cases... Moreover, certain subsections of the Act ... have been construed to apply even to records not incorporated into a 'system of records.'"
Crumpton v. United States, 843 F. Supp. 751, 755-56 (D.D.C. 1994) (maintaining that although the records disclosed to press under FOIA contained information about plaintiff, they were not retrieved by her name and therefore Privacy Act did not apply), aff’d on other grounds sub nom. Crumpton v. Stone, 59 F.3d 1400 (D.C. Cir. 1995).
In the case of Jessica's FOIA/PA request, the receipts were retrieved by Jessica's name, not the name of the immigrant, and therefore Jessica should be granted access to her own information. However, it is USCIS policy, and not law or statute that determines how the USCIS FOIA office responds to such requests.
Clearly USCIS is abusing their power by failing to maintain records on U.S. Citizens, and instead placing all U.S. Citizen information into alien files, so as to deny all U.S. Citizens ANY and ALL information held about them located at USCIS.
Check back for part 2, outlining the responses Jessica received from Federal officials when attempted to address these abuses and obtain remedial actions.
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