Settlement Requires USCIS to Provide Asylum Officer Interview Notes in FOIA Response (Updated 4/29/14)

Update: On February 18, 2014, USCIS submitted a letter to the presiding judge confirming that the instructions were given to appropriate USCIS staff on January 8, 2014, and training consistent with the Settlement Agreement terms was complete as of February 18, 2014. USCIS also stated that it has been processing FOIA requests for asylum officer interview notes consistent with the terms of the Settlement Agreement since January 8, 2014.

In November 2013, the Lawyers' Committee for Civil Rights of the San Francisco Bay Area and co-counsel at Davis Wright Tremaine LLP reached a settlement, signed by the presiding judge, in Martins v. USCIS, which challenged the agency's withholding of asylum officer interview notes, taken by asylum officers to document the content of the interviews of asylum applicants. The lawsuit, filed earlier in February 2013, challenged the withholding of the notes under the Freedom of Information Act (FOIA) in the cases of ten individual clients represented by the plaintiff, immigration attorney Jeffrey Martins, and also challenged the agency's policy and practice of withholding the notes as a categorical matter. In July, the plaintiff won his motion for a preliminary injunction, and the government then produced the notes - without any redactions - for all ten of the asylum seekers whose notes were specifically at issue in the litigation.

The settlement brought an end to the underlying policy and practice that affected asylum applicants and their legal representatives across the country. Under the settlement agreement, USCIS must instruct all officers, employees, and agents involved in the processing of FOIA requests that asylum officer interview notes - the records reflecting information, instructions, and questions asked by officers and responses given by applicants in asylum interviews - are not by their nature and status protected by the deliberative process privilege as a general matter and thus are to be produced under FOIA. This training was to be completed within three months of the settlement agreement. USCIS had to demonstrate its compliance to the court with the settlement after three months.

If you believe USCIS is not complying with the settlement agreement, or if you have other questions about the settlement or the case, please contact Robin Goldfaden at

Special thanks to the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Thomas R. Burke and colleagues at Davis Wright Tremaine LLP, and Jeffrey Martins.

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Cite as AILA Doc. No. 13120545.

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