An application for asylum can be a life-or-death matter for some clients. That’s why Davis Wright Tremaine is working to ensure that asylum applicants have access to all the information they need to present their best case to the U.S. government.

Recently the federal government has hamstrung applicants and their lawyers by withholding, or delaying the release of, key documents. Two attorneys in DWT’s San Francisco office are serving as pro bono counsel in a Freedom of Information Act and declaratory relief lawsuit, filed in February in U.S. District Court for the Northern District of California, that seeks to stop this practice, which is occurring throughout the nation.

The documents at issue are interview notes prepared by federal Asylum Officers when they interview applicants for asylum, an interview that often occurs without the presence of counsel for the applicant.

When a person applies for asylum—either affirmatively, or in response to a move by the government to deport—the case is first heard by a regional office of U.S. Citizenship and Immigration Services (USCIS, part of U.S. Homeland Security). Each applicant is called in for an interview, under oath, with an Asylum Officer, who seeks to determine if the applicant is credible. The officer is charged with taking thorough and detailed notes of the interview, which essentially operates as a “transcript” of the interview. These notes are supposed to present an objective account of the questions and the responses, and they become part of the record upon which a decision whether to grant asylum is based.

In many cases, asylum is not granted, and the applicant is referred for removal proceedings before the Immigration Court (part of the U.S. Department of Justice). There, the individual can seek asylum anew, but the application will now be contested by an attorney from Immigration and Customs Enforcement (ICE, also part of Homeland Security). That’s where the interview notes can be an essential point of reference for the asylum seeker’s attorney. Thorough preparation for the Immigration Court hearing is essential.

“The notes enable us to understand where the client did not do an adequate job representing herself,” says San Francisco immigration attorney Jeffrey Martins, who is the plaintiff being represented by DWT and co-counsel Robin Goldfaden, Senior Attorney with the Lawyers’ Committee for Civil Rights (LCCR) of the San Francisco Bay Area.

Martins says that in the past, interview notes were frequently included in the case files provided to him and other immigration attorneys under Freedom of Information Act requests submitted to Homeland Security on behalf of their clients. However, starting around March of last year, the notes were no longer included.

“Without the notes, we can’t fully assess the case, determine what additional evidence should be provided to the Court, and give the best advice possible to the client,” says Martins.

After appealing to the agency and specifically challenging the withholding of the notes—without success—Martins turned to LCCR, which engaged DWT attorneys Thomas R. Burke and Jeff Glasser to assist with the suit.

The complaint alleges that USCIS, Homeland Security, and their respective directors, have acted in “an arbitrary and capricious manner” in changing their policy on releasing the interview notes. The complaint points out that ICE attorneys continue to have access to the notes, and that only when those notes are introduced into evidence will the individual seeking asylum, and his or her legal representative, receive copies.

“The Freedom of Information Act does not permit the government to time the release of information to its own advantage,” says Burke. “The right of access is paramount.”

“A number of Mr. Martins’ clients’ cases have upcoming hearings and related deadlines,” says Glasser. “We are seeking expedited review of this matter.”

Full Spring 2013 Pro Bono Report