Diplomatic Assurance Removals (Department of Justice, Executive Office for Immigration Review)
| Tracking # |
A-2023-00793 2023-14257 |
| Multi Request | Diplomatic Assurance Removals |
| Submitted | Nov. 23, 2022 |
| Est. Completion | None |
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Communications
From: Andrew Free
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
Diplomatic Assurance Removals under CAT - Regulatory Background
U.S. law implementing the Convention Against Torture (CAT) creates a statutory right not to be deported to a country where a person demonstrates to the satisfaction of the Attorney General, acting through the Executive Office for Immigration Review (EOIR), that it is more likely than not they will be tortured if they are removed to that country. U.S. regulations purportedly implementing this statute allow for the removal of a person granted deferral under CAT to the very country they’ve shown they’d be tortured, provided certain conditions are met. 8 C.F.R. 208.17(f) & 208.18(c). A person can be so removed, under these regulations, if the Secretary of State forwards Diplomatic Assurances to the Attorney General from the country that the Attorney General previously found (through a removal proceeding) would be more likely than not to torture an individual, the inquiry before the immigration court is over. 8 C.F.R. 208.18(f) & 208.18(c)(1)-(3).
Diplomatic Assurance Removals under CAT -Executive Process
According to these regulations, at least four nodes must exist in the determination of Diplomatic Assurances, and in executing removals under them. First, the Secretary of State must obtain the assurances. 8 C.F.R. 208.18(c)(1). This likely requires coordination with State Legal (L), Consular Affairs (CA), and other bureaus within the Department of State. Second, State must forward to the Attorney General, and the AG must make a determination as to whether these assurances are sufficient. That determination cannot be delegated below a deputy (DAG) level within the Department of Justice. 208.18(c)(2). Third, the Executive Office for Immigration Review (EOIR), acting through an Immigration Court or Board of Immigration Appeals (BIA), must vacate the deferral, and refrain from entering any other proceedings. 208.17(f) & 208.18(c)(2). Fourth, ICE must execute the removal order.
Descriptions of Records Sought
Our goal in seeking these records is to understand how frequently the U.S. government tries to deport people to countries its own courts have found are more likely than not to be tortured by invoking the Diplomatic Assurance Removal process under its Convention Against Torture (CAT) regulations, and how often it succeeds.
We will gladly refine the scope of our request and the terms of searches in collaboration with your office in service of this goal. We do not seek cumulative records of the same process from different offices within the same agency through this request and expressly agree to narrow as such.
Category 1. How many diplomatic assurances were secured by the Secretary of State pursuant to 8 C.F.R. 208.18(c)(1)?
Please provide any record from a relevant component or official within your agency listing the total number of cases in which Diplomatic Assurances under CAT were obtained during FY15, FY16, FY17, FY18, FY19, FY20, FY21, and FY22 (FY15-22).
Category 2. How many diplomatic assurances were sought by the U.S.?
Please provide any record showing the total number of individual cases in which the U.S. government sought diplomatic assurances using the process described in 208.18(c) during FY15-22.
Category 3. How many removals did the U.S. carry out subject to diplomatic assurances?
Please provide any record showing the total number of removals the U.S. executed for individuals after receiving diplomatic assurances that they would not be tortured in the country to which the individual is being removed during FY15-22.
Category 4. Countries from whom Diplomatic Assurances were Received.
Please provide any record showing all countries from which the U.S. received diplomatic assurances during FY15-22.
Category 5: Monitoring of Diplomatic Assurances.
Trust, but verify. This is generally how the U.S. conducts foreign policy and diplomatic commitments on things it cares about. Torture is supposed to be one of those things. One way to measure how much government does about the things it says it cares about—things like torture—is to inquiry about the records it creates to monitor those things. If there are no records of U.S. agencies following up about individual cases for whom they’ve received diplomatic assurances to check down the road and see whether the assurances could be relied upon, it would be harder to believe the government takes seriously its obligation not to return individuals to places where they’ll be tortured. On the other hand, a regularly scheduled report or monitoring alert system would be evidence of the seriousness the government shows its obligations to avoid deporting people to torture.
5A. Please provide any record during FY15-22 evidencing efforts by your agency to follow up any state’s treatment of any individual removed pursuant to diplomatic assurances under the CAT regulations, as described in Category 3.
5B. Please provide any calendar entry or meeting agenda referencing your agency’s monitoring of people removed pursuant to Diplomatic Assurances as described in Category 3.
Thank you very much for your prompt attention to this request, and your commitment to transparency and accountability in government.
Andrew Free
#DetentionKills Transparency Initiative
AL Otro Lado
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Sincerely,
Andrew Free
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Dec. 1, 2022. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
From: Department of Justice, Executive Office for Immigration Review
Dear Andrew Free: This response acknowledges receipt of your Freedom of Information Act (FOIA) request by the Executive Office for Immigration Review (EOIR) dated 12/01/2022 and received 12/01/2022. Your request has been assigned control number 2023-17559. The FOIA requires an agency to respond within 20 working days after receipt of the request, and EOIR endeavors to meet this standard. The FOIA permits a ten-day extension of this time period, pursuant to 5 U.S.C. § 552(a)(6)(B), based on unusual circumstances. Your request involves “unusual circumstances,” and EOIR is extending the time period to respond by an additional 10 working days because your request requires the collection of records from field offices, or involves a search, collection, and review of voluminous records, or requires consultation with another agency or two or more agency components. Please be advised that due to necessary operational changes as a result of the national emergency concerning the novel coronavirus disease (COVID-19) outbreak, there may be significant delay in the processing of your request. EOIR FOIA requests are placed in one of three tracks. Track one is for those requests that seek and receive expedited processing pursuant to subsection (a)(6)(E) of the FOIA. Track two is for simple requests that do not involve voluminous records or lengthy consultations with other entities. Track three is for complex requests that involve voluminous records and for which lengthy or numerous consultations are required, or those requests that may involve sensitive records. Your request has been placed in track three for complex requests. If you have filed an application for a fee waiver, EOIR will address your request in a separate letter. Additionally, if you have requested expedited processing, EOIR will contact you in a separate letter. If you have any questions regarding unusual circumstances, you may contact the EOIR FOIA Service Center or FOIA Public Liaison at (703) 605-1297 to discuss reformulation or an alternative time frame to process your request, or for any further assistance regarding any aspect of your request. Alternatively, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001; e-mail at ogis@nara.gov; telephone at (202) 741-5770; toll free at (877) 684-6448; or facsimile at (202) 741-5769. Sincerely, FOIA Intake
From: Department of Justice, Executive Office for Immigration Review
Dear Andrew Free,
This response acknowledges receipt of your Freedom of Information Act (FOIA) request by the Executive Office for Immigration Review (EOIR). Your request has been assigned control number 2023-17559.
Please be advised that the status of requests submitted through the Public Access Link (PAL) may be tracked at https://foia.eoir.justice.gov/app/Home.aspx (https://foia.eoir.justice.gov/app/Home.aspx) , and you will receive an email response to your request upon completion of processing. The status of requests submitted by email or mail may not be trackable through the PAL, but you will still receive an email or mailed response to your request upon completion of processing. Please ensure the email address you provided in PAL will be able to receive the messages we send you. Messages rejected by your email account will not be rerouted to you
Note that parties to immigration cases (including respondents and their representatives of record) have the option to request their Record of Proceedings directly from the immigration court or Board of Immigration Appeals. Please see the instructions here: https://www.justice.gov/eoir/ROPrequest. (https://www.justice.gov/eoir/ROPrequest)
Please be advised that due to necessary operational changes as a result of the national emergency concerning the novel coronavirus disease (COVID-19) outbreak, there may be significant delay in the processing of your request.
If you have filed a fee waiver request, EOIR will address the fee waiver in a separate letter. Most requests for records of proceedings do not require any fees; however, if the fees for processing the request are estimated to exceed $25.00, EOIR will notify you before processing the request to determine whether you will commit to paying the fee or whether you wish to narrow the scope of your request to reduce the fee. Fees may be charged for searching records at the rate of $4.75 (administrative)/$10.00 (professional) per quarter hour, and for duplication of copies at the rate of $.05 per copy. The first 100 copies and two hours of search time are not charged, and charges must exceed $25.00 before we will charge a fee.
The FOIA requires an agency to respond within 20 working days after receipt of the request, and EOIR endeavors to meet this standard. The FOIA permits a ten-day extension of this time period, pursuant to 5 U.S.C. § 552(a)(6)(B), based on unusual circumstances. Your request involves “unusual circumstances,” and EOIR is extending the time period to respond by an additional 10 working days because your request requires the collection of records from field offices, or involves a search, collection, and review of voluminous records, or requires consultation with another agency or two or more agency components.
EOIR FOIA requests are placed in one of three tracks. Track one is for those requests that seek and receive expedited processing pursuant to subsection (a)(6)(E) of the FOIA. Track two is for simple requests that do not involve voluminous records or lengthy consultations with other entities. Track three is for complex requests that involve voluminous records and for which lengthy or numerous consultations are required, or those requests that may involve sensitive records. As a matter of default, your request has been placed in track two for simple requests. If you have requested expedited processing, EOIR will contact you in a separate letter.
If you have any questions regarding unusual circumstances, you may contact the EOIR FOIA Service Center or FOIA Public Liaison at (703) 605-1297 or EOIR.FOIArequests@usdoj.gov to discuss reformulation or an alternative time frame to process your request, or for any further assistance regarding any aspect of your request. Alternatively, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001; e-mail at ogis@nara.gov; telephone at (202) 741-5770; toll free at (877) 684-6448; or facsimile at (202) 741-5769.
Sincerely,
FOIA Intake
From: Department of Justice, Executive Office for Immigration Review
Dear Andrew Free:
This correspondence is in response to your Freedom of Information Act (FOIA) request dated 12/01/2022 to the Executive Office for Immigration Review (EOIR) in which you seek certain records described in your request.
Upon review of our request history, it has been determined that you filed a previous FOIA request in which our office responded by sending you a correspondence indicating that your request was being processed under control number 2023-14257 dated 12/01/2022. As you will recall, we responded to 2023-14257 by correspondence dated 12/23/2022. Therefore, this FOIA request is being closed as a duplicate request.
If you need any further assistance or would like to discuss any aspect of your request, please contact the EOIR FOIA Public Liaison at (703) 605-1297 or EOIR.FOIArequests@usdoj.gov. Additionally, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001; e-mail at ogis@nara.gov; telephone at (202) 741-5770; toll free at (877) 684-6448; or facsimile at (202) 741-5769.
If you are not satisfied with the Executive Office for Immigration Review’s determination in response to this request, you may administratively appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, 441 G Street, NW, 6th Floor, Washington, D.C. 20530, or you may submit an appeal through OIP’s FOIA STAR portal by creating an account following the instructions on OIP’s website https://www.justice.gov/oip/submit-and-track-request-or-appeal. Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the correspondence and the envelope should be clearly marked “Freedom of Information Act Appeal.”
Sincerely, Gina Lee
Contractor
From: Department of Justice, Executive Office for Immigration Review
Dear Mr. Free: This correspondence is in response to your Freedom of Information Act (FOIA) request dated and received 12/23/2022 to the Executive Office for Immigration Review (EOIR) in which you seek certain records regarding diplomatic assurances. A search of our records did not locate any records responsive to your request. EOIR does not track this information. Therefore, your request has been administratively closed. We recommend contacting the Department of State, and/or the Department of Homeland Security. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c) (2006 & Supp. IV 2010). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. See http://www.justice.gov/oip/foiapost/2012foiapost9.html
If you need any further assistance or would like to discuss any aspect of your request, please contact the EOIR FOIA Public Liaison at (703) 605-1297 or EOIR.FOIArequests@usdoj.gov. Additionally, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001; e-mail at ogis@nara.gov; telephone at (202) 741-5770; toll free at (877) 684-6448; or facsimile at (202) 741-5769. If you are not satisfied with the Executive Office for Immigration Review’s determination in response to this request, you may administratively appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, 441 G Street, NW, 6th Floor, Washington, D.C. 20530, or you may submit an appeal through OIP’s FOIA STAR portal by creating an account following the instructions on OIP’s website https://www.justice.gov/oip/submit-and-track-request-or-appeal . Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the correspondence and the envelope should be clearly marked “Freedom of Information Act Appeal." Sincerely,
Joseph Schaaf
Supervisory Attorney Advisor (FOIA)
From: Andrew Free
We hereby appeal the determination that EOIR maintains no records relating to Diplomatic Assurance removals, as described in 208.17(f) & 208.18(c)(2).
Thank you for acknowledging this appeal, assigning it an individualized tracking number, and processing it in a manner consistent with the timing provisions of the Act.
Andrew Free
#DetentionKills Transparency Initiative
Al Otro Lado
From: Department of Justice, Executive Office for Immigration Review
The Office of Information Policy has received your FOIA Appeal. Please see the attached acknowledgment letter.
From: Department of Justice, Executive Office for Immigration Review
The Office of Information Policy has made its final determination on your FOIA Appeal Number A-2023-00793 . A copy of this determination is enclosed for your review, along with any enclosures, if applicable. Thank you.
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