5 U.S.C. § 552 — The Public's Right to Know
A FOIA request is supposed to be answered within twenty business days. In practice, USCIS, the FBI, the State Department, CBP, ICE, and EOIR routinely sit on requests for months — sometimes years. When they do, federal court is the answer. I file FOIA Mandamus actions to force agencies to search their records and turn them over.
Strictly speaking, a "FOIA Mandamus" is not a writ of mandamus in the traditional § 1361 sense — it is a civil action under the Freedom of Information Act itself, codified at 5 U.S.C. § 552(a)(4)(B). The label has stuck because the practical effect is the same: a federal district court order compelling a recalcitrant agency to perform a duty it has unlawfully withheld.
The Freedom of Information Act gives every person — citizen or not — the right to request records held by federal executive branch agencies. Once a request is properly submitted, the agency has twenty business days to determine whether it will comply (with one ten-day extension available in "unusual circumstances"). If the agency blows that deadline, the requester is statutorily deemed to have exhausted administrative remedies and may file suit immediately.
In immigration practice, FOIA delay is not an academic problem. A pending FOIA request is often the only way to obtain a copy of an Alien File, Record of Proceedings, or consular note — documents that determine whether a removal defense, naturalization application, or waiver case can be properly prepared. When USCIS or another agency stalls, the case underneath stalls with it.
That is where § 552(a)(4)(B) becomes a practical tool. The statute confers original jurisdiction on every federal district court of the requester's residence (or D.D.C., or the place where the records are situated) to enjoin the agency from withholding records and to order their production. Most FOIA Mandamus cases involving a clear deadline default settle quickly — the agency releases the records on a court-supervised production schedule rather than litigate.
Every category below represents a real type of record I regularly request — and, when necessary, sue to obtain. Click any card to read more about whether your situation may justify FOIA Mandamus.
Form G-639 requests for an Alien File can sit in the USCIS National Records Center for over a year. When the underlying immigration case cannot wait, suit is often the only realistic option.
The Alien File ("A-file") is the central paper and electronic record of every encounter a non-citizen has had with U.S. immigration authorities. It is essential to defending removal cases, preparing naturalization applications with prior inadmissibility issues, supporting waivers, and documenting status histories.
USCIS triages A-file requests into Track One (simple), Track Two (complex, where an immigration court hearing is not imminent), and Track Three (expedited for cases with a hearing date). Track Two backlogs commonly run well over a year. When the underlying matter cannot wait, FOIA Mandamus is the standard remedy.
The Executive Office for Immigration Review holds the Record of Proceedings for every immigration court case. FOIA delay can paralyze a motion to reopen or appeal.
The EOIR Record of Proceedings ("ROP") contains the immigration judge's orders, the transcripts, the exhibits, and the parties' submissions. It is essential for motions to reopen, BIA appeals, federal circuit petitions for review, and post-conviction immigration consequences analysis.
EOIR FOIA processing is governed by 6 C.F.R. Part 5, and FOIA delay is the rule rather than the exception. A FOIA Mandamus complaint typically accelerates production substantially.
When the FBI is the bottleneck on a USCIS adjudication, an FBI FOIA request is the diagnostic tool — and litigation is sometimes needed to get one answered.
Many of my I-485 and N-400 Mandamus cases turn out to be FBI name check problems disguised as USCIS delay. A targeted FOIA request to the FBI's Record/Information Dissemination Section ("RIDS") can reveal what is actually holding up an adjudication.
FBI FOIA backlogs are notoriously long. When the agency misses the twenty-business-day deadline and the immigration case cannot wait, a FOIA Mandamus action against the Department of Justice is appropriate.
CBP holds the comprehensive border crossing record. For cancellation of removal, asylum, and continuous-residence questions, those records are dispositive.
U.S. Customs and Border Protection maintains the TECS database, I-94 records, encounter logs, and secondary inspection reports. FOIA requests under 6 C.F.R. § 5 are the principal civilian mechanism for obtaining them.
In immigration matters where physical presence, continuous residence, abandonment of LPR status, or prior expedited removal is at issue, the CBP record is often the central piece of evidence. When delay threatens a court deadline, FOIA Mandamus is appropriate.
ICE holds detention files, custody redetermination records, and Office of Principal Legal Advisor case files — many of which only FOIA can pry loose.
U.S. Immigration and Customs Enforcement holds files relevant to detention conditions, transfers, custody redetermination, OPLA litigation positions, and ICE Enforcement and Removal Operations history. These are routinely needed for bond proceedings, conditions claims, and removal defense.
Where ICE has missed the statutory deadline and the underlying litigation cannot wait, FOIA Mandamus against the Department of Homeland Security is the appropriate mechanism.
Visa refusals, "administrative processing" notes, and consular memoranda are often inaccessible without FOIA — and the State Department's queue is among the slowest in government.
The Department of State's Bureau of Consular Affairs maintains records of every visa interview, refusal, and post-refusal review. Consular nonreviewability doctrine sharply limits direct judicial review of refusals, but FOIA remains a powerful tool for understanding the basis of a denial or extended processing.
DOS FOIA backlogs frequently exceed two years. In cases where a follow-up application, waiver, or DS-5535 response depends on what is in the prior file, FOIA Mandamus is often the only realistic path.
FOIA Mandamus cases tend to move faster than § 1361 mandamus cases because the statutory deadline default is unambiguous. Here is what to expect once you retain me:
I confirm that the original request was perfected, that the twenty-business-day clock has run, and that no statutory tolling event applies. I then draft a complaint that pleads FOIA, the APA, and § 1361 in the alternative — depending on the agency posture.
FOIA confers venue in the requester's district of residence, the District of Columbia, or the district where the records are situated. Choice of forum matters — local docket speed, default scheduling orders, and the U.S. Attorney's Office that will defend the case all factor in.
Service under Federal Rule of Civil Procedure 4(i) requires service on the agency, the U.S. Attorney for the district, and the Attorney General. I handle this step in-house, by certified mail, on a tight schedule.
The United States has sixty days to answer. In most cases, the U.S. Attorney's Office contacts me within four to six weeks to propose a rolling production schedule. Where the government refuses, the case proceeds to summary judgment on the adequacy of the search and the validity of any withholdings — typically supported by a Vaughn index.
FOIA also authorizes attorney's fee shifting under 5 U.S.C. § 552(a)(4)(E) when the requester substantially prevails. Where applicable, I will pursue a fee petition on your behalf and credit any recovery against the flat fee.
Not every FOIA problem is a delay problem. When an agency responds but withholds records, redacts heavily, issues a "no records" determination, or refuses to expedite, the remedy is an administrative appeal — and, if that fails, federal court review of the merits. I handle FOIA appeals in addition to FOIA Mandamus, with particular focus on immigration-related requests across USCIS, EOIR, ICE, CBP, FBI, and the Department of State.
The administrative appeal is the FOIA practitioner's most underused tool. A well-crafted appeal — invoking the agency's own segregability obligations under § 552(b), challenging the application of a specific exemption, or pointing to the inadequacy of the search — frequently produces additional records without ever filing suit. And exhausting the administrative appeal preserves every issue for later judicial review under § 552(a)(4)(B).
I draft administrative appeals to the agencies I work with most often: USCIS (through the National Records Center), DHS (Office of General Counsel), the FBI (Department of Justice Office of Information Policy), the Department of State (Bureau of Administration), and EOIR. I also handle the strategic decision that often comes next — whether to wait for the appeal, sue on the appeal's own constructive exhaustion clock, or convert to federal court litigation.
In August 2017, I tried a federal criminal case to verdict — obtaining an unprecedented "not guilty" jury verdict on all felony counts in the first known click-fraud criminal trial in the United States. My client, Fabio Gasperini, faced up to 70 years in prison if convicted as charged.
It was not a FOIA case. But it demonstrates something that matters here: I do not get intimidated litigating against the United States, and I perform under pressure. The same approach I brought to that trial is what I bring to every FOIA Mandamus complaint.
For my full attorney profile — including writs of mandamus against USCIS, corporate immigration, federal criminal defense, trademark litigation, and international probate — visit my main website.
bertollini.com →Every FOIA situation is different. Reach out directly with the agency, the date of your original request, and the tracking number — I will evaluate whether FOIA Mandamus is appropriate at no cost.
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