By Heidi J Meyers, [email protected]
Lessons from the Prince Harry case: FOIA (Freedom of Information Act) litigation over the decision to grant Prince Harry a visa.
After Prince Harry revealed his drug use in his book Spare, including cocaine, psychedelic mushrooms and pot, there was a brouhaha about whether he had revealed his extensive use of drugs in his visa application. The Heritage Foundation tried to find out if Prince Harry had concealed his drug use in his immigration applications or if he had received a waiver. We can learn from our opponent some important lessons re FOIA requests.
The case, Heritage Foundation v. DHS, 1:23-cv-01198-CJN (DDC, filed 05/01/2023), while brought by the anti-immigration Heritage Foundation, has helpful lessons for immigration attorneys filing FOIA requests and advocating for our clients in federal court.
First, request not only the A# file but also all records with the applicant’s name, including other applications and supporting documents that are not in the A# file. Make a detailed list.
The Prince Harry Complaint lays out the extensive FOIA request filed by the plaintiffs. This list is quite helpful to immigration attorneys. Request all records within the Alien File (A#-File), as well as any applications and supporting documents, and documents not included in the A# file, including but not limited to:
- Any and all applications for immigration benefits filed, whether or not adjudicated; ·
- Any and all Forms I-213;
- Any and all Forms I-275; and
- Any and all Forms I-877.
Id. You may use this high level of detail as a basis for your own FOIA requests, but modify it.
IRAP has found that certain applications and documents may not be included in the A file, such as Forms I-765, I-131 and stand-alone Forms I-130, so you may modify this language to include all applications and supporting documents related to the subject or with the subject’s name, even if not included in the A file.
Second, include a list of databases to be searched in your FOIA request, and various versions of your client’s name.
Their Prince Harry FOIA requests continued, listing various databases:
Section 2) All records pertaining to the Duke of Sussex in the following system of records maintained by CBP and DHS:
- Automated Targeting System (ATS, DHS/CBP-006);
- Advance Passenger Information System (APIS, DHS/CBP-005);
- Border Crossing Information System (BCIS, DHS/CBP-007);
- U.S. Customs and Border Protection TECS (DHS/CBP-011);
- Non-Federal Entity Data System (NEDS, DHS/CBP-008);
- DHS Use of the Terrorist Screening Database (TSDB) System of Records (DHS/ALL-030);
- CBP Intelligence Records System (CIRS, DHS/CBP-024);
- DHS Automated Biometric Identification System (IDENT, DHS/USVISIT-004); · Electronic System for Travel Authorization (ESTA, DHS/CBP-009);
- Non immigrant Information System (NIIS, DHS/CBP-016);
- Arrival and Departure Information System (ADIS, DHS/CBP-021);and
- Electronic Visa Update System (EVUS., DHS/CBP-022).
Section 3) All records relating to any requests for waiver pursuant to Section 212(d)(3) of the Immigration and Nationality Act including, but not limited to, email communications within the DHS Office of the Secretary, the USCIS Office of the Director, the CBP Office of the Commissioner, or any subordinate office within those named departments or agency or a record of any communication between any of those named entities…”
Id. This highly-detailed list of requests for FOIAs to DHS is extremely helpful if you are trying to obtain your clients’ files. Again, review IRAP’s helpful lists of databases the agencies use for searches.
Third, follow agency instructions, and submit the Form G-28, Form G-639 and/or notarized release from your client. If the agency claims they do not have any files, do not believe them, and do not get discouraged. File an administrative appeal, which is often helpful.
The Prince Harry complaint details all the expected high jinks and delays of the various agencies under DHS in responding to the FOIA request.
CBP denied the FOIA request because it was from a third-party with no signed G-28 or G-639 or notarized release. It issued a boilerplate denial that did not consider any of the reasons put forth by the Heritage Foundation. They promptly filed an administrative appeal with the CBP Appeal Office. While CBP is required to respond to a FOIA appeal in 20 business days. 5 U.S.C. § 552(a)(6)(A)(ii); 6 C.F.R. § 5.8(d), CBP never responded. Paras 58-60.
Often FOIA administrative appeals can be helpful, but not in this case.
USCIS claimed that they had misplaced or lost Prince Harry’s file. Now, knowing how USCIS operates, it is not terribly surprising when they misplace Joe Shmo’s file. But Prince Harry? How could you lose Prince Harry’s file? Plaintiff then explained to USCIS Counsel that the file may be under several different versions of Prince Harry’s name. Paras 61-63.
The various DHS agencies failed to respond timely to Plaintiffs’ requests for expedite processing. Indeed, after emailing them with additional evidence in support of the expedite, CBP inexplicably claimed not receiving the email attachments and requested that they be re-sent. Paras 67-73.
Finally, plaintiffs received a letter from DHS, stating that plaintiffs had not described the records they were seeking: “After careful review of your FOIA request, we determined that your request is too broad in scope, did not specifically identify the records which you are seeking, or only posed questions to the agency. Records must be described in reasonably sufficient detail…” It was a form letter that did not reflect any consideration of the particular request.
Fourth, rather than be discouraged or exhausted by DHS’s dilatory and frustrating tactics, plaintiffs promptly filed in federal court.
Plaintiffs filed in federal court under the Freedom of Information Act, 5 USC §552 and federal question jurisdiction, 28 USC §1331, claiming the following causes of action:
- Failure to conduct adequate searches for responsive records;
- Wrongful withholding of non-exempt responsive records;
- Wrongful denial of fee waiver;
- Statutory bar against charging fees;
- And wrongful denial of expedited processing.
The federal suit over the FOIA for Prince Harry’s immigration records and decision to grant a visa are full of helpful lessons and nuggets of information for immigration attorneys advocating on behalf of their clients.
Copyright 2025 © Heidi J Meyers, all rights reserved. This article is for informational purposes only and is not meant as legal advice.