If you are used to watching legal shows on TV, you are used to hearing the word discovery. You may believe that the defendant is allowed to get anything in the government’s file. Unfortunately, in the Federal system in the United States, including in removal proceedings, the defendant, or the respondent, do not have the right to get everything in the government’s possession.
In removal proceedings, the respondent may always ask for his file through the Freedom of Information Act System (FOIA). The government asks you to file a form G-639 However, the government may redact as much as it wants from your file if it believes that it falls under an exception under the law. This means that if you are a respondent in removal proceedings, the government will have evidence that you will not have. So what options would you have?
If you are in the Ninth Circuit, you may file a request with the judge, under Dent v. Holder, 627 F.3d 365 (9th Cir. 2010). This case allows you to ask the government to produce any evidence having to do with your admission and removability if you contest the latter. The Service has said that it will not apply this outside of that circuit.
Another way to force the government to release your file is under the INA §240(c)(2)(B), which is also referred to as the “mandatory access law” in the INA. So if you are a practitioner, you case use this section of the law, along with the Due Process clause, to obtain a copy of your file from the court.
If you are a practitioner, you can raise these grounds at any step of proceedings. You must do so to preserve it on appeal. Please let me know if you have any questions.