FOIA: Black Alliance for Just Immigration et al. v. U.S. Customs & Border Protection, No. 1:20-cv-05198 (E.D.N.Y., filed Oct. 28, 2020)

On May 25, 2020, George Floyd was killed by Minnesota police officers, triggering mass protests in cities across the United States calling for racial justice and police reform. These protests were met with heightened police presence as local law enforcement agencies throughout the country deployed additional officers to protests and gatherings. In early June 2020, media outlets began reporting that U.S. Customs and Border Protection (CBP) personnel and aerial surveillance, along with other Department of Homeland Security (DHS) and federal agency personnel, had been deployed to the protests. A leaked CBP document later revealed that requests from law enforcement agencies across the country resulted in 326.5 hours of federal aviation assets deployed and 2,174 agency personnel.

After then-President Trump issued Executive Order No. 13933, “Protecting American Monuments, Memorials, and Statutes and Combating Recent Criminal Violence,” DHS and the Department of Justice (DOJ) began taking steps to implement the directive, including by creating roving teams of federal law enforcement officers to disperse to protests. These deployments only served to exacerbate tensions and violence, drawing criticism from elected officials – especially given CBP’s track record of abusive policing tactics and use of excessive force.

Following these deployments, the Black Alliance for Just Immigration, the American Immigration Council, the American Civil Liberties Union of San Diego & Imperial Counties, and the American Civil Liberties Union of Texas filed a Freedom of Information Act (FOIA) request seeking records of requests for assistance to CBP by other entities regarding the deployment of CBP personnel to U.S. cities; policies, protocols, and directives outlining CBP’s legal authority to police and surveil protests; communications sent or received by CBP personnel relating to the deployments; and data regarding the total number of CBP personnel deployed, individuals apprehended or arrested by CBP, and the statutory basis for CBP’s enforcement action.

When CBP failed to respond to the request, Plaintiffs filed a lawsuit seeking an injunction ordering Defendant to conduct a search for responsive records and timely produce those records to Plaintiffs, as well as a declaration that Defendant’s conduct violated the FOIA. On January 6, 2021, Defendant filed its answer. Production of responsive records is currently underway.

Documents:
FOIA Request
Complaint
Answer

Counsel: Immigrant Legal Defense; American Immigration Council; ACLU Foundation of Texas

Contact:
Claudia Valenzuela | Immigrant Legal Defense | claudia@ild.org
Shaw Drake | ACLU Foundation of Texas | sdrake@aclutx.org

Press:
U.S. Watched George Floyd Protests in 15 Cities Using Aerial Surveillance

FOIA: Citizens for Responsibility & Ethics in Washington v. U.S. Customs & Border Protection, No. 1:22-cv-00496-TSC (D.D.C., filed Mar. 2, 2022)

In October 2021, the chief records officer of the National Archives and Records Administration, Laurence Brewer, wrote a letter to U.S. Customs and Border Protection (CBP) officials expressing concern about CBP’s use of Wickr, an Amazon-owned encrypted messaging platform known for its ability to automatically delete messages, which then become unrecoverable after a predetermined period of time. In the letter, Brewer wrote that he was “concerned about agencywide deployment of a messaging application that has this functionality without appropriate policies and procedures governing its use.” Public records have revealed that CBP – which has been widely criticized for its secrecy – has spent more than $1.6 million on Wickr since 2020 and is using the platform across all CBP components. However, little is known about how the agency has deployed the app. Its auto-deletion feature, in particular, has raised concern among both government record keepers and advocates, who worry that Wickr allows CBP officials to sidestep government transparency requirements and litigation obligations, especially considering the agency’s poor track record in complying with record-keeping laws.

In September 2021, Citizens for Responsibility and Ethics in Washington (CREW) submitted a Freedom of Information Act (FOIA) request to CBP, seeking all records and communications relating to CBP’s use of Wickr for official agency business. After CBP failed to respond to the request, CREW filed a lawsuit seeking a declaratory judgment that CBP is violating the FOIA and injunctive relief requiring CBP to immediately process and release the requested records. On April 4, 2022, Defendant filed its answer.

Documents:
Complaint
Answer

Counsel: The George Washington University Law School Jacob Burns Community Legal Clinics; Citizens for Responsibility and Ethics in Washington

Contact:
Jeffrey Gutman | The George Washington University Law School | jgutman@law.gwu.edu
Nikhel Sus | Citizens for Responsibility and Ethics in Washington | nsus@citizensforethics.org

Press:
Customs and Border Protection to Use Encrypted App Wickr Widely
Border Patrol’s Use of Amazon’s Wickr Messaging App Draws Scrutiny
CREW Submits FOIA Request to U.S. Customs and Border Protection Regarding Use of Wickr
CREW Sues for Records on CBP Contract with Wickr, “Auto-Burn” Encrypted Messaging App

FOIA: Advocates for Basic Legal Equality, et al. v. U.S. Customs and Border Protection, No. 3:22-cv-00149-JRK (N.D. Ohio, filed Jan. 28, 2022)

On March 12, 2021, Plaintiffs Advocates for Basic Legal Equality (ABLE) and the American Immigration Council (AIC) submitted three Freedom of Information Act (FOIA) requests to U.S. Customs and Border Protection (CBP) seeking documents related to the Border Patrol’s immigration enforcement activities in Ohio. Specifically, the requests sought policies and communications of the Sandusky Bay Border Patrol Station in Port Clinton, Ohio, as well as various forms documenting apprehensions by the Sandusky Bay Border Patrol Station.

On January 28, 2022, after Defendant failed to adequately respond to the request, Plaintiffs filed suit against Defendant seeking a declaration that Defendant’s failure to disclose responsive records and failure to promptly produce responsive records violates FOIA, as well as an order that Defendant immediately conduct a reasonable search for agency records and immediately produce all responsive agency records.

On March 9, 2022, the Court granted CBP’s motion for extension of time to answer the complaint until April 23, 2022.

Documents:
Complaint

Counsel: Advocates for Basic Legal Equality, Inc.; American Immigration Council; Immigrant Legal Defense

Contact:
Mark Heller | mheller@ablelaw.org
Emily Creighton | ECreighton@immcouncil.org
Claudia Valenzuela | claudia@ild.org

FOIA: Al Otro Lado v. U.S. Customs & Border Protection, et al., No. 2:22-cv-01450-DSF-AFM (S.D. Cal., filed March 3, 2022)

Over the past year, the media has reported multiple incidents of injuries and deaths along the U.S.-Mexico border as migrants cross to seek safety in the United States. In many of those instances, rather than transporting injured migrants to hospitals for medical treatment, both U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) have abandoned them at volunteer-run organizations not equipped to provide such medical care; taken them into custody and refused to provide them with medical care; or left them at border crossings without any assistance.

On July 20, 2021, Al Otro Lado submitted Freedom of Information Act (FOIA) requests to both CBP and ICE seeking information related to CBP and ICE’s unlawful treatment and processing of migrants injured falling from the border wall at the southern border. CBP denied Al Otro Lado’s request for expedited processing, and after seven months, neither CBP nor ICE have issued determinations regarding the request and both agencies have failed to produce even a single document in response. On March 3, 2022, Al Otro Lado filed suit seeking to compel CBP and ICE to issue determinations regarding the requests, arguing that the request is critically urgent because Defendants’ failure to adequately provide medical treatment to severely injured migrants and their expulsion of severely injured migrants is ongoing and continues to threaten migrants’ lives and safety. Plaintiffs seek a declaration that CBP and ICE have failed to timely respond to Plaintiff’s request for agency records and grant expedited processing of Plaintiff’s requests, as well as an order that Defendants must conduct a reasonable search for responsive records and produce non-exempt responsive records within twenty days of the Court’s order.

Documents:
Complaint

Counsel: Arent Fox LLP

Contacts:
Douglas Hewlett, Jr. | douglas.hewlett@arentfox.com
David Dubrow | david.dubrow@arentfox.com
Andrew Dykens | andrew.dykens@arentfox.com

National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection

National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection, No. 1:2021-cv-11094 (D. Mass., filed July 1, 2021)

Since 2019, Customs and Border Protection (CBP) has engaged in the practice of expelling from the United States migrants who recently gave birth, along with their U.S. citizen infants, often without birth certificates. CBP has even expelled individuals from the United States who were in active labor. The National Immigration Litigation Alliance, Al Otro Lado, and the Haitian Bridge Alliance (Plaintiffs) submitted a Freedom of Information Act (FOIA) request on March 18, 2021 to CBP seeking records relating to policies, guidance, or statistics regarding the treatment of pregnant people in CBP custody, people in CBP custody who have given birth within the United States within the last six months, U.S. citizen children in CBP custody who are under the age of six months, and non-U.S. citizen children of parents in CBP custody while their parent is giving birth at a U.S. hospital or other medical facility. Plaintiffs sought these records to better understand the scope and extent of CBP’s practice of expelling migrant parents and their infant children without considering the merits of their asylum applications.

When CBP failed to produce any responsive records or provide any other substantive response to the request, Plaintiffs filed suit on July 1, 2021. CBP filed their answer on August 13, 2021.

Documents:

Counsel: Proskauer Rose LLP; National Immigration Litigation Alliance; Al Otro Lado; Haitian Bridge Alliance

Contact: Trina Realmuto, National Immigration Litigation Alliance | trina@immigrationlitigation.org

Additional Links:

Llamas et al. v. U.S. Customs and Border Protection et al.

Llamas et al. v. U.S. Customs and Border Protection et al., No. 6:2021-cv-01169 (M.D. Fla., filed July 18, 2021)

After the murder of George Floyd by Minneapolis, Minnesota police officer Derek Chauvin on May 25, 2020, civil unrest and protests spread across the United States. In response to the protests, the federal government deployed officials from Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Federal Bureau of Investigation (FBI), and the United States Marshals Service (USMS), among others, to different U.S. cities and engaged in aerial surveillance of those participating in the protests.

In January 2021, Noelle Llamas and Ken Klippenstein, respectively a college student and a reporter for The Intercept, submitted six Freedom of Information Act (FOIA) requests to CBP, ICE, FBI, USMS, the Department of Homeland Security (DHS), and the Department of Justice (DOJ) seeking records related to emails sent from specific officials during the period of May 25, 2020 to August 15, 2020 in an attempt to learn more about the messaging related to each federal agency’s deployment of law enforcement officials during this period of time. In particular, the requests sought records concerning each agency’s internal messaging and responses to news media inquiries about the deployments.

Although the agencies acknowledged receipt of each request, Llamas and Klippenstein did not receive a final determination on any of them. On July 18, 2021, they filed suit against the agencies for the records sought in their FOIA requests. Defendants filed their answer on September 20, 2021. A scheduling order was entered in December 2021.

Documents:

Counsel: Elizabeth E. Bourdon, B.C.S.

Contact: Elizabeth (Beth) Bourdon | bbourdon@me.com

Moore v. U.S. Immigration & Customs Enforcement

Moore v. U.S. Immigr. & Customs Enf’t, No. EP-19-CV-00279-DCG, (W.D. Tex., filed Oct. 1, 2019)

From June 2018 to March 2019, Plaintiff Robert Moore, a journalist, submitted five Freedom of Information Act (FOIA) requests to U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and the U.S. Department of Health and Human Services (HHS), seeking critical records related to border enforcement, fundamental shifts in the treatment of people seeking asylum, and operation of immigration detention facilities in El Paso. Among other requests, Mr. Moore asked that CBP release any and all directives, emails, text messages and other communications from CBP officials regarding the handling of people seeking asylum at ports of entry when port facilities are at “capacity.” He also requested information related to CBP’s use of a “field force demonstration” in a community next to the border on the day of mid-term elections in November 2018. When the three agencies failed to timely produce responsive records, Mr. Moore filed a lawsuit on October 1, 2019, to compel the agencies to conduct searches and produce responsive records.

On December 18, 2019, Plaintiff filed a motion for judgment on the pleadings. The Court stayed the motion and set a production schedule.

In a series of motions, the parties have litigated the speed at which CBP must review and produce responsive records, notwithstanding the limitations imposed by the COVID-19 pandemic. On July 8, 2020, Plaintiff moved for the Court to lift the stay and to enter a finite production schedule. The Court allowed the stay to remain in place, in light of the global pandemic, but ordered a finite production schedule.  On November 19, 2020 (the day before the production deadline), at 4:56 p.m., CBP filed a motion for a new stay of proceedings pursuant to 5 U.S.C. § 552(a)(6)(C) and Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), and to extend the deadline under the finite production schedule.

On January 12, 2021, the Court denied CBP’s request for an Open America stay. The Court ordered Defendants to respond to Plaintiff’s motion for judgment on the pleadings, ordered the parties to confer regarding a revised finite production schedule, and ordered CBP to produce weekly status reports to the Court for the duration of the case. The Court explained that the weekly reports, accompanied by a declaration, “SHALL detail CBP’s progress and developments in processing both Plaintiff’s FOIA requests and track the specific number of files/records/documents and total amount of pages reviewed that week and how many are outstanding for each individual FOIA request. Any incomplete, late, or seemingly cloned (‘copied-and-pasted’) submissions SHALL not be deemed to comply with this Order.”

The case was set for a bench trial on September 15, 2021, related to the withholding of information from CBP’s FOIA production. On September 14, 2021, CBP rolled back certain redactions from its production, resolving the issues that were to be presented at trial. The parties submitted a joint motion to retain the case while fees are resolved.

Counsel: Law Office of Lynn Coyle, PLLC

Contact: Christopher Benoit | chris@coylefirm.com | (915) 532-5544

No More Deaths v. U.S. Customs and Border Protection

No More Deaths, et al. v. U.S. Customs and Border Protection, 1:21-cv-00954 (S.D.N.Y., filed Feb. 3, 2021)

Every year hundreds—possibly thousands—of migrants die while crossing into the United States from Mexico. The U.S. Border Patrol, within Customs and Border Protection (CBP), is responsible for most emergency aid requests for assistance in the desert, in part because local law enforcement agencies often refer 911 calls for emergency to Border Patrol when Spanish-speaking individuals call seeking help. Border Patrol’s role as an emergency services provider at the border is directly at odds with its role as an immigration enforcement agency.

Documentation by No More Deaths (NMD), a border aid organization, suggests that Border Patrol has often failed to carry out its search and rescue responsibilities: in 63% of all border distress calls referred to Border Patrol, the agency did not conduct any confirmed search or rescue mobilization. And when Border Patrol does initiate searches, they are significantly less effective when compared to searches for missing or lost U.S. citizens. Some Border Patrol searches last less than a day, or scarcely an hour. Documentation by local human rights organizations shows that in over 100 cases over a two-year period, Border Patrol agents actively interfered with family and humanitarian-organization led search efforts. In April 2019, NMD and the Center for Constitutional Rights (CCR) filed a Freedom of Information Act (FOIA) request seeking information about CBP’s practices and policies relating to emergency services it claims to provide along the U.S.-Mexico border. In February 2021, after CBP failed to provide records for over 20 months, NMD and CCR filed a complaint seeking to compel an immediate, expedited search for and disclosure of requested records. The government filed its answer to the complaint in March 2021. As of April 2022, CBP’s production of responsive material is ongoing.

Documents:

Counsel: Center for Constitutional Rights

Contact: Angelo Guisado | aguisado@ccrjustice.org

Additional Links

Center for Democracy & Technology v. Department of Homeland Security

Center for Democracy & Technology v. Department of Homeland Security, et al., 1:21-cv-134 (D.D.C., filed Jan. 15, 2021)

In 2011, the Department of Homeland Security (DHS) announced a plan to implement “Publicly Available Social Media Monitoring and Situational Awareness Initiatives,” which were designed to collect, analyze, and disseminate social media content. DHS has since significantly expanded its collection and monitoring of social media information, using that information to inform who may travel to, enter, and remain in the United States, as well as decisions about naturalization.

In August and September 2019, the Center for Democracy & Technology (CDT) submitted a series of Freedom of Information Act (FOIA) requests to Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) requesting documents and training materials related to the collection and use of First Amendment protected activity on social media. On January 15, 2021, CDT filed a complaint in the U.S. District Court for the District of Columbia seeking to compel DHS, CBP, and ICE to immediately process its FOIA requests and disclose all non-exempt documents to CDT. Defendants filed their answer on March 11, 2021, and the parties have filed periodic status reports as production in response to the FOIA request continues.

Documents:

Counsel: Davis Wright Tremaine, LLP

Contact: David M. Gossett, Davis Wright Tremaine LLP | davidgossett@dwt.com

American Civil Liberties Union v. Department of Homeland Security

American Civil Liberties Union v. Department of Homeland Security, 1:20-cv-10083 (S.D.N.Y., filed Dec. 2, 2020).

Many modern cell phone applications routinely gather users’ location information and sell it to third parties, who then use it for marketing and other purposes. In February 2020, the Wall Street Journal reported that Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the Department of Homeland Security (DHS) were purchasing location information from private companies and using it to locate and arrest noncitizens. One company, Venntel, appears to be selling access to a large database to DHS, CBP, and ICE. This raises serious concerns that CBP and ICE are evading Fourth Amendment protections by purchasing location information instead of obtaining warrants.

In February 2020, the ACLU filed Freedom of Information Act (FOIA) requests with DHS, CBP, and ICE seeking: (1) records of contracts, letters of commitments, and other agreements concerning government access to or receipt of cell phone location information; (2) all communications with or about Venntel Inc.; (3) policies, guidelines, memoranda, and trainings relating to government access and use of cell phone information purchased from commercial vendors; (4) formal legal analysis concerning access to commercial databases containing cell phone location information purchased from a commercial vendor; (5) records sufficient to show the volume of cell phone location data contained in commercial databases for which DHS, CBP, and ICE have purchased access; (6) records showing how many times each year DHS, CBP, and ICE employees or contractors have accessed such databases; and (7) records concerning the use of commercially purchased cell phone information in any court application, trial, hearing, or other proceeding.

On December 2, 2020, the ACLU filed a complaint seeking to compel CBP, ICE, and DHS to conduct adequate searches for the records they requested through FOIA. Defendants filed their answer on January 27, 2021, and production in response to ACLU’s FOIA request is ongoing as of October 2021.

Documents:

Counsel: ACLU Foundation Speech, Privacy, and Technology Project

Contact: Nathan Freed Wessler, ACLU Foundation | (212) 549-2500 | nwessler@aclu.org

Additional links:

• Brian Tau and Michelle Hackman, Federal Agencies Use Cellphone Location Data for Immigration Enforcement, The Wall Street Journal, Feb. 7, 2020.