Category Archives: FOIA

Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol

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Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol, No. 2:16-cv-14192 (E.D. Mich. filed November 30, 2016)

Citing concerns over potential Constitutional violations, the ACLU of Michigan, the Michigan Immigrant Rights Center, and researchers filed a federal lawsuit against DHS and CBP in 2016 for the agencies’ failure to provide information related to its “100-mile zone” policy—which CBP claims authorizes agents to engage in warrantless vehicle searches within 100 miles of any international border or waterway.

8 U.S.C. § 1357(a)(3) grants CBP authority to conduct warrantless vehicle searches and detentions within a “reasonable distance” of the border solely for the purpose of preventing illegal entry into the United States. 8 C.F.R. § 287.1(b) defines “reasonable distance” as 100 miles. The Great Lakes are considered the “functional equivalent” of an international border, and therefore the entire state of Michigan is within this “100-mile zone.”

To shed light on the 100-mile zone policy in Michigan, advocates and researchers submitted a FOIA request to DHS and CBP in 2015. Neither agency provided a legally adequate response. Instead, a few heavily-redacted documents were released. These documents underscored the need for greater public access to information about Border Patrol’s roving patrols operations and CBP’s claims that agents may search any motorist anywhere in the state without a warrant.

The requesters filed a federal lawsuit on November 30, 2016, in the United States District Court in the Eastern District of Michigan. Plaintiffs filed an amended complaint on July 28, 2017. On February 14, 2018, Defendants moved for summary judgment. On March 28, 2018, the Michigan Immigrant Rights Center filed a cross-motion for partial summary judgment and opposition to Defendants’ motion for partial summary judgment. Oral arguments were heard on the motions, and on September 7, 2018, the parties reached an agreement whereby the government would provide city-level information in apprehension reports about where apprehensions occur. Plaintiffs received these reports on a rolling three-month schedule through the end of 2018.  Plaintiffs moved for sanctions in January of 2020 based on Defendants’ failure to comply with production deadlines.

In March 2020, the parties stipulated that no disputes remained regarding Defendants’ production of documents and the case was dismissed with prejudice. On September 21, 2020, the court denied Plaintiffs’ motion for sanctions.

Contact: Miriam Aukerman | maukerman@aclumich.org

American Immigration Lawyers Association v. DHS, et al.

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American Immigration Lawyers Association v. DHS, et al., No. 1:16-cv-02470 (D.D.C. filed Dec. 19, 2016)

On July 10, 2013, the American Immigration Lawyers Association (AILA), submitted a FOIA request to Customs and Border Protection (CBP), seeking records relating to the issuance and implementation of the Officers’ Resource Tool (ORT) and how it has come to replace the Inspector’s Field Manual (IFM). The ORT replaced the IFM, which previously provided guidance regarding the inspection and admission of individuals into the United States at U.S. ports of entry. CBP failed to produce any responsive records and did not respond to AILA’s administrative appeal.

In December 2016, the American Immigration Council, in cooperation with Foley and Lardner, LLP, filed the lawsuit on AILA’s behalf seeking to compel CBP to release the ORT. On June 7, 2017, Defendants filed a motion for summary judgment, which the court denied on March 30, 2018. After continued delays in production, the plaintiffs filed a second motion for summary judgment in December 2018. The court denied that motion without prejudice,  but ordered the government to produce documents by May 31, 2019.

In November 2019, Defendants filed a renewed motion for summary judgment, and in January 2020, Plaintiffs filed their opposition, as well as a cross-motion for summary judgment. On March 10, 2020, Defendants filed their reply to Plaintiffs’ opposition and their opposition to Plaintiffs’ cross-motion for summary judgment. On July 22, 2020, the district court ordered additional, unredacted production from Defendants. On April 30, 2021, the parties stipulated to dismiss the case.

Counsel: Emily Creighton | American Immigration Council | ecreighton@immcouncil.org
Kristin Macleod-Ball | American Immigration Council | kmacleod-ball@immcouncil.org
Naikang Tsao | Foley & Lardner LLP | ntsao@foley.com

American-Arab Anti-Discrimination Committee v. CBP

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American-Arab Anti-Discrimination Committee v. U.S. Customs and Border Protection, No. 1:17-cv-00708 (D.D.C. filed April 18, 2017)

In March 2017, the American-Arab Anti-Discrimination Committee (ADC) filed a Freedom of Information Act request with CBP seeking agency records relating to Global Entry System (GES) revocations, suspensions, terminations, confirmations, and policy practices. ADC alleged that after the November 2016 presidential election, and significantly accelerating following President Trump’s attempted travel ban implementation, CBP began revoking—without explanation—Global Entry System approval for Arabs and Muslims who previously had been approved for Global Entry. ADC further alleged that the revocations were not isolated incidents but rather part of a wider pattern in which CBP singled out travelers with Arab or Muslim names or ancestries and revoked their GES approval without any accompanying material change in circumstance or security risk. Those singled out for revocation included doctors, bankers, students, and businesspeople. These revocations also corresponded with inexplicably heightened scrutiny by CBP agents towards Arab and Muslim travelers in the wake of the travel ban.

Through its FOIA request, ADC specifically sought agency records relating to each revocation, suspension, or termination of GES participation beginning November 9, 2016, as well as additional records that would show a pattern of CBP’s singling out Arab and Muslim travelers from whom to revoke GES approval, including agency records created on or after November 9, 2016, relating to the operation or functioning of the GES program and containing the words or phrases “Muslim,” “Arab,” “ban,” “Muslim ban,” or “travel ban.”

CBP failed to disclose the requested records within the designated timeframe. In April 2017 ADC sought declaratory and injunctive relief to compel DHS to produce the requested records.

After two years of litigation, the parties settled on their disputes on the merits and with respect to attorneys’ fees, and the case was voluntarily dismissed in July 2019.

Co-Counsel: R. Andrew Free | Law Office of R. Andrew Free

Co-Counsel: Gregory H. Siskind | Siskind Susser, PC

Contact: R. Andrew Free | andrew@immigrationcivilrights.com | 844-321-3221

Murphy v. CBP

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Murphy v. CBP, No. 3:15-cv-00133-GMG-RWT (N.D.W.V., filed Dec. 4, 2015)

Acting pro se, a former armed security guard under federal contract at the CBP Training Center in Harpers Ferry, West Virginia filed a Freedom of Information Act complaint against CBP on December 4, 2015.  The complaint alleged that CBP unlawfully redacted or withheld over 80% of the responsive documents that Plaintiff sought in conjunction with an Equal Employment Opportunity complaint he filed alleging that CBP unlawfully terminated him due to his race and his wife’s race and religion.

After initially moving to dismiss the complaint due to insufficient service, which the district court denied, CBP moved for summary judgment.  Plaintiff opposed the motion, cross-filed for summary judgment, and filed a motion to compel as well as for in camera review of the documents.  After the completing of briefing, on August 5, 2016, the district court denied CBP’s motion for summary judgment, holding that CBP failed to meet its burden of demonstrating that documents responsive to the Plaintiff’s FOIA request were withheld pursuant to a recognized FOIA exemption under FOIA.  The court further established a schedule for the filing of a Vaughn index and for additional briefing from the parties. The court also denied without prejudice Plaintiff’s motion for in camera review of the responsive documents.

On August 8, 2015, CBP filed its answer to the complaint.

On June 13, 2017, the court denied Defendant’s third motion for summary judgment, granted Plaintiff’s cross motion for summary judgment, and ordered Defendant to reimburse Plaintiff for the expenses he incurred in bringing the suit.

American Immigration Council v. United States Department of Homeland Security

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American Immigration Council v. United States Department of Homeland Security, No. 16-cv-01050-RJL (D.C. District Court, Filed June 6, 2016)

The American Immigration Council filed a FOIA request with U.S. Customs and Border Protection (CBP) in October, 2015 seeking information about complaints filed against the U.S. Border Patrol since January, 2012. This request followed-up on an earlier FOIA request by the Council in response to which CBP produced data concerning 809 complaints of abuse lodged against U.S. Border Patrol (USBP) agents between January 2009 and January 2012. The Council analyzed this earlier data in a May 2014 report entitled, No Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse, revealing that the recorded outcome in 97 percent of the cases CBP claimed to have resolved was “no action.” The data further showed that “physical abuse” by USBP agents was the most prevalent reason given for filing a complaint (cited in 40 percent of the complaints), with “excessive use of force” referenced in 38 percent of the cases. The October 2015 FOIA was filed in order for the Council to determine whether CBP and USBP had made any improvements to the complaint system, and in particular whether the response to complaints filed against agents had changed.

Over 8 months later, CBP had not responded to the October 2015 FOIA. The Council, represented by Drinker Biddle & Reath LLP, filed a lawsuit on June 6, 2016, to compel the release of documents related to the complaints process. CBP subsequently produced a multiple-page spreadsheet listing abbreviated information about thousands of complaints. The case was referred for mediation in May of 2019.

The parties settled and dismissed the case in December 2019. Pursuant to the settlement, CBP produced a second spreadsheet identifying all complaints made against Border Patrol officers by noncitizens or on behalf of noncitizens for the period from the last spreadsheet through August 2019.

Counsel: The American Immigration Council, Drinker Biddle & Reath LLP

Contact: Mary Kenney | American Immigration Council | 202.507.7512 | mkenney@immcouncil.org

Ohio State University Moritz College of Law Civil Clinic and Advocates for Basic Legal Equality v. U.S. Customs and Border Protection

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Ohio State University Moritz College of Law Civil Clinic and Advocates for Basic Legal Equality v. U.S. Customs and Border Protection, U.S. District Court, Southern District of Ohio, Eastern Division (S.D. Ohio; 2:14-cv-2329), transferred to U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:15-cv-833)

The Ohio State University College of Law Civil Clinic and ABLE filed a FOIA request with U.S. Customs and Border Protection on August 18, 2014.  The requested documents focus on enforcement efforts of the Sandusky Bay Station (Ohio) of the U.S. Border Patrol, including apprehension and arrest records; records relating to cooperation between Border Patrol and local police; and records of any civil rights investigations against the Border Patrol.  When no timely response was received, the requesters filed a lawsuit against CBP in the S.D. Ohio, Eastern Division (Columbus).  The U.S. Attorney filed a motion to transfer the case to the Northern District of Ohio; the Plaintiffs opposed the motion.  The motion was granted and the case was transferred to Judge Jack Zouhary in the Northern District based on his prior handling of a series of cases against the Sandusky Bay Station of the U.S. Border Patrol.  The Defendant has, as of October 12, 2015, started a phased delivery of requested information. In July of 2016, the parties stipulated to case dismissal with prejudice, and on July 28, 2016, the case was dismissed.

ACLU of Arizona v. DHS (Tucson Interior Enforcement FOIA)

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ACLU of Arizona v. DHS, No.4:14-cv-02052 (D. Ariz., filed April 28, 2014) (D. Az., filed April 28, 2014) (Tucson Interior Enforcement FOIA)

In January 2014, the Arizona ACLU and two University of Arizona law professors filed a FOIA request with DHS seeking records related to interior enforcement activities by the Border Patrol’s Tucson and Yuma Sectors (covering all of Arizona and a portion of southeastern California) from 2011 to 2014. The request specified that it included complaints and investigations, apprehension statistics, stop records, policies, and training materials.

DHS failed to respond to the FOIA request, prompting the Plaintiffs to sue in federal court in April 2014.  The government eventually identified at least 10,000 pages of responsive records, but has released only half of those records. Approximately 1,200 pages were withheld in full and the remaining records were heavily redacted; there was no legal justification or explanation for these redactions. CBP subsequently acknowledged the existence of substantially more responsive records, which it has refused to provide.

As of April 2017, litigation is ongoing. On January 26, 2017, the Magistrate Judge issued a report and recommendation that the District Court (1) grant in part and deny in part Defendant’s Motion for Summary Judgment, and (2) grant in party and deny in part Plaintiffs’ Cross-Motion for Summary Judgment. DHS filed its objection to the report and recommendation on March 15, 2017.

Even the limited records released to date provide troubling insights into Border Patrol’s internal enforcement operations.  In October 2015, the ACLU released a report, Record of Abuse, based on the agency records it obtained, which the ACLU also made available on its website.

The case settled and was dismissed pursuant to a joint motion on February 15, 2018.

Contact: Kathy Brody | ACLU of Arizona | kbrody@acluaz.org 

Resources:

Ashish Patel (a.k.a. Ash Kumar), et al. v. Jeh Johnson, et al.

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Ashish Patel (a.k.a. Ash Kumar), et al. v. Jeh Johnson, et al. (W.D. Wash., filed Feb. 05, 2015)

In September and October 2013, Mr. Patel submitted requests under the Freedom of Information Act (FOIA) to the Department of Homeland Security (DHS) and Department of State (DOS) respectively, seeking “any and all records” under his name. Mr. Patel sought the information in order to obtain records from an incident at the U.S.-Canada border in 2012 which potentially affected his later application for a U.S. visa.

In general, the FOIA statute requires agencies to respond to requests within 20 business days. After waiting more than three months for DHS and DOS to produce his records, Mr. Patel filed a lawsuit in January 2014 seeking a court order forcing DHS and DOS to conduct a search and produce records related to his request. Nearly one year after filing, DHS and DOS finally produced the documents. Mr. Patel and DHS/DOS subsequently settled the case and jointly moved to dismiss it.

Brown, et al. v. CBP and DHS – FOIA Class Action Against CBP

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Brown, et al. v. CBP and DHS, 15-cv-01181-JD (N.D. Cal.)

On March 12, 2015, fourteen plaintiffs, including three immigration attorneys and eleven noncitizens filed a complaint with class allegations in federal district court in the Northern District of California against Defendant U.S. Customs and Border Protection (CBP), seeking redress for CBP’s failure to comply with the statutory timelines under the Freedom of Information Act (FOIA). Plaintiffs challenge a pattern or practice that has resulted in the agency having a backlog of over thirty thousand unanswered requests under FOIA. On April 22, 2015, Plaintiffs filed an amended complaint against both CBP and the U.S. Department of Homeland Security, as well as a motion to certify a nationwide class.

On May 18, 2015, Defendants filed a motion to dismiss, arguing that Plaintiffs failed to allege any actionable claim under the FOIA, lacked standing, and did not identify a discrete CBP policy or practice. Plaintiffs filed an opposition on June 1, 2015. On September 17, 2015, the court denied CBP’s motion to dismiss in its entirety.

The court held a hearing on the pending motion for class certification on October 7, 2015, but did not rule on the motion. Instead, the court requested that the parties engage in discovery and file amended briefs on class certification following this discovery.

During the course of the lawsuit, CBP implemented new procedures for handling FOIA requests and added staff. In light of this, the parties reached a settlement and, On October 5, 2016, the district court dismissed the case pursuant to this settlement.  At the time of the settlement, CBP’s backlog had been reduced to approximately 3,000 FOIA requests, most of which were complex, and CBP generally was responding to new requests within 20 days. In the settlement, CBP committed to continuing its efforts to timely process FOIA requests.  Additionally, the agency committed to increased transparency about its performance; CBP will now post monthly FOIA statistics to its website, including the total number of FOIA requests pending, how long they have been pending, how many new requests are received each month, and how many are processed.

Contact: Stacy Tolchin | stacy@tolchinimmigration.com

ACLU San Diego et al. v. DHS et al. (SoCal Roving Patrols FOIA)

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American Civil Liberties Union of San Diego and Imperial Counties et al v. Department of Homeland Security et al., No. 8:15-cv-00229-JLS-RNB (C.D. Cal., filed Feb. 20, 2015)

This is a Freedom of Information Act (FOIA) case challenging defendant Department of Homeland Security (DHS) and Customs and Border Protection (CBP)’s failure to respond to Plaintiffs’ request for information regarding U.S. Border Patrol’s interior enforcement / “roving patrol” operations in Southern California.

There is little publicly-available information regarding the extent or impact of Border Patrol roving patrol operations, or regarding Border Patrol agents’ respect for regulatory or constitutional limitations on their authority. In Southern California, Border Patrol agents are present throughout a number of both major metropolitan and rural areas a considerable distance from the U.S.-Mexico border, including Fallbrook, CA (seventy miles north of the U.S.-Mexico border), Laguna Beach, CA (almost ninety miles north of the U.S.-Mexico border), and Long Beach, CA (over 100 miles north of the U.S.-Mexico border).

Because Border Patrol does not release stop data or other information related to roving patrol operations, Plaintiffs filed a FOIA request with Defendants in July 2014, seeking records related to U.S. Border Patrol’s “roving patrol” operations in the San Diego and El Centro Sectors, including relevant agency policies, stop data, and complaint records.

DHS entirely ignored the request. CBP sent the ACLU a series of contradictory emails, none of which were legally adequate responses under the FOIA itself or DHS regulations. In February 2015, Plaintiffs filed suit in the Central District of California to compel Defendants to release the requested records. On June 23, the Court issued a scheduling order requiring Defendants to produce all responsive records on or before November 2, 2015.

On January 27, 2017, the Court heard arguments on the parties’ respective Motions for Summary Judgment. On February 10, 2017, the Court issued an order denying both Motions for Summary Judgment, and additionally requiring (1) that the government provide specified documents to the Court for in camera review, and (2) that both parties submit supplemental briefing. The parties submitted supplemental briefing on April 5, 2017, and subsequent replies on April 19, 2017.

On August 18, 2017, the Court heard additional arguments on the parties’ Motions for Summary Judgment. On November 6, 2017, the Court issued an order granting in part and denying in party both Motions for Summary Judgment, and additionally requiring the government to submit specified documents to the Court for in camera review. On April 19, 2018, the Court issued a supplemental order granting in part and denying in part both of the parties’ motions. The Court entered a final judgment in the case on May 11, 2018. Neither party will appeal the order, and the parties reached a settlement on costs and fees in November 2018. Productions are now completed, and ACLU hopes to publish the documents sometime in 2019.

Related documents:

Counsel: ACLU of San Diego & Imperial Counties | ACLU of Southern California | University of California, Irvine School of Law Immigrant Rights Clinic

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org