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American-Arab Anti- Discrimination Committee v. U.S. Dep't of Homeland Security

September 28, 2007


The opinion of the court was delivered by: James Robertson United States District Judge


Plaintiff American-Arab Anti-Discrimination Committee (ADC) seeks declaratory and injunctive relief against the U.S. Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiff asserts that the defendants have failed to show that they conducted an adequate search for a portion of the data requested, and that they are improperly withholding the remainder of the requested data. Before the Court are plaintiff's motion for partial summary judgment as to the information withheld and defendants' motion for summary judgment as to the both the adequacy of the search and the exemptions asserted.


ICE, the largest investigative branch of the Department of Homeland Security, is tasked with enforcing U.S. immigration and customs laws. Created after the terrorist attacks on September 11, 2001, ICE "prioritizes its immigration enforcement actions by targeting the greatest national security and public safety threats." [Dkt. # 14, Ex. A]. On September 30, 2004, shortly before the 2004 Presidential election, ICE issued a press release entitled "Terrorist Threat and Disruption Efforts by ICE." [Dkt. # 1, Ex. 1]. The release announced that ICE "ha[d] been working for the past several months at a heightened level in direct support of the government-wide Interagency Security Plan that w[ould] remain in effect through the 2005 Presidential Inauguration." Id. ICE's role in this coordinated plan entailed "stepped-up enforcement actions involv[ing] the re-prioritization of existing leads on suspected immigration status violators according to national security criteria." Id.

While the press release did not spell out what "national security criteria" were used in targeting immigration status violators for this particular series of enforcement actions, the release identified a number of databases that ICE "routinely" uses to generate immigration status violation leads. Among the databases identified is one maintained as part of the National Security Entry/Exit Registration System (NSEERS). See Registration and Monitoring of Certain Non-immigrants, 67 Fed. Reg. 52, 584 (Aug. 12, 2002). One aspect of NSEERS called "special registration" imposes a number of requirements on foreign nationals from countries specified by the Attorney General -- that they be fingerprinted and photographed upon entry, that they register with immigration authorities periodically, etc. See id. Upon learning that NSEERS was being used to generate leads for ICE's announced enforcement campaign, ADC immediately registered its concern with both DHS and ICE. [Dkt. #1, Ex. 3]. Because the populations of 24 of the 25 countries included in NSEERS special registration are majority Muslim,*fn1 ADC was concerned that use of NSEERS-generated leads might cause "the ICE initiative [to] be selectively carried out against Arabs and Muslims." [Dkt #1, Ex. 3].

On November 4, 2004, ICE issued another press release entitled "ICE Threat Disruption Effort Results in More than 230 Arrests." [Dkt. # 1, Ex. 4]. This public statement announced that "in a one-month period beginning October 1, 2004, ICE [] arrested 237 immigration status violators nationwide as part of the government-wide Interagency Security Plan that will remain in effect through the 2005 Presidential Inauguration." Id.

According to the release, the arrests were the result of "leads [that had] been sent to ICE field offices for immediate investigation and potential arrest -- without regard to race, ethnicity, or religion." Id. While a complete picture of the arrests was not given, the release did disclose the nationalities of 8 of the 237 persons arrested. They included nationals of Saudi Arabia, Jordan, Lebanon, Pakistan, Jamaica, Thailand, and the Philippines.

In light of its concerns that the use of information from NSEERS to generate enforcement leads might have had "a disproportionate impact on individuals from Arab or Muslim countries," on December 14, 2004, ADC filed a FOIA request for "data on [the] nationality of those 230 individuals detained as a result of the recent enforcement initiative by [ICE]." [Dkt. #1, Ex. 5]. ICE responded by letter dated February 14, 2005, stating "that a search of our database was able to determine the specific information you have requested. However, this data is being withheld in its entirety pursuant to exemption b(7)(A) of the FOIA." [Dkt. # 14, Ex. A]. In a letter dated March 3, 2005, Plaintiff appealed ICE's denial to the Privacy Office of the Department of Homeland Security. [Dkt. # 1, Ex. 6]. On September 5, 2005, DHS affirmed. [Dkt. # 1, Ex. 7].

On February 8, 2006, ADC filed a second FOIA request, asking for the release of "data on the race, ethnicity, religion, and gender of the 237 individuals detained as a result of an immigration enforcement operation in late 2004, identified in an ICE press release of November 4, 2004." [Dkt. # 1, Ex. 8]. ICE did not immediately respond to this second request.

ADC filed this action on October 17, 2006, seeking to compel the release of the data requested in its December 14, 2004, and February 8, 2006, FOIA requests. Defendants filed a motion for summary judgment on January 18, 2007. On the same date, ICE finally responded to the plaintiff's second FOIA request, asserting that 1) it did not maintain statistics relating to ethnicity or religion; 2) only limited information on the race of arrestees had been gathered; and 3) the gender of those arrested is exempt from disclosure under FOIA Exemptions 7(A), (D), (E), and (F). [Dkt. 14, Ex. A].


FOIA requires disclosure of government records except in cases where the agency can establish that the requested information is properly withheld under one of nine statutory exemptions, see 5 U.S.C. § 552(b). These exemptions are to be narrowly construed, FBI v. Abramson, 456 U.S. 615, 630 (1982), with the burden placed on the government to prove that withheld information falls under the exemption asserted. 5 U.S.C. § 552(a)(4)(B).

A government agency can meet its burden and demonstrate that documents have been properly withheld by submitting "affidavits describing the material withheld and the manner in which it falls within the exemption claimed." King v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). When an agency provides sufficiently detailed affidavits that demonstrate "a logical connection between the information [withheld] and the claimed exemption," this court will "accord those affidavits substantial weight" and will "consider[] the agency's unique insights into what adverse [e]ffects might occur as a result of public disclosure." Goldberg v. U.S. Dep't of State, 818 F.2d 71, 78 (D.C. Cir. 1987) (internal quotation marks and citation omitted). An agency will thus be entitled to summary judgment when (1) its "affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed, and (2) the affidavits are neither controverted by contrary record evidence nor impugned by bad faith on the part of the agency." King, 830 F.2d at 217.

The defendants have moved for summary judgment on the grounds that: 1) they do not maintain data on the religion and ethnicity of those arrested; 2) they only collected data on the race of 15 of the 237 arrested individuals and they have provided this information; and 3) they properly withheld data on the nationality and gender of the 237 arrestees under Exemptions 7(A), 7(D), 7(E), and 7(F). In support of all of these contentions the defendants submitted the sworn declaration of John P. Clark, Assistant Secretary for Operations at ICE. [Dkt. #14, Ex. A]. Plaintiff has filed a cross-motion for partial summary judgment asking that this Court order defendants to disclose the requested gender and ...

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