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American Immigration Council v. United States Department of Homeland Sec.

United States District Court, District of Columbia

November 27, 2012


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Beth Jennifer Werlin, Creighton R. Magid, Dorsey & Whitney LLP, Melissa E. Crow, American Immigration Council, Washington, DC Michelle S. Grant, Dorsey & Whitney LLP, Minneapolis, MN, for Plaintiff.

Marian L. Borum, U.S. Attorney's Office for the District of Columbia Washington, DC, for Defendants.


JAMES E. BOASBERG, District Judge.

After sitting on a fairly standard Freedom of Information Act request by Plaintiff American Immigration Council for almost a year, Defendant U.S. Citizenship and Immigration Services (a component of the Department of Homeland Security, the other Defendant) produced a response riddled with errors. The affidavit meant to demonstrate the adequacy of USCIS's search for responsive records discloses almost nothing about the search itself. The Vaughn index, moreover, which should justify all withholdings of documents, oscillates between sloppy and misleading. After in camera review, the Court concludes that two-thirds of the withheld records contested by the Council should have been largely or wholly released. FOIA cases count on agencies to do their jobs with reasonable diligence. USCIS must do better.

I. Background

FOIA requires that " each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). The Act makes exceptions for certain categories of records, however, which are described as FOIA exemptions. See 5 U.S.C. § 552(b).

In March 2011, the Council submitted this FOIA request about the role of counsel in immigration proceedings to USCIS:

AIC requests any and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Citizenship and Immigration Services (USCIS), whether issued or maintained by USCIS Headquarters offices, regional offices, district offices, field offices and/or any other organizational structure, and which relate or refer in any way to any of the following:
• Attorneys' ability to be present during their clients' interactions with USCIS;

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• What role attorneys may play during their clients' interactions with USCIS;
• Attorney conduct during interactions with USCIS on behalf of their clients;
• Attorney appearances at USCIS offices or other facilities.

Compl., Exh. A (Letter fro Emily Creighton, Am. Immigr. Council, to FOIA Office, USCIS (March 14, 2011)), at 1 (footnote omitted). The request " include[d], but [was] not limited to" sixteen specific types of records. Id.; see, e.g., id. at 2 (" [ (6) ] Guidance or any information obtained by the agency regarding circumstances under which an attorney may accompany a client to an interview regarding an N-400, Application for Naturalization, or what role the attorney may play during such questioning" ).

After eight months without receiving a determination, the Council filed suit in this Court. See 5 U.S.C. § 552(a)(6) (agency normally must make initial determination in 20 days, with another 20 days allotted for administrative appeal). Three months later, USCIS finally responded— releasing 455 pages in full, 418 in part, and withholding 1169 in full. See Mot., Exh. G (Letter from Jill A. Eggleston, Dir., FOIA Operations, USCIS, to Creighton (Feb. 6, 2012)).

USCIS has now filed a combined Motion to Dismiss (asserting partial mootness) and Motion for Summary Judgment (defending the sufficiency of the response itself). The Council contests only the Motion for Summary Judgment.

II. Legal Standard

Summary judgment may be granted if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is " material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. A dispute is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. " A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by " citing to particular parts of materials in the record" or " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they " describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) (citation omitted). Such affidavits or declarations " are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence

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and discoverability of other documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) ...

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