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Judicial Watch, Inc. v. United States Dept. of Homeland Security

United States District Court, District of Columbia

February 28, 2013


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Jason B. Aldrich, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Gregory Peter Dworkowitz, U.S. Department of Justice, Washington, DC, for Defendant.



Judicial Watch, Inc. (" Judicial Watch" ) brings this Freedom of Information Act (" FOIA" ) action against the United States Department of Homeland Security (" DHS" ), seeking the disclosure of records relating to recent changes in federal immigration enforcement priorities and their implementation in Houston, Texas. Presently before the Court are DHS's [18] Renewed Motion for Summary Judgment and Judicial Watch's [20] Cross-Motion for Summary Judgment. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART DHS's Renewed Motion for Summary Judgment and GRANT-IN-PART and DENY-IN-PART Judicial Watch's Cross-Motion for Summary Judgment.


This action has its origins in a national policy issued by United States Immigration and Customs Enforcement (" ICE" ), a component and an investigative arm of

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DHS, and the subsequent response of the Houston ICE Office to that policy.

A. Factual Background

On June 3, 2010, John Morton (" Morton" ), the Assistant Secretary of ICE located in Washington, D.C., distributed a four-page memorandum to all ICE employees concerning civil immigration enforcement priorities for the apprehension, detention, and removal of aliens (the " June 2010 National Policy Memorandum" ). Def.'s First Stmt. ¶ 1. The June 2010 National Policy Memorandum provides, in part:

In addition to our important criminal investigative responsibilities, ICE is charged with enforcing the nation's civil immigration laws. This is a critical mission and one with direct significance for our national security, public safety, and the integrity of our border and immigration controls. ICE, however, only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States. In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security.

DHS0001.[2] The memorandum then proceeds to identify three enforcement priorities: (1) " [a]liens who pose a danger to national security or a risk to public safety," (2) " [r]ecent illegal entrants," and (3) " [a]liens who are fugitives or otherwise obstruct immigration controls." DHS0001-0002. However, the memorandum includes the following proviso: " [n]othing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of other aliens unlawfully in the United States," DHS0003— in other words, those aliens falling outside the three categories of " higher priority" targets. The memorandum addresses the role of prosecutorial discretion in balancing enforcement priorities, providing that " [t]he rapidly increasing number of criminal aliens who may come to ICE's attention heightens the need for ICE employees to exercise sound judgment and discretion consistent with these priorities when conducting enforcement operations, making detention decisions, making decisions about release on supervision ..., and litigating cases." DHS0004.

Gary Goldman (" Goldman" ) is the Chief Counsel of the Office of Chief Counsel within the Houston ICE Office (" OCC Houston" ), one of twenty-six field offices around the country that litigate cases in immigration court, counsel ICE operational clients, and provide direction and support to United States Attorneys' Offices. Def.'s First Stmt. ¶¶ 7, 38. On August 12, 2010, Goldman issued a four-page memorandum to all attorneys in OCC Houston concerning the exercise of prosecutorial discretion in his office (the " August 12, 2010 Memorandum" ). Id. ¶ 7. Goldman's memorandum begins by stating that " every attorney must determine whether [a] case may be amenable to the exercise of prosecutorial discretion (PD) pursuant to guidelines outlined in the [June 2010 National Policy Memorandum]." DHS0009. It then proceeds to direct attorneys in OCC Houston to " file a Motion to Dismiss

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Proceedings ... in clear [prosecutorial discretion] cases," id., and includes a model to use in such proceedings, DHS0013-0016. The memorandum also describes a process for the review of pending cases in the office, stating that " [t]he goal of this attorney-wide tasking is to improve the overall efficiency of the removal process by ensuring the only cases [OCC Houston] litigate[s] fall within the parameters of the [June 2010 National Policy Memorandum]." DHS0012.

Goldman issued a supplemental two-page memorandum to OCC Houston attorneys on August 16, 2010 (the " August 16, 2010 Memorandum" ). Def.'s First Stmt. ¶ 12. Observing that the June 2010 National Policy Memorandum altered the landscape for enforcement priorities, the August 16, 2010 Memorandum identifies the need for " guidance as we strive to ensure consistency in the application of and compliance with prosecutorial discretion policy." DHS0017. After identifying " case-specific questions," the memorandum provides:

The answer to these questions and many others may be the same. We have been empowered with independent authority to exercise prosecutorial discretion. We work not in a world of black and white but one of many shades of grey. This is the beauty of prosecutorial discretion. We do strive for consistency in application of process but the agency does not want to stifle our independent authority to exercise sound judgment in matters of prosecutorial discretion.

DHS0018. The memorandum counsels that OCC Houston " must be selective in pursuing cases to ensure [its] prosecutions focus on cases of national security, public safety, criminal aliens and the other classes of ICE Priority cases." DHS0017.

On August 20, 2010, Morton issued a second national policy memorandum offering new guidance on how to handle removal proceedings involving aliens with applications or petitions before United States Citizenship and Immigration Services (the " August 2010 National Policy Memorandum" ). Def.'s First Stmt. ¶ 15. The memorandum outlines a framework for the expedited disposition of such removal proceedings, including their potential dismissal. DHS0023. It specifies that only removal cases meeting four criteria should be considered for potential dismissal: (1) the alien must be the subject of an application or petition for adjustment of status; (2) the alien must appear eligible for relief as a matter of law and in the exercise of discretion; (3) the alien, if required, must present a completed application to register permanent residence or adjust status; and (4) the alien must be eligible for adjustment of status. DHS0025. Even if an alien meets those criteria, the memorandum provides that " ICE may oppose relief on the basis of discretion." Id.

On August 24, 2010, Goldman distributed the August 2010 National Policy Memorandum to his staff in OCC Houston via e-mail. Def.'s First Stmt. ¶ 18. Goldman identified the memorandum as " an agency priority" and simultaneously withdrew his own August 12, 2010 and August 16, 2010 Memoranda. DHS0028. According to the e-mail, " [e]ffective immediately," OCC Houston's " affirmative efforts regarding prosecutorial discretion [were] to focus on the class of cases outlined in the [August 2010 National Policy Memorandum]." Id.

On August 25, 2010, Riah Ramlogan, the Director of Field Legal Operations in ICE's Office of the Principal Legal Advisor (" OPLA" ) [3] sent a memorandum to

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Goldman addressing his interpretation of the June 2010 National Policy Memorandum, as reflected in his August 12, 2010 and August 16, 2010 Memoranda. Def.'s First Stmt. ¶ 21. The memorandum provides:

I understand that your office has implemented the memoranda you issued by terminating each case it identified that did not correspond to one or more of the three priorities identified in [the June 2010 National Policy Memorandum]. However, your implementation overlooks a key provision of that guidance, which makes clear that ... ICE shall continue enforcing the law against other aliens as well. * * * Your approach that our attorneys should only litigate cases within the agency's highest priorities is not an accurate interpretation of the Assistant Secretary's guidance and is not consistent with agency policy.
DHS0029. Goldman was asked to rescind his August 12, 2010 and August 16, 2010 Memoranda. Id.

Goldman later responded by informing OPLA that he had already rescinded his August 12, 2010 and August 16, 2010 Memoranda, DHS0030, and explained that his " goal ... was to improve the efficiencies of the removal process by utilizing [OCC Houston's] resources to ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security," DHS0032.

B. Procedural Background

Judicial Watch submitted a FOIA request to DHS on August 30, 2010, seeking an array of records concerning the review and potential dismissal of pending immigration cases in Houston, Texas. Def.'s First Stmt. ¶ 25; Pl.'s Second Stmt. ¶ 1. DHS acknowledged receipt of the request and subsequently conducted a thorough search for responsive records. Id. ¶¶ 26-36, 39-46.

Judicial Watch commenced this action on March 23, 2011. See Compl., ECF No. [1]. On May 27, 2011, DHS released 237 pages of spreadsheets, memoranda, and correspondence to Judicial Watch, releasing 46 pages in full and releasing 191 pages in part. Def.'s First Stmt. ¶¶ 48, 50-51. As a basis for its partial withholding decisions, DHS cited FOIA Exemptions 5, 6, and 7(C). Id. ¶ 51. DHS did not withhold any records in full. Id. ¶ 49; Def.'s Second Stmt. ¶ 5.

DHS filed its first motion for summary judgment on August 4, 2011, see Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. ECF No. [13], which was accompanied by an itemized index correlating each document with a specific exemption and the justification for non-disclosure, see Def.'s Vaughn [4] Index (" First Vaughn Index" ), ECF No. [13-4], as well as a declaration from the Deputy FOIA Officer in ICE's FOIA Office, Ryan Law (" First Agency Declaration" ), ECF No. [13-2]. Judicial Watch opposed DHS's first motion for summary judgment, see Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J., ECF No. [14], but elected not to cross-move for summary judgment.

On January 27, 2012, the Court granted-in-part and denied-in-part DHS's first motion for summary judgment. Specifically, the Court granted summary judgment as to three spreadsheets, bearing stamps DHS0201-0202, DHS0203-0235, and DHS0236-0237, holding that those documents had been permissibly redacted as

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work-product pursuant to 5 U.S.C. § 552(b)(5), which permits an agency to withhold from disclosure " inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." See Judicial Watch, Inc. v. U.S. Dept. of Homeland Sec., 841 F.Supp.2d 142, 156-159 (D.D.C.2012). The Court denied summary judgment as to the remainder of the documents in dispute, finding that the descriptions provided in DHS's First Vaughn Index and First Agency Declaration were too brief and generalized, such that the Court was left without an adequate basis for determining whether 5 U.S.C. § 552(b)(5) was properly invoked with respect to those documents.

By way of example, the Court observed that in identifying its justification for withholding information pursuant to the attorney-client privilege (which, as explained more fully below, is incorporated by 5 U.S.C. § 552(b)(5)), DHS's First Vaughn Index simply parroted selected elements of the attorney-client privilege. Almost without exception, DHS asserted, without further elaboration, that " the attorney-client privilege appl[ies] because this document was created by agency attorneys ... to provide legal analysis and advice." Similarly, DHS's agency declarant merely broadly asserted that " communications between an [ sic ] ICE attorneys and ICE employees" have been withheld and that " [t]he communications consisted of an attorney or employee providing information for the purpose of seeking legal advice and counsel rendering advice." First Agency Decl. ¶ 34. The Court concluded that, even when situating these descriptions within the context of DHS's partial production, the descriptions of the documents were " so brief and of such a general nature that they fail[ed] to give the [C]ourt any basis for determining whether the [attorney-client] privilege was properly invoked." Judicial Watch, 841 F.Supp.2d at 154-55 (citing Alexander v. Fed. Bureau of Investigation, 192 F.R.D. 42, 45 (D.D.C.2000)). The Court similarly found that, with the exception of the three aforementioned spreadsheets, ...

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