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Rojas-Vega v. United States Citizenship & Immigration Service

United States District Court, D. Columbia

September 23, 2015


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          DANY A. ROJAS-VEGA, Plaintiff, Pro se, Costa Rica.

         For UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ICE, U.S. Department of Homeland Security, JOHN SANDWEG, Acting Director, U.S. Immigration and Customs Enforcement, Defendants: John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

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         AMY BERMAN JACKSON, United States District Judge.

         Plaintiff filed this action under the Freedom of Information Act (" FOIA" ), see 5 U.S.C. § 552. This matter is before the Court on Defendants' Renewed Motion for Summary Judgment, [ECF No. 35] in which U.S. Citizenship and Immigration Services (" USCIS" ) and U.S. Immigration and Customs Enforcement (" ICE" ) explain their decisions to withhold information under Exemptions 7(C) and 7(E), and ICE explains its decision to withhold information under Exemptions 5 and 6. Plaintiff opposes the motion and has filed a cross-motion for summary judgment [ECF No. 41]. For the reasons discussed below, the Court will grant defendants' motion and deny plaintiff's cross-motion.

         I. BACKGROUND

         Plaintiff is " a native and citizen of Costa Rica." Rojas-Vega v. Gonzales, 154 Fed.Appx. 25, 26 (9th Cir. 2005). It appears that he pled guilty to a drug offense in a California state court, see id., and he subsequently was " charged with removability under section 237(a)(2)(B)(i) of the Immigration and Nationality Act based upon an October 6, 1995, conviction for possession of controlled substance paraphernalia." In re Dany Alberto Rojas-Vega, 2004 WL 1398634, at *1 (B.I.A. Mar. 19, 2004) (per curiam); see Freedom of Information Action (" Compl." ) at 3.

         Plaintiff states that he was aware of the potential impact a criminal conviction would have on his immigration status, and he raised his concern with the court during the October 6, 1995 proceedings. See Dany Rojas's Decl. in Opp'n of Def.'s Renewed Mot. for Summ. J. [and] in Support of Pl.'s Cross-Mot. for Summ. J. (" Pl.'s Decl." ) ¶ ¶ 1-2. He " informed the court that [he] would . . . plea[d] guilty to any charge[ if] no immigration consequences would result from his plea ever." Id. ¶ 2. According to plaintiff, the court adjourned the proceedings allowing the prosecutor to consult with INS, id. ¶ 3, and when the court reconvened " [o]n that same day," the prosecutor stated on the record " that INS . . . acquiesced to plaintiff's terms[,]" id. ¶ 4. Thus, plaintiff claimed, he entered a guilty plea " reluctantly . . . after . . . assurances that a solid plea bargain was struck with INS[,]" id., and " that the plea bargain would be honored," id. ¶ 5. Nevertheless, " [o]n August 31, 2001 . . . INS instituted removal proceedings solely based on the 1995 conviction." Id. ¶ 7; see Mem. of P. & A. in Support of Pl.'s Opp'n to Defs.' Mot. for Summ. J. & Cross-Mot. for Summ. J. (" Pl.'s Opp'n" ) at 2 ¶ 2.

         The operative FOIA request in this case was submitted to USCIS's National Records Center (" NRC" ) in May 2012 (case number NRC2012052309). See Mem. of P. & A. in Support of (1) Defs.' Mot. to Dismiss or, in the Alternative, for Summ J. and (2) Opp'n to Pl.'s Mot. to Preserve Documents (" Defs.' First Mem." ), Decl. of Jill A. Eggleston (" First Eggleston Decl." ) ¶ ¶ 7-8. In subsequent correspondence,

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plaintiff narrowed the scope of his request to information about:

1. The State " change of plea and sentencing proceedings" in case number M707038
2. The memos[,] bench notes and any and all related information relating to the October 6, 1995 proceedings.

First Eggleston Decl., Ex. C (Letter to USCIS, NRC, FOIA/PA Office, dated June 19, 2012) at 1. NRC staff determined that any records responsive to plaintiff's FOIA request were likely to have been located in his Alien File (" A-File" ), id. ¶ 11, where " [a]ll official records generated or held by U.S. immigration authorities pertaining to [p]laintiff's] U.S. immigration transactions should, as a matter of course, be consolidated[,] id. ¶ 11 n.3. USCIS identified 2,542 pages responsive to plaintiff's request, released 2,054 pages in their entirety, released 79 pages in part, and withheld 21 pages in full. Id. ¶ 17; see id., Ex. H (Letter to plaintiff from Jill A. Eggleston, Director, FOIA Operations, NRC, USCIS, dated September 19, 2012). " The . . . undisclosed information was withheld pursuant to [Exemptions 7(C) and 7(E)]." Id ¶ 17. The search of plaintiff's A-File did not locate transcripts or any other information pertaining to state court proceedings on October 6, 1995. Id. ¶ 13; see id. ¶ 10 n.2.[1]

         USCIS staff located records originating at ICE while reviewing plaintiff's A-File, and referred 388 pages of records to ICE for its direct response to plaintiff. Id. ¶ 16; see id., Ex. G (Memorandum to Freedom of Information Act Office, ICE, from Jill A. Eggleston dated September 19, 2012). ICE received only 379 pages, however. Defs.' First Mem., Decl. of Catrina Pavlik-Keenan (" Pavlik-Keenan Decl." ) ¶ ¶ 5-6. Of these 379 pages, ICE released 71 pages in full, released 252 pages in part, and withheld 56 pages in full. Mem. of P. & A. in Support of Defs.' Renewed Mot. for Summ. J. (" Defs.' Second Mem." ), Decl. of Fernando Piniero (" Piniero Decl." ) ¶ 12. " ICE withheld portions of the documents under . . . Exemptions 5, 6, 7(C), and 7(E)[.]" Pavlik-Keenan Decl. ¶ 8.

         Plaintiff believes that transcripts of the October 6, 1995 plea proceedings were in the possession of INS, see Pl.'s Decl. ¶ 7, and that, in violation of the FOIA, neither INS nor its successor agencies (USCIS and ICE) released the transcripts to him. See Compl. ¶ ¶ 5, 7.


         A. Summary Judgment in a FOIA Case

         " FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009). On a motion for summary judgment, the Court generally " must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Montgomery v. Chao, 546 F.3d 703, 706, 383 U.S.App.D.C. 290 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Ordinarily, where the agency moves for summary judgment, the agency must identify materials in the record to demonstrate the

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absence of any genuine issue of material fact. See Fed.R.Civ.P. 56(c)(1). Plaintiff as the non-moving party then must point to specific facts in the record to show that there remains a genuine issue that is suitable for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). But where, in a FOIA case, plaintiff has not provided evidence that an agency acted in bad faith, " a court may award summary judgment solely on the basis of information provided by the agency in declarations," Moore, 601 F.Supp.2d at 12, provided that the declarations are not " conclusory, merely reciting statutory standards, or . . . too vague or sweeping." King v. U.S. Dep't of Justice, 830 F.2d 210, 219, 265 U.S.App.D.C. 62 (D.C. Cir. 1987) (footnote omitted).

         B. Exemptions

         The Court concluded that the USCIS conducted a reasonable search for records responsive to plaintiff's request and granted defendants' first motion for summary judgment in part on this basis. However, because neither USCIS nor ICE explained its reliance on the claimed FOIA exemptions, the Court ...

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