United States District Court, D. Columbia
[Copyrighted Material Omitted]
A. ROJAS-VEGA, Plaintiff, Pro se, Costa Rica.
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,
BERMAN JACKSON, United States District Judge.
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
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.
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.
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
plaintiff narrowed the scope of his request to information
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.
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.
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.
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
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)
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 ...