United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
Dany Rojas-Vega has brought this action under the Freedom of
Information Act (“FOIA”), see 5 U.S.C.
§ 552, against United States Immigration and Customs
Enforcement (“ICE”) and the United States
Department of Homeland Security
(“DHS”). The parties have filed cross-motions for
summary judgment. For the reasons discussed below, the Court
will grant summary judgment in favor of ICE and deny
to the Immigration and Nationality Act . . . the Secretary of
Homeland Security is charged with the administration and
enforcement of laws relating to the immigration and
naturalization of aliens.” Mem. of P. & A. in
Support of Defs.' Mot. for Summ. J. (“Defs.'
Mem.”), Declaration of Matthew Riley, Acting Deputy
FOIA Officer, U.S. Immigration and Customs Enforcement
(“Riley Decl.”) ¶ 26.
According to the declarations submitted in this case,
“ICE is the largest investigative arm of DHS, and . . .
is tasked with preventing any activities that threaten
national security and public safety by investigating the
people, money, and materials [supporting] illegal
enterprises.” Riley Decl. ¶ 26. It performs
“the investigative and interior enforcement elements of
the [former] U.S. Customs Service and the Immigration and
Naturalization Service.” Id. ¶ 6.
ICE's Office of Enforcement and Removal Operations
(“ERO”) is responsible for “identify[ing],
arrest[ing], and remov[ing] aliens who present a danger to
national security or are a risk to public safety, as well as
those who enter the United States illegally or otherwise
undermine the integrity of our immigration laws and our
border control efforts.” Id. ¶ 7. Among
other duties, ERO “transports removable aliens from
point to point, manages aliens in custody or in an
alternative detention program . . ., and removes individuals
from the United States who have been ordered deported.”
FOIA Office processes and responds to any FOIA requests that
ICE receives. Id. ¶ 2. Its staff determines
which program office within ICE is “reasonably likely
to possess records responsive to [each] request[, ] if any[,
] and to initiate [a] search in [that] program
office.” Id. ¶ 5. FOIA Office staff
then forwards the request to the appropriate program
office's designated point of contact (“POC”),
the person primarily “responsible for communications
between that program office and the ICE FOIA Office.”
Id. The POC reviews the FOIA request and “any
case-specific instructions that may have been provided,
” id., and in turn forwards the request and
instructions “to the individual employee(s) or
component office(s) within the program office [the POC
believes is] reasonably likely to have responsive
records[.]” Id. The designated employee or
component office staff member is directed to conduct a search
of the “file systems, including both paper and
electronic files, which in [his or her] judgment, based on
[his or her] knowledge of the manner in which [the office]
routinely keep[s] records, would most likely be the files
[containing] responsive documents.” Id. Upon
completion of the search, the results are provided to the
POC, “who in turn provides the records to the ICE FOIA
Office.” Id. At that point, FOIA Office staff
“review[s] the collected records for
alleges that on October 2, 2014, he submitted a FOIA request
in an email message to ICE's FOIA Office. Compl. ¶
10. He received no response to the October 2014 email, and
“filed a follow-up request on May 30, 2016.” Mem.
of P. & A. in Support of Prelim. Inj., ECF No. 34-1
¶ 17; Riley Decl. ¶ 9. ICE treated plaintiff's
May 30, 2016 email as a new FOIA request, see Riley
Decl. ¶¶ 3, 9, and assigned it a reference number,
2016-ICFO-38593, see Pl.'s Opp'n to [41, 42]
Def.'s Response & Mem. of P. & A. in Support of
Granting Pl.'s Combined Cross-Mot. for Summ. J. and
Discovery  (“Pl.'s Reply”), ECF No. 45-2
at 13 (email to plaintiff from ICE FOIA Office dated June 13,
2016, acknowledging receipt of ICE FOIA Request
2016-ICFO-38593 on May 30, 2016). “Plaintiff requested
all ICE records pertaining to his state criminal court
transcripts for case number M707038.” Riley Decl.
has filed several exhibits with his many submissions to the
Court. Among these exhibits are 18 pages of email
correspondence between plaintiff and the ICE FOIA Office.
See generally Pl.'s Reply, ECF No.
45-2. In an email dated June 17, 2016, plaintiff provides
more specifics about the scope of his original October 2014
request, and he made it clear that he was still seeking:
Specific transcripts to the Oct[ober] 6, 1995 state
proceedings in case M707038 and the name(s) of the District
Counsel (INS) that was contacted by the District
Attorney's Office on October 6, 1995, requested by me to
former U.S. Immigration and Naturalization Service
(“INS”) and related information . . . .
Id., ECF No. 45-2 at 15.
was not plaintiff's first effort to obtain transcripts of
these state court proceedings from immigration authorities.
See Compl. ¶¶ 3, 6. In June 2003,
plaintiff submitted a FOIA request “to former INS
located at 880 Front Street, Suite 1234, San Diego, CA
92101-8834, ” Pl.'s Reply, ECF No. 45-2 at 15
(emphasis removed), seeking, among other information, a
verbatim transcript of proceedings on October 6, 1995 in the
San Diego Municipal Court in Case Number M707038. See
id.; Table of Exhibits, ECF No. 8-2 at 15 (Ex. 7, June
2, 2003 Freedom of Information/Privacy Act Request). INS
responded by releasing in full 534 pages of records,
releasing in part four pages of records, and withholding in
full 25 pages of records. See id., ECF No. 8-2 at 17
(Ex. 8-1, June 25, 2003 response to FOIA Request No.
SND2003002513) at 1; see also Compl. ¶ 5.
Plaintiff submitted an identical FOIA request to ICE on
September 2, 2008 (Request No. 2008FOIA3893), which was
referred to United States Immigration and Customs Enforcement
(Request No. NRC2008055319). Compl. ¶¶ 6-7. USCIS
released 194 pages of records in their entirety, and informed
plaintiff that “[t]here was no verbatim copy of the
[transcript]” in its files. Table of Exhibits, ECF No.
8-2 at 19 (Ex. 9, June 17, 2009 response to Request No.
plaintiff's 2003 and 2008 FOIA requests have been
mentioned in other civil actions, it does not appear that a
federal district court reached the merits of the
agencies' responses. See Rojas-Vega v. U.S.
Citizenship and Immigration Serv., No. 13-CV-172, 2013
U.S. Dist. LEXIS 77801, at *2 (S.D. Cal. May 30, 2013)
(noting that plaintiff “first requested [a 1995 state
court transcript, notes and memos related to that case, and
the names and titles of the INS official involved] from the
[INS] in June 2003, but never appealed to the district court,
” and that the court had dismissed sua sponte
plaintiff's civil action regarding the 2008 request).
did file a previous FOIA action in this court, but it
pertained to a 2012 FOIA request to USCIS's National
Records Center, which resulted in the release of records
maintained in plaintiff's Alien File. See Rojas-Vega
v. U.S. Citizenship & Immigration Serv., 132
F.Supp.3d 11, 14 (D.D.C. 2015) (identifying the
“operative FOIA request in this case [as the one]
submitted to USCIS's National Records Center . . . in May
2012 (case number NRC2012052309)”), aff'd,
650 F. App'x 36, 37 (D.C. Cir. 2016) (per curiam).
respect to the request at issue in this case, ICE FOIA Office
staff construed ICE FOIA Request 2016-ICFO-38593 as one
“for records related to ERO's immigration
enforcement mission[.]” Riley Decl. ¶ 10. For this
reason, staff identified ERO as the program office most
likely to have responsive records, and forwarded
plaintiff's request to the ERO's point of contact,
the Information Disclosure Unit (IDU). Id. ERO
IDU's search located “no records . . . pertaining
to the [p]laintiff's state court transcripts.”
Id. ¶ 11.
27, 2016, plaintiff pursued an administrative appeal,
id. ¶ 12, and ICE's Office of the Principal
Legal Advisor, Government Information Law Division, affirmed
the adequacy of ERO IDU's search, id. ¶ 13.
Plaintiff then filed this civil action on October 24, 2016,
seeking judicial review of ICE's final determination and
the denial of his appeal on the ground that the agency's
search for responsive records was inadequate. Compl. ¶
to the Acting Deputy FOIA Officer “ICE conducted a
litigation review of the FOIA request and administrative
records, and the associated dockets proffered by
[p]laintiff.” Riley Decl. ¶ 15. “On January
30, 2017, [a Management and Program Analyst] conducted a
search using the ENFORCE Alien Removal Module (EARM)
application, ” which yielded “thirteen . . .
pages of EARM case summaries.” Id. These
summaries were considered “non-responsive to
[p]laintiff's FOIA request [because they] do not pertain
in any way to any state court transcripts, record of
proceedings, or state plea bargain.” Id.
¶ 16. Nevertheless, “out of [an] abundance of
caution and in the agency's discretion, ” ICE
released the EARM case summaries, id., after having
redacted certain information under Exemptions 6, 7(C), and
7(E), see id. ¶¶ 24, 28, 30.
to an administrative error, ICE believed it mailed these
records on February 27, 2017[.] Upon discovering the error,
on April 4, 2017, ICE immediately sent [p]laintiff the
records on that same date, ” id. ¶ 16
n.1, “via Federal Express, ” id. ¶
17. “On April 20, 2017, the records were returned . . .
as undeliverable to the address in Costa Rica provided by
[p]laintiff.” Id. ICE then “disseminated
the responsive records to [p]laintiff via email on May 11,
2017.” Id. ¶ 18.