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Rojas-Vega v. United States Immigration and Custom Enforcement

United States District Court, District of Columbia

March 26, 2018




         Plaintiff 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”).[1] 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 plaintiff's motion.


         “Pursuant 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.” Id.

         The ICE 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 responsiveness.” Id.

         Plaintiff 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 [36] (“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. ¶ 9.

         Plaintiff 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.

         This 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. NRC2008055319).

         Although 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).

         Plaintiff 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).

         With 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.

         On June 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, [2] 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. ¶ 14.

         According 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.

         “Due 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.

         LEGAL ...

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