Hawkinson v. Immigration & Customs Enforcement

Decision Date12 August 2021
Docket NumberCivil Action No. 20-10189-FDS
Citation554 F.Supp.3d 253
Parties John A. HAWKINSON, Plaintiff, v. IMMIGRATION AND CUSTOMS ENFORCEMENT, Executive Office of Immigration Review, Department of Homeland Security, and Department of Justice, Defendants.
CourtU.S. District Court — District of Massachusetts

John A. Hawkinson, Cambridge, MA, Pro Se.

Michael P. Sady, United States Attorney's Office, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTSMOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO STRIKE

SAYLOR, C.J.

This is an action arising out of a Freedom of Information Act ("FOIA") request for public access to government documents. Pursuant to FOIA, plaintiff John A. Hawkinson requested access to training materials produced by the U.S. Executive Office of Immigration Review ("EOIR") and U.S. Immigration and Customs Enforcement ("ICE") to address this Court's ruling in the case of Pereira Brito v. Barr , 415 F. Supp. 3d 258 (D. Mass. 2019), appeal filed , No. 20-1119 (1st Cir. Feb. 10, 2020). The request also sought communications from ICE and EOIR concerning the training materials.

Although ICE and EOIR have turned over a number of documents, they have also withheld certain documents and portions of documents as exempt from disclosure under FOIA. Plaintiff challenges whether those items are exempt, and seeks their release. He also brings several claims under the Administrative Procedure Act, or in the alternative, under FOIA, alleging that ICE and the U.S. Department of Homeland Security ("DHS") have a pattern and practice of failing to comply with certain of the procedural requirements of FOIA, and seeks prospective injunctive relief on that basis.

Defendants have moved for summary judgment, and plaintiff has moved to strike certain paragraphs of defendants’ statement of material facts. For the following reasons, plaintiff's motion to strike will be denied, and defendantsmotion for summary judgment will be granted.

I. Factual and Procedural Background

The following facts are undisputed except as otherwise noted.

On November 27, 2019, then-Chief Judge Patti B. Saris issued a judgment declaring, among other things, that "aliens detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence ...." Pereira Brito , 415 F. Supp. 3d at 271. The court also issued several orders concerning the "Pre-Hearing" and "Post-Hearing" classes involved in the case, which included those who (1) were or would be detained pursuant to 8 U.S.C. § 1226(a) and (2) were subject to the jurisdiction of the Boston Immigration Court and (3) had already (in the case of the Post-Hearing Class) or had not yet (in the case of the Pre-Hearing Class) received a bond hearing before an immigration judge. Id. at 263. Specifically, the court ordered as follows:

The Court orders that the Government shall provide this declaratory judgment and permanent injunction to all members of both classes by December 13, 2019 and to all new members of the Pre-Hearing Class once ICE makes the initial determination to detain them pursuant to 8 U.S.C. § 1226(a). The Government shall file a certification that this has occurred by December 16, 2019.
...
The Court [further] orders that the Government shall provide class counsel with the following information for each member of the Post-Hearing Class [only] by January 3, 2020: (1) the name; (2) the current location; (3) the date the current period of detention began, (4) the name of the class member's counsel in immigration court, if any, and; (5) a statement of whether a new bond hearing has taken place after the date of this order and, if so, the outcome. The Government also shall file with the Court a copy of this information.

Id. at 271.

On December 18, 2019, John A. Hawkinson submitted an electronic request to ICE requesting "(1) [a]ll training materials for ICE Trial Attorneys produced to address the Nov. 27, 2019 court-ordered injunction in [Pereira Brito ] ...." and "(2) [a]ny communication between ICE OPLA and DOJ EOIR regarding the Pereira Brito litigation between Nov. 27, 2019 and Dec. 17, 2019." (Defs. Ex. 2-B at 1).

That same day, Hawkinson submitted an electronic request to EOIR requesting "(1) [a]ll training materials for Boston or Hartford immigration judges produced to address the Nov. 27, 2019 court-ordered injunction in [Pereira Brito ] ...." and "(2) [a]ny communication between DOJ EOIR and ICE OPLA regarding the Pereira Brito litigation between Nov. 27, 2019 and Dec. 17, 2019." (Defs. Ex. 4 at 1).

On December 27, 2019, EOIR sent Hawkinson a letter acknowledging that it had received his FOIA request. (Am. Compl., Ex. B). On January 22, 23, and 24, 2020, Hawkinson asked ICE for the status of his FOIA request because he "[had] not yet received an acknowledgement ... [of] [that] [ ] request." (Am. Compl., Ex. C at 1). On January 27, 2020, ICE's FOIA office e-mailed him to acknowledge their receipt of his FOIA request. (Id. ). The e-mail noted that "[the] request was received in this office on January 27, 2020"; that reference number "2020-ICFO-19299" had been assigned to the request; that Hawkinson could check the status of his request at http://www.dhs.gov/foia-status; and that ICE would be "invok[ing] a 10-day extension for [his] request, as allowed by Title 5 U.S.C. § 552(a)(6)(B)" because it "[sought] numerous documents that [would] necessitate a thorough and wide-ranging search." (Id. ).

As of January 31, 2020, EOIR and ICE had not yet released any records to Hawkinson. (Defs. Ex. 1 ("Pineiro Aff.") ¶ 11). That day, Hawkinson filed a complaint in this Court against EOIR, ICE, DHS, and the Department of Justice ("DOJ"). (Compl.). On February 4, March 7, and April 17, 2020, Hawkinson checked the DHS website; each time it stated that the estimated delivery date for his FOIA request was March 1, 2020 (even after the date had passed). (Am. Compl. ¶¶ 57B-D; id. Ex. MM at 1-3).

On April 22, 2020, ICE released records to Hawkinson totaling 22 pages. (Pineiro Aff. ¶ 11).

On May 11, 2020, he amended his complaint. (Am. Compl.). The amended complaint asserts seven counts. Counts 1 and 2 allege that EOIR and ICE have failed to make reasonable efforts to search for records responsive to Hawkinson's FOIA requests, and have failed to produce records responsive to those requests. (Am. Compl. ¶¶ 58-67).1 Counts 3 and 3-A allege that "ICE and DHS have a pattern and practice of failing to provide timely status information by telephone or [i]nternet service as required under 5 U.S.C. § 552(a)(7)(B)" and seek orders under either the Administrative Procedure Act (Count 3) or FOIA (Count 3-A) compelling them to "meaningfully establish [ ] a telephone line or [i]nternet service, i.e. meaningful telephone and email addresses for the ICE FOIA Office and a functional status website." (Id. ¶¶ 68-70B). Counts 3-B and 3-C allege that "ICE and DHS have a pattern and practice of failing to properly report their FOIA response times, systematically undercounting their delays and giving the appearance of responding much faster than they in fact do" and seek orders under FOIA (Count 3-B) or under the APA (Count 3-C) compelling them to "accurately report their FOIA response times pursuant to the requirements of [ 5 U.S.C. § 552(e)(1) ]." (Id. ¶¶ 70C-70G; id. ¶ 51M (citing 5 U.S.C. 552(e)(1) )). Count 4 alleges that DHS has failed to designate a Chief or Acting Chief FOIA Officer as required by 5 U.S.C. § 552(j)(1) and requests that the Court issue an order compelling DHS to fill those positions pursuant to the APA. (Id. ¶¶ 71-74).

On May 22, 2020, EOIR released additional records to Hawkinson consisting of three partially redacted e-mails, an attachment to one of those e-mails, and three partially redacted e-mail strings. (Defs. Ex. 3 ("Shaaf Aff.") ¶¶ 19, 28, 31). The three e-mails were titled "Brito Litigation," "Brito Litigation [#2]" and "Brito Issues," and originally had three attachments to them. (Id. ¶¶ 24-26). EOIR withheld two of those attachments in full—"OGC guidance Brito 12.9.19 final" and "EOIR Instructions and Guidelines Alternatives to Detention (final)"—and released the other unredacted—a document titled "Brito Nov 27 MEMO AND ORDER," which appears to be the Pereira Brito decision. (Id. ¶¶ 28-30). The three e-mail strings are between EOIR, DOJ, and ICE attorneys, and are titled "Brito MSJ Hearing," "Brito MSJ Appeal and Stay Recommendation," and "Pereira Brito Service of Class Notice." (Id. ¶¶ 31-34).

On June 30, July 31, and September 1, 2020, ICE released more records to Hawkinson. (Pineiro Aff. ¶ 11). As of September 1, 2020, ICE had released 385 pages of records to him. (Id. ¶ 12). However, after determining that certain pages were accidentally flagged as "duplicates" and not produced, and that there were certain inconsistencies in the way that documents were redacted, ICE reprocessed his request. (Id. ). On September 8, 2020, it again released records to him. (Id. ). Because of the removal of certain duplicate pages, and the addition of other non-duplicate responsive pages, the records totaled 398 pages. (Id. ).

The documents released by ICE consist of "[partially redacted] email communications between ICE, OPLA, DOJ's Office of Immigration Litigation (‘OIL’) and EOIR, and related email attachments" and a partially redacted document titled "Brito Strategy Session OPLA Boston 2019." (Id. ¶ 25). Two partially redacted e-mail chains, titled "Brito MSJ Appeal and Stay Recommendation" and "Brito MSJ Hearing," account for a large portion of the records that ICE provided. (Id. ). Those e-mail chains appear to be the same as the two e-mail chains that EOIR released with the same titles. (See Defs. Supp. Mem. at 8, n.3, 15).

Defendants have moved for summary judgment on all counts of the amended complaint, and Hawkinson has cross-moved to strike certain...

To continue reading

Request your trial
2 cases
  • Am. Civil Liberties Union Immigrants' Rights Project v. U.S. Immigration & Customs Enforcement
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 26, 2023
    ...allow parties to see when relevant actions were taken by persons in guard uniforms versus persons in prison garb); Hawkinson v. ICE , 554 F. Supp. 3d 253, 275 (D. Mass. 2021) (stating that substitution of "unique identifier" was "arguably ... a method of redaction" that may be required in s......
  • Richards v. Kijakazi
    • United States
    • U.S. District Court — District of Massachusetts
    • August 13, 2021

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT