Advancement Project v. U.S. Dep't of Homeland Sec.

• Decision Date: 19 July 2021
• Docket Number: Civil Action No. 19-52 (RC)
• Citation: 549 F.Supp.3d 128
• Parties: ADVANCEMENT PROJECT, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

549 F.Supp.3d 128

ADVANCEMENT PROJECT, Plaintiff,

v.U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 19-52 (RC)

United States District Court, District of Columbia.

Signed July 19, 2021

Gilda R. Daniels, Losmin Jimenez, Advancement Project, Ian David Volner, Sr., Daniel Scott Blynn, Venable LLP, Washington, DC, for Plaintiff.

Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Frustrated with certain countries’ refusal to cooperate with U.S. deportation efforts, the Department of Homeland Security and State Department announced a series of visa sanctions. The move prompted a Freedom of Information Act request from the Advancement Project, a nonprofit with an interest in immigration policy. The Project sought records from, among other agencies, U.S. Immigration and Customs Enforcement. After turning over some records and withholding others, that agency says it has done all that the law requires. The Court agrees—for the most part. When it comes to a handful of records, however, the Court needs more from the agency before it can decide one way or the other.

II. BACKGROUND

The Immigration and Nationality Act permits the Secretary of Homeland Security and the Secretary of State to issue visa sanctions against any country that "denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country." 8 U.S.C § 1253(d).¹ Sanctions entail refusing to grant "immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of [the target] country." Id.

Acting under that authority, the Department of Homeland Security and State Department levied visa sanctions against Cambodia, Eritrea, Guinea, and Sierra Leone. Pl.’s Cross-Mot. Summ. J. and Opp'n ICE's Mot. Summ. J., Ex. B, ECF No. 51-4. The press release announcing the sanctions explained that the four countries delayed issuing or refused to issue travel documents to their citizens, effectively rebuffing attempts by U.S. Immigration and Customs Enforcement ("ICE") to remove them. Id. Citing a Supreme Court decision barring the long-term detention of most noncitizens unless there is a "significant likelihood of removal in the reasonably foreseeable future," id. (quoting Zadvydas v. Davis , 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ), the press release asserted that the four countries’ noncooperation "forced" ICE to let loose "thousands of dangerous criminals into communities across the United States," id. It went on to provide, for each country, how many nationals ICE had released from detention or an approximate number of those residing in the United States subject to orders of removal. Id. It claimed that many of the noncitizens released had "serious criminal convictions," including convictions for sex offenses and violent offenses. Id.

The Advancement Project—a nonprofit civil rights organization concerned with immigration policy—wanted more information than the press release gave. It submitted Freedom of Information Act ("FOIA") requests for records about the visa sanctions to the Department of Homeland Security, the Department of State, U.S. Customs and Border Protection, and ICE. Pl.’s Resp. ICE's Statement Material Facts as to Which There Is No Genuine Issue ¶¶ 1–2, ECF No. 51-1. This dispute centers on ICE's response. ICE initially claimed that it had no relevant records. Id. ¶ 7. But after the Project brought this lawsuit, the agency produced 569 pages of records responsive to the request. Id. ¶¶ 10–11. ICE withheld some of those records in full and others in part under a variety of FOIA exemptions. See generally Pineiro Decl., Ex. A ("ICE Vaughn Index"), ECF No. 45-3.

Arguing that it has met its FOIA obligations, ICE seeks summary judgment. See Mem. P. & A. Supp. Mot. Summ. J. by ICE ("ICE's Mot."), ECF No. 45-1; see also Reply Supp. Mot. Summ. J. by ICE and Mem. P. & A. Opp'n Pl.’s Mot. Summ. J. ("ICE's Reply"), ECF No. 53. It supports its motion with a declaration and a Vaughn index. In the declaration, ICE's Acting FOIA Officer describes in general terms the information withheld and the agency's reasoning for applying exemptions. See generally Pineiro Decl. The Vaughn index provides the same descriptive information and reasoning on a record-by-record basis. See generally ICE Vaughn Index.

The Advancement Project asks for summary judgment too. It says that ICE withholds materials that do not fit within the exemptions the agency claims. See Pl.’s Cross-Mot. Summ. J. and Opp'n ICE's Mot. Summ. J. ("Pl.’s Mot."), ECF No. 51; see also Pl.’s Reply Supp. Cross-Mot. Summ. J. ("Pl.’s Reply"), ECF No. 56. To support that argument, the Project produced a Vaughn index of its own. Its index largely replicates ICE's but adds a column that disputes the exemptions the agency claims for each record. See generally Pl.’s Mot., Ex. A ("Pl.’s Replicated Vaughn Index"), ECF No. 51-3.

By and large, ICE has the better of the argument. It has adequately justified withholding most of the disputed records. And as to the remainder, summary judgment is premature. The agency ought to have another opportunity to shore up its withholding explanations where they are currently lacking. Accordingly, the Court grants in large part ICE's motion and denies the Advancement Project's motion.

III. LEGAL STANDARD

The Freedom of Information Act is meant "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). It "directs that ‘each agency, upon any request for records ... shall make the records promptly available to any person’ unless the requested records fall within one of the statute's nine exemptions." Loving v. Dep't of Def. , 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a) ). "Consistent with the Act's goal of broad disclosure," those exemptions should be "given a narrow compass." U.S. Dep't of Just. v. Tax Analysts , 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). "The agency bears the burden of establishing that a claimed exemption applies." Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just. , 746 F.3d 1082, 1088 (D.C. Cir. 2014). And even if an exemption applies, the FOIA Improvement Act requires the agency to disclose an exempted record unless it can also show that it "reasonably foresees that disclosure would harm an interest protected by [the] exemption" or that "disclosure is prohibited by law." 5 U.S.C. § 552(a)(8)(A)(i) ; see also Machado Amadis v. U.S. Dep't of State , 971 F.3d 364, 370 (D.C. Cir. 2020). In addition, an agency that properly claims an exemption must "demonstrate that it cannot segregate the exempt material from the non-exempt and disclose as much as possible." Hertzberg v. Veneman , 273 F. Supp. 2d 67, 74 (D.D.C. 2003) ; see also 5 U.S.C. § 552(b).

Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In assessing whether the movant has met that burden, a court "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 (D.C. Cir. 2008). Because FOIA cases do not ordinarily involve disputed facts, they "are typically and appropriately decided on motions for summary judgment." See Moore v. Bush , 601 F. Supp. 2d 6, 12 (D.D.C. 2009). An agency may show that it is entitled to summary judgment by submitting affidavits that, in "reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Id. (quoting Mil. Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981) ). An agency's justification for withholding records "is sufficient if it appears ‘logical’ or ‘plausible.’ " Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA , 473 F.3d 370, 375 (D.C. Cir. 2007) ).

IV. ANALYSIS

ICE withheld records—some in part, others in full—under four exemptions. Pineiro Decl. ¶ 16. But the Advancement Project challenges the application of only two: Exemption 5 and Exemption 7(E). See id. ¶ 18; Pl.’s Mot. at 6. Examining each exemption in turn, the Court determines that ICE properly claimed at least one exemption for most of the records at issue. Where that is not the case, the agency may try again to justify whichever exemption it says is applicable. In addition, the agency has satisfied its obligation to segregate and disclose any nonexempt information from the records it properly withheld.

A. Exemption 5

FOIA's fifth exemption covers "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Put differently, the exemption protects documents that would be privileged in ordinary civil litigation. See Loving , 550 F.3d at 37.

ICE invokes the deliberative process privilege. See Pineiro Decl. ¶ 22. That executive privilege aims "[t]o protect agencies from being ‘forced to operate in a fishbowl.’ " U.S. Fish & Wildlife Serv. v. Sierra Club, Inc. , ––– U.S. ––––, 141 S. Ct. 777, 785, 209 L.Ed.2d 78 (2021) (quoting EPA v. Mink , 410 U.S. 73, 87, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) ). In recognition "that officials will not communicate candidly among...