Am. Immigration Council v. Exec. Office for Immigration Review

• Decision Date: 15 November 2019
• Docket Number: 19cv1835 (DLC)
• Citation: 418 F.Supp.3d 10
• Parties: AMERICAN IMMIGRATION COUNCIL and Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, Plaintiffs, v. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW and U.S. Department of Justice, Defendants.
• Court: U.S. District Court — Southern District of New York

418 F.Supp.3d 10

AMERICAN IMMIGRATION COUNCIL and Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, Plaintiffs,

v.EXECUTIVE OFFICE FOR IMMIGRATION REVIEW and U.S. Department of Justice, Defendants.

19cv1835 (DLC)

United States District Court, S.D. New York.

Signed November 15, 2019

For plaintiff American Immigration Council: Claudia Valenzuela, American Immigration Council, 1331 G Street NW, Ste. 200, Washington, D.C. 20005, (202) 507-7540, Trina A. Realmuto, Kristin Macleod-Bell, American Immigration Council, 1318 Beacon St., Ste. 18, Brookline, MA 02446, (857) 305-3600.

For plaintiff Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law: Lindsay Cotten Nash, 55 Fifth Ave., New York, NY 10003, (212) 790-0256.

For defendants: Joshua Evan Kahane, U.S. Attorney Office S.D.N.Y., 86 Chambers St., New York, NY 10007, (212) 637-2699.

OPINION AND ORDER

DENISE COTE, District Judge:

On February 27, 2019, the American Immigration Council ("AIC") and Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law (the "plaintiffs") filed this action against the Executive Office for Immigration Reform ("EOIR") and the U.S. Department of Justice ("DOJ") (together, the "Government") under the Freedom of Information Act ("FOIA") to compel production of records relating to motions to stay removal orders filed in connection with motions to reopen and motions to reconsider. Although the EOIR has produced documents responsive to certain requests made by the plaintiffs, the plaintiffs argue that the EOIR must also produce documents pertaining to non-emergency motions to stay, as well as motion-to-stay training materials for immigration judges and the Board of Immigration Appeals ("BIA"). The parties have filed cross-motions for summary judgment. The Government's motion for summary judgment is granted in part, as is that of the plaintiffs.

Background

The following facts are undisputed. The EOIR is an office within the DOJ that administers the U.S. immigration court system. The BIA is the administrative appellate body within the EOIR.

Individuals subject to removal orders have a statutory right to move to have their proceedings reopened or reconsidered. 8 U.S.C. § 1229a(6), (7) ; 8 C.F.R. §§ 1003.2, 1003.23. Such individuals also can move to stay their removal pending the adjudication of their motions to reopen or motions to reconsider. 8 C.F.R. § 1003.2(f). Stays that are requested pending the adjudication of a motion to reopen or motion to reconsider may be granted on a discretionary basis. Id.; see also id. § 1003.6.

I. Adjudicating and tracking emergency and non-emergency motions to stay

The BIA designates discretionary motions to stay removal as either "emergency" or "non-emergency." A stay motion is designated as "emergency" where removal is deemed imminent (i.e. an individual is currently en route to the airport or border or will be within the week). Emergency stay motions are delivered to the BIA for "prompt adjudication." To ensure that emergency stays are timely sent to the BIA for adjudication, a unit within the EOIR called the Emergency Stay Unit ("ESU") maintains an internal tracking log called the Emergency Stay Log ("ESL"). Among other things, the ESL tracks the number of emergency stay motions that are granted and denied each fiscal year. Starting in fiscal year 2015, the ESU also began tracking emergency stay motions through a case management software system called the Case Access System for EOIR ("CASE"). CASE is used to track relevant information from appeals, motions, and related documents submitted to the BIA. The CASE user-interface features several non-text data fields, as well as a Comments tab that permits entry of free-form text.

In contrast to emergency motions to stay, non-emergency stay motions are adjudicated in the ordinary course of business by the BIA. In practice, this means that the BIA typically adjudicates the underlying matter, such as a motion to reopen or to reconsider, which renders moot an accompanying motion to stay. Non-emergency motions to stay are not tracked, aside from an "infrequent notation" in the Comments tab of CASE. Such a notation is not a "routine practice."

To the extent a non-emergency motion to stay filed in connection with a motion to reopen or to reconsider is filed with the BIA, a hard copy record of the motion to stay remains in an individual's hard copy Record of Proceedings ("ROP"). The ROP may be located in one of three locations: (1) within one or more of 18 Federal Records Centers; (2) within the 62 Immigrations Courts and/or Immigration Adjudication Centers; or (3) within EOIR Headquarters.

II. The FOIA request

On July 17, 2018, the plaintiffs submitted a FOIA request to the EOIR. This request sought records that reflect certain data related to both emergency and non-emergency motions to stay removal filed with motions to reopen or motions to reconsider in fiscal years 2015 through 2018.

Following receipt of the FOIA request, the EOIR explained to the plaintiffs that it does not track non-emergency motions to stay but that it could provide data on emergency motions to stay that are tracked in the ESL. On September 7, 2018, the EOIR responded to the plaintiffs' request with a partial grant/partial denial of their FOIA request. The EOIR's response provided an Excel spreadsheet that contained certain data related to emergency stays of removal maintained by the ESU, but did not include any data related to non-emergency stay motions.

On November 19, 2018, the plaintiffs submitted a second FOIA request to the EOIR. This request sought the same data as the prior request, but for fiscal years 2008 through 2014. This request also sought records reflecting EOIR policies and procedures for processing and tracking motions to stay, training materials for EOIR staff and judges in the immigrations courts and BIA, and a random sample of written decisions denying and granting motions to stay.

On November 21, 2018, the EOIR acknowledged receipt of the plaintiffs' second request. Before receiving a response to their request, the plaintiffs commenced this lawsuit on February 27, 2019.

Since the filing of the complaint, the EOIR has made seven productions responsive to the second FOIA request, as well as one additional production responsive to the first FOIA request.¹ The EOIR has produced some documents responsive to the requests concerning the policies and procedures for processing and tracking motions to stay filed in connection with motions to reopen or to reconsider. The EOIR has also produced documents responsive to the request for a random sample of written decisions denying and granting motions to stay. Additionally, the EOIR has produced documents responsive to the request for information about emergency motions to stay.

The parties agree that only two categories of records remain the subject of this litigation. The first category of records relates to non-emergency stays for fiscal years 2008 through 2018. For "each motion for a stay of removal" where an individual either "(1) already ha[d] a pending motion to reopen or motion for reconsideration or (2) filed a motion for a stay concurrently with the filing of the motion to reopen or motion for reconsideration," the plaintiffs seek the following information:

a. Whether the motion was treated as an ‘emergency’ or ‘non-emergency’ motion for a stay of removal (as those terms are defined in BIA Practice Manual 6.4(d));

b. The date that the motion for a stay of removal was decided;

c. The number of days that elapsed between the date that the motion for a stay of removal was filed and the date of decision on the motion for a stay of removal;

d. Whether the motion for a stay of removal was granted or denied;

e. Whether the motion to reopen associated with the motion for a stay of removal was based on changed circumstances, as described in INA § 240(c)(7)(C)(ii), 8 C.F.R. § 1003.2(c)(3)(ii) ;

f. Whether the motion to reopen or motion for reconsideration was granted or denied; and

g. The date that the motion to reopen or motion for reconsideration was denied.

The plaintiffs have clarified that their "challenge to the adequacy of [the EOIR's] search for non-emergency stay records is limited to [the EOIR's] failure to search for information in CASE -- specifically in which the CASE Comments field mentions a stay or stay request."

The second category of records still in dispute is the following: "[t]raining resources, materials, and modules for ... judges in Immigration Courts and the BIA relating to the processing, and adjudication of motions for a stay of removal." The plaintiffs have clarified that they do not seek "materials for court staff or relating to motions to reopen or to reconsider." These materials already have been produced to the plaintiffs by the EOIR.

On July 19, 2019, the EOIR moved for summary judgment. On August 14, the plaintiffs opposed the EOIR's motion and cross moved for summary judgment. The motions were fully submitted on September 23.

Discussion

"In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). "To show that a search is adequate, [an] agency affidavit must be relatively detailed and nonconclusory, and submitted in good faith." N.Y. Times Co. v. U.S. Dep't of Justice, 756 F.3d 100, 124 (2d Cir. 2014) (citation omitted). It is presumed that agency affidavits are submitted in good faith. Carney, 19 F.3d at 812. "This presumption cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (citation omitted).

"[W]hen a plaintiff questions the adequacy of the search an agency made in order to satisfy its FOIA request, the factual question it raises is whether the...