Gonzalez v. U.S. Citizenship & Immigration Servs.

• Decision Date: 29 July 2020
• Docket Number: 19-cv-2911 (JGK)
• Citation: 475 F.Supp.3d 334
• Parties: Delfino Garcia GONZALEZ, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES et al., Defendants.
• Court: U.S. District Court — Southern District of New York

475 F.Supp.3d 334

Delfino Garcia GONZALEZ, Plaintiff,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES et al., Defendants.

19-cv-2911 (JGK)

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

Signed July 29, 2020

Zoe Pokempner Levine, Bronx Defenders, Bronx, NY, for Plaintiff.

Joshua Evan Kahane, U.S. Attorney Office Sdny, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, Delfino Garcia Gonzalez, brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking documents from various component agencies of the Department of Homeland Security ("DHS"). The plaintiff requested documents related to the plaintiff's past interactions with one component of DHS, Immigration and Customs Enforcement ("ICE"), and particularly to the plaintiff's interactions with a component of ICE, Homeland Security Investigations ("HSI"). The parties have cross-moved for summary judgment. The plaintiff also moves to strike, or in the alternative for partial disclosure of, ex parte and in camera submissions submitted by the Government in support of the Government's motion for summary judgment. For the reasons that follow, The plaintiff's motion to strike the Government's ex parte and in camera submissions and the plaintiff's motion for summary judgment are denied . The Government's motion for summary judgment is granted .¹

I.

The standard for granting summary judgment is well established. "The Court shall grant summary judgment 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) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) ; see also Scotto v. Almenas, 143 F.3d 105, 114–15 (2d Cir. 1998). Where there are cross-motions for summary judgment, the Court must assess each of the motions and determine whether either party is entitled to judgment as a matter of law. See Admiral Indem. Co. v. Travelers Cas. & Sur. Co. of Am., 881 F. Supp. 2d 570, 574 (S.D.N.Y. 2012).

"[T]he general rule in this Circuit is that in FOIA actions, agency affidavits alone will support a grant of summary judgment." Ferguson v. Fed. Bureau of Investigation, No. 89-cv-5071, 1995 WL 329307, at *2 (S.D.N.Y. June 1, 1995) (citing Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) ), aff'd, 83 F.3d 41 (2d Cir. 1996). "Affidavits submitted by an agency are ‘accorded a presumption of good faith ....’ " Carney, 19 F.3d at 812 (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) ).

II.

The following facts are undisputed unless otherwise noted.

A.

Throughout the pendency of this litigation, the plaintiff has been pursuing an ongoing claim for asylum in the plaintiff's removal proceedings in immigration court. On August 21, 2019, an immigration judge in New York City granted the plaintiff's application for asylum. Nyborg-Burch Decl., Ex. A-10. On September 13, 2019, the DHS appealed the immigration judge's Decision to the Board of Immigration Appeals.² Id., Ex. A-11. Through the FOIA request at issue in this case, the plaintiff seeks information and records related to his interactions with ICE, and particularly with HSI, which information and records the plaintiff alleges will aid the plaintiff in his pending removal proceedings. Id., Ex. A-1.³

B.

On February 13, 2019, the plaintiff submitted a FOIA request to the United States Citizenship and Immigration Services ("USCIS") for "his entire alien file" and "any and all information related to immigration court proceedings, or any contacts with USCIS." ECF 30-1, at 1, 4. On March 29, 2019 the USCIS responded to the plaintiff's request with hundreds of responsive records. ECF 30-3.

On February 13, 2019, the plaintiff also submitted a FOIA request to ICE for "all information related to his interactions with ICE, including cooperation with HSI or other ICE officials." Fuentes Decl. ¶ 6 & Ex. 2. On February 21, 2019, the ICE FOIA Office forwarded the plaintiff's request to HSI, and another component of ICE, Enforcement and Removal Operations ("ERO"). Id. ¶¶ 20, 30-33, 40.

After ERO received the plaintiff's FOIA request on February 21, 2019 from the ICE FOIA Office, the FOIA point of contact ("POC") within ERO's Information Disclosure Unit ("IDU") directed an IDU Management and Program Analyst ("MPA") to conduct searches responsive to the plaintiff's request. Id. ¶¶ 20, 30-33. Based on the MPA's subject matter expertise and knowledge of ERO's file management systems, the MPA determined that any responsive records would likely be held in two ERO databases, the Enforcement Alien Removal Module ("EARM") and the Central Index System ("CIS"). Id. ¶ 33. The MPA conducted the database searches using the plaintiff's name, dates of birth, country of birth and alien number, which are the identifiers by which the DHS organizes date in the EARM and CIS databases.⁴ Fuentes Supp. Decl. ¶¶ 10-11.

After conducting these searches, the ERO MPA located 10 pages of potentially responsive records, and on March 11, 2019, ICE responded to the plaintiff's request by producing those 10 pages, which were partially redacted pursuant to FOIA Exemptions 6, 7(C), and 7(E).⁵ Fuentes Decl. ¶¶ 7, 34 & Ex. 3. At that point, the IDU POC did not task other ERO divisions or units to conduct searches because, based on the subject matter of the plaintiff's request and the POC's subject matter expertise, the POC determined that no other ERO offices would have records that were responsive to the plaintiff's FOIA request. Id. ¶¶ 20, 34.

After HSI received the request from the ICE FOIA Office on February 21, 2019, an MPA in the HSI Records Disclosure Unit ("RDU") reviewed the request and determined that the most likely place to search for responsive records would be HSI's main database, Investigative Case Management System ("ICM"), the core law enforcement case management tool used by HSI special agents and personnel supporting the HSI mission. Id. ¶¶ 37-38, 40. The RDU MPA searched ICM using the plaintiff's name, dates of birth, country of birth, and alien register number but did not locate any responsive records. Id. ¶ 40. The MPA then relayed the results of the search to the ICE FOIA Office. Id. ¶ 40.

On March 29, 2019, the plaintiff filed an administrative appeal of ICE's response challenging the adequacy of ICE's search for responsive records. Id. ¶ 8 & Ex. 4. The plaintiff stated in his appeal that information contained in the redacted responses that were provided to the plaintiff based on the ERO search suggested that additional responsive records existed that concerned the plaintiff's interactions with ICE in the context of grants of deferred action and prosecutorial discretion. Id.

On April 2, 2019, the plaintiff initiated this litigation against USCIS and DHS for failure to comply with FOIA, principally alleging that USCIS and DHS failed to conduct adequate searches. ECF No. 1.

On April 15, 2019, the plaintiff supplemented his administrative appeal and stated that USCIS, in response to his FOIA request to USCIS, had located 99 pages from the plaintiff's file that originated from ICE. Fuentes Decl. ¶ 9 & Ex. 5. The plaintiff noted in his supplemental letter that USCIS had sent the 99 pages to the ICE FOIA Office for consideration and in direct response to the plaintiff's FOIA request to ICE. Id.

On May 7, 2019, ICE produced to the plaintiff the 99 pages, with redactions, that had been sent from USCIS to ICE. Id. ¶ 10. On May 8, 2019, ICE remanded the plaintiff's administrative appeal of the FOIA request and informed the plaintiff that "[u]pon a complete review of the administrative record, ICE has determined that new search(s) or, modifications to the existing search(s), could be made." Id. ¶ 11 & Ex. 6. On May 16, 2019, an ICE staff member informed the plaintiff by email that "[t]he ICE FOIA Office advised me that one program office has conducted additional searches and located potentially responsive records, which it forwarded to the ICE FOIA Office for review and processing. Another program office is currently conducting supplemental searches and is...