Hajro v. U.S. Citizenship & Immigration Servs.
| Decision Date | 07 May 2012 |
| Docket Number | Case No. 08–1350–PSG. |
| Citation | 832 F.Supp.2d 1095 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Mirsad HAJRO, James R. Mayock, Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; T. Diane Cejka, Director, USCIS National Records Center; Rosemary Melville, USCIS District Director of San Francisco; Janet Napolitano, Secretary, Department of Homeland Security; Eric Holder, Attorney General, Department of Justice, Defendants. |
OPINION TEXT STARTS HERE
Kip Evan Steinberg, Law Offices of Kip Evan Steinberg, San Rafael, CA, for Plaintiffs.
Ila Casy Deiss, United States Attorney's Office, San Francisco, CA, for Defendants.
AMENDED ORDER 1) GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HOLDER; 2) GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF OTHER INDIVIDUAL DEFENDANTS; 3) GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS; AND 4) GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS.
In this action, Plaintiffs Mirsad Hajro (“Hajro”) and James R. Mayock (“Mayock”) seek declaratory and injunctive relief under the Freedom of Information Act (“FOIA”) and the Administrative Procedure Act (“APA”) for alleged violations by Defendant United States Citizenship and Immigration Services (“USCIS”), together with Defendants Eric Holder (“Holder”),1 Janet Napolitano (“Napolitano”) 2 T. Diane Cejka (“Cejka”), and Rosemary Melville (“Melville”). Before the court are the parties' cross-motions for summary judgment on all claims.
Having reviewed the briefs, supporting evidence, and applicable law, as discussed herein,
IT IS HEREBY ORDERED that summary judgment is GRANTED in favor of Holder;
IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Napolitano, Cejka, and Melville on Plaintiffs' FOIA claims;
IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Plaintiffs on Plaintiffs' claims for declaratory relief that when responding to requests from aliens and/or their attorneys for a copy of an alien registration file in the absence of a pending removal hearing, Defendant USCIS has engaged in a pattern and practice of violating FOIA's time limit provisions;
IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Plaintiffs on Plaintiffs' claims for injunctive relief requiring USCIS to: 1) provide a copy of a requestor's file within the twenty-day time limit mandated by 5 U.S.C. § 552(a)(6)(A); and 2) give the written notice mandated by 5 U.S.C. § 552(a)(6)(B) if an extension of time is needed due to “unusual circumstances.” No later than December 18, 2011, the parties shall submit either a stipulated form of injunction, or their respective proposed forms of injunction;
IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Hajro on his claim that USCIS is withholding non-exempt documents;
IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Plaintiffs on Plaintiffs' claim that USCIS's Track 3 FOIA processing policy and regulation violates the Settlement Agreement and was promulgated in violation of the APA and FOIA; and
IT IS FURTHER ORDERED that partial summary judgment is GRANTED in favor of Defendants on Plaintiffs' equal protection claims.
Mirsad Hajro is a lawful permanent resident of the United States who applied for naturalization in 2003.3 In October 2007, Hajro received notice that his application had been denied based on evidence in his alien registration file that allegedly revealed false testimony regarding his foreign military service. On or about November 9, 2007, Hajro filed an appeal pursuant to 8 U.S.C. § 1447(a) and requested a review hearing before an immigration officer. Hajro also filed a request under FOIA with the Department of Homeland Security (“DHS”), USCIS,4 National Records Center, seeking a copy of his alien registration file. Hajro requested expedited processing of his FOIA request under the terms of a 1992 national settlement agreement (“Settlement Agreement”). The Settlement Agreement provides for the establishment of a national policy on priority for processing FOIA / Privacy Act requests to be used by Immigration and Naturalization Service (“INS”) officers. The policy requires immediate processing of an expedited request, where the failure to process a request immediately would either: (a) jeopardize life or personal safety; or (b) impair “substantial due process rights of the requester” and the information sought is not otherwise available.5 Hajro's request noted that he needed the copy of his alien registration file in order to see the alleged evidence upon which the denial was based in time to prepare his appeal.6
On November 19, 2007, Cejka, the Director of the San Francisco Office of USCIS, sent a letter acknowledging receipt of Hajro's FOIA request and informing him that it did not qualify for expedited processing 7 and would be processed on the Track 2 “complex track.” The Settlement Agreement notwithstanding, since 2007, USCIS has used a three-track system for processing FOIA requests: “Track 1” for simple requests, “Track 2” for complex inquiries that require additional time, and “Track 3” for expedited processing for individuals subject to removal proceedings and scheduled for a hearing before an immigration judge.8 The letter did not include notice of any “unusual circumstances” justifying an extension of the statutory 20–day time limit for advising Hajro of the agency's decision whether or not it would comply with his request.9
It is undisputed that USCIS failed to issue its determination on Hajro's FOIA request within the statutory 20–day time limit.10 On March 4, 2008, the National Records Center identified 442 pages responsive to Hajro's request, and forwarded 356 pages in their entirety and 8 pages in part. The center withheld 78 pages.11 According to Defendants, the 356 pages and 8 partial pages consisted of “the responsive, nonexempt, reasonably segregable portions of [Hajro's] alien file.” 12 Hajro received the response to his FOIA request over three weeks later. On May 12, 2008, he initiated an administrative appeal of the FOIA response, arguing that it contained “no evidence of [the] alleged testimony regarding foreign military service” upon which the denial of naturalization was purportedly based, and seeking all of the withheld material, or in the alternative, those pages that the government determines contain such evidence, “as long as the government confirms that no other such evidence exists.” 13 On July 31, 2008, the National Records Center released an additional 12 pages of documents and one page in part. 14 In December 2008, USCIS provided Hajro with a so-called “Vaughn Index” 15 to explain USCIS's withholdings, including interviewer notes, which it claims are exempt from disclosure under FOIA.16
James Mayock is an immigration attorney and was a plaintiff in a lawsuit filed 25 years ago in this court against the Immigration and Naturalization Service (“INS”). In that action, Mayock alleged that INS had a pattern and practice of violating various provisions of FOIA. Mayock, together with other immigration attorneys, submitted declarations to demonstrate that the INS often took months to respond to FOIA requests, far in excess of the statutory time limit (which was then 10 days). The district court agreed and granted summary judgment in favor of Mayock, directing INS to issue the appropriate notices for extension of time required by FOIA and enjoining the San Francisco District Office of the INS from failing to comply with the statutory timing requirements.17 On appeal, the Ninth Circuit reversed and remanded, finding that the district court had overlooked the existence of genuine issues of material fact as to whether increasing workload at INS offices created “exceptional circumstances” justifying its failure to respond within the statutory time limits, and whether the agency had demonstrated “due diligence” in responding to requests for information urgently needed by aliens who faced pending deportation or exclusion proceedings.18
After remand, the parties entered into the Settlement Agreement discussed above, in which INS agreed to implement expedited processing of a FOIA request where the requester demonstrates that an individual's life or personal safety would be jeopardized or that substantial due process rights of the requester would be impaired by the failure to process a request immediately.19 The procedures for expedited processing under the terms of the Settlement Agreement included notification to the requester where the request failed to meet one of the two criteria, and subsequent processing of the request on the “appropriate track.” 20 The parties dispute whether the Settlement Agreement remains in effect.
In Mayock's immigration cases pertaining to this action, he sometimes files requests under FOIA to obtain the alien registration files for his clients. In these cases, USCIS has not produced the requested records within the statutory 20–day time limit.21 Nor has the government provided written notice setting forth any “unusual circumstances” for an extension of time beyond the statutory limit.22 Plaintiffs have filed declarations from 26 other immigration attorneys who have encountered similar, routine delays in the processing of their and their clients' FOIA requests by USCIS in recent years. On January 26, 2008, Mayock sent a notification of breach of the Settlement Agreement to Melville.23
In March 2008, Plaintiffs initiated this action for declaratory and injunctive relief under FOIA, 5 U.S.C. § 552 et seq. and the APA, 5 U.S.C. §§ 553, 702, 704, and 706. In the First Amended Complaint (“FAC”), filed June 10, 2008, Plaintiffs assert nine causes of action, which can be divided generally into those related to the...
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