Mayock v. INS
| Decision Date | 16 June 1989 |
| Docket Number | No. C-85-5169-CAL.,C-85-5169-CAL. |
| Citation | 714 F. Supp. 1558 |
| Court | U.S. District Court — Northern District of California |
| Parties | James R. MAYOCK, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants. |
Eric J. Sinrod, Peter Koenig, Hancock, Rothert & Bunshoft, James R. Mayock, San Francisco, Cal., for plaintiff.
Joseph P. Russonellio, U.S. Atty., Andrew M. Wolfe, Asst. U.S. Atty., San Francisco, Cal., for defendants.
Plaintiff James R. Mayock is an immigration attorney. He originally filed this suit to require the Immigration and Naturalization Service ("INS") to comply with certain Freedom of Information Act, 5 U.S.C. § 552, (FOIA) requests which he made on behalf of clients. Many of the clients were involved in deportation or exclusion proceedings and were faced with immediate deportation. Plaintiff requested a permanent injunction: (1) requiring the INS to release certain requested FOIA information, (2) staying deportation or exclusion proceedings pending compliance with FOIA requests, and (3) requiring the INS to comply with the FOIA requests within the 10-day period provided by statute.
In earlier proceedings in this case, the specific FOIA requests were resolved by the parties and by the court. This case has become a "pattern and practice" case. That is, plaintiff contends that the INS has a pattern and practice of failing to produce certain categories of FOIA information, and of failing to comply with FOIA requests within the statutory 10-day period. Plaintiff claims that this pattern and practice deprives his clients and other aliens of information necessary to enable them to resist deportation before they are actually deported and their requests are rendered moot.
The INS deportation procedures are governed by 8 U.S.C. § 1252(b). This statute provides that an alien has the right to present evidence, and to receive a "reasonable opportunity to examine the evidence against him." However, there are no discovery procedures provided by the INS regulations.1 FOIA is essentially the only procedure which aliens can use to obtain from the INS information relevant to their cases.
This case was originally filed by certain named aliens represented by Mayock. However, the issues regarding those named plaintiffs have been resolved, and plaintiff Mayock now prosecutes this case in his own name. In an order dated July 6, 1988, this court determined that Mayock had standing to continue the suit and that the claims are not moot.
Plaintiff filed a motion for summary judgment and injunctive relief. The INS responded with its own motion for summary judgment. The court reviewed the moving and opposing papers, the record of the case, the arguments of counsel, and the applicable authorities, and concluded that certain decisions could be made as a matter of law and with no genuine issue of material fact. The court prepared a draft opinion and gave notice to the parties of its intended decision. A hearing was held on the draft opinion and intended decision, and the court heard additional arguments and authorities from counsel. The court also received a supplemental fact record which dealt primarily with the current practices of the INS regarding the procedures at issue in this case.
This court is of the opinion that the decisions set forth below can be made as a matter of law and with no genuine issues of material fact.
Plaintiff seeks injunctive relief requiring the INS to 1) make a determination on an alien's FOIA requests within ten working days of receipt, 2) give notice if a ten working day extension of time is required, 3) search certain electronic data systems in response to FOIA requests for "all records," and 4) sufficiently describe the documents withheld from production and correlate the withheld documents with the statutory FOIA exemptions.
The usual FOIA case requests the district court to review an agency's denial of a specific request for information. And procedures have been developed for handling such requests on a case-by-case basis, resulting in a grant or denial of specific requests by the district court.
However, broader injunctive relief is available to enforce FOIA under certain circumstances. Long v. United States Internal Revenue Service, 693 F.2d 907 (9th Cir.1982). Payne Enterprises v. United States, 837 F.2d 486 (D.C.Cir.1988). Those cases granted injunctive relief against agencies which had a "pattern and practice" of withholding FOIA information, and then releasing the information after a FOIA suit was filed. After deciding that equitable remedies were available under FOIA, the Ninth Circuit in Long held as follows:
Id. at 909 (citations omitted).
Plaintiff has submitted his own declaration and those of other immigration attorneys, which show that the INS's delays in providing FOIA replies are often several months, instead of the 10 days required by the statute. They cite several examples of FOIA information that was received from the INS too late to be used in the aliens' deportation or exclusion proceedings, and which might have made a difference to the outcome. (Declarations of Mayock, Brooks, and Van der Hout). These declarations also state that the local INS office has no procedures for giving preference to requests for information that is urgently needed in deportation proceedings. The declaration of Tony Ju, submitted by the INS, states that the urgency of the requests is considered by the INS, but there are no implementing procedures to give priority to these requests systematically, or to assure that responses are made before the deportation or exclusion proceedings are concluded.
Plaintiff has presented substantial and uncontroverted evidence that lengthy delays are systematic,2 and that aliens have been excluded or deported before the INS's FOIA replies are received. There is also no dispute as to the form in which the INS office denies requests for information. The denial merely indicates how many pages will not be disclosed, and cites the relevant statutory exemptions. Finally, there is also no dispute that the INS did not, until recently, search any of its computer databases in response to requests for "all records."
Defendants argue that none of these practices have involved the withholding of records in bad faith. However, this court has already determined that the statute may be violated even absent bad faith, (Order, July 6, 1988), although good faith is a consideration in the decision whether to grant an injunction. In considering an injunction, the Long case does require the district court to weigh "the good faith of any expressed intent to comply." Long, at 909.
The INS has expressed its intention to comply with respect to searching certain electronic records. However, as to the other practices challenged by plaintiff, the INS contends that FOIA does not require what plaintiff requests.
The basic disputes between the parties are therefore ones of law and not of fact. The issue is whether the practices of the INS are in compliance with the requirements of FOIA. If not, injunctive relief is available under the Long analysis, p. 909. There is no dispute that the INS uses the above procedures, and that as a result information is not being produced until after aliens have been deported. The INS has not ceased the allegedly illegal practices challenged in this suit, but instead argues that it is not legally obligated to do so. While the INS is making some apparent efforts to reduce the time delays and to correct other problems, there is a strong liklihood of recurrence and serious detriment to aliens facing deportation.
Plaintiff's primary claim is that the INS does not process FOIA information requests in the time period prescribed by the statute, the regulations, and the agency guidelines.
The starting point is the requirement of the statute. 5 U.S.C. § 552(a)(6) provides:
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