Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement

• Decision Date: 14 September 2020
• Docket Number: 16 Civ. 387 (PAE)
• Citation: 486 F.Supp.3d 669
• Parties: NATIONAL DAY LABORER ORGANIZING NETWORK, Asian Americans Advancing Justice – Asian Law Caucus and the Immigration Clinic of the Benjamin N. Cardozo School of Law, Plaintiffs, v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. Customs and Border Protection, United States Department of Homeland Security, and the Department of Homeland Security's Office of Civil Rights and Civil Liberties, Defendants.
• Court: U.S. District Court — Southern District of New York

486 F.Supp.3d 669

NATIONAL DAY LABORER ORGANIZING NETWORK, Asian Americans Advancing Justice – Asian Law Caucus and the Immigration Clinic of the Benjamin N. Cardozo School of Law, Plaintiffs,

v.UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. Customs and Border Protection, United States Department of Homeland Security, and the Department of Homeland Security's Office of Civil Rights and Civil Liberties, Defendants.

16 Civ. 387 (PAE)

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

Signed September 14, 2020

Anthony J. Diana, Therese Craparo, Peter L. Markowitz, Cardozo Immigration Justice Clinic, Erika Kweon, Reed Smith LLP, Lindsay Cotten Nash, Benjamin N. Cardozo School of Law, New York, NY, for Plaintiff National Day Laborer Organizing Network.

Anthony J. Diana, Mayer Brown LLP, Lindsay Cotten Nash, Benjamin N. Cardozo School of Law, Peter L. Markowitz, Cardozo Immigration Justice Clinic, New York, NY, for Plaintiff Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.

Angela Fuhn Chan, Asian Americans Advancing Justice, San Francisco, CA, Anthony J. Diana, Peter L. Markowitz, Cardozo Immigration Justice Clinic, Lindsay Cotten Nash, Benjamin N. Cardozo School of Law, New York, NY, for Plaintiff Asian Americans Advancing Justice - Asian Law Caucus.

Arastu Kabeer Chaudhury, Brandon Matthew Waterman, Samuel Hilliard Dolinger, United States Attorney's Office, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

This lawsuit, brought under the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), arises out of a request by plaintiffs National Day Laborer Organizing Network ("NDLON"), Asian Americans Advancing Justice – Asian Law Caucus ("AAAJ–ALC") and the Immigration Clinic of the Benjamin N. Cardozo School of Law (together "Plaintiffs") for records about a since-discontinued federal program governing immigration enforcement: the Priority Enforcement Program ("PEP"). The remaining defendants are U.S. Immigration and Customs Enforcement ("ICE"), U.S. Customs and Border Protection ("CBP"), the U.S. Department of Homeland Security ("DHS"), and its Office of Civil Rights and Civil Liberties ("CRCL," and together with ICE, CBP, and DHS, "Defendants").¹ Pending now are the parties’ cross-motions for summary judgment as to whether Defendants properly withheld 218 records, almost all pursuant to the deliberative process privilege under FOIA Exemption 5, 5 U.S.C. § 552(b)(5) ("Exemption 5"). For the reasons that follow, the Court grants in part and denies in part the cross-motions, and directs that a subset of the records be furnished to the Court for its in camera review.

I. Background²

The Court assumes familiarity with the underlying facts of this litigation, which, unless specified, are not disputed. The Court here provides background only as relevant to the issues raised by the instant cross-motions.

A. The Priority Enforcement Program

On November 20, 2014, then-Secretary of Homeland Security Jeh Johnson established, by memorandum, PEP. See PEP Mem. PEP was the immediate successor to the DHS's "Secure Communities" program, which had sought "to more effectively identify and facilitate the removal of" undocumented immigrants convicted of crimes who were "in the custody of state and local law enforcement agencies." See Secure Comm. Mem. at 1. DHS did so by entering into agreements with state and local law enforcement agencies ("LEA"s) in which LEAs agreed to share fingerprints with DHS and inform DHS when non-citizens were to be imminently released from LEA custody. See generally Secure Comm. Mem. In some cases, LEAs agreed to hold non-citizens for up to 48 hours beyond when they would otherwise be released pursuant to a DHS "detainer," to allow DHS to take the non-citizen directly into immigration custody. Id. at 2.

Explaining the rescission of the Secure Communities program, Secretary Johnson stated that "its very name has become a symbol for general hostility toward the enforcement of our immigration laws," with "[g]overnors, mayors, and LEA officials ... increasingly refus[ing] to cooperate with the program" and a number of state and local officials having "issued executive orders or signed laws prohibiting such cooperation." Id. at 1. Moreover, Secretary Johnson explained, "[a] number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigrants pursuant to federal detainers issued under the current Secure Communities program." Id.

However, because "[t]he overarching goal of Secure Communities remain[ed] ... a valid and important law enforcement objective," Secretary Johnson announced "a fresh start and a new program"—PEP. Id. at 1, 3. Under PEP, DHS would "continue to rely on fingerprint-based biometric data submitted during bookings by [LEAs] to the Federal Bureau of Investigation for criminal background checks," but DHS would "seek the transfer of a [non-citizen]" to immigration custody only "when the [non-citizen] has been convicted of a[ ] [Priority] offense" as described in the PEP Memo, which was issued the same day. Id. at 2; see also PEP Mem. PEP also introduced changes to the use of DHS detainers. See Secure Comm. Mem. at 2.

Plaintiffs are civil rights and immigrant rights organizations that were heavily involved in efforts to pressure state and local governments to cease participating in Secure Communities and in challenging the constitutionality of that program in federal court. See Kweon Decl., Ex. 4 ("Newman Decl.") ¶¶ 7–16. Plaintiffs credit their success in such advocacy in large part to the information obtained from DHS through intensely litigated FOIA requests. Id. Concerned that PEP was a change in name only, Dkt. 175 ("Pl. Mem.") at 5–6, Plaintiffs in March 2015 began submitting FOIA requests to Defendants for detailed information about PEP. Plaintiffs sought, inter alia , "records related to policies, procedures, and objectives" of PEP; "data and statistical information" about the program; "agency communications concerning PEP"; information about "PEP's fiscal impact"; internal "assessments of PEP"; and records related to "complaint mechanisms and oversight of PEP." Compl. ¶ 66.

B. History of this Litigation

On March 5, 2015, Plaintiffs submitted their FOIA requests to Defendants. Id. On January 19, 2016, Plaintiffs commenced this lawsuit, see Compl., after receiving a "total[ ] of 35 pages" and two hyperlinks from DHS, EOIR, and the FBI, and no records from the remaining seven defendants, id. ¶ 70. "On April 14, 2016, Plaintiff[s] submitted a narrowed FOIA request ... which Defendants accepted as the operative request on May 4, 2016." Pl. Mem. at 6; see also Dkts. 64, 72. After four years of litigation, including two partial summary judgment rulings by the Hon. Katherine B. Forrest, to whom this case was previously assigned,³ Defendants have now produced thousands of responsive records, including "more than ten thousand pages of records from ICE alone." Dkt. 179 ("Def. Opp'n") at 1, 28 n.11.

The parties’ remaining dispute concerns 206 records that Defendants seek to withhold pursuant to FOIA Exemption 5, largely under the deliberative process privilege.⁴ Defendants usefully group the withheld records into four categories. First, Defendants claim that most of these records are exempt as draft documents or emails relating to such drafts. Dkt. 178 ("Def. Mem.") at 5. Second, Defendants claim that some records are exempt "talking points." Id. Third, Defendants claim that eight documents are exempt as deliberative memoranda for high-level officials discussing policy proposals that were not ultimately adopted. Id. at 6. Fourth, Defendants claim that some records are exempt under not only the deliberative process privilege, but also under the attorney-client privilege and the work product doctrine. Id.

C. Procedural History

On January 31, 2020, Defendants filed their motion for summary judgment, Dkt. 164; an opening memorandum of law, Dkt. 165, later corrected with leave of the Court, see Def. Mem.; the Declaration of Patrick Howard, Dkt. 166 ("Howard Decl."), with an attached Vaughn Index, Dkt. 166-1 ("CBP Vaughn Index"); the Declaration of James V.M.L. Holzer, Dkt. 167 ("Holzer Decl."), with an attached Vaughn Index, Dkt. 167-1 ("DHS Vaughn Index"); and the Declaration of Fernando Pineiro, Dkt. 168 ("Pineiro Decl."), with an attached Vaughn Index, Dkt. 168-1 ("ICE Vaughn Index"). On April 16, 2020, Plaintiffs filed their cross-motion for summary judgment, Dkt. 173, an opening memorandum of law, Pl. Mem., and the declaration of Erika Kweon, Esq., Kweon Decl., with attached exhibits. On June 1, 2020, Defendants filed a combined brief in opposition to Plaintiffs’ cross-motion and in support of their motion for summary judgment, Def. Opp'n, and the Declaration of Samuel Dolinger, Esq., Dkt. 180 ("Dolinger Decl."), with attached exhibits. On July 1, 2020, Plaintiffs filed a combined brief in opposition to Defendants’ motion for summary judgment and in support of their cross-motion. Pl. Reply.

II. Applicable Legal Standards

A. Summary Judgment Motions in General

To prevail on a motion for summary judgment, the movant must "show[ ] 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). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts "in the light most favorable" to the non-moving party. Holcomb v. Iona Coll. , 521 F.3d 130, 132 (2d Cir. 2008) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the movant meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co. , 536 F.3d 140, 145 (2d Cir. 2008). "[A] party may not rely on mere speculation or...