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Stevens v. U.S. Immigration and Customs Enforcement

United States District Court, N.D. Illinois, Eastern Division

January 9, 2020

JACQUELINE STEVENS, Plaintiff,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER UNITED STATES DISTRICT JUDGE

         Plaintiff Jacqueline Stevens is a professor of political science and director of a "Deportation Research Clinic" at Northwestern University. (Compl. [1] ¶ 4.) Professor Stevens has requested certain records from defendant, U.S. Immigration and Customs Enforcement ("ICE"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552; in this action, Stevens challenges the adequacy of the government's response to her FOIA request. In response to an earlier motion for summary judgment, this court directed the government to submit a supplemental Vaughn index-a document setting out the bases for ICE's redactions in a representative sample of documents. ICE submitted the supplemental Vaughn index in March 2019, and both sides now seek summary judgment on the issue of the adequacy of ICE's search and production. As explained here, the court concludes ICE has not established that its search was adequate or that it has properly withheld information under certain exemptions to the Freedom of Information Act, and therefore denies ICE's cross-motion in part. The court reserves judgment on all other issues pending the parties' compliance with various directives that could obviate the need for further rulings.

         BACKGROUND

         The parties' summary judgment submissions support the following facts. ICE is a component of the U.S. Department of Homeland Security ("DHS") and an agency of the United States within the meaning of 5 U.S.C. § 552(f)(1). (ICE Oct. 2019 L.R. 56.1 Stat. [67] ¶ 36.) DHS administers and enforces laws relating to immigration and naturalization. (See Id. ¶ 37.) "ICE is the principal investigative arm of DHS and is tasked with preventing any activities that threaten national security and public safety by, among other things, investigating individuals who may be present in the United States illegally." (Id. ¶ 38.) The parties' FOIA dispute centers on what Stevens calls "USC Claims Memos." ICE attorneys, working with ICE officers and agents, prepare a USC Claims Memo whenever ICE encounters an individual who makes a claim to U.S. citizenship or has certain indicia of U.S. citizenship. (Stevens Mem. in Supp. of Mot. for Summ. J. ("Stevens Mot.") [55], 8; see ICE Oct. 2019 L.R. 56.1 Stat. ¶¶ 40-41.)[1] Each USC Claims Memo "contain[s] a factual examination and legal analysis of the [citizenship] claim." (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 40.) It also contains "a recommended course of action regarding removal proceedings, in particular whether the agency should initiate, continue, or move to terminate the actual or contemplated removal proceedings based on the facts available to the agency at the time." (Id. ¶ 42.)

         The USC Claims Memos are prepared in order "to prevent ICE personnel from inadvertently detaining a U.S. citizen and/or initiating or continuing removal proceedings against a citizen." (Id. ¶ 41.) For example, the legal analysis in a USC Claims Memo "must indicate whether" the evidence "strongly suggests that the individual is a U.S. citizen or his or her claim to U.S. citizenship is credible on its face." (ICE Directive 16001.2, Ex. 1 to Decl. of Rhonda Dent in Supp. of ICE Cross-Mot. for Summ. J. [67-1], ¶ 5.1(2)(b)(1).) If the legal analysis so indicates, ICE is required to take certain actions, such as canceling an immigration detainer if ICE has lodged one against the claimant or "immediately release[ing]" a claimant who is in custody. (Id. ¶ 5.2(4)(a).) As discussed in more detail below, Stevens challenges the redactions ICE made to final versions of USC Claims Memos that were responsive to her FOIA request.

         A. ICE Directive 16001.2

         In November 2015, ICE issued a Directive that "establishes ICE policy and procedures for ensuring that the potential U.S. citizenship of individuals encountered by [ICE] officers, agents, and attorneys is immediately and carefully investigated and analyzed." (ICE Directive 16001.2 ¶ 1.) The Directive provides, in relevant part:

ICE personnel must assess the potential U.S. citizenship of an individual encountered by ICE if the individual makes or has made a claim to U.S. citizenship, as well as when certain indicia of potential U.S. citizenship, as identified in this Directive, are present in a case even if the individual does not affirmatively make a claim to U.S. citizenship.

ICE Directive 16001.2 ¶ 2.

         "Regardless of the citizenship-claim trigger (affirmative claim or indicia), ICE documents these citizenship claims via alert emails to shared inboxes maintained by two ICE program offices: the Office of the Principal Legal Advisor ("OPLA") and Enforcement Removal Operations ("ERO"). (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 39.) Sometimes, ICE receives citizenship claims through a telephone hotline operated by ERO's Law Enforcement Support Center ("LESC"), whose responsibilities include investigating such claims. (See Stevens Aug. 2019 L.R. 56.1 Stat. [56] ¶¶ 16-18.) ICE and the Law Enforcement Support Center created the hotline "for detained individuals to call if they believe they are U.S. citizens." (Id. ¶ 18.) ICE asserts that the public can also call the hotline "with concerns." (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 62.) When the Law Enforcement Support Center receives a citizenship claim through the hotline, it must "immediately . . . forward[] [the caller's information] to the ERO field office victim/witness email inbox with the specific subject heading of 'Immediate review needed: USC claim.'" (Stevens Aug. 2019 L.R. 56.1 Stat. ¶ 19.) The court presumes that review must be "immediate" because the claimant has been detained.

         Under ICE Directive 16001.2, OPLA attorneys must prepare a USC Claims Memo concerning every citizenship claim ICE receives. (See ICE Oct. 2019 L.R. 56.1 Stat. ¶ 40; ICE Directive 16001.2 ¶ 5.1(2).) As noted above, each memorandum contains "a legal analysis of the . . . claim based on facts available to the agency at the time." (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 42.) It also contains "a recommended course of action regarding removal proceedings." (Id.) "The memorandum must be clearly annotated as containing pre-decisional, privileged attorney-client communication, attorney work product, and sensitive personally identifiable information." (ICE Directive 16001.2 ¶ 5.1(2)(c).) After completing a USC Claims Memo, the attorney within the Office of Principal Legal Advisor must "submit [it] for review to [ERO headquarters ("ERO HQ")] and the Immigration Law and Practice Division . . . of OPLA, who decide either to concur with the attorney's conclusion and recommendation . . . or to decline to concur and request alternate courses of action." (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 44; see ICE Directive 16001.2 ¶¶ 5.1(2)(d), 5.1(3).) "In the event [ERO HQ] or [the Immigration Law and Practice Division] require more information or further analysis, the OPLA attorney and an [Immigration Law and Practice Division] attorney work together to address those concerns." (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 44.) "Once [ERO HQ] and the [Immigration Law and Practice Division] reach a decision, the memorandum is finalized . . . ." (Id. ¶ 45.) A USC Claims Memo can be updated after ERO HQ and the Immigration Law and Practice Division decide on a course of action, such as initiating, continuing, or moving to terminate a removal proceeding. (See ICE Directive 16001.2 ¶ 5.1(2)(e).)

         B. Stevens' FOIA Request

         Stevens submitted her FOIA request to ICE on February 13, 2017. (See Stevens February 2017 Email, Ex. 2 to Decl. of Fernando Pineiro in Supp. of ICE Cross-Mot. for Summ. J. [67-2], 1.) She sought "all correspondence on the detention or removal proceedings for people claiming or proving U.S. citizenship since January 1, 2017. This request includes but is not limited to email received by or sent to an email address established by ICE for the purpose of assessing claims of U.S. citizenship." (Id.) In addition, Stevens sought "all correspondence as well as attachments and referenced reports, notes, text messages, or any other information maintained in any medium associated with" these U.S. citizenship claims. (Id.)[2] Stevens filed this lawsuit after ICE reported that it could not process her request within the statutory time limit. (See Feb. 2019 Order [40], 1.) That delay is no longer at issue; ICE processed the request while this action was pending. (See Id. at 2.) ICE collected 6, 042 pages of responsive records. (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 59.) It released 4, 841 pages with partial redactions, withheld 746 pages in full, released 280 pages in full, withheld 158 pages as duplicates, and "referred 17 pages to other agencies for processing and release." (Id.)[3]

         ICE moved for summary judgment in April 2018, asserting that it had conducted an adequate search for responsive records and had not improperly withheld any information from Stevens. (See Feb. 2019 Order 2.) Pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), ICE concurrently filed an index explaining the bases for its redactions in an agreed representative sample of documents. (See Feb. 2019 Order 2.) The sample comprised the first 150 pages of two productions but, as the court explained in its previous order, it happened not to contain any finalized-as opposed to draft-USC Claims Memos. (See Id. at 2-3.) Because ICE's redactions to finalized USC Claims Memos had become the main point of contention between the parties, the court directed ICE to "prepare a supplemental Vaughn index and affidavit that specifically address finalized USC Claims Memos." (Id. at 4-6.)

         After ICE complied with that directive, both parties moved for summary judgment. Plaintiff Stevens again challenges ICE's redactions to finalized USC Claims Memos. She also challenges, for the first time, redactions to other documents and the adequacy of ICE's search. Stevens asks the court to "order ICE to conduct an adequate search" and "enjoin [its] improper withholdings in violation of [FOIA]." (Stevens Mot. 19.) ICE, on the other hand, doubles down on its contention that it "conducted a reasonable search and did not improperly withhold any information," and asks ...


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