United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER UNITED STATES DISTRICT JUDGE
Jacqueline Stevens is a professor of political science and
director of a "Deportation Research Clinic" at
Northwestern University. (Compl.  ¶ 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.
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.  ¶ 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.") , 8;
see ICE Oct. 2019 L.R. 56.1 Stat. ¶¶
40-41.) 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.)
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
ICE Directive 16001.2
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.
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.  ¶¶ 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.
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).)
Stevens' FOIA Request
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.) Stevens filed this lawsuit after ICE
reported that it could not process her request within the
statutory time limit. (See Feb. 2019 Order , 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
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.)
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 ...