Am. Immigration Council v. U.S. Customs & Border Patrol

590 F.Supp.3d 306

AMERICAN IMMIGRATION COUNCIL, et al., Plaintiffs,

v.U.S. CUSTOMS AND BORDER PATROL, et al., Defendants.

Civil Action No.: 19-2965 (RC)

United States District Court, District of Columbia.

Signed March 11, 2022

Emma Winger, American Immigration Council, Washington, DC, Mary Kenney, National Immigration Litigation Alliance, Brookline, MA, Claudia Valenzuela, Immigrant Legal Defense, Oakland, CA, for Plaintiffs.

Christopher Charles Hair, Joseph F. Carilli, Jr., U.S. Attorney's Office for the District of Columbia, Washington, DC, Thomas Anthony Quinn, DOJ-USAO, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs American Immigration Council and Tahirih Justice Center filed this suit to require Defendants the Department of Homeland Security ("DHS"), U.S. Citizenship and Immigration Services ("USCIS"), and U.S. Customs and Border Protection ("CBP") to respond appropriately to Plaintiffs’ Freedom of Information Act ("FOIA") requests. The requests concern a program for using CBP agents to conduct credible fear interviews, which is a part of the asylum-seeking process. At issue are the sufficiency of CBP's search and the propriety of several withholdings by DHS and USCIS under Exemptions 5, 6, and 7(C). As explained below, CBP's search was insufficient, more detail would be required to justify the Exemption 5 withholdings, and the Exemptions 6 and 7(C) withholdings are improper. Accordingly, the Court orders CBP to conduct an appropriate search, denies Plaintiffs’ and Defendants’ motions without prejudice regarding the Exemption 5 withholdings to give Defendants an opportunity to address deficiencies, and grants Plaintiffs’ motion regarding the Exemption 6 and 7(C) withholdings. The parties are ordered to submit a proposed schedule for further proceedings within two weeks of the issuance of this opinion. See Jud. Watch, Inc. v. U.S. Dep't of Just. , No. CV 17-0832 (CKK), 2019 WL 4644029, at *9 (D.D.C. Sept. 24, 2019) (taking a similar procedural approach).

II. BACKGROUND¹

Credible fear interviews are a step in the asylum process where "asylum officer[s]" determine whether "an alien has a credible fear of persecution." 8 U.S.C.A. § 1225(b)(1)(A)(ii), (B)(ii). Beginning in the spring of 2019, Defendants "began a pilot program in which U.S. Border Patrol agents received training to conduct, and subsequently did conduct, credible fear interviews." Defs.’ Resp. to Pls.’ Statement of Material Facts ("Defs.’ SUMF Resp.") ¶ 1, ECF No. 33-1. Credible fear interviews were traditionally conducted by USCIS officers and—according to at least some evidence presented by Plaintiffs—the CBP officers found credible fear at a lower rate than the USCIS asylum officers. See Mem. P. & A. Supp. Pls.’ Cross-Mot. Summ. J. & Opp'n Defs.’ Mot. Summ. J. ("Pls.’ Opp'n & Mem.") at 2–5, ECF Nos. 29-2, 30 (citing, among others, Molly O'Toole, Border Patrol Agents, Rather than Asylum Officers, Interviewing Families for ‘Credible Fear ,’ L.A. Times (Sept. 19, 2019, 5:50 AM), https://www.latimes.com/politics/story/2019-09-19/border-patrol-interview-migrant-families-credible-fear). At least some CBP officers conducting credible fear interviews were instructed not to inform the asylum seekers, or their attorneys, that they were CBP officers, and would not clarify when asked. Defs.’ SUMF Resp. ¶ 3 (undisputed). On August 31, 2020, Judge Leon granted a preliminary injunction against Defendants’ heads preventing them from "permitting U.S. Customs and Border Protection agents to conduct asylum interviews or make credible fear determinations, pending a ruling on the merits in this case," because plaintiffs were likely to succeed on their claim that using "CBP agents who receive substantially less training than [USCIS] asylum officers to conduct asylum interviews violates the Immigration and Nationality Act." Order, A.B.-B. v. Morgan , No. 20-CV-846 (RJL) (D.D.C. Aug. 31, 2020), ECF No. 33; A.B.-B. v. Morgan , 548 F.Supp.3d 209, 212 (D.D.C. 2020).

In May, July, and August 2019, Plaintiffs submitted FOIA requests to Defendants for records regarding CBP officers conducting credible fear interviews, to which Defendants initially did not substantively respond. Defs.’ SUMF Resp. ¶¶ 5–9. Plaintiffs filed their complaint on October 2, 2019. Id. ¶ 10. The parties then engaged in discussions resulting in Plaintiffs submitting a list of seven priority categories of documents (narrowed to include only final versions, with Plaintiffs’ rights reserved to later seek non-final versions). Id. ¶¶ 11, 13. The categories include:

1. any memorandum of understanding between CBP, USCIS and/or DHS regarding the use of CBP officers to conduct credible fear interviews (CFIs) and/or reasonable fear interviews (RFIs);

2. any written lesson plans, any curricula, and any training materials provided to CBP officers;

3. protocols or policies for evaluating whether a CBP officer may conduct these interviews, including materials used to evaluate and test CBP officers with respect to their training and/or ability to conduct CFIs or RFIs, excluding the results of any testing or evaluation of individual officers;

4. protocols or policies addressing how CBP officers will be supervised in conducting CFIs or RFIs and making credible and reasonable fear determinations;

5. any written policy directives, written policy guidelines, or written procedures concerning the expansion of the pilot program that reportedly trained approximately 60 CBP officers to conduct CFIs or RFIs;

6. any written communications from DHS, CBP, or USCIS Headquarters to CBP or USCIS personnel about CBP conducting CFIs or RFIs; and

7. any existing reports showing grant/denial rates for CFIs/RFIs conducted by CBP officers.

Id. ¶ 12. Defendants conducted searches and located responsive documents, some of which were produced in full, some of which were produced after redaction, and some of which were withheld in full. See id. ¶¶ 14–19. CBP searched for documents in only categories 1 and 5. Id. ¶ 19.

Defendants moved for summary judgment that the agencies conducted reasonable searches and properly withheld information under FOIA Exemptions 5, 6, 7(C), and 7(E). Defs.’ Mem. P. & A. Supp. Defs.’ Mot. Summ J. ("Defs.’ Mem.") at 1, ECF No. 28-1.² Plaintiffs opposed and cross-moved for summary judgment that CBP did not conduct a reasonable search and that DHS and USCIS did not properly withhold certain records and information. Pls.’ Opp'n & Mem. at 2. The motions are fully briefed. See Defs.’ Reply Mem. Supp. Defs.’ Mot. Summ. J. & Resp. Opp'n Pls.’ Cross-Mot. Summ. J. ("Defs.’ Reply & Opp'n"), ECF Nos. 33, 34; Reply Mem. Supp. Pls.’ Cross-Mot. Summ. J. ("Pls.’ Reply"), ECF No. 35.

III. LEGAL STANDARD

The purpose of FOIA "is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB. v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). FOIA was intended "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks omitted). FOIA requests thus provide individuals with the opportunity to obtain access to federal agency records, except to the extent that such records are protected from public disclosure by one of nine exemptions. See 5 U.S.C. § 552(a)(3), (a)(4)(B), (b), (c) ; see also NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ; Jud. Watch, Inc. v. U.S. Dep't of Def. , 847 F.3d 735, 738 (D.C. Cir. 2017).

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the movant shows 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) ; see, e.g. , Alyeska Pipeline Serv. Co. v. U.S. EPA , 856 F.2d 309, 314 (D.C. Cir. 1988) (concluding that unsubstantiated claims of factual controversies cannot defeat a summary judgment decision in a FOIA case). FOIA cases are typically resolved through summary judgment because in FOIA cases there is rarely any factual dispute; instead, these cases center on how the law is applied to the records at issue. See Pinson v. Dep't of Just. , 236 F. Supp. 3d 338, 352 (D.D.C. 2017) ("FOIA cases typically and appropriately are decided on motions for summary judgment." (quoting Defs. of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009) )); see also Gray v. Southwest Airlines Inc. , 33 F. App'x 865, 868 n.1 (9th Cir. 2002) (citing Schiffer v. FBI , 78 F.3d 1405, 1409 (9th Cir. 1996) ). Accordingly, in a FOIA suit, an agency is entitled to summary judgment "if no material facts are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.’ " Prop. of the People, Inc. v. Off. of Mgmt. and Budget , 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA , 232 F. Supp. 3d 172, 181 (D.D.C. 2017) ). "This burden does not shift even when the requester files a cross-motion for summary judgment because ‘the Government ultimately has the onus of proving that the documents are exempt from disclosure,’ while the ‘burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.’ " Hardy v. ATF , 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen...