Heartland Alliance for Human Needs & Human Rights v. U.S. Immigration & Customs Enforcement

406 F.Supp.3d 90

HEARTLAND ALLIANCE FOR HUMAN NEEDS & HUMAN RIGHTS, d/b/a National Immigrant Justice Center, Plaintiff,

v.UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT et al., Defendants.

Civil Action No.: 16-204 (RC)

United States District Court, District of Columbia.

Signed September 12, 2019

Seth A. Watkins, Watkins Law & Advocacy, PLLC, Washington, DC, for Plaintiff.

Benton Gregory Peterson, Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

On December 18, 2015, President Barack Obama signed into law the Consolidated Appropriations Act, 2016, which allocated federal funding for financial year 2016 for the federal agency U.S. Immigrations and Customs Enforcement ("ICE"). See Am. Compl. ¶ 8, ECF No. 31 (citing Am. Compl. Ex. 1, ECF No. 31-1). The Consolidated Appropriations Act, 2016 stipulated that "funding made available under this heading shall maintain a level of not less than 34,000 detention beds...." Am. Compl. Ex. 1 at 4 (emphasis added).¹ This statute thus mandated that ICE "maintain" a minimum level of detention beds, thereby continuing a requirement that was first included as a budgetary condition in 2009. See Am. Compl. ¶ 8; Am. Compl. Exs. 3–6, ECF Nos. 31-3–31-6. Since then, this requirement has been criticized by non-profit organizations and the national media on the grounds that ICE has construed "maintain" to mean "maintain and fill ," Am. Compl. ¶ 8, the specified level of detention beds, such that the statute amounts to a "detention bed quota" or "detention bed mandate," see generally Am. Compl. Exs. 3–6 (compiling articles from Bloomberg News, Los Angeles Times, and New York Times that discuss and critique the quota). According to such critics, the statute incentivizes ICE to fill a set number of beds in for-profit facilities as well as federal detention facilities, Am. Compl. ¶ 8, without considering factors such as "need," id. ¶ 10 (quoting Ex. 3), "low-cost alternatives to detention," id. ¶ 11 (quoting Ex. 5), whether the detainee is a violent offender, id. ¶ 12 (quoting Ex. 6), or the monetary cost of the policy, id. ¶ 13 (citing Ex. 7, ECF No. 31-7).

Plaintiff National Immigrant Justice Center ("NIJC") is among these critics. Seeking to "obtain pertinent information to inform the legal community and the public about ICE detention, release, and bond policies and procedures," id. ¶ 14, NIJC submitted two FOIA requests in 2014 that sought production of records both from ICE and from the Office of Management and Budget ("OMB"), respectively. As detailed below, Plaintiff submitted two further FOIA requests in 2017 to ICE and OMB. Id. ¶¶ 15, 24. Before and since the complaint in this matter was filed, ICE and OMB have searched for and produced records responsive to these FOIA requests. Throughout, NIJC has criticized aspects of the agencies' searches and challenged the basis for their withholding of certain records in whole or in part.

Defendants ICE and OMB now move for summary judgment on Plaintiff's claim.² See Defs.' Mot. Summ. J., ECF No. 54. Plaintiff opposes this motion and has filed a cross-motion for summary judgment. See Pl.'s Cross-Mot. Summ. J., ECF No. 56. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion for summary judgment and grant in part and deny in part Plaintiff's cross-motion for summary judgment.

II. FACTUAL BACKGROUND

Because the FOIA searches in this case were conducted piecemeal over a period of over four years and the adequacy of Defendant ICE's searches is central to this suit, the Court will begin by detailing both the FOIA requests submitted to ICE and the responsive searches conducted by the agency.³

A. Procedural History for 2014 FOIA Requests

On July 1, 2014, Plaintiff submitted two FOIA requests to ICE and OMB, respectively.⁴ Am. Compl. ¶¶ 15, 24. NIJC's requests sought to determine "whether ICE has adopted uniform detention, release, and bond policies that are independent from the bed space inventory and/or from ICE quotas or performance objectives." Id. ¶ 14.

1. 2014 FOIA Request to ICE

The ICE FOIA request, 2014-ICFO-02072, sought two categories of records. The first prong of the request centered on two ICE field offices, namely ICE's San Antonio and Seattle Areas of Responsibility ("AORs").⁵ Am. Compl. Ex. 8, ECF No. 31-8; see also Defs.' Statement Undisputed Material Facts ¶ 1, ECF No. 54-1. In this prong, NIJC sought:

• "daily, weekly, bi-weekly, and/or monthly Records of the bed space inventory in ICE's San Antonio and Seattle AORs from June 1, 2013 through November 30, 2013, including the number of vacant beds and the detainee population, broken down by gender, individuals subject to mandatory custody, individuals subject to non-mandatory custody, and by the alleged custodial authority (e.g., INA §§ 236(a), 236(c), 241, 235);"

• "daily, weekly, bi-weekly, and/or monthly Records of bond amounts for detainees in ICE's San Antonio and Seattle AORs from June 1, 2013 through November 30, 2013, including the detainee's gender, whether the individual was subject to mandatory custody, and the alleged custodial authority for each individual (e.g., INA §§ 236(a), 236(c), 241, 235);" and

• "any Records concerning the setting and calculation of bond amounts for detainees in ICE's San Antonio and Seattle AORs from June 1, 2013 to the present, (including but not limited to) all communications (e.g., transmittals, letters, emails, memoranda, and reports, instructions, and summaries) related thereto." Am. Compl. Ex. 8 at 3–4 (emphasis omitted).

The second prong of the request expanded beyond these two AORs and sought four kinds of records regarding nationwide ICE-related detention (the "Detention Bed Quota"):

• "any Records dated between January 1, 2009 and the present which set out or reflect approved policies, guidelines, or procedures for maintaining and/or filling (i) a level of not less than 33,400 detention beds and/or (ii) a level of not less than 34,000 detention beds, including all communications (e.g., transmittals, letters, emails, memoranda, and reports, instructions, and summaries) related thereto (such as to, from, or within ICE headquarters, an ICE field office, or an ICE AOR);"

• "any Records dated between January 1, 2009 and the present which set out or reflect an assessment of compliance with any statutory requirement for maintaining and/or filling (i) a level of not less than 33,400 detention beds and/or (ii) a level of not less than 34,000 detention beds;"

• "any Records from January 1, 2009 through the present which set out or reflect approved policies, guidelines, or procedures for appraising the performance of ICE personnel, Field Offices, or AORs related to maintaining and/or filling beds in detention facilities used to house ICE detainees;" and

• "any Records from January 1, 2009 through the present which set out or reflect approved policies, guidelines, or procedures for requesting and/or setting and/or calculating bond amounts for apprehended and/or detained individuals based on the presence of vacant beds in an ICE detention facility." Id. at 4 (emphasis omitted).

ICE acknowledged receipt of this FOIA request on July 10, 2014, see Am. Compl. Ex. 9, ECF No. 31-9, and issued a "final response" to Plaintiff on February 19, 2015, see Am. Compl. Ex. 10, ECF No. 31-10.

2. ICE's First Search in Response to the 2014 FOIA Request⁶

According to declarations provided by the agency, ICE identified the records initially released to Plaintiff after applying its "standard procedures for initiating searches in response to FOIA requests." Declaration of Toni Fuentes in Support of Defs.' Mot. Summ. J. ("Fuentes Decl.") 5, ECF No. 54-2. After initial processing of Plaintiff's request, "the ICE FOIA Office determined that ICE's Office of Enforcement Operations (ERO) was the program office likely to have responsive records." Id. ¶ 32. Following standard procedure, ERO submitted the request to its Information Disclosure Unit (IDU). Id. ¶ 34. The ERO's IDU reviewed Plaintiff's request and, "based on subject matter expertise and knowledge of the program officers' activities," determined that it was appropriate to conduct searches for potentially responsive documentation at the ERO Field office in San Antonio and the ERO Field Office in Seattle. Id. ¶¶ 34–35.

a. Seattle Field Office Search

Upon receipt of this directive, the designated FOIA point of contact in the ERO's Seattle Field Office tasked the Deputy Field Office Director (DFOD) with conducting relevant searches. Id. ¶ 36. The DFOD is responsible for "supervis[ing] the ERO Seattle Office enforcement of U.S. immigration law and agency policies," including, inter alia , policies related to the "calculation and setting of bond amounts[ ] within the state of Washington." Id. The DFOD conducted a search of his email and Microsoft Outlook archive folders. Id. He used the following search terms: " ‘34,000,’ ‘filling beds,’ ‘Vacant beds,’ ‘33,400 mandate,’ ‘detention beds,’ and ‘bond amounts.’ " Id.

b. San Antonio Field Office Search

The San Antonio AOR separately conducted a search in response to the ICE FOIA Office's tasking. The ERO San Antonio Field Office tasked its Assistant Field Operations Director (AFOD), four Supervisory Detention and Deportation Officers (SDDOs), and two Deportation Officers. Id. ¶ 37. The AFOD "oversees the day-to-day operations of the field office," including legal and policy enforcement "as they pertain to the setting and the calculation of bond amounts." Id. The SDDOs' duties include "approv[al of] bonds and provid[ing] guidance relating to any changes in the bond policies." Id. The Deportation Officers "handl[e] their individual assigned cases,"...