Hoffman v. U.S. Customs & Border Prot.

679 F.Supp.3d 167

Karen L. HOFFMAN, Plaintiff, v. U.S. CUSTOMS AND BORDER PROTECTION, Defendants.

CIVIL ACTION NO. 20-6427

United States District Court, E.D. Pennsylvania

Signed June 28, 2023

Adam Snyder, The ALLGOOD Foundation, Chicago, IL, Karen Louise Hoffmann, Law Offices of Stanley J. Ellenberg, Esq., P.C., Philadelphia, PA, for Plaintiff.

Eric D. Gill, U.S. Attorney's Office, Philadelphia, PA, for Defendants.

MEMORANDUM

Anita B. Brody, District Judge

Plaintiff Karen L. Hoffman brings this action against U.S. Customs and Border Protection ("CBP") for alleged violations of the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Before the court are cross-motions for summary judgment.

I. BACKGROUND

This litigation arises out of CBP's processing of migrants seeking asylum at the United States-Mexico border between January 1, 2019 and February 21, 2019.

A. CBP's "Metering" Policy

In 2016, CBP began to use what have since become known as "metering" and "queue management" policies to control the number of asylum seekers presenting themselves at Ports of Entry ("POEs") on the Southwest border. See Al Otro Lado, Inc. v. Mayorkas, No. 17-CV-02366-BAS-KSC, 2021 WL 3931890, at *2 (S.D. Cal. Sept. 2, 2021). This consisted of CBP officers coordinating with Mexican immigration officials to limit the number of asylum seekers presenting themselves at the border at any given time, and turning away asylum seekers when Mexican officials did not sufficiently "control the flow." Id. at *9. Asylum seekers who were turned away were told to speak to Mexican officials to be added to a list, and spend further time in Mexico waiting for an appointment at a POE. Id. at *17. CBP's rationale for using "metering" was that the number of asylum seekers exceeded the capacity of POEs to process them. Id. at *3-4.

However, the Department of Homeland Security Office ("DHS") of Inspector General ("OIG") has since found that DHS and CBP artificially limited capacity by reassigning staff away from asylum processing; stopping routine processing of most asylum seekers at several POEs; and failing to use all available detention space. OIG, DHS, CBP Has Taken Steps to Limit Processing of Undocumented Aliens at Ports of Entry, OIG-21-02 (2020). In 2021, CBP formally rescinded its "metering" policies. See U.S. Customs and Border Protection, Guidance for Management and Processing of Undocumented Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021). In addition, a district court in the Southern District of California entered a declaratory judgment on August 5, 2022, holding that turning back asylum seekers violated CBP's ministerial inspection and referral duties. Al Otro Lado, Inc. v. Mayorkas, 619 F.Supp.3d 1029 (S.D. Cal. 2022).

B. Karen Hoffman's FOIA Request

Karen L. Hoffman, the Plaintiff in this action, is a Philadelphia-based attorney who provides legal counsel to asylum seekers. ECF No. 37-5 ¶ 1. In February 2019, when the "metering" policies were still in effect, Ms. Hoffman received a request for assistance from a colleague working at the Eagle Pass Port of Entry ("Eagle Pass POE") on the United States side of the border, and in Piedras Negras, on the Mexico side of the border. Id. ¶ 7. Specifically, Ms. Hoffman's colleague told her she needed help in responding to the detention of up to 2,000 migrants seeking asylum. Id. Ms. Hoffman's belief that this detention was unlawful ultimately led to her filing the FOIA request at issue in this litigation. Id. ¶ 9.

During the period that Ms. Hoffman was working at the Southwest border, CBP officials working at Eagle Pass POE were in communication with Hector Menchaca, a private citizen working in a semi-official capacity for Mexican state authorities. In an email from Eagle Pass Port Director Paul Del Rincon to Assistant Port Director Pete Macias and other CBP officials, Del Rincon describes Mr. Menchaca as "the new [point of contact] for anything and everything migrants." ECF No. 36-1. Contemporaneous reporting suggests that Mr. Menchaca would have coordinated with CBP officials to prevent asylum seekers from reaching Eagle Pass POE and to maintain a "wait list" of migrants on the Mexican side of the border. ECF No. 37 at 12.¹

On February 21, 2019, Ms. Hoffman filed a FOIA request with CBP seeking the following categories of records:

• Any and all correspondence and/or record of communications between CBP agents or employees and Hector Menchaca.

• Any and all correspondence and/or record of communications between CBP agents or employees and the telephone number +52-878-703-2497.

• Any and all communications relating to the capacity of CBP to accept asylum seekers for processing at the Eagle Pass POE from January 1, 2019 to February 21, 2019.

• Any and all internal or external CBP communications regarding a list of migrants awaiting their turn to present themselves at the Eagle Pass POE from January 1, 2019 to February 21, 2019.

• Any and all internal or external CBP communications regarding migrants detained in Piedras Negras, Mexico, from January 1, 2019 to February 21, 2019.

ECF No. 1 ¶12.

On April 5, 2019, after failing to receive a response from CBP, Ms. Hoffman appealed what she deemed a denial of her FOIA request pursuant to 6 C.F.R. § 5, 8. Id. ¶ 3, 15. Once again, Ms. Hoffman received no response. Ms. Hoffman then filed this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). Id.

C. The Instant Litigation

A lengthy back-and-forth ensued between Ms. Hoffman and CBP over how best to conduct a search for responsive records. In July 2021, CBP stated to Ms. Hoffman via email that it had completed its record productions, and its response to her request was therefore complete. ECF No. 37-5 ¶ 12. On August 4, 2021, CBP filed its Answer to Ms. Hoffman's Complaint. ECF No. 12.

In his sworn Declaration (ECF No. 35-1), FOIA Division Branch Chief Patrick A. Howard details the steps Defendant took to carry out its search over the course of this litigation. CBP's FOIA Division determined that the that the U.S. Border Patrol Del Rio Sector was most likely to have records responsive to Ms. Hoffman's request because that Sector was tasked with coordinating and administering the Eagle Pass POE. ECF No. 35-1 ¶¶ 5-6. The Del Rio Sector then searched the shared drives most likely to have responsive records with the following six keywords and phrases: 1) Hector Menchaca; 2) +52-878-703-2497; 3) capacity; 4) asylum; 5) Eagle Pass POE; and 6) detained in Piedras Negras. Id. ¶ 5. CBP did not search for paper records because all information during the period in question was exchanged electronically. Id. ¶ 7.

In addition to the Del Rio Sector shared drives search, CBP's Office of Information Technology also conducted a search of all email inboxes in the cbp.dhs.gov domain, covering the period from January 1, 2019 to February 25, 2019 for the following two key phrases: 1) Hector Menchaca; and 2) +52-878-703-2497. Id. ¶ 8. This resulted in the production of 443 pages of responsive records to Ms. Hoffman in January and February 2021. Id. ¶ 5.

Ms. Hoffman also expressed to CBP that agents' mobile devices were likely sources of responsive records in the timeframe of her request. ECF No. 37-4. Specifically, in response to a CBP inquiry, she identified the mobile devices of Eagle Pass Port Director Paul Del Rincon and Assistant Port Director Pete Macias as likely sources of responsive records, as Mr. Del Rincon and Mr. Macias would have been likely to communicate with Mr. Menchaca "often using WhatsApp." Id. CBP began its inquiry into the use of WhatsApp on Mr. Del Rincon's and Mr. Macias's mobile devices on April 13, 2021. ECF No. 35-2 ¶ 2. Because CBP was unable to remotely access Mr. Del Rincon's and Mr. Macias's mobile devices, CBP employees conducted visual, in-person inspections focusing on the WhatsApp application and found no responsive records. ECF No. 35-3 ¶¶ 1-2; ECF No. 35-4 ¶¶ 1-2. CBP also took steps to obtain the mobile devices in use by Mr. Del Rincon and Mr. Macias during the period of January 1, 2019 to February 25, 2019. ECF No. 35-5 ¶¶ 2-4. Mr. Del Rincon's deactivated mobile device had had its memory wiped and contained no responsive information; CBP was unable to locate Mr. Macias's deactivated mobile device. Id.

Finally, after CBP concluded its mobile device search, Ms. Hoffman requested a search of Office of Field Operations ("OFO") records. ECF No. 35-1 ¶ 13.² Mr. Howard learned that OFO had already conducted a search for the period from January 1, 2019 to February 26, 2019 on the Laredo Ops Shared Drive, but had failed to properly upload documents for review. Id. This search resulted in the production of 393 pages of Migrant Crisis Action Team ("MCAT") daily reports and emails to Ms. Hoffman on February 24, 2022. Id.³ On July 13, 2022, CBP produced to Ms. Hoffman additional "queue management reports" that were missing from the initial production. Id. ¶ 14. On July 26, 2022, CBP produced unredacted versions of emails which had already been produced, removing the redactions for the name "Hector Menchaca." Id.

On May 19, 2022, in response to several inquiries from Ms. Hoffman about what she termed ongoing deficiencies in record production, CBP indicated it would seek summary judgment. ECF No. 37-5 ¶ 31.

On May 26, 2022, I set a briefing schedule for dispositive motions. ECF No. 31. CBP filed its Motion for Summary Judgment on July 29, 2022. ECF No. 35. Ms. Hoffman filed her Cross-Motion for Summary Judgment on August 27, 2022. ECF No. 37. On April 18, 2023, I held oral argument on both parties' motions. Following oral argument, I ordered Ms. Hoffman to file a statement of interest with the Court outlining her position as to three questions: 1) proposed search terms to be employed in a revised records search; 2) the use of encrypted chat applications on CBP devices during the period encompassed by her request; and 3) the alleged failure by CBP to preserve responsive records after...