Knight First Amendment Inst. at Columbia Univ. v. U.S. Dep't of Homeland Sec.

407 F.Supp.3d 311

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiff.

v.U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

1:17-cv-7572 (ALC)

United States District Court, S.D. New York.

Signed September 13, 2019

Aditya Kamdar, Caroline Decell, Leena M. Charlton, Jameel Jaffer, Knight First Amendment Institute at Coumbia University, New York, NY, Catherine Newby Crump, Megan Kathleen Graham, Samuelson Law Technology & Public Policy Clinic U.C. Berkeley School of Law, Berkeley, CA, for Plaintiff.

Jennifer Ellen Blain, United States Attorney's Office, New York, NY, for Defendants.

OPINION & ORDER

ANDREW L. CARTER, JR., United States District Judge

Plaintiff the Knight First Amendment Institute at Columbia University (the "Knight Institute" or "Institute") filed this action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), seeking several categories of documents from the United States Immigration and Customs Enforcement ("ICE"), the Office of Legal Counsel ("OLC") within the Department of Justice ("DOJ"), the Department of State ("DOS"), the United States Citizenship and Immigration Services ("USCIS"), Customs and Border Protection ("CBP"), Department of Homeland Security ("DHS"), Department of Justice Office of Public Affairs ("OPA"), and Office of Information Policy ("OIP") (collectively "Defendants"). Specifically, Plaintiff filed identical FOIA requests (the "Request") seeking records relating to the government's authority to exclude or remove individuals from the United States based on their speech, beliefs, or associations—including its authority to conduct the kind of "extreme ideological vetting" President Trump threatened during his 2016 presidential campaign and delivered shortly after taking office. ECF. No. 1. The parties' cross-motions for partial summary judgment are now pending before the Court. This Opinion and Order addresses Plaintiff's challenges to the searches conducted by ICE and OLC, and the withholding determinations made by the DOS.

FOIA actions are typically resolved by summary judgment. Families for Freedom v. U.S. Customs and Border Protection, 797 F. Supp. 2d 375, 385 (S.D.N.Y. 2011). Summary judgment must 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 also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where parties file cross-motions for summary judgment, " ‘each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.’ " New York Times Co. v. U.S. Dep't of Def. , 499 F.Supp.2d 501, 509 (S.D.N.Y. 2007) (citing Morales v. Quintel Entm't, Inc. , 249 F.3d 115, 121 (2d Cir. 2001) ).

Having carefully considered the parties' submissions, the Court concludes that (1) ICE failed to prove as a matter of law it conducted an adequate search; (2) OLC conducted an adequate search; (3) DOS properly withheld documents pursuant to Exemption 5; (4) DOS did not properly withhold documents pursuant to Exemption 7(E).

BACKGROUND

I. Immigration and Nationality Act

The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., establishes how individuals are ineligible to enter or remain in the United States. Certain INA provisions permit or require government officials to assess an individual's admissibility on the basis of her speech, beliefs, and associations—regardless of whether her speech, beliefs, or associations would be protected by the First Amendment.

The INA provisions relevant here make inadmissible any individual who "endorses or espouses terrorist activity" or whose presence in the United States may pose foreign policy concerns.¹ The INA also provides that any "alien whose entry or proposed activities in the United States ... would have serious adverse foreign policy consequences ... is inadmissible," even when that determination is based on "beliefs, statements or associations [that] would be lawful within the United States." 8 U.S.C. §§ 1182(a)(3)(C)(i), (a)(3)(C)(iii).²

II. Executive Orders 13769 and 13780

On January 27, 2017, the president issued Executive Order ("E.O.") 13769, entitled " Protecting the Nation from Foreign Terrorist Entry into the United States." 82 Fed. Reg. 8977.³ After the Ninth Circuit upheld a temporary restraining order enjoining portions of E.O. 13769,⁴ the president promised to "go[ ] further" with a new executive action, and assured that "[e]xtreme vetting will be put in place," and that "it already is in place in many places." The president then issued E.O. 13780 ; rescinding E.O. 13769 in its entirety. 82 Fed. Reg. 13209, 13218 (March 6, 2017).⁵

After declaring that only individuals who "want to love our country" should be admitted into the United States,⁶ the president ordered the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop a more robust vetting program for visa applicants and refugees seeking entry into the United States, involving, among other things, "collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility." Exec. Order No. 13,780, 82 Fed. Reg. 13,209, 13,215 (Mar. 6, 2017) ; see also Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017).

III. The Knight Institute's Requests

On August 7, 2017, following E.O. 13780, the Knight Institute filed identical FOIA requests with the Defendants. Am. Compl. Ex. B, at 2–3, ECF No. 42-2. The Knight Institute initially sought six categories of information relating to the Trump Administration's "extreme vetting policies", as well as the government's past and ongoing reliance on the "endorse" or "espouse" INA provisions. Id. at 3–5. After negotiating with Defendants, the Knight Institute narrowed the Request to seek the following information:

Item 1 : All directives, memoranda, guidance, emails, or other communications sent by the White House to any federal agency since January 19, 2017, regarding consideration of individuals' speech, beliefs, or associations in connection with immigration determinations, including decisions to exclude or remove individuals from the United States;

Item 2: All final memoranda written since May 11, 2005 concerning the legal implications of excluding or removing individuals from the United States based on their speech, beliefs, and associations;

Item 3 : All final legal or policy memoranda written since May 11, 2005 concerning the endorse or espouse provisions or the foreign policy provisions of the INA as they relate to "beliefs, statements or associations";

Item 4 : All final records created since May 11, 2005 containing policies, procedures, or guidance regarding the application or waiver of the endorse or espouse provisions or the foreign policy provisions as they relate to "beliefs, statements or associations";

Item 5 : All final Foreign Affairs Manual sections (current and former, created since May 11, 2005) relating to the endorse or espouse provisions or the foreign policy provisions as they relate to "beliefs, statements or associations," as well as records discussing, interpreting, or providing guidance regarding such sections;Item 6(a) : All statistical data or statistical reports created since January 19, 2012, regarding the application, waiver, or contemplated application or waiver of the endorse or espouse provisions, or of the foreign policy provisions as they relate to "beliefs, statements or associations," to exclude or remove individuals from the United States; and

Item 6(e) : All notifications or reports created since May 11, 2005 from the Secretary of Homeland Security or the Secretary of State concerning waivers of the endorse or espouse provision pursuant to 8 U.S.C. § 1182(d)(3)(B)(ii).

See Joint Status Report ("JSR") ¶ 2, ECF No. 48; Decl. of Carrie DeCell ("DeCell Decl.") ¶¶ 7–8. The parties agreed that Defendants would search for records responsive to each item with the following exceptions: 1) Defendants would search only White House systems for records responsive to Item 1, providing "an explanation of the White House record retention policy so the Knight Institute could assess the comprehensiveness of the response to this Item of the Request," (JSR ¶ at 2(a)); 2) only DOS would search for records responsive to Item 5; and 3) only DHS and DOS would search their respective Office of the Secretary systems for records responsive to Item 6(e). Id. at ¶ 2.

IV. Defendants' Responses

Defendants produced records by July 2018. In August 2018, the Knight Institute requested that Defendants provide draft search descriptions and Vaughn indices explaining these records.⁷ ECF No. 79; DeCell Decl. ¶ 24. Defendants' responses are detailed below:

ICE : On September 29, 2017, ICE sent the Knight Institute a "final response" letter quoting language in Item 1. ECF No. 42-3. ICE also released 1,666 pages of records but withheld 1,653 of those pages in full. Id. Following an administrative appeal, ICE determined that "new search(s) or modifications to the existing search(s) ... could be made," and remanded the Request to ICE's FOIA Office for further processing and retasking. DeCell Decl. at ¶¶ 10–15. On February 13, 2018, ICE informed the Knight Institute that ICE located approximately 14,000 pages of "potentially responsive documents," (ECF No. 42-7), based on the initial Request. On March 7, 2018, ICE informed the Knight Institute that it processed 560 pages for release. ECF No. 42-8. ICE referred eighty-seven of those pages to other agencies for processing and released the remaining 463 pages with redactions. JSR ¶ 25. On April 30, 2018, ICE informed the Knight Institute that it processed an additional 1,124 pages of responsive records. It released 395 pages in full or in part, and referred 728 pages to other agencies. DeCell Decl. ¶ 21.

To expedite...