Libarov v. U.S. Immigration & Customs Enf't

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SOTIR LIBAROV, Plaintiff, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant.

No. 22 C 6414

United States District Court, N.D. Illinois, Eastern Division

August 21, 2024

MEMORANDUM OPINION AND ORDER

Jeffrey I. Cummings United States District Court Judge

Plaintiff Sotir Libarov (“Libarov”) brings this action against defendant the U.S. Immigration and Customs Enforcement (“ICE”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §551 et seq. According to Libarov, ICE violated FOIA when it failed to respond to his FOIA request in a timely manner and wrongfully withheld responsive records, and, in doing so violated the Administrative Procedure Act (“APA”), 5 U.S.C. §701 et seq. Currently before the Court are the parties' cross motions for summary judgment, (Dckt. #26 & #36), and related filings.^[1] For the reasons set forth below plaintiff's motion for summary judgment, (Dckt #26),^[2] is granted in part and denied in part, and defendant's motion for summary judgment, (Dckt. #36), is likewise granted in part and denied in part.

I. LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the moving party shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986), quoting Fed.R.Civ.P. 56(c); see Fed.R.Civ.P. 56(a); see also Hummel v. St. Joseph Cnty. Bd. of Comm'rs, 817 F.3d 1010, 1016 (7th Cir. 2016). “A genuine dispute is present if a reasonable jury could return a verdict for the nonmoving party, and a fact is material if it might bear on the outcome of the case.” Wayland v. OSF Healthcare Sys., 94 F.4th 654, 657 (7th Cir. 2024); FKFJ, Inc. v. Village of Worth, 11 F.4th 574, 584 (7th Cir. 2021) (the existence of a factual dispute between the parties will not preclude summary judgment unless it is a genuine dispute as to a material fact); Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004) (issues of material fact are material if they are outcome determinative).

When the moving party has met that burden, the non-moving party cannot rely on mere conclusions and allegations to concoct factual issues. Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003). Instead, it must “marshal and present the court with the evidence [it] contends will prove [its] case.” Goodman v. Nat. Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010); Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009). Thus, a mere “scintilla of evidence” supporting the non-movant's position does not suffice; there must be evidence on which the jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248. Ultimately, summary judgment is granted only if “no reasonable trier of fact could find in favor of the non-moving party.” Hoppe v. Lewis Univ., 692 F.3d 833, 838 (7th Cir. 2012) (cleaned up). The standard for summary judgment remains unchanged on cross-motions for summary judgment. Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017).

II. THE FACTUAL RECORD

A. The Parties

The following facts are undisputed unless otherwise noted. Plaintiff Libarov is a national and citizen of Bulgaria. (PSOAF ¶1). Defendant ICE is the principal investigative arm of the Department of Homeland Security and is the second largest investigative agency in the federal government. (DSOF ¶4). The United States Citizenship and Immigration Services, or “USCIS,” is a component of the Department of Homeland Security “that oversees lawful immigration to the United States.” (PSOF ¶5; see also https://www.uscis.gov/about-us/mission-and-core-values/what-we-do (last visited August 16, 2024)).

B. Libarov's Application for Adjustment of Status

On October 20, 2015, Libarov married Ms. Elizabeth Alonso Hernandez, who at the time was a legal permanent resident. (PSOAF ¶3; see also Dckt. #42 at 114). On March 15, 2016, Libarov filed a Form I-485 Application for Adjustment of Status (the “Application”) based on his marriage to Alonso Hernandez. (PSOAF ¶4). In December 2016, USCIS interviewed Libarov and Alonso Hernandez regarding the Application in its Miami office. (Id. ¶5). Over five years later, on March 15, 2022, USCIS issued a “Notice of Intent to Deny” (“Notice”) Libarov's Application. (Id. ¶7; Dckt. #42 at 112-13). According to the Notice, at the time of the 2016 interview, Alonso Hernandez executed a sworn statement in which she “admitted to being involved in a sham marriage [with Libarov] for immigration purposes.” (PSOAF ¶8). Specifically, Alonso Hernandez purportedly stated under penalty of perjury that she was seven months pregnant and in a relationship with the father of the child (not Libarov); never resided with Libarov; and was offered $10,000 to enter into the fraudulent marriage. (Id.). The Notice was not accompanied by any of Alonso Hernandez's sworn statements. (Id. ¶9).

In April 2022, Libarov responded to the Notice through counsel and requested production of all documents on which the Notice was based. (Id. ¶10). USCIS did not produce any such documents, and USCIS ultimately denied Libarov's Application on June 15, 2022. (Id. ¶11). The final denial provided more detail regarding Alonso Hernandez's statements, including that although she requested $10,000 to enter the sham marriage, Libarov only agreed to pay her $7,000. (Id.). Notwithstanding USCIS' denial of the Application, Libarov had not been placed in removal proceedings as of the filing of this lawsuit, and no criminal charges have been brought against him in connection with his marriage to Alonso Hernandez. (Id. ¶¶12-13).

C. Libarov's FOIA Request to ICE

On July 2, 2022, Libarov submitted a FOIA request to defendant ICE through counsel, seeking:

All forms, statements, notes, emails, text messages, investigative memoranda, electronically stores data, screenshots of DHS databases containing information and data, and all other documents and records pertinent to and/or relating in any way to [Libarov].

(PSOF ¶6).

Upon receipt of the request, ICE did not issue a tracking number. (Id. ¶7). Instead, ICE responded by email dated July 22, 2022, as follows:

You have directed a FOIA request to U.S. Immigration and Customs Enforcement (ICE) seeking either (1) copies of your entire immigration file also known as an alien file or A-file (ICE, CBP, OBIM, USCIS records), or (2) copies of certain documents or other information that is maintained in an individual's immigration file.

Complete immigration files are maintained by U.S. Citizenship and Immigration Services (USCIS). Accordingly, ICE is routing your FOIA request to USCIS. Upon receipt of your FOIA request, USCIS will provide you with a tracking number and respond directly to your request.

(Id. ¶8).

In her response later that same day, Libarov's attorney clarified that the FOIA request “is for ICE records, not USCIS records,” and that Libarov did not seek the A-File, as ICE claimed. (Id. ¶9). As such, plaintiff's counsel requested that ICE issue a tracking number and process the request. (Id.). By November 2022, ICE had still not responded to the FOIA request, and Libarov filed this FOIA action against ICE and USCIS. (Dckt. #1). In response, USCIS moved to dismiss the complaint against it based on Libarov's allegations that his FOIA request was for ICE records. (Dckt. #23).^[3] Following a hearing, the Court granted that motion and dismissed USCIS without prejudice, (Dckt. #29).

D. ICE's FOIA Procedures and Search for Responsive Documents

The following facts are taken from ICE's statement of material facts and are supported by the affidavit of ICE's FOIA Director Fernando Pineiro, (Dckt. #38 at 11-21). In response to almost every fact regarding ICE's general FOIA procedures and its search in this case, Libarov responds as follows: “Undisputed to the extent that the factual assertions in Fact [No. ] are contained in the Pineiro Declaration.” (See, e.g., Dckt. #42 at 2-3). As ICE points out, however, such a response is not sufficient to properly dispute a statement of fact. See N.D.Ill. Local Rule 56.1 (“To dispute an asserted fact, a party must cite specific evidentiary material that controverts the fact and must concisely explain how the cited material controverts the asserted fact. Asserted facts may be deemed admitted if not controverted with specific citations to evidentiary material.”). The Court, in its discretion, will enforce Local Rule 56.1 and deem these facts admitted.

According to the affidavit of FOIA Director Pineiro, when ICE receives a FOIA request, its FOIA office evaluates the request to determine if it is a proper request and, if so, enters the request into a database called FOIAXpress. (DSOF ¶5). Next, depending on the description of the records being sought, the FOIA office identifies the specific program office(s) that are reasonably likely to possess the responsive records, and tasks the appropriate office(s) with conducting the necessary searches. (Id. ¶6).

Upon receipt of a request from the FOIA office, the point-of-contact within a program office - based on their experience and knowledge of the program office's practices and operations - will forward the request to the specific employees or component offices that are reasonably likely to have responsive records. (Id. ¶7). The employees and component offices are then directed to conduct searches of their file systems that, in their judgment, are reasonably likely to contain the responsive records. (Id. ¶8). Once the searches are complete, the employees provide any potentially responsive records to the point-of-contact, who in turn provides them to the FOIA office, which reviews the records for responsiveness and any applicable FOIA ...