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Smith v. U.S. Immigration and Customs Enforcement

United States District Court, D. Colorado

April 5, 2017



          William J. Martinez United States District Judge

         In this action, Plaintiff Jennifer M. Smith ("Smith") seeks to enjoin U.S. Immigration and Customs Enforcement ("ICE") from continuing its self-described practice of denying requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, if those requests might assist a fugitive alien. (See ECF No. 32.) Currently before the Court is ICE's Motion to Dismiss [the] First Amended Complaint for Lack of Subject Matter Jurisdiction. (ECF No. 35.) For the reasons explained below, this motion is denied.

         I. BACKGROUND

         Smith's currently operative complaint is her First Amended Complaint (ECF No. 32). However, an understanding of Smith's Original Complaint (ECF No. 1) is necessary to evaluating the more-recent allegations and the current state of the case. The Court also draws certain facts from a declaration Smith submitted in support of an earlier filing (ECF No. 19-1; see also ECF No. 40 at 6 n.1). Cf. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (court may accept materials outside the pleadings when resolving a challenge to subject matter jurisdiction).

         Smith is an immigration attorney who represents a noncitizen client named Marta Alicia del Carmen Orellana Sanchez ("Ms. Sanchez"). (ECF No. 1 ¶ 8.) In May 2013, Smith submitted a FOIA request to United States Citizenship and Immigration Services ("CIS") for Ms. Sanchez's "Complete Alien File (A-File)" and various other records relating to any arrivals in or departures from the United States made by Ms. Sanchez since 2005. (Id. ¶¶ 11-12.) CIS notified Smith in August 2013 that it had located "18 . . . potentially responsive agency documents that may have originated from ICE." (Id. ¶ 14.) CIS further stated "that it 'referred' the 18 documents and a copy of Ms. Smith's FOIA request to ICE for consideration and a response." (Id.)

         More than two years later-in September 2015-ICE responded to Smith and declined to produce any records, explaining that Ms. Sanchez is deemed "a fugitive under the Immigration and Nationality Act, " and "[i]t is ICE's practice to deny fugitive alien FOIA requester's access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts." (Id. ¶ 16.) The Court will refer to this as the "Fugitive Practice." By November 2015, Smith had exhausted her agency appellate remedies. (Id. ¶ 20.) Smith filed this lawsuit on August 24, 2016, arguing that FOIA contains no exception that would justify the Fugitive Practice. (Id. ¶ 17.) Smith originally sought two forms of relief: (1) disclosure of Ms. Sanchez's records, and (2) an injunction forbidding ICE from continuing the Fugitive Practice. (See Id. at 7.)

         On September 27, 2016-a little over a month after Smith filed this lawsuit-ICE released Ms. Sanchez's file to Smith's litigation counsel. (ECF No. 13 ¶ 3; ECF No. 19-1 ¶ 9.) "No explanation was provided for the government's decision to provide the documents it had previously withheld, nor was there any mention of the government's practice under which it withheld the documents in the first place." (Id.) On that same day, however, ICE invoked the Fugitive Practice to deny a FOIA request Smith made related to a different client. (ECF No. 19-2.)

         These events prompted Smith to file her First Amended Complaint, which acknowledges that her claim specifically for Ms. Sanchez's records is now moot. (ECF No. 32 ¶ 4.) Smith emphasizes, however, that she continues to seek an injunction against the Fugitive Practice. The First Amended Complaint contains the following principal allegations in support of a subsisting claim for injunctive relief:

● "Ms. Smith has made (and in the future will continue to make) FOIA requests on a regular basis to various agencies of the Department of Homeland Security . . . ."
● ". . . in July 2015, another of Ms. Smith's FOIA requests was also denied by ICE based on the challenged practice. Ms. Smith appealed that denial, and on July 31, 2015, ICE denied the appeal, affirming the practice challenged in this case."
● "Because Ms. Smith regularly submits FOIA requests to the government that are related to non-citizen clients who may be deemed 'fugitives' by ICE, and because she plans to continue to do so in the future, the government's illegal practice subjects Ms. Smith to substantial likelihood of ongoing and/or future injury, both by depriving Ms. Smith of her rights under FOIA and by impairing Ms. Smith's ability to fully and effectively represent her clients."

(Id. ¶¶ 31, 32, 35.) Smith did not amend her complaint to include the most recent FOIA denial (on September 27, 2016), nor has she made the Court aware of any separate lawsuit related to that denial. Smith has also not made the Court aware whether she filed a lawsuit related to the July 2015 denial.

         ICE now moves to dismiss, claiming that Smith lacks Article III standing to seek an injunction against future applications of the Fugitive Practice because Smith has allegedly failed to show that such applications are "imminent."

         II. ...

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