United States District Court, D. Colorado
JENNIFER M. SMITH, Plaintiff,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant.
ORDER DENYING MOTION TO DISMISS
William J. Martinez United States District Judge
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.
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).
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
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.)
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
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.
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."