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Smith v. U.S. Immigration And Customs Enforcement

United States District Court, D. Colorado

December 16, 2019

Jennifer M. SMITH, Plaintiff,

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          Mark Silverstein, Sara R. Neel, American Civil Liberties Union, Daniel James Culhane, Daniel J. Culhane, LLC, Denver, CO, for Plaintiff.

          David Z. Moskowitz, Ian J. Kellogg, U.S. Attorney's Office, Denver, CO, for Defendant.


         William J. Martínez, United States District Judge.

         Plaintiff Jennifer M. Smith ("Smith") is an immigration attorney who frequently makes requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for information regarding her clients in the files of Defendant U.S. Immigration and Customs Enforcement ("ICE"). ICE has a policy of denying any FOIA request when made by or on behalf of a non-citizen whom ICE deems to be a "fugitive" under the immigration laws. Smith contends that this policy is facially unlawful under FOIA.

         Currently before the Court is ICE's Motion for Summary Judgment (ECF No. 84) and Smith's competing Motion for Summary Judgment (ECF No. 85). For the reasons explained below, the Court finds that Smith has standing to pursue this challenge and agrees with Smith that ICE's policy violates FOIA (although not always for precisely the same reasons that Smith advances). The Court will therefore grant Smith's motion to the extent stated in this order, deny ICE's motion, permanently enjoin ICE from applying its policy to withhold records, and direct entry of final judgment.


         A brief review of FOIA sets the stage for the facts, law, and arguments discussed below.

         When a party makes a FOIA request for federal agency records, the agency usually has twenty working days to "determine ... whether to comply with such request," and then it must inform the requester of its decision "and the reasons therefor." 5 U.S.C. § 552(a)(6)(A)(i).[1] The

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agency may refuse to disclose otherwise responsive records if those records fall within certain enumerated categories. See id. § 552(b). As relevant to this lawsuit, one of those categories is "records or information compiled for law enforcement purposes." Id. § 552(b)(7). But the agency may only invoke this exception "to the extent that the production of such law enforcement records or information" might lead to certain consequences, including that disclosure "could reasonably be expected to interfere with enforcement proceedings." Id. § 552(b)(7)(A). As the parties normally do, the Court will refer to this exception as "Exemption 7(A)."

         If a requesting party disagrees with the agency's withholding decision, the party may file an administrative appeal with the head of the agency. Id. § 552(a)(6)(A)(i)(III). If the appeal is unsuccessful, the party may file a lawsuit in federal district court. Id. § 552(a)(4)(B).[2] has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in [§ 552(b)], and the burden is on the agency to sustain its action.

         Id. The § 552(b) exemptions are "exclusive"—if the document is not properly withheld under one of them, it must be disclosed. Milner v. Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011).


         "FOIA actions are typically decided on motions for summary judgment." Info. Network for Responsible Min. v. BLM, 611 F.Supp.2d 1178, 1182 (D. Colo. 2009). Summary judgment is appropriate "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).

         In evaluating a FOIA summary judgment motion, "two guiding principles apply. First, FOIA is to be broadly construed in favor of disclosure. Second, its exemptions are to be narrowly circumscribed." Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). In other words, "disclosure, not secrecy, is [FOIA's] dominant objective." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotation marks omitted).

         In the rare case where a FOIA summary judgment motion reveals a genuine dispute of material fact—"material" in this context meaning a dispute on which the propriety of an exemption turns—then the Court may hold a bench trial to resolve that dispute. See Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016) (en banc); Brown v. Perez, 835 F.3d 1223, 1233 (10th Cir. 2016); Brown v. U.S. Dep't of Labor, 342 F.Supp.3d 1112, 1114 (D. Colo. 2018).

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         In this matter, it is impossible to judge the significance of factual agreements and disputes without setting them in their procedural context. The Court will therefore discuss the facts and procedural history together. The facts recounted below are undisputed unless attributed to a party or otherwise noted. The procedural history is, of course, a matter of record.

         A. Smith's Original FOIA Request

         Smith operates the Law Office of Jennifer M. Smith, P.C., in Glenwood Springs, Colorado. (ECF No. 84 at 6, ¶ 1; ECF No. 85-4 ¶ 2.)[3] In May 2013, she submitted a FOIA request to United States Citizenship and Immigration Services ("CIS") seeking the "Complete Alien File (A-File)" for, and "any and all records you may have" regarding, Marta Alicia del Carmen Orellana Sanchez ("Ms. Sanchez"), one of Smith's clients. (ECF No. 84 at 6, ¶¶ 2-4.) In August 2013, CIS responded that it had identified 52 pages of responsive records, some of which it released to Smith. (Id. ¶¶ 5-6; ECF No. 89 at 2, ¶ 6.)

         CIS's search efforts also located "potentially responsive records that may have originated with ICE." (ECF No. 84 at 6, ¶ 7.) CIS asked ICE to determine whether those records should be released, and it informed Smith of the referral to ICE. (Id. ¶ 8.)

         About two years later—in September 2015—ICE sent a letter to Smith announcing that it would not release any records because it deemed Ms. Sanchez to be a "fugitive":

ICE's records indicate that as of September 03, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE's practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts. The agency has reviewed the information sought in your request and has determined that there is a connection between that information and the subject of the request's status as a fugitive. The information you have requested and the fugitive status are both directly related to the Immigration and Nationality Act of the United States.

(Id. at 7, ¶ 9.) The letter did not invoke any specific FOIA exemption. (See ECF No. 15-3 at 2-3.) The letter was signed by a certain Ms. Stoney on behalf of Catrina M. Pavlik-Keenan, whose title is "FOIA Officer." (Id. at 3.)

         The "practice to deny fugitive alien FOIA requesters access to the FOIA process" was not a written policy, but it was nonetheless an established ICE practice at the time. (ECF No. 84 at 7, ¶ 10.) The Court will refer to this as the "Fugitive Practice."

         B. Early Proceedings in this Lawsuit

         1. Original & Amended Complaints

         Smith challenged the withholding under the Fugitive Practice through the required administrative channels and received no relief. (ECF No. 85 at 6, ¶ 7.) Smith then filed this lawsuit on August 24, 2016, arguing that FOIA contains no exception that would justify the Fugitive Practice. (ECF No. 1 ¶ 17.) Smith originally sought two forms of relief: (1) disclosure of Ms. Sanchez's records, and (2) a declaration "that defendant ICE's stated policy of denying access to records otherwise obtainable under

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the FOIA process pertaining to persons it deems to be `fugitive alien FOIA requesters' is in violation of the FOIA." (See id. at 7.)

         By letter dated September 27, 2016, Ms. Pavlik-Keenan (through a subordinate) "sent another letter to [Smith's] law office in response to a FOIA request related to [her] representation of a different client." (ECF No. 85 at 7, ¶ 11 (emphasis removed).) The letter was addressed to "Ms. Brown" (see ECF No. 19-2 at 1), whose identity and role ICE has repeatedly questioned (see ECF No. 35 at 4-5, 9 & n.5; ECF No. 46 at 3 & n.1; ECF No. 84 at 14 n.8; ECF No. 88 at 36 & n.11) but Smith has never explained (see generally ECF Nos. 40, 49, 85-4, 89, 90)—except it is clear that Ms. Brown can be reached by mail at the Law Office of Jennifer M. Smith, P.C. Using materially the same language employed in the letter regarding Ms. Sanchez's records, the letter to Ms. Brown invoked the Fugitive Practice to refuse release of records relating to this other client. (ECF No. 19-2 at 1.)

         The next day, September 28, 2016, Smith's attorney in this lawsuit "received an unannounced overnight delivery from an unfamiliar address in Maryland, which contained 20 pages of additional documents that were subsequently confirmed to be the missing portions of [Ms. Sanchez's] A-File." (ECF No. 85 at 7, ¶ 9.) ICE "provided no explanation for its decision to provide the documents it had previously withheld." (Id. ¶ 10.)

         These events prompted Smith to file her First Amended Complaint (still the currently operative complaint), acknowledging that her claim specifically for Ms. Sanchez's records was moot. (ECF No. 32 ¶ 4.) Smith instead pleaded that ICE has a "pattern or practice" of violating FOIA, and she requested that the Court "[p]ermanently enjoin ICE's stated `practice' of denying access to records otherwise obtainable under the FOIA process pertaining to persons it deems to be `fugitive alien FOIA requesters.'" (Id. at 8-9.) Smith also repeated her previous request for a declaratory judgment that the Fugitive Practice is unlawful. (Id. at 9.)

         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 denial directed at Ms. Brown, nor the July 2015 denial.

         2. Motion to Dismiss the Amended Complaint

         ICE moved to dismiss, claiming that Smith lacked Article III standing to seek an injunction against future applications of the Fugitive Practice because Smith allegedly failed to show that such applications

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were "imminent." (See ECF No. 35.) See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (standing to sue in federal court requires, among other things, "an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical" (internal quotation marks omitted)). ICE specifically stated that it was not arguing for mootness through voluntary cessation of challenged conduct (i.e., no longer invoking the Fugitive Practice to withhold Ms. Sanchez's A-File), but solely that Smith never had Article III standing to begin with. (ECF No. 41 at 9.)

         In resolving ICE's motion, the Court began by noting the different standards for evaluating Article III standing at different stages of the case: "`[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice.' By the summary judgment phase, however, `the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts.'" Smith v. U.S. Immigration & Customs Enf't, 249 F.Supp.3d 1203, 1206 (D. Colo. 2017) (ECF No. 45) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130) (alterations in original); see also id. at 1209 ("[T]he Court is mindful of Lujan's instruction that there is a difference between the standing inquiry at the pleading phase as compared to later phases of the case. This case, of course, remains in the pleading phase." (citation omitted)). In that light, the Court reasoned that Smith's allegations were adequate, if not "overwhelming":

Smith alleges that FOIA requests are an integral part of her practice as an immigration attorney because most of her clients are not legally savvy and therefore the client's A-File is often the only useful record of "[the] agency [the client] met with, and what type of interaction transpired, and what the legal issues may be." (ECF No. 32 ¶ 28.) Smith also alleges that she "regularly submits FOIA requests to the government that are related to non-citizen clients who may be deemed to be `fugitives' by ICE." (Id. ¶ 35.) Smith has also alleged three instances in which her FOIA requests have been denied based on the Fugitive Practice. (Id. ¶¶ 20, 29, 32.) Finally, ICE's own words establish that ICE indeed has a self-described "practice" denying FOIA requests that could assist a fugitive alien.

         ... The question is whether the allegations, taken together, establish a sufficient probability that Smith will have a future FOIA request rejected based on the Fugitive Practice.

Smith's case in this regard is not overwhelming. The fact that she "regularly" submits FOIA requests but has alleged only three instances of denial based on the Fugitive Practice is concerning. But again, there is no predetermined number of prior denials, combined with future intentions, that distinguishes a plaintiff with standing and one without. On this record at the pleading phase, the Court finds that Smith has presented a sufficiently "concrete" allegation of likely future harm based on the Fugitive Practice—sufficient, at least, to meaningfully "reduce the possibility of deciding a case in which no injury would have occurred at all." Lujan, 504 U.S. at 564 n.2, 112 S.Ct. 2130. Smith accordingly possesses Article III standing to pursue this lawsuit beyond the pleading phase.

Id. at 1209-10.

         C. Written Discovery

         The Court permitted limited discovery regarding the Fugitive Practice and Smith's likelihood that she would again be denied records on account of the Fugitive Practice. (See ECF No. 51.) On that latter

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topic, the Court permitted ICE to "inquire as to the planned date of any request, and may require Smith to link that planned request to a fictitious name corresponding to an actual or prospective client known to Smith (e.g., `Client A,' `Prospective Client 1')." (Id. at 1-2.)[4]

         In June 2017, ICE propounded an interrogatory as follows:

For all FOIA requests that Plaintiff or her law firm plan to submit to ICE or any other component of the Department of Homeland Security seeking records related to an actual or prospective non-citizen client, please provide a fictitious name (such as "Client A," or "Prospective Client 1") and the date of the planned request.

(ECF No. 84-8 at 2.) Smith's entire response was as follows: "Plaintiff anticipates filing FOIA requests on behalf of approximately five (5) prospective non-citizen clients each month from and after the date hereof, for the foreseeable future." (ECF No. 69-1 at 2.)

         It is not clear how Smith reached her five-clients-per-month estimate, and other discovery documents suggest a reasonable estimate would be lower. In particular, ICE propounded the following interrogatory:

For all FOIA requests submitted by Plaintiff or her law firm to ICE or any other component of the Department of Homeland Security seeking records related to a non-citizen client, please provide the date of the request, the name of the client, the client's A-File number, and the status of the request. (ECF No. 69-1 at 1-2.) Smith responded with a chart that reports FOIA requests submitted between January 2011 (see ECF No. 69-2 at 1) and June 2017 (see id. at 3, 5)—a span of 78 months. By the Court's count, the total number of clients for whom FOIA requests were filed was 141,[5] for an average of 1.8 per month. Of those, only three requests were denied on Fugitive Practice grounds. (See id. at 1 (entry for 06/01/2015), 2 (entry for 02/02/2016), and 4 (entry for 08/24/2015).) One of those denials was that related to Ms. Sanchez. (Id. at 4 (entry for 08/24/2015).) The other was that related to Ms. Brown's request. (Id. at 2 (entry for 02/02/2016).) The third was the July 2015 denial discussed in the amended complaint (see Part III.B.1, above), which turns out to have been a denial in name only. Smith or someone in her office (she uses the pronoun "we") sent a FOIA request to CIS, which produced documents and then referred the rest to ICE, which also produced documents—but when Smith sent a FOIA request to ICE directly, ICE invoked the Fugitive Practice. (ECF No. 69-1 at 1, 5.) In other words, when asked directly, ICE refused to release records it had already released when asked indirectly.

         D. Promulgation of the Standard Operating Procedure (SOP)

         In July 2017, ICE disclosed to Smith a new written policy to govern its treatment of FOIA requests that may implicate "fugitive" status. (ECF No. 84 at 7-8, ¶¶ 11, 15.)[6] The policy came from ICE's "Office of the Principal Legal Advisor," and was designated a "Standard Operating Procedure

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(SOP)" for "FOIA Requests Made By, or On Behalf of, Fugitive Aliens." (ECF No. 60-2 at 1.) The parties refer to this document simply as the "SOP," and the Court ...

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