Case: 3:19-cv-3512 As of: 01/28/2020 10:16 AM PST 1 of 9
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:19−cv−03512−WHO

ADRMOP

Nightingale et al v. U.S. Citizenship and Immigration Services et Date Filed: 06/19/2019

al

Jury Demand: None

Assigned to: Judge William H. Orrick

Nature of Suit: 895 Freedom of

Demand: $0

Information Act

Cause: 05:552 Freedom of Information Act

Jurisdiction: U.S. Government Defendant

Plaintiff

Zachary Nightingale

represented by Claudia Valenzuela American Immigration Council 1331 G Street NW Suite 200 Washington, DC 20005 202−507−7540 Email: cvalenzuela@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED

Emily Jamieson Creighton American Immigration Council 1331 G Street NW Suite 200 Washington, DC 20005 United Sta (202)507−7514 Email: ecreighton@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED

Leila Kang Northwest Immigrant Rights Project 615 2nd Ave. Ste. 400 Seattle, WA 98104 206−957−8608 Email: leila@nwirp.org TERMINATED: 01/13/2020 PRO HAC VICE

Mary A Kenney American Immigration Council 1331 G St. NW Suite 200 Washington, DC 20005 202−507−7512 Fax: 202−742−5619 Email: mkenney@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Hyrum Adams Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 206−957−8611 Fax: 206−587−4025 Email: matt@nwirp.org PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:19-cv-3512 As of: 01/28/2020 10:16 AM PST 2 of 9

Plaintiff Courtney McDermed
Plaintiff Cheryl David

Stacy Eva Tolchin Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A Los Angeles, CA 94104 213−622−7450 Fax: 213−622−7233 Email: stacy@tolchinimmigration.com ATTORNEY TO BE NOTICED
Trina Ann Realmuto American Immigration Council 1318 Beacon Street Suite 18 Brookline, MA 02446 United Sta 857−305−3600 Email: trealmuto@immcouncil.org ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Jamieson Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leila Kang (See above for address) TERMINATED: 01/13/2020 PRO HAC VICE
Mary A Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Eva Tolchin (See above for address) ATTORNEY TO BE NOTICED
Trina Ann Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Jamieson Creighton (See above for address) ATTORNEY TO BE NOTICED

Case: 3:19-cv-3512 As of: 01/28/2020 10:16 AM PST 3 of 9

Plaintiff Pao Lopa
Plaintiff Maribel Carandang

Leila Kang (See above for address) TERMINATED: 01/13/2020 PRO HAC VICE
Mary A Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Eva Tolchin (See above for address) ATTORNEY TO BE NOTICED
Trina Ann Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Jamieson Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leila Kang (See above for address) TERMINATED: 01/13/2020 PRO HAC VICE
Mary A Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Eva Tolchin (See above for address) ATTORNEY TO BE NOTICED
Trina Ann Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Jamieson Creighton

Case: 3:19-cv-3512 As of: 01/28/2020 10:16 AM PST 4 of 9
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leila Kang (See above for address) TERMINATED: 01/13/2020 PRO HAC VICE
Mary A Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacy Eva Tolchin (See above for address) ATTORNEY TO BE NOTICED
Trina Ann Realmuto (See above for address) ATTORNEY TO BE NOTICED

V. Defendant U.S. Citizenship and Immigration Services
Defendant U.S. Immigration and Customs Enforcement
Defendant

represented by Cristen Cori Handley U.S. Department of Justice Civil Division Federal Programs 1100 L Street NW Washington, DC 20005 202−305−2677 Email: cristen.handley@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha S. Edney Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Rm. 7148 Washington, DC 20530 (202) 514−4520 Email: marsha.edney@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cristen Cori Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha S. Edney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:19-cv-3512 As of: 01/28/2020 10:16 AM PST 5 of 9

U.S. Department of Homeland Security

represented by Cristen Cori Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha S. Edney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/19/2019
06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019 06/19/2019
06/20/2019
06/20/2019
06/28/2019
07/01/2019

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971−13449903.). Filed byZachary Nightingale, Pao Lopa, Cheryl David, Courtney McDermed, Maribel Carandang. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
2 Civil Cover Sheet by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale . (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
3 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
4 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
5 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
6 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
7 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
8 NOTICE of Appearance by Stacy Eva Tolchin as co−counsel (Tolchin, Stacy) (Filed on 6/19/2019) (Entered: 06/19/2019)
9 Case assigned to Magistrate Judge Laurel Beeler.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 7/3/2019. (ajsS, COURT STAFF) (Filed on 6/19/2019) (Entered: 06/19/2019)
10 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 9/12/2019. Initial Case Management Conference set for 9/19/2019 11:00 AM in San Francisco, Courtroom B, 15th Floor. (fabS, COURT STAFF) (Filed on 6/20/2019) (Entered: 06/20/2019)
11 Summons Issued as to U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(fabS, COURT STAFF) (Filed on 6/20/2019) (Entered: 06/20/2019)
12 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: Initial Case Management Conference previously set for 9/19/2019 is reset to 10/10/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. Case Management Statement due by 10/3/2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 6/28/2019) (Entered: 06/28/2019)
13 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale..

Case: 3:19-cv-3512 As of: 01/28/2020 10:16 AM PST 6 of 9

07/01/2019
07/02/2019 07/02/2019
07/03/2019 07/08/2019 07/08/2019 07/23/2019 07/23/2019 07/29/2019 07/29/2019 07/30/2019 07/31/2019

(Realmuto, Trina) (Filed on 7/1/2019) (Entered: 07/01/2019)
14 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE−NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ejkS, COURT STAFF) (Filed on 7/1/2019) (Entered: 07/01/2019)
15 CLERK'S NOTICE Re: Motion to Relate Cases (lrcS, COURT STAFF) (Filed on 7/2/2019) (Entered: 07/02/2019)
16 ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge William H. Orrick for all further proceedings. Magistrate Judge Laurel Beeler no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by Clerk on 7/2/19. (Attachments: # 1 Notice of Eligibility for Video Recording)(as, COURT STAFF) (Filed on 7/2/2019) (Entered: 07/02/2019)
17 AFFIDAVIT of Service for Summons, Complaint, and case initiating documents served on Defendants, Attorney General William Barr, and US Attorney's Office for the Northern District of California on June 25, 2019, filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 7/3/2019) (Entered: 07/03/2019)
18 CASE MANAGEMENT CONFERENCE ORDER − Case Management Conference set for 9/10/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 9/3/2019. Signed by Judge William H. Orrick on 07/08/2019. (jmdS, COURT STAFF) (Filed on 7/8/2019) (Entered: 07/08/2019)
19 CERTIFICATE OF SERVICE by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale of Case Management Conference Order and Judge Orrick's Standing Order for Civil Cases (Realmuto, Trina) (Filed on 7/8/2019) (Entered: 07/08/2019)
20 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13543976.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Kang, Leila) (Filed on 7/23/2019) (Entered: 07/23/2019)
21 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13545417.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Adams, Matthew) (Filed on 7/23/2019) (Entered: 07/23/2019)
22 Order by Judge William H. Orrick granting 20 Motion for Pro Hac Vice by Leila Kang. (jmdS, COURT STAFF) (Filed on 7/29/2019) (Entered: 07/29/2019)
23 Order by Judge William H. Orrick granting 21 Motion for Pro Hac Vice by Matt Adams. (jmdS, COURT STAFF) (Filed on 7/29/2019) (Entered: 07/29/2019)
24 NOTICE of Appearance by Cristen Cori Handley (Handley, Cristen) (Filed on 7/30/2019) (Entered: 07/30/2019)
25 ANSWER to Complaint by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Handley, Cristen) (Filed on 7/31/2019) Modified on 8/1/2019 (amgS, COURT STAFF). (Entered: 07/31/2019)

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08/02/2019 08/05/2019 08/08/2019
08/15/2019 08/15/2019 08/19/2019 08/22/2019 08/29/2019 08/29/2019 09/03/2019 09/05/2019

26 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13575738.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Kenney, Mary) (Filed on 8/2/2019) Modified on 8/6/2019 (aaa, COURT STAFF). (Entered: 08/02/2019)
27 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13581757.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Certificate of Good Standing)(Creighton, Emily) (Filed on 8/5/2019) Modified on 8/6/2019 (aaa, COURT STAFF). (Entered: 08/05/2019)
28 MOTION to Certify Class filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. Motion Hearing set for 10/2/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 8/22/2019. Replies due by 8/29/2019. (Attachments: # 1 Index of Exhibits, # 2 Declaration First Realmuto Dec., # 3 Declaration Nightingale Dec. and attachment, # 4 Declaration David Dec., # 5 Declaration McDermed Dec., # 6 Declaration Abrutyn Dec., # 7 Declaration Cleveland Dec., # 8 Declaration Hall Dec., # 9 Declaration Asch Dec., # 10 Declaration Taurel Dec. and attachment, # 11 Declaration Ellison Dec., # 12 Declaration Hansen Dec., # 13 Declaration Lee Dec., # 14 Declaration Falgout Dec., # 15 Declaration Dobrin Dec. and attachments, # 16 Declaration Phelps Dec., # 17 Declaration Second Realmuto Dec., # 18 Declaration Kenney Dec., # 19 Declaration Adams Dec., # 20 Declaration Tolchin Dec., # 21 Exhibit Lopa FOIA Status Check, # 22 Exhibit Carandang FOIA Status Check, # 23 Proposed Order)(Realmuto, Trina) (Filed on 8/8/2019) (Entered: 08/08/2019)
29 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13613235.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Certificate of Good Standing)(Valenzuela, Claudia) (Filed on 8/15/2019) Modified on 8/16/2019 (aaaS, COURT STAFF). (Entered: 08/15/2019)
30 MOTION to Continue Defendants' Deadline to Respond to Plaintiffs' Motion for Class Certification filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proposed Order)(Handley, Cristen) (Filed on 8/15/2019) (Entered: 08/15/2019)
31 OPPOSITION/RESPONSE (re 30 MOTION to Continue Defendants' Deadline to Respond to Plaintiffs' Motion for Class Certification ) filed byMaribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Declaration Third Realmuto Dec.)(Realmuto, Trina) (Filed on 8/19/2019) (Entered: 08/19/2019)
32 ORDER GRANTING 30 MOTION TO CONTINUE DEFENDANTS' DEADLINE TO RESPOND TO PLAINTIFFS' 28 MOTION FOR CLASS CERTIFICATION − Response due by 9/5/2019. Signed by Judge William H. Orrick on 08/22/2019. (jmdS, COURT STAFF) (Filed on 8/22/2019) (Entered: 08/22/2019)
33 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Realmuto, Trina) (Filed on 8/29/2019) (Entered: 08/29/2019)
34 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Handley, Cristen) (Filed on 8/29/2019) (Entered: 08/29/2019)
35 JOINT CASE MANAGEMENT STATEMENT & [PROPOSED] ORDER ; filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 9/3/2019) Modified on 9/4/2019 (aaaS, COURT STAFF). (Entered: 09/03/2019)
36 OPPOSITION/RESPONSE (re 28 MOTION to Certify Class ) filed byU.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Jill A. Eggleston, # 2 Declaration of Toni Fuentes)(Handley, Cristen) (Filed on 9/5/2019) (Entered: 09/05/2019)

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09/06/2019 09/09/2019 09/09/2019 09/09/2019 09/11/2019 09/12/2019 10/01/2019
10/07/2019 10/09/2019 10/11/2019
10/15/2019 10/17/2019

37 CLERK'S NOTICE − Case Management Conference continued to 10/2/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor (to coincide with motion hearing). (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 9/6/2019) (Entered: 09/06/2019)
38 Order by Judge William H. Orrick granting 27 Motion for Pro Hac Vice by Emily J. Creighton. (jmdS, COURT STAFF) (Filed on 9/9/2019) (Entered: 09/09/2019)
39 Order by Judge William H. Orrick granting 29 Motion for Pro Hac Vice by Claudia Valenzuela. (jmdS, COURT STAFF) (Filed on 9/9/2019) (Entered: 09/09/2019)
40 Order by Judge William H. Orrick granting 26 Motion for Pro Hac Vice by Mary Kenney. (jmdS, COURT STAFF) (Filed on 9/9/2019) (Entered: 09/09/2019)
41 CLERK'S NOTICE ADVANCING HEARING − Hearing as to 28 MOTION to Certify Class and Initial Case Management Conference reset for 10/1/2019 03:00 PM in San Francisco, Courtroom 02, 17th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 9/11/2019) (Entered: 09/11/2019)
42 REPLY (re 28 MOTION to Certify Class ) filed byMaribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 9/12/2019) (Entered: 09/12/2019)
43 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 10/1/2019 re 28 MOTION to Certify Class. Motion taken under submission; written order to follow. Further Case Management Conference set for 1/21/2020 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 1/14/2020. Total Time in Court: 36 minutes. Court Reporter: Ruth Levine Ekhaus. (jmdS, COURT STAFF) (Date Filed: 10/1/2019) (Entered: 10/03/2019)
44 TRANSCRIPT ORDER for proceedings held on 10/1/2019 before Judge William H. Orrick by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale, for Court Reporter Ruth Ekhaus. (Kang, Leila) (Filed on 10/7/2019) (Entered: 10/07/2019)
45 TRANSCRIPT ORDER for proceedings held on 10/01/2019 before Judge William H. Orrick by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, for Court Reporter Ruth Ekhaus. (Handley, Cristen) (Filed on 10/9/2019) (Entered: 10/09/2019)
46 Transcript of Proceedings held on 10/01/19, before Judge William H. Orrick. Court Reporter Ruth Levine Ekhaus, RDR, FCRR, CSR No. 12219, telephone number (415)336−5223/ruth_ekhaus@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 45 Transcript Order, ) Release of Transcript Restriction set for 1/9/2020. (Related documents(s) 45 ) (rreS, COURT STAFF) (Filed on 10/11/2019) (Entered: 10/11/2019)
47 ORDER GRANTING CLASS CERTIFICATION by Judge William H. Orrick granting 28 Motion to Certify Class. (jmdS, COURT STAFF) (Filed on 10/15/2019) (Entered: 10/15/2019)
48 CORRECTED Transcript of Proceedings held on 10/1/19, before Judge William H. Orrick. Court Reporter Ruth Levine Ekhaus, RDR, FCRR, CSR No. 12219, telephone number (415)336−5223/ruth_ekhaus@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 45 Transcript Order, 44 Transcript Order ) Release of Transcript Restriction set for 1/15/2020. (Related

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12/10/2019
01/13/2020 01/14/2020 01/15/2020 01/21/2020

documents(s) 45 , 44 ) (rreS, COURT STAFF) (Filed on 10/17/2019) (Entered: 10/17/2019)
49 MOTION to Withdraw as Attorney for Plaintiffs filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. Motion Hearing set for 1/21/2020 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 12/24/2019. Replies due by 12/31/2019. (Attachments: # 1 Proposed Order)(Kang, Leila) (Filed on 12/10/2019) (Entered: 12/10/2019)
50 Order by Judge William H. Orrick granting 49 Motion to Withdraw as Attorney by Leila Kang. (jmdS, COURT STAFF) (Filed on 1/13/2020) (Entered: 01/13/2020)
51 CASE MANAGEMENT STATEMENT (Joint) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Exhibit Defs' Response to Pls First Set of ROGs, # 2 Exhibit Defs' Response to Pls First Set of RFPs)(Realmuto, Trina) (Filed on 1/14/2020) (Entered: 01/14/2020)
52 NOTICE of Appearance by Marsha S. Edney (Edney, Marsha) (Filed on 1/15/2020) (Entered: 01/15/2020)
53 Minute Entry for proceedings held before Judge William H. Orrick: Case Management Conference held on 1/21/2020. Motion Hearing set for 12/9/2020 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. FTR Time: 2:15−2:22. (jmdS, COURT STAFF) (Date Filed: 1/21/2020) (Entered: 01/21/2020)

 
 Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 1 of 22

1 Trina Realmuto (CA SBN 201088) American Immigration Council
2 1318 Beacon Street, Suite 18 3 Brookline, MA 02446
Telephone: (857) 305-3600 4 Facsimile: (202) 742-5619
Email: trealmuto@immcouncil.org 5
(Additional Counsel for Plaintiffs Listed on the Following Page) 6

7

8

UNITED STATES DISTRICT COURT FOR THE

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO/OAKLAND DIVISION

11

12 Zachary NIGHTINGALE; Courtney

Case No. ___________

McDERMED; Cheryl DAVID; Pao LOPA; 13 Maribel CARANDANG,

14

Plaintiffs,

Complaint for Declaratory and Injunctive Relief Under

15 v.

the Freedom of Information Act

16

U.S. CITIZENSHIP AND IMMIGRATION SERVICES; Class Action 17 U.S. IMMIGRATION AND CUSTOMS

18

ENFORCEMENT; U.S. DEPARTMENT OF HOMELAND SECURITY,

19 Defendants.
20

21

22

23

24

25

26

27

28

Complaint for Decl. and Inj. Relief

Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 2 of 22

1 (counsel for Plaintiffs continued)

2 Stacy Tolchin (CA SBN 217431) 3 Law Offices of Stacy Tolchin
634 S. Spring St., Suite 500A 4 Los Angeles, CA 90014
Telephone: (213) 622-7450 5 Facsimile: (213) 622-7233
Email: Stacy@Tolchinimmigration.com 6
7 Matt Adams (WSBA No. 28287)* Northwest Immigrant Rights Project
8 615 Second Avenue, Suite 400 Seattle, WA 98104
9 Telephone: (206) 957-8611 Facsimile: (206) 587-4025
10 Email: matt@nwirp.org

11 Mary Kenney (DC 1044695)*

Claudia Valenzuela (IL 6279472)* 12 Emily Creighton (DC 1009922)*

13

American Immigration Council 1331 G Street NW, Suite 200

14 Washington, DC 20005 Telephone: (202) 507-7512

15 Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org 16 cvalenzuela@immcouncil.org

17 ecreighton@immcouncil.org

18 Counsel for Plaintiffs

19 *Applications for admission pro hac vice forthcoming

20

21

22

23

24

25

26

27

28

Complaint for Decl. and Inj. Relief

Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 3 of 22

1

INTRODUCTION

2

1. Plaintiffs are three immigration attorneys and two noncitizens who filed Freedom

3 of Information Act (“FOIA”) requests for individual immigration case files, also known as Alien
4 Registration Files or A-Files. These A-File FOIA requests are pending with Defendants U.S.
5
Citizenship and Immigration Services (“USCIS”) or U.S. Immigration and Customs Enforcement 6

7 (“ICE”), both component agencies within the U.S. Department of Homeland Security (“DHS”).

8 Defendants have failed to make determinations within the statutory timeframe mandated by the

9 FOIA statute. 5 U.S.C. § 552(a)(6)(A), (B). Instead, Plaintiffs and the classes of similarly
10 situated FOIA requesters they seek to represent must wait for prolonged periods—generally
11 months—before receiving complete A-Files.
12 2. A-Files contain information that is critical to determining noncitizens’ eligibility
13 14 to apply for an immigration benefit or status, including lawful permanent resident status, or to
15 defend against deportation. The ability to do either is stymied for as long as an individual’s A-

16 File FOIA request continues to linger—unprocessed—at USCIS or ICE.

17

3. Plaintiffs seek to represent two nationwide classes of similarly situated

18 individuals to challenge Defendants’ pattern or practice of violating the FOIA statute in making
19 timely determinations: (1) all individuals who filed, or will file, A-File FOIA requests with
20 USCIS which have been pending, or will be pending, with USCIS for more than 30 business
21
22 days without a determination; and (2) all individuals who filed, or will file, A-File FOIA requests

23 with USCIS that USCIS has referred, or will refer, to ICE and which have been pending, or will

24 be pending, for more than 30 business days from the date of the initial filing with USCIS without
25 a determination.
26 4. Defendants USCIS and ICE both have FOIA backlogs which contribute to delays
27 in processing A-File FOIA requests. FOIA backlogs are defined as “[t]he number of requests or
28

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Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 4 of 22

1 administrative appeals that are pending at an agency at the end of the fiscal year that are beyond

2 the statutory time period for a response.”1
3 5. Neither agency has allocated sufficient resources to the handling of FOIA
4 requests. Defendant DHS is aware of these backlogs and has not acted to reduce them.
5 6. Plaintiffs and members of the proposed classes they seek to represent suffer harm
6
7 due to Defendants’ failure to make timely determinations on their A-File FOIA requests. Without

8 the information that they have requested through FOIA, Plaintiffs lack the documentation needed

9 to assess their or their clients’ immigration history. This history includes past applications or
10 petitions filed with USCIS and past interactions with DHS enforcement agencies, which are
11 often critical to assessing immigration options and potential defenses against deportation.
12 7. Defendants’ delays also prevent Plaintiffs and members of the proposed classes
13 14 from moving forward with petitions and applications for which they or their clients may be
15 eligible. This causes unnecessary emotional and financial hardship for individuals left in legal

16 limbo while they wait to obtain the records that hold the key to assessing their immigration

17 options in the United States.

18

8. Due to Defendants’ delays and the ensuing harm they cause, Plaintiffs seek class

19 certification, declaratory relief, and injunctive relief ordering USCIS and ICE to respond to A-
20 File FOIA requests and referrals, respectively, which have been pending for more than 30
21

22 business days without a determination and ordering USCIS and ICE to make timely

23 determinations as required by FOIA. 5 U.S.C. § 552(a)(3), (a)(6).

24

25

26 1

DHS, 2018 Freedom of Information Report to the Attorney General of the United States

27 and the Director of the Office of Government Information Services (“FY 2018 DHS FOIA Report”) vii (2019),

28 https://www.dhs.gov/sites/default/files/publications/DHS%20FY2018%20FOIA%20Report.pdf.

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1

JURISDICTION AND VENUE

2

9. This Court has jurisdiction under 5 U.S.C. § 552, et seq. (FOIA statute), 28

3 U.S.C. § 1331 (federal question), and 28 U.S.C. §§ 2201-2202 (Declaratory Judgment Act).
4 10. Venue is proper under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e)(1)
5
because this is a civil action in which Defendants are federal agencies; Plaintiffs Nightingale, 6

7 McDermed, and Carandang reside in this District; and there is no real property involved in this

8 action.

9

11. Defendants’ failure to make determinations concerning Plaintiffs’ requests for A-

10 Files within the statutory time period constitutes a constructive denial of Plaintiffs’ requests. Thus,

11 Plaintiffs are deemed to have exhausted their administrative remedies. 5 U.S.C. § 552(a)(6)(C)(i).
12 INTRADISTRICT ASSIGNMENT
13

14

12. The claims of Plaintiff Nightingale arise in the county of San Francisco, in the city

15 of San Francisco. Therefore, assignment to the San Francisco Division of this Court is proper under

16 N.D. Local Rule 3-2(d).

17

PARTIES

18

13. Plaintiff Zachary Nightingale is an immigration attorney with an office in San

19 Francisco, California. He has multiple numerous A-File FOIA requests filed with USCIS on
20 behalf of his clients that have been pending for over 30 business days. USCIS has referred many
21

22 of his clients’ A-File FOIA requests to ICE, and several of these referrals have been pending for

23 over 30 business days.

24

14. Plaintiff Courtney McDermed is an immigration attorney with an office in

25 Oakland, California. She currently has multiple A-File FOIA requests filed with USCIS on
26 behalf of her clients that have been pending for over 30 business days. USCIS has referred many
27 of her A-File FOIA requests to ICE, and several of these referrals have been pending for over 30
28

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1 business days.

2

15. Plaintiff Cheryl David is an immigration attorney with an office in New York,

3 New York. She currently has multiple A-File FOIA requests filed with USCIS on behalf of her
4 clients that have been pending for over 30 business days. USCIS has referred many of her A-File
5
FOIA requests to ICE, and at least two of these referrals have been pending for over 30 business 6

7 days.

8

16. Plaintiff Pao Lopa resides in University Place, Washington. He currently has an

9 A-File FOIA request filed with USCIS that has been pending for over seven months.

10

17. Plaintiff Maribel Carandang resides in Freemont, California. She currently has an

11 A-File FOIA request that USCIS referred to ICE. The request has been pending with USCIS
12 and/or ICE for over thirteen months.
13

14

18. Defendant USCIS is a component agency of DHS and is an agency within the

15 meaning of 5 U.S.C. § 552(f)(1). Among other duties, USCIS is responsible for adjudicating

16 petitions and applications for certain immigration benefits in the United States. USCIS has in its

17 possession, custody, and control Alien Registration Files, also known as A-Files.

18

19. Defendant ICE is a component agency of DHS and is an agency within the

19 meaning of 5 U.S.C. § 552(f)(1). ICE is responsible for enforcing federal laws governing border
20 control, customs, trade, and immigration. ICE has in its possession, custody, and control
21

22 documents encompassed in Alien Registration Files, also known as A-Files.

23

20. Defendant DHS is an executive agency of the United States and an agency within

24 the meaning of 5 U.S.C. § 552(f)(1). Its responsibilities include enforcement and administration
25 of the immigration laws of the United States. USCIS and ICE are component agencies within
26 DHS. DHS has ultimate responsibility for ensuring that its components comply with the law,
27 including the FOIA.
28

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1

FACTUAL ALLEGATIONS

2

USCIS’s and ICE’s FOIA Processing Times and Backlog

3 21. The statutory time period for a determination on a FOIA response is 20 business
4 days. 5 U.S.C. § 552(a)(6)(A)(i).
5
22. An agency may invoke an additional 10 business days to make a determination in 6

7 the case of “unusual circumstances.” 5 U.S.C. § 552(a)(6)(B)(i).

8

23. USCIS has a pattern or practice of failing to comply with these statutory

9 deadlines. USCIS’s FOIA backlog—which has more than doubled between FY 2015 and FY

10 2017—is evidence of this pattern or practice. In FY 2015, the USCIS FOIA backlog stood at

11 16,247.2 In FY 2017, the backlog had grown to 37,877.3 By the end of FY 2018, USCIS reported
12 a backlog of 41,329 pending requests.4
13

14

24. There was no corresponding increase in FOIA requests to account for this

15 increase in the backlog. In fact, the growth in number of requests during FY 2018 was less than

16 one percent.5 In the past decade, when USCIS experienced small increases in FOIA requests, it

17 was able to significantly reduce the size of its backlog. In contrast, over the past few years, when
18 USCIS has experienced only incremental increases in requests, the backlog has continued to 19
grow. 20
25. USCIS’s FOIA backlog now exceeds the backlog of any other DHS component. 21

22

23
2

DHS Privacy Office, 2015 Freedom of Information Report to the Attorney General of the

24 United States 18 (2016), https://www.dhs.gov/sites/default/files/publications/dhs-foia-annual-

report-fy-2015.pdf.

25 3

DHS, 2017 Freedom of Information Report to the Attorney General of the United States

26

and the Director of the Office of Government Information Services 17 (2018), https://www.dhs.gov/sites/default/files/publications/FY%202017%20DHS%20FOIA%20Annual

27 %20Report.pdf.

4

FY 2018 DHS FOIA Report, at 19.

28 5

FY 2018 DHS FOIA Report, at 21.

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1 In FY 2018, the DHS component agency with the second largest FOIA backlog after USICS was

2 CBP at 6,600 cases.6 USCIS’s backlog is over 6 times that of CBP.
3 26. According to USCIS, the average current A-File FOIA request processing time
4 exceeds the statutory deadline. Although there are slight variations in processing times from day
5 to day, the average processing time for an A-File FOIA request was between 55 and 90 days, not
6
7 including appeals, on the date of filing this Complaint.7 By its own public accounting, USCIS is

8 in violation of the FOIA statute. This time range does not include the large number of FOIA

9 requests referred from USCIS to ICE, which often extends the processing times by months.

10

27. When USCIS finally responds to A-File FOIA requests, it routinely fails to

11 produce the entire A-File. Rather, USCIS refers portions of responsive A-Files to ICE for it to
12 make a determination about disclosure pursuant to regulations providing that an agency “may
13

14 refer the responsibility for responding to the request or portion of the request to the component or

15 agency best able to determine whether to disclose the relevant records, or to the agency that

16 created or initially acquired the record as long as that agency is subject to the FOIA.”

17 Responsibility for Responding to Requests, 6 C.F.R. § 5.4(d)(3) (2019).

18

28. Even when USCIS transfers the responsibility for making a determination

19 regarding an A-File FOIA request to ICE, the regulations make clear that “[a]ll . . . referrals
20 received by DHS will be handled according to the date that the FOIA request initially was
21

22 received by the first component or agency, not any later date.” Responsibility for Responding to

23 Requests, 6 C.F.R. § 5.4(g) (2019).

24

29. Nonetheless, following a referral from USCIS, ICE regularly exceeds the 20-

25

26

27 6
7

Id. Check Status of FOIA Request, USCIS, https://first.uscis.gov/#/check-status (last visited

28 June 19, 2019).

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1 business day statutory timeframe for making determinations on A-File FOIA requests. ICE must

2 treat the referred request as having been received on the date it was received by USCIS, but it
3 routinely fails to make a determination before the statutory deadline.
4 30. As of the close of FY 2018, ICE’s FOIA backlog was 1,332.8 However, as
5 reported in the FY 2018 DHS FOIA Report, ICE did not provide an accurate accounting of the
6
7 USCIS FOIA referrals it receives. In its report, DHS noted that “[d]ue to a tracking error, ICE
8 did not account for 17,043 referrals that it received from USCIS during the reporting period.”9

9 Thus, ICE’s FOIA backlog is higher than its public reporting.

10

31. In an April 2012 report, the Government Accountability Office (“GAO”)

11 determined that the referral process between USCIS and ICE resulted in inefficiencies.
12 Specifically, the referral process often results in an unnecessary duplication of efforts, which
13
14 increases costs (and processing times) in responding to FOIA requests.10

15

32. To address these deficiencies, GAO recommended that USCIS and ICE assess the

16 viability of renewing a prior agreement that had permitted USCIS to process FOIA requests that

17 included documents originating with ICE, such as A-File FOIA requests.11 On information and
18 belief, to date, USCIS and ICE have not entered into any new agreements that would address the 19
GAO’s key recommendation. 20
33. USCIS has failed to make determinations on Plaintiffs’ A-File FOIA requests 21 22 within the timeframe required by statute. Exceptional circumstances do not justify USCIS’s
23 delay in processing Plaintiffs’ and proposed class members’ A-File FOIA requests.

24

25 8

FY 2018 DHS FOIA Report, at 19.

9
26 10

Id. at 6. U.S. Gov’t Accountability Office, GAO-15-82, FOIA: DHS Should Take Steps to

27 Improve Cost Reporting and Eliminate Duplicate Processing 22, Figure 2 (2014), 20-21 https://www.gao.gov/assets/670/667052.pdf.

28 11 Id. at 33.

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1

34. USCIS has failed to allocate sufficient resources to address its FOIA backlog.

2 USCIS does not allocate sufficient budgetary resources, nor does it allocate or hire a sufficient
3 number of employees, to address the backlog.
4 35. ICE has failed to make timely determinations on Plaintiffs’ requests for A-Files
5 that USCIS has referred to it. Exceptional circumstances do not justify ICE’s delay in processing
6
7 Plaintiffs’ and proposed class members’ A-File FOIA requests.

8

36. ICE has failed to allocate sufficient resources to address its FOIA backlog. ICE

9 does not allocate sufficient budgetary resources, nor does it allocate or hire a sufficient number

10 of employees, to address the backlog.
11 37. As such, Defendants USCIS’s and ICE’s backlogs demonstrate the existence of a
12 pattern or practice of each agency failing to make determinations on FOIA requests within the
13
14 statutory time period.

15

38. Defendant DHS holds ultimate responsibility for USCIS’s and ICE’s pattern or

16 practice of failing to make timely determinations in response to A-File FOIA requests. Defendant

17 DHS reports on FOIA backlogs of its components after the close of each fiscal year. Fully aware

18 of these backlogs, Defendant DHS failed to ensure that its components made reasonable progress
19 in clearing out their backlogs to ensure timely determinations in response to A-File FOIA
20 requests. DHS further failed to ensure that sufficient resources are allocated by each component
21
22 to address their FOIA backlogs.

23

39. In 2015, DHS, and another one of its component agencies, U.S. Customs and

24 Border Protection (“CBP”), were sued in this District over a similar nationwide pattern or
25 practice of failing to timely respond to FOIA requests. See Brown v. CBP, 132 F. Supp. 3d 1170
26 (N.D. Cal. 2015). That case ultimately settled after CBP decreased its backlog significantly over
27 the course of the litigation. However, in denying the government’s motion to dismiss that action,
28

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Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 11 of 22

1 this Court found that the plaintiffs had “describe[d] a longstanding and pervasive practice of
2 unreasonable delay in CBP’s response to FOIA requests” and that DHS and CBP’s failure to
3 meet the statutory response deadline was an “actionable violation of FOIA.” Id. at 1172, 1174.
4 The present lawsuit makes similar claims and seeks similar relief.
5 40. Defendants’ position is that 5 U.S.C. § 552(a)(6)(A)(i) does not impose an
6
7 affirmative obligation or require the agency to make a determination within the 20-business day
8 specified statutory timeframe.

9

Harm to Plaintiffs and Proposed Class Members

10

41. A-Files contain critical information for immigration cases. An individual’s

11 immigration history—including the individual’s past interactions with immigration agencies and
12 petitions and/or applications previously filed by or on behalf of the individual—affects his or her
13

14 eligibility for immigration benefits in the United States. This history also can significantly

15 impact the ability of individuals in removal proceedings to defend against deportation. Without

16 it, individuals in removal proceedings are at a disadvantage. Defendant DHS, the prosecuting

17 entity in these proceedings, has access to their entire immigration history, including
18 documentation individuals may need to dispute allegations or charges against them as well as 19
documentation that would enable them to qualify for relief from deportation. 20
42. Ascertaining the contents and disposition of past petitions or applications for 21 22 immigration benefits is often necessary to determine an individual’s eligibility for immigration
23 benefits or relief, and provides critical information needed to accurately and fully complete

24 relevant application forms.

25

43. For example, some individuals may be eligible to apply for lawful permanent

26 resident status while inside the United States if an immigrant visa petition was filed on their
27 behalf by a qualifying family member prior to April 30, 2001. See 8 U.S.C. § 1255(i). An A-File
28

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1 would contain evidence of any such petition. Absent such evidence, an individual would be

2 forced to leave the United States and wait in his or her country of origin for up to a year (or

3 longer) in order to immigrate to the United States. For individuals facing deportation, evidence
4 of a qualifying immigrant visa petition would permit them to defend against deportation by
5
applying to adjust their status to lawful permanent resident before an immigration judge. 6

7

44. In addition, A-Files can contain records regarding applications for asylum and

8 related relief, including information about the date of any asylum interview, the asylum officer’s

9 interview notes, and the disposition; applications for Temporary Protected Status (“TPS”), see 8
10 U.S.C. § 1254a; or lesser known specialized forms of relief like Special Agricultural Worker
11 (“SAW”) status, see 8 U.S.C. § 1160, and relief under the Nicaraguan Adjustment and Central
12 American Relief Act (“NACARA”), Pub. L. No. 105-139, 111 Stat. 2644 (1997). Documents
13 14 contained in A-Files can also provide important information regarding individuals who entered
15 the United States as unaccompanied minors and therefore may qualify for benefits under 8

16 U.S.C. § 1232.

17

45. An A-File could contain information about the manner and date of an individual’s

18 entry to the United States. Many, if not most, immigration forms request this information. For
19 some immigration benefits, this will be a key factor in determining an individual’s eligibility. In
20 addition, because when and how an individual entered the United States can form the basis of a
21
22 charge of removability, see, e.g., 8 U.S.C. § 1182(a)(6)(A)(i), (a)(7); 8 U.S.C. § 1231(a)(5), the

23 records in the A-File are critical to individuals faced with admitting or rebutting such charges in

24 removal proceedings before an immigration judge.

25

46. Knowing the disposition of prior applications, including any appeals, is essential

26 to assessing whether an individual can pursue the appeal or re-apply for a benefit in the present.
27 This is particularly true for individuals who may have filed prior applications while pro se or
28

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1 while represented by different counsel. Moreover, the only manner to ascertain the unknown
2 disposition of an application with USCIS, including any administrative appeal, is by means of an
3 A-File FOIA request.
4 47. In addition, ICE documents contained in an A-File may include information
5 critical to a removal case. For example, an immigration official, during an arrest, may have
6
7 recorded information on a Form I-213 (Record of Deportable/Inadmissible Alien) or elsewhere
8 that is incorrect and could be relied upon improperly as evidence of removability. Accessing

9 those records in order to understand and contest their contents or admission into the record may
10 be critical.
11 48. To assess their options and make decisions that often have life-long consequences
12 for themselves and family members, individuals need to have a complete and accurate picture of
13 14 their immigration history and access to records that render them eligible (or ineligible) for
15 immigration status, benefits or relief from deportation.

16

49. Attorneys advising individuals seeking immigration status, benefits or relief must

17 also have access to relevant immigration procedural histories in order to competently and timely

18 advise their clients.

19 50. Individuals and, where applicable, their attorneys are thus harmed by USCIS’s
20 and ICE’s failure to timely process A-File FOIA requests.
21

22

Plaintiffs’ FOIA Requests

23

51. Plaintiff Zachary Nightingale is an immigration attorney in San Francisco,

24 California who represents clients before component agencies of DHS and the Executive Office
25 for Immigration Review (“EOIR”), which consists of the immigration courts and the Board of
26 Immigration Appeals (“BIA”). He has been practicing immigration law for approximately 23
27 years.
28

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1

52. Plaintiff Nightingale regularly files A-File FOIA requests on behalf of and at the

2 request of his clients, who seek information maintained by DHS agencies, including USCIS and
3 ICE. Plaintiff Nightingale requires the information in the A-File in order to adequately advise
4 and represent his clients, including in defending against removal from the United States and
5 applying for affirmative immigration benefits, such as applications for lawful permanent resident
6
7 status and/or naturalization. The requested information may affect his clients’ eligibility for

8 different forms of immigration benefits and relief; it is therefore essential that he obtain the

9 information from the A-File before filing for any immigration benefits.

10

53. Plaintiff Nightingale currently has several A-File FOIA requests that have been

11 pending with USCIS for more than 30 business days. Plaintiff Nightingale currently has several
12 clients with A-File FOIA requests in which USCIS has produced some documents but has
13

14 referred the remainder of the request to ICE. Those requests have been pending with ICE for

15 more than 30 business days.

16

54. Plaintiff Courtney McDermed is an immigration attorney in Oakland, California

17 who represents clients before component agencies of DHS and EOIR, which consists of the
18 immigration courts and the BIA. She has been practicing immigration law for over 15 years. 19
55. Plaintiff McDermed regularly files A-File FOIA requests on behalf of and at the 20
request of her clients, who seek information maintained by DHS agencies, including USCIS and 21 22 ICE. Plaintiff McDermed requires the information in the A-Files to adequately advise and
23 represent her clients, including in defending against deportation from the United States and

24 applying for affirmative immigration benefits, such as lawful permanent resident status. The
25 requested information may affect her clients’ eligibility for different forms of immigration
26 benefits and relief; it is therefore essential that she obtain the information from the A-Files
27 before filing for any immigration benefits.
28

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Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 15 of 22

1

56. Plaintiff McDermed currently has at least three A-File FOIA requests that have

2 been pending with USCIS for more than 30 business days. She currently has at least five A-File
3 FOIA requests in which USCIS has produced some documents but has referred the remainder of
4 the request to ICE. Those requests have been pending with ICE for more than 30 business days.
5 57. Plaintiff Cheryl David is an immigration attorney in New York, New York who
6
7 represents clients before component agencies of DHS and EOIR. She has been practicing

8 immigration law for over 20 years.

9

58. Plaintiff David regularly files A-File FOIA requests on behalf of and at the

10 request of her clients, who seek information maintained by DHS agencies, including USCIS and
11 ICE. Plaintiff David requires the information in the A-Files to adequately advise and represent
12 her clients, including in defending against deportation from the United States and applying for
13
14 affirmative immigration benefits, such as lawful permanent resident status. The requested

15 information may affect her clients’ eligibility for different forms of immigration benefits and

16 relief; it is therefore essential that she obtain the information from the A-Files before filing for

17 any immigration benefits.

18

59. Plaintiff David currently has at least seven A-File FOIA requests that have been

19 pending with USCIS for more than 30 business days. Plaintiff David currently has at least two
20 A-File FOIA requests in which USCIS has produced some documents but has referred the
21

22 remainder of the request to ICE. Those requests have been pending with ICE for more than 30

23 business days.

24

60. Plaintiff Pao Lopa filed a FOIA request for his A-file with USCIS. USCIS

25 received the request on November 14, 2018 and issued a receipt number for his FOIA request,
26 NRC2018168972, on November 14, 2018. He seeks information about his immigration history,
27 including the naturalization application that he previously filed pro se that USCIS subsequently
28

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Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 16 of 22

1 denied. Although Plaintiff Lopa’s A-File FOIA request has been pending with USCIS for more

2 than seven months, he has not received the requested information.
3 61. Plaintiff Maribel Carandang filed a FOIA request for her A-File with USCIS.
4 Plaintiff Caradang was previously in removal proceedings, and an immigration judge granted her
5 relief from deportation. She now seeks to naturalize, and her current attorneys require her A-File
6
7 to adequately prepare for her naturalization interview.

8

62. USCIS received the request on May 14, 2018 and issued a receipt number for her

9 FOIA request, NRC2018070921. On October 9, 2018, USCIS notified Plaintiff Carandang that
10 the agency completed its review of her request, identified 244 pages that were responsive,
11 released 221 pages in their entirety and 14 pages in part, and withheld 1 page in full. In addition,
12 USCIS informed Plaintiff Carandang that it located 8 pages of potentially responsive documents
13 14 that may have originated from ICE and that it sent those documents and a copy of her FOIA
15 request to the ICE FOIA Office for consideration and a direct response. To date, although

16 Plaintiff Carandang’s A-File FOIA request has been pending for over a year, ICE has not made a

17 determination.

18

CLASS ACTION ALLEGATIONS

19 63. Pursuant to Federal Rules of Civil Procedure 23(a) and (b), Plaintiffs bring this
20 action on behalf of themselves and all other similarly situated individuals. Plaintiffs seek
21

22 injunctive and corresponding declaratory relief that applies generally to the proposed classes, as

23 described below.

24

64.

The proposed classes consist of:

25

USCIS Class: All individuals who filed, or will file, A-File FOIA requests with

26

USCIS which have been pending, or will be pending, with USCIS for more than

30 business days without a determination.

27

28

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Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 17 of 22

1

ICE Referral Class: All individuals who filed, or will file, A-File FOIA requests

with USCIS that USCIS has referred, or will refer, to ICE and which have been

2

pending, or will be pending, for more than 30 business days from the date of the

3

initial filing with USCIS without a determination.

4

65. The proposed classes are so numerous that joinder of all members is

5 impracticable. The number of individuals who filed A-File FOIA requests with USCIS and the
6 number of individuals who have A-File FOIA requests referred from USCIS to ICE is not known 7
with precision by Plaintiffs but is easily ascertainable by Defendants. The FY 2018 DHS FOIA 8
Report indicates that there were 41,329 pending requests in the USCIS backlog and at least 9
17,043 referrals unaccounted for by ICE in the most recent fiscal year for which DHS FOIA 10
11 annual reports are available. This is in addition to the ICE backlog total of 1,332 pending
12 requests.12

13

66. Plaintiffs estimate that the number of A-File FOIA requests pending for more than

14 20 business days with USCIS is in the thousands. Similarly, Plaintiffs estimate that the number

15 of A-File referrals pending with ICE for more than 20 business days likewise numbers in the
16 thousands.
17

18

67. The proposed classes meet the commonality requirement of Rule 23(a)(2)

19 because, inter alia:

20

• All Plaintiffs and putative class members have or will have A-File FOIA

requests that are pending for more than 30 business days without a

21

determination by Defendant USCIS or Defendant ICE;

22 • Defendant USCIS and Defendant ICE routinely fail to make determinations

23

on A-File FOIA requests within the required statutory timeframe;

24

• The A-File FOIA requests of all Plaintiffs and putative class members are or

25

will be among those counted in Defendants’ backlogs;

26

• Defendants’ backlogs represent a pattern or practice of failing to comply with

the FOIA deadlines for making determinations;

27

28 12 FY 2018 DHS FOIA Report, at 19.

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1

• Defendants have failed to sufficiently address the backlogs, including by

2

failing to allocate adequate budgetary resources to ensure that timely

3

determinations are made on all FOIA requests and by failing to allocate or

hire a sufficient number of employees to address the backlog; and

4

• Defendants’ position is that 5 U.S.C. § 552(a)(6)(A)(i) does not impose an

5

affirmative obligation or require the agency to make a determination within

6

the 30-business day statutory timeframe.

7

68. The claims of the Plaintiffs Nightingale, McDermed, David, and Lopa are typical

8 of the claims of the proposed USCIS Class as a whole. The claims of Plaintiffs Nightingale,

9 McDermed, David, and Carandang are typical of the claims of the proposed ICE Referral Class
10 as a whole. 11
69. Plaintiffs know of no conflict between their interests and those of the proposed 12
class. The members of the proposed classes are ascertainable and identifiable through notice and 13
14 discovery. In defending their own rights, Plaintiffs will defend the rights of all class members
15 fairly and adequately.

16

70. Plaintiffs are represented in this case by counsel with substantial knowledge of

17 immigration and FOIA law, and extensive experience litigating class actions and complex cases.
18 Plaintiffs’ attorneys have the requisite level of expertise to adequately prosecute this case on
19 their behalf and on behalf of the proposed classes.
20 71. Defendants have failed to act on grounds generally applicable to each member of
21
22 the proposed classes by failing to respond to A-File FOIA requests and referrals in a timely

23 fashion.

24

72. A class action is superior to other methods available for the fair and efficient

25 adjudication of this controversy because joinder of all members of the class is impracticable. 26

27

28

Complaint for Decl. and Inj. Relief

16

Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 19 of 22

1

CAUSES OF ACTION

2

COUNT ONE

3 (Violation of FOIA Against Defendants DHS and USCIS)

4

(on behalf of All Attorney Plaintiffs, Plaintiff Lopa, and the Proposed USCIS Class)

5

73. Plaintiffs incorporate the allegations in the paragraphs above as though fully set

6 forth here.
7 74. Defendants DHS and its component USCIS are obligated under 5 U.S.C. §
8 552(a)(3) to conduct a reasonable search for records responsive to A-File FOIA requests and to
9 make a determination concerning each request within the time period set forth in 5 U.S.C. §
10
11 552(a)(6)—20 business days, to be extended by no more than 10 business days in the event that

12 the agency notifies the requester in writing of the existence of “unusual circumstances.” 5 U.S.C.

13 § 522(a)(6)(B)(i).

14

75. Defendant DHS and its component Defendant USCIS have a nationwide pattern

15 or practice of failing to make determinations regarding A-File FOIA requests within the statutory
16 time period. No legal basis exists for the Defendants’ nationwide pattern or practice of failing to
17

18 meet the statutory deadline with respect to the A-File FOIA requests they receive.

19

COUNT TWO

20

(Violation of FOIA Against Defendants DHS and ICE)

(on behalf of All Attorney Plaintiffs, Plaintiff Carandang, and the Proposed ICE

21

Referral Class)

22

76. Plaintiffs incorporate the allegations in the paragraphs above as though fully set

23 forth here.
24
77. Defendant DHS and its component Defendant ICE are obligated under 5 U.S.C. § 25

26 552(a)(3) to conduct a reasonable search for records responsive to A-File FOIA requests and to

27 issue a determination concerning each request within the time period set forth in 5 U.S.C. §

28

Complaint for Decl. and Inj. Relief

17

Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 20 of 22

1 552(a)(6)—20 business days, to be extended by no more than 10 business days in the event that
2 the agency notifies the requester in writing of the existence of “unusual circumstances.” 5 U.S.C.
3 § 522(a)(6)(B)(i).
4 78. Once Defendant USCIS refers an A-File FOIA request to ICE, ICE is responsible
5 for responding to the request or the portion of the request referred and must “handle[]” the
6
7 referral “according to the date that the FOIA request initially was received by [USCIS], not any
8 later date.” Responsibility for Responding to Requests, 6 C.F.R. § 5.4(d)(3), (g) (2019).

9

79. Defendant ICE regularly fails to timely adjudicate USCIS A-File FOIA referrals

10 in accordance with its obligation under law.
11 80. Defendant DHS and its component Defendant ICE have a nationwide pattern or
12 practice of failing to make determinations regarding A-File FOIA referrals within the 30-
13
14 business day statutory time period. No legal basis exists for the Defendants’ nationwide pattern

15 or practice of failing to meet the statutory deadline with respect to the A-File FOIA referrals they

16 receive.

17

PRAYER FOR RELIEF

18 WHEREFORE, Plaintiffs pray that this Court grant the following relief:
19

20

(1) Assume jurisdiction over this action;

21

(2) Certify a class pursuant to Federal Rule of Civil Procedure 23 in

22

accordance with this Complaint’s allegations;

23

(3) Declare that Defendant USCIS’s failure to make determinations on

24 Plaintiffs’ and proposed USCIS Class members’ A-File FOIA requests
25 within the statutory time frame violates the FOIA;
26
(4) Declare that Defendant ICE’s failure to make determinations on Plaintiffs’ 27

28

and proposed ICE Referral Class members’ A-File FOIA requests that

Complaint for Decl. and Inj. Relief

18

Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 21 of 22

1

have been referred by Defendant USCIS within the statutory time frame

2

violates the FOIA;

3 (5) Issue a nationwide injunction requiring Defendants to make
4 determinations on A-File FOIA requests and referrals that have been
5
pending for more than 30 business days with USCIS and/or ICE, within 60 6

7

business days of the Court’s order or as the Court deems appropriate;

8

(6) Order USCIS and ICE to make determinations on A-File FOIA requests

9

and referrals of members of the proposed classes as mandated by 5 U.S.C.

10

§ 552(a)(6)(A)(i);

11 (7) Award costs and reasonable attorney fees incurred under 5 U.S.C. §
12 552(a)(4)(E); and
13

14

(8) Grant such further relief as the Court deems just and proper.

15 Dated: June 19, 2019

16

Respectfully submitted,

17

By: s/ Trina Realmuto 18 Trina Realmuto (CA SBN 201088)

19

American Immigration Council 1318 Beacon Street, Suite 18

20 Brookline, MA 02446 Telephone: (857) 305-3600

21 Facsimile: (202) 742-5619

Email: trealmuto@immcouncil.org 22

23

Stacy Tolchin (CA SBN 217431) Law Offices of Stacy Tolchin

24 634 S. Spring St., Suite 500A Los Angeles, CA 90014

25 Telephone: (213) 622-7450

Facsimile: (213) 622-7233 26 Email:

27 Stacy@Tolchinimmigration.com

Mary Kenney (DC 1044695)* Claudia Valenzuela (IL 6279472)* Emily Creighton (DC 1009922)* American Immigration Council 1331 G Street NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7512 Facsimile: (202) 742-5619 Email: mkenney@immcouncil.org cvalenzuela@immcouncil.org ecreighton@immcouncil.org

28

Complaint for Decl. and Inj. Relief

19

Case 3:19-cv-03512-WHO Document 1 Filed 06/19/19 Page 22 of 22
1 Matt Adams (WSBA No. 28287)* Northwest Immigrant Rights Project
2 615 Second Avenue, Suite 400 3 Seattle, WA 98104
Telephone: (206) 957-8611 4 Facsimile: (206) 587-4025
Email: matt@nwirp.org 5
Attorneys for Plaintiffs 6 7 * Application for admission pro hac vice forthcoming 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Complaint for Decl. and Inj. Relief
20

 
 Case 3:19-cv-03512-WHO Document 47 Filed 10/15/19 Page 1 of 19

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

ZACHARY NIGHTINGALE, et al.,

8

Plaintiffs,

9

v.

Case No. 19-cv-03512-WHO
ORDER GRANTING CLASS CERTIFICATION

10

U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al.,

Re: Dkt. No. 28

11

Defendants.

12

13

INTRODUCTION

14

Plaintiffs challenge the systematic delay noncitizens face in obtaining access to

15 immigration case files maintained by the U.S. Department of Homeland Security (“DHS”), and its

16 component agencies, U.S. Citizenship and Immigration Services (“USCIS”) and U.S. Immigration

17 and Customs Enforcement (“ICE”) (collectively “defendants”). These files, commonly referred to

18 as Alien Registration Files (“A-Files”), contain documents relating to all interactions that a

19 noncitizen has had with the immigration system, and therefore are critical to defending against

20 removal or determining eligibility for immigration benefits.

21

The only way a noncitizen can obtain an A-File is by submitting a Freedom of Information

22 Act (“FOIA”) request from the same agency adjudicating their case. Congress mandated that

23 FOIA requests must be answered within 20 business days. Adherence to this statutorily prescribed

24 time frame is especially important for A-File FOIA requests, yet while defendants push to

25 accelerate adjudication of immigration cases they routinely fail to timely provide noncitizens a

26 copy of their A-Files. For people attempting to navigate our complex immigration system, often

27 without counsel and in danger of deportation, this is a serious impediment.

28

While this may be the first class action addressing defendants’ systematic failure of

Case 3:19-cv-03512-WHO Document 47 Filed 10/15/19 Page 2 of 19

United States District Court Northern District of California

1 making timely determinations on A-File FOIA requests, plaintiffs have shown that class

2 certification is appropriate in these extraordinary circumstances. Plaintiffs have established that

3 noncitizens nationwide experience significant delays in obtaining their A-Files and that such

4 delays are harmful to their immigration cases. Accordingly, I GRANT plaintiffs’ motion for class

5 certification because a single injunction or declaratory judgment would provide relief to each

6 member of the proposed classes – the timely determination of their time-sensitive A-File FOIA

7 requests.

8

BACKGROUND

9 I. FACTUAL BACKGROUND

10

A. Importance of Timely Obtaining A-Files

11

Defendants possess A-Files that contain information that is critical to determining a

12 noncitizen’s eligibility to apply for an immigration benefit, to change their existing immigration

13 status, to defend against removal, to work, and to travel freely. Complaint (“Compl.”) [Dkt. No.

14 1] ¶ 2; Motion for Class Certification (“Mot.”) [Dkt. No. 28] 1. The information includes an

15 “individual’s past interactions with immigration agencies and petitions and/or applications

16 previously filed by or on behalf of the individual.” Compl. ¶ 41; see also id. ¶¶ 43–50 (listing

17 examples of how A-Files are vital in different immigration situations, such as applying for lawful

18 permanent resident status, asylum, or rebutting charges in removal proceedings).

19

The only way a noncitizen or his or her attorney can obtain a copy of an A-File is to submit

20 a FOIA request. Id. ¶¶ 41, 46; Mot. 3. Noncitizens in removal proceedings particularly rely on

21 FOIA requests because discovery is not available. Id. ¶ 41; Mot. 3. Consequently, obtaining A-

22 Files from defendants is critical in immigration cases; delays in obtaining A-Files leave noncitizen

23 and their attorneys “in legal limbo” that inflicts substantial hardship. Id. ¶ 7; Exs. A1–A14,

24 Exhibits to Motion for Class Certification [Dkt Nos. 28-3–28-16] (multiple declarations submitted

25 by immigration attorneys across the nation attesting to distinct disadvantage faced by noncitizens

26 due to delays in A-File FOIA requests); see, e.g., Ex. A1, Nightingale Decl. ¶ 13 (longer detention

27 for clients in removal proceedings); Ex. A14, Phelps Decl. ¶ 5 (risk of deportation for clients who

28 are left without proof of status as they wait to file applications for relief until they obtain A-Files); 2

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United States District Court Northern District of California

1 Ex. A10, Hansen Decl. ¶ 7 (prolonged family separation for clients who have to wait longer for

2 their naturalization cases to be approved in order to file “immediate relative” visa petitions); Ex.

3 A6, Hall Decl. ¶ 10 (inability to travel to visit sick family because of risks associated with re-entry

4 while cases are still pending); Ex. A10, Hansen Decl. ¶ 8 (loss of access to public assistance such

5 as Social Security Income and housing without proof of immigration status); Ex. A7, Asch Decl. ¶

6 8 (increased attorney costs because many clients are forced to file lawsuits in federal district court

7 in order to obtain their A-Files).

8

Noncitizens seeking their records without the assistance of counsel are especially

9 disadvantaged by delays. Mot. 4. For those who are represented by counsel, their attorneys need

10 A-Files to effectively prepare them for interviews or hearings, and effectively litigate appeals. Id.;

11 see, e.g., Ex. A7, Asch Decl. ¶ 3 (attorneys are duty-bound to make reasonable inquiry into the

12 applicable facts of a case, but are unable to do so without A-Files); Ex. A1, Nightingale Decl. ¶ 8

13 (the Board of Immigration Appeals does not provide a copy of the written record, only the

14 transcript of the hearing). Without A-Files, noncitizens are at risk of having their applications for

15 immigration benefits denied based on a statement or testimony considered to be inconsistent with

16 a previous statement in the A-File. Mot. 5; see, e.g., Ex. A1, Nightingale Decl. ¶ 14 (immigration

17 attorneys need A-Files to avoid risk of being accused of misrepresentation if clients were to make

18 innocent mistake that turns out to be inconsistent with prior information or documents in the A-

19 File). A-Files also contain reasons why previous applications were denied, and such information

20 is crucial in determining eligibility for future benefits or relief from deportation. Mot. 5; see, e.g.,

21 Ex. A14, Phelps Decl. ¶ 11 (attorneys cannot respond to allegations that ICE has made against

22 their clients without knowing the factual basis for the allegation or being able to review the

23 evidence being used against the client).

24

Delays in obtaining A-Files also put noncitizens at risk of missing other competing

25 deadlines. See, e.g., Ex. A1, Nightingale Decl. ¶ 12 (asylum applications must be filed within one

26 year of arrival); Id. ¶ 13 (removal proceedings for detained noncitizens are normally expedited and

27 expected to move much faster than proceedings for non-detained noncitizens); Id. ¶ 8 (BIA appeal

28 process will proceed on its own timeline independent of any response to FOIA request); Ex. A2,

3

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1 David Decl. ¶ 6 (risk of missing statutory deadlines to file motions in immigration court without

2 first obtaining A-File); Ex. A6, Hall Decl. ¶ 10 (noncitizens must have their applications for

3 cancellation of removal adjudicated before their child’s 21st birthday because only children under

4 the age of 21 count as qualifying relatives). Processing delays in production of A-Files are

5 especially harmful given the recent changes in immigration policy that accelerate adjudication

6 timelines. See Ex. A6, Hall Decl. ¶ 8 (“Between the case completion goals [of 60 days for

7 detained cases and one year for non-detained cases], and the new precedent discouraging the use

8 of continuances, immigration judges are under extreme pressure to quickly complete cases.”); Ex.

9 A6, Hall Decl. ¶ 9 (immigrations judges are not typically willing to delay due to counsel’s need to

10 first receive and review the results of an A-File FOIA request).

11

Requests for continuances due to delays in obtaining A-Files can also be risky because it

12 can lead to outright denial of the application. Mot. 4; see, e.g., Ex. A1, Nightingale Decl. ¶ 11

13 (postponing naturalization interview because of delays in obtaining A-Files can possibly cause

14 USCIS to simply deny that application); Ex. A12, Falgout Decl. ¶ 7 (immigration judge ordered

15 attorney to file any application for relief by deadline or applications would be deemed waived).

16 The agency from which noncitizens seek A-Files is the same agency that has the authority to deny

17 requests for continuances. See, e.g., Ex. A8, Taurel Decl. ¶ 8 (client unable to timely obtain A-

18 File from FOIA request sent to USCIS, but USCIS denied second request to postpone

19 naturalization interview stating that failure to appear would lead to denial of her application).

20

B. Plaintiffs’ “Pattern or Practice” Claim

21

Plaintiffs are three immigration attorneys who regularly file A-File FOIA requests on

22 behalf of their clients, and two noncitizens who have filed A-File FOIA requests from defendants.

23 Id. ¶ 1. Plaintiffs allege that defendants have a “pattern or practice” of failing to answer these

24 requests within the statutory deadline set under FOIA. Id. ¶ 23. The FOIA statute requires that an

25 agency make a determination on a FOIA request within 20 business days. Id. ¶ 21 (citing 5 U.S.C.

26 § 552(a)(6)(A)(i)). An agency may extend its response time in case of “unusual circumstances,”

27 by no more than 10 business days provided it sends the requestor “written notice.” Id. ¶ 22 (citing

28 5 U.S.C. § 552(a)(6)(B)(i)). All plaintiffs had A-File FOIA requests that were pending with 4

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United States District Court Northern District of California

1 defendants without a determination for more than 30 days at the time the Complaint was filed. Id.

2 ¶¶ 53 (several), 56 (at least three), 59 (at least seven), 60 (one), 61 (one).

3

Plaintiffs assert that defendants have failed to comply with this statutory time frame and

4 that some of them have waited for more than a year. See, e.g., id. at ¶ 62 (noncitizen plaintiff

5 Maribel Caradang’s FOIA request has been pending for over a year); ¶ 60 (noncitizen plaintiff Pao

6 Lopa’s FOIA request has been pending for more than seven months); ¶¶ 53, 56, 59 (attorney

7 plaintiffs Zachary Nightingale, Courtney McDermed, and Cheryl David currently have multiple

8 FOIA requests filed on behalf of their clients that have been pending for more than 30 days).

9

USCIS’ FOIA backlog—the number of requests that have gone unanswered past the

10 statutory deadline—has more than doubled in the last few years. Id. ¶¶ 4, 23.1 The FY 2018 DHS

11 FOIA Report indicates that there were 41,329 pending requests in the USCIS backlog and at least

12 17,043 referrals unaccounted for by ICE in the most recent fiscal year, which are in addition to the

13 ICE backlog total of 1,332 pending requests. Id. ¶ 63. DHS has not disclosed how many of these

14 pending requests are for A-Files, but plaintiffs estimate that the number of pending A-file FOIA

15 requests with defendants are in the thousands. Id. ¶ 66.

16

When USCIS finally responds to A-File FOIA requests, plaintiffs claim that “it routinely

17 fails to produce the entire A-File because portions are referred to ICE for it to make a

18 determination about disclosure.” Id. ¶ 27. Even then, the DHS regulations make clear that FOIA

19 requests will be handled based on when the request was initially received “by the first component

20 or agency, not any later date.” Id. ¶ 28 (citing Responsibility for Responding to Requests, 6

21 C.F.R. § 5.4(g) (2019)). But, plaintiffs assert, ICE also regularly exceeds the 20-business day

22 statutory timeframe for making determinations. Id. ¶ 29.

23

Plaintiffs allege that DHS holds ultimate responsibility for USCIS’s and ICE’s pattern or

24 practice of failing to make timely determination in response to A-File FOIA requests. Id. ¶ 38.

25 Plaintiffs assert that DHS has “failed to ensure that its components made reasonable progress in

26

27

1 DHS, 2018 Freedom of Information Report to the Attorney General of the United States and the Director of the Office of Government Information Services (“FY 2018 DHS FOIA Report”) vii

28

(2019), https://www.dhs.gov/sites/default/files/publications/DHS%20FY2018%20FOIA%20Report.pdf.

5

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United States District Court Northern District of California

1 clearing out their backlogs,” and has “failed to ensure sufficient resources are allocated by each

2 component to address their FOIA backlogs.” Id. In 2015, DHS and another one of its component

3 agencies, U.S. Customs and Border Protection (“CBP”), were sued in this District over similar

4 nationwide pattern or practice of failing to timely respond to FOIA requests. Id. ¶ 39; see Brown

5 v. U.S. Customs & Border Prot., 132 F. Supp. 3d 1170 (N.D. Cal. 2015). The court denied

6 dismissal of that action because it found that plaintiffs had “describe[d] a longstanding and

7 pervasive practice of unreasonable delay in CBP’s response to FOIA requests” and that DHS and

8 CBP’s failure to meet statutory response deadlines was an “actionable violation of FOIA.”

9 Compl. ¶ 39 (citing to Brown, 132 F. Supp. 3d at 1172, 1174). That case ultimately settled after

10 CBP decreased its backlog significantly over the course of the litigation. Id. Plaintiffs assert that

11 the present lawsuit makes similar claims and seeks similar relief. Id.2

12 II. PROCEDURAL BACKGROUND

13

On June 16, 2019, plaintiffs filed this class action lawsuit, claiming that defendants’

14 pattern or practice of failing to meet the statutory deadline with respect to A-File FOIA requests

15 violates FOIA. Compl. ¶¶ 73–80. Plaintiffs seek declaratory relief that defendants’ failure to

16 make timely determinations on plaintiffs’ and proposed classes’ A-File FOIA requests violates

17 FOIA, and nationwide injunction requiring defendants to make timely determinations. Compl. ¶

18 63. On July 31, 2019, defendants filed an answer, denying each and every allegation in the

19 Complaint. Answer [Dkt. No. 25]. Subsequently, on August 8, 2019, plaintiffs filed a motion

20 seeking certification of the following two classes:

USCIS Class: All individuals who filed, or will file, A-File FOIA

21

requests with USCIS which have been pending, or will be pending,

with USCIS for more than 30 business days without a determination.

22

ICE Referral Class: All individuals who filed, or will file, A-File

FOIA requests with USCIS that USCIS has referred, or will refer, to

23

ICE and which have been pending, or will be pending, for more than

30 business days from the date of the initial filing with USCIS without

24

a determination.

25 Mot. 1. All attorney plaintiffs and noncitizen plaintiff Lopa seek to represent the USCIS Class,

26

27 2 Plaintiffs in Brown alleged a pattern or practice of delays in CBP’s responses to all FOIA

28

requests, whereas plaintiffs here allege a pattern or practice of delays in USCIS’ and ICE’s responses to A-File FOIA requests in particular.

6

Case 3:19-cv-03512-WHO Document 47 Filed 10/15/19 Page 7 of 19

United States District Court Northern District of California

1 and all attorney plaintiffs and noncitizen plaintiff Carandang seek to represent the ICE Referral

2 Class. Mot. 8. Accompanying their motion, plaintiffs also filed multiple declarations collected

3 from immigration attorneys across the nation that attest to the importance of A-Files and the

4 hardships caused by delays in attaining them from defendants. Exs. A1–A14 [Dkt. Nos. 28-3–28-

5 16]. Defendants opposed the motion on several grounds, Opposition (“Oppo.”) [Dkt. No. 36]. I

6 heard arguments on October 1, 2019.

7

LEGAL STANDARD

8

“Before certifying a class, the trial court must conduct a rigorous analysis to determine

9 whether the party seeking certification has met the prerequisites of Rule 23.” Mazza v. Am. Honda

10 Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012) (internal quotation marks omitted). The party

11 seeking certification has the burden to show, by a preponderance of the evidence, that certain

12 prerequisites have been met. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348–50 (2011);

13 Conn. Ret. Plans & Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011).

14

Certification under Rule 23 is a two-step process. The party seeking certification must first

15 satisfy the four threshold requirements of Rule 23(a). Specifically, Rule 23(a) requires a showing

16 that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are

17 questions of law or fact common to the class; (3) the claims or defenses of the representative

18 parties are typical of the claims or defenses of the class; and (4) the representative parties will

19 fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).

20

Next the party seeking certification must establish that one of the three grounds for

21 certification applies. See Fed. R. Civ. P. 23(b). Plaintiffs seek certification under Rule 23(b)(2),

22 which requires them to establish that “the party opposing the class has acted or refused to act on

23 grounds that apply generally to the class, so that final injunctive relief or corresponding

24 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

25

In the process of class-certification analysis, there “may entail some overlap with the

26 merits of the plaintiff’s underlying claim.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds,

27 568 U.S. 455, 465–66 (2013) (internal quotation marks omitted). However, “Rule 23 grants courts

28 no license to engage in free-ranging merits inquiries at the certification stage.” Id. at 466. “Merits

7

Case 3:19-cv-03512-WHO Document 47 Filed 10/15/19 Page 8 of 19

United States District Court Northern District of California

1 questions may be considered to the extent—but only to the extent—that they are relevant to

2 determining whether the Rule 23 prerequisites for class certification are satisfied.” Id.

3

DISCUSSION

4

Defendants argue that plaintiffs have failed to meet the commonality and typicality

5 requirements under Rule 23(a) and the necessary requirements for a Rule 23(b)(2) type of class.

6 They do not contest plaintiffs’ showing of numerosity or adequacy under Rule 23(a), but I address

7 those issues as part of the rigorous analysis required for class certification. Oppo. 6; Reply [Dkt

8 No. 42] 1–2; Mazza, 666 F.3d at 588. For the reasons set forth below, I find that plaintiffs have

9 met their burden for certification of both the USCIS Class and the ICE Referral Class.

10

A. Rule 23(a)

11

1. Numerosity

12

Rule 23(a)(1) requires that the “the class [be] so numerous that joinder of all members is

13 impracticable.” Fed. R. Civ. P. 23(a)(1). The party seeking certification “do[es] not need to state

14 the exact number of potential class members, nor is a specific number of class members required

15 for numerosity.” In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005).

16 Courts generally find that numerosity is satisfied if the class includes forty or more members. See

17 Villalpando v. Exel Direct Inc., 303 F.R.D. 588, 605–06 (N.D. Cal. 2014); In re Facebook, Inc.,

18 PPC Adver. Litig., 282 F.R.D. 446, 452 (N.D. Cal. 2012). Because plaintiffs seek injunctive and

19 declaratory relief, “the numerosity requirement is relaxed and plaintiffs may rely on the reasonable

20 inference arising from plaintiffs’ other evidence that the number of unknown and future members

21 of [the] proposed subclass . . . is sufficient to make joinder impracticable.” Sueoka v. United

22 States, 101 F. App’x 649, 653 (9th Cir. 2004).

23

Plaintiffs assert that their class is sufficiently numerous because they reasonably estimate

24 hundreds, if not thousands, of attorneys and noncitizens constitute members of the USCIS Class

25 and at least several hundred members of the ICE Referral Class. Mot. 11–13. Plaintiffs provide

26 various declarations of immigration attorneys that itself show at least 173 A-File FOIA requests

27 filed on behalf of noncitizens have been pending with USCIS for more than 30 business days

28 without a determination, and at least 139 A-File FOIA requests that USCIS has referred to ICE

8

Case 3:19-cv-03512-WHO Document 47 Filed 10/15/19 Page 9 of 19

United States District Court Northern District of California

1 and have been pending for more than 30 business days. Mot. 11; Exs. A1–A14 (declarations of

2 immigration attorneys attesting to the number of A-File FOIA requests they have pending with

3 defendants and the chronic delays for nearly all their clients, ranging from around four to twelve

4 months, and in some cases, over a year). Plaintiffs also point to the backlogs reported by DHS as

5 evidence that defendants know the exact number of class members who have not received a timely

6 determination. Mot. 11–13 (citing to DHS FOIA Report at 19). Defendants concede that in FY

7 2019, approximately 98 percent of requests submitted to USCIS sought A-File material. Ex. A,

8 Eggleston Decl. [Dkt. No. 36-1] 3. I find that plaintiffs have sufficiently shown numerosity.

9

2. Commonality

10

Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed.

11 R. Civ. P. 23(a)(2). Plaintiffs must show that the class members have suffered “the same injury,”

12 meaning their claims “depend upon a common contention” that is of such a nature that

13 “determination of its truth or falsity will resolve an issue that is central to the validity of each

14 [claim] in one stroke.” Wal-Mart, 564 U.S. at 350 (internal quotation marks and citation omitted).

15 Plaintiffs must demonstrate not merely the existence of a common question, but rather “the

16 capacity of classwide proceedings to generate common answers apt to drive the resolution of the

17 litigation.” Id. (internal quotation marks and emphasis omitted). For purposes of Rule 23(a)(2),

18 “even a single common question will do.” Id. at 359 (internal quotation marks and modifications

19 omitted).

20

Commonality cannot be determined without a precise understanding of the nature of the

21 underlying claims. Parsons v. Ryan, 754 F.3d 657, 676 (9th Cir. 2014); Wal-Mart, 564 U.S. at

22 338 (“[P]roof of commonality necessarily overlaps with respondents’ merits contention that Wal-

23 Mart engages in a pattern or practice of discrimination.”). However, as the Ninth Circuit has

24 clarified, “this does not mean that the plaintiffs must show at the class certification stage that they

25 will prevail on the merits.” Parsons, 754 F.3d at 676 n. 19 (emphasis in original).

26

Here, plaintiffs’ underlying claim is that defendants engage in a pattern or practice of

27 failing to make determinations on A-File FOIA requests within the statutorily-mandated deadline.

28 Mot. 16. The Ninth Circuit has recognized a pattern or practice claim for unreasonable delay in

9

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United States District Court Northern District of California

1 responding to FOIA requests. See Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086,

2 1103 (9th Cir. 2016); Long v. U.S. I.R.S., 693 F.2d 907, 909–10 (9th Cir. 1982). While pattern or

3 practice claims have been brought in individual FOIA lawsuits, this is the first class action lawsuit

4 challenging the systematic failure by USCIS and ICE to comply with the FOIA statutory

5 timeframe. Mot. 10. Pattern or practice claims in individual FOIA lawsuits do not address this

6 systematic failure; such claims become moot when the noncitizen no longer has a threat of future

7 harm because he or she has successfully received an immigration benefit or defended against

8 removal. See Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1107 (9th Cir.

9 2016).

10

To show injury in fact for pattern or practice claims in individual lawsuits, regardless of

11 whether a plaintiff’s specific FOIA requests have been mooted because the agency has responded

12 to their request, a plaintiff must demonstrate three prongs: “(1) the agency’s FOIA violation was

13 not merely an isolated incident, (2) the plaintiff was personally harmed by the alleged policy, and

14 (3) the plaintiff himself has a sufficient likelihood of future harm by the policy or practice.”

15 Hajro, 811 F.3d at 1103. The first prong is satisfied when a plaintiff provides evidence that he or

16 she has been subjected to a FOIA violation more than once or provides affidavits of people

17 similarly situated to the plaintiff who was also harmed by the pattern or practice. Id. at 1104. The

18 second prong is satisfied when a plaintiff shows that he or she personally filed a FOIA request and

19 that request was delayed. Id. 1105–06. The third prong on likelihood of future harm is most

20 difficult to show, particularly in individually-filed cases because noncitizen’s claims can become

21 moot.

22

In Hajro, noncitizen Mirsad Hajro and an immigration attorney James R. Mayock claimed

23 that USCIS engages in a pattern or practice of violating FOIA’s time limit provisions. Hajro v.

24 U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1094 (9th Cir. 2016). Hajro was a lawful

25 permanent resident who had his naturalization application denied based on evidence in his A-File

26 that allegedly revealed false testimony. Id. at 1094. In preparation of his review hearing before an

27 immigration officer, Hajro filed an A-File FOIA request from USCIS and requested expedited

28 processing based on a 1992 settlement agreement between parties in Mayock v. Nelson, where

10

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1 immigration attorney Mayock sued then-named Immigration and Naturalization Service (“INS”)

2 for systematic delays in responding to FOIA requests submitted by noncitizens. Id.3

3

The Ninth Circuit found Hajro met the first prong because he provided twenty-six

4 declarations by immigration attorneys detailing USCIS’ delays, and the second prong because

5 USCIS responded to Hajro’s A-File FOIA request well beyond the twenty-day limit prescribed by

6 FOIA. Hajro, 811 F.3d at 1104–06. However, Hajro could not meet the third prong because he

7 obtained citizenship during the course of the litigation, which meant he could not seek injunctive

8 relief on his pattern or practice claim because it was unlikely that USCIS would impair his lawful

9 access to information in the future. Id. at 1107. Mayock’s pattern or policy claim was remanded

10 to determine whether he could satisfy the second or third prongs as an immigration attorney. Id. at

11 1106. The Ninth Circuit then affirmed the district court’s order to deny Mayock’s motion to

12 amend the complaint and found that Mayock lacked standing to bring a pattern or practice claim

13 because he did not personally file a FOIA request when the complaint was originally filed. Hajro

14 v. United States Citizenship & Immigration Servs., 743 F. App’x 148, 149 (9th Cir. 2018). The

15 Ninth Circuit also noted that because Hajro and Mayock did not bring their pattern or practice

16 claim as a class action, they could not amend their complaint once their claims became moot. Id.

17 at 150.

18

Hajro reveals that pattern or practice claims by individuals are especially susceptible to

19 becoming moot. Plaintiffs here bring a class action challenging the systematic failure by USCIS

20 and ICE to comply with the FOIA statutory timeframe. Mot. 10, 14. Unlike Hajro, all named

21 plaintiffs satisfy the three-prong test. Plaintiffs have shown, through multiple declarations of

22 immigration attorneys across the nation, that (1) defendants’ violation of FOIA is not merely an

23 isolated incident, (2) plaintiffs and many other similarly situated people have been personally

24 harmed by the alleged practice, and (3) proposed class members include those who will be

25

26 3 After remand from the Ninth Circuit in Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991), parties

27

entered into a settlement agreement, “in which INS agreed to implement expedited processing of a FOIA request where the requester demonstrates that an individual’s life or personal safety would

28

be jeopardized or that substantial due process rights of the requester would be impaired by the failure to process a request immediately.” Hajro, 811 F.3d at 1093.

11

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1 subjected to defendants’ delays in the future when they file A-File FOIA requests. At this stage,

2 plaintiffs are not required to show that they will prevail on their underlying pattern or practice

3 claim, Parsons, 754 F.3d at 676 n. 19, but this showing is enough to establish commonality for

4 class certification.

5

Defendants characterize plaintiffs’ claims as an aggregation of many claims individuals

6 have about the delays associated with their respective A-File FOIA requests. Oppo. 7.

7 Defendants argue that delays are “not necessarily the same in every case because no two A-Files

8 are the same.” Oppo. 7. It follows, defendants assert, that plaintiffs have not shown a shared

9 injury because delays in responding to each A-File FOIA request can range from a couple of

10 months to over a year. Oppo. 8.

11

This argument rests upon a misunderstanding of plaintiffs’ claims, which do not relate to

12 the delay in any particular A-File FOIA request but instead to defendants’ “widespread practice of

13 failing to make determination within FOIA’s statutory time fame” that can be resolved in a “single

14 stroke.” Mot. 3; Parsons, 754 F.3d at 676 (affirming class certification for plaintiffs who brought

15 a “pattern or practice” claim against Arizona Department of Corrections for systematic

16 deficiencies in prisoner treatment, and finding commonality existed notwithstanding individual

17 prisoners’ variations in harm). Plaintiffs have established commonality because the shared injury

18 between plaintiffs and proposed class members is the delayed receipt of determinations on their A-

19 File FOIA requests filed with USCIS, and, with respect to the ICE Referral class, subsequently

20 referred by USCIS to ICE. Mot. 16. This delayed receipt is the result of defendants’ alleged

21 pattern and practice of failing to make determinations in A-File FOIA cases within the statutorily

22 mandated time frame, making it the common contention, or the “glue,” that holds each class

23 member together. Mot. 16 (citing to Wal-Mart, 564 U.S. at 352). For these reasons, plaintiffs

24 have made a sufficient showing to establish commonality.

25

3. Typicality

26

Commonality and typicality “tend to merge.” Gen. Tel. Co. of the Southwest v. Falcon,

27 457 U.S. 147, 157 n.13 (1982). The test for typicality is “whether other members have the same

28 or similar injury, whether the action is based on conduct which is not unique to the named

12

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1 plaintiffs, and whether other class members have been injured by the same course of conduct.”

2 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (internal quotation marks and

3 citation omitted). “Typicality refers to the nature of the claim or defense of the class

4 representative, and not to the specific facts from which it arose or the relief sought.” Id. (internal

5 quotation marks and citation omitted). Class certification is not appropriate if unique defenses

6 threaten to preoccupy the class representatives and thus cause absent members to suffer. Hanon v.

7 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

8

Plaintiffs contend that they “challenge a uniform policy or practice and suffer injuries

9 similar to those of the proposed class members, ‘result[ing] from the same, injurious course of

10 conduct.’” Mot. 17 (quoting Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001), abrogated on

11 other grounds by Johnson v. California, 543 U.S. 499 (2005)). Defendants argue that typicality

12 does not exist because the individualized nature of each A-File create “factual disparities between

13 the proposed class members [that] ‘affect the outcome of the legal issues’ and thus preclude

14 certification.” Oppo. 8 (citing Califano v. Yamasaki, 442 U.S. 682, 701 (1979)). According to

15 defendants, the time required to make a determination on a given A-File “depends in large part on

16 a variety of factors, including the A-File’s physical location, size, content, and the amount of

17 information that falls within one of the FOIA’s exemptions.” Oppo. 7 (citing to Ex. A, Eggleston

18 Decl. ¶¶ 9, 10; Ex B, Fuentes Decl. ¶ 7).

19

Here, plaintiffs and proposed class members have filed or will file A-File FOIA requests to

20 defendants who are required to make timely determinations pursuant to the timeframe set forth in

21 5 U.S.C. § 552(a)(6)(A)(i). Thus, plaintiffs seek the same relief that members of the proposed

22 class would seek: the timely determination of their A-File FOIA requests. Defendants’ focus on

23 the individualized nature of each A-File is misguided. Regardless of the factors that go into

24 determining how long a single FOIA request might take, defendants are mandated to make a

25 determination within 20 business days, or at most 30 business days with an “unusual

26 circumstances” exception. Both plaintiffs and purposed class members are harmed by or will be

27 harmed by defendants’ same course of conduct, namely the lack of determination on their A-File

28 FOIA requests within the statutory timeline. See, e.g., Ex. A1, Nightingale Decl. ¶ 13 (longer

13

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1 detention time); Ex. A14, Phelps Decl. ¶ 5 (risk of deportation); Ex. A10, Hansen Decl. ¶ 7

2 (prolonged family separation); Ex. A6, Hall Decl. ¶ 10 (inability to travel); Ex. A10, Hansen Decl.

3 ¶ 8 (loss of access to public assistance); Ex. A7, Asch Decl. ¶ 8 (increased attorney costs).

4

Defendants make two additional arguments that also fail. First, defendants argue that

5 proposed class members are not subject to the “same unlawful practice” because defendants do not

6 “egregiously adhere to an illegal policy or practice” as “[n]either USCIS nor ICE have a policy of

7 intentionally violating FOIA for any reason, including in order to delay determination on A-File

8 FOIA requests.” Oppo. 8 (citing to Payne Enterprises, Inc. v. United States, 837 F.2d 486, 494

9 (D.C. Cir. 1988) and Judicial Watch v. U.S. Dep’t of Homeland Sec., 895 F.3d 770, 780 (D.C. Cir.

10 2018)). However, as clarified in Judicial Watch, the court in Payne “did not require egregious

11 agency action” to state a policy or practice claim,” but rather the court stated that “even beyond a

12 ‘refusal to supply information,’ an agency may engage in ‘some other failure to abide by the terms

13 of FOIA’ that could be the basis for finding the agency has an unlawful policy or practice.”

14 Judicial Watch, 895 F.3d at 781–82 (quoting Payne, 837 F.2d at 491). An “informal agency

15 conduct resulting in long delays in making requested non-exempt records available may serve as

16 the basis for a policy or practice claim.” Id. at 777–78. As the court characterized it, it would be

17 “ironic” if a policy or practice claim could be based on misapplication of a FOIA exemption, as

18 was the case in Payne, but not on an agency’s “total disregard of the obligations mandated by

19 Congress,” such as the FOIA statutory deadlines at issue in Judicial Watch. Id. at 782. Therefore,

20 plaintiffs are not required to show defendants’ pattern or practice of failing to make timely

21 determinations of A-File FOIA requests is result of an “egregious policy.”

22

Second, defendants assert that “none of the FOIA’s provisions setting forth time periods

23 for making determinations is absolute.” Oppo. 9. But multiple courts, including in this District,

24 have found that violation of FOIA’s statutory 20-day deadline constitutes a harm. See Brown v.

25 U.S. Customs & Border Prot., 132 F. Supp. 3d 1170, 1173 (N.D. Cal. 2015) (“[C]ourts have

26 repeatedly found that an agency’s failure to respond to a FOIA request within the statutory time

27 limits violates FOIA and allows the aggrieved party to sue.”); Our Children’s Earth Found. v.

28 Nat’l Marine Fisheries Serv., No. 14-1130-SC, 2015 WL 4452136, at *7 (N.D. Cal. July 20, 2015)

14

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1 (“[A]n agency’s failure to comply with the FOIA’s time limits is, by itself, a violation of the

2 FOIA.”) (internal quotation marks and citation omitted); Long v. U.S. I.R.S., 693 F.2d 907, 910

3 (9th Cir. 1982) (“[U]nreasonable delays in disclosing non-exempt documents violate the intent and

4 purpose of the FOIA, and the courts have a duty to prevent these abuses.”); Payne Enterprises,

5 Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (agreeing with the Ninth Circuit opinion

6 in Long).

7

Defendants further claim that the FOIA statute “expressly contemplates that some

8 determinations may take longer than the default time period of 20 business days” because it

9 includes provisions that extend time under “unusual circumstances” and “exceptional

10 circumstances.” Oppo. 8. But, even under the “unusual circumstances” provision, an agency is

11 excused for no more than 10 business days and must still provide timely written notice to the

12 requester. 5 U.S.C. § 552(a)(6)(B)(i). Plaintiffs’ proposed classes account for this additional time

13 because they seek to certify those who have had their A-File FOIA requests pending with

14 defendants “for more than 30 business days without a determination.” Mot. 1. Additionally, the

15 “exceptional circumstances” provision is only applicable once a requester has sought review of an 16 agency’s action or inaction by a federal district court.4 Citizens for Responsibility & Ethics in

17 Washington v. Fed. Election Comm’n, 711 F.3d 180, 185 (D.C. Cir. 2013) (“Once in court,

18 however, the agency may further extend its response time if it demonstrates

19 “exceptional circumstances” to the court.”). Thus, an agency cannot single-handedly invoke the

20 “exceptional circumstances” provision to extend time.

21

Both the FOIA statutory timeline and defendants’ violation of it are clear. “[T]he repeated,

22 routine violation of these deadlines by agencies has been a continual source of concern for

23 Congress.” Our Children’s Earth Found, at *8. Although courts have “recognized that agencies’

24 resources are heavily taxed by the quantity and depth of FOIA requests (especially in light of

25 budget constraints that limit the personnel and resources assigned to an agency), that does not

26

27 4 The statute’s definition of exceptional circumstance “does not include a delay that results from a

28

predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.” 5 U.S.C. § 552(a)(6)(C)(ii).

15

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1 grant the agency carte blanche to repeatedly violate congressionally mandated deadlines.” Id. The

2 irony should not be lost on anyone that the agencies that are delaying noncitizens’ right to timely

3 obtain copies of their A-Files are the same agencies pushing to accelerate proceedings in

4 immigration cases. Recent immigration policy changes now encourage immigration judges to

5 limit continuances and mandate that asylum application must be resolved within 180 days, 6 detained cases within 60 days, and non-detained cases within one year.5 Plaintiffs have met the

7 typicality requirement for both of the proposed classes.

8

4. Adequacy

9

Finally, to establish adequacy under Rule 23(a)(4), named plaintiffs must show that they

10 “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To

11 determine whether named plaintiffs will adequately represent a class, courts must resolve two

12 questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other

13 class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously

14 on behalf of the class?” Ellis, 657 F.3d at 985 (internal quotation marks omitted).

15

Plaintiffs do not have any conflicts of interest because they have a “mutual goal” with

16 proposed class members to “challenge Defendants’ unlawful practices and obtain declaratory and

17 injunctive relief that would not only cure this illegality but remedy the injury suffered by all

18 current and future class member.” Mot. 18. Both plaintiffs and proposed class members have a

19 shared interest in ensuring that defendants make determinations in response to their A-File FOIA

20 requests within the statutory time period. Id. Plaintiffs are represented by the American

21 Immigration Council, the Northwest Immigrant Rights Project and Law Firm of Stacy Tolchin

22 (collectively, “Class Counsel”). Class Counsel are experienced in protecting the interests of

23 noncitizens and handling complex and class action litigation in the immigration field. Mot. 19

24

25 5 See Presidential Memorandum on Additional Measures to Enhance Border Security and Restore

26 Integrity to Our Immigration System (Apr. 2019), https://www.whitehouse.gov/presidentialactions/presidential-memorandum-additional-measures-enhance-border-security-restore-integrity-
27 immigration-system; EOIR Memorandum on Case Priorities and Immigration Court Performance

28

Measures (Jan. 2018), https://www.justice.gov/eoir/page/file/1026721/download; Matter of L-A-BR- et al., 27 I&N Dec. 405 (A.G. 2018).

16

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1 (citing to Exs. B1–B4 [Dkt. Nos. 28-17–28-20]). Defendants do not dispute that plaintiffs satisfy

2 the adequacy requirement. Oppo. 6; Reply 2. Therefore, I find plaintiffs and Class Counsel “will

3 fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

4

B. Rule 23(b)(2)

5

Plaintiffs also must meet one of the requirements of Rule 23(b) for a class action to be

6 certified. Here, plaintiffs seek class certification under Rule 23(b)(2), which requires them to

7 show that “the party opposing the class has acted or refused to act on grounds that apply generally

8 to the class, so that final injunctive relief or corresponding declaratory relief is appropriate

9 respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The “key” is the “indivisible nature of

10 the injunctive or declaratory remedy warranted–the notion that the conduct is such that it can be

11 enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-

12 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (internal citation and quotation marks

13 omitted). In other words, Rule 23(b)(2) “applies only when a single injunction or declaratory

14 judgment would provide relief to each member of the class.” Id. There is “no reason to undertake

15 a case-specific inquiry into whether class issues predominate or whether class action is a superior

16 method of adjudicating” because both are “self-evident” in Rule 23(b)(2) classes. Id. 362–63.

17 Rule 23(b)(2) requirements are “unquestionably satisfied when members of a putative class seek

18 uniform injunctive or declaratory relief from policies or practices that are generally applicable to

19 the class as a whole.” Parsons v. Ryan, 754 F.3d 657, 688 (9th Cir. 2014) (internal citation

20 omitted).

21

To establish a Rule 23(b)(2) class “in the context of challenging an agency’s FOIA policy

22 or practice,” a plaintiff must “demonstrate that he or she has pending FOIA requests that are likely

23 to implicate the policy or practice” or demonstrate a clear intent to continue filing FOIA requests

24 with the defendant. Gatore v. United States Dep’t of Homeland Sec., 327 F. Supp. 3d 76, 104

25 (D.D.C. 2018) (internal quotation marks and citations omitted).

26

Here, plaintiffs have asserted that they had pending A-File FOIA requests that were

27 pending with defendants for more than 30 days at the time the Complaint was filed. Mot. 8.

28 Attorney plaintiffs have asserted they regularly file A-File FOIA requests on behalf of their clients

17

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1 and that they will continue to file such requests in the future. Mot. 7–8. The declarations of

2 immigration attorneys also show at least 173 A-File FOIA requests sent to USCIS and at least 139

3 A-File FOIA requests referred to ICE that have been pending for more than 30 days. Mot. 11–12

4 (citing to Exs. Nos. A1–14).

5

Plaintiffs seek an order (i) “declaring that Defendants’ failure to make determinations on

6 A-File FOIA requests within FOIA’s statutory time frame is unlawful,” (ii) “ordering Defendants

7 to make determinations on A-File FOIA requests in the backlog within 60 days (or a time period

8 set by the Court),” and (iii) “enjoining Defendants from further failing to adhere to the deadlines

9 established by 5 U.S.C. § 552(a)(6)(A)(i). Reply 10; Mot. 20. Plaintiffs have sufficiently satisfied

10 the requirement for a 23(b)(2) class in the FOIA context, such that “a single injunction or

11 declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, 564

12 U.S. at 360.

13

Defendants exaggerate what is required under Rule 23(b)(2). They argue that class-wide

14 injunctive relief is inappropriate because “every plaintiff will have to make individualized factual

15 arguments as to the unlawfulness of an agency delay related to that plaintiff’s own unique A-File.”

16 Oppo. 12. But, as the Ninth Circuit has made clear, the inquiry “does not require a finding that all

17 members of the class have suffered identical injuries.” Parsons, 754 F.3d at 688 (internal citation

18 omitted). A class may properly be certified under Rule 23(b)(2) if the opposing party’s “[a]ction

19 or inaction is directed to a class . . . even if it has taken effect or is threatened only as to one or few

20 members of the class, provided it is based on grounds which have general application to the class.”

21 Fed. R. Civ. P. 23(b)(2) Advisory Committee’s Note (1966).

22

Plaintiffs do not seek relief with respect to the determinations made on individual A-File

23 FOIA requests. They “challenge Defendants’ pattern or practice of refusing to timely make such

24 determinations.” Reply 11. Plaintiffs’ pattern or practice claim is “central to the claims of all

25 class members irrespective of their individual circumstances and the disparate effects of the

26 conduct.” Garcia v. Johnson, No. 14-CV-01775-YGR, 2014 WL 6657591, at *15 (N.D. Cal.

27 Nov. 21, 2014) (internal citation omitted) (finding plaintiffs who brought class action challenging

28 government’s failure to provide timely reasonable fear interviews sufficiently alleged a pattern of

18

Case 3:19-cv-03512-WHO Document 47 Filed 10/15/19 Page 19 of 19

United States District Court Northern District of California

1 activity that is central to the claims of all class members). Certification, therefore, does not hinge

2 on the complexities of each A-File requested but rather on the uniform untimeliness in responding

3 to A-File FOIA requests.

4

Defendants further argue that plaintiffs seek an “obey the law” injunction, which is

5 impermissible because Rule 65(d) requires an injunction order to “state its terms specifically” as

6 well as “describe in reasonable detail . . . the act or acts restrained or required.” Oppo. 13 (citing

7 Fed. R. Civ. P. 65(d)(B)–(C)). They rely on the Hon. Edward M. Chen’s decision in Cuviello v.

8 City of Oakland, where plaintiffs sought an injunction permitting police officers to make only

9 lawful arrests and restraining them from interfering with plaintiffs’ free speech rights. No. C-06-

10 5517-EMC, 2009 WL 734676, at *3 (N.D. Cal. Mar. 19, 2009). Unlike the injunction sought by

11 plaintiffs here, plaintiffs in Cuviello sought a vague injunction that did not specify what act was

12 being enjoined. In this case, plaintiffs seek an injunction that meets the Rule 65(d) specificity

13 requirement because they specifically seek to order defendants to make a determination on

14 outstanding A-File FOIA requests. Therefore, plaintiffs have met the requirement of Rule

15 23(b)(2). A single injunction or declaratory judgment would provide relief to each member of the

16 proposed classes – the timely determination on their time-sensitive A-File FOIA requests.

17

CONCLUSION

18

For the reasons set forth above, plaintiffs’ motion for class certification is GRANTED as to

19 both the USCIS Class and the ICE Referral Class.

20

IT IS SO ORDERED.

21 Dated: October 15, 2019

22

23

24

William H. Orrick United States District Judge

25

26

27

28 19

 
 U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:19-cv-03512-WHO

Nightingale et al v. U.S. Citizenship and Immigration Services et al Assigned to: Judge William H. Orrick Demand: $0 Cause: 05:552 Freedom of Information Act

Date Filed: 06/19/2019 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff Zachary Nightingale

represented by Claudia Valenzuela American Immigration Council 1331 G Street NW Suite 200 Washington, DC 20005 202-507-7540 Email: cvalenzuela@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED

Emily Jamieson Creighton American Immigration Council 1331 G Street NW Suite 200 Washington, DC 20005 United Sta (202)507-7514 Email: ecreighton@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED

Leila Kang Northwest Immigrant Rights Project 615 2nd Ave. Ste. 400 Seattle, WA 98104 206-957-8608 Email: leila@nwirp.org TERMINATED: 01/13/2020 PRO HAC VICE

Mary A Kenney

National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 617-819-4681 Email: mary@immigrationlitigation.org ATTORNEY TO BE NOTICED
Matthew Hyrum Adams Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611 Fax: 206-587-4025 Email: matt@nwirp.org ATTORNEY TO BE NOTICED
Stacy Eva Tolchin Law Offices of Stacy Tolchin 634 S. Spring St. Suite 500A Los Angeles, CA 94104 213-622-7450 Fax: 213-622-7233 Email: stacy@tolchinimmigration.com ATTORNEY TO BE NOTICED
Tiffany Lieu 10 Griggs Terrace Brookline, MA 02446 206-499-1890 Email: tiffany@immigrationlitigation.org PRO HAC VICE ATTORNEY TO BE NOTICED
Trina Ann Realmuto National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 617-819-4447 Email:

Plaintiff Courtney McDermed
Plaintiff Cheryl David

trina@immigrationlitigation.org ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Jamieson Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leila Kang (See above for address) TERMINATED: 01/13/2020 PRO HAC VICE
Mary A Kenney (See above for address) ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) ATTORNEY TO BE NOTICED
Stacy Eva Tolchin (See above for address) ATTORNEY TO BE NOTICED
Tiffany Lieu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Trina Ann Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Pao Lopa

Emily Jamieson Creighton (See above for address) ATTORNEY TO BE NOTICED
Leila Kang (See above for address) TERMINATED: 01/13/2020 PRO HAC VICE
Mary A Kenney (See above for address) ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) ATTORNEY TO BE NOTICED
Stacy Eva Tolchin (See above for address) ATTORNEY TO BE NOTICED
Tiffany Lieu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Trina Ann Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Jamieson Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leila Kang (See above for address) TERMINATED: 01/13/2020 PRO HAC VICE

Plaintiff Maribel Carandang

Mary A Kenney (See above for address) ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) ATTORNEY TO BE NOTICED
Stacy Eva Tolchin (See above for address) ATTORNEY TO BE NOTICED
Tiffany Lieu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Trina Ann Realmuto (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Jamieson Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leila Kang (See above for address) TERMINATED: 01/13/2020 PRO HAC VICE
Mary A Kenney (See above for address) ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) ATTORNEY TO BE NOTICED

Stacy Eva Tolchin (See above for address) ATTORNEY TO BE NOTICED
Tiffany Lieu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Trina Ann Realmuto (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
U.S. Citizenship and Immigration Services

represented by Cristen Cori Handley U.S. Department of Justice Civil Division Federal Programs 1100 L Street NW Washington, DC 20005 202-305-2677 Email: cristen.handley@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha S. Edney Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Rm. 7148 Washington, DC 20530 (202) 514-4520 Email: marsha.edney@usdoj.gov TERMINATED: 08/18/2020 LEAD ATTORNEY
Matthew Charles Skurnik US Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005

Defendant U.S. Immigration and Customs Enforcement
Defendant U.S. Department of Homeland Security

202-616-8188 Email: matthew.skurnik@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cristen Cori Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha S. Edney (See above for address) TERMINATED: 08/18/2020 LEAD ATTORNEY
Matthew Charles Skurnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cristen Cori Handley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha S. Edney (See above for address) TERMINATED: 08/18/2020 LEAD ATTORNEY
Matthew Charles Skurnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/19/2019

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971-13449903.). Filed byZachary Nightingale, Pao Lopa, Cheryl David, Courtney McDermed, Maribel Carandang. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)

06/19/2019

2 Civil Cover Sheet by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale . (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)

06/19/2019 3 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)

06/19/2019 4 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)

06/19/2019 06/19/2019 06/19/2019

5 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
6 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)
7 Proposed Summons. (Realmuto, Trina) (Filed on 6/19/2019) (Entered: 06/19/2019)

06/19/2019 8 NOTICE of Appearance by Stacy Eva Tolchin as co-counsel (Tolchin, Stacy) (Filed on 6/19/2019) (Entered: 06/19/2019)

06/19/2019 9 Case assigned to Magistrate Judge Laurel Beeler.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 7/3/2019. (ajsS, COURT STAFF) (Filed on 6/19/2019) (Entered: 06/19/2019)

06/20/2019

10 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 9/12/2019. Initial Case Management Conference set for 9/19/2019 11:00 AM in San Francisco, Courtroom B, 15th Floor. (fabS, COURT STAFF) (Filed on 6/20/2019) (Entered: 06/20/2019)

06/20/2019

11 Summons Issued as to U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Attorney and U.S. Attorney General (Attachments:

# 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(fabS, COURT STAFF) (Filed on 6/20/2019) (Entered: 06/20/2019)

06/28/2019

12 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE: Initial Case Management Conference previously set for 9/19/2019 is reset to 10/10/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. Case Management Statement due by 10/3/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 6/28/2019) (Entered: 06/28/2019)

07/01/2019

13 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale.. (Realmuto, Trina) (Filed on 7/1/2019) (Entered: 07/01/2019)

07/01/2019

14 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.

ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.

This is a text only docket entry; there is no document associated with this notice. (ejkS, COURT STAFF) (Filed on 7/1/2019) (Entered: 07/01/2019)

07/02/2019 15 CLERK'S NOTICE Re: Motion to Relate Cases (lrcS, COURT STAFF) (Filed on 7/2/2019) (Entered: 07/02/2019)

07/02/2019

16 ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge William H. Orrick for all further proceedings. Magistrate Judge Laurel Beeler no longer assigned to case, Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by Clerk on 7/2/19. (Attachments: # 1 Notice of Eligibility for Video Recording)(as, COURT STAFF) (Filed on 7/2/2019) (Entered: 07/02/2019)

07/03/2019

17 AFFIDAVIT of Service for Summons, Complaint, and case initiating documents served on Defendants, Attorney General William Barr, and US Attorney's Office for the Northern District of California on June 25, 2019, filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 7/3/2019) (Entered: 07/03/2019)

07/08/2019

18 CASE MANAGEMENT CONFERENCE ORDER - Case Management Conference set for 9/10/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 9/3/2019. Signed by Judge William H. Orrick on 07/08/2019. (jmdS, COURT STAFF) (Filed on 7/8/2019) (Entered: 07/08/2019)

07/08/2019

19 CERTIFICATE OF SERVICE by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale of Case Management Conference Order and Judge Orrick's Standing Order for Civil Cases (Realmuto, Trina) (Filed on 7/8/2019) (Entered: 07/08/2019)

07/23/2019

20 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13543976.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Kang, Leila) (Filed on 7/23/2019) (Entered: 07/23/2019)

07/23/2019

21 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13545417.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Adams, Matthew) (Filed on 7/23/2019) (Entered: 07/23/2019)

07/29/2019

22 Order by Judge William H. Orrick granting 20 Motion for Pro Hac Vice by Leila Kang. (jmdS, COURT STAFF) (Filed on 7/29/2019) (Entered: 07/29/2019)

07/29/2019

23 Order by Judge William H. Orrick granting 21 Motion for Pro Hac Vice by Matt Adams. (jmdS, COURT STAFF) (Filed on 7/29/2019) (Entered: 07/29/2019)

07/30/2019 24 NOTICE of Appearance by Cristen Cori Handley (Handley, Cristen) (Filed on 7/30/2019) (Entered: 07/30/2019)

07/31/2019

25 ANSWER to Complaint by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Handley, Cristen) (Filed on 7/31/2019) Modified on 8/1/2019 (amgS, COURT STAFF). (Entered: 07/31/2019)

08/02/2019

26 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13575738.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed,

Zachary Nightingale. (Kenney, Mary) (Filed on 8/2/2019) Modified on 8/6/2019 (aaa, COURT STAFF). (Entered: 08/02/2019)

08/05/2019

27 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13581757.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Certificate of Good Standing)(Creighton, Emily) (Filed on 8/5/2019) Modified on 8/6/2019 (aaa, COURT STAFF). (Entered: 08/05/2019)

08/08/2019

28 MOTION to Certify Class filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. Motion Hearing set for 10/2/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 8/22/2019. Replies due by 8/29/2019. (Attachments: # 1 Index of Exhibits, # 2 Declaration First Realmuto Dec., # 3 Declaration Nightingale Dec. and attachment, # 4 Declaration David Dec., # 5 Declaration McDermed Dec., # 6 Declaration Abrutyn Dec., # 7 Declaration Cleveland Dec., # 8 Declaration Hall Dec., # 9 Declaration Asch Dec., # 10 Declaration Taurel Dec. and attachment, # 11 Declaration Ellison Dec., # 12 Declaration Hansen Dec., # 13 Declaration Lee Dec., # 14 Declaration Falgout Dec., # 15 Declaration Dobrin Dec. and attachments, # 16 Declaration Phelps Dec., # 17 Declaration Second Realmuto Dec., # 18 Declaration Kenney Dec., # 19 Declaration Adams Dec., # 20 Declaration Tolchin Dec., # 21 Exhibit Lopa FOIA Status Check, # 22 Exhibit Carandang FOIA Status Check, # 23 Proposed Order)(Realmuto, Trina) (Filed on 8/8/2019) (Entered: 08/08/2019)

08/15/2019

29 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13613235.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Certificate of Good Standing)(Valenzuela, Claudia) (Filed on 8/15/2019) Modified on 8/16/2019 (aaaS, COURT STAFF). (Entered: 08/15/2019)

08/15/2019

30 MOTION to Continue Defendants' Deadline to Respond to Plaintiffs' Motion for Class Certification filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proposed Order)(Handley, Cristen) (Filed on 8/15/2019) (Entered: 08/15/2019)

08/19/2019

31 OPPOSITION/RESPONSE (re 30 MOTION to Continue Defendants' Deadline to Respond to Plaintiffs' Motion for Class Certification ) filed byMaribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Declaration Third Realmuto Dec.)(Realmuto, Trina) (Filed on 8/19/2019) (Entered: 08/19/2019)

08/22/2019

32 ORDER GRANTING 30 MOTION TO CONTINUE DEFENDANTS' DEADLINE TO RESPOND TO PLAINTIFFS' 28 MOTION FOR CLASS CERTIFICATION Response due by 9/5/2019. Signed by Judge William H. Orrick on 08/22/2019. (jmdS, COURT STAFF) (Filed on 8/22/2019) (Entered: 08/22/2019)

08/29/2019 33 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Realmuto, Trina) (Filed on 8/29/2019) (Entered: 08/29/2019)

08/29/2019 34 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Handley, Cristen) (Filed on 8/29/2019) (Entered: 08/29/2019)

09/03/2019

35 JOINT CASE MANAGEMENT STATEMENT & [PROPOSED] ORDER ; filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 9/3/2019) Modified on 9/4/2019 (aaaS, COURT STAFF). (Entered: 09/03/2019)

09/05/2019

36 OPPOSITION/RESPONSE (re 28 MOTION to Certify Class ) filed byU.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Jill A. Eggleston, # 2 Declaration of Toni Fuentes)(Handley, Cristen) (Filed on 9/5/2019) (Entered: 09/05/2019)

09/06/2019

37 CLERK'S NOTICE - Case Management Conference continued to 10/2/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor (to coincide with motion hearing). (This is a text-only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 9/6/2019) (Entered: 09/06/2019)

09/09/2019

38 Order by Judge William H. Orrick granting 27 Motion for Pro Hac Vice by Emily J. Creighton. (jmdS, COURT STAFF) (Filed on 9/9/2019) (Entered: 09/09/2019)

09/09/2019

39 Order by Judge William H. Orrick granting 29 Motion for Pro Hac Vice by Claudia Valenzuela. (jmdS, COURT STAFF) (Filed on 9/9/2019) (Entered: 09/09/2019)

09/09/2019

40 Order by Judge William H. Orrick granting 26 Motion for Pro Hac Vice by Mary Kenney. (jmdS, COURT STAFF) (Filed on 9/9/2019) (Entered: 09/09/2019)

09/11/2019

41 CLERK'S NOTICE ADVANCING HEARING - Hearing as to 28 MOTION to Certify Class and Initial Case Management Conference reset for 10/1/2019 03:00 PM in San Francisco, Courtroom

02, 17th Floor. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 9/11/2019) (Entered: 09/11/2019)

09/12/2019

42 REPLY (re 28 MOTION to Certify Class ) filed byMaribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 9/12/2019) (Entered: 09/12/2019)

10/01/2019

43 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 10/1/2019 re 28 MOTION to Certify Class. Motion taken under submission; written order to follow. Further Case Management Conference set for 1/21/2020 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 1/14/2020. Total Time in Court: 36 minutes. Court Reporter: Ruth Levine Ekhaus. (jmdS, COURT STAFF) (Date Filed: 10/1/2019) (Entered: 10/03/2019)

10/07/2019

44 TRANSCRIPT ORDER for proceedings held on 10/1/2019 before Judge William H. Orrick by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale, for Court Reporter Ruth Ekhaus. (Kang, Leila) (Filed on 10/7/2019) (Entered: 10/07/2019)

10/09/2019

45 TRANSCRIPT ORDER for proceedings held on 10/01/2019 before Judge William H. Orrick by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, for Court Reporter Ruth Ekhaus. (Handley, Cristen) (Filed on 10/9/2019) (Entered: 10/09/2019)

10/11/2019

46 Transcript of Proceedings held on 10/01/19, before Judge William H. Orrick. Court Reporter Ruth Levine Ekhaus, RDR, FCRR, CSR No. 12219, telephone number (415)3365223/ruth_ekhaus@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 45 Transcript Order, ) Release of Transcript Restriction set for 1/9/2020. (Related documents(s) 45 ) (rreS, COURT STAFF) (Filed on 10/11/2019) (Entered: 10/11/2019)

10/15/2019

47 ORDER GRANTING CLASS CERTIFICATION by Judge William H. Orrick granting 28 Motion to Certify Class. (jmdS, COURT STAFF) (Filed on 10/15/2019) (Entered: 10/15/2019)

10/17/2019 48 CORRECTED Transcript of Proceedings held on 10/1/19, before Judge William H. Orrick. Court Reporter Ruth Levine Ekhaus, RDR, FCRR,

CSR No. 12219, telephone number (415)3365223/ruth_ekhaus@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 45 Transcript Order, 44 Transcript Order ) Release of Transcript Restriction set for 1/15/2020. (Related documents(s) 45 , 44 ) (rreS, COURT STAFF) (Filed on 10/17/2019) (Entered: 10/17/2019)

12/10/2019

49 MOTION to Withdraw as Attorney for Plaintiffs filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. Motion Hearing set for 1/21/2020 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 12/24/2019. Replies due by 12/31/2019. (Attachments: # 1 Proposed Order)(Kang, Leila) (Filed on 12/10/2019) (Entered: 12/10/2019)

01/13/2020

50 Order by Judge William H. Orrick granting 49 Motion to Withdraw as Attorney by Leila Kang. (jmdS, COURT STAFF) (Filed on 1/13/2020) (Entered: 01/13/2020)

01/14/2020

51 CASE MANAGEMENT STATEMENT (Joint) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Exhibit Defs' Response to Pls First Set of ROGs, # 2 Exhibit Defs' Response to Pls First Set of RFPs)(Realmuto, Trina) (Filed on 1/14/2020) (Entered: 01/14/2020)

01/15/2020 52 NOTICE of Appearance by Marsha S. Edney (Edney, Marsha) (Filed on 1/15/2020) (Entered: 01/15/2020)

01/21/2020

53 Minute Entry for proceedings held before Judge William H. Orrick: Case Management Conference held on 1/21/2020. Motion Hearing set for 12/9/2020 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. FTR Time: 2:15-2:22. (jmdS, COURT STAFF) (Date Filed: 1/21/2020) Modified on 5/15/2020: Matter transcribed by Marla Knox. (rjdS, COURT STAFF). (Entered: 01/21/2020)

02/20/2020

54 Joint MOTION for Protective Order filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Responses due by 3/5/2020. Replies due by 3/12/2020. (Attachments: # 1 Proposed Agreed Protective Order)(Handley, Cristen) (Filed on 2/20/2020) (Entered: 02/20/2020)

03/06/2020

55 ORDER RE: CHANGES TO 54 AGREED PROTECTIVE ORDER. Signed by Judge William H. Orrick on 03/06/2020. (Attachments: # 1 Exhibit A) (jmdS, COURT STAFF) (Filed on 3/6/2020) (Entered: 03/06/2020)

03/18/2020

56 PROTECTIVE ORDER by Judge William H. Orrick granting 54 Motion for Protective Order. (jmdS, COURT STAFF) (Filed on 3/18/2020) (Entered: 03/18/2020)

04/30/2020

57 Consent MOTION for Extension of Time to Complete Discovery filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration, # 2 Proposed Order)(Handley, Cristen) (Filed on 4/30/2020) (Entered: 04/30/2020)

05/05/2020

58 Order by Judge William H. Orrick granting 57 Motion for Extension of Time to Complete Discovery. (jmdS, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)

05/05/2020 59 NOTICE of Change of Address by Trina Ann Realmuto (Realmuto, Trina) (Filed on 5/5/2020) (Entered: 05/05/2020)

05/15/2020

60 TRANSCRIPT ORDER for proceedings held on 1/21/2020 before Judge William H. Orrick by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, for Court Reporter FTR - San Francisco. (Handley, Cristen) (Filed on 5/15/2020) (Entered: 05/15/2020)

05/22/2020

61 Transcript of Electronic Proceedings held on January 21, 2020, before Judge William H. Orrick. Court Reporter, Marla F. Knox, RPR, CRR, RMR, telephone number (602) 391-6990. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 60 Transcript Order, ) Release of Transcript Restriction set for 8/20/2020. (Related documents(s) 60 ) (mfk, COURT STAFF) (Filed on 5/22/2020) (Entered: 05/22/2020)

06/02/2020 62 NOTICE of Change of Address by Mary A Kenney (Kenney, Mary) (Filed on 6/2/2020) (Entered: 06/02/2020)

08/07/2020

63 STIPULATION WITH PROPOSED ORDER for Entry of Stipulated Deposition Protocol filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 8/7/2020) (Entered: 08/07/2020)

08/10/2020

64 Order for Entry of Stipulated Deposition Protocol by Judge William H. Orrick re: 63 Stipulation. (jmdS, COURT STAFF) (Filed on 8/10/2020) (Entered: 08/10/2020)

08/18/2020 65 NOTICE of Substitution of Counsel by Matthew Charles Skurnik (Skurnik, Matthew) (Filed on 8/18/2020) (Entered: 08/18/2020)

09/18/2020

66 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14958153.) filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Certificate of Good Standing - WA State, # 2 Certificate of Admission to U.S. District Court, S.D. Texas)(Lieu, Tiffany) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/27/2020

67 Order by Judge William H. Orrick granting 66 Motion for Pro Hac Vice by Tiffany Lieu. (jmdS, COURT STAFF) (Filed on 9/27/2020) (Entered: 09/27/2020)

09/30/2020

68 Administrative Motion to File Under Seal filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Unredacted Version of Administrative Motion to Seal, # 2 Declaration, # 3 Proposed Order (Redacted), # 4 Proposed Order (Unredacted), # 5 Redacted Version of Plaintiffs' Motion for Summary Judgment, # 6 Unredacted Version of Plaintiffs' Motion for Summary Judgment, # 7 Redacted Version of Index of Exhibits in Support of Plaintiffs' Motion for Summary Judgment, # 8 Unredacted Version of Index of Exhibits in Support of Plaintiffs' Motion for Summary Judgment)(Realmuto, Trina) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

69 EXHIBITS re 68 Administrative Motion to File Under Seal filed byMaribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Exhibit D, # 2 Exhibit L, # 3 Exhibit M, # 4 Exhibit O, # 5 Exhibit Q, # 6 Exhibit R, # 7 Exhibit S, # 8 Exhibit V, # 9 Exhibit W, # 10 Exhibit X, # 11 Exhibit AA, # 12 Exhibit BB, # 13 Exhibit FF, # 14 Exhibit GG)(Related document(s) 68 ) (Realmuto, Trina) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

70 MOTION for Summary Judgment filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. Motion Hearing set for 12/9/2020 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 10/21/2020. Replies due by 11/4/2020. (Attachments: # 1 Redacted Index of Exhibits in Support of Plaintiffs' Motion for Summary Judgment, # 2 Proposed Order)(Realmuto, Trina) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

71 Declaration of Trina Realmuto in Support of 70 MOTION for Summary Judgment , 69 Exhibits to an Administrative Motion to File Under Seal, filed byMaribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Declaration Zachary Nightingale (Supplemental), # 2 Declaration Matthew Hoppock, # 3 Declaration Laura St. John, # 4 Declaration Andrea Saenz, # 5 Declaration Sabrina Damast, # 6 Declaration Hans Meyer, # 7 Exhibit B - OGIS Compliance Review, # 8 Exhibit C - Ltr. from Semo, # 9 Exhibit D (filed under seal), # 10 Exhibit E - DHS Backlog Reduction Plan 2020-23, # 11 Exhibit F - Holzer Deposition Excerpts, # 12 Exhibit G - Keenan Deposition Excerpts, # 13 Exhibit H - Meckley Deposition Excerpts, # 14 Exhibit I1 - FOIA Report FY2012, # 15 Exhibit I2 - FOIA Report FY2013, # 16 Exhibit I3 - FOIA Report FY2014, # 17 Exhibit I4 - FOIA Report FY2015, # 18 Exhibit I5 - FOIA Report FY2016, # 19 Exhibit I6 - FOIA Report FY2017, # 20 Exhibit I7 - FOIA Report FY2018, # 21 Exhibit I8 - FOIA Report FY2019, # 22 Exhibit J - Defs.' Resp. to ROG 16, # 23 Exhibit K - Defs.' Resp. to ROGs 21-24, # 24 Exhibit L (filed under seal), # 25 Exhibit M (filed under seal), # 26 Exhibit N - Defs.' Resp. to RFA 11, # 27 Exhibit O (filed under seal), # 28 Exhibit P - USCIS FOIA Backlog Reduction Plan (July 2020), # 29 Exhibit Q (filed under seal), # 30 Exhibit R (filed under seal), # 31 Exhibit S (filed under seal), # 32 Exhibit T - OGIS Compliance Review of ICE, # 33 Exhibit U - Defs.' Resp. to ROGs 4-5, # 34 Exhibit V (filed under seal), # 35 Exhibit W (filed under seal), # 36 Exhibit X (filed under seal), # 37 Exhibit Y - Stmt. of Holzer before Subcommittee, # 38 Exhibit Z - Talking Points (June 2019), # 39 Exhibit AA (filed under seal), # 40 Exhibit BB (filed under seal), # 41 Exhibit CC - USCIS FOIA Backlog Reduction Project (Apr. 2020), # 42 Exhibit DD - USCIS FOIA Backlog Reduction Project (Feb. 2020), # 43 Exhibit EE - USCIS FOIA Backlog Reduction Project (July 2020), # 44 Exhibit FF (filed under seal), # 45 Exhibit GG (filed under seal))(Related document(s) 70 , 69 ) (Realmuto, Trina) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

72 CERTIFICATE OF SERVICE by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale re 69 Exhibits to an Administrative Motion to File Under Seal, 68 Administrative Motion to File Under Seal (Realmuto, Trina) (Filed on 9/30/2020) (Entered: 09/30/2020)

10/13/2020

73 Application for Refund, Receipt Number 0971-14957916 by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Lieu, Tiffany) (Filed on 10/13/2020) (Entered: 10/13/2020)

10/16/2020 74 Refund Status re 73 Application for Refund Approved. (rghS, COURT STAFF) (Filed on 10/16/2020) (Entered: 10/16/2020)

10/21/2020

75 Cross MOTION for Summary Judgment and Opposition to 70 Plaintiffs' Motion for Summary Judgment filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Motion Hearing set for 12/9/2020 02:00 PM in To Be Determined before Judge William H. Orrick. Responses due by 11/4/2020. Replies due by 11/18/2020. (Attachments: # 1 Declaration of Cristen C. Handley, # 2 Exhibit Ex. 1 Declaration of Tammy Meckley, # 3 Exhibit 2 - DHS Deposition Excerpts, # 4 Exhibit 3 - USCIS Deposition Excerpts, # 5 Exhibit 4 Declaration of Fernando Pineiro, # 6 Exhibit 5 - ICE Deposition Excerpt, # 7 Exhibit 6 - Expert Declaration of Lindsay Steel, # 8 Exhibit 7 Declaration of James Holzer, # 9 Proposed Order )(Handley, Cristen) (Filed on 10/21/2020) Modified on 10/22/2020 (mclS, COURT STAFF). (Entered: 10/21/2020)

10/27/2020

76 Consent MOTION for Leave to File Declarations in Support of Plaintiffs' Administrative Motion to Seal filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration of Cristen C. Handley, # 2 Exhibit 1 - Declaration of Fernando Pineiro, # 3 Exhibit 2 - Redacted Version of Pls.' Ex. M, # 4 Exhibit 3 - Redacted Version of Pls.' Ex. Q, # 5 Exhibit 4 - Redacted Version of Pls.' Ex. R, # 6 Exhibit 5 - Redacted Version of Pls. Ex. S, # 7 Exhibit 6 - Redacted Version of Pls.' Ex. V, # 8 Exhibit 7 - Redacted Version of Pls.' Ex. W, # 9 Exhibit 8 - Redacted Version of Pls.' Ex. X, # 10 Exhibit 9 Redacted Version of Pls.' Ex. BB, # 11 Exhibit 10 - Redacted Version of Pls.' Ex. FF, # 12 Exhibit 11 - Redacted Version of Pls.' Ex. GG, # 13 Proposed Order)(Handley, Cristen) (Filed on 10/27/2020) Modified on 10/28/2020 (slhS, COURT STAFF). (Entered: 10/27/2020)

10/28/2020

77 ORDER GRANTING UNOPPOSED 76 MOTION FOR LEAVE TO FILE DECLARATIONS IN SUPPORT OF PLAINTIFFS' ADMINISTRATIVE MOTION TO SEAL by Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 10/28/2020) (Entered: 10/28/2020)

11/04/2020

78 Second Administrative Motion to File Under Seal filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Plaintiffs' Opposition and Reply - Redacted, # 4 Plaintiffs' Opposition and Reply - Unredacted)(Realmuto, Trina) (Filed on 11/4/2020) (Entered: 11/04/2020)

11/04/2020

79 OPPOSITION/RESPONSE (re 70 MOTION for Summary Judgment , 75 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment ) and Reply in Support of

Plaintiffs' Motion for Summary Judgment filed byMaribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 11/4/2020) (Entered: 11/04/2020)

11/04/2020

80 CERTIFICATE OF SERVICE by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale re 79 Opposition/Response to Motion, 78 Second Administrative Motion to File Under Seal (Realmuto, Trina) (Filed on 11/4/2020) (Entered: 11/04/2020)

11/09/2020

81 OPPOSITION/RESPONSE (re 78 Second Administrative Motion to File Under Seal ) filed byU.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Handley, Cristen) (Filed on 11/9/2020) (Entered: 11/09/2020)

11/18/2020

82 REPLY in Support (re 75 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment ) filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Declaration Declaration of Cristen C. Handley, # 2 Declaration Ex. 8 - Second Declaration of Fernando Pineiro, # 3 Declaration Ex. 9 Second Declaration of Tammy Meckley, # 4 Exhibit Ex. 10 - ICE 30(b)(6) Deposition Excerpts, # 5 Exhibit Ex. 11 - USCIS 30(b)(6) Deposition Excerpt)(Handley, Cristen) (Filed on 11/18/2020) (Entered: 11/18/2020)

12/03/2020

83 Consent ADMINISTRATIVE MOTION to Divide Time Between DOJ Counsel During MSJ Hearing filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Responses due by 12/7/2020. (Attachments: # 1 Declaration Declaration of Cristen C. Handley, # 2 Proposed Order Proposed Order)(Handley, Cristen) (Filed on 12/3/2020) (Entered: 12/03/2020)

12/03/2020

84 ORDER ON DEFENDANTS UNOPPOSED MOTION REGARDING HEARING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT by Judge William H. Orrick granting 83 Administrative Motion. (jmdS, COURT STAFF) (Filed on 12/3/2020) (Entered: 12/03/2020)

12/09/2020 85 CLERKS NOTICE SETTING ZOOM HEARING. Today's Motion Hearing set for 02:00 PM will be held via Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/who

General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcast ing of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 12/9/2020) (Entered: 12/09/2020)

12/09/2020

86 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 12/9/2020. Motions taken under submission; written order to follow. Total Time in Court: 1 hour, 5 minutes. Court Reporter: Ana Dub. (jmdS, COURT STAFF) (Date Filed: 12/9/2020) (Entered: 12/09/2020)

12/11/2020

87 TRANSCRIPT ORDER for proceedings held on 12/9/2020 before Judge William H. Orrick by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, for Court Reporter Ana Dub. (Skurnik, Matthew) (Filed on 12/11/2020) (Entered: 12/11/2020)

12/14/2020

88 TRANSCRIPT ORDER for proceedings held on 12/09/2020 before Judge William H. Orrick by Maribel Carandang, Cheryl David, Pao Lopa, Courtney McDermed, Zachary Nightingale, for Court Reporter Ana Dub. (Adams, Matthew) (Filed on 12/14/2020) (Entered: 12/14/2020)

12/17/2020

89 ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS FOR DECLARATORY AND INJUNCTIVE RELIEF; GRANTING MOTIONS TO SEAL by Judge William H. Orrick. Case Management Statement due by 3/30/2021. Further Case Management Conference set for 4/6/2021 02:00 PM in San Francisco, Courtroom 02, 17th Floor. (jmdS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)

12/17/2020 90 JUDGMENT. Signed by Judge William H. Orrick on 12/17/2020. (jmdS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)

12/21/2020

91 STIPULATION WITH PROPOSED ORDER to Extend the Deadline Under Rule 54(d) for Plaintiffs' Submission of Attorneys' Fees Motion filed by Maribel Carandang, Cheryl David, Pao Lopa, Courtney

McDermed, Zachary Nightingale. (Realmuto, Trina) (Filed on 12/21/2020) (Entered: 12/21/2020)

12/21/2020

92 Order to Extend the Deadline by Judge William H. Orrick granting 91 Stipulation. (jmdS, COURT STAFF) (Filed on 12/21/2020) (Entered: 12/21/2020)

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 Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 1 of 28

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

ZACHARY NIGHTINGALE, et al.,

Case No. 19-cv-03512-WHO

8

Plaintiffs,

ORDER GRANTING SUMMARY

9

v.

JUDGMENT IN FAVOR OF PLAINTIFFS FOR DECLARATORY

AND INJUNCTIVE RELIEF;

10

U.S. CITIZENSHIP AND IMMIGRATION GRANTING MOTIONS TO SEAL

SERVICES, et al.,

11

Defendants.

Re: Dkt. Nos. 68, 70, 75, 78

12

13

Plaintiffs and class members are noncitizens and attorneys who challenge the systemic

14 failure of the U.S. Department of Homeland Security (“DHS”) and its component agencies, U.S.

15 Citizenship and Immigration Services (“USCIS”) and U.S. Immigration and Customs

16 Enforcement (“ICE”) (collectively “defendants”), to respond to their requests for Alien

17 Registration Files (“A-Files”) within the statutory deadlines mandated by the Freedom of

18 Information Act (“FOIA”). Defendants admit that they have not complied with those FOIA

19 deadlines for at least the past eight years.

20

This noncompliance has real life consequences. Defendants serve as custodians of A-Files,

21 prosecutors in removal proceedings, and adjudicators of applications for immigration benefits.

22 Their delay in processing A-File FOIA requests deprives plaintiffs of the information they need to

23 defend against removal, to obtain benefits, and to gain citizenship. It undermines the fairness of

24 immigration proceedings, particularly for the vast number of noncitizens who navigate our

25 immigration system without assistance of counsel.

26

Despite defendants’ recent efforts to reduce the backlog of A-File FOIA requests, they

27 have not come close to resolving this systemic problem. A comprehensive remedy is needed and

28 is long overdue.

Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 2 of 28

United States District Court Northern District of California

1

In light of the undisputed history of defendants’ failure to meet FOIA statutory deadlines, I

2 GRANT summary judgment in favor of plaintiffs. I GRANT declaratory relief that defendants

3 have violated the FOIA by failing to make timely determinations on plaintiffs’ A-File FOIA

4 requests within the mandated statutory time frames and that defendants have engaged in a pattern

5 or practice of violating FOIA’s statutory deadlines when responding to requests for A-Files. I

6 ORDER injunctive relief in the following form: (i) defendants are permanently enjoined from

7 further failing to adhere to FOIA statutory deadlines for adjudicating A-File FOIA requests; (ii)

8 within sixty (60) days of this order, defendants must make determinations on all A-File FOIA

9 requests in USCIS’s and ICE’s backlogs; (iii) defendants must provide the court and class counsel

10 with quarterly compliance reports, with the first report due within ninety (90) days of this order.

11

A Case Management Conference is set for April 6, 2021 at 2:00 p.m. The parties shall file

12 a joint case management statement by March 30, 2021.

13

BACKGROUND

14

On October 15, 2019, I found that class certification was “appropriate in these

15 extraordinary circumstances” because plaintiffs “established that noncitizens nationwide

16 experience significant delays in obtaining their A-Files and that such delays are harmful to their

17 immigration cases.” Nightingale v. U.S. Citizenship & Immigration Servs., 333 F.R.D. 449, 453

18 (N.D. Cal. 2019). A “single injunction or declaratory judgment would provide relief to each

19 member of the proposed classes – the timely determination of their time-sensitive A-File FOIA

20 requests.” Id. The following two classes were certified:

21

USCIS Class: All individuals who filed, or will file, A-File FOIA

22

requests with USCIS which have been pending, or will be pending, with USCIS for more than 30 business days without a determination.

23

ICE Referral Class: All individuals who filed, or will file, A-File FOIA requests with USCIS that USCIS has referred, or will refer, to

24

ICE and which have been pending, or will be pending, for more than 30 business days from the date of the initial filing with USCIS without

25

a determination.

Id. at 456. 26

Plaintiffs now move for summary judgment and seek an order (i) declaring this pattern or 27

practice unlawful, (ii) permanently enjoining defendants from violating FOIA, (iii) ordering the 28

2

Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 3 of 28

United States District Court Northern District of California

1 elimination of existing backlogs within thirty (30) days, (iv) requiring regular compliance reports

2 to the court and class counsel, and (v) ordering defendants to provide notice and a uniform

3 procedural mechanism that will ensure that class members in removal proceedings can request and

4 receive A-Files in a timely manner. Plaintiffs’ Notice of Motion and Motion for Summary

5 Judgment (“MSJ”) [Dkt. No. 70].

6

Defendants cross-move for summary judgment on grounds that plaintiffs have failed to

7 establish a pattern or practice claim. Defendants’ Notice of Cross-Motion for Summary Judgment

8 and Opposition to Plaintiffs’ Motion for Summary Judgment (“Cross MSJ”) [Dkt. No. 75]. Even

9 if a pattern or practice is established, they ask that I decline to issue injunctive relief in light of

10 their recent efforts to comply with FOIA’s deadlines and reduce the backlog. I heard oral

11 argument on December 9, 2020.

12

LEGAL STANDARD

13

Summary judgment on a claim or defense is appropriate “if the movant shows that there is

14 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

15 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show

16 the absence of a genuine issue of material fact with respect to an essential element of the non-

17 moving party’s claim, or to a defense on which the non-moving party will bear the burden of

18 persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has

19 made this showing, the burden then shifts to the party opposing summary judgment to identify

20 “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary

21 judgment must present affirmative evidence from which a jury could return a verdict in that

22 party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986).

23

On summary judgment, the court draws all reasonable factual inferences in favor of the

24 non-movant. Id. at 255. In deciding the motion, “[c]redibility determinations, the weighing of the

25 evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a

26 judge.” Id. However, conclusory and speculative testimony does not raise genuine issues of fact

27 and is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594

28 F.2d 730, 738 (9th Cir. 1979). 3

Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 4 of 28

United States District Court Northern District of California

1

DISCUSSION

2 I. 3

PATTERN OR PRACTICE CLAIMS Before discussing the merits of plaintiffs’ pattern or practice claims, I start with an

4 overview of defendants’ obligations under FOIA and why those obligations are particularly

5 important in this case.

6

A. FOIA Statutory Deadlines

7

The FOIA statute requires that an agency make a determination on a FOIA request within

8 20 business days. 5 U.S.C. § 552(a)(6)(A)(i). An agency may extend its response time in case of

9 “unusual circumstances,” by no more than 10 business days provided it sends the requestor

10 “written notice.” 5 U.S.C. § 552(a)(6)(B)(i).

11

Congress recognized the importance of timely conveying the information sought through

12 FOIA. When it initially enacted a 10-day limit for responding to FOIA requests, it noted that

13 “information is often useful only if it is timely” and that the purpose of the time limit was to

14 require agencies “to respond to inquiries . . . within specific time limits.” H. Rep. No. 93-876, at

15 126 (1974), as reprinted in 1974 U.S.C.C.A.N. 6267, 6271. When Congress extended the deadline

16 to 20 days, it again recognized “[l]ong delays in access can mean no access at all,” and urged

17 agencies to “respond to requests in a timely manner.” H. Rep. No. 104-795, at 16-23, as reprinted

18 in 1996 U.S.C.C.A.N. 3459, 3466. Accordingly, “[i]n adopting the FOIA, Congress was

19 specifically concerned that agencies would delay in responding to requests, and as a result ‘an

20 agency’s failure to comply with the FOIA’s time limits is, by itself, a violation of the FOIA.’”

21 Our Children’s Earth Found. v. Nat’l Marine Fisheries Serv., No. 14-1130 SC, 2015 WL

22 4452136, at *7 (N.D. Cal. Jul. 20, 2015) (hereinafter “OCE I”) (quoting Gilmore v. U.S. Dep’t of

23 Energy, 33 F. Supp. 2d 1184, 1187 (N.D. Cal. 1998)); see also Long v. IRS, 693 F.2d 907, 910

24 (9th Cir. 1982) (concluding that an agency’s unreasonable delay in disclosing non-exempt

25 documents violates the FOIA and “courts have a duty to prevent these abuses”).

26

Although courts recognize that resources for FOIA compliance may be “heavily taxed by

27 the quantity and depth of FOIA requests (especially in light of budget constraints that limit

28 personnel and resources assigned to an agency), that does not grant the agency carte blanche to 4

Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 5 of 28

United States District Court Northern District of California

1 repeatedly violate congressionally mandated deadlines.” OCE I, 2015 WL 4452136, at *8.

2 Rather, it is incumbent on agencies to “inform Congress of the additional resources needed to fully

3 comply with the FOIA.” Gilmore, 33 F. Supp. 2d at 1188 (quoting H. Rep. No. 104-795, as

4 reprinted in 1996 U.S.C.C.A.N. 3448, 3472).

5

B. Importance of Timely Obtaining A-Files

6

Compliance with FOIA deadlines is especially important in the immigration context: It

7 provides an essential safeguard to plaintiffs who require a copy of their A-Files to pursue

8 immigration benefits or defend themselves or their clients against removal.1 See generally Ex. A1,

9 Declaration of Zachary Nightingale (“Nightingale Decl.”); Ex. A2, Declaration of Matthew

10 Hoppock (“Hoppock Decl.”); Ex. A3, Declaration of Laura St. John (“St. John Decl.”); Ex. A4,

11 Declaration of Andrea Sáenz (“Sáenz Decl.”); Ex. A5, Declaration of Sabrina Damast (“Damast

12 Decl.”); Ex. A6, Declaration of Hans Meyer (“Meyer Decl.”). A-Files include critical information

13 about past interactions between the individual and DHS; records of prior entries, admissions, or

14 removal orders; records of past statements; and records of past applications filed by the noncitizen

15 or on the noncitizen’s behalf. See Hoppock Decl. ¶¶ 9–12, 15–18; Damast Decl. ¶¶ 11–13, 15;

16 Sáenz Decl. ¶¶ 8–9; St. John Decl. ¶ 6; Meyer Decl. ¶ 7; Nightingale Decl. ¶ 2. Where an

17 individual is a victim of an immigration scam, mentally incompetent, or suffering from extreme

18 trauma, the A-File may be the only means available to discern their immigration history. See

19 Hoppock Decl. ¶ 13; St. John Decl. ¶¶ 5–6, 9; Sáenz Decl. ¶12.

20

Timely access to A-Files is vital for noncitizens in removal proceedings. A-File records

21 inform whether detained individuals—most of whom are unrepresented—can contest charges of

22 alienage or removability, are eligible for release on bond, and/or are eligible for relief from

23 removal. See Nightingale Decl. ¶¶ 2, 4, 16; Hoppock Decl. ¶¶ 9–12, 15; St. John Decl. ¶ 6; Sáenz

24 Decl. ¶ 8; Damast Decl. ¶¶ 4, 5, 12; Meyer Decl. ¶¶ 6, 9. Without access to the information in A-

25 Files, attorneys and pro se individuals are at a distinct disadvantage because the ICE prosecutor

26

27

1 “An A-File, or Alien File, is the official Government record that contains information regarding noncitizens as they pass through the U.S. immigration and inspection process.” Ex. B,

28

Compliance Review of U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security Freedom of Information Act Program, at Bates 81744.

5

Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 6 of 28

United States District Court Northern District of California

1 typically has access to and uses this information in prosecuting the case. See Hoppock Decl. ¶14;

2 Sáenz Decl. ¶¶ 9, 16; Nightingale Decl. ¶ 4.

3

Consequently, attorneys either must seek continuances to await the results of the FOIA

4 request or risk going to trial without the A-File. See Nightingale Decl. ¶ 6 (noting that ICE

5 prosecutors oppose motions to continue to await response to A-File FOIA requests). For detained

6 individuals, continuances result in longer detention, which, for some, is intolerable and leads them

7 to abandon meritorious claims in order to end detention. See St. John Decl. ¶ ¶10–12; Sáenz Decl.

8 ¶ 13; Nightingale Decl. ¶ 16; Hoppock Decl. ¶ 26; Meyer Decl. ¶ 7. If the immigration judge

9 (“IJ”) denies the continuance, or the case moves forward without the A-File, attorneys and their

10 clients must examine documents from the A-File for the first time at trial when the ICE prosecutor

11 submits them. See Hoppock Decl. ¶ 14; Damast Decl. ¶ 13.

12

Adherence to FOIA’s timeframes is critical because there is no adequate substitute for the

13 information contained in an A-File and FOIA is the primary, if not the only, mechanism for 14 accessing A-Files.2 Failure to timely respond to A-File FOIA requests creates an information

15 asymmetry that hinders plaintiffs in successfully applying for immigration benefits, challenging

16 removal orders, or seeking release from detention.

17

18 2 Defendants claim that noncitizens may access A-Files through Touhy regulations, criminal

19

proceedings, and pursuant to the Ninth Circuit’s holding in Dent v. Holder, 627 F.3d 365 (9th Cir. 2010. But, as plaintiffs point out, Touhy motions are inapplicable to individuals in removal

20

proceedings. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); 6 C.F.R. §§ 5.41– 5.45. Defendants do not provide any evidence that DHS honors Touhy motions for any part of an

21 A-File, much less the entire A-File.

22

For the subset of noncitizens subject to criminal proceedings, as defendants concede, any disclosure of records pursuant to Brady v. Maryland, 373 U.S. 83 (1963), “may [or may not]

23 include all or part of an A-File.” Cross MSJ 4.

24

A request for an A-File under Dent is equally unreliable. Defendants contend that “if requested by a respondent in an immigration proceeding (such as a removal proceeding) within the jurisdiction

25

of the Ninth Circuit, government attorneys may provide A-File materials where appropriate[.]” Cross MSJ 4 (emphasis added). Dent does not cover the class members in this case who are

26

outside of this Circuit. Even within this Circuit, plaintiffs testify that Dent motions are met with obstruction from DHS prosecutors, who tell attorneys and noncitizens that they must file a FOIA

27

request. See, e.g., Nightingale Decl. ¶ 5 (stating that Dent requests are “virtually always ineffective” because “OCC and DHS have not recognized an obligation under Dent to provide any

28

evidence at all, let alone the entire A-File”); Hoppock Decl. ¶ 20–21; John Decl. ¶ 14; Sáenz Decl. ¶ 7; Damast Decl. ¶ 6.

6

Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 7 of 28

United States District Court Northern District of California

1

At least three prior lawsuits have raised similar nationwide pattern or practice claims in the

2 immigration context. All of them either settled or were dismissed on standing grounds. See

3 Mayock v. I.N.S., 714 F. Supp. 1558 (N.D. Cal. 1989), rev’d sub nom. Mayock v. Nelson, 938 F.2d

4 1006 (9th Cir. 1991) (pattern or practice claim against then-named Immigration and Naturalization

5 Service (“INS”) brought by immigration attorney James R. Mayock; the parties settled after 6 remand from the Ninth Circuit)3; Hajro v. U.S. Citizenship & Immigration Servs., 832 F. Supp. 2d

7 1095 (N.D. Cal. 2011), rev’d in part, vacated in part, 811 F.3d 1086 (9th Cir. 2016) (pattern or

8 practice claim against USCIS brought by noncitizen Misrad Hajro and Mayock, the same attorney

9 who filed the earlier lawsuit; Ninth Circuit reversed for more fact-finding on the issue of

10 standing); Hajro v. United States Citizenship & Immigration Servs., 743 F. App’x 148, 149 (9th

11 Cir. 2018) (affirming district court order finding Mayock lacked standing to pursue the pattern or

12 practice claim); Brown v. U.S. Customs & Border Prot., 132 F. Supp. 3d 1170, 1171 (N.D. Cal.

13 2015) (denying motion to dismiss pattern or practice claim against CBP brought by several

14 immigration attorneys and noncitizens; the parties settled before the court adjudicated the motion

15 for class certification). These cases have not led to compliance, or anything close to it, with

16 FOIA’s statutory deadlines.

17

C. Plaintiffs Have Established a Pattern or Practice of FOIA Violations

18

With that context in mind, I turn to plaintiffs’ claim that defendants have a pattern or

19 practice of failing to meet FOIA’s statutory deadlines. The parties disagree on what plaintiffs

20 must show to establish their pattern or practice claims.

21

Defendants primarily cite D.C. Circuit law to argue that plaintiffs must clear an

22 “extraordinarily high bar to succeed on a pattern or practice claim under FOIA” because they are

23 required to show repeated delays that are “unexplained” or “unjustified,” and the repeated delays

24 here do not meet that threshold because defendants face an increasing FOIA workload. Cross

25

26 3 After remand from the Ninth Circuit, the parties entered into a settlement agreement in 1992, “in

27

which INS agreed to implement expedited processing of a FOIA request where the requester demonstrates that an individual’s life or personal safety would be jeopardized or that substantial

28

due process rights of the requester would be impaired by the failure to process a request immediately.” Hajro, 811 F.3d at 1093.

7

Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 8 of 28

United States District Court Northern District of California

1 MSJ 9–12. This articulation of the standard narrows what courts within this Circuit have found

2 sufficient to establish a FOIA pattern or practice claim.

3

The Hon. Paul S. Grewal’s opinion in Hajro, the 2008 case alleging USCIS’s pattern or

4 practice of FOIA violations, is instructive. He addressed three issues: (i) whether immigration

5 attorney Mayock had standing to assert a pattern or practice claim against USCIS; (ii) whether

6 noncitizen Hajro and Mayock established a pattern or practice of USCIS FOIA violations; and (iii)

7 whether injunctive relief was warranted to remedy a pattern or practice of FOIA violations.

8 Hajro, 832 F. Supp. 2d at 1105–09. In relevant part, he found that Hajro and Mayock established

9 their pattern or practice claim because not only was Hajro’s November 2007 request left

10 unanswered past the statutory deadline, “Mayock’s declaration [referred] to other requests for

11 which the government has not produced records in a timely manner, as well as the declarations

12 and exemplars of 26 other attorneys.” Id. at 1107. These declarations “testif[ied] to USCIS’s

13 persistent failures with respect to both requirements,” i.e., “the failure to provide a response within

14 twenty days and the failure to provide written notice setting forth the ‘unusual circumstances’ that

15 would qualify USCIS for a ten-day extension of time.” Id.

16

Judge Grewal rejected USCIS’s argument that “an agency’s delay in responding to a FOIA

17 request, standing alone, is not evidence of bad faith,” finding the argument “confuse[d] whether

18 the evidence supports a finding of a pattern or practice of FOIA violations with the basis for

19 injunctive relief.” Id. at 1107. He also rejected USCIS’s argument that “there is no evidence of a

20 pattern of unreasonable delay in USCIS’s FOIA responses to Hajro,” in light of clear evidence that

21 the three-month delay in Hajro’s request exceeded the time statutorily allowed for processing

22 FOIA requests. Id. Mayock similarly testified that USCIS never responded within the twenty-day

23 limit or with an explanation requiring more time for the FOIA requests he has made on behalf of

24 his clients. Id.

25

Judge Grewal concluded:

26

In sum, the experiences of Plaintiffs establish a pattern or practice of

27

violations. And twenty-six other attorneys have testified to encountering the same delays in the same context as Hajro and

28

Mayock. Defendants have not offered evidence to the contrary, pointed out inconsistencies in the record that would suggest a genuine

8

Case 3:19-cv-03512-WHO Document 89 Filed 12/17/20 Page 9 of 28

United States District Court Northern District of California

issue of fact for trial, or come forward with even assertions that

1

USCIS is in compliance with the timing requirements of FOIA. Thus

Defendants have not met their burden under Rule 56 and summary

2

judgment on this issue in favor of plaintiffs is warranted.

3 Id. at 1108. He ultimately found that injunctive relief was warranted in order to remedy the

4 pattern or practice of FOIA violations. Id.

5

The Ninth Circuit reversed and remanded on a separate issue. It found that Hajro’s pattern

6 or practice claim was moot once he became a citizen because “the probability that USCIS’s delays

7 ‘will impair [Hajro’s] lawful access to information in the future’ is now remote.” Hajro v. U.S.

8 Citizenship & Immigration Servs., 811 F.3d 1086, 1102 (9th Cir. 2016) (quoting Payne Enters.,

9 Inc. v. U.S., 837 F.2d 486, 491 (D.C. Cir. 1988)). It “clarif[ied] the standing requirements to

10 assert a FOIA pattern or practice claim,” and remanded the case for determination of “whether

11 Mayock has standing to bring a pattern or practice claim under this standard.” Id. at 1092–93.

12 The Ninth Circuit’s decision only addressed the standing requirement for raising a pattern or

13 practice claim, not the standard to establish the actual claim. Judge Grewal’s opinion accurately

14 describes the burden plaintiffs must meet in order to establish their pattern or practice claim.4

15

Another FOIA case from this District, Our Children’s Earth Found. v. Nat’l Marine

16 Fisheries Serv., No. 14-1130 SC, 2015 WL 6331268 (N.D. Cal. Oct. 21, 2015) (hereinafter “OCE

17 II”), further confirms that a FOIA pattern or practice claim can be established through evidence of

18 chronic delay and backlogs. The evidence in that case “show[ed] an unmistakable history that the

19 Fisheries Service fail[ed] to meet its statutory deadlines under FOIA and cause[d] Plaintiffs (and

20 likely others similarly situated) to suffer unpredictable, unreasonable delays.” Id. at *8. In

21 particular, the court found that “[t]he fact that there was in the first place a backlog of over 100

22 cases to so dramatically reduce is itself a red flag indicating the potential for FOIA compliance

23 issues,” and “[t]his potential [was] confirmed by evidence Plaintiffs provide[d] of a pattern-and-

24 practice of FOIA violations through affidavits, briefs, FOIA response letters, and inconsistencies

25 within the NMFS’s own documentation.” Id. “Exhibits submitted by Plaintiffs show[ed] a history

26

27

4 The Ninth Circuit subsequently affirmed Judge Grewal’s finding that Mayock lacked standing to bring the claim, noting that because Hajro and Mayock did not bring their pattern or practice claim

28

as a class action, they could not amend their complaint once their claims became moot. Hajro, 743 F. App’x at 150.

9

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1 of late responses, ranging but not limited to 4 days, 18 days, 51 days, 9 months, 10 months, and

2 ongoing.” Id.

3

Defendants in OCE II did not dispute “[t]he fact that these response were tardy”; instead,

4 they claimed that the statutory deadlines are not absolute.” Id. The court dismissed that argument

5 because “laxity in the rules cannot justify the sheer volume of the violation history evidenced just

6 between Plaintiffs and the Fisheries Service.” Id. “[T]he evidence [was] clear as to whether a

7 pattern-and-practice existed in the past,” and plaintiffs provided a “reasonable basis to believe that

8 these infractions will be ongoing.” Id.

9

Similarly, no genuine issue of material fact exists here regarding defendants’

10 “unmistakable history” of failing to make timely determinations on A-File FOIA requests. USCIS

11 has reported a backlog for each of the last eight years, a backlog that is much larger than the one at

12 issue in OCE II. The backlog has increased in recent years—growing from 16,247 in FY 2015 to

13 25,446 in August 2020. See Ex. H, USCIS 30(b)(6) Deposition of Tammy Meckley, Associate

14 Director of the Immigration Records and Identity Services Directorate (“Meckley Dep.”) at 49:16.

15 It increased by more than 6,000 cases between June and August 2020. See. Ex. L, Email from

16 Elliot B. Viker to Tammy Meckley et al. dated May 29, 2020; Ex. M, Email from Cynthia M.

17 Cornell to Cynthia L. Holt et al. dated August 28, 2020. Ninety-nine percent of the total FOIA

18 requests that USCIS receives are A-File FOIA requests that “account for the largest portion of

19 DHS’ FOIA backlog.” Meckley Dep. at 51:12-16; Ex. N, Defendants’ Response to Plaintiffs’

20 First Set of Requests for Admission at 7. Plaintiffs submit the following table to summarize

21 USCIS’s historical backlog:

22

DATE

23 FY 2012

24 FY 2013

25

RECEIVED 117,787
132,797

BACKLOG 10,727
3,394

SOURCE5 Ex. I1, FY2012 DHS FOIA Report at 19–20 Ex. I2, FY2013 DHS FOIA Report at 18

26 5 References to the “DHS FOIA Report” are to the Freedom of Information Report to the Attorney

27

General of the United States and the Director of the Office of Government Information Services, which are available by fiscal year at https://www.dhs.gov/foia-annual-reports. Plaintiffs submit

28 the relevant portions of those reports as Exhibit I.

10

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1 FY 2014

143,794

5,026

Ex. I3, FY2014 DHS FOIA Report at 19

2 FY 2015

162,986

16,247

Ex. I4, FY2015 DHS FOIA Report at 20

3 FY 2016

166,732

35,763

Ex. I5, FY2016 DHS FOIA Report at

4 FY 2017

190,941

37,887

19–20 Ex. I6, FY2017 DHS FOIA Report at

5 FY 2018

191,804

41,329

19 Ex. I7, FY2018 DHS FOIA Report at

6

21

June 19, 2019 – Nightingale v. USCIS filed

7 September 2019 – USCIS invokes “unusual circumstances”

in all Track 2 and 3 A-File FOIA Requests6

8 FY 2019

200,174

14,773

Ex. I8, FY2019 DHS FOIA Report at

9 Jun. 30, 2020

21,160

29 Ex. K, Defendants’ Response to

10

Plaintiffs’ Second Set of

11 Aug. 31, 2020

25,446

Interrogatories at 3 Meckley Dep. at 49:16

12

The average processing time for USCIS continues to exceed well beyond the statutory

13 deadline of 20-days, or-30-days in “unusual circumstances.” In June 2019, when this lawsuit was

14 filed, the average processing time for Track 2 (the complex track where USCIS processes most A-

15 File requests) was between 55 and 90 days. The average as of September 2020 was 71 days.

16 Meckley Dep. at 152:8–15. Named plaintiffs and numerous other immigration attorneys also

17 testified that USCIS has failed to respond to their A-File FOIA requests within the statutory

18 timeframe. See Nightingale Decl. ¶¶ 11, 14 (reporting over seven month delays); Hoppock Decl. ¶

19 22 (“[M]any months or years.”); St. John Decl. ¶ 8–9 (three to six months for “basic” requests, and

20 often over a year); Sáenz Decl. ¶ 11 (“[M]onths or even years.”); Damast Decl. ¶ 9 (six months to

21 over a year); Meyer Decl. ¶ 5 (reporting “six months to over a year” for USCIS files and “twelve

22 to twenty-four months” for ICE documents).

23

24 6 See Ex. I8, FY2019 DHS FOIA Report at 27 (“In September 2019 USCIS began claiming

25 unusual circumstances for Track 2 and Track 3 requests. This change removed 2,338 cases from the backlog at the end of FY2019.”). At the hearing, the parties disputed whether it was

26 appropriate for USCIS to categorically invoke “unusual circumstances” under 5 U.S.C. §

552(a)(6)(B)(i) in this way. I need not decide that issue here. I note, however, that the certified 27 USCIS Class and ICE Referral Class account for this additional time as it covers individuals who

28

have had their A-File FOIA requests pending with defendants “for more than 30 business days without a determination.”

11

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1

ICE has also reported a backlog for each year since 2012 that has steadily increased since

2 2015. As of August 11, 2020, ICE’s backlog recorded at 56,661 requests. Ex. G, ICE 30(b)(6)

3 Deposition of Catrina Pavlik Keenan (“Keenan Dep.”) at 179:15–19. The “vast majority” of

4 ICE’s backlog consists of A-File FOIA requests; all of ICE’s backlogged A-File FOIA requests

5 originated with USCIS as the custodian of A-Files. Id. at 72:18–22, 78:13–22. Despite purported

6 enhanced efforts in FY 2020, discussed further below, ICE projects that its backlog will not be

7 eliminated until September 2021. Ex. 4, Declaration of Fernando Pineiro, ICE Acting FOIA

8 Officer (“Pineiro Decl.”) ¶ 5. Plaintiffs submit the following table to summarize ICE’s historical

9 backlog:

10

DATE

RECEIVED

BACKLOG

SOURCE7

11 FY 2012

24,073

2,443

Ex. I1, FY2012 DHS FOIA Report at 19

12 FY 2013

34,161

4,714

Ex. I2, FY2013 DHS FOIA Report at

13 FY 2014

85,081

56,863

18 Ex. I3, FY2014 DHS FOIA Report at

14

FY 2015

44,748

555

19 Ex. I4, FY2015 DHS FOIA Report at

15

20

FY 2016

63,385

471

16

Ex. I5, FY2016 DHS FOIA Report at 19

17 FY 2017

47,893

391

Ex. I6, FY2017 DHS FOIA Report at 19

18 FY 2018

70,267

1,3328

Ex. I7, FY2018 DHS FOIA Report at 21

19 June 19, 2019 – Nightingale v. USCIS filed

FY 2019 20

64,231

1,4939

Ex. I8, FY2019 DHS FOIA Report at 14

21 Jun. 30, 2020

62,471

Ex. K, Defendants’ Response to Plaintiffs’ Second Set of

22

Interrogatories at 4

23

24 7 See supra note 5.

25

8 Plaintiffs contend that DHS’s annual report did not account for 17,043 referrals from USCIS and that the actual backlog was 18,375. See Ex. I7, FY2018 DHS FOIA Report at 6; Ex. K,

26 Defendants’ Response to Plaintiffs’ Second Set of Interrogatories at 2–3.

27

9 Plaintiffs contend that DHS’s annual report did not account for 59,123 referrals from USCIS and that the actual backlog was 60,616. See Ex. I8, FY2019 DHS FOIA Report at 14; Ex. K,

28 Defendants’ Response to Plaintiffs’ Second Set of Interrogatories at 3.

12

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1 Aug. 31, 2020

56,661

Keenan Dep. at 179:15–19

DHS ultimately shares responsibility with its component agencies for the chronic failure to 2

comply with the FOIA statute. It admits that “FOIA backlogs have continued to be a systemic 3

problem at DHS” and that “[r]equests for A-file material comprise the vast majority of DHS’s 4

FOIA workload.” Ex. E, DHS FOIA Backlog Reduction Plan 2020-2023 at Bates 88275–76; see 5

also Ex. Z, Talking Points on FOIA Operations at DHS (Jun. 5, 2019), at Bates 103827 6

(acknowledging “FOIA backlogs are a systemic issue at DHS”).10 7

Defendants do not rebut the evidence discussed above. They do not dispute that there has 8

been a systemic failure across the agencies to make timely determinations on A-File FOIA 9

requests and that noncitizens experience significant delays in obtaining their A-Files nationwide. 10

See Ex. D, DHS Chief Privacy Officer Privacy Office Overview at Bates 85216-REP (“There are 11

consistent and systematic delays with FOIA processing, which adversely impact [noncitizens], 12

delays immigration proceedings, and potentially extends detention.”); Ex. E, DHS FOIA Backlog 13

Reduction Plan 2020-2023 at Bates 88274–75 (“Requestors need [A-File] records for personally 14

critical and often time-sensitive reasons—they might be applying for benefits, facing deportations, 15

or challenging their employment termination.”). 16

Instead, defendants contend that the backlogs fail to reflect the incredible volume of 17

incoming A-File requests received since 2012 and their good faith efforts to address the problem. 18

But as Judge Grewal found in Hajro, this argument appears to “confuse whether the evidence 19

supports a finding of a pattern or practice of FOIA violations with the basis for injunctive relief,” a 20

separate inquiry that I will address below. Hajro, 832 F. Supp. 2d at 1107. 21

22

23

10 Defendants argue that plaintiffs cannot show that DHS has been engaging in its own independent pattern or practice of FOIA violations because, by design, DHS components have

24

their own FOIA offices and DHS headquarters generally is not involved in the direct processing of FOIA requests received by its components. Cross MSJ 20; see Ex. 7, Declaration of James

25

V.L.M. Holzer, DHS Deputy Chief FOIA Officer (“Holzer Decl.”) ¶¶ 4–5. Nonsense. DHS is responsible for providing oversight of its components’ FOIA programs. Id. ¶ 7. DHS also

26

acknowledges that “[d]ecentralization of the FOIA program at the Department causes problems in program coordination and workforce management making it difficult for the DHS FOIA enterprise

27

to share manpower coordinate surge efforts and plan for future challenges.” Ex. E, DHS FOIA Backlog Reduction Plan 2020-2023 at Bates 88281; see also Ex. AA, DHS FOIA Presentation

28

(Jun. 5, 2019), at Bates 103815, 103817 (listing “decentralization” as one of the “FOIA Primary Challenges”).

13

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1

Defendants cite Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991), in support of their

2 contention that increased workloads and efforts to reduce backlogs are part of the pattern or

3 practice inquiry here. Cross MSJ 11. In that case, immigration attorney Mayock, the same

4 plaintiff who later filed the Hajro lawsuit in 2008, sued the San Francisco INS office for failing to

5 timely process A-File FOIA requests. The INS argued that “it can be relieved of the strict

6 deadlines by [section] 552(a)(6)(C).” Mayock v. I.N.S., 714 F. Supp. 1558, 1563 (N.D. Cal. 1989);

7 see 5 U.S.C. § 552(a)(6)(C)(i) (“If the Government can show exceptional circumstances exist and

8 that the agency is exercising due diligence in responding to the request, the court may retain

9 jurisdiction and allow the agency additional time to complete its review of the records.”)

10 (emphasis added).

11

The court found it “doubtful whether [section] 552(a)(6)(C) was really intended by

12 Congress to answer the problems presented by this case” because “[t]hat section appears to

13 contemplate separate suits in district court to enforce specific FOIA requests” and “does not

14 expressly address the ‘pattern and practice’ problem.” 714 F. Supp at 1565. Assuming the section

15 applied, the court “ha[d] difficulty finding that a normal, predictable workload is an ‘exceptional

16 circumstance,’ especially where the INS has made no showing that it has unsuccessfully sought

17 more FOIA resources from Congress or attempted to redirect its existing resources.” Id. at 1565–

18 66 (emphasis added). It concluded that “section 552(a)(6)(C) is not a defense available to the INS

19 in this case,” because “[w]hile that section might be invoked as a reason for requesting additional

20 time for individual requests that are large or complicated, it does not constitute a defense to delays

21 that result from the ordinary course of business in processing FOIA requests.” Id. at 1566.

22

The Ninth Circuit reversed, finding that it was “not clear that the district court considered

23 the government’s evidence in its entirety.” 938 F.2d at 1008. In particular, it found that the

24 district court failed to consider one of the government’s declarations that “created a dispute over

25 material facts, including whether the government had attempted to get increased funding in order

26 to reduce its backlog.” Id. Because the Ninth Circuit in Mayock remanded to the district court for

27 more fact-finding on agency workload, defendants argue that I should consider further fact finding

28 here as well. 14

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1

I will assume that the “exceptional circumstances” and “due diligence” defenses are

2 applicable to the pattern or practice claims in this case.11 But the voluminous record here does not

3 support defendants’ position.

4

A few years after Mayock, Congress tightened the definition of “exceptional

5 circumstances” in the 1996 amendments to the FOIA statute: “For purposes of this subparagraph,

6 the term ‘exceptional circumstances’ does not include a delay that results from a predictable

7 agency workload of requests under this section, unless the agency demonstrates reasonable

8 progress in reducing its backlog of pending requests.” 5 U.S.C. § 552(a)(6)(C)(ii) (emphasis

9 added). Here, a reasonable fact finder could only conclude that defendants’ increasing workload

10 was predictable. We are not considering a sudden spike in cases; defendants have had a FOIA

11 backlog every year since at least 2012.

12

Moreover, since 2017 these defendants have employed aggressive immigration

13 enforcement policies that made an increasing workload predictable and expected. The unfortunate

14 reality is that FOIA is the only realistic mechanism through which noncitizens can obtain A-Files.

15 Given the critical importance of the information in A-Files to removal defense and legalizing

16 status, it is not at all surprising that the number of A-File FOIA requests have increased along with

17 this increase in immigration enforcement. See, e.g., Ex. 1, Declaration of Tammy M. Meckley

18 (“Meckley Decl.”) ¶ 30 (table demonstrating “from FY 2012 to FY 2020, there has been a steady

19 rise in FOIA requests submitted to USCIS”).

20

Nor does the record demonstrate reasonable progress in reducing the backlog of pending

21 requests. Defendants contend that the FOIA offices within USCIS and ICE have submitted

22 requests to leadership within their respective agencies on an annual basis seeking enhancements to

23

24

11 Plaintiffs argue that the issues on appeal in Mayock were whether and how the district court was required to consider the “exceptional circumstances” and “due diligence” defenses under to 5

25

U.S.C. § 552(a)(6)(C) as applied to the plaintiff’s FOIA requests, but that those defenses are not applicable here where a class has been certified. Plaintiffs’ Opposition to Defendants’ Cross-

26

Motion for Summary Judgment and Reply in Support of Plaintiffs’ Motion for Summary Judgment (“Pls. Oppo.”) [Dkt. No. 79] 5. Defendants respond that there is no reason why absence

27

of class-certification questions in Mayock, which is otherwise on all fours with this case, would allow me to disregard the Ninth Circuit’s analysis. Defendants’ Reply in Support of Cross-Motion

28

for Summary Judgment (“Defs. Reply”) [Dkt. No. 82] 4. The Ninth Circuit’s short opinion in Mayock does not squarely address this question.

15

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1 their FOIA programs, including additional FOIA personnel, investment funds (such as the $10

2 million investment for FIRST), overtime approval, approval to hire contractors, and technological

3 improvements. See Keenan Dep. at 48:10–49:2; Meckley Dep. at 58:21–59:5; Meckley Decl. ¶¶

4 24–25. But when questioned by members of Congress about delayed A-File FOIA processing,

5 neither DHS’s Deputy Chief FOIA Officer nor USCIS’s Senior Executive requested, or even

6 suggested, that the agencies would benefit from additional or specifically-designated funding for

7 FOIA processing. See Ex. Y, Statement of James V.M.L. Holzer, Deputy Chief FOIA Officer

8 before Subcommittee on Oversight, Management, and Accountability (failing to raise the issue at

9 October 17, 2019 congressional hearing).

10

Rather than seek congressional funding, defendants continue to rely on a patchwork of

11 short-term fixes—overtime, staff detailed from other departments, and contract support—none of

12 which has succeeded in the long-term. Holzer Decl. ¶ 8 (“DHS Privacy Office at times assists it

13 components with processing certain types of requests in order to reduce outstanding backlogs.”);

14 Meckley Decl. ¶¶ 71, 77 (“USCIS has [] entered into a number of contracts to retain FOIA

15 processors,” and these contracts “typically contain a base period of one year and several option

16 years”; USCIS has also authorized overtime in an effort to address the backlog,” and “[w]hile

17 overtime is not a panacea solution, if the agency has not authorized overtime, the backlog today

18 would be significantly larger”). Defendants contend that since 2010, USCIS’s FOIA office has

19 grown from 48 government information specialists to 162. Meckley Decl. ¶ 69. But their own

20 expert reports that in FY 2019, “USCIS faced 22.8% of all FOIA requests [government-wide]

21 with only 7.04% of the government’s FOIA staff.” Ex. 6, Expert Declaration of Lindsay Steel

22 (“Steel Decl.”) ¶ 17. One would expect that as an agency that “consistently receives more FOIA

23 requests on an annual basis than any other federal agency,” USCIS would have a proportionately

24 higher number of FOIA staff to meet that demand. Id. ¶ 15.

25

Defendants’ explanation of why USCIS does not routinely request FOIA funding from

26 Congress is unconvincing. They contend that because Congress has designated USCIS as an

27 agency that does not receive congressional appropriations for its FOIA operations, USCIS has to

28 rely on its own generated income. Cross MSJ 18 (citing 8 U.S.C. §§ 1356(m), (n)). 8 U.S.C. § 16

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1 1356(m) applies to “adjudication fees as are designated by the Attorney General in regulations,”

2 whereas the mechanism for FOIA processing and production fees are designated by Congress

3 under 5 U.S.C. § 552(a)(4)(A). Even if 8 U.S.C. § 1356(m) is applicable, nothing in that statute

4 prevents DHS or USCIS from seeking additional or independent funding from Congress to

5 resource their FOIA operations to ensure compliance.12

6

The Ninth Circuit has recognized that “Congress wrote a tough statute on agency delay in

7 FOIA compliance, and recently made it tougher,” and “[t]hough FOIA doubtless poses practical

8 difficulties for federal agencies, federal agencies can educate Congress on the practical problems

9 they have, and attempt to persuade Congress to change the law or provide additional funds to

10 achieve compliance.” Fiduccia v. U.S. Dep’t of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999)

11 (emphasis added); see id. at 1041–42 (finding district court erred in finding “exceptional

12 circumstances” where the Federal Bureau of Investigation (“FBI”) had an increasing workload

13 since the early 1980s and claimed an “unexceptional . . . slight upward creep in the caseload”;

14 while the FBI claimed “repeated rejection of its budget requests within the executive branch . . .

15 before the requests even got to Congress,” “[t]he decision of the executive branch not to pass on

16 the bureau’s request to the legislative branch would be consistent with a policy choice by the

17 executive branch to delay FOIA requests rather than ask for additional funds to meet them in a

18 timely way”). There is no evidence in the record that defendants have even attempted, let alone

19 succeeded, in persuading Congress to change the law or provide additional funds to achieve

20 compliance.13

21

22 12 USCIS also complains that it recently tried to increase its fees through a new regulation that

23

could have added more resources to its FOIA budget, but that effort is currently preliminary enjoined in this District. See Immigrant Legal Res. Ctr. v. Wolf, No. 20-CV-05883-JSW, 2020

24

WL 5798269, at *1 (N.D. Cal. Sept. 29, 2020) (granting preliminary injunctive relief to plaintiff organizations that serve low-income applicants for immigration benefits and staying USCIS rule

25

implementing fee changes for immigration benefit requests). This argument is particularly troubling as it insinuates that FOIA processing is entirely dependent on the fees paid by the very

26 people who are harmed by the defendants’ delays.

27

13 At the hearing, defendants stated that due to the COVID-19 pandemic, USCIS saw a 50% drop in incoming immigration -related fees. This budget shortfall prompted it to request $1.2 billion in

28

emergency funds from Congress. There is no indication that any part of this $1.2 billion request is earmarked for FOIA processing, as opposed to general operating expenses.

17

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1

In sum, the evidence is clear that USCIS, ICE and DHS have a pattern of unreasonable

2 delay in responses to A-File FOIA requests. Even if there is no “egregious” policy to violate

3 FOIA’s statutory deadlines, “informal agency conduct resulting in long delays in making

4 requested non-exempt records available may serve as the basis for a policy or practice claim.”

5 Nightingale, 333 F.R.D. at 460 (quoting Judicial Watch, Inc. v. United States Dep’t of Homeland

6 Sec., 895 F.3d 770, 777–78 (D.C. Cir. 2018)). Defendants cannot use a predictably increasing

7 workload to excuse their chronic failure to make timely determinations on A-File FOIA requests.

8

Summary judgment is GRANTED in plaintiffs’ favor because no genuine issue of material

9 fact exists concerning defendants’ pattern or practice of not making timely determinations on A-

10 File FOIA requests. I GRANT declaratory relief that (i) defendants have violated the FOIA by

11 failing to make timely determinations on plaintiffs’ A-File FOIA requests within the statutory time

12 frames mandated by FOIA and that (ii) defendants have engaged in a long-standing pattern or

13 practice of violating FOIA’s statutory deadlines when responding to requests for A-Files. See

14 OCE I, 2015 WL 4452136, at *7 (“[E]ntering declaratory judgment that the agency violated the

15 FOIA is appropriate when the agency has a pattern and practice of violating these time limits.”)

16 (citing Payne, 837 F.2d at 494–95).

17 II. INJUNCTIVE RELIEF

18

Injunctive relief is warranted in order to remedy a pattern or practice of FOIA violations by

19 an agency where there is “a probability that alleged illegal conduct will recur in the future.” Long

20 v. IRS, 693 F.2d 907, 909 (9th Cir. 1982). “In determining whether injunctive relief is appropriate

21 to resolve a FOIA dispute, the court’s prime consideration should be the effect on the public of

22 disclosure or nondisclosure.” Id. Where “prolonged delays have repeatedly hindered the timely

23 disclosure of non-exempt documents, the district court should seriously consider the likelihood of

24 recurrence, weighing the good faith of any expressed intent to comply, the effectiveness, if any, of

25 the discontinuance and the character of past violations.” Id.

26

The “prime consideration,” the effect on the public of disclosure or nondisclosure, weighs

27 heavily in favor of plaintiffs as class members who must rely on FOIA in order to obtain records

28 necessary to determine eligibility for immigration benefits, defend against removal, or challenge 18

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1 ongoing detention. Defendants admit that the “current FOIA process raises several concerns,”

2 including delay that “adversely impacts [noncitizens], delays immigration proceedings, and

3 potentially extends detention.” Ex. D, DHS Chief Privacy Officer Privacy Office Overview at

4 Bates 85216-REP.

5

The likelihood of recurrence continues as thousands of class members either still have

6 unanswered A-File FOIA requests in the agencies’ backlog or will file an A-File FOIA request

7 that will likely end up in the backlog. The character of the past violations, discussed above, also

8 weighs in favor of granting injunctive relief.

9

Defendants’ recent efforts, including those taken in response to this lawsuit, do not

10 undermine the need for comprehensive injunctive relief. They have done little to address the

11 systemic problem and do not indicate that defendants have created a path forward towards

12 achieving substantial compliance with FOIA’s statutory deadlines.

13

A. Defendants’ Efforts to Increase Efficiencies

14

Defendants argue that they have shown good faith effort to comply in future. They

15 primarily point to two recent improvements—a software program called “FIRST” and a new inter-

16 agency Memorandum of Agreement executed between USCIS and ICE (the “2020 MOA”).

17

1. FIRST

18

In May 2018, USCIS introduced FIRST, a new system that “allows users to submit and

19 track FOIA requests and receive documents digitally.” Press Release, USCIS Expands FIRST: A

20 Fully Digital FOIA System (Jun. 25, 2019), available at https://www.uscis.gov/news/news-

21 releases/uscis-expands-first-a-fully-digital-foia-system; see Meckley Dep. at 52:9–10, 53:4–9.

22 FIRST focuses on making the FOIA intake and delivery process more efficient, but it fails to

23 address the most time-consuming steps in between – document retrieval. Meckley Dep. 123:5–11,

24 229:16–230:1. The retrieval of documents is time-consuming because A-Files may be stored in

25 multiple locations across the country, including the National Records Center (“NRC”), off-site

26 commercial storage vendors, or “hundreds of different field offices.” Id. at 115:15–116:13,

27 123:5–11.

28

While USCIS “acknowledge[s] that FIRST does not loosen every knot in the FOIA system

19

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1 that causes delayed determination on certain A-Files” and admits that FIRST “does not reduce the

2 time it takes to physically scan paper A-Files,” it points to a separate multi-million dollar project

3 pursued to digitize existing paper A-File records. Cross MSJ 16; Meckley Decl. ¶ 15. A 2016

4 study prompted the agency to conclude that continuing digitization efforts on existing paper

5 records was not “cost efficient.” Meckley Decl. ¶ 15. The agency instead determined that the

6 better option would be to focus on decreasing its reliance on paper records in the future and

7 increasing the use of electronic records from intake of an application through the agency’s

8 determination on that application. Id. As defendants themselves recognize, “[w]hile there have

9 been some efforts to digitize some of the forms in A-Files, the records are largely paper-based.”

10 Ex. E, DHS FOIA Backlog Reduction Plan 2020-2023 at Bates 88275.

11

USCIS contends that the NRC is generally able to scan and ingest paper A-Files within

12 three business days. It does not say if any of the hundreds of field officers where A-Files may be

13 located have a similar capability. Indeed, if files are located at a field office, the files are mailed to

14 the NRC for scanning, another cause for the delay. Meckley Dep. at 226:13–227:10.

15

Defendants submit that FIRST has reduced the average processing time from 1 hour 14

16 minutes to 51 minutes, 30 seconds. Meckley Decl. ¶¶ 50, 52. That is all well and good, but the

17 agency only starts processing the request, i.e., reviewing the record for release or redactions, once

18 all A-File records are scanned into FIRST. Meckley Dep. 113:4–15; see also Ex. E, DHS FOIA

19 Backlog Reduction Plan 2020-2023 at Bates 88275 (“To process a FOIA request for an A-file,

20 USCIS must locate and retrieve the file and digitize its contents using a high speed scanner before

21 the documents can be reviewed.”) (emphasis added). FIRST may introduce some efficiencies in

22 intake and delivery but it does little to address the time-consuming part of the process.14

23

24

14 The parties disagree on whether FIRST is hampered by problems with its implementation and underutilized by requesters. See Hoppock Decl. ¶¶ 27–36 (testifying that FIRST is

25

“inaccessible”); Ex. CC, USCIS FOIA Reduction Project (Apr. 7, 2020) at Bates 702-SUPP (“FIRST slows down overall FOIA process,” and USCIS must “[m]itigate FIRST risks with Dev

26

Team and end user learning curve.”); Ex. EE, USCIS FOIA Reduction Project (Jul. 7, 2020) at Bates 705-SUPP (“FIRST development [was] slowed by remediation actions” and that

27

“[a]dditional testing and code reviews” were required; due to a “FIRST data security incident,” it had to request that 344 individuals return or destroy records); Meckley Decl. ¶ 53–56 (USCIS has

28

around 10 developers working on additional enhancements to FIRST and is continually searching for ways to increase functionality); Compare id. ¶ 57 (incoming requests skyrocketed from around

20

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2. 2020 MOA 1
Prior to June 2020, USCIS reviewed the documents within an A-File and referred 2
documents with ICE equities to ICE for its own separate review and direct response to the 3
requester. Ex. 4, Declaration of Fernando Pineiro (“Pinerio Decl.”) ¶ 13. On June 1, 2020, 4
USCIS and ICE implemented the MOA to streamline processing ICE records within an A-File. 5
Pursuant to this agreement, USCIS is now responsible for processing ICE records contained 6
within an A-File. See Ex. FF (copy of the 2020 MOA). 7
The scope of the agreement is as follows: 8

9

USCIS will process all ICE records within A-files responsive to FOIA requests. Processing of ICE records shall be completed in accordance

10

with training and guidance provided to USCIS by ICE. Once processing is complete ICE will have 48 hours to review, incorporate

11

any additional withholdings, as appropriate, and approve the release of ICE records. Once approved, or at the expiration of 48 hours,

12

whichever occurs first, ICE records will be electronically delivered to USCIS for final approval, close out and delivery to the FOIA

13

requester. In the event ICE records warrant further review, ICE will notify USCIS within the first 36 hours of receipt and complete its

14

review and provide its response back to USCIS no later than 24 hours beyond the original 48 hours allotted. This will occur on a case by

15

case basis and will not be considered common practice. See attached Appendix B for general outline of USCIS and ICE responsibilities.

16 Id. at 2.

17

Given that the vast majority (91%) of ICE’s backlog consists of A-File referrals from

18 USCIS, defendants contend that the 2020 MOA structural shift has enabled ICE to prevent

19 additional increases in its referral backlog. It can instead focus its resources singularly on

20 eliminating its remaining backlog of 27,836 (as of October 15, 2020), which it anticipates doing

21 by the end of the current fiscal year (September 30, 2021). See Pineiro Decl. ¶ 5, 11, 26–27.15

22

Despite USCIS and ICE’s assertions that they are “committed to renewing the agreement

23

24

4% to 50% since the system launched) with Ex. DD, USCIS FOIA Reduction Project (Feb. 11, 2020) at Bates 703-SUPP (reporting 28% of total receipts in the first quarter of FY 2020 were

25

requests made through FIRST). But even if the system is properly utilized and free of glitches, FIRST only focuses on the intake and delivery process and does little to improve the overall

26 efficiency of responding to FOIA requests.

27

15 It is worth noting that this timeframe is at odds with ICE’s claim that, as of October 2020, it is processing an average of 8,000 backlogged FOIA requests per month since, at that rate, the

28

remaining backlog of approximately 28,000 cases would be cleared by the end of January or February 2021. See Pineiro Decl. ¶¶ 5, 27.

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1 for years to come,” there is no guarantee that the 2020 MOA will continue beyond FY 2021.

2 Cross MSJ 18; Pinerio Decl ¶ 23; Meckley Decl ¶ 65. Indeed, the two agencies entered into a

3 similar cooperative agreement in FY 2012, only to have it end “after a cost analysis conducted by

4 ICE revealed that it was more cost-effective to open the Orlando ICE FOIA office and have

5 contractors there work through the USCIS A-File referrals than it was to pay USCIS to continue

6 processing the records via the MOA.” Pinerio Decl. ¶ 19.

7

To the extent that this MOA remains in place, it will—for FOIA requests filed after June 1,

8 2020—resolve only one aspect of the agencies’ delays in responding to A-File FOIA requests:

9 ICE’s delays in processing its own records. The MOA does not address USCIS’s years-old

10 backlog. If anything, the MOA increases USCIS’s workload by requiring it to process ICE

11 records instead of referring documents to ICE. Furthermore, while the MOA contains time limits

12 for ICE to reply once its portion of an A-File is processed, it does not similarly bind USCIS.

13 USCIS still must process both its own documents and ICE documents prior to transferring the file

14 to ICE for review, but without any deadlines to prevent delay.

15

The 2020 MOA appears to be a step in the right direction, but it is not enough to show that

16 defendants are on a path towards substantial compliance with FOIA statutory deadlines.

17

3. Statistics on Backlog Size and Average Processing Time

18

Despite FIRST, the 2020 MOA, and at least three prior lawsuits raising nationwide pattern

19 or practice claims in the immigration FOIA context, the size of USCIS and ICE’s backlog has not

20 significantly reduced. Average processing time remains well beyond the statutory deadlines.

21 Defendants argue that plaintiffs have ignored USCIS’s most significant achievement--USCIS has

22 reduced its processing time for Track 3 priority requests (requests from individuals who are

23 scheduled to appear before an immigration judge) to 33 business days and even further to 26

24 business days on average as of the date of the defendants’ cross-motion filing. Meckley Decl. ¶¶

25 21, 42. This statistic is a snapshot in time that reflects the average in the last three months. The

26 average processing time for Track 3 requests for the entire FY 2020 was 54.75 business days. Id.

27 ¶ 42.

28

The statistic ignores the status of all other A-File requests in Track 1 (simple requests) and

22

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1 Track 2 (complex requests). The record shows that more than a year after this lawsuit was filed,

2 USCIS processing time has not changed significantly for Track 2 cases, the track where USCIS

3 processes most A-File requests. At the time the Complaint was filed, the average processing time

4 was between 55 and 90 days; the average now is 71 days. Meckley Dep. at 152:8–15. An average

5 of 71 days is well above the statutory 20 or 30-day limit.

6

Defendants assert that are while they are still working on improving their Track 1 and 2

7 requests, their designated expert has found that “USCIS generally processes its FOIA requests in a

8 reasonable amount of time under the circumstances and compared to other agencies.” Steel Decl.

9 ¶ 14. Using other agencies’ failures to meet mandatory FOIA deadlines as comparators is, at best,

10 irrelevant. This case concerns USCIS’s violation of the FOIA statute and the impact it is having

11 on class members. The significant negative consequence to plaintiffs in immigration proceedings

12 caused by defendants’ delay is hardly reasonable and it is not excusable, particularly given that

13 Congress has set clear statutory deadlines.

14

While “not all agency delay or other failure to comply with FOIA’s procedural

15 requirements will warrant judicial intervention,” Judicial Watch, 895 F.3d at 782, the Ninth

16 Circuit has recognized that “unreasonable delays in disclosing non-exempt documents violate the

17 intent and purpose of the FOIA, and the courts have a duty to prevent these abuses,” Long, 693

18 F.2d at 910. Given defendants’ long and continuing history of backlogs, their admissions that

19 even on average they continue to fail to comply with the statutory timelines, and the inadequate

20 efforts they have made so far to solve the issue, I find that injunctive relief is appropriate and

21 necessary to remedy this almost decade-long systemic problem.

22

B. Requested Forms of Relief

23

Plaintiffs request relief in the following four forms: (i) permanently enjoin defendants from

24 continuing to violate FOIA, ordering them to adhere to the FOIA timing requirements; (ii) clear

25 the A-File FOIA backlog within thirty (30) days; (iii) provide the court and class counsel with

26 quarterly reports on compliance; and (iv) order DHS and ICE to provide notice to all persons in

27 removal proceedings of their right to request their A-File through FOIA and how to do so.

28

Ordering defendants to adhere to FOIA timing requirements and provide quarterly reports

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1 on their compliance are forms of relief that are ordinarily granted by courts where an agency

2 routinely violates a statute or regulation. See, e.g., Hajro, 832 F. Supp. 2d at 1120 (ordering

3 USCIS to comply with FOIA timing provisions); Gonzalez Rosario v. United States Citizenship &

4 Immigration Servs., 365 F. Supp. 3d 1156, 1163 (W.D. Wash. 2018) (enjoining defendants from

5 further failing to adhere to 30-day deadline for adjudicating applications for employment

6 authorization documents and ordering them to submit status reports every six months regarding

7 the rate of their compliance with the 30-day timeline). Defendants’ argument to the contrary is

8 unconvincing.

9

Defendants contend that an order requiring elimination of the backlog within thirty (30)

10 days, is “unworkable” and “likely impossible.” Cross MSJ 23–24. I do not require 100%

11 compliance. I do expect substantial compliance within sixty (60) days in light of the importance

12 of plaintiffs’ receipt of A-files in a timely fashion.

13

Plaintiffs’ final form of requested relief, an order compelling DHS and ICE to provide

14 notice to all persons in removal proceedings of their right to request their A-File through FOIA

15 and how to do so, is different. Plaintiffs assert that neither ICE attorneys nor IJs adequately

16 inform detained or pro se class members in removal proceedings of their right to request their A-

17 Files through FOIA. St. John Decl. ¶ 13; Hoppock Decl. ¶ 25; Nightingale Decl. ¶ 17; Meyer

18 Decl. ¶ 7; Damast Decl. ¶ 14; see also Keenan Dep. at 67:5–68:5 (no knowledge of whether ICE

19 prosecutors or IJs notify individuals). As such, injunctive relief compelling defendants to timely

20 notify individuals in removal proceedings of their right to request A-Files through FOIA would

21 ensure that plaintiffs are “actually inform[ed].” Nozzi v. Hous. Auth., 806 F.3d 1178, 1194 (9th

22 Cir. 2015); see Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). In

23 addition, plaintiffs argue that injunctive relief allowing detained or pro se class members in

24 removal proceedings to file an A-File FOIA request via a mechanism other than the internet or

25 U.S. mail, e.g., by providing it to ICE at a removal hearing, would ensure that A-File FOIA

26 requests are filed and timely processed. This is especially true given that ICE prosecutors

27 generally possess the A-File during removal proceedings. Hoppock Decl. ¶ 14; Sáenz Decl. ¶¶ 9,

28 16. 24

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1

Defendants are aware of this problem. DHS has acknowledged that “[p]ro se litigants who

2 lack expertise to file FOIA requests are routinely unable to obtain copies of their A-Files or do not

3 receive it in a timely fashion to adequately represent themselves,” and that “[t]his increases the

4 likelihood that DHS will improperly remove individuals who do not fall under any of the

5 Department’s enforcement priorities.” Ex. D, DHS Chief Privacy Officer Privacy Office

6 Overview at Bates 85216-REP.

7

Plaintiffs cite case law concerning the Due Process Clause, not FOIA, in support of this

8 relief. To be sure, there are a number of ways that the federal government could make

9 immigration proceedings more fair. Plaintiffs’ requested relief would be a small, useful and

10 inexpensive step in that direction. But plaintiffs filed a FOIA case, not a due process challenge.

11 FOIA does not explicitly or implicitly require the additional notice plaintiffs seek.

12

I have broad equitable powers under FOIA, but I cannot see how this particular form of

13 injunctive relief “is necessary to effectuate the congressional purpose behind the [FOIA] statute.”

14 Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 (9th Cir. 2002); see Long, 693 F.2d at

15 909 (“[T]he Supreme Court held that Congress did not intend to limit the court’s exercise of its

16 inherent equitable powers where consistent with the FOIA.”) (citing Renegotiation Bd. v.

17 Bannercraft Clothing Co., 415 U.S. 1, 20 (1974)) (emphasis added); see, e.g., Animal Legal Def.

18 Fund v. United States Dep’t of Agric., 935 F.3d 858, 873 (9th Cir. 2019) (district court had

19 authority under FOIA to stop the agency from holding back records it has a duty to make

20 available, which includes requiring an agency to post certain categories of documents in online

21 reading rooms pursuant to the FOIA “reading-room” provision). I conclude that I lack

22 jurisdiction to grant plaintiffs’ final form of requested relief.

23 III. MOTIONS TO SEAL

24

Plaintiffs have filed two motions to seal material designated as confidential by defendants.

25 Administrative Motion to Seal [Dkt. No. 68] (portions of Plaintiffs’ Motion for Summary

26 Judgment, Index of Exhibits, and Exhibits D, L, M, O, Q, R, S, V, W, X, AA, BB, FF, and GG);

27 Second Administrative Motion to Seal [Dkt. No. 78] (portions of Plaintiffs’ Opposition to

28 Defendants’ Cross Motion for Summary Judgment and Reply in Support of Plaintiffs’ Motion for 25

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1 Summary Judgment).

2

Defendants only seek to seal certain limited information from ten of the fourteen exhibits,

3 seven of which contain personal identifying information of certain government employees

4 (Exhibits M, Q, R, S, W, FF, and GG) and three of which contain non-final agency deliberations

5 that reveal defendants’ conditional decision-making (Exhibits V, X, and BB). Declaration of

6 Cristen C. Handley in Support of Plaintiffs’ Administrative Motion to Seal [Dkt. No. 76-1].

7 Because defendants do not seek to seal any information on the remaining four exhibits (Exhibits

8 D, L, O, and AA), Plaintiffs’ Motion for Summary Judgment, Index of Exhibits, and Plaintiff’s

9 Opposition/Reply, those documents will be filed on the public docket. Id.; Defendants’ Response

10 to Plaintiffs’ Second Administrative Motion to Seal [Dkt. No. 81].

11

Defendants have shown a compelling reason to keep personal identifying information

12 sealed and their request is narrowly tailored to only sealable material. See Declaration of

13 Fernando Pineiro [Dkt. No. 76-2] ¶ 7 (explaining that disclosure of the private contact information

14 of ICE and USCIS employees would cause unnecessary harm and subject them to harassment).

15 Motion to seal portions of exhibits M, Q, R, S, W, FF, and GG is GRANTED.

16

Defendants also contend that the non-final deliberative material in Exhibits V, X, and BB

17 should be sealed. Exhibits V and X are draft briefing presentations in which a senior ICE official

18 presented recommendations to another senior ICE official concerning the acquisition of additional

19 resources for the ICE FOIA Division. Id. ¶ 5. The presentations include three options for seeking

20 additional resources and recommend one. Id. Because the documents do not include ICE’s final

21 decision about whether and how to seek additional resources, defendants assert that public release

22 of the deliberations in these draft presentations would have an “immediate chilling effect on ICE’s

23 future deliberations” and on its decision-making process. Id. Exhibit BB is a document that

24 contains internal comments, proposed responses, and discussion bullets for a December 18, 2019

25 meeting between ICE and USCIS. Id. ¶ 6. Defendants state this document also reflects non-final

26 agency deliberations and its public release would have an “immediate chilling effect on the

27 willingness of ICE officials to engage in free and frank discussions and could cause confusion for

28 the public.” Id. I did not use those portions of the exhibits in my analysis of the motions and 26

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1 agree with defendants that they may be sealed as requested. I GRANT defendants’ motion to seal

2 portions of exhibits V, X and BB.

3

CONCLUSION

4

For the reasons set forth above, summary judgment is GRANTED in favor of plaintiffs and

5 against defendants with respect to plaintiffs’ pattern or practice claims. I ORDER the following:

6

Declaratory Relief:

7

Defendants have violated the FOIA by failing to make timely determinations on plaintiffs’ A-

8

File FOIA requests within the mandated statutory time frames. Defendants have engaged in a

9

pattern or practice of violating FOIA’s statutory deadlines when responding to requests for A-

10

Files.

11

Injunctive Relief:

12

a. Adhere to FOIA Timing Requirements: Defendants are permanently enjoined from further

13

failing to adhere to the statutory deadlines for adjudicating A-File FOIA requests, as set

14

forth in 5 U.S.C.§§ 552(a)(6)(A) and (B);

15 b. Eliminate the Backlogs: Within sixty (60) days of this order, defendants shall make

16

determinations on all A-File FOIA requests in USCIS’s and ICE’s backlogs;

17

c. Quarterly Compliance Reports: Until further order, defendants shall provide this court and

18

class counsel with quarterly reports containing information regarding the number and

19

percentage of A-File FOIA requests that were filed and timely completed as well as the

20

number and percentage of cases that remain pending beyond the twenty or thirty-day

21

statutory periods, respectively 5 U.S.C.§§ 552(a)(6)(A) and (B). The first compliance

22

report is due within ninety (90) days of this order.

23

Motion to Seal

24

Defendants’ request to seal portions of exhibits M, Q, R, S, W, V, X , BB, FF, and GG is

25 GRANTED.

26

27

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1

A Status Conference is set for April 6, 2021 at 2:00 p.m. The parties shall file a joint

2 status report by March 30, 2021.

3

IT IS SO ORDERED.

4 Dated: December 17, 2020

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William H. Orrick United States District Judge

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