Case: 4:17-cv-6029 As of: 07/03/2020 01:14 PM PDT 1 of 7
ADRMOP,CASREF,CONSENT,PRVADR
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:17−cv−06029−DMR

Immigrant Legal Resource Center v. United States Department of Homeland Security et al Assigned to: Magistrate Judge Donna M. Ryu Demand: $0 Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/20/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Immigrant Legal Resource Center

represented by Emma Clare Trotter 1001 Pine St. #102 San Francisco, CA 94109 United Sta Email: ectrotter@gmail.com TERMINATED: 05/14/2019

Naomi Ariel Igra Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 415−772−1495 Email: nigra@sidley.com ATTORNEY TO BE NOTICED

Sue Wang Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 415−772−1243 Fax: 415−772−7400 Email: sue.wang@sidley.com ATTORNEY TO BE NOTICED

Wesley M Chao Sidley Austin LLP 555 California Street, Suite 2000 San Francisco, CA 94104 415−772−1200 Email: wchao@sidley.com ATTORNEY TO BE NOTICED

W. Hardy Callcott Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 (415)772−1200 Fax: (415)772−7400 Email: hcallcott@sidley.com ATTORNEY TO BE NOTICED

V.
Defendant
United States Department of Homeland Security

represented by David Alejandro Pereda Office of The Oakland City Attorney Litigation Division

Case: 4:17-cv-6029 As of: 07/03/2020 01:14 PM PDT 2 of 7

Defendant
United States Immigration & Customs Enforcement

1 Frank H. Ogawa Plaza 6th Floor Oakland, CA 94612 (510) 235−6520 Fax: (510) 238−6500 Email: dpereda@oaklandcityattorney.org TERMINATED: 11/28/2018 LEAD ATTORNEY
Emmet P. Ong United States Attorney's Office 1301 Clay Street, Suite 340−S Oakland, CA 94612−5217 (510) 637−3929 Fax: (510) 637−3724 Email: emmet.ong@usdoj.gov ATTORNEY TO BE NOTICED
Wendy M. Garbers United States Attorney's Office Northern District of California 450 Golden Gate Ave., 9th Floor San Francisco, CA 94102 (415) 436−6475 Email: wendy.garbers@usdoj.gov TERMINATED: 09/10/2019
represented by David Alejandro Pereda (See above for address) TERMINATED: 11/28/2018 LEAD ATTORNEY
Emmet P. Ong (See above for address) ATTORNEY TO BE NOTICED
Wendy M. Garbers (See above for address) TERMINATED: 09/10/2019

Date Filed 10/20/2017
10/20/2017 10/20/2017 10/20/2017 10/23/2017

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971−11816257.). Filed byImmigrant Legal Resource Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet)(Callcott, W.) (Filed on 10/20/2017) (Entered: 10/20/2017)
2 Proposed Summons. (Callcott, W.) (Filed on 10/20/2017) (Entered: 10/20/2017)
3 Certificate of Interested Entities by Immigrant Legal Resource Center (Callcott, W.) (Filed on 10/20/2017) (Entered: 10/20/2017)
4 NOTICE by Immigrant Legal Resource Center Corporate Disclosure Pursuant to Fed. R. Civ. P. 71 (Callcott, W.) (Filed on 10/20/2017) (Entered: 10/20/2017)
5 Case assigned to Judge Saundra Brown Armstrong.
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.

Case: 4:17-cv-6029 As of: 07/03/2020 01:14 PM PDT 3 of 7

10/23/2017 10/23/2017 10/23/2017 11/21/2017 11/21/2017 11/24/2017 01/10/2018
01/10/2018 01/10/2018 01/24/2018 01/30/2018
02/01/2018 02/05/2018 02/05/2018

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. (srnS, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
6 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 1/24/2018. Initial Case Management Conference set for 1/31/2018 02:30 PM. (jmlS, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
7 Summons Issued as to United States Department of Homeland Security, United States Immigration & Customs Enforcement, U.S. Attorney and U.S. Attorney General (jmlS, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
8 CASE MANAGEMENT SCHEDULING ORDER FOR CIVIL CASE. Signed by Judge Saundra B. Armstrong on 10/23/17. (dtmS, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
9 CERTIFICATE OF SERVICE by Immigrant Legal Resource Center re 3 Certificate of Interested Entities, 4 Notice (Other), 1 Complaint, 7 Summons Issued as to USA, 2 Proposed Summons, 8 Order, 6 Initial Case Management Scheduling Order with ADR Deadlines (Callcott, W.) (Filed on 11/21/2017) (Entered: 11/21/2017)
10 SUMMONS Returned Executed (FOIA) by Immigrant Legal Resource Center. All Defendants. (Attachments: # 1 Mail Certification)(Callcott, W.) (Filed on 11/21/2017) (Entered: 11/21/2017)
11 ANSWER to Complaint byUnited States Immigration & Customs Enforcement. (Pereda, David) (Filed on 11/24/2017) (Entered: 11/24/2017)
12 STIPULATION and Proposed Order selecting Private ADR by Immigrant Legal Resource Center Joint Request For Relief From Automatic Referral To ADR Multi−Option Program; Proposed Order filed by Immigrant Legal Resource Center. (Callcott, W.) (Filed on 1/10/2018) Modified on 1/11/2018 (jmlS, COURT STAFF). (Entered: 01/10/2018)
13 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Callcott, W.) (Filed on 1/10/2018) (Entered: 01/10/2018)
14 Order by Judge Saundra Brown Armstrong granting 12 Stipulation for Relief from Automatic Referral to ADR Multi−Option Program.(dtmS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)
15 JOINT CASE MANAGEMENT STATEMENT and Proposed Order filed by Immigrant Legal Resource Center. (Callcott, W.) (Filed on 1/24/2018) Modified on 1/25/2018 (jmlS, COURT STAFF). (Entered: 01/24/2018)
16 CLERK'S NOTICE. You are hereby notified that the Telephonic Case Management Conference set for 1/31/2018 is continued to 2/1/2018 at 2:30 pm. Call−in instructions are contained in Entry 8 . (This is a text−only entry generated by the court. There is no document associated with this entry.) Initial Case Management Conference set for 2/1/2018 02:30 PM. (dtmS, COURT STAFF) (Filed on 1/30/2018) (Entered: 01/30/2018)
17 Minute Entry for proceedings held before Judge Saundra Brown Armstrong: Initial Case Management Conference held on 2/1/2018. Consent/Declination due by 2/5/2018.Court Reporter: Not Reported. (dtmS, COURT STAFF) (Date Filed: 2/1/2018) (Entered: 02/01/2018)
18 CONSENT to Proceed Before a US Magistrate Judge by United States Department of Homeland Security, United States Immigration & Customs Enforcement. (Pereda, David) (Filed on 2/5/2018) Modified on 2/6/2018 (jmlS, COURT STAFF). (Entered: 02/05/2018)
19 ORDER OF REFERENCE TO MAGISTRATE JUDGE DONNA M. RYU FOR ALL PURPOSES. Signed by Judge Saundra Brown Armstrong on 2/5/18. (dtmS,

Case: 4:17-cv-6029 As of: 07/03/2020 01:14 PM PDT 4 of 7

02/06/2018 02/13/2018 03/01/2018 03/02/2018 03/05/2018 04/10/2018 04/12/2018
04/18/2018
08/08/2018 08/15/2018 08/15/2018

COURT STAFF) (Filed on 2/5/2018) (Entered: 02/06/2018)
20 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Donna M. Ryu for all further proceedings. Judge Saundra Brown Armstrong no longer assigned to the case. Signed by Executive Committee on 2/6/2018. (jmlS, COURT STAFF) (Filed on 2/6/2018) (Entered: 02/06/2018)
21 CLERK'S NOTICE: Parties are hereby notified that an Initial Case Management Conference has been set on 3/21/2018 01:30 PM before Magistrate Judge Donna M. Ryu in Courtroom No. 4, Third Floor, U.S. District Court, 1301 Clay Street, Oakland, CA 94612. The joint case management conference statement is due on 3/14/2018. (ig, COURT STAFF) (Filed on 2/13/2018) (Entered: 02/13/2018)
22 Notice of Unavailability of Counsel by United States Department of Homeland Security, United States Immigration & Customs Enforcement. (Pereda, David) (Filed on 3/1/2018) Modified on 3/2/2018 (cjlS, COURT STAFF). (Entered: 03/01/2018)
23 STIPULATION WITH [PROPOSED] ORDER on Request to Postpone Date of Case Management Conference filed by Immigrant Legal Resource Center, United States Immigration & Customs Enforcement, United States Department of Homeland Security. (Attachments: # 1 Proposed Order)(Callcott, W.) (Filed on 3/2/2018) Modified on 3/5/2018 (cjlS, COURT STAFF). (Entered: 03/02/2018)
24 ORDER by Magistrate Judge Donna M. Ryu granting 23 Stipulation to continue Initial Case Management Conference. Joint Case Management Statement due by 4/11/2018. Initial Case Management Conference continued to 4/18/2018 01:30 PM. (ig, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)
25 SECOND JOINT CASE MANAGEMENT STATEMENT & Proposed Order filed by Immigrant Legal Resource Center, United States Immigration & Customs Enforcement, and United States Department of Homeland Security. (Callcott, W.) (Filed on 4/10/2018) Modified on 4/11/2018 (jjbS, COURT STAFF). Modified on 4/11/2018 (jjbS, COURT STAFF). (Entered: 04/10/2018)
26 CLERK'S NOTICE: The court has reviewed the second joint case management statement [Docket 25]. It is unclear whether the parties are asking that the 4/18/2018 01:30 PM Initial Case Management Conference be continued for 120 days, or whether the parties want the court to hold the 4/18/2018 Initial Case Management Conference, and set a further case management conference at that time. [See Docket 25 at page 6: lines 13−18]. If either party would like to go forward with the 4/18/2018 Initial Case Management Conference, counsel for that party should notify Ivy Garcia (510−637−3639) by noon on 4/16/2018. If no call is received, the 4/18/2018 01:30 PM Initial Case Management Conference will be vacated and continued to 8/15/2018 01:30, with an updated joint case management statement due on 8/8/2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 4/12/2018) (Entered: 04/12/2018)
27 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Initial Case Management Conference held on 4/18/2018. The parties reported that they continue to engage in meet−and−confer discussions to resolve or narrow disputed issues. Updated Joint Case Management Statement due by 8/8/2018. Further Case Management Conference set for 8/15/2018 01:30 PM. FTR Time: 2:01−2:04. Attachment: Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 4/18/2018) (Entered: 04/19/2018)
28 JOINT CASE MANAGEMENT STATEMENT filed by United States Department of Homeland Security., Immigrant Legal Resource Center, and United States Immigration & Customs Enforcement. (Pereda, David) (Filed on 8/8/2018) Modified on 8/9/2018 (jjbS, COURT STAFF). (Entered: 08/08/2018)
29 PDF with attached Audio File. Court Date & Time [ 8/15/2018 1:54:41 PM ]. File Size [ 6224 KB ]. Run Time [ 00:12:58 ]. (courtspeak). (Entered: 08/15/2018)
30 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Further Case Management Conference held on 8/15/2018. Updated Joint Case Management Statement due by 10/24/2018. Further Case Management Conference set for 10/31/2018 01:30 PM. FTR Time: 1:54−2:07. Attachment:

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10/24/2018
10/25/2018 11/28/2018 02/08/2019 02/12/2019
02/13/2019 05/14/2019 05/14/2019
05/28/2019
05/29/2019 05/30/2019 08/27/2019 09/10/2019 09/19/2019

Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 8/15/2018) (Entered: 08/16/2018)
31 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference; [Proposed] Order filed by Immigrant Legal Resource Center, United States Immigration & Customs Enforcement, and United Department of Homeland Security. (Callcott, W.) (Filed on 10/24/2018) Modified on 10/25/2018 (jjbS, COURT STAFF). (Entered: 10/24/2018)
32 Order by Magistrate Judge Donna M. Ryu granting 31 Stipulation Continuing Case Management Conference. Case Management Statement due by 2/13/2019. Further Case Management Conference set for 2/20/2019 01:30 PM.(dtmS, COURT STAFF) (Filed on 10/25/2018) (Entered: 10/25/2018)
33 NOTICE of Substitution of Counsel by Wendy M. Garbers (Garbers, Wendy) (Filed on 11/28/2018) (Entered: 11/28/2018)
34 NOTICE of Substitution of Counsel by Naomi Ariel Igra (Igra, Naomi) (Filed on 2/8/2019) (Entered: 02/08/2019)
35 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by Immigrant Legal Resource Center, United States Immigration & Customs Enforcement, and United States Department of Homeland Security. (Callcott, W.) (Filed on 2/12/2019) Modified on 2/13/2019 (jjbS, COURT STAFF). (Entered: 02/12/2019)
36 ORDER (AS MODIFIED) by Magistrate Judge Donna M. Ryu granting 35 Stipulation to Continue: Joint Case Management Statement due by 5/29/2019. Further Case Management Conference continued to 6/5/2019 01:30 PM. (ig, COURT STAFF) (Filed on 2/13/2019) (Entered: 02/13/2019)
37 NOTICE of Change In Counsel by Emma Clare Trotter (Trotter, Emma) (Filed on 5/14/2019) (Entered: 05/14/2019)
***DISREGARD ENTRY*** Electronic filing error. Per Local Rules, Motion for Substitution of Counsel is required. [err101] This filing will not be processed by the clerks office Re: 37 Notice of Change In Counsel filed by Immigrant Legal Resource Center. (cjlS, COURT STAFF) (Filed on 5/14/2019) Modified on 5/14/2019 (cjlS, COURT STAFF). Modified on 5/14/2019 (cjlS, COURT STAFF). (Entered: 05/14/2019)
38 STIPULATION WITH [PROPOSED] ORDER to Extend Case Management Conference filed by Immigrant Legal Resource Center, United States Department of Homeland Security, United States Immigration & Customs Enforcement. (Callcott, W.) (Filed on 5/28/2019) Modified on 5/29/2019 (cjlS, COURT STAFF). (Entered: 05/28/2019)
39 Order by Magistrate Judge Donna M. Ryu granting 38 Stipulation Continuing Case Management Conference. Case Management Statement due by 9/25/2019. Further Case Management Conference set for 10/2/2019 01:30 PM.(dtmS, COURT STAFF) (Filed on 5/29/2019) (Entered: 05/29/2019)
40 NOTICE of Appearance by Wesley M Chao (Chao, Wesley) (Filed on 5/30/2019) (Entered: 05/30/2019)
41 NOTICE of Appearance by Sue Wang (Wang, Sue) (Filed on 8/27/2019) (Entered: 08/27/2019)
42 NOTICE of Substitution of Counsel by Emmet P. Ong (Ong, Emmet) (Filed on 9/10/2019) (Entered: 09/10/2019)
43 JOINT STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER filed by Immigrant Legal Resource Center, United States Department of Homeland Security, United States Immigration & Customs Enforcement. (Callcott, W.) (Filed on 9/19/2019) Modified on 9/20/2019 (cjlS, COURT STAFF). (Entered: 09/19/2019)

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09/19/2019 11/26/2019 11/27/2019 01/30/2020 02/26/2020 02/27/2020 04/23/2020
04/28/2020 04/29/2020 06/10/2020 06/10/2020 06/10/2020

44 ORDER (AS MODIFIED) by Magistrate Judge Donna M. Ryu granting 43 Stipulation to continue: Updated Joint Case Management Statement due by 11/27/2019. Further Case Management Conference continued to 12/4/2019 01:30 PM in Oakland, Courtroom 4, 3rd Floor. (ig, COURT STAFF) (Filed on 9/19/2019) (Entered: 09/19/2019)
45 STIPULATION WITH [PROPOSED] ORDER for Continuation of Case Management Conference filed by Immigrant Legal Resource Center, United States Immigration & Customs Enforcement, United States Department of Homeland Security. (Callcott, W.) (Filed on 11/26/2019) Modified on 11/27/2019 (cjlS, COURT STAFF). (Entered: 11/26/2019)
46 ORDER AS MODIFIED by Magistrate Judge Donna M. Ryu granting 45 Stipulation to continue: Updated Joint Case Management Statement due by 2/26/2020. Further Case Management Conference continued to 3/4/2020 01:30 PM in Oakland, Courtroom 4, 3rd Floor. (ig, COURT STAFF) (Filed on 11/27/2019) (Entered: 11/27/2019)
47 NOTICE of Change of Address by Emmet P. Ong (Ong, Emmet) (Filed on 1/30/2020) (Entered: 01/30/2020)
48 STIPULATION WITH [PROPOSED] ORDER to Continue Case Management Conference filed by Immigrant Legal Resource Center, United States Department of Homeland Security, United States Immigration & Enforcement. (Callcott, W.) (Filed on 2/26/2020) Modified on 2/27/2020 (cjlS, COURT STAFF). (Entered: 02/26/2020)
49 ORDER (AS MODIFIED) by Magistrate Judge Donna M. Ryu granting 48 Stipulation to continue: Joint Case Management Statement due by 4/29/2020. Further Case Management Conference continued to 5/6/2020 01:30 PM. (ig, COURT STAFF) (Filed on 2/27/2020) (Entered: 02/27/2020)
50 CLERK'S NOTICE: Notice is hereby given to all parties that the Further Case Management Conference set for 5/6/2020 01:30 PM will be held telephonically through the court's conference line. Parties must dial in to the conference line at least 5 minutes before the start of the calendar. In order to avoid disruption, late appearances will not be permitted. The court may not be able to record certain Case Management Conference calendars. The court will inform the parties if the Case Management Conference is not being recorded. No recorded proceedings will be uploaded to the ECF docket. The conference line number is 888−684−8852. The access code is 2071514. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 4/23/2020) (Entered: 04/23/2020)
51 STIPULATION WITH [PROPOSED] ORDER Continue Case Management Conference filed by Immigrant Legal Resource Center, United States Department of Homeland Security, United States Immigration & Customs Enforcement. (Callcott, W.) (Filed on 4/28/2020) Modified on 4/29/2020 (cjlS, COURT STAFF). (Entered: 04/28/2020)
52 ORDER (AS MODIFIED) by Magistrate Judge Donna M. Ryu granting 51 Stipulation to continue: Updated joint Case Management Statement due by 6/10/2020. Further Case Management Conference continued to 6/17/2020 01:30 PM. (ig, COURT STAFF) (Filed on 4/29/2020) (Entered: 04/29/2020)
53 STIPULATION WITH PROPOSED ORDER Regarding Scope of Search and Exemptions filed by United States Department of Homeland Security, United States Immigration & Customs Enforcement, and Immigrant Legal Resource Center. (Ong, Emmet) (Filed on 6/10/2020) Modified on 6/11/2020 (jjbS, COURT STAFF). (Entered: 06/10/2020)
54 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by Immigrant Legal Resource Center, United States Immigration & Customs Enforcement, and United States Department of Homeland. (Callcott, W.) (Filed on 6/10/2020) Modified on 6/11/2020 (jjbS, COURT STAFF). (Entered: 06/10/2020)
55 ORDER (AS MODIFIED) by Magistrate Judge Donna M. Ryu granting 54 Stipulation to continue: Updated Joint Case Management Statement due by

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06/15/2020

11/25/2020. Further Case Management Conference continued to 12/2/2020 01:30 PM. (ig, COURT STAFF) (Filed on 6/10/2020) (Entered: 06/10/2020)
56 Order by Magistrate Judge Donna M. Ryu granting 53 Stipulation Regarding Scope of Search and Exemptions. (dmrlc3, COURT STAFF) (Filed on 6/15/2020) (Entered: 06/15/2020)

 
 Case 3:17-cv-06029 Document 1 Filed 10/20/17 Page 1 of 8

1 W. Hardy Callcott (CABN 196373) hcallcott@sidley.com
2 Jennifer Gaspar (CABN 266726) jgaspar@sidley.com
3 Emma Trotter (CABN 315174) etrotter@sidley.com
4 SIDLEY AUSTIN LLP 555 California Street, Suite 2000
5 San Francisco, CA 94104 Telephone: (415) 772-1200
6 Facsimile: (415) 772-7400

7 Attorneys for Plaintiff 8 IMMIGRANT LEGAL RESOURCE CENTER

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12 IMMIGRANT LEGAL RESOURCE CENTER, ) Case No.: 3:17-cv-6029

)

13

Plaintiff,

)

14

v.

) COMPLAINT UNDER THE ) FREEDOM OF INFORMATION ACT

15 UNITED STATES DEPARTMENT OF

) FOR DECLARATORY AND ) INJUNCTIVE RELIEF

HOMELAND SECURITY; UNITED STATES )

16 IMMIGRATION AND CUSTOMS

)

ENFORCEMENT,

)

17

)

Defendants.

)

18

)

)

19

)

)

20

)

21

22

23

24

25

26

27

28

COMPLAINT UNDER FREEDOM OF INFORMATION ACT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-06029 Document 1 Filed 10/20/17 Page 2 of 8

1

INTRODUCTION

2

1. The United States Immigration and Customs Enforcement (“ICE”), the agency within

3 the Department of Homeland Security (“DHS”) (together collectively with ICE, “Defendants”) that

4 oversees the detention and deportation of immigrants, is improperly withholding records pertaining

5 to assistance by local governments with federal immigration enforcement. Plaintiff Immigrant Legal

6 Resource Center (“Plaintiff” or “ILRC”) seeks the immediate release of these records pursuant to the

7 Freedom of Information Act (“FOIA” or the “Act”), 5 U.S.C. § 552, and other appropriate relief.

8

2. The records requested here primarily relate to the issue of “sanctuary cities”—

9 whether and to what extent city and county law enforcement agencies agree to assist in ICE’s

10 detention and deportation efforts against immigrants living in the United States. In a previous FOIA

11 request, ILRC sought and received records that were virtually identical to the request at issue. ILRC

12 used those previously issued records to write a widely-cited report educating the public about the

13 extent of local involvement in immigration enforcement, despite the fact that local jurisdictions have

14 no legal obligation to assist with civil immigration enforcement. See Searching for Sanctuary: An

15 Analysis of America’s Counties & Their Voluntary Assistance With Deportations (Dec. 2016),

16 https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_1-min.pdf (hereinafter

17 “Searching for Sanctuary”). ILRC has made the current FOIA request so that it can update the

18 Searching for Sanctuary report with information about current practices regarding ICE detainers,

19 detention contracts, and agreements pursuant to 8 U.S.C. § 1357(g) (commonly referred to as 287(g)

20 agreements).

21

3. The public’s interest in the extent of local law enforcement’s assistance to ICE has

22 only increased since the current President took office and directed Defendants to increase

23 deportations and seek expanded assistance from local agencies. See, e.g., Exec. Order. No. 13,768,

24 82 Fed. Reg. 8799 (Jan. 25, 2017), https://www.whitehouse.gov/the-press-

25 office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united. Numerous

26 media articles have covered the sanctuary city movement and the threats from the current

27 Administration to withhold federal funds from local governments that refuse to use their own

28 resources to assist ICE. See Liz Robbins, ‘Sanctuary City’ Mayors Vow to Defy Trump’s

COMPLAINT UNDER FREEDOM OF INFORMATION ACT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-06029 Document 1 Filed 10/20/17 Page 3 of 8

1 Immigration Order, The New York Times (Jan. 25, 2017),

2 https://www.nytimes.com/2017/01/25/nyregion/outraged-mayors-vow-to-defy-trumps-immigration-

3 order.html; Mazin Sidahmed & Nicole Puglise, How Liberal Leaders in Cities and States Across US

4 Are Planning to Thwart Trump, The Guardian (Jan. 19, 2017), https://www.theguardian.com/us-

5 news/2017/jan/19/donald-trump-liberal-cities-states-resistance. Many of these news articles have

6 cited the ILRC’s Searching for Sanctuary report and other ILRC analyses.

7

4. In addition, ILRC seeks records of ICE’s guidance and policy memos to its agents

8 regarding apprehensions of immigrants at state and local courthouses. Following the inauguration of

9 Donald Trump and his executive orders on immigration enforcement from late January 2017, ICE

10 agents began actively arresting immigrants who were attending court dates in state courts around the

11 country. Legal professionals expressed deep concern that “ICE arrests at courthouses will create

12 enough fear of deportation among witnesses or victims of crime to affect the outcome of cases.” See

13 ICE Agents Now Going to Courthouses to Arrest Undocumented Immigrants, CBS Los Angeles

14 (Mar. 15, 2017), http://losangeles.cbslocal.com/2017/03/15/ice-agents-now-going-to-courthouses-to-

15 arrest-undocumented-immigrants/. Chief Justices from several state supreme courts, including

16 Washington, California, Connecticut, New York, Oregon, and New Jersey, wrote letters to the

17 Department of Homeland Security and the Department of Justice, objecting to these arrests, but

18 Attorney General Sessions defended the tactics and declared that they would continue. See Alex

19 Dobuzinskis, Trump Officials Defend Immigration Arrests at California Courthouses, Reuters (Mar.

20 31, 2017), https://www.reuters.com/article/us-usa-immigration-courthouses/trump-officials-defend-

21 immigration-arrests-at-california-courthouses-idUSKBN1722T1.

22

5. FOIA sets a 20-day statutory deadline for agencies to respond to FOIA requests.

23 ILRC filed its FOIA request on June 28, 2017. ICE requested a 10-day extension, as permitted by

24 law, but then failed to produce any documents. On September 15, 2017, ILRC filed an

25 administrative appeal of the agency’s complete failure to produce documents with the ICE FOIA

26 Appeals Office. On October 11, 2017, the ICE FOIA Appeals Office remanded the appeal, without

27 producing even a single document in response to Plaintiff’s request.

28
-2-
COMPLAINT UNDER FREEDOM OF INFORMATION ACT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-06029 Document 1 Filed 10/20/17 Page 4 of 8

1

6. The immediate disclosure of the requested records is needed to remedy the lack of

2 current information available to attorneys, to local governments, to the press, and to the public.

3 Plaintiff accordingly brings this suit under the Freedom of Information Act for declaratory,

4 injunctive, and other appropriate relief.

5

JURSDICTION & VENUE

6

7. This Court has subject matter jurisdiction over this action and personal jurisdiction

7 over the parties pursuant to 5 U.S.C. § 552(a)(4)(B), (6)(C)(i), and (6)(E)(iii). This Court also has

8 subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

9

8. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B), because ILRC has its

10 principal place of business in this district.

11

9. Assignment to the San Francisco Division is proper pursuant to Civil Local Rule 3-

12 2(c) and (d) because a substantial portion of the events giving rise to this action occurred in San

13 Francisco County, where ILRC maintains its principal place of business.

14

PARTIES

15

10. Plaintiff Immigrant Legal Resource Center is a nonprofit organization that works with

16 immigrants, community organizations, legal professionals, law enforcement, and policy makers to

17 build a democratic society that values diversity and the rights of all people. ILRC maintains its

18 principal place of business in San Francisco, California.

19

11. Defendant United States Department of Homeland Security is a department of the

20 executive branch of the United States government that is tasked with, among other things,

21 administering and enforcing the federal immigration laws. Defendant Immigration and Customs

22 Enforcement is the agency within DHS that is specifically responsible for immigration enforcement.

23

FACTS

24 I. Background—Involvement of City and County Law Enforcement in the Detention and

25

Deportation of Immigrants

26

12. DHS operates the largest police force in the nation and has a budget that is more than

27 all of the other federal law enforcement agencies combined. Over the past ten years, the increased

28 involvement of city and county law enforcement in deportations—at the urging of DHS, particularly
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1 ICE—has played a central role in the record-breaking volume of deportations today. See Searching

2 for Sanctuary at 1.

3

13. Local governments have no legal obligation to use their limited resources to assist

4 with federal immigration enforcement. But the current Administration has threatened to take away

5 federal funding from local governments that decline to take on the federal government’s job and

6 seek to separate local functions from federal immigration enforcement. See, e.g., Exec. Order. No.

7 13,768. Litigation is currently pending about the legality of this order.

8

14. When local police and sheriffs participate in deportations, immigrants need not be

9 convicted of an offense to find themselves trapped in the jail-to-deportation pipeline. See Searching

10 for Sanctuary at 2. Every encounter with local law enforcement provides an opportunity for

11 immigrants to be racially profiled and flagged for deportation, regardless of their immigration status.

12 Id. And unlike U.S. citizens, after fully satisfying their sentencing or rehabilitation terms in the

13 criminal legal system, immigrants with convictions are being forced to pay double punishment for

14 their actions by then being turned over to ICE for detention and deportation. See id.

15

15. When communities view local law enforcement as a direct pipeline to permanent

16 separation from their families, the already-fragile relationship of community trust with police is

17 harmed. Id. As a result, victims of domestic and other violence choose to suffer in silence rather

18 than seek assistance; witnesses of crime refuse to come forward out of fear that they themselves will

19 become a target; a climate of fear grips neighborhoods; and anxiety-ridden children struggle in

20 school. Id. The public safety of all of the county’s residents is endangered—a safety that rests on

21 the premise that police are there to protect and to serve all residents equally. See id.

22

16. ILRC’s work on the involvement of local law enforcement in deportations helps

23 immigrant communities, elected officials, and the public understand the nature of immigration

24 enforcement and take control of the role of their own local agencies in immigration. See generally

25 Searching for Sanctuary. ILRC helps local governments develop policies that allow immigrants to

26 be safe, to protect their ability to remain in their communities, and to mitigate against the harsh

27 immigration law consequences of interaction with the criminal legal system. Id.

28
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1 II. Plaintiff’s Request for Crucial Records Under the Freedom of Information Act and

2

Defendants’ Failure To Timely Respond

3

17. On June 22, 2017, Plaintiff requested that ICE produce records pertaining to the

4 involvement of city and county law enforcement in the detention and deportation of immigrants and

5 other ICE enforcement activities. See FOIA Request, attached hereto as Exhibit A.

6

18. ICE responded by e-mail on June 28, 2017 acknowledging receipt of the request and

7 invoking the ten-day delay period for response provided in 5 U.S.C. § 552(a)(6)(B), giving the

8 agency a total of thirty days to respond to the request with a determination of whether it would

9 comply. See Acknowledgment Letter, attached hereto as Exhibit B.

10

19. On September 15, 2017, having received no further response from ICE within the

11 required statutory time period, 5 U.S.C. § 552(a)(6)(A)(i), ILRC submitted an administrative appeal

12 of the constructive denial of the request. See Administrative Appeal, attached hereto as Exhibit C.

13

20. On October 11, 2017, ICE remanded the appeal, explaining that “[i]n many instances,

14 an agency cannot meet . . . time limits due to a high volume of requests, resource limitations and

15 other reasons.” See Administrative Appeal Response, attached hereto as Exhibit D.

16

21. Defendants have failed to comply with their fundamental obligations under the Act.

17 Defendants failed to issue a determination within thirty days of the initial June 22, 2017 request, nor

18 did they produce any responsive records. See Section 552(a)(6)(B).

19 III. Ongoing Harm and Need for the Unlawfully Withheld Records

20

22. Defendants continue to receive assistance from local law enforcement in conducting

21 civil immigration enforcement. Thus, while Plaintiff’s request has been pending without a legally

22 required determination and without the production of responsive records from Defendants, the

23 detention and deportation of immigrants with assistance from local law enforcement continues,

24 without public knowledge of the extent of this assistance or the jurisdictions involved.

25

23. Defendants’ continued failure to produce records responsive to Plaintiff’s request

26 violates the Freedom of Information Act and deprives Plaintiff of the ability to inform the public of a

27 matter of exceptional public importance. Plaintiff accordingly seeks relief from this Court.

28
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1

CLAIMS FOR RELIEF

2

First Claim

3

Failure to Determine Whether to Comply with the Request in Violation of FOIA

4

1. Plaintiff repeats and incorporates all facts in paragraphs 1 through 23 as though set

5 forth fully herein.

6

2. Defendants have a statutory obligation to respond to Plaintiff’s FOIA request and to

7 communicate that determination to Plaintiff within thirty days of receiving the request. 5 U.S.C. §

8 552(a)(6)(A)(i).

9

3. Defendants’ failure to make such a determination and to communicate it to Plaintiff

10 violates FOIA. 5 U.S.C. § 552 (a)(6)(E)(iii).

11

Second Claim

12

Improper Withholding of Agency Records in Violation of FOIA

13

4. Plaintiff repeats and incorporates all facts in paragraphs 1 through 23 as though set

14 forth fully herein.

15

5. Defendants have failed to produce any records in response to Plaintiff’s FOIA

16 request.

17

6. Defendants’ failure to produce these records violates their statutory obligation to

18 make requested records “promptly” available to the public. 5 U.S.C. § 552(a).

19

Third Claim

20

Failure to Conduct a Reasonable Search

21

7. Plaintiff repeats and incorporates all facts in paragraphs 1 through 23 as though set

22 forth fully herein.

23

8. Defendants have failed to make a reasonable effort to search for records sought by

24 Plaintiff’s request, and that failure violates FOIA, 5 U.S.C. 552(a)(6)(A), and corresponding

25 regulations.

26

27

28
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1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiff prays that this Court:

3

A. Order Defendants to issue a determination within seven days;

4

B. Order Defendants to process the requested records in their entirety, to disclose the

5 requested records in their entirety, and to make copies available to Plaintiff in their entirety within

6 thirty days;

7

C. Order Defendants to prepare a Vaughn index for any documents they seek to continue

8 to withhold under a FOIA exemption;

9

D. Award Plaintiff its costs and reasonable attorney’s fees incurred in this action

10 pursuant to 5 U.S.C. § 552(a)(4)(E); and

11

E. Order such other relief that the Court deems just and appropriate.

12 13 Dated: October 20, 2017 14

Respectfully Submitted, SIDLEY AUSTIN LLP

15

16 By: /s/ W. Hardy Callcott

17

W. Hardy Callcott

Attorneys for Plaintiff

18

IMMIGRANT LEGAL RESOURCE CENTER

19

20

21

22

23

24

25

26

27

28
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Case 3:17-cv-06029 Document 1-1 Filed 10/20/17 Page 1 of 16
Exhibit A

Case 3:17-cv-06029 Document 1-1 Filed 10/20/17 Page 2 of 16

Advisory Board Hon. John Burton Hon. Nancy Pelosi Hon. Cruz Reynoso
Board of Directors Cynthia Alvarez Richard Boswell W. Hardy Callcott Eva Grove Bill Ong Hing Lisa P. Lindelef Anita I. Martinez Michelle Mercer Toni Rembe Rudy Ruano Guadalupe Siordia-Ortiz Lisa Spiegel Reginald D. Steer Alan Tafapolsky Mawuena Tendar Hon. James L. Warren (Ret.) Allen S. Weiner Roger Wu
General Counsel Bill Ong Hing
Of Counsel Don Ungar
Executive Director Eric Cohen
San Francisco 1663 Mission Street Suite 602 San Francisco, CA 94103 t: 415.255.9499 f: 415.255.9792
Washington D.C. 1016 16th Street, NW Suite 100 Washington, DC 20036 t: 202.777.8999 f: 202.293.2849
ilrc@ilrc.org www.ilrc.org

Submitted via Electronic Mail to ice-foia@dhs.gov
U.S. Immigration and Customs Enforcement Freedom of Information Act Office 500 12th Street SW, Stop 5009 Washington, D.C. 20536-5009
June 22, 2017
RE: FREEDOM OF INFORMATION ACT REQUEST TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
Dear FOIA Public Liaison:
This is a Freedom of Information Act (FOIA) request by the Immigrant Legal Resource Center (ILRC) under 5 U.S.C. § 552.
The ILRC works with immigrants, community organizations, legal professionals, law enforcement, and policy makers to build a democratic society that values diversity and the rights of all people. Through community education programs, legal training and technical assistance, and policy development and advocacy, the ILRC’s mission is to protect and defend the fundamental rights of immigrant families and the communities in which they live. The ILRC is a non-profit public interest organization under Internal Revenue Code Section 501(c)(3).
With respect to immigration enforcement and detention issues, the ILRC provides training and educational materials and engages in advocacy for the fair and just administration of removal and detention operations. We also provide technical assistance to immigration practitioners on many aspects of immigration law, with a focus on the intersection between the immigration and criminal justice systems. The ILRC works towards the elimination of unjust penalties for immigrants entangled in the criminal justice system and to end the criminalization of immigrant communities.
I. Request for Records Unless otherwise stated, all requests for “records” refer to all physical or electronic records that were prepared, received, transmitted, collected, or maintained by U.S. Immigration and Customs Enforcement (ICE), including documents, meeting notes and minutes, lists of meeting participants, electronic (emails) and paper correspondence, legal research, legal opinions, letters, drafts, internal agency guides, regulations, memoranda, and spreadsheets. Furthermore,

ILRC FreedoCmaosfeIn3f:o1r7m-cavti-o0n6A0c2t9ReqDuoecsut ment 1-1 Filed 10/20/17 Page 3 of 16 June 22, 2017
the scope of the search should not be limited to ICE-originated records and should be construed to include records that are currently in the possession of any U.S. government contractors for purposes of records management. Records should be provided in electronic format wherever possible.
On behalf of the ILRC, we request that copies of all records containing the following information be provided:
A. Detainer and Notification Acceptance Status of Local Jurisdictions. Records regarding the current nature of cooperation, as of the date of this FOIA request, between a state or local law enforcement agency and ICE, including: i. The name of the county and state where the agency is located; ii. Designation of local jurisdiction or agency (e.g. sheriff, jail, or other law enforcement entity); iii. Current detainer/notification acceptance status; iv. The agency’s or jurisdiction’s willingness to accept or comply with detainers and requests for notification of release; v. Comments regarding the jurisdiction or agency’s engagement on detainers and/or responses to ICE; vi. Prioritization of that jurisdiction or agency for cooperation by ICE; vii. The date of last engagement between ICE and the local jurisdiction or agency; viii. The month and year that the jurisdiction or agency began accepting detainers or notification requests; and ix. The month and year that the jurisdiction or agency stopped accepting detainers or notification requests.
For the above request, ILRC seeks ICE’s records regarding which jurisdictions or agencies are willing or not willing to accept or respond to requests for: (1) compliance with requests to “Notify DHS” under Form I-247A or previous forms, or other requests for providing ICE with notice of an individual’s release date from custody; and (2) compliance with the request to “Maintain custody” under Form I-247A or previous forms, for up to 48 hours additional time, or other notes on assistance provided to ICE by local agencies.
B. Current and Pending 287(g) Agreements. We request the following documents and records related to the Immigration and Nationality Act (INA) Section 287(g) program: i. Any document containing a list of all currently active 287(g) agreements (including both “jail” and “taskforce” model) under INA Section 287(g) as of the date of this FOIA; ii. The most recent memoranda of understanding (or similar) documents memorializing these active agreements, to the extent that such records are not
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already available on ICE’s website at https://www.ice.gov/factsheets/287g#signedMOA; iii. Records regarding pending applications for 287(g) agreements as of the date of this FOIA request; iv. Records of communications between ICE and any local or state law enforcement agency or officer regarding entering or renewing a 287(g) agreement from FY2016 to FY 2017-to-date; and v. Records containing any list of target jurisdictions that ICE: (a) is in discussions with entering a 287(g) agreement; (b) plans on engaging and pursuing for a future 287(g) agreement.
C. ICE Detention Data. We request the following records: i. Data on all the facilities in which individuals may be detained in ICE custody as of June 2017, including any facilities with other contracts that have immigration detention riders or addenda, with the following information below. Similar data has previously been provided in a document known as the “ICE Detention Facilities Matrix.” a. Detention facility location; b. Name of facility, address, city, state, zip code; c. Facility operator; d. Facility owner; e. Best known contract initiation date; f. Best known contract expiration date; g. Per diem rate detained; h. ICE area of responsibility; i. Type of contract (e.g. USMS, IGSA, CDF, SPC); j. Whether the facility is authorized to detain individuals for more than or less than 72 hours; k. Capacity; l. Applicable detention standards used for each facility; m. FY 2016 - FY 2017 year to date Average Daily Population, male and female; n. FY 2016 - FY 2017 year to date total population, not averaged per day; o. Last inspection date and type; p. Last inspection standard; q. Last inspection rating – final; and r. FY 2016 Rating. ii. Current standards governing the various ICE detention facilities as of the date of
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ILRC FreedoCmaosfeIn3f:o1r7m-cavti-o0n6A0c2t9ReqDuoecsut ment 1-1 Filed 10/20/17 Page 5 of 16 June 22, 2017
this FOIA request; and iii. All communications during FY 2017-to-date between ICE employees and the
agents or officials of outside detention contractors, including cities, counties, local, state, or federal law enforcement agencies, and private companies, regarding potential new detention contracts or potential new facilities for immigration detention. This request includes communications regarding any potential immigration detention riders or addenda to other contracts, and includes agreements for detention under 72 hours and longer term.
D. ICE Enforcement Planning and Operations. We request the following records: i. Any and all memos, legal guidance, training materials, or other directives to agents regarding agency policy or protocol on arrests of individuals at state or federal courthouses; ii. Records of communications with state or local probation departments regarding planned arrests of individuals at probation appointments or check-ins during FY 2016 to FY 2017-to-date; iii. Memorandum from DRO/ERO entitled: “Placement of Fugitive Cases into the National Crime Information Center's Immigration Violator File” dated August 28, 2005, and any subsequent or superseding memoranda on adding entries to NCIC; and iv. The most recent draft version of U.S. Citizenship and Immigration Services’ (USCIS) update to PM-602-0050, "Revised Guidance for the Referral of Cases and Issuance of Notices to Appear," colloquially known as USCIS' NTA Guidance.
If there are no responsive records dated in June 2017 for any of the records above requested “as of the date of this FOIA,” then we request the most recent responsive record dated prior to the date of this FOIA.
To provide additional detail regarding the above requests, under part (I)(A), the ILRC’s request specifically seeks information regarding state and local enforcement agencies’ assistance to and cooperation with ICE in the enforcement of immigration law, including state and local responses to ICE requests for notification and detainers. ICE previously provided similar information to the ILRC in response to a FOIA in 2015; this request seeks updates to that information.
Under part (I)(B), the ILRC seeks records regarding ICE’s agreements under INA section 287(g) with local law enforcement, including the process for forming those agreements and information about current and pending potential agreements. If ICE would prefer to verify that the information currently on the website provides the current and complete list of active 287(g) agreements and the most recent MOAs as of June 2017, that would be sufficient to satisfy subsections (i) and (ii) of part (I)(B).
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Under part (I)(C), the ILRC seeks records regarding ICE’s detention practices and the detainee population, as well as plans for expansion of immigration detention. Part (I)(D) seeks records regarding ICE enforcement operations and policies, as well as interactions between ICE and other agencies, such as FBI/NCIC and USCIS.
II. Under Statute and Case Law ICE Must Disclose the Requested Records
As you aware, the central legislative purpose behind the FOIA Act is to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.”1 While FOIA provides certain exemptions of which federal agencies, such as ICE, may avail themselves, these “limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.”2 Moreover, these exemptions are narrowly construed, and the burden of establishing a valid claim of exemption is on the agency. Agencies are given deference in the assertion of exemptions, but such deference only exists so long as the claim of exemption is not arbitrary and capricious or contrary to law. The agency must provide a document-by-document log of every document withheld (in whole or in part), together with a sufficient description to justify the claim of exemption.
An agency may lose deference if there is evidence of bad faith.3 Evidence of bad faith on part of the agency leads to courts refraining from according “substantial weight” to agency affidavits4 and the stated underlying grounds for exercising certain exemptions, leading to a review of the FOIA request with “heightened scrutiny.”5
Finally, while exempt information is protected from disclosure, reasonably segregable, nonexempt portions of otherwise exempt records cannot be withheld and must be released.6 The ILRC strongly urges you to consider this legislative intent and case law when responding to
1 Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973)) (“To make crystal clear the congressional objective in the words of the Court of Appeals, to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny, Congress provided in § 552(c) that nothing in the Act should be read to authorize withholding of information or limit the availability of records to the public, except as specifically stated.”). 2 Id. at 361; see also U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (“[T]he exemptions are explicitly exclusive.”). 3 See Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996) (quoting Church of Scientology v. U.S. Dep't of the Army, 611 F.2d 738, 742 (9th Cir. 1979)) (“In evaluating a claim for exemption, a district court must accord substantial weight to CIA affidavits, provided the justifications for nondisclosure are not controverted by contrary evidence in the record or by evidence of CIA bad faith.”); Weissman v. Cent. Intelligence Agency, 565 F.2d 692, 698 (D.C. Cir. 1977); Assassination Archives & Research Ctr. v. C.I.A., 177 F. Supp. 2d 1, 11 (D.C. Cir. 2001) (citing Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 837 (D.C. Cir. 2001)); see also Pac. Fisheries Inc. v. United States, 395 F. App'x 438, 440 (9th Cir. 2010); Calvert v. United States, 662 F. Supp. 2d 27 (D.D.C. 2009). 4 See Minier, 88 F.3d at 803 (citing Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987)). 5 Id. 6 See 5 U.S.C. § 552(b); F.B.I. v. Abramson, 456 U.S. 615, 626 (1982) ("[§ 552(b)] requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible “record” for FOIA purposes."); see also Krikorian v. U.S. Dep't of State, 984 F.2d 461, 466 (D.C. Cir. 1993) (quoting Ctr. for Auto Safety v. E.P.A., 731 F.2d 16, 21 (D.C. Cir. 1984)) (“We have made clear that the ‘segregability’ requirement applies to all documents and all exemptions in the FOIA.”).
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this request. In particular, many of these requests seek updates to documents that have previously been made public. Specifically, the records requested under (I)(A) represent a request for the latest versions of records that ICE previously provided—claiming no exemption—to the ILRC. We believe it clearly would be arbitrary and capricious and contrary to law for ICE to withhold the current versions of records, for which ICE has already provided earlier versions in response to a prior FOIA request from the same organization. On December 9, 2015, the ILRC submitted a FOIA request to ICE,7 in response to which ICE disclosed the previous version of the records requested under (I)(A).8 In regard to (I)(A), ICE provided a comprehensive spreadsheet that listed the following data fields: (a) Field Office; (b) State; (c) County; (d) Jurisdiction; (e) Priority; (f) Month and Year Jurisdiction Began Not Accepting Detainers; (g) Date of First Engagement between ERO and Local Government; (h) Date of Last Engagement between ERO and Local Government; (i) Who Met with the Local Government?; (j) Current Detainer/Notification Acceptance Status; (k); Comments; (l); Follow Up Meeting Scheduled; (m) Next Meeting Date; (n) HQ Priority Jurisdictions; (o) Item Type; and (p) Path.9
An excerpt from ICE’s response to the ILRC’s December 2015 FOIA. Thus, ICE previously, in response to the ILRC’s FOIA request, released records requested under (I)(A) and claimed no exemption. To withhold the disclosure of updated versions of such
7 See Appendix A. 8 For a copy of ICE’s response to the ILRC’s FOIA, please see Appendix B. 9 Italicized fields represent data that the ILRC requests in this FOIA under (I)(A).
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records would be arbitrary and capricious and contrary to law, and could lead to potential litigation that the records are being “improperly withheld”10 and do not fall within any of the nine statutory exemptions.11
In addition, ICE currently provides information regarding the 287(g) program on its website, including current participants and the underlying Memoranda of Agreement (MOAs). ILRC’s FOIA request seeks to verify the complete list of current 287(g) participants and obtain the most recent MOAs, as well as obtain other information about the 287(g) program. There is no reasonable basis to deny a request for an update to records that ICE already provides on its own website.
Similarly, ICE has previously provided the “Detention Facilities Matrix,” including all of the data requested above in section (I)(C)(i). Data as of December 8, 2015 is currently available.12 ICE also published excerpts of this spreadsheet in its own Congressional Budget Justification.13 ILRC seeks the most complete and updated version this spreadsheet as of June 2017. Withholding these records would be arbitrary and capricious because the information is clearly not subject to any exemptions.
III. Request for Fee Waiver Under the Freedom of Information Act, we request a waiver of fees.14 A fee waiver requires that: (1) “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government;” and (2) the request “is not primarily in the commercial interest of the requestor.15
The public interest criteria is satisfied when (1) the request concerns operations or activities of the government; (2) disclosure is likely to contribute to an understanding of government operations or activities; (3) disclosure contributes to an understanding of the subject by the
10 See 5 U.S.C. § 552(a)(4)(B) (West 2015); GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 386 (1980) (“Congress gave the federal district courts under the Freedom of Information Act jurisdiction to order the production of “improperly” withheld agency records.”); Minier, 88 F.3d at 803 (citing Spurlock v. FBI, 69 F.3d 1010, 1016 (9th Cir. 1995)) (emphasis in original) (“A district court only has jurisdiction to compel an agency to disclose improperly withheld agency records.”). 11 See U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (“It follows from the exclusive nature of the § 552(b) exemption scheme that agency records which do not fall within one of the exemptions are “improperly” withheld.”). 12 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY, ERO Custody Management Division, Dec. 8, 2015, http://immigrantjustice.org/ice-detention-facility-list-december-2015. 13 U.S. DEPARTMENT OF HOMELAND SECURITY Congressional Budget Justification: FY 2018—Volume II ICE – O&S – 128133, 2018, https://www.dhs.gov/sites/default/files/publications/DHS%20FY18%20CJ%20VOL%20II.PDF. 14 5 U.S.C. § 552 (West 2017). 15 See id.; Larson v. C.I.A., 843 F.2d 1481, 1483 (D.C. Cir. 1988) (holding a public interest must be identified with “reasonable specificity”); McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987) (holding that requestors must explain with reasonable specificity how disclosure will contribute to public understanding); 6 C.F.R. § 5.11(k)(1).
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public at large; and (4) disclosure is likely to contribute significantly to such understanding.16 This request meets all four of these criteria.
The ILRC seeks to use the requested information to: (a) produce public educational materials, including advisories for practicing attorneys; (b) write reports analyzing, summarizing, and sharing the information to increase public understanding; (c) collaborate with media organizations to disseminate information about immigration enforcement to the public; and (d) use the information to update its online, interactive enforcement map (discussed below), which is widely relied upon by the public and the media.
As previously outlined at the end of Section (I), all of the requests under (I)(A), (I)(B), (I)(C), and (I)(D), clearly concern the operations and activities of the government, in this case, ICE, a federal agency subcomponent of the U.S. Department of Homeland Security. Disclosure of these records will contribute to the understanding of government operations in several ways. The records will illuminate the scope of ICE detention and the process for determining detention locations; the extent of other government agencies’ assistance to ICE in detaining immigrants and responding to ICE detainer requests; and ICE policies regarding enforcement actions. The records requested will expand and improve public understanding of immigration enforcement and allow the public to have clearer expectations regarding ICE policies and operations.
There is significant demand from the public for information regarding the entanglement between state and local law enforcement and ICE. As part of the current Administration’s executive orders on immigration, the President directed the U.S. Department of Justice to target so-called “sanctuary” cities, e.g. jurisdictions that limit their entanglement with federal immigration enforcement, by exploring strategies to withhold or restrict federal funding.17 Subsequently, the Administration’s actions on “sanctuary” jurisdictions triggered widespread media stories and inquiries, especially questions regarding what constitutes a “sanctuary” jurisdiction. This interest was supplemented by currently pending litigation challenging the provisions of the Executive Order that directed the federal government to target these jurisdictions.18 Consequently, the issue of “sanctuary” jurisdictions is a subject of wide public interest, with media and citizens attempting to better understand what constitutes a “sanctuary” jurisdiction. This widespread public interest is apparent due to the multitude of stories by major media organizations, some of them listed further below, regarding this topic.
16 6 C.F.R. § 5.11(k)(2) (2017) (DHS regulations outlining criteria for responses to requests for fee waivers under FOIA); See also Judicial Watch, Inc. v. U.S. Dep't of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004) (citing 28 C.F.R. § 16.11(k)(2)). 17 Enhancing Public Safety in the Interior of the United States, Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017), available at https://www.federalregister.gov/documents/2017/01/30/2017-02102/enhancing-publicsafety-in-the-interior-of-the-united-states. 18 Sudhin Thanawala, Federal judge blocks Trump order to withhold sanctuary city money, CHICAGO TRIBUNE, April 25, 2017, http://www.chicagotribune.com/news/nationworld/ct-judge-blocks-order-sanctuary-money-20170425story.html.
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In addition, there has been substantial public attention to the issue of ICE making immigration arrests of individuals who arrive at state and local courthouses for scheduled appointments. These incidents have been widely reported in the media and generated broad attention to the propriety of ICE enforcement tactics.19 Several Chief Justices or other leadership of state judicial systems have expressed concerns about ICE undermining the legal system.20 ILRC’s request for policies and protocol related to enforcement at courthouses and other legal appointments addresses a matter of key public concern.
Disclosure of these records will contribute to the understanding of immigration enforcement by the public at large, because ILRC will use these records to explain immigration issues and better inform the public. The ILRC employs multiple channels of communication and platforms to disseminate information obtained in response to this FOIA to the public at large. The ILRC maintains multiple mailing lists used for the sharing of ILRC-produced materials and reports, including documents summarizing ICE FOIA data. The ILRC’s education listserv contains over 2,000 subscribers, while the ILRC’s marketing mailing list contains nearly 5,000 email addresses, both of which are used to share updates regarding FOIA responses. The ILRC manages two public immigration mailing lists that it uses to disseminate FOIA information, including the dreamact@lists.ilrc.org mailing list (2,188 subscribers) and the famvisa@lists.ilrc.org mailing list (1,661 subscribers), and sends updates through these listservs at least once a week. To disseminate records, the ILRC also uses its website (http://www.ilrc.org) (which receives an average of over 30,000 unique visits per month), a Twitter account with over 2,300 followers,21 and a public Facebook page with over 10,000 followers.22 Finally, the ILRC has a carefully
19 Jonathan Blitzer, The Woman Arrested by ICE in a Courthouse Speaks Out, NEW YORKER, Feb. 23, 2017, http://www.newyorker.com/news/news-desk/the-woman-arrested-by-ice-in-a-courthouse-speaks-out; James Queally, ICE agents make arrests at courthouses, sparking backlash from attorneys and state supreme court, LOS ANGELES TIMES, Mar. 16, 2017, http://www.latimes.com/local/lanow/la-me-ln-ice-courthouse-arrests-20170315story.html; Noelle Phillips, Videos of ICE making arrests at Denver’s courthouse renew calls for city to push back against White House policies, DENVER POST, May 9, 2017 http://www.denverpost.com/2017/05/09/video-icearrests-denver-courthouse-immigration-policy/; Tal Kopan, Trump administration says ICE courthouse arrests will continue, CNN, Mar. 31, 2017, http://www.cnn.com/2017/03/31/politics/ice-arrests-courthouses-sessionskelly/index.html. 20 Letter from Mary Fairhurst, Chief Justice, Washington State Supreme Court, to John F. Kelly, Secretary, U.S. Department of Homeland Security, March 22, 2017, https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/KellyJohnDHSICE032217.pdf; Russell Blair, Chief Justice Of CT Supreme Court Asks ICE Not To Come To Courthouses, HARTFORD COURANT, Jun. 9, 2017, http://www.courant.com/politics/capitol-watch/hc-chase-rogers-ice-courthouses-story.html; Kristine Phillips, California Chief Justice to ICE: Stop Stalking Immigrants and Courthouses, WASHINGTON POST, Mar. 17, 2017, https://www.washingtonpost.com/news/post-nation/wp/2017/03/17/california-chief-justice-to-ice-stop-stalkingimmigrants-at-courthouses/?utm_term=.6c3578e6ef49; S.P. Sullivan, N.J.'s chief justice asks ICE to stop arresting immigrants at courthouses, NJ.COM, Apr. 20, 2017, http://www.nj.com/politics/index.ssf/2017/04/nj_top_judge_asks_ice_to_stop_arresting_immigrants.html; Ryan Haas and Conrad Wilson, Oregon Supreme Court Chief Justice Tells ICE To Stay Out Of Courthouses, OREGON PUBLIC BROADCASTING, Apr. 7, 2017, http://www.opb.org/news/article/oregon-supreme-court-justice-ice-courthouseletter/. 21 Twitter.com, @ILRC_SF, (last accessed June 1, 2017), https://twitter.com/ILRC_SF. 22 Facebook.com, Immigrant Legal Resource Center (ILRC), (last accessed June 1, 2017), https://www.facebook.com/immigrantlegalresourcecenter/.
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cultivated list of over 140 local, state, and national reporters and journalists with whom it regularly shares data, reports, and information.
The ILRC employs all of these aforementioned networks to share reports, graphics, advisories, and other documents explaining various aspects of the immigration system. These listservs and other outlets were key tools for disseminating ILRC’s analysis of the responsive materials provided by ICE in response to the ILRC’s 2015 FOIA request. The ILRC intends to employ all of the above networks when sharing and disseminating our resources and analyses of the documents provided by ICE in response to this FOIA request.
The ILRC has demonstrated the expertise and technical ability to understand, digest, and summarize responsive materials from ICE obtained as a result of this FOIA request. The ILRC is a nationally known immigration resource center that provides trainings, advisories, webinars, and other educational materials to help attorneys, BIA accredited representatives, policy makers, and pro se applicants understand immigration statutes, regulations and guidance.23 The ILRC authored and regularly updates over a dozen comprehensive immigration manuals, which provide technical guidance regarding complex immigration topics, including family immigration, deportation, hardship, parole, naturalization, DACA, inadmissibility, removal defense, and more.24
In terms of the records requested by this letter, the ILRC maintains a comprehensive library of detainer policies; legal analyses regarding ICE detainers and arrest and detention authority of different agencies;25 and explainers and fact sheets regarding ICE enforcement operations, the role of local agencies in immigration enforcement, and so-called “sanctuary” policies, all topics that are the subject of this FOIA request.26 The ILRC was a co-author in a letter from over 300 constitutional, administrative, and immigration law professors regarding the legality of the use of state and local resources to enforce federal immigration law.27 The ILRC's immigration expertise, coupled with its staffing of over a dozen immigration attorneys,28 means that the ILRC is uniquely suited to understand, examine, and analyze the type of data sought, and to synthesize it for use by the public and media.
As discussed above, the ILRC previously requested and obtained records similar to those sought in this request. Specifically, the ILRC obtained records that outlined the relationship between ICE and all counties in the United States in regard to state and local cooperation on immigration enforcement matters.29 Using these records, the ILRC produced two key materials. The first was
23 Immigrant Legal Resource Center, Mission, (last accessed June 1, 2017), https://www.ilrc.org/mission. 24 Immigrant Legal Resource Center, Publications, (last accessed June 1, 2017), https://www.ilrc.org/publications. 25 Immigrant Legal Resource Center, Legal Analysis of Immigration Detainers, (last accessed June 1, 2017), https://www.ilrc.org/legal-analysis-immigration-detainers. 26 Immigrant Legal Resource Center, Fact Sheet on Sanctuary Policies and 8 USC 1373, (last accessed June 1, 2017), https://www.ilrc.org/fact-sheet-sanctuary-policies-and-federal-funding. 27 Immigrant Legal Resource Center, Law Professor Letter to President Trump Regarding Constitutionality of Executive Order on Sanctuary Cities, (last accessed June 1, 2017), https://www.ilrc.org/letter-law-profs-1373. 28 Immigrant Legal Resource Center, Our Staff, (last accessed June 1, 2017), https://www.ilrc.org/our-staff. 29 See Appendix B for ICE’s response to the ILRC’s 2015 FOIA.
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ILRC FreedoCmasoef I3n:f1o7rm-cavt-i0o6n0A2c9t ReDqoucesutment 1-1 Filed 10/20/17 Page 12 of 16 June 22, 2017 its Searching for Sanctuary report, which provided the most comprehensive policy and scholarly overview of county policies concerning local entanglement with federal immigration enforcement.30 The data previously disclosed by ICE formed the foundation of the report, as noted in this excerpt: 31
Excerpt from the ILRC’s Searching for Sanctuary Report Using this previous FOIA data, the ILRC developed a seven-tiered system to categorize counties in terms of their cooperation with federal law enforcement and used this rubric to better inform the public regarding the nature of a county’s cooperation with ICE.32 Additionally, the ILRC created the most comprehensive map of state and local “sanctuary” policies, and included this map as one of the key features in the Searching for Sanctuary report:33
Excerpt from the ILRC’s Searching for Sanctuary Report
30 Lena Graber & Nikki Marquez, Searching for Sanctuary, Immigrant Legal Resource Center, Dec. 2016, available at https://www.ilrc.org/searching-sanctuary. 31 Id. at 3. 32 Id. at 5. 33 Id. at 9.
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ILRC also created an interactive, online version of this map, titled National Map of Local Entanglement with ICE located at https://www.ilrc.org/local-enforcement-map. This map colorcodes each county depending on the type of cooperation in which it engages with ICE and is based directly on the FOIA data that the ILRC received from ICE. The online map allows readers and media organizations to quickly find and identify the level of cooperation in which a particular county engages with regard to federal immigration enforcement. In short, the ILRC’s map translates dense, hard to understand government data into a colorful, easy to understand, and interactive map that the general public and media regularly use to learn more about state and local cooperation with ICE. Indeed, courts have held that summarizing information and structuring it in a user-friendly format to reach the public is a significant public benefit.34 Public response to the ILRC’s Searching for Sanctuary report and the online enforcement map was significant. On the ILRC’s website alone, the web page hosting the ILRC’s enforcement map received 15,530 unique visitors between December 19, 2016, the date the online enforcement map was released, and May 31, 2017:
Screenshot demonstrating unique website hits for the ILRC’s online enforcement map Many media outlets covered the ILRC’s report, the enforcement map, or both. These media outlets specifically referenced and credited the ILRC for the dissemination of this information. Examples of coverage with attribution to the ILRC include:
1. The New York Times (“The maps shown here are based on data collected by the Immigrant Legal Resource Center, specifically looking at jurisdictions that limit how much the local police cooperate with requests from federal authorities to hold immigrants in detention.”);35
34 Western Watersheds Project v. Brown, 318 F. Supp. 2d 1036 (D. Idaho 2004). 35 Jasmine C. Lee, et. al, What Are Sanctuary Cities?, N.Y. TIMES, Feb. 6, 2017, https://www.nytimes.com/interactive/2016/09/02/us/sanctuary-cities.html; Vivian Yee, Cities in New York Advised
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2. The Washington Post (“An Immigration and Customs Enforcement compliance report obtained by the Immigrant Legal Resource Center showed that, in the 168 counties where most of the 11 million illegal immigrants live . . .”);36
3. Bloomberg (“‘Searching for Sanctuary,’ a report by the Immigrant Legal Resource Center” and the “Immigrant Legal Resource Center . . . says at least 635 U.S. counties— more than one in five—refuse to hold people in jail on federal detainer requests.”);37
4. Univision National (“Un análisis del Immigrant Legal Resource Center...” [translation: “An analysis from the Immigrant Legal Resource Center”] and “[S]egún el nuevo reporte 'Searching for Sanctuary' del Immigrant Legal Resource Center . . .”… [translation “A new report titled Searching for Sanctuary by the Immigrant Legal Resource Center.”);38
5. The Huffington Post (“Some 447 jurisdictions met that threshold as of last month, according to a report by the Immigrant Legal Resource Center, titled “Searching for Sanctuary. More than 150 others exceeded it.”);39
6. The Guardian (“According to the Immigrant Legal Resource Center, there are more than 500 counties and cities that do not assist US Immigration and Customs Enforcement.”);40
7. The Atlantic (“[A] report released by the Immigrant Legal Resource Center in December found that the overwhelming majority of the 2,556 counties surveyed didn’t need formal programs: They were already offering assistance to ICE.”);41
8. USA Today (“A study of more than 2,500 counties by the Immigrant Legal Resource Center, which favors sanctuary, found just 6% of counties would refuse to alert federal immigration authorities when an undocumented inmate is being released.”);42
How to Buck a Trump Deportation Push, Jan. 18, 2017, https://www.nytimes.com/2017/01/18/nyregion/new-yorksanctuary-cities.html. 36 Darla Cameron, How sanctuary cities work, and how Trump’s stalled executive order might affect them, Washington Post, April 26, 2017, https://www.washingtonpost.com/graphics/national/sanctuary-cities/. 37 Jordan Yadoo, Why ‘Sanctuary Cities’ Are a Target for Trump: QuickTake Q&A, BLOOMBERG POLITICS, Feb. 15, 2017, https://www.bloomberg.com/politics/articles/2017-02-15/why-sanctuary-cities-are-a-target-for-trump-quicktakeq-a. 38 Melvin Felix, ¿Ciudad o condado santuario? Un informe explica cuál puede proteger más al inmigrante indocumentado, UNIVISION, Dec. 19, 2017, http://www.univision.com/noticias/inmigracion/ciudad-o-condadosantuario-un-informe-explica-cual-puede-proteger-mas-al-inmigrante-indocumentado. 39 Roque Planas, Sanctuary City Movement Highlights Barack Obama’s Complicated Immigration Legacy, HUFFINGTON POST, Jan. 9, 2017, http://www.huffingtonpost.com/entry/sanctuary-city-obamalegacy_us_5873bdebe4b099cdb0fe76ab. 40 Mazin Sidahmed and Nicole Puglise, How liberal leaders in cities and states across US are planning to thwart Trump, THE GUARDIAN, Jan. 19, 2017, https://www.theguardian.com/us-news/2017/jan/19/donald-trump-liberalcities-states-resistance. 41 Amanda Sakuma, Donald Trump’s Plan to Outsource Immigration Enforcement to Local Cops, THE ATLANTIC, Feb. 18, 2017, https://www.theatlantic.com/politics/archive/2017/02/trump-immigration-enforcement/517071/. 42 Editorial Board, When ‘sanctuary cities’ go too far: Our view, USA TODAY, March 12, 2017, https://www.usatoday.com/story/opinion/2017/03/12/when-sanctuary-cities-go-too-far-editorialsdebates/98805354/.
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9. PBS Newshour (“There is no official definition or count of sanctuary cities, but the Immigrant Legal Resource Center identifies more than six hundred counties with such policies.”);43
10. VICE News (“As of December 2016, there were about 70 or so jurisdictions that have declined to hold illegal immigrants in jail for federal authorities to deport, according to Immigrant Legal Resource Center.”);44 and
11. Public Radio International (“Sanctuary counties are defined here based on data received via a Freedom of Information Act request filed by the Immigrant Legal Resource Center . . . .”).45
These press reports demonstrate both that there is substantial public interest in the subjects of this FOIA request, and that providing the requested information to the ILRC is likely to contribute substantially to public understanding of these issues. The ILRC will collaborate with these reporters and media outlets to disseminate and share the updated and expanded information that the ILRC receives from ICE.
Thus, the ILRC’s previous dissemination of substantially similar records provided by ICE demonstrates a proven track record of the ILRC’s expertise and ability to understand, process, and synthesize this type of information for the media and public. The ILRC’s demonstrated ability to disseminate exactly the types of information requested here satisfies the test for a fee waiver that the request and disclosure would “contribute significantly to public understanding of the operations or activities of the government.”46 We observe that ICE granted a fee waiver in connection with the ILRC’s 2015 FOIA request, and we believe it would be arbitrary and capricious and contrary to law for ICE not to grant a fee waiver for a very similar FOIA request in 2017.
Finally, the disclosure of records would not primarily be in the commercial interest of the ILRC. The ILRC is a non-profit 501(c)(3) organization that does not primarily partake in commercial, economic, or profit-producing activity.47 The information obtained through the above request would not be sold, commercialized, or used in any way to derive profit. In fact, the interactive map composed of the information obtained through the previous FOIA request is easily searchable and available at the ILRC website (http://www.ilrc.org) free of charge to all
43 Danielle Renwick and Brianna Lee, Where does the immigration debate stand under President Trump?, PBS NEWSHOUR, April 6, 2017, http://www.pbs.org/newshour/rundown/why-the-u-s-immigration-debate-is-difficult-toresolve/. 44 Gabrielle Bluestone, Sanctuaries saved, VICE NEWS, April 25, 2017, https://news.vice.com/story/federal-judgeblocks-trumps-attempt-to-punish-sanctuary-cities. 45 Monica Campbell, America’s sanctuary communities are more numerous than you think, PRI, March 9, 2017, https://www.pri.org/interactive/2017/03/mapping-sanctuary/. 46 5 U.S.C. § 552 (West 2017). 47 See Consumers’ Checkbook, Center for Study of Services v. U.S. Dep’t of Health and Human Services, 502 F. Supp. 2d 79 (D.D.C. 2007) (holding that a FOIA requestor who charges fees to produce and disseminate its work does not render its interest “primarily commercial” when it charges fees only to support its operation).
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members of the public,48 and the ILRC will publish the updated information received from ICE to the public in the same way.
Please contact me if this fee waiver is not granted. The maximum dollar amount the ILRC is willing to pay for this request is $100. If the amount for this request is greater than $100, please contact me to discuss this request and associated pricing. You may deliver the requested records electronically to lgraber@ilrc.org. Alternatively, you may physically mail the responsive records to the ILRC at:
ATTN: Lena Graber Immigrant Legal Resource Center 1663 Mission St., Suite 602 San Francisco, CA 94103
If you have any questions, please do not hesitate to contact me at 415-321-8545 or lgraber@ilrc.org or you may contact our outside counsel on this matter, W. Hardy Callcott at Sidley Austin LLP, at 415-772-7402 or hcallcott@sidley.com.
Thank you for responding to this request.
Sincerely, /s/ Lena Graber Staff Attorney
Cc: W. Hardy Callcott Sidley Austin LLP 555 California Street, Suite 2000 San Francisco, CA 94104
48 Immigrant Legal Resource Center, National Map of Local Entanglement with ICE, (last accessed June 1, 2017), https://www.ilrc.org/local-enforcement-map.
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Exhibit B

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---------- Forwarded message ---------From: US DHS Immigration and Customs Enforcement FOIA Office <ice-foia@dhs.gov> Date: Wed, Jun 28, 2017 at 9:24 AM Subject: ICE FOIA Request 2017-ICFO-34743 To: Jose Magana-Salgado <jmagana@ilrc.org>
June 28, 2017 Jose Magana-Salgado Immigrant Legal Resource Center 1016 16th St NW Suite 100 Washington, DC 20036 RE:     ICE FOIA Case Number 2017-ICFO-34743 Dear Mr. Magana-Salgado: This acknowledges receipt of your Freedom of Information Act (FOIA) request to U.S. Immigration and Customs Enforcement (ICE), dated June 23, 2017, and to your request for a waiver of all assessable FOIA fees. Your request was received in this office on June 23, 2017. Specifically, you requested detainer and notification acceptance status of local jurisdictions. Records regarding the current nature of cooperation, as of the date of this FOIA request, between a state or local law enforcement agency and ICE (please see original request for more details). Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Per Section 5.5(a) of the DHS FOIA regulations, 6 C.F.R. Part 5, ICE processes FOIA requests according to their order of receipt. Although ICE’s goal is to respond within 20 business days of receipt of your request, the FOIA does permit a 10- day extension of this time period. As your request seeks numerous documents that will necessitate a thorough and wide-ranging search, ICE will invoke a 10-day extension for your request, as allowed by Title 5 U.S.C. § 552(a)(6)(B). If you care to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner.
ICE evaluates fee waiver requests under the legal standard set forth above and the fee waiver policy guidance issued by the Department of Justice on April 2, 1987, as incorporated into the Department of Homeland Security’s Freedom of Information Act regulations[1]. These regulations set forth six factors to examine in determining whether the applicable legal standard for fee waiver has been met. I have considered the following factors in my evaluation of your request for a fee waiver:
(1) Whether the subject of the requested records concerns “the operations or activities of the government”; (2) Whether the disclosure is “likely to contribute” to an understanding of government operations or activities; (3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons; (4) Whether the contribution to public understanding of government operations or activities will be "significant";

Case 3:17-cv-06029 Document 1-2 Filed 10/20/17 Page 3 of 4
(5) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and
(6) Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor.
Upon review of your request and a careful consideration of the factors listed above, I have determined to grant your request for a fee waiver.
ICE has queried the appropriate program offices within ICE for responsive records. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the processors in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.
Your request has been assigned reference number 2017-ICFO-34743. Please refer to this identifier in any future correspondence. To check the status of an ICE FOIA/PA request, please visit http://www.dhs.gov/foia-status. Please note that to check the status of a request, you must enter the 2016-ICFO-XXXXX or 2017-ICFO-XXXXX tracking number. If you need any further assistance or would like to discuss any aspect of your request, please contact the FOIA office. You may send an e-mail to ice-foia@ice.dhs.gov, call toll free (866) 633-1182, or you may contact our FOIA Public Liaison in the same manner. Additionally, you have a right to right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 207406001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.
Regards,
ICE FOIA Office Immigration and Customs Enforcement Freedom of Information Act Office 500 12th Street, S.W., Stop 5009 Washington, D.C. 20536-5009 Telephone: 1-866-633-1182 Visit our FOIA website at www.ice.gov/foia
[1] 6 CFR § 5.11(k).
--
Jose Magaña-Salgado Managing Policy Attorney Immigrant Legal Resource Center 1016 16th Street, NW, Suite 100 | Washington, DC 20036 Tel:   202-777-8999 | Cell: 202-656-4501 Email: jmagana@ilrc.org Website: www.ilrc.org
San Francisco Office: 1663 Mission Street, Suite 602 | San Francisco, CA 94103
Join our social networking community

Case 3:17-cv-06029 Document 1-2 Filed 10/20/17 Page 4 of 4
The contents of this message, together with any attachments, are intended only for the use of the individual or entity to which they are addressed and may contain information that is legally privileged, confidential and exempt from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this message, or any attachment, is strictly prohibited. If you have received this message in error, please notify the original sender immediately by return E-mail and delete this message, along with any attachments, from your computer. Thank you.

Case 3:17-cv-06029 Document 1-3 Filed 10/20/17 Page 1 of 3
Exhibit C

Case 3:17-cv-06029 Document 1-3 Filed 10/20/17 Page 2 of 3

Advisory Board Hon. John Burton Hon. Nancy Pelosi Hon. Cruz Reynoso
Board of Directors Cynthia Alvarez Richard Boswell W. Hardy Callcott Eva Grove Bill Ong Hing Lisa P. Lindelef Anita I. Martinez Michelle Mercer Toni Rembe Rudy Ruano Guadalupe Siordia-Ortiz Lisa Spiegel Reginald D. Steer Alan Tafapolsky Mawuena Tendar Hon. James L. Warren (Ret.) Allen S. Weiner Roger Wu
General Counsel Bill Ong Hing
Of Counsel Don Ungar
Executive Director Eric Cohen
San Francisco 1663 Mission Street Suite 602 San Francisco, CA 94103 t: 415.255.9499 f: 415.255.9792
Washington D.C. 1016 16th Street, NW Suite 100 Washington, DC 20036 t: 202.777.8999 f: 202.293.2849
ilrc@ilrc.org www.ilrc.org

Submitted via Electronic Mail to ice-foia@dhs.gov
September 15, 2017
U.S. Immigration and Customs Enforcement Office of Principal Legal Advisor U.S. Department of Homeland Security Freedom of Information Act Office 500 12th Street SW, Stop 5009 Washington, D.C. 20536-5009
Re: 2017-ICFO-34743
Dear FOIA Appeals Officers:
On June 23, 2017 the Immigrant Legal Resource Center (“ILRC”) submitted a request under the Freedom of Information Act (FOIA) to U.S. Immigration and Customs Enforcement (ICE). The ILRC request (the “ILRC Data FOIA Request” attached as Exhibit A) asked for information relating to Detainer and Notification Acceptance Status between state or local law enforcement agencies and ICE, current and pending Section 287(g) agreements, ICE detention data, and information relating to ICE enforcement and planning and operations.
ICE responded by e-mail on June 28, 2017 acknowledging receipt of the ILRC Data FOIA Request, assigning it a case number (2017-ICFO-34743), invoking the ten-day delay period for response contained in 5 U.S.C. § 552(a)(6)(B), and granting Requestors’ fee waiver request (Exhibit B). ICE has not provided any further response to the ILRC Data FOIA Request or any further information about the status of that request.
Please consider this letter an appeal of ICE’s constructive denial of the FOIA request submitted on June 23, 2017. When a party submits a FOIA request, the agency has 20 business days to determine whether to produce records responsive to the request. 5 U.S.C. § 552(a)(6)(A)(i). In unusual circumstances, this deadline may be extended for a maximum of 10 additional business days. 5 U.S.C. § 552(a)(6)(B). When an agency fails to meet the response times required by FOIA, requesting parties may deem the agency’s delay a denial of the FOIA request and appeal the denial. 5 U.S.C. § 552(a)(6)(C)(i). See, e.g., Coleman v. DEA, 714 F.3d 816, 823 (4th Cir. 2013) (“even if a request ‘may have been burdensome to the agency or would have to be delayed because of other requests filed earlier,’ the constructive exhaustion provision still applies”) (quoting Pollack v. DOJ, 49 F.3d

ILRC FOIA AdCmaisneist3r:a1t7iv-ecvA-p0p6e0a2l 9 Document 1-3 Filed 10/20/17 Page 3 of 3 September 15, 2017
115, 119 (4th Cir. 1995); Ruotolo v. Dep’t of Justice, 53 F.3d 4, 8 (2d Cir. 1995) (“[A]dministrative remedies are ‘deemed exhausted’ if the agency fails to comply with the ‘applicable time limit’ provisions of the FOIA.”); Voinche v. Fed. Bureau of Investigation, 999 F.2d 962, 963 (5th Cir. 1993) (“If an agency has not complied within the statutory time limits of a FOIA request, the requestor shall be deemed to have exhausted his administrative remedies and [may] bring suit.”). ICE has failed to respond to the ILRC Data FOIA request within the 30 business days provided under the FOIA statute.
FOIA incorporates a strong presumption in favor of disclosure of requested records. Casa De Md., Inc. v. United States Dep't of Homeland Sec., 409 Fed. Appx. 697, 699 (4th Cir. 2011) (“Given the overarching disclosure policy, FOIA exemptions must be narrowly construed to favor disclosure”); Wisconsin Project on Nuclear Arms Control v. Dep’t of Commerce, 317 F.3d 275, 279 (D.C. Cir. 2003) (“FOIA accordingly mandates a ‘strong presumption in favor of disclosure.’”) (quoting Dep’t of Justice v. Ray, 502 U.S. 164, 173 (1991)). Agencies may deny a FOIA request only when the requested records fall under any of the nine exemptions listed in FOIA. 5 U.S.C. § 552(b)(1)-(9).
ICE exceeded the statutory time frame for responding to the ILRC Data FOIA Request more than one month ago. Because ICE has not applied any of the statutory exemptions to withhold the requested records, Requestors are entitled to the requested records.
Thank you for your prompt attention to this appeal. Under 5 U.S.C. § 552(a)(6)(A)(ii), you are required to make a determination on an appeal within 20 business days. If you have any questions regarding this appeal, please do not hesitate to contact Lena Graber at lgraber@ilrc.org or 415-321-8545.
Sincerely,
Lena Graber Immigrant Legal Resource Center 1663 Mission St., Suite 602 San Francisco, CA 94103 lgraber@ilrc.org 415-321-8545
CC: W. Hardy Callcott SIDLEY AUSTIN LLP 555 California Street, Suite 2000 San Francisco, CA 94104 +1 415 772 7402 hcallcott@sidley.com
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Exhibit D

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Case 3:17-cv-06029 Document 1-5 Filed 10/20/17 Page 1 of 1