Case: 4:18-cv-1842 As of: 10/26/2019 08:41 AM PDT 1 of 5
ADRMOP,CONSENT
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:18−cv−01842−DMR

Human Rights Watch v. Department of Homeland Security et al Assigned to: Magistrate Judge Donna M. Ryu Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 03/26/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Human Rights Watch

represented by Brianna Ricque Howard Nixon Peabody LLP One Embarcadero Center 32nd Floor San Francisco, CA 94111 415−984−8200 Fax: 844−454−5291 Email: bhoward@nixonpeabody.com ATTORNEY TO BE NOTICED

Christina Elena Fletes Nixon Peabody LLP One Embarcadero Center 18th Floor San Francisco, CA 94111 415−984−8200 Fax: 415−984−8300 TERMINATED: 01/18/2019

Matthew A. Richards Nixon Peabody LLP One Embarcadero Center, 32nd Floor San Francisco, CA 94111 415−984−8200 Fax: 415−984−8300 Email: mrichards@nixonpeabody.com ATTORNEY TO BE NOTICED

V. Defendant Department of Homeland Security

represented by David Alejandro Pereda Office of The Oakland City Attorney Litigation Division 1 Frank H. Ogawa Plaza 6th Floor Oakland, CA 94612 (510) 235−6520 Fax: (510) 238−6500 Email: dpereda@oaklandcityattorney.org (Inactive) TERMINATED: 01/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Bibb Davis United States Attorney's Office 450 Golden Gate Ave San Francisco, CA 94102 415−436−7066

Case: 4:18-cv-1842 As of: 10/26/2019 08:41 AM PDT 2 of 5

Fax: 415−436−7169 Email: Julie.Davis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Ann Falk U.S. Attorney's Office 450 Golden Gate Avenue 11th Floor San Francisco, CA 94102 415−436−7022 Fax: 415−436−6748 Email: rebecca.falk@usdoj.gov TERMINATED: 07/19/2019 LEAD ATTORNEY

Defendant
United States Citizenship and Immigration Services

represented by David Alejandro Pereda (See above for address) TERMINATED: 01/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Bibb Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Ann Falk (See above for address) TERMINATED: 07/19/2019 LEAD ATTORNEY

Date Filed 03/26/2018 03/26/2018 03/26/2018
03/27/2018 03/27/2018

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants ( Filing fee $ 400, receipt number 0971−12218110.). Filed byHuman Rights Watch. (Attachments: # 1 Exhibit 1−8, # 2 Civil Cover Sheet)(Richards, Matthew) (Filed on 3/26/2018) (Entered: 03/26/2018)
2 Proposed Summons. (Richards, Matthew) (Filed on 3/26/2018) (Entered: 03/26/2018)
3 Case assigned to Magistrate Judge Donna M. Ryu.
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 4/9/2018. (jmlS, COURT STAFF) (Filed on 3/26/2018) (Entered: 03/26/2018)
4 Summons Issued as to Department of Homeland Security, United States Citizenship and Immigration Services.(jjbS, COURT STAFF) (Filed on 3/27/2018) (Entered: 03/27/2018)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 7/11/2018. Initial Case Management Conference set for 7/18/2018 01:30 PM in Oakland, Courtroom 4, 3rd Floor. (jjbS, COURT STAFF) (Filed on 3/27/2018) (Entered: 03/27/2018)

Case: 4:18-cv-1842 As of: 10/26/2019 08:41 AM PDT 3 of 5

04/09/2018 04/13/2018 04/27/2018 04/27/2018 04/27/2018
05/25/2018 06/25/2018 06/27/2018 06/27/2018 06/28/2018 07/11/2018 07/12/2018
07/18/2018 07/18/2018 08/15/2018

6 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Human Rights Watch.. (Fletes, Christina) (Filed on 4/9/2018) (Entered: 04/09/2018)
7 CERTIFICATE OF SERVICE by Human Rights Watch re 6 Consent/Declination to Proceed Before a US Magistrate Judge (Fletes, Christina) (Filed on 4/13/2018) (Entered: 04/13/2018)
8 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Department of Homeland Security.. (Pereda, David) (Filed on 4/27/2018) (Entered: 04/27/2018)
9 STIPULATION Extending Deadline to Respond to Complaint filed by Department of Homeland Security, United States Citizenship and Immigration Services, and Human Rights Watch. (Pereda, David) (Filed on 4/27/2018) Modified on 4/30/2018 (jjbS, COURT STAFF). (Entered: 04/27/2018)
10 CERTIFICATE OF SERVICE by Human Rights Watch re 1 Complaint, 4 Summons Issued as to USA, 3 Case Assigned by Intake,,, 5 Initial Case Management Scheduling Order with ADR Deadlines, 2 Proposed Summons CERTIFICATE OF SERVICE of Summons, Complaint, and Case−Opening Documents (Richards, Matthew) (Filed on 4/27/2018) (Entered: 04/27/2018)
11 STIPULATION Continuing Deadline to Respond to 1 Complaint filed by Department of Homeland Security, United States Citizenship and Immigration Services, and Human Rights Watch. (Pereda, David) (Filed on 5/25/2018) Modified on 5/29/2018 (jjbS, COURT STAFF). (Entered: 05/25/2018)
12 ANSWER to 1 Complaint by Department of Homeland Security. (Pereda, David) (Filed on 6/25/2018) Modified on 6/26/2018 (jjbS, COURT STAFF). (Entered: 06/25/2018)
13 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Fletes, Christina) (Filed on 6/27/2018) (Entered: 06/27/2018)
14 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Fletes, Christina) (Filed on 6/27/2018) (Entered: 06/27/2018)
15 ADR Clerk's Notice Setting ADR Phone Conference on July 19, 2018 at 10:30 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
16 JOINT CASE MANAGEMENT STATEMENT filed by Department of Homeland Security, Human Rights Watch, and United States Citizenship and Immigration Services. (Pereda, David) (Filed on 7/11/2018) Modified on 7/12/2018 (jjbS, COURT STAFF). (Entered: 07/11/2018)
17 CLERK'S NOTICE: The court reviewed the parties' 7/11/2018 joint case management conference statement 16 . Having no objection from the Plaintiff, the Defendants' request to continue the Initial Case Management Conference is granted. The Initial Case Management Conference previously scheduled for 7/18/2018 01:30 PM has been continued to 8/29/2018 01:30 PM. Updated Joint Case Management Conference is due by 8/22/2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 7/12/2018) (Entered: 07/12/2018)
18 ADR Remark: ADR Phone Conference held on 7/17/2018 by Howard Herman. (cmf, COURT STAFF) (Filed on 7/18/2018) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 07/18/2018)
19 ADR Remark: The ADR Phone Conference is rescheduled to 8/14/2018 at 2:00 PM Pacific. The call−in information remains the same. (cmf, COURT STAFF) (Filed on 7/18/2018) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 07/18/2018)
20 ADR Remark: ADR Phone Conference held on 8/14/2018 by Howard Herman. (af, COURT STAFF) (Filed on 8/15/2018) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 08/15/2018)

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08/22/2018 08/22/2018 08/29/2018 08/29/2018
11/14/2018 11/15/2018
11/16/2018 01/07/2019 01/07/2019 01/08/2019 01/18/2019 01/22/2019 02/13/2019

21 JOINT CASE MANAGEMENT STATEMENT UPDATED JOINT CASE MANAGEMENT STATEMENT filed by Human Rights Watch, Department of Homeland Security, and United States Citizenship and Immigration Services (Fletes, Christina) (Filed on 8/22/2018) Modified on 8/23/2018 (jjbS, COURT STAFF). (Entered: 08/22/2018)
22 UPDATED JOINT CASE MANAGEMENT STATEMENT filed by Human Rights Watch, United States Citizenship and Immigration Services, and Department of Homeland Security. (Fletes, Christina) (Filed on 8/22/2018) Modified on 8/23/2018 (jjbS, COURT STAFF). (Entered: 08/22/2018)
23 PDF with attached Audio File. Court Date & Time [ 8/29/2018 1:36:33 PM ]. File Size [ 5568 KB ]. Run Time [ 00:11:36 ]. (courtspeak). (Entered: 08/29/2018)
24 Minute Entry for proceedings held before Magistrate Judge Donna M. Ryu: Initial Case Management Conference held on 8/29/2018. Updated Joint Case Management Statement due by 11/14/2018. Further Case Management Conference set for 11/21/2018 01:30 PM. See minute Order for more particulars. FTR Time: 1:36−1:48. Attachment: Civil Conference Minute Order. (ig, COURT STAFF) (Date Filed: 8/29/2018) (Entered: 08/30/2018)
25 JOINT CASE MANAGEMENT STATEMENT filed by Department of Homeland Security, Human Rights Watch, and United States Citizenship and Immigration Services. (Pereda, David) (Filed on 11/14/2018) Modified on 11/15/2018 (jjbS, COURT STAFF). (Entered: 11/14/2018)
26 CLERK'S NOTICE: Having reviewed the parties' 11/14/2018 joint updated case management statement 25 , it does not appear that the 11/21/2018 01:30 PM Further Case Management Conference is necessary at this time. If any party believes that a conference would be beneficial, the party shall notify the court by calling Ivy Garcia at 510−637−3639 by no later than 5:00 pm on 11/16/2018. If no calls are received, the 11/21/2018 01:30 PM Further Case Management Conference will be vacated and continued to 1/16/2019 01:30 PM with Updated Joint Case Management Conference Statement due by 1/9/2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ig, COURT STAFF) (Filed on 11/15/2018) (Entered: 11/15/2018)
Set/Reset Deadline and Hearing re 26 Clerk's Notice: Updated Joint Case Management Statement due by 1/9/2019. Further Case Management Conference continued to 1/16/2019 01:30 PM. (ig, COURT STAFF) (Filed on 11/16/2018) (Entered: 11/16/2018)
27 NOTICE of Substitution on behalf of the Federal Defendants by Rebecca Ann Falk (Falk, Rebecca) (Filed on 1/7/2019) Modified on 1/8/2019 (jjbS, COURT STAFF). (Entered: 01/07/2019)
28 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by Department of Homeland Security, United States Citizenship and Immigration Services and Human Rights Watch. (Falk, Rebecca) (Filed on 1/7/2019) Modified on 1/8/2019 (jjbS, COURT STAFF). (Entered: 01/07/2019)
29 ORDER by Magistrate Judge Donna M. Ryu granting 28 Stipulation to Continue: Updated Joint Case Management Statement due by 2/13/2019. Further Case Management Conference set for 2/20/2019 01:30 PM. (ig, COURT STAFF) (Filed on 1/8/2019) (Entered: 01/08/2019)
30 NOTICE of Substitution of Counsel by Brianna Ricque Howard for Christina Fletes (Howard, Brianna) (Filed on 1/18/2019) (Entered: 01/18/2019)
Electronic filing error. REMINDER: Counsel must update personal profile for change of contact information to be in effect Re: 30 Notice of Substitution of Counsel filed by Human Rights Watch. (jjbS, COURT STAFF) (Filed on 1/22/2019) (Entered: 01/22/2019)
31 JOINT CASE MANAGEMENT STATEMENT and proposed Order to Vacate Case Management Conference filed by Department of Homeland Security, United States Citizenship and Immigration Services, and Human Rights Watch. (Falk, Rebecca) (Filed on 2/13/2019) Modified on 2/14/2019 (jjbS, COURT STAFF). (Entered:

Case: 4:18-cv-1842 As of: 10/26/2019 08:41 AM PDT 5 of 5

02/15/2019
02/15/2019 06/10/2019 06/11/2019 07/19/2019 07/23/2019 07/24/2019 09/06/2019 09/06/2019
10/23/2019

02/13/2019)
32 ORDER re 31 Joint Case Management Statement, filed by Department of Homeland Security, United States Citizenship and Immigration Services, Human Rights Watch, VACATING 2/20/2019 Case Management Conference. Signed by Magistrate Judge Donna M. Ryu on 2/15/2019. (dmrlc1S, COURT STAFF) (Filed on 2/15/2019) (Entered: 02/15/2019)
Set/Reset Hearing (dmrlc1S, COURT STAFF) (Filed on 2/15/2019) (Entered: 02/15/2019)
33 STIPULATION WITH PROPOSED ORDER TO VACATE BRIEFING SCHEDULE filed by Department of Homeland Security, United States Citizenship and Immigration Services and Human Rights Watch. (Falk, Rebecca) (Filed on 6/10/2019) Modified on 6/11/2019 (ajsS, COURT STAFF). (Entered: 06/10/2019)
34 ORDER by Magistrate Judge Donna M. Ryu granting 33 Stipulation vacating briefing schedule previously set 32 . Parties to file a Joint Status Report by 7/26/2019. (ig, COURT STAFF) (Filed on 6/11/2019) (Entered: 06/11/2019)
35 NOTICE of Substitution of Counsel by Julie Bibb Davis (Davis, Julie) (Filed on 7/19/2019) (Entered: 07/19/2019)
36 STATUS REPORT AND PROPOSED ORDER by Department of Homeland Security, United States Citizenship and Immigration Service and Human Rights Watch. (Davis, Julie) (Filed on 7/23/2019) Modified on 7/24/2019 (ajsS, COURT STAFF). (Entered: 07/23/2019)
37 ORDER Granting Stipulation 36 for Extension of Time. The parties shall file an updated joint status report by September 9, 2019. Signed by Magistrate Judge Donna M. Ryu on 7/24/2019. (dmrlc3, COURT STAFF) (Filed on 7/24/2019) (Entered: 07/24/2019)
38 JOINT STATUS REPORT; Proposed Order by Human Rights Watch, Department of Homeland Security, Untied States Citizenship and Immigration Services. (Richards, Matthew) (Filed on 9/6/2019) Modified on 9/9/2019 (cjlS, COURT STAFF). (Entered: 09/06/2019)
39 ORDER re 38 Status Report filed by Human Rights Watch: The parties shall file an updated joint status report by 10/23/2019. Signed by Magistrate Judge Donna M. Ryu on 9/6/2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dmrlc1, COURT STAFF) (Filed on 9/6/2019) (Entered: 09/06/2019)
40 Joint STATUS REPORT and Proposed Order by Human Rights Watch, United States Citizenship and Immigration Services and Department of Homeland Security. (Richards, Matthew) (Filed on 10/23/2019) Modified on 10/24/2019 (jmlS, COURT STAFF). (Entered: 10/23/2019)

 
 Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 1 of 9

1 MATTHEW A. RICHARDS, SBN 233166 mrichards@nixonpeabody.com
2 CHRISTINA E. FLETES, SBN 312661 cfletes@nixonpeabody.com
3 NIXON PEABODY LLP One Embarcadero Center, 18th Floor
4 San Francisco, CA 94111-3600 Tel: 415-984-8200
5 Fax: 415-984-8300

6 Attorneys for Plaintiff HUMAN RIGHTS WATCH
7

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12 HUMAN RIGHTS WATCH,

Case No.

13

14

vs.

Plaintiff,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

15 DEPARTMENT OF HOMELAND SECURITY and UNITES STATES
16 CITIZENSHIP AND IMMIGRATION SERVICES,
17 Defendants.
18

19

INTRODUCTION

20

1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

21 seeking disclosure of records held by the United States Citizenship and Immigration Services

22 (“USCIS”), a branch of the Department of Homeland Security (“DHS”), concerning alleged due

23 process violations or other alleged misconduct by another branch of DHS, Customs and Border

24 Protection (“CBP”), of asylum seekers (hereinafter called “alleged violations or other alleged

25 misconduct”). Plaintiff Human Rights Watch (“HRW”) (“Plaintiff”) seeks declaratory,

26 injunctive, and other appropriate relief with respect to USCIS’s unlawful withholding of these

27 records.

28
4834-7373-1674.4

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 2 of 9

1

2. The information sought is of significant value to the public. Plaintiff seeks

2 information that would illustrate how United States immigration officers with CPB are treating

3 asylum seekers. Further, Plaintiff seeks to obtain and synthesize information about the

4 characteristics and handling of instances of alleged misconduct and/or due process violations

5 committed by CBP officials. The general public will gain a meaningful understanding of

6 government policies and practices relating to treatment of migrants at U.S. borders. Among

7 other things, the requested information will inform the public regarding the procedures for

8 referring asylum seekers to credible fear interviews to assess their asylum claims. The requested

9 information, therefore, is likely to contribute to an understanding of government operations and

10 activities.

11

3. USCIS’s failure to turn over requested records violates the FOIA, and is impeding

12 Plaintiff’s efforts to educate the public regarding the treatment of asylum seekers by government

13 officials at the U.S. border. There is no comparable source of information or analysis of

14 complaints against CBP heard by USCIS officers by would-be asylum seekers. Upon

15 information and belief, the requested information would increase the public’s understanding

16 about how the borders are being managed and operated by government agencies and, more

17 specifically, how CPB abuses reported to USCIS asylum officers are handled. Further, the

18 information would increase the public’s understanding of how its tax dollars are being spent.

19 The requested information has a strong potential to significantly contribute to the public’s

20 understanding of government operations and activities.

21

Jurisdiction and Venue

22

4. This Court has subject matter jurisdiction over this action pursuant to 5 U.S.C. §

23 552(a)(4)(B), 5 U.S.C. §§ 701-706 and 28 U.S.C. § 1331. This Court has jurisdiction to grant

24 declaratory and further necessary or proper relief pursuant to 28 U.S.C. §§ 2201-2202 and Federal

25 Rules of Civil Procedure 57 and 65.

26

5. Venue in this district is proper under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §

27 1391(e)(1)(C) in that Plaintiff HRW has an office in San Francisco, California.

28
4834-7373-1674.4

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 3 of 9

1

The Parties

2

6. Plaintiff HRW is a non-profit, non-partisan international human rights

3 organization, based in New York, New York, with offices in San Francisco, California. HRW

4 employs more than 400 professionals, among them lawyers, journalists, and academics. These

5 professionals work to uncover and report on human rights issues around the world. In order to

6 reach the broadest possible audience, the organization publishes detailed reports on human rights

7 issues of interest to a wide range of people. Through its domestic and international network of

8 offices and staff, HRW challenges governments and those in power to end abusive practices and

9 to respect international human rights law by enlisting the public and the international community

10 to support the cause of human rights for all.

11

7. Defendant DHS is a Department of the Executive Branch of the United States

12 Government and is an agency within the meaning of 5 U.S.C. § 552(f). DHS is responsible for

13 enforcing federal immigration laws. DHS has possession and control over the records sought by

14 Plaintiff.

15

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

16 5 U.S.C. § 552(f). USCIS oversees lawful immigration to the United States. As such, USCIS

17 adjudicates a wide range of applications for immigration status in the United States (including

18 lawful permanent residence, asylum, and temporary worker status), as well as applications for

19 U.S. citizenship. USCIS has possession and control over the records sought by Plaintiff.

20

Plaintiff’s FOIA Request

21

9. On November 17, 2015, Plaintiff submitted a FOIA request to USCIS seeking:

22 23 24 25 26 27 28
4834-7373-1674.4

[A]ll records held by the USCIS Asylum Division and prepared by USCIS asylum officers relating to, and/or mentioning or referring to alleged due process violations or other alleged misconduct by Customs and Border Protection (CBP) (hereinafter called “alleged violations or other alleged misconduct”). “Alleged violations or other misconduct” means any alleged or asserted due process violations; alleged conduct inconsistent or in violation of agency policy or regulations; alleged conduct outside the scope of the law, allegations that CBP failed to record fear of return expressed by migrants at the border; and alleged intimidation, coercion and physical abuse. This request include all records referring to due process violations by CBP agents discovered by asylum officers during credible fear interviews with noncitizens.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 4 of 9

1 Plaintiff requested documents ranging in time from October 1, 2006 through the present day. A

2 true and correct copy of Plaintiff’s November 17, 2015 FOIA request letter is attached hereto as

3 Exhibit 1.

4

10. Plaintiff asked that USCIS waive all fees associated with its FOIA request

5 because disclosure of the records is in the “public interest because it is likely to contribute

6 significantly to public understanding of the operations or activities of the government and is not

7 primarily in the commercial interest of the requester.” See Exhibit 1 at page 2.

8

11. On November 24, 2015, USCIS acknowledged receipt of Plaintiff’s FOIA

9 request. A true and correct copy of the USCIS November 24, 2015 acknowledgment letter is

10 attached hereto as Exhibit 2.

11

12. On December 13, 2016, USCIS produced 110 documents totaling 229 pages at

12 what it purported to be the conclusion of its review. One hundred-seventy-five of those pages

13 were significantly or fully redacted. Less than a quarter of the produced pages were released in

14 their entirety. A true and correct copy of the USCIS December 13, 2016 letter is attached hereto

15 as Exhibit 3.

16

13. The USCIS production suffers from a number of significant flaws and omissions,

17 evident even on the face of the heavily, and improperly, redacted set of documents released to

18 Plaintiff. For example, USCIS omitted a key spreadsheet mentioned in and originally attached to

19 an email bearing Bates No. USCIS_FOIA000021. A true and correct copy of Bates No.

20 USCIS_FOIA000021 is attached hereto as Exhibit 4. The spreadsheet contains information about

21 “problematic Border Patrol practices that arise in the credible fear context,” including an instance

22 where an applicant “was made fun of by officers because she is transgender and was forced to

23 sign documents.” See Exhibit 4. While it is apparent that the spreadsheet was originally attached

24 to the email, the spreadsheet itself was not produced. The spreadsheet contains data from 1016

25 cases and includes information about CBP misconduct, data about CBP officers failing to ask

26 applicants about their fear during credible fear interviews, and other improper questioning by

27 officers. See Exhibit 5 (true and correct copy of Bates No. USCIS_FOIA000096).

28
4834-7373-1674.4

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 5 of 9

1

14. Among other things, USCIS failed to provide any records created prior to 2013.

2 Not a single document in the production is dated during the time period 2006-2012.

3

15. USCIS also failed to produce documents generated up to the time of its search, as

4 required by FOIA and governing case law.

5

16. USCIS also improperly relied on 5 U.S.C. § 552(b)(6) (“FOIA Exemption 6”) to

6 redact the vast majority of pages that were produced. Further, USCIS erroneously asserted FOIA

7 Exemption 6, an exemption which is limited to personnel, medical, and similar files, to

8 inappropriately redact every single government employee name and email address in its

9 document production.

10

17. On March 10, 2017, in response to USCIS’s production, Plaintiff submitted an

11 administrative appeal, asking USCIS to:

12

• conduct an appropriate search for any and all records referencing or mentioning

13

alleged due process violations or other alleged misconduct by CBP from 2006

14

through December 13, 2016, according to the parameters described in the original

15

Request;

16

• produce each responsive document in an original, complete, and comprehensible

17

format; and

18

• appropriately limit its use of FOIA Exemption 6 to redact only such information as

19

is appropriate and actually subject to that exemption (i.e., personal identifying

20

information such as names, addresses, and Alien Nos., if USCIS is able to make a

21

particularized showing that FOIA Exemption 6 should apply).

22 A true and correct copy of Plaintiff’s March 10, 2017 FOIA appeal letter is attached hereto as

23 Attachment A to Exhibit 6.

24

18. On March 14, 2017, USCIS acknowledged the appeal and remanded the request

25 to the National Records Center “for a further search.” Further, USCIS stated that “[i]f records

26 [were] located, those that can be released will be made available.” A true and correct copy of the

27 March 14, 2017 USCIS acknowledgment and remand letter is attached hereto as Exhibit 7.

28
4834-7373-1674.4

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 6 of 9

1

19. On September 25, 2017, after waiting over six months with no word from USCIS

2 or the National Records Center, Plaintiff once again reached out to USCIS demanding the full and

3 complete production of documents to which it is entitled. A true and correct copy of Plaintiff’s

4 September 25, 2017 follow-up letter is attached hereto as Exhibit 6.

5

20. On February 15, 2018 Plaintiff once again reached out to USCIS but did not

6 receive a response. A true and correct copy of the Plaintiff’s February 15, 2018 email is attached

7 hereto as Exhibit 8.

8

21. Plaintiff has exhausted its administrative remedies. Upon receiving the initial

9 deficient production of documents, Plaintiff appealed to USCIS on March 10, 2017. Although

10 USCIS remanded the FOIA request, USCIS has not produced any additional documents nor

11 communicated with Plaintiff since March 14, 2017. Six months after the initial appeal request,

12 Plaintiff reached out to USCIS once again demanding the full and complete production of

13 documents to which it is entitled. USCIS did not respond. On February 15, 2018, Plaintiff

14 emailed USCIS to inquire about its FOIA request, but received no response from USCIS.

15

22. To date, USCIS has not produced any further documents responsive to Plaintiff’s

16 FOIA request, nor has it reproduced the original production to correct the improper redactions.

17

23. USCIS and DHS have violated the applicable statutory time limit for the processing

18 of FOIA requests.

19

24. USCIS and DHS have wrongfully failed to release responsive records to Plaintiff.

20

25. USCIS and DHS have wrongfully failed to correct improper redactions applied to the

21 original production.

22

FIRST CAUSE OF ACTION

Violation of Freedom of Information Act, 5 U.S.C. § 552

23

for Failure to Disclose Responsive Agency Records

24

26. Plaintiff repeats, alleges and incorporates the allegations in paragraphs 1-25 as if fully

25 set forth herein.

26

27. Although a fraction of the responsive documents have been produced in response

27 to the Request, Defendants’ withholding of the vast majority of responsive documents constitutes

28 a constructive denial of the Request.
4834-7373-1674.4

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 7 of 9

1

28. Defendants’ unlawful withholding of documents responsive to Plaintiff’s request

2 violates 5 U.S.C. §§ 552(a)(3)(A) and (a)(6)(A), as well as the regulations promulgated thereunder.

3

29. Further, Defendants improperly relied on exemptions under 5 U.S.C. § 552(b)(6) in

4 redacting responsive records. Defendants’ improper redaction of the records violates the FOIA, 5

5 U.S.C. § 552(b).

6

30. USCIS and DHS are obligated under 5 U.S.C. § 552(a)(3) to produce records

7 responsive to Plaintiff’s FOIA request. Plaintiff has a legal right to obtain such records, and no

8 legal basis exists for USCIS’s and DHS’s failure to disclose unredacted records from October 1,

9 2006 through December 13, 2016. Nor, critically, has USCIS or DHS ever even attempted to

10 articulate such a legal basis for their failure.

11

SECOND CAUSE OF ACTION

Violation of Freedom of Information Act, 5 U.S.C. § 552

12

for Failure to Conduct an Adequate Search of Agency Records

13

31. Plaintiff repeats, alleges, and incorporates by reference the allegations in paragraphs

14 1-30 as if fully set forth herein.

15

32. Even though Defendants produced some documents, the production is incomplete,

16 and Defendants applied an improper time limit to their search. Plaintiff’s FOIA request asked for

17 records from October 1, 2006 through December 13, 2016. However, Defendants failed to provide

18 any records dated between 2006 and 2012.

19

33. USCIS and DHS are obligated under 5 U.S.C. § 552(a)(3) to conduct a reasonable

20 search for and to produce records responsive to Plaintiff’s FOIA request. Plaintiff has a legal

21 right to obtain such records, and no legal basis exists for USCIS’s and DHS’s failure to conduct a

22 reasonable search for records from October 1, 2006 through December 13, 2016.

23

34. Defendants’ failure to conduct a reasonable search for records responsive to Plaintiff’s

24 request violates 5 U.S.C. §§ 552(a)(3)(C), and (a)(6)(A), as well as the regulations promulgated

25 thereunder.

26 //

27 //

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 8 of 9

1

THIRD CAUSE OF ACTION

Violation of the Administrative Procedure Act (“APA”)

2

for Failure to Timely Respond to Request for Agency Records

3

35. Plaintiff repeats, alleges, and incorporates by reference the allegations in paragraphs

4 1-34 as if fully set forth herein.

5

36. Defendants’ failure to timely respond to Plaintiff’s request for agency records

6 constitutes agency action unlawfully withheld and unreasonably delayed in violation of the APA, 5

7 U.S.C. §§ 701-06. Defendants’ failure to timely respond is arbitrary, capricious, and an abuse of

8 discretion, not in accordance with law and without observance of procedure required by law, all in

9 violation of the APA.

10

PRAYER FOR RELIEF

11

WHEREFORE, Plaintiff requests that judgment be entered in that favor and against

12 Defendants USCIS and DHS. Plaintiff further requests that the Court:

13

(a) Declare unlawful Defendants’ refusal to disclose the records requested by

14 Plaintiff;

15

(b) Declare that Defendants’ failure to make a determination with respect to Plaintiff’s

16 FOIA request within the statutory time limit and Defendants’ failure to disclose responsive

17 records violates the FOIA;

18

(c) Declare that Defendants’ failure to timely respond to Plaintiff’s request for

19 agency records violates the APA;

20

(d) Order Defendants and any of Defendants’ departments, components, other

21 organizational structures, agents, or other persons acting by, through, for, or on behalf of

22 Defendants to conduct a full, adequate, and expeditious search for records responsive to

23 Plaintiff’s FOIA request;

24

(e) Enjoin Defendants, and any of their departments, components, other

25 organizational structures, agents, or other persons acting by, through, for, or on behalf of

26 Defendants from withholding non-exempt records responsive to Plaintiff’s FOIA request

27 and order them to promptly produce the same without redaction;

28
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:18-cv-01842-DMR Document 1 Filed 03/26/18 Page 9 of 9

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(f) Order Defendants to provide within 30 days after service of the Complaint

2 in this action, an itemized, indexed inventory of every agency record or portion thereof

3 responsive to Plaintiff’s request which Defendants assert to be exempt from disclosure,

4 accompanied by a detailed justification statement covering each refusal to release records

5 or portions thereof in accordance with the indexing requirements of Vaughn v. Rosen, 484

6 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974);

7

(g) Award Plaintiff its reasonable attorneys’ fees and costs pursuant to 5 U.S.C. §

8 552(a)(4)(E) and 28 U.S.C. § 2412; and

9

(h) Grant all other such relief to Plaintiff as the Court deems just and equitable.

10 11 Dated: March 26, 2018 12

Respectfully submitted, NIXON PEABODY LLP

13 By: /s/ Matthew A. Richards

14

MATTHEW A. RICHARDS

CHRISTINA E. FLETES

15

Attorneys for Plaintiff

HUMAN RIGHTS WATCH

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF