Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL, )

)

Plaintiff

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY, et al.,

)

)

Defendants

)

__________________________________________)

Civil Action No. 11-1972 (JEB)

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants, United States Department of Homeland Security, U.S. Customs and Border

Protection ("CBP"), by and through undersigned counsel, respectfully move this Court, pursuant

to Rule 56 of the Federal Rules of Civil Procedure, for an order granting summary judgment in

favor of Defendants on the grounds that no genuine issue as to any material fact exists, and

defendant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In support of this

motion, the Court is respectfully referred to the accompanying Declaration of Ms. Shari Suzuki,

with exhibits attached thereto, a Statement of Material Facts as to Which There Is No Genuine

Issue, and the Memorandum of Points and Authorities in Support of Defendants’

Motion for Summary Judgment. A proposed Order consistent with the relief sought herein is

also attached.

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 2 of 20

Respectfully submitted,
RONALD C. MACHEN JR. D.C. Bar # 447889 United States Attorney
RUDOLPH CONTRERAS D.C. Bar # 434122 Chief, Civil Division

BY:

/s/ Marian L. Borum

MARIAN L. BORUM

D.C. Bar # 435409

Assistant United States Attorney

Civil Division

555 Fourth Street, N.W.

Washington, D.C. 20530

(202) 514-6531 (telephone)

(202) 514-8780 (facsimile)

Marian.L.Borum@usdoj.gov

Of Counsel:
Howard Charles Attorney (Enforcement) Office of Chief Counsel United States Customs and Border Protection 1300 Pennsylvania Avenue, NW, Suite 4.4B Washington, D.C. 20229

2

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 3 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL, )

)

Plaintiff

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY, et al.,

)

)

Defendants

)

__________________________________________)

Civil Action No. 11-1972 (JEB)

DEFENDANTS' STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Rule 7.1(h), Defendants hereby submit the following Statement of

Material Facts as to Which There is No Genuine Dispute. The attached Declaration of Ms. Shari

Suzuki, Freedom of Information Act (“FOIA”) Appeals Officer, and Chief of the FOIA Appeals,

Policy and Litigation Branch (“FAPL”), Regulations and Rulings, Office of International Trade,

U.S. Customs and Border Protection (“CBP”), United States Department of Homeland Security

supports this statement. See Attachment 1.

1. By letter dated March 14, 2011, Plaintiff, American Immigration Council (“AIC”),

submitted a Freedom of Information Act request to CBP seeking:

Any and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP field operations offices, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:

- Attorney's ability to be present during their clients' interactions with CBP;

- What role attorneys may play during their clients' interactions with CBP;

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 4 of 20
- Attorney conduct during interactions with CBP on behalf of their clients; - Attorney appearances at CBP offices or other facilities. See Attachment 1 (Declaration of Shari Suzuki (Suzuki Decl.")) at ¶ 7; Exhibit A. 2. In response to AIC's initial FOIA request, CBP's FOIA Division collected and reviewed responsive records and concluded that "much of the information AIC requested was already publicly available." In its response dated May 12, 2011 under FOIA Division File No. 2011F08147, the FOIA Division stated that responsive information could be found in the Code of Federal Regulations, the Personal Search Handbook, and the Inspector's Field Manual (“IFM”) Plaintiff also was informed that "once the IFM is approved for release," it will be available via the internet on the CBP Reading Library. Id. at ¶ 8. See Exhibit B. 3. By letter dated May 26, 2011 to CBP, Plaintiff appealed the FOIA Division's May 12, 2011 response. See Exhibit C. In its May 26, 2011 letter, AIC appealed the decision of the FOIA Division questioning the adequacy of CBP's search for responsive records, as well as CBP's denial of its request for fee waiver. See id. at ¶ 9 and Exhibit D. 4. On June 10, 2011, Ms. Suzuki acknowledged receipt of Plaintiff’s appeal letter. See Exhibit E. 5. On June 23, 2011, a CBP attorney with FAPL confirmed, in a telephone call with Plaintiff, that the FOIA request seeking records regarding CBP policies, directives and guidance relating to the accessibility of counsel was limited to noncitizens' interactions with CBP in immigration encounters at ports of entry and between ports of entry, not the policies, directives and guidance concerning the permissible roles of attorneys in the myriad trade matters within the purview of CBP. Id. at ¶ 11.
2

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 5 of 20
6. On September 29, 2011, CBP issued the final administrative appeal decision in FAPL Branch case number H170224, granting Plaintiff's request for a fee waiver, and providing Plaintiff with two pages of unredacted records as enclosures. See Exhibit F. In the letter, after citing the guiding statutes and implementing regulation (8 U.S.C. § 1357, 8 U.S.C. § 287.3(c) and 8 C.F.R. § 292.5) which state unequivocally that generally1 "applicants for admission" into the United States have no right to counsel, CBP noted that:
Barring an individual being the focus of a criminal investigation, applicants for admission do not have the right to legal representation. Thus, it is logical that CBP does not have extensive responsive documents concerning the subject; comprehensive CBP guidance governing attorney representation and conduct, where in most instances applicants for admission have no such right, is unnecessary. That is, where there is no substantive right to representation in primary and secondary inspections, the agency need not provide detailed instructions or guidance regarding the subject – it is sufficient for CBP personnel to be informed that generally there is no right to counsel at the border. Notwithstanding, CBP released two pages of responsive information. See Exhibit G. The records released to AIC included: 1) the Inspector's Field Manual (IFM) Chapter 2.9 "Dealing with Attorneys and Other Representatives"; 2) IFM Chapter 17.1.g "Attorney Representation at Deferred Inspection"; 3) IFM Chapter 17.9.11.2 "Notification for Detainees in Baggage Control Secondary"; 4) a section captioned "Solicitation of Services" from The Officers' Handbook, M68; and Warnings Required Following Administrative Arrest" from the Search and Seizure
1
Exceptions are made for instances in which the applicant has become the focus of a criminal investigation or is detained.
3

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 6 of 20
Manual, M69. Id. at ¶ 11. 7. Defendant filed the instant complaint on November 8, 2011. See Docket Entry No. 1.
Respectfully submitted, RONALD C. MACHEN JR. D.C. Bar # 447889 United States Attorney RUDOLPH CONTRERAS D.C. Bar # 434122 Chief, Civil Division
BY: /s/ Marian L. Borum MARIAN L. BORUM D.C. Bar # 435409 Assistant United States Attorney Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 514-6531 (telephone) (202) 514-8780 (facsimile) Marian.L.Borum@usdoj.gov
Of Counsel: Howard Charles Attorney (Enforcement) Office of Chief Counsel United States Customs and Border Protection 1300 Pennsylvania Avenue, NW, Suite 4.4B Washington, D.C. 20229
4

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 7 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL

)

)

Plaintiff

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY, et al.

)

)

Defendants

)

__________________________________________)

Civil Action No. 11-1972 (JEB)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This action was commenced by Plaintiff, American Immigration Council, pursuant to the

Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosures of records regarding

"individual's access to counsel during their interactions with CBP." Complaint ("Compl") at p. 1.

Plaintiff's sole claim is that Defendant, United States Customs and Border Protection (“CBP”),

has failed to conduct a reasonable search for, and to produce, records responsive to its request. Id.

at 25. However, the accompanying Declaration of Shari Suzuki, Freedom of Information Act

Appeals Officer, and Chief of the FOIA Appeals, Policy and Litigation Branch (“FAPL”),

Regulations and Rulings, Office of International Trade (“TO”), U.S. Customs and Border

Protection clearly establishes that the Defendant has fully complied with its obligation pursuant

to FOIA, including conducting a reasonable and adequate search for documents responsive to

plaintiff's request. See Attachment A, Declaration of Shari Suzuki (“Suzuki Dec.”). This

declaration also recounts the specific steps that CBP undertook to process AIC's request,

including how CBP conducted a detailed search for records of all the CBP offices where

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 8 of 20
responsive records would likely be found. See id. at ¶¶ 14-22. The Declaration demonstrates unequivocally that CBP's search for records was reasonable and adequate, and that CBP made a good faith effort to locate records responsive to Plaintiff's request. All responsive records identified by CBP have been produced to the plaintiff without redactions. Accordingly, based on the declaration, and for the reasons set forth below, Defendants submit that they are entitled to summary judgment as a matter of law.
II. APPLICABLE LEGAL STANDARDS A. Motions for Summary Judgment Where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” summary judgment is required by Rule 56(a) of the Federal Rules of Civil Procedure. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)(interpreting Rule 56(c), the prior version of Rule 56(a)); Gaujacq v. EDF, Inc., 601 F.3d 565, 575 (D.C. Cir. 2010). A genuine issue of material fact is one that would change the outcome of the litigation. Anderson, 477 U.S. at 248. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-248 (emphasis in original). The burden on the party moving for summary judgment “may be discharged by ‘showing’ -- that is, pointing out to the [Court] -- that there is an absence of evidence to support the non-moving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987). Once the moving party has met its burden, the non-movant may not rest on mere allegations, but must “make a sufficient showing on an essential element of [his] case” to
2

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 9 of 20
establish a genuine dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Burke v. Gould, 286 F.3d 513, 517-20 (D.C. Cir. 2002) (requiring a showing of specific, material facts). “[T]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. Thus, to avoid summary judgment, the plaintiff must present some objective evidence that would enable the court to find he is entitled to relief. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). See also Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor). In Celotex, the Supreme Court instructed that the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.'" 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
B. FOIA Actions and Summary Judgment The summary judgment standards set forth above also apply to FOIA cases, which are typically decided on motions for summary judgment. See Harrison v. Exec. Office for U.S. Attorneys, 377 F. Supp. 2d 141, 145 (D.D.C. 2005)(FOIA cases are typically and appropriately decided on motions for summary judgment.). In a FOIA suit, an agency is entitled to summary judgment once it demonstrates that no material facts are in dispute and that each document that falls within the class requested either has been produced, not withheld, is unidentifiable, or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001).
3

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 10 of 20
An agency satisfies the summary judgment requirements in a FOIA case by providing the Court and the plaintiff with affidavits or declarations and other evidence which show that the documents are exempt from disclosure. Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv , 608 F.2d 1381, 1386 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980). The district court is required to accord substantial weight to declarations submitted by an agency in support of the claimed exemptions, 5 U.S.C. § 552(a)(4)(B), and such declarations are presumed to be submitted in good faith. SafeCard Servs., Inc. v. Securities and Exchange Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). If the affidavits or declarations are reasonably specific, rather than merely conclusory, and they are not called into doubt by contradictory evidence or evidence of agency bad faith, the court must grant summary judgment based upon them. See Gardels v. Cent. Intelligence Agency, 689 F.2d 1100, 1104-05 (D.C. Cir. 1982); Windels, Marx, Davies & Ives v. Dep't of Commerce, 576 F. Supp. 405, 409 (D.D.C. 1983).
III. ARGUMENT A. The U.S. Customs and Border Protection Conducted a Search Reasonably Calculated to Recover Responsive Records. In responding to a FOIA request, an agency is under a duty to conduct a reasonable search for responsive records. Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The established reasonableness standard by which FOIA searches are judged "does not require absolute exhaustion of the files; instead it requires a search reasonably calculated to uncover the sought materials." Miller v. Dep't of State, 779 F.2d 1378, 1384-85 (8th Cir. 1986); accord Maynard v. Cent. Intelligence Agency, 986 F.2d 547, 559 (1st Cir. 1993)(the agency "must show that it made a good faith effort to conduct a search for the requested records, using methods which
4

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 11 of 20
can be reasonably expected to produce the information requested."); Oglesby, 920 F.2d at 68; Maynard, 986 F.2d at 559; SafeCard Servs., 926 F.2d at 2101. An agency demonstrates that it conducted a reasonable search by showing "that it made a good faith effort to conduct a FOIA search for requested records by using methods that can reasonably be expected to produce the information requested." W. Ctr. for Journalism v. Internal Revenue Serv., 116 F. Supp.2d 1, 9 (D.D.C. 2000), aff'd 22 Fed. Appx. 14 (D.C. Cir. 2001); Oglesby, 920 F.2d at 68. Conducting a "reasonable" search is a process that requires "both systemic and case-specific exercises of discretion and administrative judgment and expertise" and is "hardly an area in which the courts should attempt to micro-manage the executive branch." Schrecker v. Dep't of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003). Thus, "the issue in a FOIA case is not whether the agencies' searches uncovered responsive documents, but rather whether the searches were reasonable." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996); see also Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986). Hence, the fundamental question is not "'whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'" Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). See Burnes v. Cent. Intelligence Agency, No. 05-242, U.S. Dist LEXIS 20114 at *2-7 (D.D.C. Sept. 14, 2005). (In FOIA cases, "the Court's inquiry regarding the adequacy of the search focuses on the search itself, not its results."). Accord Nation Magazine v. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995); Meeropol, 790 F.2d at 952-53.
In order to prove that its search was adequate, the agency is entitled to rely upon affidavits, provided that they are "relatively detailed, nonconclusory, and submitted in good faith." Pollack
5

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 12 of 20
v. Bureau of Prisons, 879 F.2d 406, 409 (8th Cir. 1989); accord Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Such affidavits should show "that the search method was reasonably calculated to uncover all relevant documents," and should "explain how the search was conducted." Oglesby, 920 F.2d at 68; and see Maynard, 986 F.2d at 559. Significantly, the search need only be reasonable; it does not have to be exhaustive. Miller v. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985). Merely because an agency is unable to find a particular document a requestor believes that it should have, does not render its search inadequate. Wilbur v. CIA, 355 F.3d 675, 678, (D.C. Cir. 2004); Nation Magazine, Washington Bureau v. U.S. Customs, 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).
In evaluating the adequacy of a search, courts accord agency declarations "a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc., 926 F.2d at 1200. The statute does not require "meticulous documentation [of] the details of an epic search." Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Declarations that "explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA." Id. See generally Davis v. Dep't of Justice, 460 F.3d 92, 103 (D.C. Cir. 2006) ("adequacy of an agency's search is measured by a standard of reasonableness, and is dependent upon the circumstances of the case. And we expressly cautioned that it would be inappropriate for the court to mandate a bright-line set of steps for an agency to take in this situation, because FOIA requires both systemic and case-specific exercises of discretion and administrative judgment and expertise") (internal citations and quotations omitted).
6

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 13 of 20

Once the Court determines that the declarations are sufficient, it need not inquire further.

See Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). A court

"may award summary judgment [in a FOIA case] solely on the basis of information provided by

the department or agency affidavits or declarations. Burnes v. Cent. Intelligence Agency, No.

05-242 (GK), 2005 U.S. Dist LEXIS 20114 (D.D.C. Sept. 14, 2005). As explained in the Suzuki

Declaration, CBP conducted a reasonable, diligent, and adequate search which utilized methods

reasonably expected to locate records responsive to plaintiff's FOIA request.

B. Unredacted Copies of Responsive Records Were Provided to Plaintiff.

By letter dated March 14, 2011, Plaintiff submitted a FOIA request to CBP seeking:

Any and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP field operations offices, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:

·

Attorney's ability to be present during their clients' interactions with CBP;

·

What role attorneys may play during their clients' interactions with CBP;

·

Attorney conduct during interactions with CBP on behalf of their clients;

·

Attorney appearances at CBP offices or other facilities.

Suzuki Decl. at ¶ 7 By letter dated May 12, 2011, under FOIA Division File No. 2011F08147, the

FOIA Division informed AIC that responsive information could be found in the Code of Federal Regulations, the Personal Search Handbook, and the Inspector's Field Manual (“IFM”).2 Id. ¶ 8

and Exhibit 8.

By letter dated May 26, 2011, AIC appealed CBP's initial response to its FOIA request,

2Plaintiff also was informed that "once the IFM is approved for release," it will be available via the internet on the CBP Reading Library. Id.
7

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 14 of 20
arguing that CBP had not conducted an adequate search for responsive records and that its request for fee waiver should have been granted. Id. at ¶ 9 and Exhibit C. On June 23, a CBP attorney conferred with plaintiff to clarify AIC's request for records. See id. at ¶ 11. In response to AIC's claim that CBP's initial search was inadequate, FAPL contacted several offices within CBP where responsive records would most likely be found, including the Office of Border Patrol (“OBP”), Office of Field Operations (“OFO”), and Office of Chief Counsel (“OCC”). Id. at ¶ 14. These offices were determined to be the offices where responsive records would have been created and maintained due to the offices’ duties and functions. Id.
It was determined that OBP was likely to have responsive records “because of the nexus between the information requested . . . and OBP’s mission and daily function to prevent, interdict and interview persons who attempt to make illegal entry into the United States . . . .” Suzuki Dec. at ¶ 15. It was determined that OFO as well as its program offices, Admissibility and Passenger Programs (“APP”) and Enforcement Programs Division (“EPD”) were likely to have responsive records “because of the nexus between the information requested . . . and OFO’s mission and daily function to interdict and interview persons at ports of entry . . . .” Id. at ¶ 17. Finally, it was determined that OCC was likely to have responsive records because of its familiarity with the issues raised by [Plaintiff] and its function as legal representative to CBP in its border enforcement efforts . . . .” Id. at ¶ 21.
As a result of OBP’s search, it located and “provided information from two of its manuals, ‘the Officers’ Handbook’ and “the Law of Arrest; Search and Seizure Manual . . . .” Id. at ¶ 16. As a result of OFO’s search, it located and provided portions of the Inspector’s Field Manual. Id. at ¶ 18. OFO’s program offices, APP and EDP, also identified portions of the Inspector’s Field
8

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 15 of 20
Manual as responsive to Plaintiff’s FOIA request. OCC reviewed the responsive documents that were located, “conducted a separate search and confirmed that no other responsive records exist[ed].” Id. at ¶ 21.
On September 29, 2011 CBP issued a final administrative appeal decision in response to Plaintiff's appeal, granting Plaintiff's request for a fee waiver, and providing unredacted copies of the responsive records identified during the searches. Id. at ¶ 12 and Exhibits F and G. The records released were:
(1) the Inspector's Field Manual (IFM) Chapter 2.9, "Dealing with Attorneys and Other Representatives";
(2) IFM Chapter 17.1g "Attorney Representation at Deferred Inspection"; (3) IFM Chapter 17.9.11.2 "Notification for Detainees in Baggage Control Secondary"; (4) a section captioned "Solicitation for Services" from The Officers' Handbook, M68; and (5) from the Law of Arrest, a section captioned "b. Warning Required Following Administrative Arrest" from the Search and Seizure Manual, M69. Suzuki Decl. at ¶ 12. CBP has been unable to identify or locate any other records that would be responsive to Plaintiff’s request. In Plaintiff’s Complaint, it is not alleging that CBP failed to respond to its FOIA request or that it improperly withheld responsive information, but rather that there must be some additional information out there which CBP has failed to turn over to the requester. Plaintiff's justification for questioning the adequacy of the search conducted by CBP is premised solely on the idea that there must be additional information "out there" which CBP is impermissibly withholding. However, the fundamental issue in assessing the adequacy of the government's search is not whether any responsive documents might exist, but rather, whether the government's search for
9

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 16 of 20
responsive materials was adequate. Perry, 684 F.2d at 128; see Steinberg, 23 F.3d at 551 ("the question is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those records was adequate.")
Ms. Suzuki's Declaration establishes that CBP's search method to locate records was reasonably calculated to uncover all information responsive to Plaintiff's request. CBP released unredacted copies of all responsive records located. Despite the searches and requests made to components within CBP, CBP has been unable to locate further responsive information to Plaintiff’s request. This result is not at all surprising or suspicious because there is no reason to believe that any additional information exists.3 Suzuki Decl. at ¶ 22. The fact that CBP may have been unsuccessful in locating particular documents AIC speculates CBP should have, does not render CBP’s efforts to locate responsive documents inadequate. Wilbur, 355 F.3d at 678. Moreover, as our Circuit Court has noted, if the declaration is reasonably specific, rather than merely conclusory, and it is not called into doubt by contradictory evidence or evidence of agency bad faith, the court must grant summary judgment based upon them. See Gardels, 689 F.2d at 1104-05. Here, Plaintiff has not demonstrated, and cannot demonstrate, contradictory evidence or bad faith on the part of the Defendant. Therefore, Defendant’s request for summary judgment should be granted.
3Even if additional information might exist, the Defendants’ search was reasonably calculated to uncover all relevant documents, and its search was adequate. See Weisberg, 745 F.2d at 1485 ("'whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'" )
10

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 17 of 20

IV. CONCLUSION

As demonstrated in the Suzuki Declaration, CBP's search for documents responsive to

AIC's FOIA request was both adequate and reasonable. In addition, CBP has provided an

unredacted copy of all the responsive records that it found in its search. For the foregoing reasons,

Defendant respectfully requests that its Motion for Summary Judgment be granted because there

is no genuine issue of material fact, and Defendant is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a).

Respectfully submitted,

RONALD C. MACHEN JR. D.C. Bar # 447889 United States Attorney

RUDOLPH CONTRERAS D.C. Bar # 434122 Chief, Civil Division

BY: /s/ Marian L. Borum MARIAN L. BORUM D.C. Bar # 435409 Assistant United States Attorney Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 514-6531 (telephone) (202) 514-8780 (facsimile) Marian.L.Borum@usdoj.gov
Of Counsel:
Howard Charles Attorney (Enforcement) Office of Chief Counsel United States Customs and Border Protection 1300 Pennsylvania Avenue, NW, Suite 4.4B Washington, D.C. 20229
11

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 18 of 20
CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on this 26th day of January, 2012, the foregoing was served upon Plaintiff’s counsel, via the Court’s Electronic Filing System, as follows: Creighton R. Magid Dorsey & Whitney LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 Melissa Crow American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005
/s/ MARIAN L. BORUM Assistant United States Attorney
12

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 19 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL, )

)

Plaintiff

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY, et al.,

)

)

Defendants

)

__________________________________________)

Civil Action No. 11-1972 (JEB)

ORDER

Upon consideration of Defendants’ Motion for Summary Judgment, Plaintiff’s Opposition,

and the entire record herein, it is this ________ day of ________________, 2012,

ORDERED that Defendants’ Motion for Summary Judgment is hereby GRANTED.

_____________________________ United States District Judge

13

Case 1:11-cv-01972-JEB Document 9 Filed 01/26/12 Page 20 of 20
Copies to: Marian L. Borum Assistant United States Attorney Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530 Creighton R. Magid DORSEY & WHITNEY LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 Melissa Crow American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005
14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 1 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 2 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 3 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 4 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 5 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 6 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 7 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 8 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 9 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 10 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 11 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 12 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 13 of 14

Case 1:11-cv-01972-JEB Document 9-1 Filed 01/26/12 Page 14 of 14

Case 1:11-cv-01972-JEB Document 9-2 Filed 01/26/12 Page 1 of 5

Case 1:11-cv-01972-JEB Document 9-2 Filed 01/26/12 Page 2 of 5

Case 1:11-cv-01972-JEB Document 9-2 Filed 01/26/12 Page 3 of 5

Case 1:11-cv-01972-JEB Document 9-2 Filed 01/26/12 Page 4 of 5

Case 1:11-cv-01972-JEB Document 9-2 Filed 01/26/12 Page 5 of 5

Case 1:11-cv-01972-JEB Document 9-3 Filed 01/26/12 Page 1 of 3

Case 1:11-cv-01972-JEB Document 9-3 Filed 01/26/12 Page 2 of 3

Case 1:11-cv-01972-JEB Document 9-3 Filed 01/26/12 Page 3 of 3

Case 1:11-cv-01972-JEB Document 9-4 Filed 01/26/12 Page 1 of 7

Case 1:11-cv-01972-JEB Document 9-4 Filed 01/26/12 Page 2 of 7

Case 1:11-cv-01972-JEB Document 9-4 Filed 01/26/12 Page 3 of 7

Case 1:11-cv-01972-JEB Document 9-4 Filed 01/26/12 Page 4 of 7

Case 1:11-cv-01972-JEB Document 9-4 Filed 01/26/12 Page 5 of 7

Case 1:11-cv-01972-JEB Document 9-4 Filed 01/26/12 Page 6 of 7

Case 1:11-cv-01972-JEB Document 9-4 Filed 01/26/12 Page 7 of 7

Case 1:11-cv-01972-JEB Document 9-5 Filed 01/26/12 Page 1 of 3

Case 1:11-cv-01972-JEB Document 9-5 Filed 01/26/12 Page 2 of 3

Case 1:11-cv-01972-JEB Document 9-5 Filed 01/26/12 Page 3 of 3

Case 1:11-cv-01972-JEB Document 9-6 Filed 01/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 9-6 Filed 01/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 1 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 2 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 3 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 4 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 5 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 6 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 7 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 8 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 9 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 10 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 11 of 12

Case 1:11-cv-01972-JEB Document 9-7 Filed 01/26/12 Page 12 of 12

Case 1:11-cv-01972-JEB Document 9-8 Filed 01/26/12 Page 1 of 3

Case 1:11-cv-01972-JEB Document 9-8 Filed 01/26/12 Page 2 of 3

Case 1:11-cv-01972-JEB Document 9-8 Filed 01/26/12 Page 3 of 3

 
 Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 1 of 9

Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 2 of 9

Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 3 of 9

Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 4 of 9

Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 5 of 9

Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 6 of 9

Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 7 of 9

Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 8 of 9

Case 1:11-cv-01972-JEB Document 1 Filed 11/08/11 Page 9 of 9

Case 1:11-cv-01972-JEB Document 1-1 Filed 11/08/11 Page 1 of 4
March 14, 2011
U.S. Customs and Border Protection FOIA Division 799 9th Street NW, Mint Annex Washington, DC 20229-1181
Re: Freedom of Information Act Request
Dear Sir or Madam:
The American Immigration Council (AIC) submits this letter as a request for information under the Freedom of Information Act (FOIA), 5 U.S.C. §552, et. seq.
1. RECORDS SOUGHT AIC requests any and all records1 which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP field operations offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:
• Attorneys’ ability to be present during their clients’ interactions with CBP; • What role attorneys may play during their clients’ interactions with CBP; • Attorney conduct during interactions with CBP on behalf of their clients; • Attorney appearances at CBP offices or other facilities.
The above records may include, but are not limited to:
1) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning in primary inspection, or what role the attorney may play during such questioning;
2) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning in secondary inspection, or what role the attorney may play during such questioning;
1 The term “records” as used herein includes all records or communications preserved in electronic or written form, including but not limited to correspondence, documents, data, videotapes, audiotapes, e-mails, faxes, files, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules, manuals, technical specifications, training materials, and studies.
EXHIBIT A

Case 1:11-cv-01972-JEB Document 1-1 Filed 11/08/11 Page 2 of 4
3) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning in deferred inspection, or what role the attorney may play during such questioning;
4) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning related to alleged abandonment of U.S. residence, or what role the attorney may play during such questioning;
5) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning related to alleged lack of proper immigration documents, or what role the attorney may play during such questioning;
6) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning related to the National Security Entry-Exit Registration System (NSEERS), or what role the attorney may play during such questioning;
7) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during any other questioning by a CBP agent, or what role the attorney may play during such questioning;
8) Guidance or any information obtained by the agency regarding procedures for notification of attorneys with Form G-28 and/or EOIR-28 on file of CBP’s intention to question their clients;
9) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may be involved in the CBP’s decision to return an unaccompanied alien child to Mexico without referring the child to ICE or HHS/ ORR/ Department of Unaccompanied Children;
10) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may be involved in CBP’s decision to release an unaccompanied immigrant child to a responsible adult who is not a family member.
AIC requests that records existing in electronic form be provided in electronic format or on a compact disc. If any of the requested records or information is not in a succinct format, we request the opportunity to view the documents in your offices.
If under applicable law any of the information requested is considered exempt, please describe in detail the nature of the information withheld, the specific exemption or privilege upon which the information is withheld, and whether the portions of withheld documents containing non-exempt or non-privileged information have been provided.
2. REQUEST FOR WAIVER OF ALL COSTS
2
EXHIBIT A

Case 1:11-cv-01972-JEB Document 1-1 Filed 11/08/11 Page 3 of 4
AIC requests that all fees associated with this FOIA request be waived. AIC is entitled to a waiver of all costs because disclosure of the information is “…likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). See also 6 C.F.R. § 5.11 (k) (Records furnished without charge or at a reduced rate if the information is in the public interest, and disclosure is not in commercial interest of institution). In addition, AIC has the ability to widely disseminate the requested information. See Judicial Watch v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) (finding a fee waiver appropriate when the requester explained, in detailed and non-conclusory terms, how and to whom it would disseminate the information it received).
i. Disclosure of the Information Is in the Public Interest
AIC educates citizens about the enduring contributions of America's immigrants, supports sensible and humane immigration policies that reflect American values, and works to ensure that immigration laws are enacted and implemented in compliance with fundamental constitutional and human rights. The AIC’s Immigration Policy Center (IPC) and Legal Action Center (LAC) help carry out this mission by reaching out to the general public to promote a better understanding of immigration law, policy and practice. The IPC researches issues related to immigration (such as the impact of immigration on the economy, jobs and crime), and regularly provides information to leaders on Capitol Hill and the media. The LAC works with other immigrants’ rights organizations and immigration attorneys across the United States to advance the fair administration of immigration laws. Relevant to this FOIA request, the LAC has historically focused on access to counsel issues. Specifically, the LAC educates the public about the law surrounding access to counsel for immigrants in removal proceedings, advocates for fair standards and procedures to remedy the effects of ineffective assistance of counsel, and encourages better access to counsel in proceedings before the Department of Homeland Security and its sub-agencies.
Disclosure of the requested information will contribute significantly to public understanding of non-citizens’ access to counsel in interactions with ICE. The disclosed records will inform attorneys who represent noncitizens at risk of removal from the United States, the noncitizens themselves, and other members of the public who are concerned with immigration agency proceedings and policies. Because there is no available comprehensive guidance governing attorney representation and conduct in interactions with CBP, the dissemination of these records will significantly inform public understanding of the scope of representation permitted before CBP. AIC has the capacity and intent to disseminate widely the requested information to the public. To this end, the LAC and the IPC will post the information on the AIC website, a website that is accessible by any member of the public. In addition, the LAC and IPC will publish this information in an LAC report, an LAC newsletter and an IPC blog. The LAC newsletter is directly distributed to 12,000 recipients and the IPC blog is distributed to 25,000 recipients. These publications also are available on the AIC website.
ii. Disclosure of the Information Is Not Primarily in the Commercial Interest of the Requester
AIC is a 501(c)(3), tax-exempt, not-for-profit educational, charitable organization. Immigration attorneys, noncitizens and any other interested member of the public may obtain information about counsel-related issues on AIC’s frequently updated website. AIC seeks the requested information for the purpose of disseminating it to members of the public who access AIC’s website and other AIC publications, and not for the purpose of commercial gain.
3
EXHIBIT A

Case 1:11-cv-01972-JEB Document 1-1 Filed 11/08/11 Page 4 of 4 Please inform us if the charges for this FOIA production will exceed $25.00. Thank you in advance for your response to this request within twenty working days, as FOIA requires. See 5 U.S.C. § 552(a)(6)(A)(i). If you have any questions, please feel free to contact me at (202) 507-7505. Sincerely,
Emily Creighton Staff Attorney American Immigration Council Suite 200 1331 G Street, NW Washington, DC 20005-3141 Telephone: (202) 507-7505 Fax: (202) 742-5619 E-mail: ecreighton@immcouncil.org
4
EXHIBIT A

Case 1:11-cv-01972-JEB Document 1-2 Filed 11/08/11 Page 1 of 2
EXHIBIT B

Case 1:11-cv-01972-JEB Document 1-2 Filed 11/08/11 Page 2 of 2
EXHIBIT B

Case 1:11-cv-01972-JEB Document 1-3 Filed 11/08/11 Page 1 of 2
EXHIBIT C

Case 1:11-cv-01972-JEB Document 1-3 Filed 11/08/11 Page 2 of 2
EXHIBIT C

Case 1:11-cv-01972-JEB Document 1-4 Filed 11/08/11 Page 1 of 6
EXHIBIT D

Case 1:11-cv-01972-JEB Document 1-4 Filed 11/08/11 Page 2 of 6
EXHIBIT D

Case 1:11-cv-01972-JEB Document 1-4 Filed 11/08/11 Page 3 of 6
EXHIBIT D

Case 1:11-cv-01972-JEB Document 1-4 Filed 11/08/11 Page 4 of 6
EXHIBIT D

Case 1:11-cv-01972-JEB Document 1-4 Filed 11/08/11 Page 5 of 6
EXHIBIT D

Case 1:11-cv-01972-JEB Document 1-4 Filed 11/08/11 Page 6 of 6
EXHIBIT D

Case 1:11-cv-01972-JEB Document 1-5 Filed 11/08/11 Page 1 of 1
EXHIBIT E

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 1 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 2 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 3 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 4 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 5 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 6 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 7 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 8 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 9 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 10 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-6 Filed 11/08/11 Page 11 of 11
EXHIBIT F

Case 1:11-cv-01972-JEB Document 1-7 Filed 11/08/11 Page 1 of 2
RESPONSIVE RECORDS
Inspector’s Field Manual (IFM) Chapter 2.9 Dealing with Attorneys and Other Representatives.
No applicant for admission, either during primary or secondary inspection has a right to be represented by an attorney - unless the applicant has become the focus of a criminal investigation and has been taken into custody. An attorney who attempts to impede in any way your inspection should be courteously advised of this regulation. This does not preclude you, as an inspecting officer, to permit a relative, friend, or representative access to the inspectional area to provide assistance when the situation warrants such action.
IFM Chapter 17.1.g Attorney Representation at Deferred Inspection.
(g) Attorney Representation at Deferred Inspection. At a deferred inspection, an applicant for admission is not entitled to representation. See 8 CFR 292.5(b). However, an attorney may be allowed to be present upon request if the supervisory CBPO on duty deems it appropriate. The role of the attorney in such a situation is limited to that of observer and consultant to the applicant. Any questions regarding attorney presence in the deferred inspection process may be referred to CBP Field Counsel. In general, applicants for admission in primary and secondary processing are not entitled to representation. See 8 CFR 292.5(b).
IFM Chapter 17.9.11.2 Notification for Detainees in Baggage Control Secondary.
9.11.2.1 Any person detained for more than two hours after a personal search is conducted will be given the opportunity to have OFO personnel notify someone, including an attorney, of his or her delay unless probable cause has been established. The two hour notification process is only used during a continuation of the personal search process. Officers will utilize Attachment 2 of the Personal Search Handbook to complete the notification.
9.11.2.2 When the two hour notification period has elapsed, the supervisor will notify the ICE duty agent and/or a CBP enforcement officer prior to the notification. The detainee will not be given the opportunity to consult with an attorney at any time before Miranda warnings are required and such right is invoked by the detainee.
EXHIBIT G

Case 1:11-cv-01972-JEB Document 1-7 Filed 11/08/11 Page 2 of 2
2
From The Officers’ Handbook, M68
SOLICITATION OF SERVICES An alien who is detained or an alien or other person who has official business with the Service may ask you whether it is necessary or desirable to seek the services of an attorney or other representative. In no case should he be informed that he should not obtain an attorney. The person making such inquiry should be informed that he has the right to be represented at his own expense by an attorney in proceedings before the Service. However, he should also be informed that the determination whether be should obtain an attorney is one that he must make himself and that Service employees may not make such determination for him. If such a person states he would like to be represented by an attorney but that be cannot afford the expense involved, he may be referred to a voluntary social agency or a legal aid organization or a Bar Association. Also you may be requested to suggest the name of an attorney or bonding company. A person requesting the name of an attorney should be referred to a Bar Association or to a telephone directory which lists the names and addresses of attorneys. A person requesting the name of a bonding company should be referred to a telephone directory which lists the names of bonding companies. In no instance should a person be referred to a specific attorney or firm.
From The Law of Arrest; Search and Seizure Manual, M69
b. Warnings Required Following Administrative Arrest.
Once the examining officer determines that formal exclusion or deportation proceedings will be instituted, certain advisals must be given to the alien. The alien must be informed of the reason for the arrest, of the right to be represented by counsel of his or her choice at no expense to the government, and of the availability of free legal services programs and of organizations recognized pursuant to 8 C.F.R. 292.210 located in the district where the proceedings are to be held. The alien must be given a list of such programs and organizations. The alien also must be advised that any statement made may be used against him or her in a subsequent proceeding 28. If arrested without a warrant, the alien must be advised that a decision will be made within 24 hours whether custody will be continued or whether release on bond or on personal recognizance will be available 29. The 1-221 (Order to Show Cause) provides the required warnings to aliens placed in deportation proceedings or granted administrative voluntary departure. Miranda warnings need not be given where the only contemplated legal action against the alien is exclusion, deportation, or voluntary departure.
EXHIBIT G

Case 1:11-cv-01972-JEB Document 1-8 Filed 11/08/11 Page 1 of 8
U.S. »tpartmtDt of JlUtice Immigration and Naturlllization SCfVlce

Office- ofth~ EX(C\lli'ie Associaet Commise:lO"er

. 41J I Sr,_lI'N H'Olhltll''''', DC 10JJ6

liQINS 70/10 10

IIAY 18 2D02

MEMORANDUM FOR REGIONAL DIRECTORS DIRECTOR OF INTERNATIONAL AFFAIRS OFFICER DBVELO' ENT AND TRAINING FACILITY, GL CO OFFICBR DE LOPMENf AND TRAINING FACIL , ARTESIA
FROM:

SUBJECT:

policies and procedures outlined in this document Shall be

followed when proces .

inspections at portrof-entry. To reflect these roquiremects

and reiterate the proper. procedures, the Inspectors Field Manull1 (IFM) will be updated in a

future release of INSERTS. Please direct any questions relating to this policy to Floyd Sam

Farmer, Assistant Chief Inspector al (202) 305·8153.

Chapter 17.1 of the IFM is revised to read as follows:

17. I Dllferred InsJ>Cction.

(a) General. A deCmed inspection may be used When an immediate decision concerning admissibility cannot be made at a port-oC-entry and the officer has reason to believe that the alien can overcome a finding of inadmissibility by presenting additional evidence or by further review oCthe casco In such cases the inspecting officer shall defer inspection 10 the office having jurisdiction ovcr the area where the alien will be staying. Deferred inspections may be necessary in order to review an existing Service file or $omll other documentary evidence essential to clarifymg admissibility. Deferral shall be for a specific Pl1lJlose. not used as a way to transfer a difficult case to another office; and sbould normally only be used When it aPPears the case would probably be resolved In the allen's favor. Any aJien who is not expected to estabhsh his or her admissibility shall not be deferred.' Before an alien is deferred. the lIlSpecling officer shall consider the likelihood that the alien will abscond or pose. security risk. All persons being

9?%

P.02

AILA InfoNet Doc. No. 02053134. (Posted 05/31/02) EXHIBIT H

Case 1:11-cv-01972-JEB Document 1-8 Filed 11/08/11 Page 2 of 8

Memorandum for Regional Directors, et al SUBJECT' Deferred Inspections Policy - IFM Update lN02-03

Page 2

defc:ncd shall be queried in the appropriate databases including. but notliroitcd to, the
Interagency Bonier Inspection System (mIS), the Natiooe\ Crime Information Center (NCIC)
and the National Automated Immigration Lookout System (NAILS).
These database queries .haIl be completed in order to determine if any ad"erse information exists that would preclude the alien from being paroled intO the United States for defrned inspection and to proYlde additional information regarding the case. The results shall be lIoted on Form I· 546, Order to Appear for Deferred In.!pection.
Faclors that tIlay be collsiderod when making a decision on whether to defer the inspection may lDclude the following:
I The llkelihood lhat the alien will be able to establish admissibIlity; 2. The types of documenl.9 lacking, and the ability 10 obtam necessary documental ion; 3. The good faith cffol16 on ilie part of ilie alien to obtain necessary documents prior to
arrival at the port-o(·entTy; 4. The "erification or establi.hment of the alien's identity and nationality. S. Age, health, and family ties; 6. Other humanitarian considerations; 7 The likelihood that the alien would appear; 8 The nature of possible inadmissibility (i.e. criminal history, previous violations, etc);
and 9. The potenlial danger po.ed to society iftbe alien were to be paroled.
If the alien is clearly inadmissible or may pose a .ecwity risk or danger to society, the inspeclion shall not be deferred. 11Ie alien shall be placed in removal proceedings or allowed to withdraw his or ber applical10n for admiSSion.
(b) DeCerral procedures. express approval oCthe District Director, Deputy DislTict Director, Assistant District Director for In!pcctions. or Assistant District Director for Examinations is required before any inspection can be deferred. Current field guidance on approval authority can be found in Headquarters memorandum "DeCerrnllnspection, Parole and Waivers oC Documentary Requirements" dated November 14, 200 1. Current guidance states, in part, that aliens shall not be paroled for defClTed inspection withoutlhe e~press approval oCthe District Director, Deputy District Director, AsSIStant District Director for lDspections, or Assislant District Director for Examinations (copy attached).

I'V'lY-lI!l-2002 04: 48

'31%

F'.03

AILA InfoNet Doc. No. 02053134. (Posted 05/31/02) EXHIBIT H

Case 1:11-cv-01972-JEB Document 1-8 Filed 11/08/11 Page 3 of 8

Memorandum for Regional Directo~, et al SUBJECT: Deferred Inspections Policy - IFM Update IN02·03

Page 3

If an "A" file doe$ not exist, one shall be opened. To determine if an "A" file exists, a query of the Central Index System (CIS) should be made. Jfthere is an existing "AU file, the file number and files conLlol office should be identified based on the CIS query &0 that the onward office can locate or rcquC3t the file bd'orc the alien appean. In the event of an existing "A" file, all documentation shall be placed in a tcmporary "A" file. The "A" file or temporary "AU file shall be forwarded to the onward office along with the FortO 1-546.
An inspection shall be deferred using the ncw'version ofFonm J.546 (Order to Appear for Deferred Inspection) revised date 12/12/01; Ponn 1-259 (Notice to Detain, Remove or Present Alien), if appropriate; Fonn FD-249 (Fingerprint Card· Red); and FortO 1-94 (ArrivaJIDeparture Record). The 1-94 shall be stamped with a parole slamp and endorsed to show "DE, Deferred lDipcction," the onward office code and date to which deterred, as well as the officer's admission stamp number, port, and action date. Parole the applicant for a brief period (not to eltceed 30 days), sufficient for the paperwork to arrive at th.. onward office and for the applicant to obtain any necessary evidence to establish admissibIlitY (addltional guidelines related to parole can be found in Chapter 16.1 of the IFM). Inspectors shall complete the Interagency Border Information System (IBIS) secondary screen indicating a deferral. In the rernarles section, enter the office deferred to, date of inspection, and reason for deferral. Each applicant whose inspection is deferred shall be photographed. Each alien whose inspection is deferred shall be fingcrpnntcd on Form PD·249. Only one sct needs b.. compl..ted. The sct of ftngerprints shall be maintained with the other infonnation related to the alien and forwarded to the onward office in the "A" file. This set of fingerpnnts IS kept in the "A" file or temporary "A" file and used if the alien fails to appear for his or her scheduled deferred inspection. A copy ofForm 1·546 shall
be maintained at the deferring office for a period of one year. For deferral procedures related to
the Visa Waiver Program (VWP) sec the Inspector's Field Manual chapteT t5.7(g)(5).
The applicant shall be given the departure section of the Form 1-94 and the appointmont copy of the Form 1-5415 with a speciftc reponing date and a time block, rather than a specific time. Also provide the applicant with the telephone number of the onward office's deferred inspection unit. A complete list of deferred office addresses, phone numbers, and hours of operation are located in Appendix 17·\ of the Inspectors Field Manual.
Some local offices conduct deferred inspections only on certain days of the week, or during certain hours, and may have specific room numbe~ for deferred applicants. Secondary stations at ports-of-entry .should have current mformation on office hQurs, addresses and room numbers, telephone numbers and jurisdictions of various sub-offices and satellite offices which handle deferrals (See Appendtx 17·1 for a list of deferred inspection locations.) A deferred mspechon places additional unscheduled work on the onward office. Appearance for deferred mspection may place additional burdens on the applicant who may, in many cueS, be required to spend considerable time and money to comply with the reqwred deferral procedures. Ensure that the

em:

P.04

AILA InfoNet Doc. No. 02053134. (Posted 05/31/02) EXHIBIT H

Case 1:11-cv-01972-JEB Document 1-8 Filed 11/08/11 Page 4 of 8

Mc:morandwn for Regional Direclors, et aJ SUBJECT: Deferred Inspections Policy -IFM Update IN02-Q3

Page 4

infonnation provided to the onward office is sufficient to allow the onward office 10 complete' the deferred inspection in a single appearance.
The rern.arb block 00 the Form 1-546 should contain complete, l1tlCurate information for the inspector at the onward office. The deferring officer (recommending officer) should state speCIfically the purpose ofthe deferral and identify any documentatioD that the applicant is expected to produce. All relevant information, such as local address (a P.O. Box number is nol an acceptable address) and phone numbers shall be included on Form 1·546. The supQVisory officer will verify tbal the details on the form are correct, annotate the name of the appropriate distnct official approving the deferred inspection and sign the Form 1-546. Include all forms in
the "A" file along with any other documents relevant to the in6pection, and forwud to the
onward ofllce. Follow local procedures for deferrals withio the same district.
In all air and sea easel, form J-259 shall be served on the affected carrier or on Ihe captain of a prlvate ain:raft or ve.osel. Tbe officer should check the fourth block (Notice of potential liability under section 241(c), (d), or (e) of the Act). In the event the alien is formally ordered removed,
an a.rnendcd Form 1·259 should be created by checking the second box (Notice to Remove the'
Alien from The United Siales on _ at _). The amended Form 1-259 should be issued to the carrier (espODsible for remoying the alien 10 the lui port of embarkation to the United States. A.liens granted voluntary departure are responsible for COsls associated with travel 10 the pon of theIT .rriyalto the United State.s. Howcver,lfplaced undcr INS control the Service will nol hold the carrier responsible for the alien's delention Bnd related expenses prior to the alien being delivered to the responsible carrier for removal from Ihe United States. Once custody is lTansferrcd, any COSI associated with delention or removal of the alien shall be borne by the carrie·r. Follow local guidelines and procedures for authorization to detain an alien for removal. Attach copies of the amended Form 1-25910 the Fonn 1-546 in the "A" file and forward a copy (0 the defemng POE.
The Form 0-22.) should be completed to Indicate the category and reason for the deferred inspection. Inmucrions for completion of Form 0·22.1 can be fOUDd in INSERTS.
{Go to INSERTS, click on Statistics handbook, Dext click on Operational stallstics, then click 00 0-23 Procedures. After you click 011 0-23 Procedures, you Will be at the table of contents, thm select number 3. INSPECTIONS ACTIVITY WORKLOAD RECORDS (0-22.1 F) PROCEDURES.}
(c) Processing a deferred inspection. The inspecting officer at Ihe onward office should have reccived the deferral paperwork in advance of the applicant's appearance. An already e><isUng Service file should be localed and reviewed prior to the applicant's appearance. If the applicant
is found admissible, a new Fonn 1-94 shall be eltccuted using the office symbol of the onward

97%

P.0'5

AILA InfoNet Doc. No. 02053134. (Posted 05/31/02) EXHIBIT H

Case 1:11-cv-01972-JEB Document 1-8 Filed 11/08/11 Page 5 of 8

Memorandum for Regional Directors, ct al SUBJECT: Deferred Inspections Policy - IFM Update TNO:l·03

Page 5

office and the cWTent date .. the date of admissIon. The officer should ensure wat the name, date of birth and oountry ofcitizensbip written on the neW Fonn }·94 is exactly the same a& the information recorded on the Fonn 1-94 issued at the time of the deferred inspection. If the inspecting officer concludes that the alien is inadmissible, the officer shall complete processing accordin~ to appropriate guidelines. which can be found in Chapters 17.2 wough 17.17 of the IFM. Upon completion orthe deferred inspection, use TO-95 to creaie a new record within IBIS to show the defcm::d inspection results. Indicate the disposition on the Fonn }.546 included in the "A" file and send one copy to the deferring office. Forward the original deferred Fonn 1-94 departure section and the new amval section 10 the recipient indicated in Appendix J5·8 for data entry.
The Fonn G-22.1 should be completed to indicate the disposition of the deferred inspection. Th" disposition shall be noted on the Fonn G·22.1 under other (PORT ~ Other) s~ondary inspections operation TCpon, columns A-L, aD)' applicable line. 46-126, and hour's hnes 142· 20.5. Instnlctions for completion of Form G-22.1 can be found in INSERTS as noted above.
(d) No shows. If an alien fails to appear for his or her deferred inspection, a F0Ill1!-862, Notice to Appear shall be executed using the information listed on the Form 1-546 and mailed to the address provided. All informatioo related to the case shall be added to the "A" file. A lookout must be posted in NAlLS. All aliens who have lookouts posted shall be reported 00 line 65 of the a-i22.1, Criminal penalties and the possible pursuit of a criminal WarTant under 8 U,S.C. 1325 shall be pursued on a case-by-ease basis. All felated infolT1lation shall be forwarded to the Senior inspector Unit and/of the Criminal Investigations Unit to allow further follow-up of the ease. All aliens who fail 10 appear and for whom prosecution is pursued shall be reported on line 69 (Prosecutable <:i15e& referred to lNV) oflbe Fonn G-22.1.
(e) Attorney representation at deferred inspection. At a deferred inspection, an applicant for
admission is not entitled to representatioo. See 8 CFR 2?2.5(b). Howevct'. an attorney may be allowed to be present upon request,ifthe supervisory inspector on duty deems it appropriate. The role of the altorney in su<:h a situation is limited to that of ObSCIVCf and cowultant to the applicant.
(I) Medical deferrals· Whc:n deferring inspection for ground ofinadmissibiJity under INA Section 212(a)(I) (medical}, consult with the Public Health Service (PHS) before pennitting the alien to proceed. lfthe alien is n:quired,to submit to further medical examination prior to reporting to the onwar-d office, return all medical documents including local PHS certification and x-r.ays to the applicant in a sealed envelope for presentillion to the doctor. medical clinic, or PHS facility as instructed. If the alien is to report first to the onward INS office, forward the medical docwnents with the deferral papers directly to the onward office.
Attachments (2)

97%

P.06

AILA InfoNet Doc. No. 02053134. (Posted 05/31/02) EXHIBIT H

Case 1:11-cv-,01, 972-JEB Document 1-8 Filed 11/08/11 Page 6 of 8
u.s. DepU1a1tt1t of J,utke
IllU'11i~tion and N.eutaliution Service
HQINS 70110. J0
~lJ J SImI HW WW.ilrLlo•. DC 105J6
NOV I 4 2001

MEMORANDUM POR MICHAEL A. PEARSON EXECUTIVE ASSOClAIE COMMISSIONER
OFFICE OF FIELD OPERATIO S

FROM:

Mithael D. Crooin Acting Executive Ass Office ofPrognms

SUBJECT: Defmed Inspection, Parole apd Waivers of Documentary Requirement<

During the Nation's heightened security alert md UJltil further notice, aliens shall not be paroled for deferred inspection, otllerwise paroled in(j) the United States, or be granted a waiver of any documentary requirement without the express approval of the District Director, Deputy District Director, Assistant District Director for Inspections, or AJ;sistant District Director for
Examinations.

District Directors, Deputy District Direcrors, Assislant District Dirc>c:tors for Inspections, and Assistant District Directors for Ex:uninations shall only parole for defc:rred inspections, otherwise parole into the United Stales, Of grant a waiver of any documentary requirement on 3 case-by-case basis alIer all appropriate database checks have beel) completed. Such discretion should be applied only in cases whetc inadmissibility is technical in nature (i.e., documentary or paperwork deficiencies), or where the national intere5t, law enforcement mterest., or compclling humanitarian circumstances require the SUbject's enlty mto the United S~tes, <lJ1d where the alten is likely to comply with the term3 of the exereise of discretion.

This authority shall not be delegated. This guidance does not change the existing Slatutory and regulatory standards for paroles and documentary waivers.

Further, atl Authorizations for Parole of an Alien into the UnIted Slates (Form 1-5 J2) issued by overseas Immigration and Nal"Uralizanon Service (INS) offices muU be approvod by the Di.trict Director or Deputy District Director. Authorizations for Parole of an Alien into the United Stilles (Folll1s 1·512 and I-SI2L) issued at stateside l!'\S dislliet offices or s<:fVice centers

AILA InfoNet Doc. No. 02053134. (Posted 05/31/02) EXHIBIT H

Case 1:11-cv-01972-JEB Document 1-8 Filed 11/08/11 Page 7 of 8

ManoraDdum for Michael A. Pemon

Page 2

Subject: Deferred wpection, Parole and Waiveu ofDcx:umentary Requiretnell13

need not have the express approval of the District Director, Deputy Dimct Director, or Service
Center Director.
Officers al ports-of-cntty (POEs) must obtain the approval of the District Di:ector, Deputy DistTict Director, AssistiUlt District Director for InspeeliolU, or Assi.t.'\nt District Director for Examinations when granting waivers of documentary requirements for nonimmigrants ~r section 212(dX4) oflhe Inunigration and Natiol>3lity Act (INA) and for returning residents oat io possession of proper dOC\ll11eI\Is pursuant (0 section 211(0) oCthe INA.
Pursuant to the attached October 3. 2001, memor.urdulD, "Intenm Guidance: Status ofFY 2002 Refugee AclmiSllions," ~fugee applicants who arrive at a pOl1-of-entry may be granted a 3o-day
defeCTed iD$pection. Officers must obtain the approval of the District Director, Deputy District Directot, Assistant District Director for Inspections, or AssisWtt District Director for
Examinations prior to deferring the inspection of refugee appHcalllS.
While Officers need!!Q! obUin the approval of the District Director, Depllty Di;strict Director, Assistant District Director for Inspeetians, or Assi.tant District Director for Examinations to parole aliens in possession of a valid Form loS 12 or I-SI2L, such as adjus1Dle:nt of staNS applicants or certain alien applicants under the Legtl Immigration Family Equity
(LIFE) Act, such aliens are still subject to the INS inspection process. Attached is a CQpy of the
October 26, 2001, memorandllJ'n addressing the issue of aliens presenting Fonn I-SI2L althe POE.
This memo does not cbange the procedures for Bordo/ CTossi"8 Card holden contained
in the SepternbeT 28,2001 Memorandum entitled "Expiration ofNon-Biometric Border Crossing
Cards (BeCs) and Implementation of the Machine-Readable Biometric BCC on October I, 200\." A copy oElhis memorandum is also attached.
The point of contact in the Office oflnspcctions is Assistant Chief Inspector Cheryl
Becker (202) 305-4764.
Attachments (3)

rom... P. 12 AILA InfoNet Doc. No. 02053134. (Posted 05/31/02) EXHIBIT H

Case 1:11-cv-01972-JEB

Document 1-8 Filed 11/08/11 Page 8 of 8 U.S. Depanment of Justice immigration and Naturalization Service
WeJtem Regional Office Offiu ofthe Regional Director

WROlNS 70/10.10

PO Btu JOOBO lAp"" Nig".I. CA 92607.(J(J8(}
MAY 14 m

'.. :7'.,

MEMORANDUM FOR DlSTRlCT DIRECTORS~

FROM:

j 1 . . WESTERN
Carolyn L. Muzyka .

:~ - ~

Acting Regional D i r r l

SUBJECT: Deferred Inspections Policy -IFM Update 1N02-03

The attached memorandum contains the latest updates to Chapter) 7 of the Inspectors Field Manual. Effective immediately, the policies and procedures outlined in this document shall be followed when processing deferred inspections at ports-of-entry.

. Please ensure that officers within your jurisdiction receive this information. Questions relating to this policy should be directed to the Regional Office of Inspections at (949) 360-3045.

AUachment

f,-0- 0

.Q!P

1'\)

.CRD

~~o_

- - - - - - - - DC
I'\{)OI

•.

_~1CO

-
-

l-' r".

~on AODE

~
f'1"J

-

PO

.......

- RAIS
ASC

---

AILA InfoNet Doc. No. 02053134. (Posted 05/31/02) EXHIBIT H

-I

Case 1:11-cv-01972-JEB Document 1-9 Filed 11/08/11 Page 1 of 2

Case 1:11-cv-01972-JEB Document 1-9 Filed 11/08/11 Page 2 of 2

 
 Case 1:11-cv-01972-JEB Document 19 Filed 05/22/12 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL, )

Plaintiff

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY, et al.,

)

)

Defendants

)

_________________________________________ )

Civil Action No. 11-1972 (JEB)

DEFENDANTS’ NOTICE OF WITHDRAWAL OF MOTION FOR SUMMARY JUDGMENT AND CONSENT MOTION FOR RENEWED BRIEFING SCHEDULE

Defendants, United States Department of Homeland Security and United States Customs

and Border Protection (“CBP”), by and through undersigned counsel, hereby respectfully provide

notice to the Court that they are withdrawing their Motion for Summary Judgment filed on

January 26, 2012. See Docket Entry No. 9. As grounds for this motion, Defendants state as

follows:

This action arises under the Freedom of Information Act (“FOIA”) and involves

Plaintiff’s request for “disclosure of records concerning individuals’ access to counsel during

their interactions with United States Customs and Border Protection (‘CBP’).” Complaint at ¶ 1.

More specifically, Plaintiff’s March 14, 2011 FOIA request sought:

[A]ny and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP field operations offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:

• Attorneys' ability to be present during their clients' interactions with

Case 1:11-cv-01972-JEB Document 19 Filed 05/22/12 Page 2 of 7
CBP; • What role attorneys may play during their clients' interactions with CBP; • Attorney conduct during interactions with CBP on behalf of their clients; • Attorney appearances at CBP offices or other facilities. Id. at ¶ 11. In response to Plaintiff’s FOIA request, Defendants provided Plaintiff with responsive records, without redactions, and filed a Motion for Summary Judgment. On March 26, 2012, Plaintiff filed an opposition alleging, inter alia, that there were additional responsive records which Defendants did not produce. See Docket Entry No. 12. With Plaintiff’s consent Defendants filed enlargements of time to investigate Plaintiff’s claims and prepare an appropriate response to Plaintiff’s opposition. See Docket Entry Nos. 15, 17. However, as of this date, Defendants have been unable to locate all of the documents identified by Plaintiff. In light of the fact that Plaintiffs have provided these additional responsive records, Defendants believe that it is in the best interest of this litigation that they not only continue to search for these records, but also expand their search beyond the CBP offices originally believed to have responsive records - - the Office of Border Patrol, the Office of Field Operations, and the Office of Chief Counsel.1 To that end, if the Court grants this motion, Defendants’ Freedom of Information Act Appeals, Policy and Litigation Branch, Regulations and Rulings, Office of International Trade, will conduct a nationwide search of CBP offices for records responsive to Plaintiff’s FOIA request. The search will involve over 300 Ports of Entry, approximately 130 Border Patrol Stations and 20 Border Patrol Sectors, CBP Field Operations Offices as well as the following additional offices at CBP headquarters: Office of Training and
1To the extent that Defendants search for the records identified by Plaintiff provides meaningful leads for new searches, Defendants will conduct these searches as well.
2

Case 1:11-cv-01972-JEB Document 19 Filed 05/22/12 Page 3 of 7
Development, Office of Diversity and Civil Rights, Office of Policy and Planning, and Office of Executive Secretariat. Defendants will provide Plaintiff with a rolling production of responsive records and provide the Court with monthly status reports. After the conclusion of the production which may take between six and nine months, Defendants will consult with Plaintiff and the Court regarding a renewed briefing schedule.
Pursuant to Local Rule 7(m) and Federal Rule of Civil Procedure 26, counsel for Defendants have conferred with counsel for Plaintiff who consents to this motion for a renewed briefing schedule.
For the reasons cited above, Defendants respectfully request that the motion be granted. An Order granting the relief sought is attached hereto.
Respectfully submitted, RONALD C. MACHEN JR. D.C. Bar # 447889 United States Attorney DANIEL F. VAN HORN D.C. Bar # 924092 Acting Chief, Civil Division BY: /s/ Marian L. Borum MARIAN L. BORUM D.C. Bar # 435409 Assistant United States Attorney Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 514-6531 (telephone) (202) 514-8780 (facsimile) Marian.L.Borum@usdoj.gov
3

Case 1:11-cv-01972-JEB Document 19 Filed 05/22/12 Page 4 of 7 Of Counsel: Howard Charles Attorney (Enforcement) Office of Chief Counsel United States Customs and Border Protection
4

Case 1:11-cv-01972-JEB Document 19 Filed 05/22/12 Page 5 of 7
CERTIFICATE OF SERVICE I certify that, on this 22nd day of May 2012, the foregoing, and the attached Order, were sent via the Court’s Electronic Mail System to Plaintiff’s counsel: Creighton R. Magid Dorsey & Whitney LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 Melissa Crow American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 Michelle Grant Dorsey & Whitney LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402
/s/ Marian L. Borum MARIAN L. BORUM Assistant United States Attorney
5

Case 1:11-cv-01972-JEB Document 19 Filed 05/22/12 Page 6 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL, )

Plaintiff

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY, et al.,

)

)

Defendants.

)

_________________________________________ )

Civil Action No. 11- 1972 (JEB)

ORDER

This matter is before the Court on Defendants’ Consent Motion for Renewed Briefing

Schedule. Upon consideration of this Motion and the entire record of this case, it is this _____

day of ________________, 2012,

ORDERED that Defendants’ motion is GRANTED; and it is

FURTHER ORDERED that Defendants shall have until and including June 22, 2012 to

provide a status report to the Court.

UNITED STATES DISTRICT JUDGE

Case 1:11-cv-01972-JEB Document 19 Filed 05/22/12 Page 7 of 7 Copies to: Creighton R. Magid Dorsey & Whitney LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 Melissa Crow American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 Michelle Grant Dorsey & Whitney LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402
2

 
 Case 1:11-cv-01972-JEB Document 12 Filed 03/26/12 Page 1 of 3
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMERICAN IMMIGRATION COUNCIL Plaintiff, Case No. 1:11-cv-01972 JEB
v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants. PLAINTIFF’S OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT Plaintiff American Immigration Council (“AIC”), by and through undersigned counsel, respectfully requests that the Court deny Defendants’ Motion for Summary Judgment on the basis that a genuine issue of material fact exists, and Defendants are not entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In support of Plaintiff’s Opposition, the Court is respectfully referred to the accompanying Declarations of David Blair-Loy, Melissa Crow, Benjamin Johnson, Cathy J. Potter, John P. Pratt, and Karen Tumlin, with exhibits attached thereto; Plaintiff’s Response to Defendants’ Statement of Material Facts as to Which There Is No Genuine Issue and Plaintiff’s Statement of Genuine Material Issues; and Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment. A Proposed Order consistent with the relief sought herein is also attached.

Case 1:11-cv-01972-JEB Document 12 Filed 03/26/12 Page 2 of 3

Dated: March 26, 2012

Respectfully submitted,

/s/ Creighton R. Magid ___________________ Creighton R. Magid (D.C. Bar #476961) DORSEY & WHITNEY LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 Telephone: (202) 442-3000 Facsimile: (202) 442-3199 magid.chip@dorsey.com
Melissa Crow (#453487) mcrow@immcouncil.org Beth Werlin (pro hac vice) bwerlin@immcouncil.org American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 Telephone: (202) 507-7500 Facsimile: (202) 742-5619
Attorneys for Plaintiff American Immigration Council

2

Case 1:11-cv-01972-JEB Document 12 Filed 03/26/12 Page 3 of 3 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of March, 2012, a copy of the foregoing Opposition to Defendant’s Motion for Summary Judgment, Memorandum of Law, Statement of Facts and Order was served upon Defendants’ counsel, via the Court’s Electronic Filing System, as follows:
MARIAN L. BORUM Assistant United States Attorney Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530
/s/ Creighton R. Magid CREIGHTON R. MAGID
3

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL Plaintiff,
v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Case No. 1:11-cv-01972 JEB

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 2 of 21
TABLE OF CONTENTS Page
I. INTRODUCTION......................................................................................................... 1 II. ARGUMENT ................................................................................................................ 1
A. Summary Judgment Standard.......................................................................... 1 B. Defendants Failed to Show That They Conducted an Adequate
Search. ............................................................................................................... 3 1. Defendants’ Declaration Lacks Sufficient Detail.................................. 3 2. Substantial Countervailing Evidence Further Demonstrates
that Defendants Did Not Conduct an Adequate Search. ...................... 8 a. The Government Failed to Identify, Produce or Even
Mention Documents Reflecting Prior Communications with Immigration Advocacy Organizations Regarding Access to Counsel in Interactions with CBP.............................. 8 b. The Government Failed to Identify or Produce all Relevant Documents Relating to the Inspector’s Field Manual...................................................................................... 10 c. The Government Also Failed to Identify, Produce or Discuss Documents Stemming from Litigation Regarding CBP’s Policies and Practices Regarding Access to Counsel. .................................................................... 14 d. The Government Overlooked Other Responsive Documents. ............................................................................... 15 III. CONCLUSION ........................................................................................................... 16
i

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 3 of 21

TABLE OF AUTHORITIES

CASES

Page(s)

Ancient Coin Collector’s Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) ............................................................................................ 15

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).............................................................................................................. 1

Church of Scientology of California v. IRS, 792 F.2d 146 (D.C. Cir. 1986), aff’d, 484 U.S. 9 (1987)........................................................ 4

Concepcion v. U.S. Customs & Border Prot., 767 F. Supp. 2d 141 (D.D.C. 2011)....................................................................................... 3

Edmonds Institute v. Dep’t of Interior, 383 F. Supp. 2d 105 (D.D.C. 2005)..................................................................................... 10

El Badrawi v. Dep’t of Homeland Sec., 583 F. Supp. 2d 285 (D. Conn. 2008)................................................................................ 4, 5

Friends of Blackwater v. U.S. Dep’t of the Interior, 391 F. Supp. 2d 115 (D.D.C. 2005)..................................................................................... 16

Gallant v. NLRB, 26 F.3d 168 (D.C. Cir. 1994) ................................................................................................ 2

George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005) .............................................................................................. 2

McGhee v. Cent. Intelligence Agency, 697 F.2d 1095 (D.C. Cir. 1983) ............................................................................................ 9

Morley v. Cent. Intelligence Agency, 508 F.3d 1108 (D.C. Cir. 2007) .....................................................................................2, 8, 9

Nation Magazine, Wash. Bureau v. U.S. Customs Service, 71 F.3d 885 (D.C. Cir. 1995) ................................................................................................ 4

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978).............................................................................................................. 3

Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) ............................................................................................ 3, 4

Petit-Frere v. U.S. Attorney’s Office for the S. Dist. of Florida, 800 F. Supp. 2d 276 (D.D.C. 2011)....................................................................................... 5

ii

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 4 of 21
Poulsen v. U.S. Customs & Border Prot., No. 06-1743, 2006 WL 2788239 (N.D. Cal. Sept. 26, 2006) ................................................. 4
Public Citizen v. Department of State, 276 F.3d 634 (D.C. Cir. 2002) ............................................................................................ 10
Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548 (D.C. Cir. 1994) ............................................................................................ 2, 4
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989).............................................................................................................. 2
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) ........................................................................................ 3, 16
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) .......................................................................................10, 11
Vento v. IRS, 714 F. Supp. 2d 137 (D.D.C. 2010)..................................................................................... 10
Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365 (D.C. Cir. 1980) .......................................................................................2, 4, 7
STATUTES 5 U.S.C. § 552 et seq. ........................................................................................................1, 2, 10 8 U.S.C. § 1101(a)(13)(C) (2011) ............................................................................................... 7
OTHER AUTHORITIES 8 C.F.R. § 292.5(b)............................................................................................................6, 7, 12 Fed. R. Civ. P. 56 ................................................................................................................... 1, 3
iii

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 5 of 21
Plaintiff American Immigration Council (“AIC”) respectfully submits this memorandum of law in opposition to the motion of Defendants United States Department of Homeland Security (“DHS”) and United States Customs and Border Protection (“CBP”) for summary judgment.
I. INTRODUCTION Plaintiff AIC’s suit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeks records from DHS and its component CBP concerning individuals’ access to counsel during their interactions with CBP. In response to AIC’s FOIA request (but only after an administrative appeal), Defendants released two pages of excerpts from agency guidance, claiming that their diligent search had revealed no more. Defendants now move for summary judgment, relying on a declaration from Ms. Shari Suzuki, the FOIA Appeals Officer and Chief of the FOIA Appeals, Policy and Litigation Branch, Regulations and Rulings, Office of International Trade, U.S. Customs and Border Protection. Ms. Suzuki’s declaration outlines what Defendants contend is a reasonable and adequate search for documents responsive to AIC’s FOIA request. This declaration, however, is deficient under D.C. Circuit case law because it describes neither the scope of the search Defendants undertook nor the search methods they employed. Additionally, AIC has found a significant number of responsive records that Defendants failed to produce. Taken together, these facts demonstrate that Defendants have failed to meet their burden under Fed. R. Civ. P. 56(a). Thus, their motion must be denied.
II. ARGUMENT A. Summary Judgment Standard
Summary judgment is warranted when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material fact dispute is “‘genuine’ if ‘the evidence
1

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 6 of 21
is such that a reasonable jury could return a verdict for the nonmoving party.’” George v. Leavitt, 407 F.3d 405, 410 (D.C. Cir. 2005) (quoting Anderson, 477 U.S. at 248). Thus, in considering a motion for summary judgment, the court must view the evidence “in the light most favorable to the nonmoving party.” Id.
FOIA requires an agency to release all records that are responsive to a proper request unless a listed exemption protects the records from disclosure. See 5 U.S.C. § 552(b); Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (“The defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA’s] inspection requirements.”) (internal citation and quotation omitted). The agency bears the burden of proving that it has fulfilled its FOIA obligations. Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994).
For summary judgment purposes, an agency may rely on an affidavit or declaration that is relatively detailed, nonconclusory, and made in good faith. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1116 (D.C. Cir. 2007). Conclusory and nonspecific declarations or affidavits are insufficient to support a grant of summary judgment. Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994) (“Summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.”) (internal citation and quotation omitted).
Good faith searches are critical to the congressional intent of FOIA — to ensure that community members can access government records and thereby be informed about “what their government is up to.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (emphasis in original) (internal citation and quotation omitted). Production
2

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 7 of 21
of the requested documents will vindicate the public’s right to be part of “an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). B. Defendants Failed to Show That They Conducted an Adequate Search.
Defendants have failed to demonstrate that their search was adequate. Ms. Suzuki’s declaration is nonspecific and conclusory and therefore fails to sustain the agency’s burden of proof for summary judgment. Additionally, substantial countervailing evidence affirmatively demonstrates that Defendants’ search was inadequate. Because Defendants’ burden under Fed. R. Civ. P. 56 has not been met, their motion for summary judgment must be denied.
1. Defendants’ Declaration Lacks Sufficient Detail. The government must conduct a reasonable search for records responsive to a FOIA request. Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Specifically, the government must show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents” and must search all records systems likely to contain responsive records. Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325-26 (D.C. Cir. 1999) (internal citation and quotation omitted); Concepcion v. U.S. Customs & Border Prot., 767 F. Supp. 2d 141, 145 (D.D.C. 2011). An agency’s search must be “more than perfunctory” and must “follow through on obvious leads to discover requested documents.” Valencia-Lucena, 180 F.3d at 325 (internal citation omitted). To support a motion for summary judgment in a FOIA case, an agency may proffer a “reasonably detailed affidavit” describing the search terms used, the nature of the search performed, and “averring that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68. This Court has held that such an affidavit must
3

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 8 of 21
describe “what records were searched, by whom, and through what process.” Steinberg, 23 F.3d at 551-52 (emphasis added); see Weisberg, 627 F.2d at 371 (agency affidavits that “do not denote which files were searched, or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the requestor] to challenge the procedures utilized” cannot support summary judgment). The affidavit must also “describe at least generally the structure of the agency’s file system” which renders any further search unlikely to disclose additional relevant information. Church of Scientology of California v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986), aff’d, 484 U.S. 9 (1987). Such information is needed to allow a requester to challenge the search’s adequacy and to allow the court to assess the search’s adequacy for summary judgment purposes. See Oglesby, 920 F.2d at 68.
When an agency’s affidavit or declaration fails to describe the nature of its record keeping system, what files were searched or how the search was conducted, the D.C. Circuit and other courts have determined that the agency’s search was inadequate. Compare Nation Magazine, Wash. Bureau v. U.S. Customs Service, 71 F.3d 885, 891 (D.C. Cir. 1995) (determining that Customs failed to “describe its recordkeeping system in sufficient detail” to allow the court to identify what subject matter files might have information responsive to the FOIA requests), Steinberg, 23 F.3d at 552 (remanding to assess adequacy of the U.S. Attorney’s search because agency did not describe the search’s mechanics and relied on a conclusory statement from one office that no responsive records existed) and El Badrawi v. Dep’t of Homeland Sec., 583 F. Supp. 2d 285, 300 (D. Conn. 2008) (determining that CBP’s declaration was insufficient because it did not describe the general scheme of CBP’s file system and did not give detailed reasons for not searching other databases) with Poulsen v. U.S. Customs & Border Prot., No. 06-1743, 2006 WL 2788239, at *5 (N.D. Cal. Sept. 26, 2006) (unpublished) (finding
4

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 9 of 21
CBP’s search reasonable because its declaration detailed the search of over 200,000 records in three different systems) and Petit-Frere v. U.S. Attorney’s Office for the S. Dist. of Florida, 800 F. Supp. 2d 276, 280 (D.D.C. 2011) (finding the search adequate because the declaration specified what files were searched, why those files were searched, the search terms employed, and the search method used). Without “an elementary description of the general scheme of an agency’s file system,” a FOIA requester lacks a basis to challenge an agency’s claim that “any further search [is] unlikely to disclose additional relevant information.” El Badrawi, 583 F. Supp. 2d at 300 (internal citation and quotation omitted) (alteration in original).
Ms. Suzuki’s declaration fails to satisfy the D.C. Circuit’s standard for specificity and thus does not demonstrate that the government’s search was adequate. The declaration generally explains the role of each of the three offices within CBP identified as potentially having responsive records, namely the Office of Border Patrol (“OBP”), the Office of Field Operations (“OFO”), and the Office of Chief Counsel (“OCC”). Ms. Suzuki states that she directed her staff attorney to contact the identified offices and request that they search for responsive records. Suzuki Decl. ¶ 14. She also indicates that she forwarded a copy of AIC’s appeal to OBP, OFO headquarters, the Admissibility and Passenger Programs (“APP”) Office within OFO, and APP’s Enforcement Programs Division. Suzuki Decl. ¶¶ 15, 17, 19. In response, OBP and OFO collectively identified and provided portions of three manuals that were responsive to AIC’s FOIA requests. Suzuki Decl. ¶¶ 16, 18, 20. Ms. Suzuki states further that her office “consulted with” the OCC, which “conducted a separate search, and confirmed that no other responsive records exist.” Id. ¶¶ 21-22.1 Significantly, however, the declaration does not explain the
1 The declaration does not indicate whether OCC received a copy of the appeal. It merely indicates that “OCC reviewed the aforementioned documents” before conducting a search.
5

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 10 of 21
agency’s system of recordkeeping, the scope of the searches undertaken by each of the identified CBP offices, what files were searched and why, the search terms employed, the search methods used, who conducted the searches within each office, why additional searches would have been futile, and whether Ms. Suzuki is personally aware of the search procedures used within each office. Neither Plaintiff nor this Court can fully evaluate the adequacy of Defendants’ search without this information.
Ms. Suzuki’s declaration is also legally insufficient because it fails to explain why offices other than OBP, OFO (including APP), and OCC would not have responsive records. Moreover, other than noting that APP searched for responsive records in its Enforcement Programs Division, the scope of the searches conducted by OBP, OFO and OCC is unclear. In addition, neither Plaintiff nor this Court has any way of knowing whether OFO’s field operations offices and OBP’s offices at ports of entry, among other divisions, were engaged in searching.2
Defendants appear to attribute the paucity of responsive documents to the proviso of 8 C.F.R. § 292.5(b), which states that this regulation should not “be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody.” Suzuki Decl. ¶ 12; Compl. Ex. F at 9-10. By its terms, however, 8 C.F.R. § 292.5(b) relates exclusively to “applicants for admission”3 in either primary or secondary
Suzuki Decl. ¶ 22. 2 Plaintiff’s request encompassed “any and all records which have been prepared, received,
transmitted, collected and/or maintained by [DHS] and/or [CBP], whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP field operations offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure[.]” Compl., Ex. A at 1. 3 Under the Immigration and Nationality Act, the term “applicant for admission” does not
6

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 11 of 21
inspection. AIC’s FOIA request addressed many other contexts, including deferred inspection, questioning regarding alleged abandonment of lawful permanent resident (“LPR”) status in the United States, questioning regarding alleged lack of proper immigration documents, questioning in the context of the National Security Entry-Exit Registration System (NSEERS),4 decision making regarding the return of an unaccompanied alien child to Mexico, and decision making regarding release of an unaccompanied immigrant child to a responsible adult who is not a family member. Compl., Ex. A at 1-2. Because AIC’s FOIA request encompassed encounters between CBP and noncitizens who were not “applicants for admission,” as well as encounters with CBP that took place outside of primary and secondary inspection, Defendants’ reliance on 8 C.F.R. § 292.5(b) is misplaced.
Quoting CBP’s final administrative appeal decision, Ms. Suzuki’s declaration states that “comprehensive CBP guidance governing attorney representation and conduct, where in most instances applicants for admission have no such right, is unnecessary.” Suzuki Decl. ¶ 12. While the need for detailed guidance may be debatable, AIC’s request was not limited to “comprehensive” guidance. Instead the FOIA request encompasses any and all instructions to implement the legal authority set forth in the manual excerpts that CBP did produce, as well as internal communications, through e-mail or otherwise, about attorney participation during
encompass lawful permanent residents of the United States except under very narrow circumstances. See 8 U.S.C. § 1101(a)(13)(C) (2011). 4 CBP incorrectly suggests that the government is not obligated to produce any documents relating to NSEERS because DHS stopped using this program on April 28, 2011. See Suzuki Decl. ¶ 7, n. 1 (noting that DHS no longer registered noncitizens under NSEERS as of April 28, 2011). However, AIC made its request before April 28, 2011 and in no way limited it to a particular time period. Because, AIC’s request covers the period predating the end of NSEERS, Defendants should either have produce any responsive documents regarding NSEERS or explained why they were either unidentifiable or exempt under FOIA. Weisberg, 627 F.2d at 368. Instead, Defendants have merely stated that NSEERS is no longer in use.
7

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 12 of 21
inspections. The existence of such guidance is likely, given Defendants’ admission that “[e]xceptions are made for instances in which the applicant has become the focus of a criminal investigation or is taken into custody.” Suzuki Decl. ¶ 12, n.2. It is doubtful that the circumstances under which such exceptions would be warranted were never reduced to writing.
The foregoing deficiencies undermine the sufficiency of Defendants’ declaration. See Morley, 508 F.3d at 1122 (finding declaration insufficient to carry the agency’s burden on summary judgment due to failure to provide information about search strategies, search terms used, or how the search was conducted.). Accordingly, Defendants have failed to meet their burden to show that they conducted an adequate search, and their motion for summary judgment should be denied.
2. Substantial Countervailing Evidence Further Demonstrates that Defendants Did Not Conduct an Adequate Search.
Even if the government’s affidavits were detailed, nonconclusory and submitted in good faith, “the requester may nonetheless produce countervailing evidence, and if the sufficiency of the agency’s identification or retrieval procedure is genuinely in issue, summary judgment is not in order.” Morley, 508 F.3d at 1116 (emphasis added) (quotation omitted).
As discussed above, the Defendants’ supporting declaration lacks critical details and is conclusory. In addition, substantial countervailing evidence demonstrates that the government’s search was not adequate.
a. The Government Failed to Identify, Produce or Even Mention Documents Reflecting Prior Communications with Immigration Advocacy Organizations Regarding Access to Counsel in Interactions with CBP.
CBP’s far-reaching restrictions on access to counsel have been a longstanding concern for immigration lawyers across the country. Compl. ¶ 4; Declaration of Melissa Crow (“Crow Decl.”), ¶ 2. This topic has been the subject of significant correspondence between immigration
8

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 13 of 21
advocacy organizations and CBP. However, Defendants’ production failed to identify, produce
or even mention these communications. Illustrative examples include:
 A December 4, 2008, letter from the American Civil Liberties Union (“ACLU”) Foundation of San Diego and Imperial Counties to CBP’s San Diego Field Operations Director expressing concern about the alleged denial of access to counsel to detainees held at a Border Patrol temporary detention facility in San Ysidro. Declaration of David Blair-Loy (“BlairLoy Decl.”), Ex. A.
 A February 13, 2009, letter from CBP to the ACLU responding to the ACLU’s December 8, 2008 letter. Id., Ex. B.
 A December 2, 2010, letter from the President of the South Florida Chapter of the American Immigration Lawyers Association to DHS’s Office of Inspector General requesting an investigation of an alleged pattern and practice of denial of the right to counsel in deferred inspection by the Miami CBP office. Declaration of John P. Pratt (“Pratt Decl.”), Ex. A.
 An April 29, 2011, letter from the Assistant Port Director at Miami International Airport to the President of the South Florida Chapter of the American Immigration Lawyers Association (“AILA”) responding to an “inquiry regarding recent interactions between AILA attorneys and U.S. Customs and Border Protection (CBP) staff at the Office of Deferred Inspection in Miami, Florida.” Pratt Decl., Ex. D.
 A May 11, 2011, e-mail from the Executive Director of the American Immigration Council (“AIC”) to CBP Commissioner Alan Bersin transmitting a joint letter from AIC and the American Immigration Lawyers Association addressing “the issue of restrictions on access to counsel by CBP officers.” Declaration of Benjamin Johnson (“Johnson Decl.”), Exs. A & B.5
5 The April 29, 2011 and May 11, 2011 letters were created after AIC’s initial March 14, 2011, FOIA request. Based on CBP’s September 29, 2011 letter, however, it appears that CBP conducted an additional search after AIC made its May 26, 2011, appeal, by which time these documents would have existed. See Compl., Ex. F. at 1 (indicating that CBP and AIC had a call on June 23, 2011, to discuss what AIC’s FOIA requests encompassed); see id. at 10 (“In response to your appeal and contention that the search conducted in response to the initial request was inadequate, we contacted several offices within the CBP in which responsive records would likely be found….”). An agency may establish a reasonable cut-off date for searching records pursuant to a FOIA request, consistent with its obligation to conduct a reasonably thorough search. McGhee v. Cent. Intelligence Agency, 697 F.2d 1095, 1104
9

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 14 of 21
b. The Government Failed to Identify or Produce all Relevant Documents Relating to the Inspector’s Field Manual.
In response to AIC’s FOIA request, Defendants produced only two pages of excerpts from three separate manuals. Compl., Ex. G. In its May 12, 2011, response letter, CBP noted that one of those manuals, the Inspector’s Field Manual, was “currently under review for determination and release” and that once it was “approved for release” AIC could view it on the internet. See Compl., Ex. C.
CBP’s characterization of the status of the Inspector’s Field Manual as “under review” implies the existence of a draft manual and other documents relating to the review and revision of the manual. To the extent that such documents are responsive to AIC’s FOIA request, Defendants are obligated to produce them. See 5 U.S.C. § 552. If Defendants believe that portions of these documents fall within exemptions to the FOIA, they should have produced redacted versions of the documents, along with a Vaughn index. See 5 U.S.C. § 552(b); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Defendants have done neither.
Given Ms. Suzuki’s description in her declaration of the mandate of the OCC, which provides legal advice regarding all aspects of CBP’s operations, Suzuki Decl. ¶ 21, it is reasonable to assume that OCC was involved in the overhaul of the manual. Responsive documents that AIC received from U.S. Citizenship and Immigration Services (“USCIS”),
(D.C. Cir. 1983). Courts in this jurisdiction have frequently upheld date-of-search cut-off dates to be reasonable. See, e.g., Public Citizen v. Department of State, 276 F.3d 634, 643-44 (D.C. Cir. 2002) (rejecting the State Department’s date-of-request cut-off date as unreasonable and noting that the agency could apply a date-of-search cut-off date “with minimal administrative hassle”); Edmonds Institute v. Dep’t of Interior, 383 F. Supp. 2d 105, 110-11 (D.D.C. 2005) (finding the agency’s use of a date-of-search rather than a date-ofdocument-release cut-off date to be reasonable); cf. Vento v. IRS, 714 F. Supp. 2d 137, 14445 (D.D.C. 2010) (finding the IRS’s use of a date-of-request cut-off date to be reasonable where the agency had initiated its search for responsive records within five days of the FOIA request).
10

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 15 of 21
another DHS component, in response to a similar FOIA request lend credence to this assumption.6 USCIS produced over 2,000 pages of responsive records, which included extensive discussions via e-mail regarding revisions to the USCIS Adjudicator’s Field Manual. See Crow Decl., ¶¶ 3-4, Exs. A-C. Specifically, USCIS produced communications among USCIS divisions, including its own Office of the Chief Counsel, and between USCIS and stakeholders outside the agency. See id., ¶ 4, Ex. C at 226-30 and 1490-1502 (correspondence among various USCIS divisions, including Office of the Chief Counsel); 1872-76 (USCIS answers to questions posted by stakeholders); 1939-41 (correspondence with stakeholders). Defendants in this case are obligated to produce any comparable records relating to CBP’s revision of the Inspector’s Field Manual.
Defendants also failed to identify other responsive sections of the Inspector’s Field Manual, which are publicly available in the FOIA Library of CBP’s website.7 Notably, the following sections include references to the role of attorneys during interactions with CBP:
 Chapter 15.1(d) (requiring CBP officers to advise a noncitizen or his representative to submit information to local port of entry or local CBP office to correct previously recorded, but allegedly erroneous, Form I-94 arrival and departure dates that result in “confirmed” overstay lookouts);
 Chapter 17.1(e) (stating that an applicant for admission is not entitled to representation at a deferred inspection but that an attorney may be present upon request if deemed appropriate by the supervisory CBP Officer on duty, and stating that the attorney’s role is limited to that of an observer and consultant to the applicant);
6 AIC’s FOIA request to USCIS requested the same four broad categories of documents regarding individuals’ access to counsel in interactions with USCIS. Compare Crow Decl., Ex. A with Compl., Ex. A at 1.
7 See http://foia.cbp.gov/index.asp?ps=1&search=&category=Manuals_and_Instructions
11

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 16 of 21
 Chapter 17.15(d) (requiring an officer to notify the port of entry if notified by an attorney, friend, or relative that an individual in expedited removal proceedings is planning to apply for asylum or has a fear of return and noting that a Form G-28 Notice of Representation is not required in this instance);
 Chapter 31.7 (discussing inquiries from private individuals and attorneys regarding possible reasons for questioning an individual at the time of application for admission to the United States);
 Chapter 43.5(f) (permitting the National Fines Office to correspond with an attorney or representative on behalf of a responsible carrier only if a Form G-28, Notice of Representation has been filed);
 Chapter 44.8 (d) (explaining that an attorney should file a Form G-28, Notice of Representation, after which the attorney must be sent copies of all notification letters, previous correspondence from the client(s), decision letters, and any sworn statement executed by the client, and that the attorney may attend personal interviews with the client regarding conveyance seizures);
 Chapter 44.9 (stating that owners of seized conveyances are entitled to representation by an attorney during a personal interview relating to forfeiture proceedings).
See Crow Decl. ¶ 6, Ex. D.
In addition, the version of Chapter 2.9 of the Inspector’s Field Manual (Dealing with
Attorneys and Other Representatives), which is also available in the FOIA library of CBP’s
website, includes an additional sentence not found in the version of this document produced by
Defendants. The additional sentence states: “A more comprehensive treatment of this topic is
contained in the [USCIS] Adjudicator’s Field Manual, Chapter 12, and 8 C.F.R. 292.5(b).” See
Crow Decl. ¶ 7, Ex. E. Defendants should have identified this document, as well as sections of
any other prior versions of the Inspector’s Field Manual concerning individuals’ access to
counsel before CBP, which should have been produced.8
8 To the extent that sections of the Adjudicator’s Field Manual govern individuals’ access to
12

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 17 of 21
Defendants’ production also excluded a 2002 Immigration and Naturalization memorandum that relates directly to Inspector’s Field Manual Chapter 17.1.g (Attorney Representation at Deferred Inspection), which Defendants did produce. This memorandum, which discusses, among other subjects, “Attorney representation at deferred inspection,” was attached to AIC’s Complaint. See Compl., Ex. H. Given CBP’s size and mandate, the practical need for such an agency to periodically review, update, and/or modify its policies, and the imperative to communicate policies to its many agents and subdivisions, it is probable over the past decade Defendants have issued other similar memoranda, directives, e-mails, or other documents that discuss, explain, update, or communicate the policies set forth in the manual excerpts produced by Defendants (as well as the other relevant sections of the Inspector’s Field Manual). Such documents would be responsive to Plaintiff’s FOIA request, but Defendants have not disclosed them.
Chapter 17.1.g of the Inspector’s Field Manual provides that “an attorney may be allowed to present [at deferred inspection] upon request if the supervisory CBPO on duty deems it appropriate…. Any questions regarding attorney presence in the deferred inspection process may be referred to CBP Field Counsel.” See Comp., Ex. G. CBP policy thus contemplates that CBP officers may make particularized decisions on requests for access to counsel in certain proceedings, and that they may consult with CBP counsel in reaching such decisions. It is highly likely that DHS and/or CBP are in possession of records containing guidance on how to make such decisions and/or memorializing discussions of particular decisions. Any such documents would be responsive to AIC’s request, but CBP and DHS have not disclosed them.
counsel during their interactions with CBP, Defendants also should have produced those records.
13

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 18 of 21
c. The Government Also Failed to Identify, Produce or Discuss Documents Stemming from Litigation Regarding CBP’s Policies and Practices Regarding Access to Counsel.
Defendants failed to disclose any documents regarding three lawsuits against DHS and/or
CBP that bear directly on the issue of access to counsel:
 Torres, et al. v. Ridge, et al., Case No. 2:04-cv-00525 (W.D. Wa. filed March 12, 2004) (alleging right to counsel in deferred inspection pursuant to Administrative Procedure Act and Due Process Clause). See Crow Decl. ¶ 9, Ex. F. This case was dismissed without prejudice pursuant to stipulation by the parties in June 2004. Id., ¶ 9.
 Castro, et al. v. Freeman, et al., Case No. 1:09-cv-00208 (S.D. Tex. filed Sept. 7, 2009) (Petition for Writ of Habeas Corpus, Class Action Complaint for Declaratory and Injunctive Relief, Application for Temporary Restraining Order, and Motion for Preliminary Injunction) This case includes claims regarding the right to counsel for people with facially valid documents showing U.S. citizenship who seek entry into the United States. See Crow Decl. ¶ 10, Ex. G. During discovery in Castro, which remains pending, the defendants made the following admission regarding counsel during questioning by CBP officers at ports of entry:
Request for Admission No. 44: Admit that it is the position of the Department of Homeland Security that an applicant for entry with facially valid documents indicating birth in the United States, but whose U.S. citizenship is questioned by the examining officer, has no right to counsel while detained at a port of entry unless criminal charges are contemplated.
Response to Request for Admission No. 44: … Subject to, and without waiving these objections, Defendants admit that prior to the issuance of a Notice to Appear, individuals applying for entry at a port of entry who are not facing criminal prosecution are not entitled to consult with an attorney or have an attorney present when interviewed by officers of the Department of Homeland Security.
See Crow Decl. ¶ 10, Ex. H.
 Esquivel v. Freeman, et al., No. 1:11-cv-00028 (S.D. Tex. filed Feb. 11, 2011) (Petition for Writ of Habeas Corpus, Complaint for Declaratory and Injunctive Relief, and Motion for Preliminary Injunction with Incorporated Points and Authorities) (seeking review of DHS’s
14

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 19 of 21
determination that plaintiff “does not have a right to have an attorney present when she applies for parole”). See Declaration of Cathy Potter (“Potter Decl.”), ¶ 2, Ex. A.. An exhibit to this petition, which was filed under seal, includes a publicly available e-mail string among counsel indicating CBP’s position. See Potter Decl., ¶ 2, Ex. B. At the request of the Petitioner, the case was dismissed without prejudice in March 2011. Potter Decl., ¶ 3. Given the centrality of access to counsel in these cases, CBP and/or DHS must have drafts, legal memoranda or other documents analyzing the agency’s position on this issue in the different contexts in which the cases arose. Even if some of these documents are subject to exemptions under the FOIA, Defendants were obligated to identify them and release redacted versions. d. The Government Overlooked Other Responsive Documents. Finally, the government failed to disclose previously released agency documents concerning CBP’s practices on access to counsel during questioning regarding stipulated removals. In response to FOIA litigation filed by the Stanford Law School Immigrants’ Rights Clinic and the National Immigration Law Center, CBP released 124 pages of documents, including three pages that indicate that U.S. Border Patrol officers must notify individuals of their right to consult counsel and have counsel present during questioning regarding stipulated removal. See Declaration of Karen Tumlin (“Tumlin Decl.”) ¶¶ 2-30, Ex. A; Stanford Legal Clinic, Deportation Without Due Process: Documents Obtained Through Freedom of Information Act Lawsuit About Federal Government’s Stipulated Removal Program (Sept. 1, 2011), http://blogs.law.stanford.edu/stipulatedremoval. An agency’s failure to turn up a particular document in a search does not make the search inadequate per se. See, e.g., Ancient Coin Collector’s Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011). However, Defendants’ failure to identify and produce so many known and obviously responsive documents strongly undermines its claim to have conducted an adequate
15

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 20 of 21
search.9 This countervailing evidence further bolsters AIC’s argument that Defendants’ motion for summary judgment should be denied. See Valencia-Lucena, 180 F.3d at 326 (stating that summary judgment is inappropriate if “a review of the record raises substantial doubt, particularly in view of well defined requests and positive indications of overlooked materials” (internal citation and quotation omitted)); Friends of Blackwater v. U.S. Dep’t of the Interior, 391 F. Supp. 2d 115, 121 (D.D.C. 2005) (concluding that the failure to provide search terms and the failure to produce documents originating from the agency that turned up in related searches by other bureaus rendered the search inadequate).
III. CONCLUSION Defendants failed to sustain their burden to demonstrate that they conducted an adequate search for records responsive to AIC’s FOIA request. Defendants’ declaration omits critical aspects of the mechanics of the government’s search. Additionally, substantial countervailing evidence undermines Defendants’ claims to have conducted a comprehensive search. For these reasons, Plaintiff respectfully requests that the Court deny Defendants’ motion for summary judgment.
9 AIC’s request for records “include[d] all records or communications preserved in electronic or written form, including but not limited to correspondence, documents, data, videotapes, audiotapes, e-mails, faxes, files, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules, manuals, technical specifications, training materials, and studies.” Compl., Ex. A at 1, n.1. Defendants’ production includes very few of these categories.
16

Case 1:11-cv-01972-JEB Document 12-1 Filed 03/26/12 Page 21 of 21 Respectfully submitted,

Dated: March 26, 2012

/s/ Creighton R. Magid ___________________ Creighton R. Magid (D.C. Bar #476961) DORSEY & WHITNEY LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 Telephone: (202) 442-3000 Facsimile: (202) 442-3199 magid.chip@dorsey.com
Melissa Crow (#453487) mcrow@immcouncil.org Beth Werlin (pro hac vice) bwerlin@immcouncil.org American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 Telephone: (202) 507-7500 Facsimile: (202) 742-5619
Attorneys for Plaintiff American Immigration Council

17

Case 1:11-cv-01972-JEB Document 12-2 Filed 03/26/12 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL Plaintiff,
v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Case No. 1:11-cv-01972 JEB

PLAINTIFF'S RESPONSE TO DEFENDANTS’ STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE AND
PLAINTIFF’S STATEMENT OF GENUINE MATERIAL ISSUES
Plaintiff responds as follows to numbered paragraphs of Defendants’ Statement of
Material Facts as to Which There Is No Genuine Issue:
1. Plaintiff denies that its FOIA request to Defendants U.S. Customs and Border
Protection (“CBP”) and U.S. Department of Homeland Security (“DHS”) was limited to the four
bullet points listed in paragraph 1 of Defendants’ Statement of Material Facts as to Which There
Is No Genuine Issue. The four bullet points are the topic areas of Plaintiff’s FOIA request, but
— as noted in Ms. Suzuki’s declaration — Plaintiff describes ten different, non-exclusive
categories in its March 14, 2011, request that may be found within those four topic areas:
1) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning in primary inspection, or what role the attorney may play during such questioning;
2) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning in secondary inspection, or what role the attorney may play during such questioning;
3) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during

Case 1:11-cv-01972-JEB Document 12-2 Filed 03/26/12 Page 2 of 5
questioning in deferred inspection, or what role the attorney may play during such questioning;
4) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning related to alleged abandonment of U.S. residence, or what role the attorney may play during such questioning;
5) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning related to alleged lack of proper immigration documents, or what role the attorney may play during such questioning;
6) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during questioning related to the National Security Entry-Exit Registration System (NSEERS), or what role the attorney may play during such questioning;
7) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may accompany a client during any other questioning by a CBP agent, or what role the attorney may play during such questioning;
8) Guidance or any information obtained by the agency regarding procedures for notification of attorneys with Form G-28 and/or EOIR-28 on file of CBP’s intention to question their clients;
9) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may be involved in the CBP’s decision to return an unaccompanied alien child to Mexico without referring the child to ICE or HHS/ ORR/ Department of Unaccompanied Children;
10) Guidance or any information obtained by the agency regarding the circumstances under which an attorney may be involved in CBP’s decision to release an unaccompanied immigrant child to a responsible adult who is not a family member.
Plaintiff notes further that Defendants omitted critical language from the excerpt of the FOIA
request reprinted in Defendants’ Statement of Material Facts as to Which There is No Genuine
Issue. Plaintiffs actually requested:
[A]ny and all records which have been prepared, received, transmitted, collected
2

Case 1:11-cv-01972-JEB Document 12-2 Filed 03/26/12 Page 3 of 5
and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions, or sections therein; CBP field operations offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:
 Attorneys’ ability to be present during their clients’ interactions with CBP;
 What role attorneys may play during their clients’ interactions with CBP;
 Attorney conduct during interactions with CBP on behalf of their clients;
 Attorney appearances at CBP offices or other facilities. (Emphasis added).
2. Plaintiff denies that a thorough search was conducted for records responsive to the March 14, 2011 request. Plaintiff also denies that “much of the information AIC requested was already publicly available.”
5. Plaintiff denies that its FOIA request sought only “records regarding CBP policies, directives and guidance.” Plaintiff explicitly defined “records” to include “all records or communications preserved in electronic or written form, including but not limited to correspondence, documents, data, videotapes, audiotapes, e-mails, faxes, files, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules, manuals, technical specifications, training materials and studies.” Moreover, the records sought by Plaintiff did not relate to “the accessibility of counsel,” but rather to individuals’ access to counsel during their interactions with CBP. In a telephone call on June 23, 2011, Plaintiff confirmed to CBP that its FOIA request did not concern the permissible roles of attorneys in trade matters, but did not limit the request in any other way.
3

Case 1:11-cv-01972-JEB Document 12-2 Filed 03/26/12 Page 4 of 5
6. Plaintiff denies that 8 U.S.C. § 1357, 8 U.S.C. § 287.3(c) and 8 C.F.R. § 292.5 “state unequivocally that generally ‘applicants for admission’ into the United States have no right to counsel.” Plaintiff also denies that only applicants for admission who have become the focus of a criminal investigation or who are detained have the right to legal representation. In addition, Plaintiff denies that “it is logical that CBP does not have extensive responsive documents” concerning access to counsel in interactions with CBP,” along with CBP’s underlying rationale that “comprehensive CBP guidance governing attorney representation and conduct . . . is unnecessary” and that “it is sufficient for CBP personnel to be informed that generally there is no right to counsel at the border.”
Plaintiff notes that its request addressed many contexts other than primary or secondary inspection, including deferred inspection, questioning regarding alleged abandonment of U.S. residence, questioning regarding alleged lack of proper immigration documents, questioning in the context of NSEERS, decision making regarding the return of an unaccompanied immigrant child to Mexico, and decision making regarding release of an unaccompanied alien child to a responsible adult who is not a family member.
7. Plaintiff, not Defendant, filed the instant complaint on November 8, 2011.
This record presents the following genuine issue of material fact: 1. Whether CBP has conducted an adequate search for responsive documents.
4

Case 1:11-cv-01972-JEB Document 12-2 Filed 03/26/12 Page 5 of 5

Respectfully submitted,

Dated: March 26, 2012

/s/ Creighton R. Magid Creighton R. Magid (D.C. Bar #476961) DORSEY & WHITNEY LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 Telephone: (202) 442-3000 Facsimile: (202) 442-3199 magid.chip@dorsey.com
Melissa Crow (#453487) mcrow@immcouncil.org Beth Werlin (pro hac vice) bwerlin@immcouncil.org American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 Telephone: (202) 507-7500 Facsimile: (202) 742-5619
Attorneys for Plaintiff American Immigration Council

5

Case 1:11-cv-01972-JEB Document 12-3 Filed 03/26/12 Page 1 of 1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMERICAN IMMIGRATION COUNCIL Plaintiff, Case No. 1:11-CV-01972 JEB
v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants. ORDER
Upon consideration of Defendants’ Motion for Summary Judgment, and Plaintiff’s Opposition thereto, it is hereby this _____ day of ______________, 2012,
ORDERED that Defendants’ Motion for Summary Judgment is hereby DENIED.

COPIES:
Creighton R. Magid, Esq. DORSEY & WHITNEY LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006
Melissa Crow, Esq. Beth Werlin, Esq. American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005

_____________________________________ James E. Boasberg United States District Judge
Marian L. Borum, Esq. Assistant United States Attorney Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530

Case 1:11-cv-01972-JEB Document 12-4 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-4 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-5 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-5 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-6 Filed 03/26/12 Page 1 of 3

Case 1:11-cv-01972-JEB Document 12-6 Filed 03/26/12 Page 2 of 3

Case 1:11-cv-01972-JEB Document 12-6 Filed 03/26/12 Page 3 of 3

Case 1:11-cv-01972-JEB Document 12-7 Filed 03/26/12 Page 1 of 4

Case 1:11-cv-01972-JEB Document 12-7 Filed 03/26/12 Page 2 of 4

Case 1:11-cv-01972-JEB Document 12-7 Filed 03/26/12 Page 3 of 4

Case 1:11-cv-01972-JEB Document 12-7 Filed 03/26/12 Page 4 of 4

Case 1:11-cv-01972-JEB Document 12-8 Filed 03/26/12 Page 1 of 5

Case 1:11-cv-01972-JEB Document 12-8 Filed 03/26/12 Page 2 of 5

Case 1:11-cv-01972-JEB Document 12-8 Filed 03/26/12 Page 3 of 5

Case 1:11-cv-01972-JEB Document 12-8 Filed 03/26/12 Page 4 of 5

Case 1:11-cv-01972-JEB Document 12-8 Filed 03/26/12 Page 5 of 5

Case 1:11-cv-01972-JEB Document 12-9 Filed 03/26/12 Page 1 of 3

Case 1:11-cv-01972-JEB Document 12-9 Filed 03/26/12 Page 2 of 3

Case 1:11-cv-01972-JEB Document 12-9 Filed 03/26/12 Page 3 of 3

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 1 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 2 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 3 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 4 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 5 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 6 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 7 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 8 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 9 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 10 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 11 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 12 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 13 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 14 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 15 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 16 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 17 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 18 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 19 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 20 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 21 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 22 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 23 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 24 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 25 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 26 of 27

Case 1:11-cv-01972-JEB Document 12-10 Filed 03/26/12 Page 27 of 27

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 1 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 2 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 3 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 4 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 5 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 6 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 7 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 8 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 9 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 10 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 11 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 12 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 13 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 14 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 15 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 16 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 17 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 18 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 19 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 20 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 21 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 22 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 23 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 24 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 25 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 26 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 27 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 28 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 29 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 30 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 31 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 32 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 33 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 34 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 35 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 36 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 37 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 38 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 39 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 40 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 41 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 42 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 43 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 44 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 45 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 46 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 47 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 48 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 49 of 50

Case 1:11-cv-01972-JEB Document 12-11 Filed 03/26/12 Page 50 of 50

Case 1:11-cv-01972-JEB Document 12-12 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-12 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 1 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 2 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 3 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 4 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 5 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 6 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 7 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 8 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 9 of 10

Case 1:11-cv-01972-JEB Document 12-13 Filed 03/26/12 Page 10 of 10

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 1 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 2 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 3 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 4 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 5 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 6 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 7 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 8 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 9 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 10 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 11 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 12 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 13 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 14 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 15 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 16 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 17 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 18 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 19 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 20 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 21 of 22

Case 1:11-cv-01972-JEB Document 12-14 Filed 03/26/12 Page 22 of 22

Case 1:11-cv-01972-JEB Document 12-15 Filed 03/26/12 Page 1 of 6

Case 1:11-cv-01972-JEB Document 12-15 Filed 03/26/12 Page 2 of 6

Case 1:11-cv-01972-JEB Document 12-15 Filed 03/26/12 Page 3 of 6

Case 1:11-cv-01972-JEB Document 12-15 Filed 03/26/12 Page 4 of 6

Case 1:11-cv-01972-JEB Document 12-15 Filed 03/26/12 Page 5 of 6

Case 1:11-cv-01972-JEB Document 12-15 Filed 03/26/12 Page 6 of 6

Case 1:11-cv-01972-JEB Document 12-16 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-16 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 1 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 2 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 3 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 4 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 5 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 6 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 7 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 8 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 9 of 10

Case 1:11-cv-01972-JEB Document 12-17 Filed 03/26/12 Page 10 of 10

Case 1:11-cv-01972-JEB Document 12-18 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-18 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-18 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-18 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-19 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-19 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 1 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 2 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 3 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 4 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 5 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 6 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 7 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 8 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 9 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 10 of 11

Case 1:11-cv-01972-JEB Document 12-20 Filed 03/26/12 Page 11 of 11

Case 1:11-cv-01972-JEB Document 12-21 Filed 03/26/12 Page 1 of 5

Case 1:11-cv-01972-JEB Document 12-21 Filed 03/26/12 Page 2 of 5

Case 1:11-cv-01972-JEB Document 12-21 Filed 03/26/12 Page 3 of 5

Case 1:11-cv-01972-JEB Document 12-21 Filed 03/26/12 Page 4 of 5

Case 1:11-cv-01972-JEB Document 12-21 Filed 03/26/12 Page 5 of 5

Case 1:11-cv-01972-JEB Document 12-22 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-22 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-23 Filed 03/26/12 Page 1 of 5

Case 1:11-cv-01972-JEB Document 12-23 Filed 03/26/12 Page 2 of 5

Case 1:11-cv-01972-JEB Document 12-23 Filed 03/26/12 Page 3 of 5

Case 1:11-cv-01972-JEB Document 12-23 Filed 03/26/12 Page 4 of 5

Case 1:11-cv-01972-JEB Document 12-23 Filed 03/26/12 Page 5 of 5

Case 1:11-cv-01972-JEB Document 12-24 Filed 03/26/12 Page 1 of 4

Case 1:11-cv-01972-JEB Document 12-24 Filed 03/26/12 Page 2 of 4

Case 1:11-cv-01972-JEB Document 12-24 Filed 03/26/12 Page 3 of 4

Case 1:11-cv-01972-JEB Document 12-24 Filed 03/26/12 Page 4 of 4

Case 1:11-cv-01972-JEB Document 12-25 Filed 03/26/12 Page 1 of 6

Case 1:11-cv-01972-JEB Document 12-25 Filed 03/26/12 Page 2 of 6

Case 1:11-cv-01972-JEB Document 12-25 Filed 03/26/12 Page 3 of 6

Case 1:11-cv-01972-JEB Document 12-25 Filed 03/26/12 Page 4 of 6

Case 1:11-cv-01972-JEB Document 12-25 Filed 03/26/12 Page 5 of 6

Case 1:11-cv-01972-JEB Document 12-25 Filed 03/26/12 Page 6 of 6

Case 1:11-cv-01972-JEB Document 12-26 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-26 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-27 Filed 03/26/12 Page 1 of 2

Case 1:11-cv-01972-JEB Document 12-27 Filed 03/26/12 Page 2 of 2

Case 1:11-cv-01972-JEB Document 12-28 Filed 03/26/12 Page 1 of 4

Case 1:11-cv-01972-JEB Document 12-28 Filed 03/26/12 Page 2 of 4

Case 1:11-cv-01972-JEB Document 12-28 Filed 03/26/12 Page 3 of 4

Case 1:11-cv-01972-JEB Document 12-28 Filed 03/26/12 Page 4 of 4

 
 Case 1:11-cv-01972-JEB Document 38 Filed 09/10/13 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL, )

)

Plaintiff

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY, et al.,

)

)

Defendants.

)

_________________________________________ )

Civil Action No. 11-1972 (JEB)

JOINT STATUS REPORT AND MOTION FOR BRIEFING SCHEDULE Plaintiff American Immigration Council (AIC) and Defendants, United States

Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP)

(hereinafter “the Parties”), by and through undersigned counsel, and in accordance with the

Court’s Minute Order of August 27, 2013, hereby respectfully submit this Joint Status Report to

the Court.

At the August 27, 2013 Status Conference, the Parties informed the Court that there are

nine documents which remain at issue in this litigation. Plaintiff requested that Defendants

release four of the nine documents to Plaintiff, in full. In exchange, Plaintiff would forego challenges to the exemptions asserted by Defendants in the remaining five documents.1 On

September 10, 2013, Defendants determined that they cannot release the four documents in full.

Therefore, the Parties hereby request that the Court adopt the following briefing schedule:

October 10, 2013: Defendants will file a Motion for Summary Judgment

November 8, 2013: Plaintiff will file an Opposition to Defendants’ Motion for Summary Judgment

1 The Parties have resolved all issues pertaining to the scope of the search by Defendants. Beyond the dispute related to exemptions described above, attorneys’ fees are also still at issue between the Parties.

Case 1:11-cv-01972-JEB Document 38 Filed 09/10/13 Page 2 of 3

November 22, 2013: Defendants will file a Reply. For the reasons cited above, the Parties respectfully request that the briefing schedule as stated above be granted. A proposed Order granting the relief sought is attached hereto. DATED: September 10, 2013
Respectfully submitted,

/s/ Michelle S. Grant Michelle S. Grant (Admitted Pro Hac Vice) DORSEY & WHITNEY LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402 (612) 340-5671 (telephone) (612) 340-8800 (facsimile) grant.michelle@dorsey.com
Creighton R. Magid D.C. Bar #476961 DORSEY & WHITNEY LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 (202) 442-3000 (telephone) (202) 442-3199 (facsimile) magid.chip@dorsey.com
Melissa Crow D.C. Bar #453487 American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 (202) 507-7523 (telephone) (202) 742-5619 (facsimile) mcrow@immcouncil.org
Attorneys for Plaintiff

RONALD C. MACHEN JR. D.C. Bar #447889 United States Attorney
DANIEL F. VANHORN D.C. Bar #924092 Chief, Civil Division
By: /s/ Marian L. Borum MARIAN L. BORUM D.C. Bar #435409 Assistant United States Attorney Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 252-2510 (telephone) (202) 252-2599 (facsimile) Marian.L.Borum@usdoj.gov
Attorneys for Defendants

2

Case 1:11-cv-01972-JEB Document 38 Filed 09/10/13 Page 3 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL, )

)

Plaintiff

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY, et al.,

)

)

Defendants.

)

_________________________________________ )

Civil Action No. 11-1972 (JEB)

ORDER

This matter is before the Court on the Parties’ Joint Status Report and Motion for Briefing

Schedule. Upon consideration of this Motion and the entire record of this case, it is this _____

day of ________________, 2013,

ORDERED that the motion is GRANTED; and it is

FURTHER ORDERED that the Parties’ requested briefing schedule shall be adopted.

________________________________ UNITED STATES DISTRICT JUDGE

3

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL,
Plaintiff, v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 11-1972 (JEB)

MEMORANDUM OPINION This dispute – like a substantially similar case the Court decided just weeks ago – began with a Freedom of Information Act request by the American Immigration Council, an immigration law and policy group, seeking information about individuals’ access to counsel during their interactions with federal immigration authorities. The prior case, Am. Immigration Council v. U.S. Dep’t of Homeland Sec., No. 12-856, 2014 WL 842311 (D.D.C. March 5, 2014), addressed a FOIA request AIC filed with Immigration and Customs Enforcement. This one deals with an identical request submitted to Customs and Border Protection, a component agency of the Department of Homeland Security. After the agency invoked the protection of several FOIA exemptions and released moderately redacted versions of a number of documents, AIC challenged those redactions in this Court. Defendants now request summary judgment, while AIC rejoins that the Government has not done enough to justify its withholdings. Although CBP’s explanations of the applicability of the claimed exemptions are at times thin, the Court’s own in camera review convinces it that Defendants have the better of the argument. It will thus grant them summary judgment in full.

1

I. Background
In March 2011, AIC submitted the following FOIA request concerning individuals’
access to legal counsel during their interactions with U.S. Customs and Border Protection:
[A]ny and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:
• Attorneys’ ability to be present during their clients’ interactions with CBP;
• What role attorneys may play during their clients’ interactions with CBP;
• Attorney conduct during interactions with CBP on behalf of their clients;
• Attorney appearances at CBP offices or other facilities.
Mot., Exh. B (March 14, 2011, Letter from Emily Creighton to FOIA Division, U.S. Customs
and Border Protection) at 1 (footnote omitted). The request “include[d], but [was] not limited
to” ten specific types of records. Id. at 1-2.
After six months of squabbling over the adequacy of the Government’s search and the
extent to which certain responsive documents were already publicly available, see Mot., Exh. D
(May 12, 2011, Letter from Dorothy Pullo to Emily Creighton) at 1, Defendants produced two
pages of responsive records. See Mot., Exh. G (Sept. 29, 2011, Letter from Shari Suzuki to
Emily Creighton) at 10. Dissatisfied with the agency’s response and the decision on
administrative appeal, AIC filed suit in this Court in November 2011. See Opp. at 1. The suit
apparently prompted Defendants to conduct a more thorough search, which – over the course of
2

several months in late 2012 and early 2013 – revealed more than 300 responsive documents. See id. The Government released some of those documents in full, disclosed some in part, and withheld several altogether based on various FOIA exemptions. See id. at 1-2; ECF Nos. 20-25, 27-29, 31, 38 (status reports updating the Court on progress of production). It has now moved for summary judgment.
The parties have continued to meet to discuss the adequacy of Defendants’ searches and the applicability of certain exemptions, as well as the specific redactions the Government made to the documents it produced. This process was fruitful: AIC has dropped its challenge to Defendants’ search, and it decided to contest the applicability of the claimed exemptions in only ten records. See Opp. at 2; ECF No. 36. That number then dropped to nine and, eventually, to the seven documents that remain at issue today. See Mot., Exh. H (October 25, 2013, E-mail from Erin Davenport to Marian Borum) at 1. AIC, moreover, has chosen not to contest those redactions that were made pursuant to Exemption 2, 3, 6, or 7(C); it will, instead, focus only on Exemptions 5 and 7(E) and the Government’s decision to withhold one document as unresponsive to its FOIA request. See Opp. at 3. AIC also disputes that Defendants have sufficiently segregated disclosable material within the disputed documents.
Three weeks ago, the Court ordered Defendants to produce the remaining seven documents for in camera inspection, see Order of February 25, 2014, which they accomplished ahead of schedule. Having completed its review, the Court now turns to Plaintiff’s substantive challenges. II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
3

56(a). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In those cases, the agency bears the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). The Court may grant summary judgment based solely on information provided in an agency’s affidavit or declaration when it describes “the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). III. Analysis
Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
4

the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious,” the Freedom of Information Act “expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure’. . . .” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).
The parties, to their credit, have done an admirable job of narrowing the issues in this case. Plaintiff, for example, has chosen not to question the adequacy of the agency’s search or the applicability of FOIA Exemption 2, 3, 6, or 7(C), and Defendants, for their part, have released a number of documents in full or with only light redactions. All that remains, then, are Plaintiff’s challenges to (1) Defendants’ decision to withhold parts of one document as nonresponsive to the FOIA request; (2) Defendants’ decision to invoke the protection of Exemptions 5 and 7(E) with respect to six records released in part; and (3) the segregability of all of those documents. The Court will address each issue in sequence.
5

A. Non-Responsive Document Plaintiff’s first challenge concerns the document labeled Record No. 1: pages 7 and 8 of Chapter 5 of CBP’s Border Patrol Handbook. Although the agency’s Chief FOIA Appeals Officer, Shari Suzuki, affirmed in her declaration that those pages were non-responsive to Plaintiff’s FOIA request, see Mot., Att. 1 (Declaration of Shari Suzuki), ¶¶ 4, 21, Plaintiff is unconvinced. Instead, AIC claims, “[P]age 6 of [the Handbook] indicates that the redacted portions of pages 7 and 8 are part of a section entitled, ‘Advice of Rights.’” Opp. at 8. As a result, the organization suggests, those pages “appear to shed light on, amplify, or enlarge” the released sections of the document and thus should have been disclosed. Id. at 7. The Court has reviewed the contested pages in camera, and it does not agree. Plaintiff requested information related to attorneys’ ability to be present during their clients’ interactions with CBP and other aspects of attorneys’ roles during those interactions. Pages 7 and 8 of the Handbook, however, only address CBP’s procedure for advising individuals of their rights when detained. This procedure occurs outside the presence of counsel, and the redacted pages do not contain any protocols or guidelines for dealing with counsel or requests for counsel. The Court, therefore, is satisfied that the redacted information is not responsive to AIC’s FOIA request, and it will grant Defendants summary judgment on Record No. 1. B. Exemptions That initial issue out of the way, the Court now turns to the crux of this dispute: the applicability of Defendants’ claimed FOIA exemptions to six particular documents. The Government invoked Exemption 7(E) to protect sections of documents 2, 3, 4, 5, and 7. See Opp. at 4-6; Response to Order of the Court, Exh. A (Vaughn Index) at 1-6. It also argues – and
6

Plaintiff continues to contest – that Exemption 5 justifies withholding parts of three of the records at issue here: Documents 2, 3, and 6. See Opp. at 4-6; Vaughn Index at 1, 2, 4.
As a preliminary matter, Plaintiff has notified the Court that it has come into possession of a less-redacted version of Document 7, and it challenges only the redaction of information here that was not protected in that other version. See Opp. at 10 n.8. In other words, Plaintiff already has obtained the redacted information, and it does not explain why it needs the Court to order this material released again. As Plaintiff has already received the relief it seeks, the Court holds this request to be moot, and, consequently, it need consider only the challenges to the Exemption 7(E) redactions in documents 2, 3, 4, and 5 before moving to Exemption 5.
1. Exemption 7(E) Exemption 7 authorizes the Government to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information” meets one of six requirements. 5 U.S.C. § 552(b)(7); see also Keys v. DOJ, 830 F.2d 337, 340 (D.C. Cir. 1987) (“[Exemption 7] exempts such documents from disclosure only to the extent that production of the information might be expected to produce one of six specified harms.”). The fifth subparagraph – 7(E) – permits withholding if production “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). In order to properly invoke Exemption 7(E), then, the agency must satisfy two requirements: First, the record must be compiled for law-enforcement purposes; and second, production must disclose either techniques and procedures for law-enforcement investigations or guidelines for law-enforcement investigations that would risk circumvention of the law.
7

a. Law-Enforcement Purposes AIC concedes that CBP is a law-enforcement agency, see Opp. at 27-28, but it notes that agency records do not become law-enforcement records under FOIA “simply by virtue of the function the agency serves.” Id. at 28 (citing King v. DOJ, 830 F.2d 210, 229 (D.C. Cir. 1987)). As a result, it is not enough that CBP is “a federal law enforcement agency” tasked with the “management, control and protection of our nation’s borders,” the enforcement of over 400 federal statutes, and the “responsib[ility] for keeping terrorists and terrorist weapons out of the country.” Suzuki Decl., ¶ 3. Instead, the agency “must still make a showing of ‘law enforcement purposes’ by providing a sufficient explanation that ‘establish[es] a rational nexus between [the withholding] and one of the agency’s law enforcement duties,’ as well as a ‘connection between an individual or incident and a possible security risk or violation of federal law.’” Am. Immigration Council, 950 F. Supp. 2d at 245 (quoting Campbell v. DOJ, 164 F.3d 20, 32 (D.C. Cir. 1998)). Although Plaintiff does not challenge Defendants’ compliance with the second part of this test, it does question whether CBP has proven a “rational nexus” between the redacted information in Documents 2, 3, and 5 and its law-enforcement duties. (It appears, on the other hand, that Plaintiff concedes that Document 4 satisfies this threshold requirement. See Opp. at 27-31 (discussing only 2, 3, and 5 in this context)). Plaintiff contends that Defendants improperly “argue that the[] records were compiled for law enforcement purposes simply because they describe CBP’s procedures for detaining or processing individuals.” Opp. at 28. It posits that claims “concern[ing] certain procedures used when an alien is detained at a border” and subject to questioning are “insufficient to establish that this information ‘relate[s] to anything that can fairly be characterized as an enforcement
8

proceeding’ merely because CBP may, at some future time, place the individuals subject to these procedures into enforcement proceedings.” Id. at 29 (quoting Jefferson v. U.S. Dep’t of Justice, Office of Professional Responsibility, 284 F.3d 172, 177 (D.C. Cir. 2002)).
It is true that the Jefferson court required that an agency show that the information withheld relates to enforcement. Nothing in that case or its progeny, however, requires disclosure just because the documents relate only to future – indeed, even hypothetical – proceedings. In fact, Jefferson explicitly allowed that Exemption 7 can protect files created “in connection with investigations that . . . could result in civil or criminal sanctions,” Jefferson, 284 F.3d at 177 (emphasis added), as long as they relate to investigatory activity that that could result in the government’s punishing a private individual, rather than merely to “government oversight of the performance of duties by its employees.” Id. at 179; see also Stern v. F.B.I., 737 F.2d 84, 89 (D.C. Cir.1984) (document may be protected if investigation “focuses directly on specifically alleged illegal acts . . . which could, if proved, result in civil or criminal sanctions”) (emphasis added) (internal quotation marks and citation omitted). If a FOIA defendant can show that the information withheld bears on its law-enforcement activities – even activities that are not guaranteed to result in enforcement proceedings – it will have satisfied Exemption 7’s threshold requirement.
The Government argues, and the Court agrees, that each of the withheld records has a rational nexus to the agency’s law-enforcement duties, including the prevention of terrorism and unlawful immigration. As Defendants put it in their Vaughn Index, Document 2, for example, describes the “procedures concerning assessments and actions” agency personnel should consider “when responding to telephonic requests from citizens and attorneys to obtain information about or contact detainees in CBP custody.” Vaughn Index at 1. The nexus is plain:
9

the techniques described in Document 2 help CBP manage the interrogation and detention of people held at the border. See Suzuki Decl., ¶ 47. Release of information about those techniques could “facilitate circumvention” of law-enforcement procedures and make it harder for CBP to control the interrogation process. Whatever the policy merits of the agency’s approach, Congress has determined that CBP should be tasked with preventing unlawful entry and handling the concomitant security risks. Document 2 bears directly on that mission.
Document 3 is of similar import. Defendants assert that the language redacted in that record describes “procedures concerning assessments” and actions CBP personnel should consider “when responding to requests from attorneys to be present during deferred inspections in Miami.” Vaughn Index at 2. Deferred inspections, which CBP uses when it cannot make an immediate determination concerning the immigration status of an arriving traveler, are part of the agency’s enforcement process, see Suzuki Decl., ¶ 3, and Document 3 relates to procedures used during such inspections. There is thus a rational nexus here, too.
Finally, although the description of Document 5 in Defendants’ Vaughn Index is certainly abbreviated, the supplemental information in the agency’s briefs and the Court’s independent in camera review make it evident that the single, three-line redaction at issue crosses the Exemption 7 threshold, as the information withheld similarly relates to procedures for handling detainees and their lawyers. The Court therefore finds that Documents 2, 3, 4, and 5 were created for law-enforcement purposes.
b. Guidelines, Techniques, and Procedures Defendants, of course, still bear the burden of demonstrating that the contested documents meet the other requirements of Exemption 7(E) – namely, that disclosure would reveal law-enforcement guidelines, techniques, or procedures “generally unknown to the public,”
10

Albuquerque Pub. Co. v. U.S. Dep’t of Justice, 726 F. Supp. 851, 857 (D.D.C. 1989), and that disclosure could “reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).
Courts typically have found that the Government carries its evidentiary burden on this point when it provides:
(1) a description of the technique or procedure at issue in each document, (2) a reasonably detailed explanation of the context in which the technique is used, (3) an exploration of why the technique or procedure is not generally known to the public, and (4) an assessment of the way(s) in which individuals could possibly circumvent the law if the information were disclosed. Am. Immigration Council, 950 F. Supp. 2d at 247. While the government faces a “low bar” to show that it has properly withheld documents containing law-enforcement techniques and procedures, Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011), it must nevertheless provide a “relatively detailed justification” for each record that permits the reviewing court to make a meaningful assessment of the redactions. Strunk v. U.S. Dep’t of State, 845 F. Supp. 2d 38, 47 (D.D.C. 2012) (citing Blackwell, 646 F.3d at 42)). Generic portrayals of categories of documents and vaguely formulated descriptions will not suffice. See Am. Immigration Council, 950 F. Supp. 2d at 246-47. In sum, the Government must provide sufficient facts and context to allow the reviewing court to “deduce something of the nature of the techniques in question.” Clemente v. FBI, 741 F. Supp. 2d 64, 88 (D.D.C. 2010). AIC argues that Defendants have not carried that burden on several fronts. First, it contends that the agency has “offered only conclusory allegations and insufficient descriptions and explanations of the redacted materials.” Opp. at 32. But Plaintiff’s leading example of that deficiency falls flat on even the most cursory inspection. Claiming that the description of Document 3 in Defendants’ Vaughn Index is “vague,” the organization points out that the
11

Government describes the redacted information as providing “‘procedures to be used when an individual is detained during a deferred inspection,’ including ‘guidelines for the actions CBP personnel should take when responding to requests from attorneys to be present during deferred inspections in Miami.’” Opp. at 32-33 (quoting Mot. at 38). Even if Plaintiff were correct that this description is somewhat vague, the very next sentence in the Vaughn Index offers plenty of detail. Indeed, Defendants go on to describe the information withheld as “deliberations and analysis used in deciding how to respond to different types of inquiries. The information presents situational responses in an ‘if a occurs then the b response is required because of x, y, z considerations.’” See Vaughn Index at 2. To describe these techniques in greater detail here would risk disclosing them – “the very harm Exemption 7(E) seeks to prevent.” Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 36 (D.D.C. 2012).
AIC then suggests – again only in relation to Document 3 – that the agency’s descriptions are at times “contradictory.” Opp. at 32. As evidence, Plaintiff points out that Defendants’ Motion describes the record as guidelines or procedures to be used in deferred inspections, whereas elsewhere they characterize the redacted information as “deliberations,” “recommendations,” and “responses to hypothetical/potential situations.” See Opp. at 33 (citing Suzuki Decl., ¶ 53). That argument fails for two reasons. First, the Court is at a loss as to why Plaintiff believes “guidelines or procedures” cannot include possible “responses to hypothetical/potential situations.” Second, if Plaintiff means to suggest that by calling the record a “deliberation” Defendants forfeit the Exemption 7(E) argument, such a position is easily debunked: In its declaration and its Vaughn Index, the agency explained that it withheld Document 3 pursuant to both Exemption 7(E) and Exemption 5. Exemption 5 protects
12

deliberative documents, among others, so Defendants’ decision to invoke the word “deliberations” in its description of the redactions is anything but “contradictory.”
c. Investigations or Prosecutions Plaintiff next turns to the argument that many of CBP’s redactions do not protect lawenforcement “investigations” or “prosecutions.” See Opp. at 34-35 (citing Cowsen-El v. DOJ, 826 F. Supp. 532, 534 (D.D.C. 1992)). AIC claims that “much of the material withheld by Defendants . . . appears to relate to the administrative processing of individuals in the agency’s custody – not investigations or prosecutions.” Id. at 35 (citing Mot. at 37). Even if these records were compiled for a law-enforcement function and include agency procedures, techniques, or guidelines, Plaintiff argues, they may not be withheld unless Defendants also show that the procedures relate to investigations or prosecutions. Id. at 36. Once again, however, the organization’s argument fails on the substance. As explained in Defendants’ Vaughn Index and pleadings – and confirmed by the Court’s in camera review – each of the documents describes guidelines or procedures CBP uses to deal with people suspected of violating immigration laws, their lawyers, and their families. See Vaughn Index at 1-6. AIC offers no argument for why the control of persons detained in federal custody as the result of law-enforcement operations should not be considered related to an investigation or, ultimately, a prosecution, and the Court sees none either. Cf. AIC, No. 12-856, 2014 WL 842311, (considering similar arguments in the context of the “law-enforcement-purposes” inquiry). In fact, the treatment of suspects – what rights they are afforded, how they are interrogated, how long and in what conditions they are detained – would appear to go to the heart of law-enforcement “investigations” and “prosecutions.” This attack on Defendants’ withholding of Documents 2 through 5 is therefore unavailing.
13

d. Circumvention of Law Nor is the organization’s next argument much help. AIC contends that the Government has not proven that disclosure of the documents at issue would risk circumvention of the law. The Court, however, has enough information in the Vaughn Index and the unredacted documents reviewed in camera to conclude that those documents would give individuals undisclosed information about CBP’s procedures, techniques, and guidelines that could allow them to circumvent screening protocols or interfere with or thwart the agency’s enforcement efforts. Document 5, for example, addresses procedures for detaining individuals in short-term hold rooms, for handling high-risk detainees, and for restraining violent detainees, and special practices for deciding when to isolate individuals from their families. See Suzuki Decl., ¶ 49. Release of that information could risk circumvention of detention practices and threaten officer safety by allowing suspects to skirt those safety procedures, “circumvent CBP attempts to separate human smugglers from their victims,” and evade “actions related to the protection of minors.” Id. Having reviewed the other withheld documents in camera, the Court believes there are similar reasons for denying disclosure of each of those records.
e. Generally Unknown to Public Finally, AIC questions whether Defendants have shown that the redacted materials are not generally known to the public. Although Defendants do not specifically address the issue in their Vaughn Index or pleadings – beyond conclusory allegations to that effect – their descriptions of the documents in question, along with the Court’s in camera review, convinces the Court that these records do contain information of which the public is not generally aware. Documents 2, 3, 4, and 5 are internal memoranda from CBP supervisors – lawyers and section chiefs, among others – to the agency’s prosecutors describing the methods they may use in
14

interrogating detainees. There is no reason to believe that those opinions have been disseminated beyond CBP’s offices. Defendants state, moreover, that the techniques described are “specifically used in the context of detaining aliens who have attempted to cross the border. As the general public is not involved in processing aliens entering the country, there would be no reason for the general public to know of these techniques.” Reply at 20-21. The Court agrees.
In sum, then, the Court concludes that Defendants properly redacted Documents 2, 3, 4, and 5 under FOIA Exemption 7(E). It will therefore grant their Motion with regard to those five.
2. Exemption 5 As a result, all that remains with respect to the substantive exemptions is AIC’s challenge to CBP’s decision to withhold Document 6 under Exemption 5. That exemption protects “interagency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency,” 5 U.S.C. § 552(b)(5), and thus incorporates three traditional civil-discovery privileges: (1) the deliberative-process privilege; (2) the attorney-client privilege; and (3) the attorney work-product privilege. See Cuban v. SEC, 744 F. Supp. 2d 60, 75 (D.D.C. 2010). Defendants invoke all three, but because the Court concludes that the deliberativeprocess privilege justifies withholding Document 6, it need not entertain arguments regarding the others. The deliberative-process privilege exempts from disclosure “documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). It is intended “to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001) (internal quotation marks omitted).
15

The privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Id.; see also Dow Jones & Co. v. DOJ, 917 F.2d 571, 573-74 (D.C. Cir. 1990). To fall under the protection of the deliberative-process privilege, withheld material must be both “predecisional” and “deliberative.” Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993). Material is “predecisional” if it was “generated before the adoption of an agency policy.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It is “deliberative” if it “reflects the give-and-take of the consultative process.” Id.
Document 6 is a chain of e-mails between various CBP employees stationed at the Baltimore Port and the Acting Baltimore Area Port Director considering how the field office would respond to an inquiry from CBP Headquarters. Plaintiff challenges only two redactions from the final substantive e-mail in the chain. It argues first that the redacted information is not “predecisional” because it “describe[s] existing policies and practices, not decision-making on new practices.” Opp. at 24 (citing Public Citizen, Inc., 598 F.3d at 876). As evidence for this contention, AIC points out that one person who participated in the e-mail chain described the email containing the redacted information as “the final draft of [CBP’s] response” to Headquarters. Plaintiff thus posits that the document may embody the ultimate response produced, observing that “nothing in the document forecloses [that] possibility.” Opp. at 26.
The error in this logic is no fault of Plaintiff’s, as only a later e-mail in the chain – redacted in the document produced to Plaintiff but available to the Court for in camera review – makes it clear that a final response to Headquarters, distinct from the response outlined in the challenged e-mail, was ultimately created. See Unredacted Version of Mot., Exh. I (Redacted Versions of Documents Produced) at ECF p. 33. Because Document 6 is a draft opinion, even if
16

that draft may have been adopted in part – or in full – the Court can conclude that it is “predecisional” with respect to the agency’s decision on a final response. As the Supreme Court has explained, the deliberative-process privilege “calls for disclosure of all opinions and interpretations which embody the agency’s effective law and policy, and the withholding of all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.” Sears, 421 U.S. at 153. A draft response such as Document 6 falls into the latter camp.
Next, AIC challenges the “deliberative” nature of the redacted information in Document 6 on two grounds. First, it notes once again that “[d]ocuments that explain existing policies are not considered deliberative.” Opp. at 25. As the Court just concluded, however, the redacted information in Document 6 does no such thing; instead, it is part of a draft response to an inquiry about existing policies, and, as such, it illustrates the “give-and-take of the consultative process” that courts have sought to protect. Coastal States Gas Corp., 617 F.2d at 866.
Moving on, AIC argues that “messages sent from superiors to subordinates that contain ‘no hint that the [superior] is still weighing her options or wants feedback from the employees’ . . . are more likely to be non-deliberative.” Opp. at 26 (quoting AIC, 905 F. Supp. 2d at 220). Specifically, Plaintiff complains that “the challenged portion of Record No. 6 does not appear to be seeking comments,” and “nothing in the document forecloses the possibility that this was the agency’s final version.” Opp. at 26. Although the Court does not “endors[e] the legal binary that AIC has drawn on this issue,” see AIC, No. 12-856, 2014 WL 842311, at *8, Defendants’ Vaughn Index and the Court’s own in camera review of Document 6’s redactions make clear that AIC’s concern is unfounded. The Vaughn Index, on its own, provides much of the detail that AIC claims is missing, noting that Document 6 contains emails from a “lower level
17

employee” to her superior “regarding how to respond to an inquiry from . . . CBP [Headquarters].” Vaughn Index at 5. The emails, therefore, involve CBP employees of various subordinate levels and specifically discuss a request for clarification from Headquarters. The “final draft” does not even come from a supervisor – an ultimate decisionmaker regarding how to respond to the inquiry – and, as the Court has observed, in camera review has convinced it that the challenged redactions are not part of the agency’s “final version.”
In sum, the Court finds that Defendants properly redacted Document 6 under the deliberative-process privilege, and it will thus grant them summary judgment on that point.
C. Segregability The last issue that the Court must address is segregability. FOIA requires that “[a]ny reasonably segregable portion of a record . . . be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Accordingly, “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Central, Inc., v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). Still, an agency is not obligated to segregate non-exempt material if “the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981), overruled on other grounds by Church of Scientology of California v. IRS, 792 F.2d 153 (D.C. Cir. 1986). While the Government is “entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013), this presumption of compliance does not obviate its obligation to carry its evidentiary burden and fully explain its decisions on segregability. See Mead Data, 566 F.2d at 261. The agency must
18

provide “a detailed justification and not just conclusory statements to demonstrate that all reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996) (determining Government affidavits explained nonsegregability of documents with “reasonable specificity”). “In making a determination as to segregability . . . a district court judge ‘may examine the contents of . . . agency records in camera’ . . . . This Circuit has interpreted this language to give district court judges broad discretion in determining whether in camera review is appropriate.” Id. at 577-78 (citations omitted).
Plaintiff queries whether Defendants’ declaration on segregability is sufficient to carry its burden. Although the Court is inclined to side with the Government on that question, it need not delve too deeply, as its own in camera review of the materials suffices to persuade it that there are no segregability problems in this case. All seven contested documents feature targeted redactions, with individual words and sentences (as well as a few paragraphs) clipped to remove exempt information. Defendants, moreover, “reconsidered, at AIC’s request, the redactions made in the . . . documents at issue and reduced the number of redactions whenever possible.” Suzuki Decl., ¶ 50. This shows that Defendants made the required effort to segregate and disclose those portions that could be released. The non-exempt portions of these documents that have been redacted are thus “inextricably intertwined with exempt portions” and need not be further segregated. Mead Data, 566 F.2d at 260.
In a last-ditch effort to call Defendants’ segregability analysis into question, AIC points out that CBP “withh[eld] . . . information that [the agency] itself released either in this litigation or under other circumstances.” Opp. at 38. That some of the redactions cover information that
19

CBP has released elsewhere does not, on its own, call the Government’s redactions into question. To the extent that Plaintiff’s contention is a targeted attack on the segregability of certain redacted information in Document 7, moreover, that argument is moot for the reasons described in Section III.A, supra. IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion for Summary Judgment with respect to Documents 1, 2, 3, 4, 5, and 6, and it will dismiss as moot Plaintiff’s claim regarding Document 7. A separate Order consistent with this Opinion will be issued this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: March 21, 2014
20

 
 Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL,
Plaintiff, v.

) ) ) ) Civil Action No.: 1:11-CV-1972 (JEB) )

)

UNITED STATES DEPARTMENT OF )

HOMELAND SECURITY, et al.,

)

Defendants.

)

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS PETITION FOR ATTORNEYS’ FEES AND COSTS

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 2 of 26
TABLE OF CONTENTS Page
FACTUAL BACKGROUND ..........................................................................................................1 ARGUMENT ...................................................................................................................................4 I. Because Plaintiff Substantially Prevailed, It Is Eligible and Entitled to Reasonable
Attorneys’ Fees and Costs Under FOIA. .............................................................................4 A. Plaintiff is Eligible for Fees and Costs Because Defendants Voluntarily
and Unilaterally Changed Their Position.................................................................5 B. Plaintiff is Entitled to Fees Because It Meets All Four Factors for
Entitlement. ..............................................................................................................6 1. The Public Benefits from Plaintiff’s Request ..............................................7 2. Plaintiff Derives No Commercial Benefit from Its Request. .......................8 3. The Nature of Plaintiff’s Interest in the Information Supports an
Award of Fees. .............................................................................................9 4. Defendants’ Conduct Was Not Reasonable. ..............................................10 C. Plaintiff is Entitled to Seek “Fees on Fees.” ..........................................................13 D. Plaintiff’s Fees and Costs are Reasonable .............................................................14 1. The Hours Expended by Plaintiff Were Reasonable. ................................16 2. The Hourly Rates of Plaintiff’s Counsel Were Reasonable.......................18 E. Plaintiff is Entitled to Costs ...................................................................................20 II. Conclusion .........................................................................................................................21
i

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 3 of 26
TABLE OF AUTHORITIES Page(s)
Cases Am. Immigration Council v. U.S. Dep’t of Homeland Sec.,
2014 WL 1118353 (D.D.C. Mar. 21, 2014).........................................................................3, 13 Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc.,
136 F.3d 794 (D.C. Cir. 1998) .................................................................................................14 Blum v. Stenson,
465 U.S. 886 (1984)...........................................................................................................14, 18 Brayton v. Office of the U.S. Trade Rep.,
641 F.3d 521 (D.C. Cir. 2011) ...................................................................................................4 Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice,
2014 WL 4380292 (D.D.C. Sept. 5, 2014) ..............................................................................12 Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice,
820 F. Supp. 2d 39 (D.D.C. 2011) ................................................................................... passim Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice,
No. 11-754 (D.D.C. Aug. 4, 2014) ..........................................................................................15 Cobell v. Norton,
407 F. Supp. 2d 140 (D.D.C. 2005) .........................................................................................16 Covington v. Dist. of Columbia,
57 F.3d 1101 (D.C. Cir. 1995) .................................................................................................15 Davy v. CIA,
550 F.3d 1155 (D.C. Cir. 2008) ....................................................................................... passim Dist. of Columbia v. R.R.,
390 F. Supp. 2d 38 (D.D.C. 2005) ...........................................................................................15 Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.,
811 F. Supp. 2d 216 (D.D.C. 2011) ................................................................................. passim Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.,
892 F. Supp. 2d 28 (D.D.C. 2012) .............................................................................................7 Elec. Privacy Info. Ctr. v. United States Dep’t of Homeland Sec.,
999 F. Supp. 2d 61 (D.D.C. 2013) ................................................................................... passim
ii

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 4 of 26
Eley v. Dist. of Columbia, 2013 WL 6092502 (D.D.C. Nov. 20, 2013) ............................................................................15
Hensley v. Eckerhart, 461 U.S. 424 (1983).................................................................................................................14
Judicial Watch, Inc. v. Dep’t of Justice, 878 F. Supp. 2d 225 (D.D.C. 2012) .........................................................................................13
Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 2009 WL 1743757 (D.D.C. June 15, 2009).......................................................................12, 20
Judicial Watch, Inc. v. U.S. Dep’t of Justice, 774 F. Supp. 2d 225 (D.D.C. 2011) .............................................................................14, 15, 20
Kennedy Bldg. Assoc. v. Viacom, Inc., Civil No. 99-1833, (D. Minn. Feb. 4, 2003, and Dec. 10, 2002) .............................................18
Macke v. Purechoice, Inc., 2009 WL 6327273 (Hennepin Cnty. Dist. Ct. Nov. 19, 2009), aff’d 2011 WL 69022 (Minn. Ct. App. Jan. 11, 2011) .....................................................................................18
Morley v. CIA, 719 F.3d 689 (D.C. Cir. 2013) ...................................................................................................6
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978)...................................................................................................................4
Nw. Coal. for Alts. to Pesticides v. Browner, 965 F. Supp. 59 (D.D.C. 1997) ................................................................................8, 14, 16, 19
Nw. Coal. for Alts. to Pesticides v. E.P.A., 421 F. Supp. 2d 123 (D.D.C. 2006) .........................................................................................15
Olson v. Supervalu, Inc., Case No. 02-C9-07-1834, (Anoka Cnty. Dist. Ct. July 22, 2009) ...........................................18
Salazar v. Dist. of Columbia, 2014 WL 342084 (D.D.C. Jan. 30, 2014)................................................................................15
Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988) ...............................................................................................15
TestQuest, Inc. v. LaFrance, Case No. CT-02-1347, (Hennepin Cnty. Dist. Ct. Apr. 9, 2003) ............................................19
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989)...................................................................................................................4
iii

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 5 of 26
Welk v. GMAC Mortg., LLC, 2012 WL 3260355 (D. Minn. Aug. 8, 2012) ...........................................................................19
Statutes 5 U.S.C. § 552..................................................................................................................................1 5 U.S.C. § 552(a)(4)(E)..............................................................................................................4, 21 5 U.S.C. § 552(a)(4)(E)(i)......................................................................................................4, 5, 20 5 U.S.C. § 552(a)(4)(E)(i)(I)-(II) ...............................................................................................5, 16 FOIA ..............................................................................................................................................16 Other Authorities American Immigration Council – Legal Action Center, Access to Counsel Before
DHS, http://www.legalactioncenter.org/litigation/access-counsel-dhs (last visited October 17, 2014).......................................................................................................2, 6 Fed. R. Civ. P. 54 .......................................................................................................................3, 13 Legal Action Center – American Immigration Council, CBP Restrictions on Access to Counsel,” http://legalactioncenter.org/sites/default/Final%20CBP%20access%20to%20c ounsel%20FOIA%20factsheet%20%282%29.pdf. (last visited October 17, 2014) ..........................................................................................................................................2
iv

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 6 of 26
Plaintiff American Immigration Council (“Plaintiff”) respectfully submits to this Court the following memorandum of law in support of its motion for attorneys’ fees incurred in the above-captioned litigation against Defendants, U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) (collectively, “Defendants”).
FACTUAL BACKGROUND Plaintiff’s suit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., sought records from Defendants, concerning individuals’ access to legal counsel during their interactions with CBP. Plaintiff submitted its FOIA request to Defendants on March 14, 2011. Dkt. No. 1, Ex. A. Two months later, Defendants issued a “final response,” stating “much of the information… [sought] is already publicly available.” Id., Ex. C. Defendants’ response did not indicate that the agency had conducted a reasonable search for responsive records, nor did it assert that any responsive records were subject to exemptions under FOIA. See Dkt. No. 1. On May 26, 2011, Plaintiff filed an administrative appeal, asserting that Defendants’ search was inadequate. Id., Ex. D. On June 10, 2011, Defendants acknowledged receipt of Plaintiff’s appeal but addressed none of the substantive issues raised. Id., Ex. E. More than three months later, Defendants produced two pages of excerpts from agency guidance. Id., Exs. F-G. In an effort to compel Defendants to conduct a search in compliance with the statute, Plaintiff filed suit in November 2011. Dkt. No. 1.
1

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 7 of 26
In January 2012, Defendants moved for summary judgment, contending their search was adequate. Dkt. No. 9. After reviewing Plaintiff’s opposition, Defendants withdrew their summary judgment motion, voluntarily changed their original position, and agreed to conduct a legally adequate search. See Dkt. Nos. 12 & 18. Specifically, Defendants agreed to conduct “a nationwide search of CBP offices… involv[ing] over 300 Ports of Entry, approximately 130 Border Patrol Stations and 20 Border Patrol Sectors, CBP Field Operations Offices as well as the following additional offices at CBP headquarters: Office of Training and Development, Office of Diversity and Civil Rights, Office of Policy and Planning, and Office of Executive Secretariat.” Dkt. No. 18 at 2-3.
From October 2012 to July 2013, Defendants made ten productions of responsive records, comprising more than 300 pages of previously unreleased documents.1 See Dkt. Nos. 20-25; 27-29; 31; 36. Some of these records were released in full, some were released in part, and some were withheld in full based on various FOIA exemptions. See id. Between October 2012 and September 2013, Plaintiff and Defendants repeatedly met and conferred about the adequacy of Defendants’ searches, their asserted FOIA exemptions, and the scope of their redactions; in some cases, these conferences resulted
1 The records released by Defendants were posted on Plaintiff’s website. See American Immigration Council – Legal Action Center, Access to Counsel Before DHS, http://www.legalactioncenter.org/litigation/access-counsel-dhs (last visited October 17, 2014); see also Legal Action Center – American Immigration Council, CBP Restrictions on Access to Counsel,” http://legalactioncenter.org/sites/default/Final%20CBP%20access%20to%20counsel%20 FOIA%20factsheet%20%282%29.pdf. (last visited October 17, 2014).
2

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 8 of 26
in the production of less redacted versions of Defendants’ records. See Dkt. Nos. 20-25, 27-29, 31-38.
After ten months, Plaintiff determined that it would no longer challenge the adequacy of Defendants’ search. Dkt. No. 36. Plaintiff, however, still had concerns regarding Defendants’ reliance on certain exemptions to justify particular redactions. Id. Despite continued negotiations the parties could not reach a mutual agreement on seven documents, which were the subject of Defendants’ second summary judgment motion.2
On March 21, 2014, while acknowledging that “CBP’s explanations regarding the applicability of the claimed exemptions [we]re at times thin,” this Court granted Defendants’ second summary judgment motion. See Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 2014 WL 1118353 (D.D.C. Mar. 21, 2014). In April, the parties began good faith negotiations—including multiple e-mails and several conference calls— to resolve Plaintiff’s request for attorneys’ fees in the underlying litigation. See Dkt. No. 49-1. For approximately the next five months, the parties sought to resolve the issue of attorneys’ fees. Id. Then, on August 28, 2014, after Plaintiff sent Defendants a proposed status report, counsel for the Defendants took the position that Defendants had no obligation to pay attorneys’ fees because Plaintiff had not filed a motion in accordance with Fed. R. Civ. P. 54. See id., Ex. 8. Plaintiff immediately filed a motion with the
2 Plaintiff is not seeking attorneys’ fees incurred between Defendants’ second summary judgment motion and the entry of judgment in this matter. Plaintiff, however, is seeking the attorneys’ fees incurred related to the motion practice that resulted in this Court’s September 24, 2014 order. See Dkt. Nos. 49, 51 & 52.
3

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 9 of 26
Court seeking leave to file a petition for attorneys’ fees in this matter. Dkt. Nos. 49 & 51. On September 24, 2014, this Court granted Plaintiff’s motion.
ARGUMENT FOIA ensures “an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (intent of FOIA is to ensure that community members can access government records and be informed about “what their government is up to.”) (emphasis in original) (internal citation and quotation omitted). To advance this purpose, FOIA provides attorneys’ fees and costs to parties entitled to them. See 5 U.S.C. § 552(a)(4)(E). I. Because Plaintiff Substantially Prevailed, It Is Eligible and Entitled to Reasonable Attorneys’ Fees and Costs Under FOIA. FOIA allows courts to “assess against the United States reasonable attorneys’ fees and other litigation costs reasonably incurred in any case… in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i); see Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice (“CREW I”), 820 F. Supp. 2d 39, 43 (D.D.C. 2011). When faced with such a request, the court engages in a two-part inquiry, which “case law has long described as ‘fee eligibility’ and ‘fee entitlement.’” Id. (citing Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011)). Once a court determines a claimant is both eligible and entitled, the court evaluates an award of attorneys’ fees for reasonableness. Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (“EPIC I”), 811
4

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 10 of 26
F. Supp. 2d 216, 237 (D.D.C. 2011). Plaintiff is both eligible and entitled to fees, and has submitted a petition for reasonable attorneys’ fees and costs.
A. Plaintiff is Eligible for Fees and Costs Because Defendants Voluntarily and Unilaterally Changed Their Position.
Claimants are eligible for attorneys’ fees where they “substantially prevail” in FOIA litigation. 5 U.S.C. § 552(a)(4)(E)(i). One can “substantially prevail” by either “obtaining relief through a judicial order, or an enforceable written agreement or consent decree” or “a voluntary or unilateral change in the position by the agency, if the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(i)(I)-(II).
Here, Plaintiff is eligible for fees because its litigation caused Defendants to voluntarily and unilaterally change their position. See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (“EPIC II”), 999 F. Supp. 2d 61, 67 (D.D.C. 2013); EPIC I, 811 F. Supp. 2d at 232 (“institution and prosecution of the litigation caused the agency to release the documents obtained during the pendency of the litigation”). Defendants produced nothing (beyond two pages of records) in response to Plaintiff’s FOIA request for over ten months, and then sought summary judgment. See Dkt. No. 1, Ex. A; Dkt. No. 9. However, once Defendants saw Plaintiff’s opposition brief and realized that they would likely not prevail before this Court on the adequacy (or lack thereof) of their search, Defendants withdrew their motion. See Dkt. Nos. 12 & 18. Defendants then agreed to conduct a legally adequate search, which encompassed “a nationwide search of CBP offices,” and resulted in the release of over 300 pages of responsive documents through ten rolling productions. See Dkt. Nos. 18; 20-25; 27-29; 31; 36. Throughout this
5

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 11 of 26
process, the parties met and conferred regarding the search’s adequacy, the asserted FOIA exemptions, and the production of less redacted versions of documents. See Dkt. Nos. 20-25; 27-29; 31-38. The substantial number of documents Plaintiff obtained through this litigation, which are summarized, indexed and posted on its website,3 show that it substantially prevailed in this matter. See EPIC II, 999 F. Supp. 2d at 67 (“These tangible successes further support the common-sense notion that EPIC has ‘substantially prevailed’ in this matter.”); see also Footnote 1, supra.
B. Plaintiff is Entitled to Fees Because It Meets All Four Factors for Entitlement.
After a court determines that a claimant is eligible to receive attorneys’ fees, it must then analyze whether the claimant is also “entitled” to such fees. EPIC I, 811 F. Supp. 2d at 232. The D.C. Circuit has a four-factor test to determine if a claimant is entitled to fees: “(1) public benefit derived from the case, (2) the commercial benefit to the requester, (3) the nature of the requester’s interest in the information, and (4) the reasonableness of the agency’s conduct.” EPIC II, 999 F. Supp. 2d at 67-68 (quoting Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013)). No single factor is dispositive, and the court has discretion to weigh the four factors according to the case’s facts. CREW I, 820 F. Supp. 2d at 45. Here, all four factors weigh in favor of finding that Plaintiff is entitled to attorneys’ fees.
3 American Immigration Council – Legal Action Center, Access to Counsel Before DHS, http://www.legalactioncenter.org/litigation/access-counsel-dhs (last visited October 17, 2014).
6

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 12 of 26
1. The Public Benefits from Plaintiff’s Request. Analyzing the first factor “requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought.” Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008). Plaintiff sought records concerning the operations and activities of DHS and CBP related to “CBP’s policies regarding a noncitizen’s access to counsel in interactions with the agency.” Dkt. No. 1, Ex. D at 4. The records released by Defendants provide critical information regarding access to counsel during primary, secondary and deferred inspection, as well as at CBP’s detention facilities. They also include CBP’s policy guidance related to advisals of rights and the treatment of children. These records will be of particular value to attorneys who represent noncitizens, U.S. citizens and noncitizens who engage in cross-border travel, and other members of the public who are concerned with immigration agency proceedings and policies. See id. at 3-5. Plaintiff summarized, indexed, and posted these documents on its website. See Footnote 1, supra. Plaintiff’s website receives an average of more than 112,000 monthly page views. See Declaration of Melissa Crow (“Crow Decl.”), ¶ 7. The number of page views to Plaintiff’s website indicates that the information has been widely disseminated to the public. See EPIC II, 999 F. Supp. 2d at 68 (citing discussions on various websites and news sources as indicia of public benefit from FOIA litigation); Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (“EPIC III”), 892 F. Supp. 2d 28, 50-51 (D.D.C. 2012) (holding that public benefit factor weighed in favor of FOIA plaintiff when records were posted to plaintiff’s website and in its newsletter that over 8,000 people received); CREW I, 820 F. Supp. 2d at 46-47 (noting
7

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 13 of 26
that availability of requested documents on plaintiff’s various websites weighed in favor of “public benefit” factor); EPIC I, 811 F. Supp. 2d at 234 (finding that public benefit factor weighed in favor of FOIA plaintiff when released records were extensively covered in online news sources during public debate); Nw. Coal. for Alts. to Pesticides v. Browner, 965 F. Supp. 59, 64 (D.D.C. 1997) (listing “degree of dissemination” and “likely public impact” as “pertinent considerations” in the public benefit analysis). Under the first factor, Plaintiff is entitled to fees.
2. Plaintiff Derives No Commercial Benefit from Its Request. The second factor requires the court to determine what, if any, commercial benefit a claimant derived from its request. See Davy, 550 F.3d at 1160 (assessing whether one has “sufficient private incentive to seek disclosure without attorney’s fees”) (internal quotation marks omitted). If one seeks records for a commercial benefit, fees are inappropriate. EPIC I, 811 F. Supp. 2d at 235. However, recovery of fees “is often appropriate… when the plaintiff is a nonprofit public interest group.” Id. Here, Plaintiff satisfies the second factor. In fact, Defendants themselves determined that Plaintiff did not have a commercial interest in its FOIA request. The Chief of CBP’s FOIA Appeals, Policy and Litigation Branch, Ms. Suzuki, stated in correspondence with Plaintiff that “AIC [did] not have a commercial interest that would be furthered by release of the information requested” during the administrative appeals process. Dkt. No. 1, Ex. F at 8. Furthermore, Plaintiff “is a 501(c)(3), tax-exempt, not-for-profit educational and charitable organization.” Dkt. No. 1, Ex. D; see EPIC I, 811 F. Supp. 2d at 235 (“[EPIC]
8

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 14 of 26
is a ‘501(c)(3) non-profit interest research center [that] derived no commercial benefit from its FOIA request or lawsuit’”). Plaintiff’s mission is to increase public understanding of immigration law and policy, advocate for the fair and just administration of our immigration laws, and protect the legal rights of noncitizens. See Declaration of Melissa Crow (“Crow Decl.”), ¶ 3. Relevant to this FOIA request, Plaintiff has historically focused on access to counsel issues. Specifically, Plaintiff educates the public about the law surrounding access to counsel for immigrants in removal proceedings, advocates for fair standards and procedures to remedy the effects of ineffective assistance of counsel, and encourages better access to counsel in proceedings before the Department of Homeland Security and its components. See id. In furtherance of these goals, Plaintiff summarized, indexed, and posted Defendants’ documents on its website, allowing the public to access and examine these documents free of charge. See Footnote 1, supra.
Taken together, these facts support the conclusion that Plaintiff derived no commercial benefit from its request. See CREW I, 820 F. Supp. 2d at 45 (noting that claimant who “derived no commercial benefit from its requests favored grant of fee award”).
3. The Nature of Plaintiff’s Interest in the Information Supports an Award of Fees.
The third factor considers a claimant’s interest in the records. See Davy, 550 F.3d at 1160. When FOIA litigation is “motivated by scholarly, journalistic, or public interest concerns,” those requestors “are the proper recipients of fee awards.” EPIC I, 811 F.
9

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 15 of 26
Supp. 2d at 235 (internal quotation marks omitted); see CREW I, 820 F. Supp. 2d at 45 (noting that records sought by claimant acting in “public-interest capacity” favored grant of fee award).
Plaintiff sought records from Defendants to better educate the public, policymakers, and the media on Defendants’ immigration policies and practices. See Dkt. No. 1, Ex. D. It intended (and in fact did) distribute Defendants’ documents “to immigration attorneys, noncitizens and other interested members of the public free of charge.” Id. Plaintiff’s goal was to assist the public in understanding the scope of noncitizens’ access to counsel in interactions with CBP. Dkt. No. 1, Ex. A at 3; see EPIC II, 999 F. Supp. 2d at 69 (“As the D.C. Circuit has explained, those ‘requesters who seek documents for public information purposes’ are favored by FOIA, and they ‘engage in the kind of endeavor for which a public subsidy makes some sense.’”); EPIC I, 811 F. Supp. 2d at 235 (“[EPIC’s] aims, which include dissemination of information regarding privacy issues to the public… fall within the scholarly and public-interest oriented goals promoted by FOIA…. Thus, the ‘commercial benefit’… element[] weigh[s] in favor of granting” a motion for fees). Accordingly, Plaintiff meets the third factor in support of its entitlement to fees.
4. Defendants’ Conduct Was Not Reasonable. The fourth factor “requires consideration of ‘whether the agency’s opposition to disclosure had a reasonable basis in law,’ and whether the agency ‘had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.’” CREW I, 820 F. Supp. 2d at 47 (quoting Davy, 550 F.3d at 1162). The government
10

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 16 of 26
agency must prove its “opposition to disclosure has a reasonable basis in law.” Id. (internal quotation marks omitted) (citations omitted). “The question is not whether [the claimant] has affirmatively shown that the agency was unreasonable, but rather whether the agency has shown that it had any colorable or reasonable basis for not disclosing the material until after [the claimant] filed suit.” Davy, 550 F.3d at 1163.
Here, Defendants had no reasonable legal basis for opposition to disclosure. Defendants took approximately five months to produce a mere two pages of records in response to Plaintiff’s FOIA request. See Dkt. No. 1, Ex. A; id., Ex. F. Plaintiff was forced to file suit to enforce its right to a legally adequate search and the release of responsive documents. See Dkt. No. 1. Failing to take action until after a claimant files suit “is exactly the kind of behavior the fee provision was enacted to combat.” Davy, 550 F.3d at 1163; see EPIC I, 811 F. Supp. 2d at 236 (“As the Circuit has explained, FOIA's fee provision is intended to incentivize the government to promptly turn over—before litigation is required—any documents that it ought not withhold. That purpose will be illserved if the government can prevail on [the reasonable basis] factor by saying nothing and forcing the requester to sue, only then to offer no resistance.” (quoting Davy, 550 F.3d at 1165 (internal quotation marks omitted) (alteration in original)).
Then, Defendants obdurately filed a meritless summary judgment motion. Dkt. No. 9. After reviewing Plaintiff’s opposition, Defendants voluntarily withdrew their summary judgment motion and agreed to engage in a search for responsive documents. Dkt. Nos. 12, 18. Had Defendants believed that they had performed a reasonable, adequate search for documents responsive to Plaintiff’s FOIA request, they would have
11

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 17 of 26
proceeded with their motion. Instead, after withdrawing their motion, they chose to engage in numerous conference calls and extensive correspondence with Plaintiff regarding search terms, office locations, redactions, and exemptions. Defendants would not have taken such steps if they had concluded their original actions were up to snuff. See Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec. (“Judicial Watch I”), 2009 WL 1743757, at *6, *8 (D.D.C. June 15, 2009) (recommending partial grant of fee award because agency failed to respond to claimant for three months before litigation and later released documents one day before it was to submit responsive pleading). Furthermore, they would not have made ten rolling productions, which resulted in the release of over 300 pages of documents, or filed numerous status reports in this matter regarding the adequacy of their search. Dkt. Nos. 20-25; 27-29; 31; 36; see EPIC I, 811 F. Supp. 2d at 236 (concluding that defendant failed to show that it acted according to law “when it initially withheld the hundreds of pages of documents that were ultimately produced to [EPIC] in the course of this litigation”). In this litigation, Defendants never even attempted to justify their refusal to produce documents until after Plaintiff opposed their first summary judgment motion, which supports a finding that Defendants lacked a reasonable basis in law for their actions. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice (“CREW II”), 2014 WL 4380292, at *5-*7 (D.D.C. Sept. 5, 2014) (adopting report and recommendation that defendant’s withholding was not reasonable when it provided no justification for refusal to release documents between filing of action and settlement negotiations). Because Defendants had no reasonable
12

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 18 of 26
basis in law for resisting Plaintiff’s FOIA request, Defendants cannot meet their burden under the fourth factor, which supports an award of fees in this matter.
C. Plaintiff is Entitled to Seek “Fees on Fees.” Plaintiff is also entitled to seek attorneys’ fees from its recent work related to its motion for fees. Such a request is allowed in this circuit. See EPIC II, 999 F. Supp. 2d at 69-70 (“[I]t is settled in this circuit that hours reasonably devoted to a request for fees are compensable.”) (internal quotation marks omitted). Furthermore, such a request has been granted in other FOIA cases in this district. Id.; see Judicial Watch, Inc. v. Dep’t of Justice (“Judicial Watch II”), 878 F. Supp. 2d 225, 240 (D.D.C. 2012); EPIC I, 811 F. Supp. 2d at 240 (“[H]ours ‘reasonably expended’ in preparing a fee petition are compensable.”). After this Court issued its opinion on March 21, 2014, granting Defendants’ second summary judgment motion, American Immigration Council, 2014 WL 1118353, Plaintiff sought to resolve the issue of attorneys’ fees without further litigation. Dkt. No. 49-1. These negotiations proceeded for approximately five months. Id. at 2. Then, on August 28, 2014, Defendants abruptly (and without warning) changed their position, asserting that they had no obligation to pay attorneys’ fees because Plaintiff had not filed a motion in accordance with Fed. R. Civ. P. 54. Dkt. No. 49-1, Ex. 8. Plaintiffs immediately moved for a briefing schedule regarding attorneys’ fees, which Defendants opposed. Dkt. Nos. 49 & 51. This Court granted Plaintiff’s motion on September 24, 2014. Dkt. No. 52.
13

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 19 of 26
Since the Court’s order, Plaintiff has again reached out to Defendants to see if they were interested in trying to resolve this issue out of court. To date, Plaintiff has received no definitive indication that Defendants wish to pursue such a resolution. Because of Defendants’ actions, Plaintiff had no choice but to seek relief from this Court on the issue of attorneys’ fees and to proceed with briefing. The law in this circuit allows Plaintiff to seek fees on fees, and Plaintiff requests that all such fees be awarded.
D. Plaintiff’s Fees and Costs are Reasonable. Upon determining that a claimant is both eligible and entitled to fees, the court must still “analyze whether the amount of the fee request is reasonable.” EPIC I, 811 F. Supp. 2d at 237. To achieve a reasonable attorneys’ fee amount, one usually multiplies “the hours reasonably expended in the litigation by a reasonable hourly fee, producing a lodestar amount.” Judicial Watch, Inc. v. U.S. Dep’t of Justice (“Judicial Watch III”), 774 F. Supp. 2d 225, 232 (D.D.C. 2011) (quoting Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (internal quotation marks omitted)); see Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”). When calculating the hours “reasonably expended in litigation,” “hours that are excessive, redundant, or otherwise unnecessary,” must be excluded. Hensley, 461 U.S. at 433-34. When considering a reasonable hourly fee, “the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel” must be examined. Blum v. Stenson, 465 U.S. 886, 895 (1984); see Nw. Coal.
14

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 20 of 26
for Alts. to Pesticides, 965 F. Supp. at 65 (“The appropriate hourly rate for public interest legal services organizations and for-profit firms engaged in public interest work is the ‘prevailing market rate.’” (citing Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988)).
In this Circuit, the Laffey Matrix4 is often used if counsel lacks a “customary billing rate[],” which is “a schedule of fees based on years of attorney experience.” Judicial Watch III, 774 F. Supp. 2d at 232; see Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995) (approving of use of Laffey matrix and affirming fee award calculated using it); Nw. Coal. for Alts. to Pesticides v. E.P.A., 421 F. Supp. 2d 123, 129 (D.D.C. 2006) (“In this Circuit, fee awards may be calculated based on the Laffey Matrix because, in the absence of a specific sub-market analysis of attorney fees, ‘use of the broad Laffey matrix may be by default the most accurate evidence of a reasonable hourly rate.’”) (quoting Covington, 57 F.3d at 1114 n.5). Furthermore, beyond using the Laffey Matrix as the prevailing market rates, courts have used the Laffey Matrix to assess whether billed rates are reasonable. See Dist. of Columbia v. R.R., 390 F. Supp. 2d 38, 41
4 Courts in this district have approved use of the updated Laffey Matrix, which factors in monthly data from the legal services index (“LSI”) of the Bureau of Labor Statistics’ Nationwide Consumer Price Index. Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, No. 11-754, slip op. at 9-10 (D.D.C. Aug. 4, 2014) (“[T]his Court has, for many years, accepted the appropriateness of and greater accuracy of rates based on the LSI Index [of the Laffey matrix].”); Salazar v. Dist. of Columbia, 2014 WL 342084, at *2 (D.D.C. Jan. 30, 2014) (“[T]he LSI-adjusted matrix… appears to be a more accurate reflection of the cost of legal services both in this community and nationwide.”); Eley v. Dist. of Columbia, 2013 WL 6092502, at *7-12 (D.D.C. Nov. 20, 2013). Accordingly, this motion applies figures from the “updated” Laffey Matrix.
15

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 21 of 26
(D.D.C. 2005); see also Cobell v. Norton, 407 F. Supp. 2d 140, 170 (D.D.C. 2005). See generally Nw. Coal. for Alts. to Pesticides, 965 F. Supp. at 65 n.4 (“The Laffey Matrix may be used to represent the prevailing market rate in a fee analysis for work performed by lawyers at a for-profit firm engaged in public interest work.”).
In this case, Plaintiff is seeking a total amount of $130,631.15 in attorneys’ fees. See Declaration of Michelle S. Grant (“Grant Decl.”), ¶¶ 11-13; id., Exs. A-B; Crow Decl., ¶¶ 14-16; id., Exs. A-B. This breaks down into $106,499.90 for the start of the case to the second summary judgment motion and $24,131.25 for its “fees on fees” efforts. See Grant Decl., ¶¶ 11-13; id., Exs. A-B; Crow Decl., ¶¶ 14-16; id., Exs. A-B.
1. The Hours Expended by Plaintiff Were Reasonable. Plaintiff expended a total of 266.35 hours before Defendants sought summary judgment a second time in this matter, and those hours were reasonable. See Grant Decl., ¶ 11; id., Ex. A; Crow Decl., ¶ 14; id., Ex. A. Plaintiff is not seeking attorneys’ fees for all of the hours expended in this litigation. In fact, Plaintiff has excluded the hours related to Defendants’ second summary judgment motion. Plaintiff excluded these hours because this Court granted summary judgment to Defendants, and Plaintiff would not be considered “eligible” for fees related to that motion under FOIA. 5 U.S.C. § 552(a)(4)(E)(i)(I). A substantial percentage of the hours expended on this matter went toward the first summary judgment motion. The hours expended by Plaintiff’s counsel were reasonable because Defendants filed a potentially dispositive motion seeking to end Plaintiff’s effort to seek responsive records. See Grant Decl., ¶ 5; id., Ex. A; Crow Decl.,
16

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 22 of 26
¶ 11; id., Ex. A. Plaintiff’s work was necessarily extensive, and resulted in Defendants’ withdrawal of their motion in order to undertake a reasonable search for documents.
The remaining hours were expended when the parties conferred about search parameters, produced documents, and asserted exemptions in an effort to narrow the issues to be litigated. See Grant Decl., ¶ 5; id., Ex. A; Crow Decl., ¶ 11; id., Ex. A. If Defendants had performed an adequate search and produced redacted documents in the first instance, then Plaintiff’s involvement in this process would have been significantly less time-consuming.
Furthermore, Plaintiff expended 60.1 hours related to fees on fees. See Grant Decl., ¶ 12; id., Ex. B; Crow Decl., ¶ 15; id., Ex. B. Again, Defendants’ actions required Plaintiff to expend additional, necessary hours in this matter. Defendants took a new asserted position regarding attorneys’ fees in August 2014, after months of negotiation to avoid further litigation. See Dkt. No. 49-1, Ex. 8. With Defendants’ abrupt position change, Plaintiff had no choice but to seek relief from this Court via a motion to set a briefing schedule regarding attorneys’ fees. Dkt. Nos. 49, 51. Had Defendants chosen to continue to negotiate with Plaintiff, there would have been no hours expended nor fees incurred.
Plaintiff has endeavored to limit the number of hours it expended in this matter. Had Defendants not filed (and withdrawn) their first summary judgment motion and had Defendants chosen to negotiate the issue of attorneys’ fees, Plaintiff would have expended fewer hours. Given the circumstances of this case, Plaintiff’s hours were reasonable.
17

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 23 of 26
2. The Hourly Rates of Plaintiff’s Counsel Were Reasonable. In adjudicating a motion for attorneys’ fees, the Court must consider “the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum, 465 U.S. at 895. Besides having its own non-profit counsel assist in this matter, Plaintiff was represented pro bono by Dorsey and Whitney LLP’s Minneapolis and D.C. offices.5 See Grant Decl., ¶ 6. Dorsey’s hourly rates are the normal, undiscounted rates that would be charged for any similar services performed for any other client. Id., ¶ 8. Courts have repeatedly held that Dorsey’s rates are in line with the prevailing rates in the community for similar services provided by lawyers of reasonably comparable experience, skill, and reputation. See Kennedy Bldg. Assoc. v. Viacom, Inc., Civil No. 99-1833 (JMR/FLN), Order Approving Magistrate’s Recommendation & Report and Recommendation & Report at 9 (D. Minn. Feb. 4, 2003, and Dec. 10, 2002) (awarding attorneys’ fees and costs after determining that Dorsey’s “requested rates [were] in line with community rates and [were] reasonable”); Macke v. Purechoice, Inc., 2009 WL 6327273, at *5 (Hennepin Cnty. Dist. Ct. Nov. 19, 2009) (concluding that “the hourly rates set forth in Dorsey’s affidavits are in line with those prevailing in the community for similar services by lawyers of reasonable comparable skill, experience, and reputation”), aff’d 2011 WL 69022 (Minn. Ct. App. Jan. 11, 2011); Olson v. Supervalu, Inc., Case No. 02-C9-07-1834, Mem. & Order, at iv (Anoka Cnty. Dist. Ct. July 22, 2009) (finding Dorsey’s rates reasonable and
5 All counsel from Dorsey and Whitney LLP listed in the tables are located in Minneapolis except Creighton Magid, who is in the D.C. office. See Grant Decl., ¶ 6.
18

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 24 of 26
stating that “the fees charged by Dorsey are in keeping with current market rates for a law firm of its representation and skill”); TestQuest, Inc. v. LaFrance, Case No. CT-02-1347, Mem. & Order at 1 (Hennepin Cnty. Dist. Ct. Apr. 9, 2003) (finding Dorsey & Whitney’s hourly rates were reasonable and awarding a Dorsey plaintiff attorneys’ fees and costs); see also Welk v. GMAC Mortg., LLC, 2012 WL 3260355, *4 n.5 (D. Minn. Aug. 8, 2012) (determining that attorneys’ fees requested by Dorsey & Whitney were reasonable after reviewing the attorneys’ submissions and noting that opposing counsel did not object to the amount requested).6
The Laffey Matrix confirms that Dorsey’s hourly rates are reasonable. See Grant Decl., ¶ 9. The Grant Declaration details the experience and skill level for each of the Dorsey attorneys who participated in this case; the rates of a majority of those attorneys are lower than the rates listed in the Laffey Matrix. Id. ¶¶ 7, 9, 10; see Nw. Coal. for Alts. to Pesticides, 965 F. Supp. at 66 (noting that Laffey Matrix “imposes the ‘upper limits’ of the prevailing market rates”).
Plaintiff’s in-house counsel requests that its fees be awarded based on the Laffey Matrix measured by the LSI Index of the CPI. See Crow Decl., ¶ 13. Moreover, declarations from an outside expert confirms that the LSI indexed version of the Laffey Matrix rates are in line with the prevailing market rates in the relevant community for similar services provided by lawyers of reasonably comparable experience, skill, and
6 Copies of the Olson, TestQuest, and Kennedy have been provided for the Court’s convenience. See Grant Decl., Exs. C-F.
19

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 25 of 26 reputation. See Declaration of David L. Sobel (“Sobel Decl.”), ¶ 6. To successfully demonstrate the inadequacy of Defendants’ initial document production and motion for summary judgment, Plaintiff required the diligent services of attorneys familiar with the immigration process and FOIA requests. See Declaration of Andres C. Benach (“Benach Decl.”), ¶¶ 6-10.
E. Plaintiff is Entitled to Costs. Pursuant to 5 U.S.C. § 552(a)(4)(E)(i), courts may award “reasonable attorney fees and other litigation costs reasonably incurred.” Plaintiff is seeking $469.06 in litigation costs in this matter, which include filing fees and process server fees. These fees were reasonably incurred, being necessary to this litigation, and such fees are typically awarded in this jurisdiction. See, e.g., Judicial Watch III, 774 F. Supp. 2d at 234 (awarding litigation costs); Judicial Watch I, 2009 WL 1743757, at *9 (awarding litigation expenses).
20

Case 1:11-cv-01972-JEB Document 53-1 Filed 10/17/14 Page 26 of 26

II. Conclusion

Plaintiff substantially prevailed in this litigation and is therefore entitled to

reasonable attorneys’ fees and litigation costs under 5 U.S.C. § 552(a)(4)(E). Based on

the above, Plaintiff respectfully requests that this Court award attorneys’ fees and costs in

the total amount of $131,100.21.

DATED: October 17, 2014

Respectfully submitted,

/s/ Michelle Grant Michelle Grant (Admitted Pro Hac Vice) DORSEY & WHITNEY LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402 (612) 3407883 (telephone) (612) 340-8800 (facsimile) grant.michelle@dorsey.com
Creighton R. Magid D.C. Bar #476961 DORSEY & WHITNEY LLP 1801 K Street, N.W., Suite 750 Washington, D.C. 20006 (202) 442-3000 (telephone) (202) 442-3199 (facsimile) magid.chip@dorsey.com
Melissa Crow D.C. Bar #453487 American Immigration Council 1331 G Street, N.W., Suite 200 Washington, D.C. 20005 (202) 507-7523 (telephone) (202) 742-5619 (facsimile) mcrow@immcouncil.org
Attorneys for Plaintiff

21

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL,
Plaintiff, v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 11-1972 (JEB)

MEMORANDUM OPINION In March 2011, American Immigration Council submitted a Freedom of Information Act request to Customs and Border Protection, a component agency of the Department of Homeland Security. AIC sought information about individuals’ access to counsel during their interactions with federal immigration authorities. Dissatisfied with the response to its request – the agency produced just two pages of records after six months of discussion – AIC filed suit in this court against CBP and DHS. Defendants then conducted a broader search, which ultimately produced at least 156 additional responsive documents. The merits litigation now completed, AIC moves for an award of attorney fees and costs. Because Plaintiff substantially prevailed in its suit and the multi-factor entitlement inquiry favors a fee award – at least for a portion of the underlying litigation – the Court will grant its Motion in part. AIC’s requested sum, however, will be reduced to account for various billing-related deficiencies.

1

I. Background
Past Opinions detail the full background of this suit, so the Court will recount here only
the facts relevant to the pending Motion for Attorney Fees. In March 2011, AIC submitted a
FOIA request to CBP asking for:
[A]ny and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:
• Attorneys’ ability to be present during their clients’ interactions with CBP;
• What role attorneys may play during their clients’ interactions with CBP;
• Attorney conduct during interactions with CBP on behalf of their clients;
• Attorney appearances at CBP offices or other facilities.
Mot., Exh. B (March 14, 2011, Letter from Emily Creighton to CBP’s FOIA Division) at 1
(footnote omitted). The request “include[d], but [was] not limited to” ten specific types of
records. Id. at 1-2.
After “consult[ing] with several component offices within CBP,” the agency’s FOIA
Division informed Plaintiff that “much of the information” it sought was “already publicly
available.” Compl., Exh. C (May 12, 2011, Letter from Dorothy Pullo to Emily Creighton) at 1.
The letter further stated that responsive information could be found online in one of three places:
the Code of Federal Regulations, the “Personal Search Handbook,” or the soon-to-be-released
“Inspector’s Field Manual.” Id.
2

Questioning the adequacy of Defendants’ search for responsive documents, Plaintiff immediately filed an administrative appeal. See Compl., Exh. D (May 26, 2011, Letter from Emily Creighton to CBP’s FOIA Appeals Division) at 2 (“The May 12, 2011, response merely includes general documents that are publicly available and does not reflect a search reasonably calculated to uncover documents relevant to the guidance outlined in the request.”). Upon receipt of this filing, the Appeals Division contacted three internal offices “in which responsive records were likely to have been created and be maintained” – namely, the Office of the Border Patrol (OBP), the Office of Field Operations (OFO), and the Office of Chief Counsel (OCC). See id., Exh. F (Sept. 29, 2011, Letter from Shari Suzuki to Emily Creighton) at 10. The cumulative efforts of those three offices produced just two pages of responsive records. See id., Exh. G (Excerpts from Agency Guidance Materials). The agency explained that it was “unable to provide [AIC] with any further information because no such information exists.” See Suzuki Letter at 10.
In November 2011, believing that Defendants had failed to comply with the obligations imposed by FOIA, AIC brought suit in this court. Shortly thereafter, Defendants filed their first Motion for Summary Judgment, maintaining that the search CBP had conducted was “reasonably calculated to uncover all information responsive to Plaintiff’s request.” ECF No. 9 (First Motion for Summary Judgment) at 10. AIC opposed the Government’s Motion, arguing that the agency had failed to adequately justify the limited nature of its search. See ECF No. 12 (First AIC Opposition). In particular, Plaintiff noted that Suzuki’s Declaration never explained why the three component offices searched were the only ones likely to contain responsive records, and that the Declaration lacked sufficient detail as to the search methods employed. See id. at 3-8.
3

AIC also highlighted a number of responsive documents likely to be in CBP’s possession that, inexplicably, had not been produced. See id. at 8-16.
After reviewing Plaintiff’s Opposition, Defendants withdrew their Motion. See ECF No. 18 (Notice of Withdrawal). Deeming it “in the best interest of this litigation” to “expand their search beyond the CBP offices originally believed to have responsive records,” Defendants agreed to “conduct a nationwide search of CBP offices for records responsive to Plaintiff’s FOIA request . . .[,] involv[ing] over 300 Ports of Entry, approximately 130 Border Patrol Stations and 20 Border Patrol Sectors, CBP Field Operations Offices as well as the following additional offices at CBP headquarters: Office of Training and Development, Office of Diversity and Civil Rights, Office of Policy and Planning, and Office of Executive Secretariat.” Id. at 2-3.
This ramped-up effort yielded a richer harvest of more than 300 documents, of which the Government subsequently released some in full, disclosed others in part, and withheld still others altogether pursuant to various FOIA exemptions. See ECF Nos. 20-25, 27-29, 31, 38 (status reports updating the Court on progress of production). During this period of rolling productions – which occurred between October 2012 and July 2013 – the parties frequently met and conferred regarding the adequacy of Defendants’ searches and the propriety of various redactions. See Mot. at 2. These conferences bore fruit: the Government subsequently produced certain records with fewer redactions, and AIC determined that it would no longer challenge the adequacy of the search. See id. at 2-3. Despite continued negotiations, however, the parties could not reach an agreement on the redactions contained in seven of the documents. With progress at a standstill, Defendants moved for summary judgment on the remaining documents, which the Court granted on March 21, 2014. See Am. Immigration Council v. United States Dep’t of Homeland Sec. (AIC I), No. 11-1972, 2014 WL 1118353 (D.D.C. Mar. 21, 2014).
4

Plaintiff now seeks to recover attorney fees and related expenses for the work its attorneys performed prior to Defendants’ Second Motion for Summary Judgment. The parties began negotiating such fees almost a year ago, back in April of 2014. On August 28, nearly five months after this discussion began and after multiple e-mails and conference calls, Defendants abruptly notified AIC that “[u]pon further reflection,” they “do[] not believe [AIC] is entitled to attorneys’ fees.” ECF No. 49 (Motion for Briefing Schedule), Att. 1 (Declaration of Melissa Crow), Exh. 8 (August 28, 2014, Letter from Marian Borum). The letter explained that because AIC had failed to file a motion for fees within fourteen days after the entry of judgment, as required by Federal Rule of Civil Procedure 54(d)(2)(B)(i), “Defendant considers this matter closed.” Id.
Taken aback by the Government’s sudden change of heart, AIC immediately filed a Motion to set a briefing schedule to resolve the issue of attorney fees. See ECF No. 49. Agreeing with Plaintiff that Rule 54 poses no bar to an attorney-fee award in this case, the Court granted the Motion. See ECF No. 52 (Memorandum Opinion & Order) (AIC II). With briefing now complete, the Court turns to the merits of AIC’s request. II. Analysis
FOIA provides that courts “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case . . . in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i); see Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011). “This language naturally divides the attorney-fee inquiry into two prongs, which our case law has long described as fee ‘eligibility’ and fee ‘entitlement.’” Brayton, 641 F.3d at 524 (citing Judicial Watch, Inc. v. Dep’t of Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). The Court, therefore, first decides whether AIC has
5

“substantially prevailed” and is therefore “eligible” to receive fees. See id.; Judicial Watch, 470 F.3d at 368; Negley v. FBI, 818 F. Supp. 2d 69, 73 (D.D.C. Oct. 11, 2011). If so, the Court must then “consider[] a variety of factors” to determine whether it is “entitled” to fees. Brayton, 641 F.3d at 524-25; Judicial Watch, 470 F.3d at 369; Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008). Put another way, the Court will first determine whether AIC may receive fees; if so, it will then decide whether it should receive them. See Brayton, 641 F.3d at 524. Finally, upon determining that AIC is both eligible and entitled to fees, the Court must “analyze whether the amount of the fee request is reasonable.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (EPIC I), 811 F. Supp. 2d 216, 237 (D.D.C. 2011).
A. Eligibility A FOIA “complainant has substantially prevailed” and, consequently, is eligible for a fee award if it “has obtained relief through either – (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). AIC invokes the latter subsection as the basis for its fee request. The key question under this aptly named “catalyst theory” is whether “the institution and prosecution of the litigation cause[d] the agency to release the documents obtained during the pendency of the litigation.” Church of Scientology of Cal. v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981); see also Davis v. DOJ, 610 F.3d 750, 752 (D.C. Cir. 2010) (“FOIA plaintiffs [are] eligible for a fee award if the lawsuit substantially caused the agency to release the requested records,” regardless of whether the plaintiff obtained any courtordered relief.). To recover fees, “a litigant must . . . show[ ] that the lawsuit was reasonably necessary and the litigation substantially caused the requested records to be released.” Burka v. HHS, 142
6

F.3d 1286, 1288 (D.C. Cir. 1998). Although “the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation,” Weisberg v. DOJ, 745 F.2d 1476, 1496 (D.C. Cir. 1984), it is nonetheless a “‘salient factor’ in the analysis.” EPIC I, 811 F. Supp. 2d at 232 (citation omitted); accord Pub. Law Educ. Inst. v. DOJ, 744 F.2d 181, 184 n.5 (D.C. Cir. 1984) (“While the temporal relation between [a] FOIA action and the release of documents may be taken into account in determining the existence vel non of a causal nexus, timing, in itself or in conjunction with any other particular factor, does not establish causation as a matter of law.”). If, instead of “the threat of an adverse court order . . .[,] an unavoidable delay accompanied by due diligence in the administrative process was the actual reason for the agency’s failure to respond to a request, then it cannot be said that the complainant substantially prevailed in [its] suit.” Church of Scientology of Cal., 653 F.2d at 587.
In opposing Plaintiff’s eligibility for fees, Defendants principally contend that no change in agency position occurred as a consequence of the litigation. According to CBP, it has consistently and “steadfastly” striven to produce responsive records since the moment it received AIC’s FOIA request. See Opp. at 10-11. The agency says it made a “good faith effort to search out material” prior to Plaintiff’s initiation of this suit, and its decision to “cast a wider net and conduct even more searches” upon realizing that additional responsive documents might exist is consistent with its earlier approach. See id. at 11.
The facts, however, speak for themselves – and they do not speak in Defendants’ favor. The agency produced not a single document in response to AIC’s initial FOIA request, instead informing Plaintiff that “much of the information it sought” was publicly available online. See Pullo Letter at 1. Even after Plaintiff filed an administrative appeal, the agency produced a mere
7

two pages of records, stating that it was “unable to provide [AIC] with any further information because no such information exists.” Suzuki Letter at 2.
It was plainly reasonable for Plaintiff to conclude at that point – in light of CBP’s initial response and its subsequent disposition of the administrative appeal – that no further material would be released absent judicial involvement. Indeed, the agency had emphatically declared in no uncertain terms that no additional responsive material existed. Cf. Judicial Watch, Inc. v. U.S. Dep’t of Justice, 878 F. Supp. 2d 225, 232 (D.D.C. 2012) (“[I]t was reasonable for Judicial Watch to believe that the records would not be unconditionally released absent a lawsuit, given the DOJ’s initial invocation of Exemptions 5 and 7 in response to Judicial Watch’s FOIA request.”).
AIC, accordingly, filed suit. Even then CBP held fast to its position that it had conducted an adequate search and released all responsive documents, going so far as to move for summary judgment on the issue. In a Declaration accompanying that Motion, Suzuki again averred that CBP was “unable to provide further responsive information to the Plaintiff because no such information exists.” First Mot. for Summary Judgment, Att. 1 (Declaration of Shari Suzuki) at 10-11.
Not until after AIC filed its Opposition did the Government change its tune. That is, after Plaintiff expended significant time and energy spelling out the deficiencies in CBP’s search efforts, Defendants withdrew their initial Motion for Summary Judgment and agreed to conduct a significantly expanded “nationwide search of CBP offices for records responsive to Plaintiff’s FOIA request.” Notice of Withdrawal at 2. That augmented search, of course, led to the rolling production of over 300 documents, at least 156 of which Defendants admit were directly responsive to AIC’s initial request. See Opp. at 6.
8

It is baffling – and hardly helpful to their credibility here – that Defendants still adamantly assert that no change in position occurred during the pendency of the litigation. On the contrary, Defendants’ release of at least 156 additional responsive documents manifests a 180-degree reversal from their initial position that no further responsive records existed. The sequence of events – as well as the Government’s representations throughout – makes clear, moreover, that Plaintiff’s lawsuit served as a necessary catalyst for the agency’s release of this significant body of responsive material. Indeed, this Court recognized as much in an earlier opinion. See AIC I, 2014 WL 1118353, at *1 (AIC’s “suit apparently prompted Defendants to conduct a more thorough search.”). Because Plaintiff has amply demonstrated that CBP would not have released these spoils absent the threat of an adverse judgment, it has “substantially prevailed” and is eligible for fees. See Dasilva v. U.S. Citizenship & Immigration Servs., No. 13-13, 2014 WL 775606, at *3 (E.D. La. Feb. 24, 2014) (“[P]laintiff is eligible to receive attorney’s fees because this set [of records] was disclosed after approximately five months and, more importantly, after defendant submitted a declaration, sworn under penalty of perjury, to the effect that all documents had already been disclosed and defendant then reconsidered its position after plaintiff moved for summary judgment.”).
Not inclined to go gently into that good night, Defendants raise three further objections, none of which has merit. They first emphasize their substantial efforts to cooperate with Plaintiff after withdrawing their original Motion for Summary Judgment. See Opp. at 6, 11-12. The Court applauds, as it did in its previous Opinions, the Government’s accommodating conduct and both parties’ attempts to narrow the dispute without undue court involvement. But the fact that Defendants went above and beyond after the filing of suit and an initial round of summaryjudgment briefing hardly supplants the inadequacy of their efforts prior to that point.
9

Defendants’ assertion that they emerged victorious on their Second Motion for Summary Judgment, see id. at 12, while indisputably correct, is also beside the point. To be eligible for fees, a complainant must only substantially – not completely – prevail. That the Court ultimately acquiesced to Defendants’ withholdings in seven documents does not mean that AIC is stripped of its eligibility for fees. Because Plaintiff’s suit caused CBP to release at least 156 responsive records – 154 more than they produced before litigation ensued – AIC “substantially prevailed” as a result of bringing suit. As mentioned earlier, moreover, Plaintiff does not seek remuneration for the time spent opposing the Government’s Second Motion.
Finally, to the extent Defendants invoke the agency’s good faith in responding to AIC’s request, they similarly miss the mark. Although bad faith on the part of the Government can be relevant to whether a complainant substantially prevailed, see Weisberg, 745 F.2d at 1496, it is in no sense necessary. The eligibility inquiry focuses on whether a plaintiff obtained relief – i.e., his requested records – through litigation. AIC has satisfied that inquiry here. Whether the agency’s initial shortcoming resulted from bad faith, laziness, or human error is of no moment.
B. Entitlement The Court now asks whether AIC is “entitled” to an award of fees. In doing so, it again notes that Plaintiff does not seek fees for the hours it expended opposing Defendants’ Second Motion for Summary Judgment. The Court will thus limit its analysis to the preceding phase of the litigation. The goal of the entitlement inquiry is to ensure that attorney fees are distributed in a manner consistent with the purpose of FOIA’s fee provision, which “‘was not enacted to provide a reward for any litigant who successfully forces the government to disclose information it wished to withhold.’” Davy, 550 F.3d at 1158 (quoting Nationwide Bldg. Maint.,
10

Inc. v. Sampson, 559 F.2d 704, 711 (D.C. Cir. 1977) (citing S. REP. NO. 93-854, at 17 (1974))). Instead, it serves the “more limited purpose” of “remov[ing] the incentive for administrative resistance to disclosure requests based not on the merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation.’” Id. (quoting Nationwide, 559 F.2d at 711 (citing S. REP. NO. 93-854, at 17)).
With this purpose in mind, the Court must make a determination as to attorney-fee entitlement by considering at least four different factors: “(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding of the requested documents.” Id. at 1159; see also Tax Analysts v. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992); Negley, 818 F. Supp. 2d at 72. No one criterion is dispositive, see Davy, 550 F.3d at 1159, and “[t]he sifting of those criteria over the facts of a case is a matter of district court discretion.” Tax Analysts, 965 F.2d at 1094 (citing Church of Scientology v. Harris, 653 F.2d 584, 590 (D.C. Cir. 1981)). The Court here will begin with the second and third factors, then move to the first, and finish with the fourth.
1. Factors Two and Three Factors (2) and (3) – the “commercial benefit” and “plaintiff’s interest” factors, which “are closely related and often considered together” – favor AIC. Tax Analysts, 965 F.2d at 1095. Plaintiff is a nonprofit organization whose “mission is to educate the American public about immigrants’ contributions to American society, to promote sensible and humane immigration policy, and to advocate for the just and equitable enforcement of immigration laws.” Compl., ¶ 8; see EPIC I, 811 F. Supp. 2d at 235 (“Fee recovery is often appropriate . . .
11

when the plaintiff is a nonprofit public interest group.”). In keeping with its mission, AIC has long focused on access-to-counsel issues. Specifically, it “educate[s] the immigration bar about the relevant laws, advocat[es] for fair standards and procedures to remedy ineffective assistance of counsel, and encourag[es] better access to counsel in proceedings before DHS and its agencies, including CBP.” Id. Plaintiff’s FOIA request in this case – which sought information about individuals’ access to counsel during their interactions with federal immigration authorities – sprung directly from these public-minded aspirations.
AIC, moreover, disseminates to the public the records it acquires through FOIA requests. See, e.g., Mot. at 9 (“Plaintiff summarized, indexed, and posted Defendants’ documents on its website, allowing the public to access and examine these documents free of charge.”). As an entity that “‘gathers information of potential interest to a segment of the public, uses [its] editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience,’” AIC is “among those whom Congress intended to be favorably treated under FOIA’s fee provision.” Davy, 550 F.3d at 1161-62 (quoting Tax Analysts, 925 F.2d at 1095); see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (EPIC III), 999 F. Supp. 2d 61, 69 (D.D.C. 2013) (“These [second and third] factors also favor non-profit organizations like EPIC, which aim to ferret out and make public worthwhile, previously unknown government information – precisely the activity that FOIA’s fees provision seeks to promote.”) (internal quotation marks omitted).
The Government essentially concedes that both of these factors favor Plaintiff. It does not address the third factor at all, and it makes only the most cursory of arguments with regard to the second. Notwithstanding the fact that AIC has disseminated the material free of charge on its website, Defendants maintain that it could potentially garner a commercial benefit from
12

its request. See Opp. at 16 n.8. They point to the appeal for donations posted on AIC’s website, arguing that the requested records might drive increased traffic to the site and thus bolster donations. See id. It is precisely because Plaintiff is a nonprofit organization that does not commercially benefit from its work, however, that it must solicit donations on its website in order to survive. A possible increase in such donations as a result of a successful, interestprovoking FOIA request does not constitute a commercial benefit or a “private advantage,” Davy, 550 F.3d at 1160, that weighs against granting a fee award. The Court would be remiss, moreover, if it failed to note that Defendants’ current stance flatly contradicts the position it took when granting Plaintiff’s request for a fee waiver. There, the agency expressly found that “AIC did not have a commercial interest that would be furthered by release of the information requested.” Suzuki Letter at 8. That earlier conclusion was the correct one, and the Court affirms it here.
2. Factor One Like factors two and three, the first factor – the “public benefit derived from the case” – also militates in AIC’s favor. This factor “requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought.” Davy, 550 F.3d at 1159. In evaluating this criterion, it is important to note that “[t]he simple disclosure of government documents does not satisfy the public interest factor.” Alliance for Responsible CFC Policy, Inc. v. Costle, 631 F. Supp. 1469, 1471 (D.D.C. 1986) (citing Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)). Instead, the Court must determine whether “the complainant’s victory is likely to add to the fund of information that citizens may use in making vital political choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995) (quoting Fenster, 617 F.2d at 744) (internal quotation marks omitted).
13

AIC’s FOIA request concerned a matter of undeniable public import. Plaintiff sought information on “policies regarding a noncitizen’s access to counsel in interactions with [CBP and DHS].” Creighton Letter at 1. Immigration policy – including treatment of noncitizens seeking entry to this country – has long been at the forefront of the national conversation. See generally, e.g., R.I.L-R v. Johnson, No. 15-11, 2015 WL 737117 (D.D.C. Feb. 20, 2015); Wil S. Hylton, The Shame of America’s Family Detention Camps, N.Y. Times Magazine MM25 (February 8, 2015), available at http://www.nytimes.com/2015/02/08/magazine/the-shame-of-americasfamily-detention-camps.html?_r=0 (describing conditions in family detention centers). Access to counsel is a significant aspect of this discourse, and the requested documents were plainly intended to enlarge and inform that debate. See EPIC III, 999 F. Supp. 2d at 68 (finding public benefit “was exceptional” because documents obtained were related “to a matter subject to an ongoing national debate: the tension between individual privacy interests and the nationalsecurity needs of our government in the digital age”).
The Government released over 300 documents as a result of Plaintiff’s request. See Mot. at 2; Opp. at 6. AIC then summarized those documents and posted them on its website, which receives more than 112,000 average monthly page views. See Mot. at 7. Such widespread dissemination of the fruits of the request cements a public-benefit finding here. See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (EPIC II), 892 F. Supp. 2d 28, 50-51 (D.D.C. 2012) (holding that public-benefit factor weighed in favor of FOIA plaintiff when records were posted to plaintiff’s website and in its newsletter that over 8000 people received); see also Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice (CREW I), 820 F. Supp. 2d 39, 46-47 (D.D.C. 2011) (noting that availability of requested documents on plaintiff’s various websites weighed in favor of public-benefit factor).
14

Defendants attempt to circumvent this relatively straightforward conclusion by arguing that the requested documents are of interest only to a “relatively small segment of the population” – noncitizens, “whose specific numbers cannot be quantified,” and immigration attorneys, “a small community of attorneys practicing in a niche area of the law.” Opp. at 14. The Court disagrees. As previously explained, the issue of noncitizens’ access to counsel is an important component of a vigorous political debate over immigration and is, therefore, of widespread public interest. Perhaps even more telling are the Government’s prior inconsistent statements. In granting AIC’s request for a fee waiver, CBP recognized that “[i]mmigration has been and continues to be a significant issue in the United States,” that AIC has “expertise in the subject area and the ability and intention to effectively disseminate the information to the public,” and that the requested disclosures “were likely to contribute to the understanding of a reasonably broad audience of persons interested in immigration issues.” Suzuki Letter at 6-7. Defendants cannot retreat from this conclusion in order to avoid paying attorney fees.
3. Factor Four The fourth factor – the reasonableness of the agency’s withholding – is a closer call. This factor requires consideration of “whether the agency’s opposition to disclosure ‘had a reasonable basis in law,’ Tax Analysts, 965 F.2d at 1096, and whether the agency ‘had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior,’ LaSalle Extension, 627 F.2d [481,] 486 [(D.C. Cir. 1980)].” Davy, 550 F.3d at 1162. Significantly, the burden remains with the agency: “The question is not whether [Plaintiff] has affirmatively shown that the agency was unreasonable, but rather whether the agency has shown that it had any colorable or reasonable basis for not disclosing the material until after [Plaintiff] filed suit.” Id. at 1163.
15

The Court recognizes that CBP expended a significant amount of effort and resources searching through documents, particularly after the initial round of summary-judgment briefing. It might even be fair to say that – after withdrawing its initial Motion – the Government surpassed the call of duty in searching for documents that might be of interest to Plaintiff. See ECF Nos. 34, 36 (status reports detailing Defendants’ search efforts). For example, at the request of Plaintiff’s counsel, Defendants conducted additional searches at ten ports of entry chosen by AIC, using six specific search terms identified by the organization. See Opp. at 11.
This yeoman’s work, however, is immaterial to CBP’s failure to cast a wider net in response to Plaintiff’s initial request. The agency has not satisfactorily explained why its earlier efforts were so cabined, nor shown “beyond material doubt” that those limited searches were “reasonably calculated to uncover all relevant documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325-26 (D.C. Cir. 1999) (internal citation and quotation marks omitted). Indeed, in justifying its initial decision to search only three CBP component offices, it said only that “responsive records were likely to have been created and be maintained” in those offices, not that they were the only locations likely to contain such records. See Suzuki Letter at 10; Suzuki Decl., ¶ 14; see Elkins v. Fed. Aviation Admin., No. 14-476, 2014 WL 4243152, at *4 (D.D.C. Aug. 28, 2014) (“[A]n agency’s attestation that it has searched all offices likely to contain responsive records is sufficient justification for its decision to limit its search to certain locations.”) (emphasis added).
In any event, the Court need not dwell too long on the reasonableness of Defendants’ actions. The D.C. Circuit “has repeatedly asserted that ‘the court must be careful not to give any particular factor dispositive weight.’” Campaign for Responsible Transplantation v. Food & Drug Admin., 593 F. Supp. 2d 236, 244 (D.D.C. 2009) (quoting Sampson, 559 F.2d at 714).
16

The only time when the fourth factor would control is “when the agency has demonstrated that it had a lawful right to withhold disclosure.” Davy, 550 F.3d at 1159; see also Chesapeake Bay Found., Inc. v. Dep’t of Agric., 11 F.3d 211, 216 (D.C. Cir. 1993) (“[T]here can be no doubt that a party is not entitled to fees if the Government’s legal basis for withholding requested records is correct.”), abrogated in part on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 601-02 (2001). AIC’s success on the first three factors, combined with some degree of success on the fourth, is more than sufficient to establish its entitlement to fees. See CREW I, 820 F. Supp. 2d at 47-48.
C. Calculating Fees Having determined that AIC is entitled to an award of attorney fees, the Court must now calculate the precise size of that award. The “usual method of calculating reasonable attorney’s fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel and Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986)). That number may then be adjusted to reflect “the significance of the overall relief obtained by the plaintiff.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 774 F. Supp. 2d 225, 233 (D.D.C. 2011). Plaintiff requests $106,499.90 in fees for the underlying litigation. It further requests $24,131.25 in “fees on fees” – i.e., for work on this Motion for Attorney Fees. Defendants take issue with both the hourly rates assessed and the number of hours billed. The Court considers each variable in turn and then forges ahead with the necessary computations.
17

1. Reasonable Hourly Rates Almost a dozen attorneys represented Plaintiff in this case. In addition to three in-house counsel who worked on the matter, AIC received pro bono representation from eight attorneys employed by a national law firm, Dorsey & Whitney LLP. Those attorneys have provided a table of their normal, undiscounted hourly rates for the years worked on this matter:

Table A: Established Dorsey Rates

Timekeeper

Law School 10/2010- 10/2011- 10/2012- 10/2013- 10/2014Graduation 9/2011 9/2012 9/2013 9/2014 9/2015

Creighton Magid

1987

(Partner)

555

570

595

620

650

Theresa Bevilacqua

2001

(Partner)

390

400

410

430

455

Michelle Grant (Partner)

2001

390

400

410

440

465

Erin Davenport (Associate)

2008

255

275

305

340

375

Shannon Bjorklund

2009

(Associate)

235

265

295

340

370

Andrew Brantingham 2009 (Associate)

235

265

295

340

370

Michael Stinson

2011

(Associate)

210

235

260

295

325

Katherine Arnold

2013

--

--

--

250

280

(Associate)

Mot., Exh. A (Declaration of Michelle Grant), ¶¶ 6-8. Defendants do not oppose their application in this case. See Opp. at 22 (Defendants “have no significant quarrels about the hourly rates Dorsey has proposed.”). The Court, accordingly, adopts those rates wholesale. See Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 24 (D.C. Cir. 1984) (applying a firm’s “established rates” because they “represent the opportunity cost of what the firm turned away in

18

order to take the litigation”), overruled on other grounds by Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988) (en banc).
Lest one believe that amity prevails on the rate issue, the parties hotly dispute the appropriate hourly rates for the trio of attorneys from AIC who worked on this case. To calculate fees for public-interest attorneys who have no customary hourly rates, courts often look to prevailing market rates in the community. See Blum v. Stenson, 465 U.S. 886, 896-97 (1984); Local 25, 136 F.3d at 800-01. In fleshing out those rates, this Circuit has frequently employed the Laffey Matrix, “a schedule of fees based on years of attorney experience that was developed in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d on other grounds, 746 F.2d 4 (D.C. Cir. 1984).” ACLU v. Dep’t of Homeland Sec., 810 F. Supp. 2d 267, 277 (D.D.C. 2011) (quoting Judicial Watch, 774 F. Supp. 2d at 232).
This merely frames, but does not resolve, the issue. That is because the parties in this case advance dueling matrices. AIC argues that its in-house attorneys should be awarded fees based on an updated Laffey Matrix developed by economist Dr. Michael Kavanaugh. See Reply at 14, 20. To build his matrix, Kavanaugh took a sample of legal-services costs from 1989 and adjusted them using the Legal Services Index (LSI) constructed by the Department of Labor. See id.; see also Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice (CREW II), No 11-1021, slip op. at 15-16 (D.D.C. Oct. 24, 2014). In recent years, various courts in this district (including this one) have approved use of this so-called “LSI Matrix.” See Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, No. 11-754, slip op. at 9-10 (D.D.C. Aug 4, 2014) (“[T]his Court has, for many years, accepted the appropriateness of and greater accuracy of rates based on the LSI Index [of the Laffey matrix].”); Salazar v. Dist. of Columbia, 991 F. Supp. 2d 39, 48 (D.D.C. Jan. 30, 2014) (“[T]he LSI-adjusted matrix . . .
19

appears to be a more accurate reflection of the cost of legal services both in this community and nationwide.”); accord Eley v. Dist. of Columbia, 999 F. Supp. 2d 137,154 (D.D.C. Nov. 20, 2013).
Defendants counter, however, that the LSI-indexed version of the Laffey Matrix results in “overly generous rates, comparable to or exceeding the very top rates in the D.C. legal market.” Opp. at 23 (pointing out that “the hourly rate for the work one AIC attorney performed, from June 2013 to the present, is from $121 to $139 more than the highest rate for the senior partner at the Dorsey law firm who worked on this case, and who has over twenty-five years of experience”). They urge the Court to look instead to the Laffey Matrix maintained by the U.S Attorney’s Office for the District of Columbia. This matrix is based on 1982 rates and adjusted using the “All-Items Regional [Consumer Price Index],” also constructed by the Department of Labor. See CREW II, slip op. at 16. According to Defendants, this CPI Matrix “better tracks the actual inflation of the legal market for complex federal litigation in D.C.” Opp. at 25. They further note that the U.S. Attorney’s Office, which prepares and issues the CPI matrix, was not involved in the cases adopting the LSI Matrix, and “it appears that critical information” was thus “not presented to the Court in those cases.” Id.
Thankfully, this hornets’ nest need not be poked here. Instead, in the interest of both efficiency and fairness, the Court will treat Dorsey’s rates as a yardstick by which to gauge suitable rates for the in-house AIC attorneys. See Rosie D. ex rel. John D. v. Patrick, 593 F. Supp. 2d 325, 330-31 (D. Mass. 2009) (“[T]he court will award the rates actually requested by the WilmerHale lawyers. . . . The hourly rates established for the WilmerHale group provide a benchmark for the hourly rates applicable to the public interest attorneys who also worked on the case.”). Dorsey’s rates reflect a private firm’s market-based assessment of the value of its time
20

for the precise work performed in this case, and they have been universally endorsed by Plaintiff, Defendants, and even other courts. There is no cause to ignore this tailor-made framework for appropriate hourly rates.
So, to calculate reasonable hourly rates for Melissa Crow, an AIC attorney who graduated law school in 1994, see Mot., Exh. B (Declaration of Melissa Crow), ¶ 13, the Court averages the rates charged by Dorsey’s Creighton Magid (a 1987 graduate) and Theresa Bevilacqua (a 2001 graduate). See Grant Decl., ¶ 9. AIC’s Beth Werlin, who graduated in 2000, see Crow Decl., ¶ 13, is entitled to the same hourly rates as Dorsey’s Michelle Grant, an attorney of roughly comparable experience. See Grant Decl., ¶ 9. And AIC’s Kristin MacLeod-Ball, who graduated in 2012, see Crow Decl., ¶ 13, will be assigned the same rates as Dorsey’s Michael Stinson. See Grant Decl., ¶ 9. Those adjusted rates are memorialized in the following table:

Timekeeper
Melissa Crow Beth Werlin
Kristin MacLeod-Ball

Table B: AIC Adjusted Rates

Law School 10/2010- 10/2011- 10/2012Graduation 9/2011 9/2012 9/2013

1994

472.5

485

502.5

2000

390

400

410

2012

--

--

260

10/2013 -9/2014
525 440 295

10/2014 -9/2015 552.5
465 325

2. Hours Reasonably Expended Defendants next raise a pastiche of objections to the number of hours billed by AIC’s attorneys. They argue that the number of attorneys involved in the case was “excessive,” and that the billing records reflect duplication of effort. See Opp. at 33. They further maintain that Plaintiff should not recover for work performed at the administrative stage; for work related to pro hac vice motions; or for the review of documents produced in response to its FOIA request. See id. at 35-36, 40. In similar fashion, they contend that certain billing entries are insufficiently

21

detailed, that Plaintiff’s attorneys logged too much time drafting certain filings, and that the fees sought are simply too high in light of AIC’s settlements with other agencies. See id. at 38, 4145. Finally, they assert that the number of hours expended in litigating the issue of attorney fees – i.e., fees on fees – was unreasonable. See id. at 35.
The Court takes up these objections seriatim. Ultimately, it finds some of Defendants’ broader concerns to be justified and reduces the fee award accordingly. It declines, however, to engage in the kind of “nitpicking” invited by CBP’s smaller-scale objections. CREW I, 825 F. Supp. 2d at 229; accord Baker v. D.C. Public Schools, 815 F. Supp. 2d 102, 109, 2011 WL 4507251, at *4 (D.D.C. 2011) (citing Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1337-38 (D.C. Cir. 1982)).
a. Number of Attorneys As noted, eight attorneys from Dorsey and another three from AIC participated in this litigation. That number, Defendants say, is patently excessive. See Opp. at 33. They are correct. Nothing about this case is so complex as to require so many hands on deck; on the contrary, having eleven attorneys working on and billing their time in a non-extraordinary FOIA case seems beyond the pale. Overstaffing this case, moreover, led to overbilling. Plaintiff’s time sheets are replete with conferences among co-counsel attempting to coordinate case strategy and instances in which multiple attorneys billed for performing the same task. See, e.g., Grant Decl., Exh. A (entries dated 10/19/11 and 5/20/13). This redundancy in attorney structure must be accounted for in determining an appropriate fee award. It is unnecessary – and a waste of judicial resources – however, to scrutinize each individual billing entry. See Copeland, 641 F.2d at 903. Instead, the Court will reduce AIC’s total fee award by 25% as a commensurate counterweight to the surplus of attorneys. See, e.g.,
22

Davis Cnty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 761 (D.C. Cir. 1999) (per curiam) (reducing sought fees by approximately 50%, citing as one reason the “unusually high number of attorneys reviewing and editing briefs”); Smith v. D.C., 466 F. Supp. 2d 151, 158-59 (D.D.C. 2006) (concluding that a 25% across-the-board reduction in fees was appropriate to account, in part, for “significant overstaffing”).
b. Administrative Work, Pro Hac Vice Motions, and Document Review In its Motion, Plaintiff sought fees for work performed at the administrative stage of litigation, in addition to work associated with filing pro hac vice motions. In response to Defendants’ objections, AIC conceded both requests. See Reply at 23. The Court will follow suit and exclude those amounts. On the other hand, Plaintiff preserved its request for fees incurred in reviewing the records ultimately produced by CBP. It claims that such compensation is warranted because it “was forced to determine whether the documents were relevant to its request, whether Defendants’ search terms were yielding adequate results, and whether Defendants’ asserted exemptions were appropriate.” Reply at 21. This Court has held, however, that a “[p]laintiff is not entitled to recover for time spent reviewing the documents it instituted [a] lawsuit to obtain.” CREW I, 825 F. Supp. 2d at 231. FOIA provides that a plaintiff may recover “attorney fees and other litigation costs reasonably incurred in any case.” 5 U.S.C. § 552(a)(4)(E)(i) (emphasis added). This case concerned AIC’s demand for and CBP’s nonproduction of certain documents. AIC received the relief it sought when the documents were produced, and “[t]he time [it] expended reviewing the documents . . . [was] a post-relief activity, separate from the litigation.” CREW I, 825 F. Supp. 2d at 232 (internal quotation marks omitted); see also Steenland v. CIA, 555 F. Supp. 907, 911 (W.D.N.Y. 1983) (compensation for work performed after records were
23

released “would assess a penalty against defendants which is clearly unwarranted”). Indeed, Plaintiff would have had to expend this time had CBP timely produced the documents without litigation; the cost of reviewing documents produced in response to a FOIA request – to see if they are responsive or for other reasons – is simply the price of making such a request. The Court will thus deduct these charges as well.
c. Block Billing, Excessive Hours on Filings, and Settlement Evidence Defendants challenge the hours billed in the underlying litigation in three further respects. None holds water. First, they argue that Plaintiff provided insufficient information or engaged in “block billing” practices in “several” entries. See Opp. at 39, 44. A survey of Plaintiff’s billing entries reflects, however, that the vast majority are appropriately detailed and allow the Court to discern “with a high degree of certainty” the work for which the attorney is requesting compensation. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970, 975 (D.C. Cir. 2004). No reduction is warranted to account for a handful of entries that could have perhaps benefitted from slightly more detail. Second, Defendants argue that Plaintiff’s attorneys spent an excessive amount of time drafting certain filings. Specifically, they take issue with the 19 hours logged on the Complaint and the 73.75 hours spent on opposing the initial Motion for Summary Judgment. See Opp. at 41-42. The Court is loath to “‘conduct a minute evaluation of each phase or category of counsel’s work.’” Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (quoting Lindy Bros. Builders of Philadelphia v. Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976)). Although the number of hours expended here seems slightly high at first blush, it is not outrageously so. Because the Government vigorously and substantively litigated this case, moreover, the Court is satisfied by Plaintiff’s representations that the time spent preparing
24

each filing was reasonably necessary. Any overbilling that resulted from overstaffing and redundancy, furthermore, has already been accounted for by the 25% reduction authorized in Section II.C.2.a, supra.
Third, the Government notes that Plaintiff filed a nearly identical FOIA request against U.S. Citizen and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE). In the USCIS matter, the parties ultimately settled fees and costs for $45,000, and, in the ICE matter, the parties settled for $35,000. These amounts, claims the Government, are evidence that the threefold increase in Plaintiff’s request here is “excessive and unreasonable.” Opp. at 45. Defendants’ argument compares apples to oranges. Of course, parties routinely settle cases for less than their true value – that is, at a discount – to account for the elimination of risk and uncertainty and energy expended that inhere in further litigation. That is the very nature of settlement. Here, Defendants were given numerous opportunities to settle this matter but rejected all of them, including AIC’s most recent attempt after this Court issued its September 24, 2014, Opinion allowing briefing on fees to proceed. See Reply, Exh. A (Second Declaration of Michelle Grant), ¶ 2. The Government cannot now insist that any fee award be anchored to the amount Plaintiff settled for in other comparable cases. AIC is entitled to seek all amounts reasonably billed.
d. Fees on Fees Finally, Defendants challenge the hours Plaintiff logged in litigating the attorney fee issue – 52.05 – as unreasonably high. In one major respect, the Court sides with the Government. As noted above, see Part II.C.2.a, this entire case suffered from significant overstaffing, including AIC’s motion practice on the issue of fees. The 25% across-the-board haircut will, therefore, be applied to this aspect of Plaintiff’s request as well.
25

Insofar as the Government asks that the hours associated with AIC’s fees-on-fees work be further reduced, the Court disagrees. Plaintiff initially sought to resolve the issue of attorney fees without further judicial involvement. It was Defendants who – five months after the start of negotiations – reversed course and necessitated a motions practice on this issue. In the course of those filings, they raised a variety of threshold and substantive objections to fees. Plaintiff appropriately responded to those arguments, ultimately prevailing on many of them, as evidenced by this Opinion and the Court’s prior Opinion granting AIC’s Motion for a briefing schedule. Aside from the issue of overstaffing, accordingly, the Court believes the hours Plaintiff spent litigating this issue were not excessive.
The Government last asserts that “to the extent the Court reduces Plaintiff’s fee request for the bulk of the litigation, the fees charged for the attorneys’ fee issue should be reduced as well.” Opp. at 35. Courts in this District have concluded that awards of “fees on fees” should be reduced to exclude the amount of time spent unsuccessfully defending fee requests denied by the court. See, e.g., Nat’l Veterans Legal Servs. Program v. U.S. Dep’t of Veterans Affairs, 1999 WL 33740260, at *5-*6 (D.D.C. 1999); see also Commissioner, I.N.S. v. Jean, 496 U.S. 154, 163 n.10 (1990) (“[F]ees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation.”). “Where a lawsuit consists of related claims,” however, “a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised.” Hensley v. Eckerhart, 461 U.S. 424, 440 (1983).
Here, although the Court has not accepted Plaintiff’s fee request on the underlying litigation in toto, it will not, as a consequence, further reduce Plaintiff’s fees-on-fees request. Cf., e.g., EPIC I, 811 F. Supp. 2d at 240 (declining to reduce the fees-on-fees award despite
26

rejecting some of the plaintiff’s requests for fees). AIC prevailed on the two major issues raised in the Motion for Attorney Fees: the questions of whether it was eligible for and entitled to fees in the first place. Of the issues on which it did not fully succeed, two of them – the rates for AIC’s in-house counsel and overstaffing – already have given rise to reduced fees on fees. Only a very small proportion of its briefing related to the other issues on which it did not prevail – namely, the fees it requested for work associated with the administrative stage of litigation, pro hac vice motions, and reviewing documents. On close scrutiny of the record, therefore, the Court concludes that no further reduction of “fees on fees” beyond the global 25% discount explained above is appropriate. The hours spent by Plaintiff were, on the whole, “reasonably devoted to [its] request for fees,” Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest., 771 F.2d 521, 528 (D.C. Cir. 1985); EPIC I, 811 F. Supp. 2d at 240, and would not constitute a “windfall” for the attorneys. Id. (citing Heard v. Dist. of Columbia, 2006 WL 2568013, at *19 (D.D.C. 2006)).
3. Calculations Having wrapped up the legal heavy lifting, the Court whips out its abacus and starts tallying up the numbers. It pauses to note that the parties have made this task decidedly laborious. AIC requests fees for eleven attorneys over the course of five years, with each attorney claiming a unique set of yearly rates. Aside from multiple appendices containing pages upon pages of individual billing entries, Plaintiff has provided only the most general breakdown of the hours its attorneys allocated to this litigation. See Crow Decl., ¶¶ 14, 15. It neither aggregates the number of hours billed by a particular attorney at a particular rate, nor furnishes the cumulative hours spent on particular objected-to tasks. Defendants’ itemizations, while somewhat more helpful, are riddled with inaccuracies, some ridiculous. See, e.g., Opp. at 40
27

(“Crow’s improper entries for time spent reviewing the documents received total $79,875.”). As alluded to earlier, had judges desired to don green eyeshades instead of robes, they would not have gone to law school. Indeed, the judicial role is not to comb through endless lists of billing entries to gather data the parties have not seen fit to make clear. The Court will, therefore, do its best with the figures provided.
It begins with Plaintiff’s fee request for work performed on the underlying litigation. That request totals $106,499.90, which breaks down further into $55,174.75 for the Dorsey attorneys and $51,325.15 for AIC’s in-house counsel. See Crow Decl., ¶ 14; Grant Decl., ¶ 11. The latter sum reflects AIC’s reliance on the LSI Matrix in designating hourly rates and, as such, must be reduced to reflect the Court’s conclusion that Dorsey-scaled rates are more appropriate. See Part II.C.1, supra. Implementing these rate reductions, however, is somewhat challenging. As previously noted, in summarizing its billing for the Court, AIC did not catalog how many hours its attorneys billed per annum – i.e., at a particular rate. Instead, it simply provided the total hours billed and total fees sought for each attorney:

Timekeeper Melissa Crow
Beth Werlin Kristin
MacLeod-Ball Total Hours

Table C: AIC’s Requested Fees

Hours Worked

Hourly Rate

51.25
9.9 37.8 98.95

$589 for 6/2010-5/2011 $609 for 6/2011-9/2012 $625 for 6/2012-5/2013 $771 for 6/2013-5/2014
$609 for 6/2011-9/2012 $625 for 6/2012-5/2013
$312 for 6/2012-5/2013 $320 for 6/2013-5/2014
--

Fees Sought $33,423.25
$6,033.90 $11,868.00 $51,325.15

28

Crow Decl., ¶ 14. Due to this unfortunate lapse, the Court cannot ascertain with precision the number of hours to be multiplied by each of the newly discounted rates in order to yield a reduced award.
To arrive at appropriate fees for AIC counsel, accordingly, the Court instead calculates each attorney’s average reduction in rates and discounts her total fees sought by that percentage. So, for Crow, a comparison of the rates contained in Table B and Table C indicates that her rates are, on average, being reduced by 23%:
1 - (472.5/589 + 485/609+ 502.5/625 + 525/771) / 4 = 23% Her fees sought, $33,423.25, will be discounted proportionately, netting her $25,735.90.
Werlin’s hourly rates are being reduced by 34%: 1 - (400/609 + 410/625) / 2 = 34%
Discounting her fees sought ($6,033.90) by that percentage, she draws $3,982.37. Finally, MacLeod-Ball’s overall rate reduction averages to 12%: 1 - (260/312 + 295/320) / 2 = 12%
Because she seeks $11,868.00 in fees, her reduced total amounts to $10,443.84. Accounting for these discounts, Plaintiff’s total requested fees – for both the Dorsey and
AIC attorneys – add up as follows: 55,174.75 + 25,735.9 + 3,982.37 + 10,443.84 = $95,336.86
The Court must now exclude Plaintiff’s requests for tasks not compensable. With regard to pro hac vice work, the Dorsey attorneys billed $654.00 and AIC counsel Werlin requested $182.08. See Opp. at 36-37. The former amount will be excluded in full. It would be unfair, however, to similarly deduct the whole of the latter sum, which is based on the fee scale
29

requested by the AIC attorneys, not the fees actually awarded. The Court, therefore, discounts the figure charged to reflect Werlin’s Dorsey-calibrated rates:
182.08 * (1 - .34) = $120.17 For review of records, Defendants state that Crow billed $79,875, that MacLeod-Ball charged $5,442.40, and that Davenport sought $123.75. See Opp. at 40. The Government’s representation as to Crow is facially absurd: it far exceeds the total amount requested by Crow for the whole of this litigation. Nor does it appear – from a brief glance at the individual billing entries – that the figure provided is simply off by a factor of ten. Once again, the Court will not sift through every record to extrapolate whence this figure derives. Since it cannot deduct a plainly inappropriate amount, it will make no exclusion for time associated with Crow. For MacLeod-Ball, as with Werlin, the Court marks down the amount charged in proportion to the amount by which her rates have been reduced:
5,442.40 * (1 - .12) = $4,789.31 For Davenport, a Dorsey attorney receiving her requested rates, $123.75 will be deducted in full.
As to work performed at the administrative stage of litigation, Defendants state that Dorsey attorneys requested $1,670.50. See Opp. at 36. The Court will exclude that amount in its entirety.
Subtracting down, Plaintiff is left with the following tab: 95,336.86 - 654 - 120.17 - 4,789.31 - 123.75 - 1,670.5 = $87,979.13
That amount is then discounted by 25% to reflect the general overstaffing of the case. AIC is thus entitled to the following fees for work associated with the underlying litigation:
87,979.13 * (1-.25) = $65,984.35
30

As to the award for fees on fees, Plaintiff seeks a total of $24,131.25, which breaks down into $11,503.75 for AIC’s in-house counsel and $12,627.50 for the Dorsey attorneys. Crow Decl., ¶ 15; Grant Decl., ¶ 12. The Court must again reduce the fees sought by AIC’s in-house counsel to reflect the rates actually awarded. Crow requested $10,848.75. See Crow Decl., ¶ 15. Reducing that amount by 23% yields $8,353.54. Werlin, for her part, requested $655.00. See Crow Decl., ¶ 15. Discounted by 34%, she nets $432.30. MacLeod-Ball did not participate in the fees-on-fees component of the litigation.
These sums, in addition to the $12,627.50 requested by the Dorsey attorneys, are then similarly discounted by 25% to arrive at an appropriate fees-on-fees award:
(8,353.54 + 432.30 + 12,627.50) * (1 - .25) = $16,060.01 Finally, to calculate the total fee award (together with $469.06 in costs), the Court adds it all up as follows:
65,984.35 + 16,060.01 + 469.06 = $82,513.42 III. Conclusion
In sum, after all disputes have been resolved and all discounts have been applied, Plaintiffs sought $131,100.21 in attorney fees and will receive $82,513.42. A separate Order so stating shall issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: March 10, 2015
31

 
 Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 1 of 9
CLOSED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:11−cv−01972−JEB

AMERICAN IMMIGRATION COUNCIL v. UNITED STATES Date Filed: 11/08/2011

DEPARTMENT OF HOMELAND SECURITY et al

Date Terminated: 03/24/2014

Assigned to: Judge James E. Boasberg

Jury Demand: None

Case: 1:11−cv−01971−JEB

Nature of Suit: 895 Freedom of

Cause: 05:552 Freedom of Information Act

Information Act Jurisdiction: U.S. Government Defendant

Plaintiff

AMERICAN IMMIGRATION COUNCIL

represented by Beth Jennifer Werlin AMERICAN IMMIGRATION COUNCIL 1331 G Street, N.W. Suite 200 Washington, DC 20005 (202) 507−7522 Fax: (202) 742−5619 Email: bwerlin@immcouncil.org ATTORNEY TO BE NOTICED

Creighton R. Magid DORSEY & WHITNEY LLP 1801 K Street NW Suite 750 Washington, DC 20006 (202) 442−3555 Fax: (202) 442−3199 Email: magid.chip@dorsey.com ATTORNEY TO BE NOTICED

Melissa E. Crow AMERICAN IMMIGRATION COUNCIL 1331 G Street, N.W. Suite 200 Washington, DC 20005 (202) 507−7523 Fax: (202) 742−5619 Email: mcrow@immcouncil.org ATTORNEY TO BE NOTICED

Michelle S. Grant DORSEY & WHITNEY LLP 50 South Sixth Street Suite 1500 Minneapolis, MN 55402 (612) 340−5671 Fax: (612) 340−2868 Email: grant.michelle@dorsey.com PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
UNITED STATES DEPARTMENT OF HOMELAND SECURITY

represented by Marian L. Borum FEDERAL DEPOSIT INSURANCE CORPORATION Legal Division, Professional Liability Unit 3501 Fairfax Drive

Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 2 of 9

Arlington, VA 22226 (703) 562−2438 Fax: (703) 562−2482 Email: mborum@fdic.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. CUSTOMS AND BORDER PROTECTION

represented by Marian L. Borum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/08/2011
11/08/2011 11/08/2011 11/15/2011
11/23/2011 12/08/2011 12/09/2011
12/12/2011 12/13/2011 01/18/2012
01/18/2012 01/26/2012

# Docket Text
1 COMPLAINT against U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350, receipt number 4616043612) filed by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Civil Cover Sheet)(rdj) (Entered: 11/09/2011)
Summons (2) Issued as to U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (rdj) (Entered: 11/09/2011)
2 NOTICE OF RELATED CASE by AMERICAN IMMIGRATION COUNCIL. Case related to Case No. 11−1971. (rdj) (Entered: 11/09/2011)
3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/10/2011. Answer due for ALL FEDERAL DEFENDANTS by 12/10/2011. (Magid, Creighton) (Entered: 11/15/2011)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/14/2011. (Magid, Creighton) (Entered: 11/23/2011)
5 NOTICE of Appearance by Marian L. Borum on behalf of All Defendants (Borum, Marian) (Entered: 12/08/2011)
6 MOTION for Extension of Time to Answer, Move or Otherwise Respond to Plaintiff's Complaint by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 12/09/2011)
MINUTE ORDER granting 6 Motion for Extension of Time. Defendants shall respond to Complaint on or before 1/26/2012. Signed by Judge James E. Boasberg on 12/12/2011. (lcjeb3) (Entered: 12/12/2011)
Set/Reset Deadlines: Defendants shall respond to Complaint on or before 1/26/2012. (ad) (Entered: 12/13/2011)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Beth Jennifer Werlin, :Firm− American Immigration Council's Legal Action Center, :Address− 1331 G Street, N.W., Suite 200, Washington, D.C. 20005. Phone No. − 202−507−7522. Fax No. − 202−742−5619 by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Magid, Creighton) (Entered: 01/18/2012)
MINUTE ORDER granting 7 Motion for Admission Pro Hac Vice of Beth Jennifer Werlin. Signed by Judge James E. Boasberg on 01/18/2012. (lcjeb3) (Entered: 01/18/2012)
8 NOTICE of Appearance by Beth Jennifer Werlin on behalf of AMERICAN IMMIGRATION COUNCIL (Werlin, Beth) (Entered: 01/26/2012)

Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 3 of 9

01/26/2012
01/26/2012 02/03/2012 02/06/2012 02/06/2012 03/26/2012
03/27/2012 04/04/2012 04/04/2012 04/04/2012 04/24/2012 04/24/2012 04/24/2012 05/02/2012

9 WITHDRAWN PER NOTICE FILED 5/22/2012.....MOTION for Summary Judgment by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Borum, Marian) Modified on 5/23/2012 (zmm, ). (Entered: 01/26/2012)
10 NOTICE of Appearance by Melissa E. Crow on behalf of AMERICAN IMMIGRATION COUNCIL (Crow, Melissa) (Entered: 01/26/2012)
11 Unopposed MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Text of Proposed Order)(Magid, Creighton) (Entered: 02/03/2012)
MINUTE ORDER granting 11 Unopposed Motion for Extension of Time to File Response/Reply. Plaintiff's Opposition to Defendants' Motion for Summary Judgment shall be filed on or before 3/26/2012. Signed by Judge James E. Boasberg on 2/6/2012. (lcjeb3) (Entered: 02/06/2012)
Set/Reset Deadlines: Plaintiff's Opposition to Defendants' Motion for Summary Judgment shall be filed on or before 3/26/2012. (ad) (Entered: 02/06/2012)
12 RESPONSE re 9 MOTION for Summary Judgment filed by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Declaration Blair Loy, # 5 Exhibit A to Blair Loy Dec, # 6 Exhibit B to Blair Loy Dec, # 7 Declaration Melissa Crow, # 8 Exhibit A to Melissa Crow Dec, # 9 Exhibit B to Melissa Crow Dec, # 10 Exhibit C to Melissa Crow Dec, # 11 Exhibit D to Melissa Crow Dec, # 12 Exhibit E to Melissa Crow Dec, # 13 Exhibit F to Melissa Crow Dec, # 14 Exhibit G to Melissa Crow Dec, # 15 Exhibit H to Melissa Crow Dec, # 16 Declaration Benjamin Johnson, # 17 Exhibit A to Benjamin Johnson Dec, # 18 Exhibit B to Benjamin Johnson Dec, # 19 Declaration Cathy Potter, # 20 Exhibit A to Cathy Potter Dec, # 21 Exhibit B to Cathy Potter Dec, # 22 Declaration John Pratt, # 23 Exhibit A to John Pratt Dec, # 24 Exhibit B to John Pratt Dec, # 25 Exhibit C to John Pratt Dec, # 26 Exhibit D to John Pratt Dec, # 27 Declaration Karen Tumlin, # 28 Exhibit A to Karen Tumlin Dec)(Magid, Creighton) (Entered: 03/26/2012)
13 ERRATA to Opposition to Motion for Summary Judgment by AMERICAN IMMIGRATION COUNCIL 12 Response to motion,,,, filed by AMERICAN IMMIGRATION COUNCIL. (Magid, Creighton) (Entered: 03/27/2012)
14 Consent MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 04/04/2012)
MINUTE ORDER granting 14 Consent Motion for Extension of Time to File Reply: Defendants shall file a Reply on or before 4/25/2012. Signed by Judge James E. Boasberg on 4/4/2012. (lcjeb3) (Entered: 04/04/2012)
Set/Reset Deadline: Defendants shall file a Reply on or before 4/25/2012. (ad) (Entered: 04/04/2012)
15 Consent MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Borum, Marian) (Entered: 04/24/2012)
MINUTE ORDER granting 15 Consent Motion for Extension of Time to File Response/Reply: Defendant shall file a Reply to Plaintiff's Opposition on or before 5/15/2012. Signed by Judge James E. Boasberg on 4/24/2012. (lcjeb3) (Entered: 04/24/2012)
Set/Reset Deadline: Defendant shall file a Reply to Plaintiff's Opposition on or before 5/15/2012. (ad) (Entered: 04/24/2012)
16 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Michelle S. Grant, :Firm− Dorsey & Whitney LLP, :Address− 50 South Sixth Street, Minneapolis, MN 55402. Phone No. − 612−340−5671. Fax No. − 612−340−2868 by AMERICAN

Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 4 of 9

05/02/2012 05/15/2012
05/15/2012 05/16/2012 05/22/2012 05/22/2012 05/22/2012
05/23/2012 06/22/2012 07/20/2012 08/17/2012 09/19/2012 10/19/2012 10/19/2012 11/19/2012
11/20/2012

IMMIGRATION COUNCIL (Attachments: # 1 Text of Proposed Order)(Magid, Creighton) (Entered: 05/02/2012)
MINUTE ORDER granting 16 Motion for Admission Pro Hac Vice of Michelle S. Grant. Signed by Judge James E. Boasberg on 5/2/2012. (lcjeb3) (Entered: 05/02/2012)
17 Consent MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 05/15/2012)
MINUTE ORDER granting 17 Consent Motion for Extension of Time to File Response/Reply: Defendants shall file a Reply on or before 5/22/2012. Signed by Judge James E. Boasberg on 5/15/2012. (lcjeb3) (Entered: 05/15/2012)
Set/Reset Deadline: Defendants shall file a Reply on or before 5/22/2012. (ad) (Entered: 05/16/2012)
18 NOTICE OF WITHDRAWAL OF MOTION by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 05/22/2012)
19 Consent MOTION for Briefing Schedule by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 05/22/2012)
MINUTE ORDER: Defendants' 19 Consent Motion for Renewed Briefing Schedule is GRANTED. Defendants will provide Plaintiff with a rolling production of responsive records and provide the Court with monthly status reports. After the conclusion of the production, which may take between six and nine months, Defendants will consult with Plaintiff and the Court regarding a renewed briefing schedule. Defendants shall file a status report on or before 6/22/2012. Signed by Judge James E. Boasberg on 5/22/2012. (lcjeb3) (Entered: 05/22/2012)
Set/Reset Deadlines: Status Report due by 6/22/2012. (zmm, ) (Entered: 05/23/2012)
20 STATUS REPORT by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 06/22/2012)
21 STATUS REPORT (SECOND) by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 07/20/2012)
22 STATUS REPORT to the Court by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 08/17/2012)
23 STATUS REPORT (Fourth) by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 09/19/2012)
24 STATUS REPORT (Fifth) by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 10/19/2012)
25 ERRATA by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit)(Borum, Marian) (Entered: 10/19/2012)
26 Consent MOTION for Extension of Time to File Defendants' Sixth Status Report to the Court by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 11/19/2012)
MINUTE ORDER: Defendants' 26 Consent Motion for Extension of Time to File is hereby GRANTED. Defendants shall file their Sixth Status Report to the Court on or before November 21, 2012. Signed by Judge James E. Boasberg on 11/20/12. (lcjeb4)

Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 5 of 9

11/20/2012 11/20/2012 12/19/2012 01/18/2013 02/19/2013 02/19/2013
02/19/2013 02/22/2013 03/20/2013 03/21/2013 04/09/2013 04/09/2013
04/10/2013 04/17/2013 04/17/2013
04/18/2013 05/21/2013

(Entered: 11/20/2012)
Set/Reset Deadlines: Defendants shall file their Sixth Status Report to the Court on or before 11/21/2012. (ad) (Entered: 11/20/2012)
27 STATUS REPORT (Sixth) by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 11/20/2012)
28 STATUS REPORT (Seventh) by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 12/19/2012)
29 STATUS REPORT (Eighth) by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 01/18/2013)
30 Consent MOTION for Extension of Time to File Ninth Status Report by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 02/19/2013)
MINUTE ORDER: Defendants' 30 Consent Motion for Enlargment of Time is GRANTED. Defendants shall file their Ninth Status Report to the Court on or before February 22, 2013. Signed by Judge James E. Boasberg on 2/19/2013. (lcjeb2) (Entered: 02/19/2013)
Set/Reset Deadlines: Status Report due by 2/22/2013. (tg, ) (Entered: 02/20/2013)
31 STATUS REPORT (Ninth) by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 02/22/2013)
MINUTE ORDER setting this matter for a status hearing on April 11, 2013, at 10:00 a.m. in Courtroom #19. Signed by Judge James E. Boasberg on 3/20/2013. (lcjeb3) (Entered: 03/20/2013)
Set/Reset Hearing: A Status Conference is set for 4/11/2013 at 10:00 AM in Courtroom 19 before Judge James E. Boasberg. (ad) (Entered: 03/21/2013)
32 Joint MOTION to Continue Status Conference by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Text of Proposed Order)(Grant, Michelle) (Entered: 04/09/2013)
MINUTE ORDER granting 32 Motion to Continue. The Court hereby ORDERS that the Status Conference previously set for April 11, 2013, is VACATED and RESCHEDULED for April 18, 2013, at 10:00 a.m. in Courtroom #19. Signed by Judge James E. Boasberg on 4/9/2013. (lcjeb3) (Entered: 04/09/2013)
Set/Reset Hearings: The Status Conference set for 4/11/2013 at 10:00 AM is hereby VACATED and RESCHEDULED for 4/18/2013 at 10:00 AM in Courtroom 19 before Judge James E. Boasberg. (ad) (Entered: 04/10/2013)
33 Joint MOTION to Continue Status Conference by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Text of Proposed Order)(Grant, Michelle) (Entered: 04/17/2013)
MINUTE ORDER granting the parties' 33 Joint Motion to Continue Status Conference. The Court ORDERS that the Status Conference previously set for April 18, 2013, is VACATED and RESCHEDULED for May 22, 2013, at 9:30 a.m. in Courtroom 19. Signed by Judge James E. Boasberg on 4/17/2013. (lcjeb2) (Entered: 04/17/2013)
Set/Reset Hearings: The Status Conference set for 4/18/2013 at 10:00 AM is hereby VACATED and RESCHEDULED for 5/22/2013 at 9:30 AM in Courtroom 19 before Judge James E. Boasberg. (ad) (Entered: 04/18/2013)
34 Joint MOTION to Continue Status Conference by AMERICAN IMMIGRATION COUNCIL (Grant, Michelle) (Entered: 05/21/2013)

Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 6 of 9

05/21/2013
05/22/2013 06/10/2013 06/10/2013 06/11/2013 07/11/2013 07/12/2013 07/12/2013 07/23/2013 07/23/2013 07/24/2013 08/27/2013 08/27/2013
08/27/2013 09/10/2013 09/10/2013

MINUTE ORDER granting the parties' 34 Joint Motion to Continue Status Conference. The Court ORDERS that the Status Conference previously set for May 22, 2013, is VACATED and RESCHEDULED for June 12, 2013, at 9:30 a.m. in Courtroom 19. Signed by Judge James E. Boasberg on 5/21/2013. (lcjeb2) (Entered: 05/21/2013)
Set/Reset Hearings: The Status Conference set for 5/22/2013 at 9:30 AM is hereby VACATED and RESCHEDULED for 6/12/2013 at 9:30 AM in Courtroom 19 before Judge James E. Boasberg. (ad) (Entered: 05/22/2013)
35 Joint MOTION to Continue Status Conference by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Text of Proposed Order)(Grant, Michelle) (Entered: 06/10/2013)
MINUTE ORDER granting 35 Motion to Continue. The Court hereby ORDERS that the Status Conference previously set for June 12, 2013, is VACATED and RESCHEDULED for July 15, 2013, at 10:15 a.m. in Courtroom #19. Signed by Judge James E. Boasberg on 6/10/2013. (lcjeb3) (Entered: 06/10/2013)
Set/Reset Hearings: The Status Conference set for 6/12/2013 at 9:30 AM is hereby VACATED and RESCHEDULED for 7/15/2013 at 10:15 AM in Courtroom 19 before Judge James E. Boasberg. (ad) (Entered: 06/11/2013)
36 Joint MOTION to Continue Status Conference by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 07/11/2013)
MINUTE ORDER granting 36 Motion to Continue. The Court hereby ORDERS that the Motion is GRANTED and that the Status Hearing previously set for July 15, 2013, is VACATED and RESCHEDULED for July 24, 2013, at 9:30 a.m. in Courtroom #19. Signed by Judge James E. Boasberg on 7/12/2013. (lcjeb3) (Entered: 07/12/2013)
Set/Reset Hearings: Status Hearing RESCHEDULED for 7/24/2013 at 9:30 AM in Courtroom 19 before Judge James E. Boasberg. (tg, ) (Entered: 07/12/2013)
37 Joint MOTION to Continue Status Conference by AMERICAN IMMIGRATION COUNCIL (Grant, Michelle) (Entered: 07/23/2013)
MINUTE ORDER granting 37 Motion to Continue Status Conference. The Court hereby ORDERS that the Status Conference previously set for July 24, 2013, is hereby VACATED and RESCHEDULED for August 27, 2013, at 9:30 a.m. in Courtroom #19. Signed by Judge James E. Boasberg on 7/23/2013. (lcjeb3) (Entered: 07/23/2013)
Set/Reset Hearings: The Status Conference set for 7/24/2013 at 9:30 AM is hereby VACATED and RESCHEDULED for 8/27/2013 at 9:30 AM in Courtroom 19 before Judge James E. Boasberg. (ad) (Entered: 07/24/2013)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 8/27/2013. (Order forthcoming). (Court Reporter Lisa Griffith) (ad) (Entered: 08/27/2013)
MINUTE ORDER: As discussed at today's status conference, the Court ORDERS that: 1) By September 10, 2013, the parties shall file a joint status report indicating the status of the remaining few contested documents; 2) If the issue has been resolved, the parties will propose to file another status report 30 days thereafter regarding attorney fees; and 3) If the issue has not been resolved, the parties shall propose a briefing schedule for its resolution. Signed by Judge James E. Boasberg on 08/27/2013. (lcjeb3) (Entered: 08/27/2013)
Set/Reset Deadline: By 9/10/2013, the parties shall file a joint status report indicating the status of the remaining few contested documents. (ad) (Entered: 08/27/2013)
38 STATUS REPORT (Joint) by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 09/10/2013)
39 Joint MOTION for Briefing Schedule by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 09/10/2013)

Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 7 of 9

09/11/2013
09/11/2013 10/01/2013 10/01/2013
10/01/2013 10/18/2013 11/01/2013 11/01/2013 11/04/2013 11/05/2013
12/05/2013 12/20/2013 12/23/2013
02/25/2014

MINUTE ORDER GRANTING Parties' Joint 39 Motion for Briefing Schedule. The following schedule will govern further proceedings in this case: (1) Defendants will file a Motion for Summary Judgment on or before October 10, 2013; (2) Plaintiff will file an Opposition to Defendants' Motion for Summary Judgment on or before November 8, 2013; (3) Defendants will file a Reply on or before November 22, 2013. Signed by Judge James E. Boasberg on 09/11/2013. (lcjeb3) (Entered: 09/11/2013)
Set/Reset Deadlines: Defendants will file a Motion for Summary Judgment on or before 10/10/2013; Plaintiff will file an Opposition to Defendants' Motion for Summary Judgment on or before 11/08/2013; Defendants will file a Reply on or before 11/22/2013. (ad) (Entered: 09/11/2013)
40 Consent MOTION to Stay , Consent MOTION for Extension of Time to File Motion for Summary Judgment by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 10/01/2013)
MINUTE ORDER GRANTING Defendant's 40 Consent Motion to Stay and 40 Consent Motion for Extension of Time. Upon the approval of funding for the Department of Justice and the Department of Homeland Security, Defendant shall have two weeks in which to file a motion for summary judgment in this matter. Signed by Judge James E. Boasberg on 10/1/2013. (lcjeb3) (Entered: 10/01/2013)
Case Stayed. (tg, ) (Entered: 10/01/2013)
MINUTE ORDER: The Court ORDERS that the Stay is LIFTED. Signed by Judge James E. Boasberg on 10/18/2013. (lcjeb3) (Entered: 10/18/2013)
41 Consent MOTION for Extension of Time to File Dispositive Motion by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 11/01/2013)
MINUTE ORDER GRANTING Defendants' Consent 41 Motion for Extension of Time to File Dispositive Motion. The Court ORDERS that Defendants shall file a dispositive motion in this case on or before November 5, 2013. Signed by Judge James E. Boasberg on 11/1/2013. (lcjeb3) (Entered: 11/01/2013)
Set/Reset Deadline: Defendants shall file a dispositive motion in this case on or before 11/5/2013. (ad) (Entered: 11/04/2013)
42 MOTION for Summary Judgment by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Borum, Marian) (Entered: 11/05/2013)
43 Memorandum in opposition to re 42 MOTION for Summary Judgment filed by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Declaration Michelle Grant with Exhibit A and B, # 2 Declaration Brittney Nystrom with Exhibit A, # 3 Text of Proposed Order)(Grant, Michelle) (Entered: 12/05/2013)
44 REPLY to opposition to motion re 42 MOTION for Summary Judgment filed by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 12/20/2013)
45 ERRATA by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY 44 Reply to opposition to Motion filed by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Borum, Marian) (Entered: 12/23/2013)
MINUTE ORDER: The Court believes that an in camera review of certain documents will assist in its analysis. As a result, the Court ORDERS that by February 27, 2014, Defendants shall produce to the Court redacted and unredacted copies of the seven disputed records listed in Plaintiff's 43 Opposition brief, pages 4 and 5. Signed by Judge James E. Boasberg on 2/25/14. (lcjeb1) (Entered: 02/25/2014)

Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 8 of 9

02/25/2014 03/21/2014 03/21/2014 03/24/2014 08/29/2014 09/02/2014 09/02/2014 09/04/2014
09/05/2014 09/05/2014 09/11/2014 09/24/2014
09/25/2014 10/17/2014
10/29/2014

Set/Reset Deadline: By 2/27/2014, Defendants shall produce to the Court redacted and unredacted copies of the seven disputed records listed in Plaintiff's 43 Opposition brief, pages 4 and 5. (ad) (Entered: 02/25/2014)
46 ORDER: As set forth in the accompanying Memorandum Opinion, the Court ORDERS that: (1) Defendants' 42 Motion for Summary Judgment is GRANTED; and (2) Judgment is ENTERED in favor of Defendants. Signed by Judge James E. Boasberg on 3/21/14. (lcjeb1) (Entered: 03/21/2014)
47 MEMORANDUM OPINION re 46 Order. Signed by Judge James E. Boasberg on 3/21/14. (lcjeb1) (Entered: 03/21/2014)
48 CLERK'S JUDGMENT in favor of Defendants, UNITED STATES DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND BORDER PROTECTION against Plaintiff AMERICAN IMMIGRATION COUNCIL, entered on 3/24/2014. (tg, ) (Entered: 03/24/2014)
49 MOTION for Briefing Schedule by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Declaration and Exhibits of Melissa Crow, # 2 Text of Proposed Order)(Grant, Michelle) (Entered: 08/29/2014)
MINUTE ORDER: The Court ORDERS that if Defendants oppose Plaintiff's 49 Motion, they shall file such Opposition by September 4, 2014. Signed by Judge James E. Boasberg on 9/2/14. (lcjeb1) (Entered: 09/02/2014)
Set/Reset Deadline: If Defendants oppose Plaintiff's 49 Motion, they shall file such Opposition by 9/4/2014. (ad) (Entered: 09/02/2014)
50 RESPONSE re 49 MOTION for Briefing Schedule filed by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit)(Borum, Marian) (Entered: 09/04/2014)
MINUTE ORDER: The Court ORDERS that Plaintiff may reply to Defendants' 50 response and must do so on or before September 11, 2014. Signed by Judge James E. Boasberg on 9/5/14. (lcjeb1) (Entered: 09/05/2014)
Set/Reset Deadlines: Reply to 50 Response due by 9/11/2014. (tg, ) (Entered: 09/05/2014)
51 REPLY to opposition to motion re 49 MOTION for Briefing Schedule filed by AMERICAN IMMIGRATION COUNCIL. (Grant, Michelle) (Entered: 09/11/2014)
52 ORDER: The Court ORDERS that Plaintiff's 49 Motion is GRANTED, and the following schedule shall govern the briefing of attorney fees: (1) Plaintiff shall file its Motion on or before October 17, 2014; (2) Defendants shall file their Opposition on or before October 31, 2014; and (3) Plaintiff shall file any Reply on or before November 10, 2014. Signed by Judge James E. Boasberg on 9/24/14. (lcjeb2) (Entered: 09/24/2014)
Set/Reset Deadlines: Plaintiff shall file its Motion on or before 10/17/2014; Defendants shall file their Opposition on or before 10/31/2014; and Plaintiff shall file any Reply on or before 11/10/2014. (ad) (Entered: 09/25/2014)
53 MOTION Attorneys' Fees and Costs by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion for Attorneys' Fees and Costs, # 2 Declaration of Michelle S. Grant in Support of Plaintiffs' Motion for Attorneys' Fees and Costs, # 3 Declaration of Melissa Crow in Support of Plaintiffs' Motion for Attorneys' Fees and Costs, # 4 Declaration of David L. Sobel in Support of Plaintiffs' Motion for Attorneys' Fees and Costs, # 5 Declaration of Andres C. Benach in Support of Plaintiffs' Motion for Attorneys' Fees and Costs, # 6 Text of Proposed Order Granting Plaintiffs' Motion for Attorneys' Fees and Costs)(Grant, Michelle) (Entered: 10/17/2014)
54 MOTION for Extension of Time to File Opposition by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Borum, Marian) (Entered: 10/29/2014)

Case: 1:11-cv-1972 As of: 04/10/2017 12:44 AM EDT 9 of 9

10/30/2014 10/30/2014 12/05/2014
12/10/2014 12/11/2014 12/11/2014 12/22/2014 03/10/2015
03/10/2015

MINUTE ORDER granting Defendants' 54 Motion for Enlargement of Time. The Court ORDERS that Defendants shall file their response to Plaintiff's Motion for Attorneys' Fees on or before December 5, 2014. Signed by Judge James E. Boasberg on 10/30/14. (lcjeb3) (Entered: 10/30/2014)
Set/Reset Deadline: Defendants shall file their response to Plaintiff's Motion for Attorneys' Fees on or before 12/5/2014. (ad) (Entered: 10/30/2014)
55 Memorandum in opposition to re 53 MOTION Attorneys' Fees and Costs filed by U.S. CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Declaration, # 4 Exhibit, # 5 Declaration, # 6 Exhibit)(Borum, Marian) (Entered: 12/05/2014)
56 MOTION for Extension of Time to File Response/Reply as to 53 MOTION Attorneys' Fees and Costs by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Text of Proposed Order)(Grant, Michelle) (Entered: 12/10/2014)
MINUTE ORDER granting Plaintiff's 56 Motion for Extension of Time to File a Response/Reply. The Court ORDERS that Plaintiff shall file its Reply to Defendants' Opposition on the Motion for Attorney's Fees on or before December 22, 2014. Signed by Judge James E. Boasberg on 12/11/14. (lcjeb3) (Entered: 12/11/2014)
Set/Reset Deadline: Plaintiff shall file its Reply to Defendants' Opposition on the Motion for Attorney's Fees on or before 12/22/2014. (kt) (Entered: 12/11/2014)
57 REPLY to opposition to motion re 53 MOTION Attorneys' Fees and Costs filed by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Declaration of Michelle S. Grant, # 2 Exhibit G to the Declaration of Michelle S. Grant)(Grant, Michelle) (Entered: 12/22/2014)
58 ORDER: For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: 1) Plaintiff's Motion for Attorney Fees and Costs is GRANTED IN PART and DENIED IN PART; and 2) Plaintiff is AWARDED fees and costs in the total amount of $82,513.42. Signed by Judge James E. Boasberg on 3/10/15. (lcjeb1) (Entered: 03/10/2015)
59 MEMORANDUM OPINION re 58 ORDER. Signed by Judge James E. Boasberg on 3/10/15. (lcjeb1) (Entered: 03/10/2015)