STAYED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−01531−RCL

AMERICAN IMMIGRATION COUNCIL v. U.S. IMMIGRATION & CUSTOMS ENFORCEMENT et al Assigned to: Judge Royce C. Lamberth Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 06/27/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN IMMIGRATION COUNCIL

represented by Christopher James Asta WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202−663−6332 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Yin WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202−663−6677 Email: david.yin@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan G. Cedarbaum WILMER HALE 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663−6315 Fax: (202) 663−6363 Email: jonathan.cedarbaum@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Creighton AMERICAN IMMIGRATION COUNCIL Legal Department 1331 G Street, NW Suite 200 Washington, DC 20005 (202) 507−7514 Fax: (202) 742−5619 Email: ecreighton@immcouncil.org ATTORNEY TO BE NOTICED

John F. Walsh WILMER CUTLER PICKERING HALE & DORR LLP 1225 17th Street Suite 2600 Denver, CO 80202 (720) 274−3154 Email: john.walsh@wilmerhale.com ATTORNEY TO BE NOTICED

Ni Qian WILMER CUTLER HALE AND DORR LLP 1875 Pennsylvania Avemue NW Washington, DC 20006 (202) 663−6382 Email: Ni.Qian@wilmerhale.com TERMINATED: 10/03/2018

V. Defendant U.S. IMMIGRATION & CUSTOMS ENFORCEMENT
Defendant U.S. CUSTOMS & BORDER PROTECTION
Defendant U.S. DEPARTMENT OF HOMELAND SECURITY

represented by Brenda A. Gonzalez U.S. ATTORNEY'S OFFICE 555 Fourth St N.W. Washington, DC 20530 (202) 252−2512 Email: brenda.gonzalez.horowitz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marina Utgoff Braswell U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2561 Fax: (202) 252−2599 Email: Marina.Braswell@usdoj.gov TERMINATED: 03/19/2020
represented by Brenda A. Gonzalez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marina Utgoff Braswell (See above for address) TERMINATED: 03/19/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brenda A. Gonzalez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marina Utgoff Braswell (See above for address) TERMINATED: 03/19/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/27/2018

# Docket Text
1 COMPLAINT against U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT ( Filing fee $ 400 receipt number 0090−5558276) filed by

06/27/2018 06/27/2018
06/27/2018
06/27/2018 06/27/2018 06/28/2018 06/28/2018 07/25/2018 07/30/2018 08/03/2018
08/03/2018 08/03/2018

AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D1, # 5 Exhibit D2, # 6 Exhibit E1, # 7 Exhibit E2, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H1, # 11 Exhibit H2, # 12 Civil Cover Sheet, # 13 Summons US Customs & Border Protection, # 14 Summons US Department of Homeland Security, # 15 Summons US Immigration Customs Enforcement)(Qian, Ni) (Entered: 06/27/2018)
2 Corporate Disclosure Statement by AMERICAN IMMIGRATION COUNCIL. (Qian, Ni) (Entered: 06/27/2018)
3 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− John F. Walsh, :Firm− Wilmer Cutler Pickering Hale and Dorr LLP, :Address− 1225 Seventeenth St. Suite 2600 Denver, CO 80202. Phone No. − 720 274 3154. Fax No. − (720) 274−3133 Filing fee $ 100, receipt number 0090−5558458. Fee Status: Fee Paid. by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Declaration of John F. Walsh in Support of Motion, # 2 Text of Proposed Order)(Qian, Ni) (Entered: 06/27/2018)
4 WITHDRAWN PURSUANT TO ENTRY 7 ..... MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Rachel Weiner Cohen, :Firm− Wilmer Cutler Pickering Hale and Dorr LLP, :Address− Rachel.Cohen@wilmerhale.com. Phone No. − 202 663 6068. Fax No. − (202) 663−6363 Filing fee $ 100, receipt number 0090−5558596. Fee Status: Fee Paid. by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Declaration of Rachel W. Cohen in Support of Motion, # 2 Text of Proposed Order)(Qian, Ni) Modified on 7/27/2018 (zjf). (Entered: 06/27/2018)
5 NOTICE of Appearance by Emily Creighton on behalf of AMERICAN IMMIGRATION COUNCIL (Creighton, Emily) (Entered: 06/27/2018)
Case Assigned to Judge Royce C. Lamberth. (zsth) (Entered: 06/28/2018)
6 SUMMONS (3) Issued Electronically as to U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Attachments: # 1 Notice and Consent)(zsth) (Entered: 06/28/2018)
SUMMONS Not Issued as to US Attorney and US Attorney General. (zsth) (Entered: 06/28/2018)
7 NOTICE OF WITHDRAWAL OF MOTION by AMERICAN IMMIGRATION COUNCIL re 4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Rachel Weiner Cohen, :Firm− Wilmer Cutler Pickering Hale and Dorr LLP, :Address− Rachel.Cohen@wilmerhale.com. Phone No. − 202 663 6068. Fax No. − (202) 663−6363 Filing fee & (Qian, Ni) (Entered: 07/25/2018)
8 NOTICE of Appearance by Marina Utgoff Braswell on behalf of U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Braswell, Marina) (Entered: 07/30/2018)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/5/2018. Answer due for ALL FEDERAL DEFENDANTS by 8/4/2018. (Attachments: # 1 Summons Executed as to the US Department of Homeland Security, # 2 Summons Executed as to US Customs& Border Protection, # 3 Affidavit of Service as to US Attorney General Jeff Sessions, # 4 Affidavit of Service as to US Attorney's Office − District of DC)(Qian, Ni) (Entered: 08/03/2018)
10 Unopposed MOTION for Extension of Time to File Response/Reply to Complaint by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Braswell, Marina) (Entered: 08/03/2018)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. CUSTOMS & BORDER PROTECTION served on 7/3/2018; U.S. DEPARTMENT OF HOMELAND SECURITY served on 7/3/2018; U.S. IMMIGRATION & CUSTOMS ENFORCEMENT served on 7/2/2018, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States

08/06/2018 08/08/2018 08/16/2018 08/22/2018 08/22/2018 08/29/2018 08/29/2018 09/21/2018 09/27/2018
09/27/2018
10/03/2018 10/05/2018 10/05/2018 10/05/2018 10/15/2018

Attorney General. Date of Service Upon United States Attorney General 07/05/2018. (See Docket Entry 9 to view document) (jf) (Entered: 08/06/2018)
NOTICE OF ERROR re 9 Summons Returned Executed in FOIA as to U.S. Attorney; emailed to Ni.Qian@wilmerhale.com, cc'd 7 associated attorneys −− The PDF file you docketed contained errors: 1. DO NOT REFILE − Counsel is reminded to docket all parts of their filing(s) (zjf, ) (Entered: 08/06/2018)
12 ORDER granting 10 Motion for Extension of Time to File Response/Reply to Complaint ; Responses due by 8/22/2018. Signed by Judge Royce C. Lamberth on 8/7/18. (lsj) (Entered: 08/08/2018)
13 NOTICE of Appearance by John F. Walsh on behalf of AMERICAN IMMIGRATION COUNCIL (Walsh, John) (Entered: 08/16/2018)
14 ORDER granting 3 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 8/21/18. (lsj) (Entered: 08/22/2018)
15 ANSWER to Complaint by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT.(Braswell, Marina) (Entered: 08/22/2018)
16 ORDER: Government shall produce a Vaughn index with a supporting motion to dismiss or motion for summary judgment, as appropriate, within 30 days of this date (see Order for details). Signed by Judge Royce C. Lamberth on 8/28/18. (lcrcl3) (Main Document 16 replaced on 8/29/2018) (zlsj). (Entered: 08/29/2018)
Set/Reset Deadlines: Vaughn Index with supporting Dispositive Motions or Summary Judgment motions due by 9/28/2018. (lsj) (Entered: 08/29/2018)
17 Unopposed MOTION to Stay re 16 Scheduling Order, by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Braswell, Marina) (Entered: 09/21/2018)
18 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Christopher James Asta, :Firm− Wilmer Cutler Pickering Hale and Dorr LLP, :Address− 1875 Pennsylvania Avenue NW, 20006. Phone No. − 202−663−6332. Fax No. − (202) 663−6363 Filing fee $ 100, receipt number 0090−5709861. Fee Status: Fee Paid. by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Declaration of Christopher Asta, # 2 Text of Proposed Order)(Walsh, John) (Entered: 09/27/2018)
19 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− David P. Yin, :Firm− Wilmer Cutler Pickering Hale and Dorr LLP, :Address− 1875 Pennsylvania Avenue NW, 20006. Phone No. − 202−663−6677. Fax No. − (202) 663−6363 Filing fee $ 100, receipt number 0090−5710071. Fee Status: Fee Paid. by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Declaration of David P. Yin, # 2 Text of Proposed Order)(Walsh, John) (Entered: 09/27/2018)
20 NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN IMMIGRATION COUNCIL. Attorney Ni Qian terminated. (Qian, Ni) (Entered: 10/03/2018)
21 ORDER granting 19 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 10/05/2018. (lcrcl3) (Entered: 10/05/2018)
22 ORDER granting 18 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 10/05/2018. (lcrcl3) (Entered: 10/05/2018)
23 ORDER granting 17 Motion to Stay proceedings until October 15, 2018. The Court further ORDERS the parties to file a proposed schedule for further proceedings on or before October 15, 2018. Signed by Judge Royce C. Lamberth on 10/05/2018. (lcrcl3) Modified on 10/9/2018 (zlsj). (Entered: 10/05/2018)
24 Unopposed MOTION for Extension of Time to File Joint Schedule for Further Proceedings by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Braswell, Marina) (Entered: 10/15/2018)

10/17/2018 10/19/2018 11/26/2018 12/04/2018
12/06/2018
12/06/2018 12/13/2018
01/11/2019
01/14/2019 01/24/2019 02/08/2019 02/12/2019 03/29/2019 03/29/2019 05/24/2019 06/03/2019 07/24/2019

25 ORDER granting 24 Motion for Extension of Time to File. The parties shall file a proposed schedule by 10/19/2018. Signed by Judge Royce C. Lamberth on 10/17/18. (lcrcl3) (Entered: 10/17/2018)
26 Joint MOTION for Scheduling Order (Joint Motion for Entry of Scheduling Order), by AMERICAN IMMIGRATION COUNCIL (Attachments: # 1 Text of Proposed Order)(Walsh, John) (Entered: 10/19/2018)
27 ORDER granting 26 Joint Proposed Scheduling Order. Signed by Judge Royce C. Lamberth on 11/21/2018. (lcrcl3) (Entered: 11/26/2018)
28 MOTION for Extension of Time to Comply with December 5, 2018, and December 10, 2018 by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Braswell, Marina) (Entered: 12/04/2018)
29 Memorandum in opposition to re 28 MOTION for Extension of Time to Comply with December 5, 2018, and December 10, 2018 and request for expedited consideration filed by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 [Plaintiff's Proposed] Scheduling Order, # 2 Declaration of David P. Yin in Support of Plaintiff's Brief in Opposition to Defendants' Motion for Extension of Time, # 3 Exhibit A, # 4 Exhibit B)(Walsh, John) (Entered: 12/06/2018)
30 MOTION to Expedite Consideration by AMERICAN IMMIGRATION COUNCIL. (See Docket Entry 29 to view document). (znmw) (Entered: 12/10/2018)
31 REPLY to opposition to motion re 28 MOTION for Extension of Time to Comply with December 5, 2018, and December 10, 2018 Deadlines filed by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Attachments: # 1 Holzer Declaration)(Braswell, Marina) (Entered: 12/13/2018)
32 MOTION to Stay (Defendants' Motion to Stay Proceedings in Light of Lapse in Appropriations) by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Braswell, Marina) (Entered: 01/11/2019)
33 Memorandum in opposition to re 32 MOTION to Stay (Defendants' Motion to Stay Proceedings in Light of Lapse in Appropriations) filed by AMERICAN IMMIGRATION COUNCIL. (Walsh, John) (Entered: 01/14/2019)
34 ORDER granting 32 Motion to Stay. Signed by Judge Royce C. Lamberth on 1/24/2019. (lcrcl2) (Entered: 01/24/2019)
35 NOTICE to the Court by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Braswell, Marina) (Entered: 02/08/2019)
36 RESPONSE re 35 Notice (Other) filed by AMERICAN IMMIGRATION COUNCIL. (Walsh, John) (Entered: 02/12/2019)
37 NOTICE OF WITHDRAWAL OF APPEARANCE as to AMERICAN IMMIGRATION COUNCIL. Attorney John F. Walsh terminated. (Walsh, John) (Entered: 03/29/2019)
38 STATUS REPORT by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Braswell, Marina) (Entered: 03/29/2019)
39 STATUS REPORT by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Braswell, Marina) (Entered: 05/24/2019)
40 NOTICE of Appearance by Jonathan G. Cedarbaum on behalf of AMERICAN IMMIGRATION COUNCIL (Cedarbaum, Jonathan) (Entered: 06/03/2019)
41 STATUS REPORT by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Text of Proposed Order)(Cedarbaum, Jonathan) (Entered: 07/24/2019)

07/29/2019
07/30/2019
07/30/2019
07/31/2019
07/31/2019 08/30/2019 09/03/2019
09/04/2019 12/20/2019 03/19/2020
03/20/2020 03/23/2020
03/24/2020 04/30/2020

42 STATUS REPORT and Response to Plaintiff's Status Report, ECF 41, by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Braswell, Marina) (Entered: 07/29/2019)
NOTICE OF ERROR re 42 Status Report; emailed to Marina.Braswell@usdoj.gov, cc'd 8 associated attorneys −− The PDF file you docketed contained errors: 1. Two−part docket entry, 2. Please refile document, 3. Same document using the Response to non−motion category (zjf, ) (Entered: 07/30/2019)
43 RESPONSE re 41 Response to Status Report, ECF 41 filed by U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Braswell, Marina) Modified to add link on 8/1/2019 (znmw). (Entered: 07/30/2019)
44 ORDER granting 28 Motion for Extension of Time; denying 30 Motion to Expedite. The Court further orders the parties to file a status report with a proposed scheduling order by August 30, 2019. SEE ORDER FOR FULL DETAILS. Signed by Judge Royce C. Lamberth on 07/31/2019. (lcrcl3) (Entered: 07/31/2019)
Set/Reset Deadlines: Status Report due by 8/30/2019 (lsj) (Entered: 07/31/2019)
45 Joint STATUS REPORT and Proposed Scheduling Order by AMERICAN IMMIGRATION COUNCIL. (Cedarbaum, Jonathan) (Entered: 08/30/2019)
46 ORDER adopting the parties' proposed scheduling order. The parties shall file a joint status report no later than December 20, 2019 to update the Court on the processing of Plaintiff's FOIA request. Signed by Judge Royce C. Lamberth on 09/03/2019. (lcrcl3) (Entered: 09/03/2019)
Set/Reset Deadlines: Joint Status Report due by 12/20/2019 (lsj) (Entered: 09/04/2019)
47 Joint STATUS REPORT by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Text of Proposed Order [PLAINTIFFS], # 2 Text of Proposed Order [DEFENDANTS])(Cedarbaum, Jonathan) (Entered: 12/20/2019)
48 NOTICE OF SUBSTITUTION OF COUNSEL by Brenda A. Gonzalez on behalf of U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT Substituting for attorney Marina Utgoff Braswell (Gonzalez, Brenda) (Entered: 03/19/2020)
49 Joint STATUS REPORT by AMERICAN IMMIGRATION COUNCIL. (Attachments: # 1 Text of Proposed Order)(Cedarbaum, Jonathan) (Entered: 03/20/2020)
50 ORDER that the parties shall file a further Joint Status Report no later than 06/22/2020. Defendant ICE shall comply with the Court's September 3, 2019 Order. Defendant ICE shall further provide plaintiff with a progress report every six weeks, beginning in April 2020, regarding the progress of its phase 2 responsiveness review. Signed by Judge Royce C. Lamberth on 03/23/2020. (lcrcl3) (Entered: 03/23/2020)
Set/Reset Deadlines: Joint Status Report due by 6/22/2020 (lsj) (Entered: 03/24/2020)
51 NOTICE of Appearance by John F. Walsh on behalf of AMERICAN IMMIGRATION COUNCIL (Walsh, John) (Entered: 04/30/2020)

 
 Case 1:18-cv-01531-RCL Document 1 Filed 06/27/18 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN IMMIGRATION COUNCIL, )

1331 G Street, NW, Suite 200

)

Washington, DC 20005

)

)

Plaintiff, )

)

v.

)

)

U.S. IMMIGRATION & CUSTOMS

)

ENFORCEMENT

) Case No. 18-cv-1531

500 12th St SW

)

Washington, DC 20536

)

)

U.S. CUSTOMS & BORDER PROTECTION )

1300 Pennsylvania Ave NW

)

Washington, DC 20229-1181

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY

)

245 Murry Lane SW

)

Washington, DC 20528

)

)

Defendants. )

)

COMPLAINT

1. Plaintiff the American Immigration Council (“Council”) brings this action against

the U.S. Department of Homeland Security (“DHS”), U.S. Immigration & Customs Enforcement

(“ICE”), and U.S. Customs & Border Protection (“CBP”) (collectively, “Defendants”) under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel the disclosure of records

regarding the separation of families who arrive at the U.S.-Mexico border in response to the

FOIA requests made by the Council, National Immigrant Justice Center, Women’s Refugee

Commission, Kids in Need of Defense, and the Florence Immigrant and Refugee Rights Project

1

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on April 3, 2018. The statutory deadline for a response has expired, and Defendants have failed to make a determination on the requests as required by law, in violation of FOIA.
2. There is an urgent need for information regarding Defendants’ current policies and practices regarding the treatment of noncitizens—many of them seeking asylum—who arrive as family units at the U.S.-Mexico border and, in many cases, have been prosecuted and separated. This extraordinary policy impacting families who arrive at the U.S. border has been widely implemented. Defendants have been the primary decision-makers in the implementation of this policy and the initial separation of families. As such, records and data explaining their policies and practices are of vital importance to the public’s understanding of the implementation of family separation. Though President Trump issued an Executive Order on June 20, 2018 purporting to allow families to be detained together during criminal and immigration proceedings, the manner and timeframe in which that Order will be implemented remain unknown. In addition, on June 26, 2018, the United States District Court for the Southern District of California issued orders certifying a class of separated parents and children and imposing a preliminary injunction against Defendants and other United States government agencies regarding certain aspects of the Defendants’ policies with respect to separation and reunification of children who have already been separated from their parents and detained. Because the manner, circumstances and policies under which they will be identified and returned to their parents remain unclear, these issues continue to be of great importance and public interest.
JURISDICTION AND VENUE 3. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.
2

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4. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e)(1)(C) because the Council’s principal place of business is in the District of Columbia.
5. The Council and co-requesters filed FOIA requests with the Defendants on April 3, 2018. To date, Defendants have only acknowledged receipt of the requests and have not made determinations with respect to the requests. Because Defendants have failed to respond within the statutory timeframe, the Council has exhausted its administrative remedies in connection with the requests as a matter of law. 5 U.S.C. § 552(a)(6)(C)(i).
PARTIES 6. The Council is a tax-exempt, not-for-profit educational and charitable organization under Section 501(c)(3) of the Internal Revenue Code. Its principal place of business is at 1331 G Street, NW, Suite 200, Washington, D.C. 20005. The Council was established to increase public understanding of immigration law and policy, advocate for the fair and just administration of our immigration laws, protect the legal rights of noncitizens and citizens, and educate the public about the enduring contributions of America’s immigrants. Through research and analysis, the Council has become a leading resource for policymakers and opinion makers at the national, state, and local levels who seek to understand the power and potential of immigration and to develop policies that are based on facts rather than myths. The Council seeks to hold the government accountable for unlawful conduct and restrictive interpretations of the law and for failing to ensure that the immigration laws are implemented and executed in a manner that comports with due process. 7. Defendant DHS is a department of the executive branch of the U.S. government headquartered in Washington, D.C., and an agency within the meaning of 5 U.S.C. § 552(f)(1).
3

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DHS is responsible for enforcing federal immigration laws. On information and belief, DHS has possession, custody, and control of records that Plaintiff seeks in its FOIA request.
8. ICE is a component agency of DHS. It is within a department within the executive branch of the U.S. government headquartered in Washington, D.C., and it is an agency within the meaning of 5 U.S.C. § 552(f)(1). ICE is responsible for enforcing federal laws governing border control, customs, trade, and immigration. On information and belief, ICE has possession, custody, and control of records that Plaintiff seeks in its FOIA request.
9. CBP is a component agency of DHS. It is within a department within the executive branch of the U.S. government headquartered in Washington, D.C., and it is an agency within the meaning of 5 U.S.C. § 552(f)(1). CBP is a law enforcement agency in charge of border management and control. On information and belief, CBP has possession, custody, and control of records that Plaintiff seeks in its FOIA request.
STATEMENT OF FACTS 10. In 2017, news outlets reported that DHS was contemplating a new policy to intentionally and systematically separate families of noncitizens who arrive at the border to deter their migration to the United States. 11. Since that time, DHS has provided many conflicting public statements about the existence or nonexistence of a family separation policy, though news outlets, congressional offices and organizations that provide legal assistance to noncitizens at the U.S.-Mexico border have reported that the practice is widespread. 12. Senator Dianne Feinstein’s office recently shared statistics indicating DHS has taken 2,342 children, including infants and toddlers, from their parents in a single five-week span from May 5 to June 9, 2018.
4

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13. DHS has represented in a separate action challenging family separation that there is no family separation policy and that such a policy would be “antithetical to [] child welfare values.” Ms. L. v. U.S. Immigration & Customs Enforcement, 302 F.Supp.3d 1149, 1149 (S.D. Cal. 2018). DHS Secretary Kirstjen Nielson recently stated in a tweet: “[w]e do not have a policy of separating families at the border. Period.” She has stated that removing children from their parents necessarily happens when parents are prosecuted for admission-related crimes and their children cannot be detained with them in federal custody. In contrast, other Administration officials, such as White House Chief of Staff John Kelly and Steve Wagner, the Principal Deputy Assistant Secretary and Acting Assistant Secretary at the United States Department of Health and Human Services’ (“HHS”) Administration for Children and Families, have indicated that a family separation policy is or was under consideration and may effectively deter families from coming to the United States.
14. DHS policies have also been impacted by other executive agencies, such as the United States Department of Justice (“DOJ”). On April 6, 2018, Attorney General Jeff Sessions notified all United States Attorney’s Offices along the southwest border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by a non-citizen. This policy mandates the prosecution for illegal entry of everyone apprehended between ports of entry, including asylum seekers.
15. On June 20, 2018, the family separation landscape changed again when the President issued an Executive Order stating that the Administration will continue to prosecute crimes such as “improper entry” under the 8 U.S.C. § 1325(a) under a “zero tolerance” policy but will institute a “temporary detention policy” so family members may remain together during criminal or immigration proceedings. It is unclear how this new policy will interact with existing
5

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agency policies related to family separation or will be possible without modifications to legal protections for detained children in the decades-old Flores settlement agreement. Many news outlets and organizations that work with separated families report that families are not being reunited after the issuance of the Executive Order, and that parents have been deported without their children.
16. On June 21, 2018, CBP issued a statement indicating family separation policies will continue. Notwithstanding the Executive Order, it stated families may continue to be separated “due to humanitarian, health and safety, or criminal history in addition to illegally crossing the border.” CBP has not explained the specific criteria by which it will make these determinations.
17. On June 23, 2018, DHS published on its website a “Fact Sheet” describing how CBP, ICE, and HHS will coordinate “family reunification.” On the evening of June 26, 2018, the court in Ms. L v. U.S. Immigration & Customs Enforcement issued twin orders certifying a class of separated parents and children and issuing a preliminary injunction against the Defendants and other United States government agencies regarding the treatment of parents and children separated at the border. Order Granting In Part Plaintiffs’ Motion for Class Certification, Ms. L v. U.S. Immigration & Customs Enforcement, No. 18-cv-428 DMS (S.D.CA, June 26, 2018), ECF No. 82; Order Granting Plaintiffs’ Motion for Classwide Preliminary Injunction, id., ECF No. 83. In its orders, the Court pointed out that the Fact Sheet addresses only the reunification of children with their separated parents “for the purpose of removal”; it does not address reunification of these families during the pendency of criminal or immigration proceedings. The insufficiency of the Fact Sheet and other factors informed the Court’s decision to order Defendants to reunify adult class members with their minor children within 30 days
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“[u]nless there is a determination that the parents is unfit or presents a danger to the child, or the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child,” to facilitate communication between class members and their children, and to cease detaining class members apart from their minor children. Order Granting Plaintiffs’ Motion for Classwide Preliminary Injunction, id., ECF No. 83 at 22-23.
Defendants’ Failure to Properly Respond to the FOIA Requests 18. On April 3, 2018, the Council and co-requesters submitted separate FOIA requests to DHS, CBP, and ICE. Corresponding requests were sent to HHS, the DOJ and select component agencies. The requests to DOJ and HHS are not the subject of this lawsuit. 19. The FOIA requests to the Defendants sought records related to the processing and treatment of noncitizen families who arrive at the border, particularly the U.S.-Mexico border. The requests ask for policies, guidance and training related to the separation of adult family members from minor children, all complaints referencing family separation received by the agencies, and data capturing the number of children separated from their families and the number of adult family members who were referred for criminal prosecution. Copies of the FOIA request to CBP, ICE, and DHS are attached hereto as Exhibits A, B, and C, respectively. Although the three requests are not identically worded, they are substantively similar. 16. Upon a request for records, FOIA requires each agency (1) to conduct a search reasonably calculated to uncover all responsive documents; and (2) to promptly make available such responsive records. 5 U.S.C. § 552(a)(3)(A), (C). 17. FOIA also requires the agency to make a determination of whether it will comply with the request within 20 working days. 5 U.S.C. § 552(a)(6)(A)(i); 6 C.F.R. § 5.6(c). If
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unusual circumstances apply, then an agency may request, by written notice, an additional 10 working days to issue its determination. 5 U.S.C. § 552(a)(6)(B)(i).
18. If an agency fails to comply with the time periods set forth in the statute, then the requester is “deemed to have exhausted his administrative remedies,” and may seek judicial review. 5 U.S.C. § 552(a)(6)(C)(i). The agency also will not be permitted to assess search fees if it fails to comply with the applicable time limits. 5 U.S.C. § 552(a)(4)(A)(viii)(I); 6 C.F.R. § 5.11(d)(2).
19. On April 5, 2018, the Privacy Office of DHS, which handles FOIA requests directed at DHS, sent the Council letters acknowledging that it had received the request on April 4, 2018, and requested a 10-day extension as permitted under 6 C.F.R. § 5.5(c). Copies of the DHS acknowledgment letters are attached hereto as Exhibit D.
20. On April 17, 2018, ICE acknowledged that it had received the request on April 3, 2018 and requested a 10-day extension as permitted under 5 U.S.C § 552(a)(6)(B). A copy of the ICE acknowledgment letter is attached hereto as Exhibit E.
21. Even with the requested 10-day extension, the deadline for making a determination regarding responsive documents expired after 30 working days, on May 15, 2018 for ICE and on May 16, 2018 for DHS.
22. On May 8, 2018, the Council sent follow-up requests to each Defendant. By this date, the Council had not received an acknowledgment letter from CBP and had not received any determination on the FOIA requests from ICE, CBP or ICE. Copies of the follow-up letters to DHS, ICE and CBP are attached hereto as Exhibits F, E.1, and G, respectively.
23. Following the prompt, on May 30, 2018, CBP sent an acknowledgment letter, which neither informed the Council of its intent to respond within the 20-day statutory time
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period nor that it was requesting a 10-day extension. A copy of the CBP acknowledgment letter is attached hereto as Exhibit H.
24. 60 working days after receiving the FOIA requests, the three Defendants have failed to make a determination regarding the FOIA requests, notwithstanding their statutory obligation under FOIA to respond. The deadline—even with the extension—passed 29-30 days ago.
25. As of the date of this complaint, Defendants have failed to notify the Council and its co-requesters (a) of any determination regarding the requests, including the scope of any responsive records the government intends to produce or withhold and the reasons for any withholdings; (b) whether they will grant the Council and co-requesters’ fee waiver request; or (c) whether they will produce the requested records or demonstrate that the requested records are lawfully exempt from production.
COUNT I Violation of FOIA, 5 U.S.C. § 552 for Improper Withholding of Responsive Records 26. Plaintiff repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 27. Plaintiff properly requested records within the possession, custody, and control of all three Defendants. 28. Each of the Defendants is an agency subject to FOIA and must therefore make reasonable efforts to search for requested records and to promptly make the requested records available. 5 U.S.C. § 552(a)(3)(A), (C).
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29. On information and belief, each of the Defendants has failed to promptly review agency records for the purpose of locating those records which are responsive to the FOIA requests.
30. Each of the Defendants has failed to comply with FOIA’s statutory deadline for making a determination as to whether it will comply with Plaintiff’s requests, in violation of 5 U.S.C. § 552(a)(6)(A)(i); 6 C.F.R. § 5.6(c) and 5 U.S.C § 552(a)(6)(B).
31. Furthermore, each of the Defendants is improperly withholding agency records requested by Plaintiff by failing to produce records responsive to its FOIA requests.
32. Plaintiff is therefore entitled to injunctive and declaratory relief requiring each of the Defendants to promptly make reasonable efforts to search for records responsive to the FOIA requests, to make a prompt determination as to compliance with the FOIA requests, and to promptly produce all non-exempt records responsive to those FOIA requests and provide indexes of any responsive records withheld under claim of exemption.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests the Court to:
(1) Declare that Defendants’ failure to comply with the statutory deadline to make a determination in response to Plaintiff’s FOIA requests violated FOIA;
(2) Declare that Defendants’ refusal to conduct a reasonable search for records responsive to Plaintiff’s FOIA requests violated FOIA;
(3) Declare that Defendants’ refusal to disclose all records responsive to Plaintiff’s FOIA requests violated FOIA;
(4) Order Defendants and any of Defendants’ departments, components, other organizational structures, agents, or other persons acting by, through, for, or on behalf
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of Defendants to conduct a reasonable search for records responsive to Plaintiff’s FOIA requests; (5) Order each Defendant to produce, by such a date as the Court deems appropriate, any and all non-exempt records responsive to Plaintiff’s FOIA requests and indexes of any responsive records withheld under claim of exemption; (6) Order each Defendant to waive the fees associated with Plaintiff’s FOIA requests; (7) Enjoin the Defendants from continuing to withhold any and all non-exempt records responsive to Plaintiff’s FOIA requests; (8) Award Plaintiff the costs of this proceeding, including reasonable attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); (9) Grant Plaintiff such other relief as the Court deems just and proper.

Dated: June 27, 2018

Respectfully submitted,
/s/ Ni Qian______________ Ni Qian (Bar No. D00465) Rachel Weiner Cohen (pro hac vice motion to follow) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, D.C. 20006 (202) 663-6000 (phone) (202) 663-6363 (fax) ni.qian@wilmerhale.com rachel.cohen@wilmerhale.com
John Walsh (pro hac vice motion to follow) WILMER CUTLER PICKERING HALE AND DORR LLP 1225 Seventeenth St.
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Case 1:18-cv-01531-RCL Document 1 Filed 06/27/18 Page 12 of 12 Suite 2600 Denver, CO 80202 (720) 274-3154 (phone) (720) 274-3133 (fax) john.walsh@wilmerhale.com Emily Creighton (Bar No. 1009922) AMERICAN IMMIGRATION COUNCIL 1331 G Street, N.W., Suite 200 Washington, DC 20005 (202) 507-7500 (phone) (202) 742-5619 (fax) ecreighton@immcouncil.org Counsel for Plaintiff
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 Case 1:18-cv-01531-RCL Document 16 Filed 08/29/18 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

AMERICAN IMMIGRATION

)

COUNCIL,

)

)

Plaintiff,

)

)

v.

)

)

U.S. IMMIGRATION & CUSTOMS

)

ENFORCEMENT, et al.,

)

)

Defendants.

)

___________________________

)
)

Civil Case No. 18-1531 (RCL)

ORDER Pursuant to Local Rule 16.3(b)(10), parties to a FOIA action are exempted from typical scheduling order requirements. As such, the burden is on the government to produce a Vaughn index with a supporting motion to dismiss or motion for summary judgment, as appropriate. The index and supporting motion shall be filed within 30 days of this date, or such further time as this Court allows. IT IS SO ORDERED.

Royce C. Lamberth United States District Judge

 
 Case 1:18-cv-01531-RCL Document 17 Filed 09/21/18 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

AMERICAN IMMIGRATION )

COUNCIL,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 18-1531 (RCL)

)

U.S. IMMIGRATIONS &

)

CUSTOMS ENFORCEMENT

)

et al.,

)

)

Defendants. )

_____________________________ )

DEFENDANTS’ UNOPPOSED MOTION TO STAYORDER

In this Freedom of Information Act (“FOIA”) case, by Order dated August 29, 2018, this

Court ordered defendants to produce a Vaughn index and supporting dispositive motion by

September 29, 2018. None of the defendants, however, has completed processing plaintiff’s

FOIA requests. Although certain searches for responsive documents have been undertaken, all

three agencies intend to do further searches for responsive information. In order to narrow the

issues that would require judicial resolution, defendants have forwarded to plaintiff proposed

search terms to be used in completing the searches.

Plaintiff has stated that it will respond to defendants’ proposed search terms on or before

September 28, 2018. The parties will then try and resolve any differences, and once any

differences are resolved, the searching will promptly begin.

For the foregoing reasons, defendants requests that this unopposed motion to stay the

August 29, 2018 Order be granted, and that the parties be ordered to submit a joint proposed

Case 1:18-cv-01531-RCL Document 17 Filed 09/21/18 Page 2 of 3
schedule for further proceedings on or before October 15, 2018. Respectfully submitted,
JESSIE K. LIU, D.C. BAR # 472845 United States Attorney
for the District of Columbia DANIEL F. VAN HORN, D.C. BAR # 924092 Chief, Civil Division /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202)252-2561 Marina.Braswell@usdoj.gov
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Case 1:18-cv-01531-RCL Document 17 Filed 09/21/18 Page 3 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

AMERICAN IMMIGRATION

)

COUNCIL,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 18-1531 (RCL)

)

U.S. IMMIGRATIONS &

)

CUSTOMS ENFORCEMENT, )

et al.,

)

)

Defendants. )

_____________________________ )

ORDER UPON CONSIDERATION of defendants’ unopposed motion to stay the Court’s August 29, 2018 Order, and the entire record in this case, it is hereby ORDERED that for good cause shown defendants’ unopposed motion is granted; and it is further ORDERED that the Court’s Order dated August 29, 2018, is hereby stayed until October 15, 2018; and it is further ORDERED that the parties shall file a proposed schedule for further proceedings on or before October 15, 2018.

________________________________ UNITED STATES DISTRICT JUDGE

 
 Case 1:18-cv-01531-RCL Document 50 Filed 03/23/20 Page 1 of 1