Case 3:17-cv-07204-EDL Document 1 Filed 12/19/17 Page 1 of 9

1 D. Victoria Baranetsky (SBN 311892)
2 THE CENTER FOR INVESTIGATIVE REPORTING
1400 65th St., Suite 200 3 Emeryville, CA 94608
Telephone: (510) 809-3160
4 Fax: (510) 849-6141
vbaranetsky@revealnews.org 5
6 Attomey for Plaintiff

7 UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
OAKLAND-SAN FRANCISCO DIVISION 10

11

12 THE CENTER FOR INVESTIGATIVE

) Case No. _ _ _ _ __

REPORTING and BERNICE YEUNG,

)

13

) COMPLAINT FOR INJUNCTIVE

Plaintiffs, ) RELIEF

14

)

v.

)

15

)

UNITED STATES DEPARTMENT OF 16 HOMELAND SECURITY,

) )

17

)

Defendant. )

18 ___________________________)

19 INTRODUCTION
20 1. This is an action under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552,
21 for injunctive and other appropriate relief. The Center for Investigative Reporting ("CIR") and
22
Bernice Yeung (together, "Plaintiffs") seek expedited processing and release of agency records 23
requested from Defendant the United States Department of Homeland Security ("DHS"). 24
2. On June 14,2017, Plaintiffs submitted a Freedom oflnformation Act request (the 25
"Request") to DHS seeking records pertaining to Customs and Border Protection ("CBP") and its 26
procedures, policies, and other materials involving expedited removal. 27
II 28

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I

3. To date, Defendant has failed to comply with statutoty deadlines and has provided

2 no response to Plaintiffs.

3

4. DRS's failure to provide any response is of particular public concern because

4 expedited removal policies and procedures remain obscme despite their potentially injurious

5 impact on immigrants and citizens alike at the United States border.

6

5. The public interest in the release of these DHS records is especially substantial as it

7 may implicate tens and perhaps hundreds of thousands of individuals who may be seized and

8 possibly depotied through its procedures.

9

6. Additionally, since President Donald TIUmp's executive orders related to

10 immigration, there has been increased public concem over the likely expansion of expedited

11 removal.

12

7. Plaintiffs now ask the Comi for an injunction requiring DHS to promptly release the

13 withheld records.

14

PARTIES

15

8. Plaintiff CIR publishes Reveal, an online news site at revealnews.org and produces

16 Reveal, a weekly public radio show with approximately 1 million listeners a week. Founded in

17 1977, as the first national investigative news organization, CIR has received multiple awards for its

18 repotiing. CIR is a non-profit established under the laws of the State of California, with its primary

19 office in Emeryville, California.

20

9. Bernice Yeung is a staff reporter for Reveal and an employee of CIR.

21

10. Defendant DHS is a department of the executive branch of the U.S. govemment and

22 an "agency" within the meaning of 5 U.S. C. §552(J)(l). CBP is a component ofDHS and is

23 charged with keeping terrorists out of the United States. DHS has its headqumiers in Washington,

24 D.C. and offices all over the country, including in Oakland and San Francisco, Califomia.

25 II

26 II

27 II

28 II

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JURISDICTION I
II. The Court has subject matter jurisdiction over this action and personal jurisdiction
2
over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This Court also has 3
jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1436, and 5 U.S.C. §§ 701-706. 4

5

VENUE AND INTRADISTRICT ASSIGNMENT

6

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

7 1391 (e) and 1402. Plaintiff CIR has its principal place of business in this district.

8

13. Assignment to the Oakland Division is proper pursuant to Local Rule 3-2(c) and (d)

9 because a substantial portion of the events giving rise to this action occuned in Alameda County,

10 where Plaintiffs are located.

II FACTUAL BACKGROUND

12

U.S. Policies Regarding Expedited Removal

13

14. In 1996, Congress created under the Illegal Immigration and Immigrant

14 Responsibility Act of 1996, Division C of Pub. L. I 04-208, II 0 Stat. 3009-546 "expedited

15 removal," a procedure that allows a low-level immigration official to expeditiously remove a

16 noncitizen without a hearing before an immigration judge or review by the Board of Immigration

17 Appeals. See 8 U.S.C. § 1225(b)(l); see also Am. Immigration Council, A Primer on Expedited

18 Remova/l-2 (Feb. 3, 2017), https://www.americanimmigrationcouncil.org/research/primer-

19 expedited-removal.

20 15. In subsequent years, the circumstances for applying expedited removal was broadly
21 expanded. Id. at I. For instance, "[s]ince 2004, immigration officials have used expedited removal
22
to deport individuals who arrive at our border, as well as individuals who entered without
23 authorization if they are apprehended within two weeks of arrival and within 100 miles of the
24 Canadian or Mexican border." Id.
25

26

16. Under the Obama Administration, the use of expedited removal also increased

27 dramatically. See Pew Research Ctr., US. deportations ofimmigrants reach record high in 2013

28 (20 14), http://www.pewresearch.org/fact-tank/20 1411 0/02/u-s-deportations-of-immigrants-reach-

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1 record-high-in-2013/. This prompted immediate public interest and scrutiny of the policy. See,

2 e.g., Nora Caplan-Bricker, Deported Without Seeing A Judge: One ofthe Worst Parts ofthe

3 Immigration System, NEW REPUBLIC, Aprill4, 2014, http://bit.ly/2yUCikM; Dara Lind, Obama is

4 deporting more immigrants than any president in histmy: explained, Vox.coM, April9, 2014,

5 http://bit.ly/2zkWZ68.

6

17. Since its enactment, immigration advocates and organizations have raised serious

7 concerns with the existence and implementation of expedited removal. Concerns include the

8 failure of expedited removal to provide asylum seekers with an opportunity to express credible fear

9 of retum to their home country, as is done under other immigration procedures. See U.S. Comm'n

10 on Int'l Freedom, Barriers to Protection: The Treatment ofAsylum Seekers Under Expedited

11 Remova/1-2 (20 16), http://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf.

12 Additionally, organizations have stated that the procedure gives too much authority to immigration

13 officials without sufficient opportunity for checks and balances. See id., see also Am. Civil

14 Liberties Union, American Exile: Rapid Deportations That Bypass the Courtroom 18 (Dec. 2014),

15 https://www.aclu.org/files/assets/120214-expeditedremoval_0.pdf.

16 18. Various court documents have indicated that expedited removal yields erroneous

17 deportation of U.S. citizens. See Lyttle v. United States, 867 F. Supp. 2d 1256, 1272-73 (M.D. Ga.
18 2012) (finding U.S. citizen removed incorrectly under expedited removal); see generally Petition
19 for Writ of Habeas Corpus and Complaint, Maria de Ia Paz v. Jeh Johnson, No 1:14-CV-00016

20 (S.D. Tex. Jan. 24, 2014) (alleging U.S. citizen enoneously subjected to expedited removal and

21 resulting in joint stipulation by both parties); see also Ian James, Wrongly Deported, American

22 Citizen Sues INS for $8 Million, L.A. TIMES, Sept. 3, 2000 (chronicling expedited removal of U.S.

23 citizen Sharon McKnight).
24

25

19. In response, the American Civil Libetiies Union ("ACLU") has long been tracking

26 the implementation of expedited removal, and in 2014 the ACLU submitted two FOIA requests to

CBP for documents detailing expedited removal procedures ("ACLU Requests"). A true and 27

correct copy of those FOIA requests is attached as Exhibit I. 28

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I

20. In 2015, CBP disclosed responsive documents to the ACLU, disclosing the agency's

2 policies on expedited removal. A true and correct copy of an interim response is attached as

3 Exhibit 2.

4

21. However, since that time, the agency's procedures and policies around expedited

5 removal have likely changed given new approaches to immigration procedures. On January 25,

6 2017, President Donald Trump issued Executive Order No. 13767, that instructs the Secretmy of 7 Homeland Security to apply expedited removal to the fullest extent of the law. See Border Security

8 and Immigration Enforcement Improvements, 82 Fed. Reg. 8793 (2017). It states, "[p]ursuant to

9 section235(b)(l)(A)(iii)(I) of the INA, the Secretaty shall take appropriate action to apply, in his

10 sole and umeviewable discretion, the provisions of section 235(b)(I )(A)(i) and (ii) of the INA to II the aliens designated under section 235(b)(l)(A)(iii)(II)." !d. at 8796.

12 22. In a subsequent memorandum, DHS Secretary John Kelly issued a memorandum

13 discussing expedited removal in which he stated that the agency would publish a notice in the

14 Federal Register identifying who would be subject to expedited removal. John Kelly, Implement

15 the President's Border Security and Immigration Enforcement Improvements Policies 7 (Feb. 20,

16 2017).

17

18

23. To date, the agency has not published a notice.

19

24. Given these recent statements, questions persist as to the application of expedited

20 removal; the training that immigration officers receive about implementing that policy; what level

21 of discretion is applied to the procedures; and whether there has been abusive application of

22 expedited removal under both previous and current presidential administrations. See, e.g., ACLU,

23 ICE Is Trying to Deport Families Who Fear Religious Persecution Without Due Process,

24 ACLU.ORG, Oct. 30, 2017, https://www.aclu.org/blog/immigrants-rights/ice-and-border-patro1-

25 abuses/ice-trying-deport-families-who-fear-religious; Immigrant Legal Resource Center, Fair

26 Treatment Denied: The Trump Administration's Troubling Attempt to Expand 'Fast-Track'

27 Deportations (2017), https://www.ilrc.org/sites/default/files/resources/2017-06-

28 05_ilrc_report_fair_treatment_denied_final.pdf.

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1

25. Indeed, media reports have documented how public interest in and questioning of

2 expedited removal procedure has intensified this past year. See, e.g., Michael D. Shear and Ron

3 Nixon, New Trump Deportation Rules Allow Far More Expulsions, N.Y. TIMES, Feb. 22, 2017,

4 http://nyti.ms/2m4RAe4; Michael Sangiacomo and Alfredo Corchado, Injured man held hostage by

5 cartel after ICE 'dumped him' at Texas border, lawyer says, DALLAS NEWS, Jul. 28, 2017,

6 http://bit.ly/2z7BnsA; Elise Fo1ey, ICE's 'Targeting Enforcement Operation' Mostly Arrests

7 Immigrants It Wasn't Targeting, BUFFINGTON PosT, Aug. 1, 2017, http://bit.ly/2oFR9ZR.

8

26. Given the recent policy changes, CIR has also produced various news stories on

9 expedited removal, in both radio and text formats. See, e.g., Bernice Yeung and Andrew Becker,

10 Inside Trump's immigration crackdown, REVEAL, Oct. 28, 2017, http://bit.ly/2kd24pu; Bernice

11 Yeung and Andrew Becker, How Trump is expanding the government's secret deportation weapon,

12 REVEAL, Oct. 26,2017, http://bit.ly/2zbhf8E; Bernice Yeung, A judge says these kids get a green

13 card. ICE says they get deported, REVEAL, July 6, 2017, http://bit.ly/2zbhf8E.

14
The FOIA Request 15
27. By letter dated June 14,2017, CIR submitted through its reporter Bernice Yeung, a 16
FOIA request to CBP (hereinafter "the Request") seeking records pertaining to CBP's procedures, 17
policies, and other materials involving expedited removal, among other matters. A copy ofthe 18
Request is attached hereto as Exhibit 3. 19
28. On July 19,2017, Ms. Yeung narrowed the Request for the agency's ease. A true 20
and correct copy of the Request is attached as Exhibit 4. 21
29. The Request closely tracked the ACLU Requests from 2014. Compare Exhibit 1 22
with Exhibits 3 & 4. 23
30. Plaintiffs' Request seeks legal memoranda, procedures, policies, directives, 24
guidance, training materials or guidelines (from 1/1/2012 to the present) for: 25
a. CBP staff on issuing expedited removal orders; 26
b. CBP supervisory staff on reviewing expedited removal orders; 27

28

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1

c. CBP staff on identifying individuals with facially-valid visas who may receive an

2

expedited removal order because they intend to immigrate;

3

d. CBP staff on identifying asylum seekers, including (a) fear of harm or violence and

4

(b) the credible fear standard;

5

e. CBP staff on identifying individuals who have not been physically continuously

6

present in the United States for at least two weeks;

7

f. CBP staff on evidence individuals are permitted to introduce to demonstrate they

8

should not be subject to expedited removal;

9

g. CBP staff on identifying lawful permanent residents, U.S. citizens, or individuals

10

admitted as refugees or previously granted asylum;

11

h. CBP staff on handling cases where an individual is believed to have made a

12

fi·audulent claim for asylum;

13

1. CBP staff on handling cases where an individual is believed to have made a

14

fraudulent claim of U.S. citizenship, lawful permanent resident status, refugee status

15

or asylee status;

16

J. CBP staff on when to rescind an expedited removal order;

17

k. CBP staff on when to allow a withdrawal of a request for admission;

18

I. CBP staff on the use of prosecutorial discretion in expedited removal;

19

m. CBP staff on how to handle cases where an individual makes a claim to U.S.

20

citizenship; and

21

n. CBP staff on how to handle requests from individuals to contact an attomey,

22

consulate, or other representative.

23

31. Plaintiffs seek a waiver of search, review, and reproduction fees on the grounds that

24 disclosure of the requested records is "in the public interest because it is likely to contribute

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

26 primarily in the commercial interest of the requester." Id. § 552(a)(4)(A)(iii).

27 II

28 II

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1

32. Plaintiffs seek a waiver of search and review fees on the grounds that the Reveal

2 qualifies as a "representative of the news media" and that the records are not sought for

3 commercial use. Id. § 552(a)(4)(A)(ii).

4

33. On June 16,2017, DHS sent a letter to the requester acknowledging and transfening

5 the request to CBP. A true and con·ect copy of that response is attached as Exhibit 5.

6

34. By letter dated July 11, 2017, CBP sent a letter acknowledging the Request. A true

7 and correct copy of that response is attached as Exhibit 6.

8

35. On September 26,2017, Ms. Yetmg called CBP to inquire about the Request and a

9 timeframe for processing. She was told that the responsive documents were being processed.

10

36. On November 20, 2017, CIR General Counsel, D. Victoria Baranetsky sent a letter

11 to the CBP FOIA Office and CBP FOIA Appeals, Policy and Litigation Branch, notifying both

12 offices that Ms. Yeung has received no determination from CBP. A true and con·ect copy of the

13 letter (without attachments) is attached as Exhibit 7. The letter also requested an immediate

14 response and processing of the Request.

15

37. To date, CBP has made no final determination on the Request. A true and correct

16 copy of the FOIAonline.gov portal statement is attached as Exhibit 8.

17

38. DHS has failed to comply with FOIA's requirement that an agency will respond to

18 the Request within the 20 business days.

19

39. Having exhausted all administrative remedies, Plaintiffs now seek injunctive relief.

20 CAUSE OF ACTION
21

22

Violation of Freedom oflnformation Act

23

40. Plaintiffs repeat and reallege paragraphs 1-3 9.

24

41. DHS is subject to FOIA and must therefore release in response to a FOIA request

25 any disclosable records in its possession at the time of the request and provide a lawful reason for

26 withholding any materials as to which it is claiming an exemption.

27

42. DHS has no lawful basis for declining to release the records requested by Plaintiffs

28 under FOIA.

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43. DHS has failed to act on Plaintiffs' Request within the 20 business days required by

2 FOIA. See 5 U.S .C. § 552(a)(6)(A)(i). Accordingly, Plaintiffs are deemed to have exhausted their

3 administrative remedies under FOIA.

4

44. Plaintiffs are entitled to an order compelling DHS to produce records responsive to

5 the Request.
REQUESTED RELIEF 6
WHEREFORE, Plaintiffs pray that this Comt: 7
1. Declare that Defendant DHS violated FOIA by failing to comply with the 20
8 business days required by FOIA and notifying Plaintiffs of any determination;
9 2. Declare that DHS violated FOIA by failing to determine whether to provide
10 expedited processing within 10 days and thereafter notifying Plaintiffs of such determination;
11 3. Declare that the documents sought by their FOIA request, as described in the
12 foregoing paragraphs, are public under 5 U.S.C. § 552 and must be disclosed;
13 4. Order Defendant DHS to provide the requested documents to Plaintiffs within 20
14 business days of the Court's order, or in the alternative, provide for expedited proceedings to
15 adjudicate Plaintiffs' rights under FOIA;
16 5. Award Plaintiffs the costs of this proceeding, including reasonable attorneys' fees,
17 as expressly permitted by FOIA; and
18 6. Grant Plaintiffs such other and frnther relief as this Court may deem just and proper.
19

20 DATED: December 19,2017 21 22 23 24 25 26 27

::sp:.ctf~==-

D. vi

)

THE CENTER FOR INVESTIGATIVE REPORTING

1400 65th St., Suite 200

Emeryville, CA 94608

Telephone: (51 0) 809-3160

vbaranetsky@revealnews.org

Attorney for Plaintiffs

28

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COMPLA INT FOR INJUNCTIVE RELIEF

 
 1/12/2018

CAND-ECF
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17-cv-07204-EDL

ADRMOP

The Center for Investigative Reporting et al (CIR) v. Department of Date Filed: 12/19/2017

Homeland Security

Jury Demand: None

Assigned to: Magistrate Judge Elizabeth D. Laporte

Nature of Suit: 895 Freedom of Information

Cause: 05:552 Freedom of Information Act

Act

Jurisdiction: U.S. Government Defendant

Plaintiff
The Center for Investigative Reporting (CIR)

represented by Diana Victoria Baranetsky The Center for Investigative Reporting 1400 65th Street Suite 200 Emeryville, CA 94608 510-809-3160 Fax: 510-849-6141 Email: vbaranetsky@revealnews.org ATTORNEY TO BE NOTICED

Plaintiff Bernice Yeung

represented by Diana Victoria Baranetsky (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Department of Homeland Security

Date Filed 12/19/2017
12/19/2017 12/19/2017

# Docket Text
1 COMPLAINT against Department of Homeland Security ( Filing fee $ 400, receipt number 0971-11964026.). Filed byThe Center for Investigative Reporting (CIR). (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Civil Cover Sheet)(Baranetsky, Diana) (Filed on 12/19/2017) (Entered: 12/19/2017)
2 Proposed Summons. (Baranetsky, Diana) (Filed on 12/19/2017) (Entered: 12/19/2017)
3 Case assigned to Magistrate Judge Elizabeth D. Laporte.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?477632385859297-L_1_0-1

1/2

1/12/2018
12/21/2017 12/21/2017 01/02/2018 01/04/2018

CAND-ECF
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 1/2/2018. (bwS, COURT STAFF) (Filed on 12/19/2017) (Entered: 12/20/2017)
4 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 3/13/2018. Initial Case Management Conference set for 3/20/2018 10:00 AM in Courtroom E, 15th Floor, San Francisco. (slhS, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
5 Summons Issued as to Department of Homeland Security. (slhS, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
6 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by The Center for Investigative Reporting (CIR), Bernice Yeung.. (Baranetsky, Diana) (Filed on 1/2/2018) (Entered: 01/02/2018)
7 CERTIFICATE OF SERVICE by The Center for Investigative Reporting (CIR), Bernice Yeung (Baranetsky, Diana) (Filed on 1/4/2018) (Entered: 01/04/2018)

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 Case 3:17-cv-07204-EDL Document 8 Filed 01/23/18 Page 1 of 11

D. Victoria Baranetsky (SBN 311892)
2 THE CENTER FOR INVESTIGATIVE REPORTING
1400 65th St., Suite 200 3 Emeryville, CA 94608
Telephone: (510) 809-3160 4 Fax: (510) 849-6141
vbaranetsky@revealnews.org 5
6 Attorney for Plaintiffs

7
UNITED STATES DISTRICT COURT 8

FOR THE NORTHERN DISTRICT OF CALIFORNIA 9

10

OAKLAND-SAN FRANCISCO DIVISION

11

12 THE CENTER FOR INVESTIGATIVE REPORTING and BERNICE YEUNG,

) Case No. 3:17-cv-07204-EDL )

13

) AMENDED COMPLAINT FOR

Plaintiffs, ) INJUNCTIVE RELIEF

14

)

v. 15

) )

16

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

) )

17

)

Defendant. )

18 ________________________)

19

20

INTRODUCTION

21

1. This is an action under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552,

22 for injunctive and other appropriate relief. The Center for Investigative Reporting ("CIR") and

Bernice Yeung (together, "Plaintiffs") seek expedited processing and release of agency records 23

unlawfully withheld by Defendant the United States Department of Homeland Security ("DHS") in 24

response to a FOIA request. 25

2. On June 14, 2017, Plaintiffs submitted a Freedom oflnformation Act request (the 26

"Request") to DHS seeking records petiaining to Customs and Border Protection ("CBP") and its 27

procedures, policies, and other materials involving expedited removal. 28

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I

3. Defendant failed to comply with statutory deadlines. As of December 19, 2017,

2 Defendant had made no final determination on the Request.

3

4. On December 19, 2017, Plaintiffs filed their original complaint in this action.

4

5. The next day, on December 20, 2017, Defendant sent a letter with a final

5 determination to Plaintiffs but provided an inadequate response.

6

6. DHS's failure to provide a timely and adequate response is of particular public

7 concern because expedited removal policies and procedures remain obscure despite their

8 potentially injurious impact on immigrants and citizens alike at the United States border.

9

7. The public interest in the release of these DHS records is especially substantial as it

10 may implicate tens and perhaps hundreds of thousands of individuals who may be seized and

II possibly deported through its procedures.

12

8. Additionally, since President Donald Trump's executive orders related to

13 immigration, there has been increased public interest and concern over the likely expansion of

14 expedited removal.

15

9. Plaintiffs now ask the Comi for an injunction requiring DHS to promptly release

16 withheld and redacted records.

17

PARTIES

18

10. Plaintiff CIR publishes Reveal, an online news site at revealnews.org and produces

19 Reveal, a weekly public radio show with approximately I million listeners a week. Founded in

20 1977, as the first national investigative news organization, CIR has received multiple awards for its

21 reporting. CIR is a non-profit established under the laws of the State of California, with its primary

22 office in Emeryville, California.

23

II. Bernice Yeung is a staff reporter for Reveal and an employee of CIR.

24

12. Defendant DHS is a department of the executive branch of the U.S. government and

25 an "agency" within the meaning of 5 U.S.C. §552(f)(l). CBP is a component ofDHS and is

26 charged with keeping terrorists out of the United States. DHS has its headquarters in Washington,

27 D.C. and offices all over the country, including in Oakland and San Francisco, California.

28

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JURISDICTION
1
13. The Court has subject matter jurisdiction over this action and personal jurisdiction
2
over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This Court also has
3 jurisdiction over this action pursuant to 28 U.S. C. §§ 1331 and 1436, and 5 U.S. C. §§ 701-706.
4

5

VENUE AND INTRADISTRICT ASSIGNMENT

6

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

7 1391(e) and 1402. Plaintiff CIR has its principal place of business in this district.

8

15. Assignment to the Oakland Division is proper pursuant to Local Rule 3-2(c) and (d)

9 because a substantial portion of the events giving rise to this action occurred in Alameda County,

10 where Plaintiffs are located.

11
FACTUAL BACKGROUND

12

U.S. Policies Regarding Expedited Removal

13

16. In 1996, Congress created under the Illegal Immigration and Immigrant

14 Responsibility Act of 1996, Division C of Pub. L. 104-208, 110 Stat. 3009-546 "expedited

15 removal," a procedure that allows a low-level immigration official to expeditiously remove a

16 noncitizen without a hearing before an immigration judge or review by the Board of Immigration

17 Appeals. See 8 U.S. C. § 1225(b)(l); see also Am. Immigration Council, A Primer on Expedited

18 Removall-2 (Feb. 3, 2017), https://www.americanimmigrationcouncil.org/research/primer-

19 expedited-removal.

20 17. In subsequent years, the circumstances for applying expedited removal was broadly
21 expanded. Id at 1. For instance, "[s]ince 2004, immigration officials have used expedited removal
22
to deport individuals who anive at our border, as well as individuals who entered without
23 authorization if they are apprehended within two weeks of arrival and within 100 miles of the
24 Canadian or Mexican border." Id
25

26

18. Under the Obama Administration, the use of expedited removal also increased

27 dramatically. See Pew Research Ctr., US. deportations ofimmigrants reach record high in 2013

28 (20 14), http://www.pewresearch.org/fact-tank/20 14/1 0/02/u-s-deportations-of-immigrants-reach-

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I record-high-in-2013/. This prompted immediate public interest and scrutiny of the policy. See, 2 e.g., Nora Caplan-Bricker, Deported Without Seeing A Judge: One ofthe Worst Parts ofthe 3 Immigration System, NEW REPUBLIC, April 14,2014, http://bit.ly/2yUCikM; Dara Lind, Obama is 4 deporting more immigrants than any president in history: explained, VOX.COM, April9, 2014,

5 http://bit.ly/2zkWZ68.

6

19. Since its enactment, immigration advocates and organizations have raised serious

7 concerns with the existence, implementation and expansion of expedited removal. Concerns

8 include the failme of expedited removal to provide asylum seekers with an opportunity to express

9 credible fear of return to their home country, as is done under other immigration procedmes. See

10 U.S. Comm'n on Int'l Freedom, Barriers to Protection: The Treatment ofAsylum Seekers Under

II Expedited Removal1-2 (20 16),

12 http://www.uscirf.gov/sites/default/files/Baniers%20To%20Protection.pdf. Additionally,

13 organizations have stated that the procedm·e gives too much authority to immigration officials

14 without sufficient opportunity for checks and balances. See id., see also Am. Civil Liberties

15 Union, American Exile: Rapid Deportations That Bypass the Courtroom 18 (Dec. 2014),

16 https://www.aclu.org/files/assets/120214-expeditedremoval_0.pdf.

17 20. Various court documents have indicated that expedited removal yields erroneous
18 deportation of U.S. citizens. See Lyttle v. United States, 867 F. Supp. 2d 1256, 1272-73 (M.D. Ga.
19 2012) (finding U.S. citizen removed inconectly under expedited removal); see generally Petition
20 for Writ of Habeas Corpus and Complaint, Maria de laPaz v. Jeh Johnson, No 1:14-CV-00016
21 (S.D. Tex. Jan. 24, 2014) (alleging U.S. citizen enoneously subjected to expedited removal and
22 resulting in joint stipulation by both parties); see also Ian James, Wrongly Deported, American
23 Citizen Sues INS for $8 Million, L.A. TIMES, Sept. 3, 2000 (chronicling expedited removal of U.S.
24 citizen Sharon McKnight).
25
21. In response, the American Civil Liberties Union ("ACLU") and other organizations 26
27 have long been tracking the implementation of expedited removal, and in 2014 the ACLU

28

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1 submitted two FOIA requests to CBP for documents detailing expedited removal procedures 2 ("ACLU Requests"). A true and correct copy of those FOIA requests is attached as Exhibit I.

3

22. In 2015, CBP disclosed responsive documents to the ACLU, disclosing the agency's

4 policies on expedited removal. A true and correct copy of an interim response is attached as

5 Exhibit 2.

6 23. However, since that time, the agency's procedures and policies around expedited
7 removal have likely changed given new approaches to immigration procedures. On January 25,
8 2017, President Donald Trump issued Executive Order No. 13767, that instructs the Secretary of
9 Homeland Security to apply expedited removal to the fullest extent of the law. See Border Security
10 and Immigration Enforcement Improvements, 82 Fed. Reg. 8793 (20 17). It states, "[p]ursuant to
II section 235(b)(l)(A)(iii)(I) of the INA, the Secretary shall take appropriate action to apply, in his
12 sole and unreviewable discretion, the provisions of section 235(b)(!)(A)(i) and (ii) of the INA to
13 the aliens designated under section 235(b)(l)(A)(iii)(II)." !d. at 8796.
14 24. In a subsequent memorandum, DHS Secretary John Kelly issued a memorandum
15 discussing expedited removal in which he stated that the agency would publish a notice in the
16 Federal Register identifying who would be subject to expedited removal. John Kelly, Implement
17 the President's Border Security and Immigration Enforcement Improvements Policies 7 (Feb. 20,
18
2017). 19

20

25. To date, the agency has not published a notice.

21

26. Given these recent statements, questions persist as to the application and expansion

22 of expedited removal; the training that immigration officers receive about implementing that

23 policy; what level of discretion is applied to the procedmes; and whether there has been abusive

24 application of expedited removal under both previous and current presidential administrations.

25 See, e.g., ACLU, ICE Is Trying to Deport Families Who Fear Religious Persecution Without Due

26 Process, ACLU.ORG, Oct. 30, 2017, https://www.aclu.org/blog/immigrants-rights/ice-and-border-

27 patrol-abuses/ice-trying-depmi-families-who-fear-religious; Immigrant Legal Resource Center,

28

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1 Fair Treatment Denied: The Trump Administration's Troubling Attempt to Expand 'Fast-Track' 2 Deportations (2017), https://www.ilrc.org/sites/default/files/resources/2017-063 05_ilrc_repmi_fair_treatment_denied_final. pdf.

4

27. Indeed, media reports have documented how public interest in and questioning of

5 expedited removal procedure has intensified this past year. See, e.g., Michael D. Shear and Ron

6 Nixon, New Trump Deportation Rules Allo;v Far More Expulsions, N.Y. TIMES, Feb. 22, 2017,

7 http://nyti.ms/2m4RAe4; Michael Sangiacomo and Alfredo Corchado, Injured man held hostage by

8 cartel after ICE 'dumped him' at Texas border, lmvyer says, DALLAS NEWS, Jul. 28, 2017,

9 http://bit.ly/2z7BnsA; Elise Foley, ICE's 'Targeting Enforcement Operation' Mostly Arrests

10 Immigrants It Wasn't Targeting, HUFFINGTON POST, Aug. I, 2017, http://bit.ly/2oFR9ZR.

11 28. The public's questions are not merely hypothetical. Various news stories and public
12 .filings have confirmed that documents exist outlining the Administration's changed policies,
13 recommendations, and guidelines. For instance, The Washington Post recently cited to a 13-page
14 agency memo discussing expedited removal policies. Abigail Hauslohner and David Nakamura, In 15
memo, Trump Administration ·weighs expanding the edited deportation powers ofDHS, THEWASH. 16
POST, July 14, 2017, http://wapo.st/2DEvnMg. On November 28, 2017, during a hearing on the 17
confirmation ofKirstjen Nielsen as the Secretary of the U.S. Department of Homeland Security, 18
Ms. Nielsen represented that she would share policy memos on expedited removal with Sen. 19
Kamala Harris (D-Cal). Hearing Before the Senate Government and Homeland Committee on 20 Nomination ofKirstjen M. Nielsen To Be Secretary of U.S. Department of Homeland Security, 21
!15th Cong. (20 17). 1 22
29. Recent disclosures have also revealed the existence of documents that would be 23
responsive to Plaintiffs' FOIA but were undisclosed. In a 2017 case filed by the American 24
Immigration Council, the Center for Constitutional Rights, and Latham and Watkins, LLP, the 25
Department of Justice released an exhibit containing a memorandum, titled "Processing Expedited 26

27 ' Available at https://www .hsgac.senate.gov/hearings/nomination-of-kirstjen-m-nielsen-to-be-
28 secretary-us-department-of-homeland-security.

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1 Removal Cases" that appears to detail current expedited removal policies. Al Otro Lado, Inc. v. 2 Elaine C. Duke, No. 2:17-cv-05111-JFW-JPR (C.D. Cal. 2017), Ex. F, ECF No. 110, Nov. 20, 3 20 17. Several other documents that appear to be responsive to CIR' s FOIA request were recently 4 enumerated in a FOIA disclosure of the table of contents for Chapter 11 of CBP's "Officer 5 Reference Tool", including memorandums titled "Withdrawal of Application Procedures at Ports 6 of Entry," "Fraudulent Document Analysis Unit (FDAU) Update," and "Amendment to 7 Memorandum to the Field Regarding Lawful Permanent Resident's (LRPs) Evidence ofLPR 8 Status at Pmis of Entry" among others. See Am. Immigration Lawyers Ass 'n v. Dep 't ofHomeland

9 Sec., No. 1:16-cv-02470 (D.D.C. filed Dec. 19, 2016), Ex F., ECF No. 19-6, July 13, 2017.

10

30. Given the recent public discourse and stated changes in policy, CIR has produced

11 various news stories on expedited removal, in both radio and text formats. See, e.g., Bernice

12 Yeung and Andrew Becker, Inside Trump's immigration crackdown, REVEAL, Oct. 28, 2017,

13 http://bit.ly/2kd24pu; Bemice Yeung and Andrew Becker, How Trump is expanding the

14 government's secret deportation ·weapon, REVEAL, Oct. 26, 2017, http://bit.ly/2zbhf8E; Bernice

15 Yeung, A judge says these kids get a green card. ICE says they get deported, REVEAL, July 6,

16 2017, http://bit.ly/2zbhf8E.

17
The FOIA Request 18
31. By letter dated June 14,2017, CIR submitted through its repotier Bernice Yeung, a 19
FOIA request to CBP (hereinafter "the Request") seeking records pertaining to CBP's procedures, 20
policies, and other materials involving expedited removal, among other matters. A copy of the 21
Request is attached hereto as Exhibit 3. 22
32. On July 19,2017, Ms. Yeung narrowed the Request for the agency's ease. A true 23
and correct copy of the Request is attached as Exhibit 4. 24
33. The Request closely tracked the ACLU Requests from 2014. Compare Exhibit 1 25
with Exhibits 3 & 4. 26
34. Plaintiffs' Request seeks legal memoranda, procedures, policies, directives, 27
guidance, training materials or guidelines (from 1/1/2012 to the present) for: 28

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1

a. CBP staff on issuing expedited removal orders;

2

b. CBP supervisory staff on reviewing expedited removal orders;

3

c. CBP staff on identifying individuals with facially-valid visas who may receive an

4

expedited removal order because they intend to immigrate;

5

d. CBP staff on identifying asylum seekers, including (a) fear of harm or violence and

6

(b) the credible fear standard;

7

e. CBP staff on identifying individuals who have not been physically continuously

8

present in the United States for at least two weeks;

9

f. CBP staff on evidence individuals are permitted to introduce to demonstrate they

10

should not be subject to expedited removal;

11

g. CBP staff on identifying lawful permanent residents, U.S. citizens, or individuals

12

admitted as refugees or previously granted asylum;

13

h. CBP staff on handling cases where an individual is believed to have made a

14

fraudulent claim for asylum;

15

1. CBP staff on handling cases where an individual is believed to have made a

16

fraudulent claim of U.S. citizenship, lawful permanent resident status, refugee status

17

or asylee status;

18

J. CBP staff on when to rescind an expedited removal order;

19

k. CBP staff on when to allow a withdrawal of a request for admission;

20

1. CBP staff on the use of prosecutorial discretion in expedited removal;

21

m. CBP staff on how to handle cases where an individual makes a claim to U.S.

22

citizenship; and

23

n. CBP staff on how to handle requests from individuals to contact an attorney,

24

consulate, or other representative.

25

35. Plaintiffs seek a waiver of search, review, and reproduction fees on the grounds that

26 disclosure of the requested records is "in the public interest because it is likely to contribute

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

28 primarily in the commercial interest of the requester." Id. § 552(a)(4)(A)(iii).

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1

36. Plaintiffs seek a waiver of search and review fees on the grounds that the Reveal

2 qualifies as a "representative of the news media" and that the records are not sought for

3 commercial use. Id. § 552(a)(4)(A)(ii).

4

37. On June 16, 2017, DHS sent a letter to the requester acknowledging and transferring

5 the request to CBP. A true and correct copy of that response is attached as Exhibit 5.

6

38. By letter dated July 11, 2017, CBP sent a letter acknowledging the Request. A true

7 and correct copy of that response is attached as Exhibit 6.

8

39. On September 26, 2017, Ms. Yeung called CBP to inquire about the Request and a

9 timeframe for processing. She was told that the responsive documents were being processed.

10

40. On November 20, 2017, CIR General Counsel, D. Victoria Baranetsky sent a letter

11 to the CBP FOIA Office and CBP FOIA Appeals, Policy and Litigation Branch, notifying both

12 offices that Ms. Yeung has received no determination fi·om CBP. A true and correct copy of the

13 letter (without attachments) is attached as Exhibit 7. The letter also requested an immediate

14 response and processing of the Request.

15

41. As of December 19, 2017, Defendant had made no final determination on the

16 Request. A true and correct copy of the FOIAonline.gov pmial statement is attached as Exhibit 8.

17 As of that date, DHS had failed to comply with FOIA' s requirement that an agency will respond to

18 the Request within the 20 business days.

19

42. On December 19,2017, Plaintiffs filed their original complaint in this action.

20

43. On December 20, 2017, Defendant sent a letter with a final determination to

21 Plaintiffs stating that CBP had "located a total of 166 pages." A true and conect copy of the letter

22 and attached documents are attached as Exhibit 9.

23

44. The letter stated that some responsive documents could be accessed on line and

24 included links to Defendant's websites. However, those links were broken.

25

45. The letter also stated that "CBP has determined that nine pages of the records are

26 partially releasable, pursuant to Title 5 U.S. C. § 552 (b)(6), (b)(7)(C) and (b)(7)(E) and 121 pages

27 of records are withheld in their entirety pursuant to Title 5 § U.S.C. 552 (b)(6), (b)(7)(C) and

28 (b)(7)(E)." Ex. 9.

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I

46. Because DHS had failed to comply with FOIA's requirement that an agency will

2 respond to the Request within the 20 business days, Plaintiffs exhausted all administrative remedies

3 and now seek injunctive and all other appropriate relief.

4

CAUSE OF ACTION

5 Violation of Freedom oflnformation Act

6

47. Plaintiffs repeat and reallege paragraphs 1--46.

7

48. DHS has failed to act on Plaintiffs' Request within the 20 business days required by

8 FOIA. See 5 U.S.C. § 552(a)(6)(A)(i). Accordingly, Plaintiffs are deemed to have exhausted their

9 administrative remedies under FOIA.

10 49. DHS is subject to FOIA and must therefore release in response to a FOIA request

11 any disclosable records in its possession at the time of the request and provide a lawful reason for

12 withholding any materials as to which it is claiming an exemption.

13 50. DHS 's failure to make a reasonable effort to search for the requested records

14 violates FOIA, 5 U.S.C. § 552(a)(3), and Defendants' corresponding regulations.

15

51. DHS has wrongfully withheld requested records.

16 52. Plaintiffs are entitled to an order compelling DHS to search, produce, and disclose

17 records responsive to the Request.

18

REQUESTED RELIEF

19 WHEREFORE, Plaintiffs pray that this Court:

20

I. Declare that Defendant DHS violated FOIA by failing to comply with the 20

21 business days required by FOIA and notifying Plaintiffs of any determination;

22

2. Declare that DHS violated FOIA by failing to determine whether to provide

23 expedited processing within I 0 days and thereafter notifying Plaintiffs of such determination;

24

3. Declare that the documents sought by their FOIA request, as described in the

25 foregoing paragraphs, are public under 5 U.S.C. § 552 and must be disclosed;

26

4.

27 search;

Order Defendant, by a certain date, to demonstrate that it has conducted an adequate

28 //

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Case 3:17-cv-07204-EDL Document 8 Filed 01/23/18 Page 11 of 11

5. Order Defendant DHS to provide the requested documents to Plaintiffs within 20

2 business days of the Court's order, or in the alternative, provide for expedited proceedings to

3 adjudicate Plaintiffs' rights under FOIA;

4

6. Order Defendant, by a certain date, to produce to Plaintiffs any and all non-exempt

5 records or portions of records responsive to Plaintiffs request, as well as a Vaughn index of any

6 records or portions of records withheld due to a claim of exemption;

7

7. Award Plaintiffs the costs of this proceeding, including reasonable attorneys' fees,

8 as expressly permitted by FOIA;

9

8. Enjoin Defendant from improperly withholding records responsive to Plaintiffs

I 0 request; and

11

9. Grant Plaintiffs such other and further relief as tllis Court may deem just and proper.

12 DATED: January 23, 2017
13

14

By:~/=s~--~-+77~~~~------------

15

D. Viet n

e ky (SBN 3 11892)

THE CENTER FOR INVESTIGATIVE REPORTING

16

1400 65th St., Suite 200

Emeryville, CA 94608

17

Telephone: (51 0) 809-3160

vbaranetsky@revealnews.org 18

19

Attorney for Plaintiffs

20

21

22

23

24

25

26

27

28

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