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STAYED,APPEAL,ECF

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:17-cv-07572-ALC

Knight First Amendment Institute at Columbia University v. Department of Homeland Security et al Assigned to: Judge Andrew L. Carter, Jr Cause: 05:552 Freedom of Information Act

Date Filed: 10/04/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff
Knight First Amendment Institute at Columbia University

represented by Aditya Kamdar Durie Tangri LLP 217 Leidesdorff Street San Francisco, CA 94111 415-362-6666 Email: akamdar@durietangri.com TERMINATED: 08/29/2019

Caroline Decell Knight First Amendment Institute At Columbia University 206 Kent Hall New York, NY 10027 (212)-854-1607 Email: carrie.decell@knightcolumbia.org ATTORNEY TO BE NOTICED

Catherine Newby Crump Samuelson Law Technology & Public Policy Clinic U.C. Berkeley School of Law Berkeley, CA 94720 510-643-4800 Fax: 510-643-4625 Email: ccrump@clinical.law.berkeley.edu ATTORNEY TO BE NOTICED

V. Defendant

Leena M. Charlton Pryor Cashman 7 Times Square New York, NY 10036 212-326-0843 Email: lcharlton@pryorcashman.com TERMINATED: 11/13/2020
Megan Kathleen Graham Samuelson Law, Technology & Public Policy Clinic At U.C. B 354 Boalt Hall Berkeley, CA 94720 (510)-664-4381 Email: mgraham@clinical.law.berkeley.edu ATTORNEY TO BE NOTICED
Xiangnong Wang Knight First Amendment Institute at Columbia University 475 Riverside Drive Suite 302 New York, NY 10115 646-745-8500 Email: george.wang@knightcolumbia.org ATTORNEY TO BE NOTICED
Jameel Jaffer Knight First Amendment Institute at Coumbia University 475 Riverside Drive, Suite 302 New York, NY 10115 (646)-745-8500 Email: jameel.jaffer@knightcolumbia.org ATTORNEY TO BE NOTICED

U.S. Department of Homeland Security
Defendant U.S. Immigration and Customs Enforcement TERMINATED: 01/16/2018 Defendant U.S. Citizenship and Immigration Services
Defendant U.S. Department of Justice
Defendant U.S. Department of State
Defendant U.S. Customs and Border Protection
Defendant U.S. Immigration and Customs Enforcement

represented by Jennifer Ellen Blain United States Attorney's Office, SDNY One Saint Andrew's Plaza New York, NY 10007 (212)637-2743 Fax: (212) 637-2730 Email: Ellen.Blain@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/04/2017
10/04/2017 10/04/2017 10/04/2017
10/04/2017
10/04/2017
10/04/2017

# Docket Text
1 COMPLAINT against Citizenship and Immigration Services, Customs and Border Protection, Department of Homeland Security, Department of Justice, Department of State, Immigration and Customs Enforcement. (Filing Fee $ 400.00, Receipt Number 0208-14203758)Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Exhibit Exhibit A (FOIA Request))(Jaffer, Jameel) (Entered: 10/04/2017)
2 CIVIL COVER SHEET filed. (Jaffer, Jameel) (Entered: 10/04/2017)
3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Knight First Amendment Institute at Columbia University.(Jaffer, Jameel) (Entered: 10/04/2017)
4 FILING ERROR - DEFICIENT SUMMONS REQUEST CAPTION TITLE ERROR REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Customs and Border Protection, re: 1
Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) Modified on 10/5/2017 (kl). (Entered: 10/04/2017)
5 FILING ERROR - DEFICIENT SUMMONS REQUEST CAPTION TITLE ERROR REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of Homeland Security, re: 1
Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) Modified on 10/5/2017 (kl). (Entered: 10/04/2017)
6 FILING ERROR - DEFICIENT SUMMONS REQUEST CAPTION TITLE ERROR REQUEST FOR ISSUANCE OF
SUMMONS as to U.S. Department of Justice, re: 1 Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) Modified on 10/5/2017 (kl). (Entered: 10/04/2017)
7 FILING ERROR - DEFICIENT SUMMONS REQUEST CAPTION TITLE ERROR REQUEST FOR ISSUANCE OF

10/04/2017 10/04/2017 10/05/2017
10/05/2017 10/05/2017 10/05/2017

SUMMONS as to U.S. Department of State, re: 1 Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) Modified on 10/5/2017 (kl). (Entered: 10/04/2017)
8 FILING ERROR - DEFICIENT SUMMONS REQUEST CAPTION TITLE ERROR REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Immigration and Customs Enforcement, re: 1
Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) Modified on 10/5/2017 (kl). (Entered: 10/04/2017)
9 FILING ERROR - DEFICIENT SUMMONS REQUEST CAPTION TITLE ERROR REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Citizenship and Immigration Services, re: 1
Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) Modified on 10/5/2017 (kl). (Entered: 10/04/2017)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Andrew L. Carter, Jr. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (kl) (Entered: 10/05/2017)
Magistrate Judge Katharine H. Parker is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (kl) (Entered: 10/05/2017)
Case Designated ECF. (kl) (Entered: 10/05/2017)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Jameel Jaffer to RE-FILE Document No. 9 Request for Issuance of Summons, 8 Request for Issuance of Summons, 4 Request for Issuance of Summons, 7 Request for Issuance of Summons, 6 Request for Issuance of Summons, 5 Request for Issuance of Summons,. The filing is deficient for the following

10/05/2017 10/05/2017 10/05/2017 10/05/2017 10/05/2017 10/05/2017 10/06/2017

reason(s): PLEASE ENTER ALL PARTIES IN THE CAPTION TITLE THAT ARE VIEWABLE OR ENTER ET AL. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (kl) (Entered: 10/05/2017)
10 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Customs and
Border Protection, re: 1 Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) (Entered: 10/05/2017)
11 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of
Homeland Security, re: 1 Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) (Entered: 10/05/2017)
12 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of
Justice, re: 1 Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) (Entered: 10/05/2017)
13 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of
State, re: 1 Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) (Entered: 10/05/2017)
14 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Immigration
and Customs Enforcement, re: 1 Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) (Entered: 10/05/2017)
15 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Citizenship
and Immigration Services, re: 1 Complaint,. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) (Entered: 10/05/2017)
16 ELECTRONIC SUMMONS ISSUED as to U.S. Customs and Border Protection. (kl) (Entered: 10/06/2017)

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11/13/2017

17 ELECTRONIC SUMMONS ISSUED as to U.S. Department of Homeland Security. (kl) (Entered: 10/06/2017)
18 ELECTRONIC SUMMONS ISSUED as to U.S. Department of Justice. (kl) (Entered: 10/06/2017)
19 ELECTRONIC SUMMONS ISSUED as to U.S. Department of State. (kl) (Entered: 10/06/2017)
20 ELECTRONIC SUMMONS ISSUED as to U.S. Immigration and Customs Enforcement. (kl) (Entered: 10/06/2017)
21 ELECTRONIC SUMMONS ISSUED as to U.S. Citizenship and Immigration Services. (kl) (Entered: 10/06/2017)
22 AFFIDAVIT OF SERVICE. U.S. Citizenship and Immigration Services served on 10/10/2017, answer due 10/31/2017; U.S. Customs and Border Protection served on 10/10/2017, answer due 10/31/2017; U.S. Department of Homeland Security served on 10/10/2017, answer due 10/31/2017; U.S. Department of Justice served on 10/10/2017, answer due 10/31/2017; U.S. Department of State served on 10/10/2017, answer due 10/31/2017; U.S. Immigration and Customs Enforcement served on 10/10/2017, answer due 10/31/2017. Service was made by Mail. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) (Entered: 10/20/2017)
23 AFFIDAVIT OF SERVICE. Service was made by Mail. Document filed by Knight First Amendment Institute at Columbia University. (Jaffer, Jameel) (Entered: 10/20/2017)
24 AFFIDAVIT OF SERVICE. U.S. Citizenship and Immigration Services served on 11/6/2017, answer due 11/27/2017; U.S. Customs and Border Protection served on 11/6/2017, answer due 11/27/2017; U.S. Department of Homeland Security served on 11/6/2017, answer due 11/27/2017; U.S. Department of State served on 11/7/2017, answer due 11/28/2017; U.S. Immigration and Customs Enforcement served on 11/6/2017, answer due 11/27/2017. Service was made by Mail. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Delivery Confirmation)(Jaffer, Jameel) (Entered: 11/09/2017)
25 LETTER MOTION for Extension of Time to File Answer addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated November 13, 2017. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of

11/14/2017
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01/11/2018 01/12/2018

State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 11/13/2017)
26 ORDER: granting 25 Letter Motion for Extension of Time to Answer. The application is granted. U.S. Citizenship and Immigration Services answer due 12/28/2017; U.S. Customs and Border Protection answer due 12/28/2017; U.S. Department of Homeland Security answer due 12/28/2017; U.S. Department of Justice answer due 12/28/2017; U.S. Department of State answer due 12/28/2017; U.S. Immigration and Customs Enforcement answer due 12/28/2017. (Signed by Judge Andrew L. Carter, Jr on 11/14/2017) (ap) (Entered: 11/14/2017)
27 ANSWER to 1 Complaint,. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State.(Blain, Jennifer) (Entered: 12/28/2017)
28 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated December 28, 2017 re: Immigration and Customs Enforcement Request for Pre-Motion Conference re Motion to Dismiss. Document filed by U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 12/28/2017)
29 FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - STIPULATION OF VOLUNTARY DISMISSAL It is hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above-captioned action is voluntarily dismissed, WITHOUT prejudice against the defendant(s) U.S. Immigration and Customs Enforcement pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Document filed by Knight First Amendment Institute at Columbia University.(Jaffer, Jameel) Modified on 1/12/2018 (km). (Entered: 01/11/2018)
30 LETTER addressed to Judge Andrew L. Carter, Jr. from Counsel for Plaintiff dated January 11, 2018 re: U.S. Immigration and Customs Enforcement Request for Pre-Motion Conference re Motion to Dismiss. Document filed by Knight First Amendment Institute at Columbia University.(Jaffer, Jameel) (Entered: 01/11/2018)
***NOTE TO ATTORNEY TO E-MAIL PDF. Note to Attorney Jameel Jaffer for noncompliance with Section 18.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E-MAIL the PDF for
Document 29 Stipulation of Voluntary Dismissal with handwritten signatures of the attorneys to: judgments@nysd.uscourts.gov. (km) (Entered: 01/12/2018)

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31 STIPULATION OF VOLUNTARY DISMISSAL OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT PURSUANT TO F.R.C.P. 41(a)(1)(A)(ii): IT IS HEREBY STIPULATED AND AGREED by and between the parties' respective counsels that the above-captioned action is voluntarily dismissed, without prejudice, against the defendant U.S. Immigration and Customs Enforcement pursuant to Federal Rule of Civil Procedure 41(a)(1) (A)(ii). U.S. Immigration and Customs Enforcement terminated. (Signed by Judge Andrew L. Carter, Jr on 1/16/2018) (rj) (Entered: 01/16/2018)
32 NOTICE OF CHANGE OF ADDRESS by Jameel Jaffer on behalf of Knight First Amendment Institute at Columbia University. New Address: Knight First Amendment Institute at Columbia University, 475 Riverside Drive, Suite 302, New York, NY, USA 10115, 646-7458500. (Jaffer, Jameel) (Entered: 02/08/2018)
33 ORDER: The Court will hold a status conference in this matter on February 23, 2018 at 3:00 p.m. The parties (and/or counsel) should appear in person in Courtroom 1306 at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY, on the date and time specified above. SO ORDERED. Status Conference set for 2/23/2018 at 03:00 PM in Courtroom 1306, 40 Foley Square, New York, NY 10007 before Judge Andrew L. Carter Jr. (Signed by Judge Andrew L. Carter, Jr on 2/12/2018) (rj) (Entered: 02/12/2018)
34 NOTICE OF APPEARANCE by Catherine Newby Crump on behalf of Knight First Amendment Institute at Columbia University. (Crump, Catherine) (Entered: 02/15/2018)

02/16/2018 02/16/2018

35 MOTION for Megan Kathleen Graham to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14712008. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Knight First Amendment Institute at Columbia University.

(Attachments: # 1 Affidavit, # 2 Exhibit Certificate of Good

Standing, # 3 02/16/2018)

Text of Proposed Order)(Graham, Megan) (Entered:

>>>NOTICE REGARDING PRO HAC VICE MOTION.

Regarding Document No. 35 MOTION for Megan Kathleen Graham to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14712008. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (ma) (Entered: 02/16/2018)

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36 ORDER FOR ADMISSION PRO HAC VICE granting 35 Motion for Megan Kathleen Graham to Appear Pro Hac Vice. (Signed by Judge Andrew L. Carter, Jr on 2/20/2018) (rj) (Entered: 02/20/2018)
37 LETTER addressed to Judge Andrew L. Carter, Jr. from Megan Graham dated 2/20/2018 re: Request to Appear Telephonically at Status Conference. Document filed by Knight First Amendment Institute at Columbia University.(Graham, Megan) (Entered: 02/20/2018)
38 MEMO ENDORSEMENT on re: 37 Letter regarding Request to Appear Telephonically at Status Conference filed by Knight First Amendment Institute at Columbia University. ENDORSEMENT: SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 2/21/2018) (rj) (Entered: 02/23/2018)
Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Status Conference held on 2/23/2018. Jameel Jaffer, Carrie Decell, Alex Abdo, Catherine Crump and Megan Graham for Plaintiff(s). Jennifer Bain for Defendant(s). See Docket No. 39 for complete details. (Court Reporter: Steven Griffing) (tdh) (Entered: 02/26/2018)
39 ORDER: As discussed during the February 23, 2018 status conference in this matter, Defendants will complete their searches for responsive documents by March 30, 2018. Defendant U.S. Customs and Border Protection will complete document production by March 30, 2018. The parties shall submit a joint status report by April 9, 2018. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 2/23/2018) (rj) (Entered: 02/26/2018)
40 FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR - AMENDED COMPLAINT amending 1
Complaint, against U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement.Document filed by Knight First Amendment Institute at Columbia University. Related document: 1
Complaint. (Attachments: # 1 Exhibit A: Letter With Written Consent to File Amended Complaint Pursuant to FRCP 15(a)(2), # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Crump, Catherine) Modified on 3/13/2018 (sj). (Entered: 03/12/2018)

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41 EXHIBIT TO PLEADING re: 40 Amended Complaint,,. Document filed by Knight First Amendment Institute at Columbia University.(Crump, Catherine) (Entered: 03/12/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Catherine Newby Crump to REFILE re: Document No. 40 Amended Complaint. The filing is deficient for the following reason(s): all of the parties listed on the pleading were not entered on CM ECF; the wrong party/parties whom the pleading is against were selected; (U.S. Immigration and Customs Enforcement was previously terminated and must be added back to the docket). Docket the event type Add Party to Pleading found under the event list Complaints and Other Initiating Documents.. Re-file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (sj) (Entered: 03/13/2018)
42 AMENDED COMPLAINT amending 1 Complaint, against U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement.Document filed by Knight First Amendment Institute at
Columbia University. Related document: 1 Complaint,.
(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)(Crump, Catherine) (Entered: 03/14/2018)
43 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Immigration
and Customs Enforcement, re: 42 Amended Complaint,,. Document filed by Knight First Amendment Institute at Columbia University. (Crump, Catherine) (Entered: 03/14/2018)
44 ELECTRONIC SUMMONS ISSUED as to U.S. Immigration and Customs Enforcement. (sj) (Entered: 03/15/2018)
45 NOTICE OF CHANGE OF ADDRESS by Catherine Newby Crump on behalf of Knight First Amendment Institute at Columbia University. New Address: Samuelson Law, Technology & Public Policy Clinic, U.C. Berkeley School of Law, 433 Boalt Hall (North Addition), Berkeley, CA, United States 94720, 510-642-5049. (Crump, Catherine) (Entered: 03/15/2018)

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46 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,. U.S. Immigration and Customs Enforcement served on 3/19/2018, answer due 4/9/2018. Service was made by Mail. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Delivery Confirmation)(Graham, Megan) (Entered: 03/22/2018)
47 ANSWER to 42 Amended Complaint,,. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Blain, Jennifer) (Entered: 04/03/2018)
48 STATUS REPORT. Joint Status Report Document filed by Knight First Amendment Institute at Columbia University.(Crump, Catherine) (Entered: 04/09/2018)

04/13/2018
04/13/2018 04/16/2018 04/20/2018

49 MEMO ENDORSEMENT on re: 48 Status Report filed by Knight First Amendment Institute at Columbia University. ENDORSEMENT: The proposed briefing schedule is adopted. A status conference is scheduled for May 14, 2018 at 10:00 am. SO ORDERED. Status Conference set for 5/14/2018 at 10:00 AM before Judge Andrew L. Carter Jr. (Signed by Judge Andrew L. Carter, Jr on 4/13/2018) (rj) (Entered: 04/13/2018)
50 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated April 13, 2018 re: Joint Status Update re ICE. Document filed by U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 04/13/2018)
51 MEMO ENDORSEMENT on re: 50 Letter regarding Joint Status Update re ICE filed by U.S. Immigration and Customs Enforcement. ENDORSEMENT: SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 4/16/2018) (rj) (Entered: 04/16/2018)
52 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated April 20, 2018 re: Processing and Production Schedule for State and ICE. Document filed by U.S. Department of State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 04/20/2018)

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53 OATH of Eric F. Stein in Support of State Processing Rates. Document filed by U.S. Department of State. (Attachments: # 1 Exhibit 1)(Blain, Jennifer) (Entered: 04/20/2018)
54 OATH of Catrina Pavlik-Keenan in Support of ICE Production Rates. Document filed by U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Blain, Jennifer) (Entered: 04/20/2018)
55 LETTER addressed to Judge Andrew L. Carter, Jr. from Megan Graham dated May 4, 2018 re: Processing and Production Schedule for State and ICE. Document filed by Knight First Amendment Institute at Columbia University.(Graham, Megan) (Entered: 05/04/2018)
56 OATH of Carrie DeCell in Support of the Knight Institute's Letter [ECF 55]. Document filed by Knight First Amendment Institute at Columbia University.(Graham, Megan) (Entered: 05/04/2018)

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57 ORDER: Plaintiff and Defendants U.S. Department of State and U.S. Immigration and Customs Enforcement shall confer regarding processing and production rates in this case and shall submit a joint status report by May 21, 2018. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 5/14/2018) (anc) (Entered: 05/14/2018)
58 LETTER addressed to Judge Andrew L. Carter, Jr. from Carrie DeCell dated 05/14/2018 re: New Information and Proposed DOS Processing Schedule. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 05/14/2018)
Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Status Conference held on 5/14/2018. Megan Graham and Carrie Decell for Plaintiff(s).Jennifer Bain for Defendant(s). See Docket No. 57. (Court Reporter: Andrew Walker) (tdh) (Entered: 05/24/2018)
59 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated May 15, 2018 re: Plaintiffs' Letter Dated May 14, 2018. Document filed by U.S. Department of State.(Blain, Jennifer) (Entered: 05/15/2018)
60 ORDER: The Court is in receipt of Plaintiff's letter dated May 14, 2018. (ECF No. 58.) Defendant U.S. Department of State shall respond stating its position by May 16, 2018 at 12:00 p.m. (Signed by Judge Andrew L. Carter, Jr on 5/15/2018) (ap) Modified on 5/16/2018 (ap). (Entered: 05/15/2018)

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61 ORDER: The Court is in receipt of Defendant U.S. Department of State's ("DOS") response to Plaintiff' s letter dated May 14, 2018. ECF No. 59. In its letter, DOS stated that it could determine the precise number of responsive pages to Plaintiff's FOIA request by May 17, 2018. Id. DOS is ordered to file a status report providing the number of responsive pages by 3:00 p.m. today. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 5/18/2018) (rj) Modified on 5/18/2018 (rj). (Entered: 05/18/2018)
62 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated May 18, 2018 re: State's Number of Pages to Process. Document filed by U.S. Department of State.(Blain, Jennifer) (Entered: 05/18/2018)
63 ORDER: Accordingly, Plaintiff sought production of all such documents by June 15, 2018. Id. DOS filed a response the following day indicating that it could identify the precise number of responsive pages by May 17, 2018. ECF No. 59. Following an Order by this Court, on May 18, 2018 DOS filed a letter stating that 72 documents, totaling 1,719 pages, are most likely responsive to Plaintiff's request. ECF No. 62. DOS reiterated its request for a schedule of 300 pages per month. ECF No. 62. Having considered the respective parties' proposals and the various arguments made, the Court hereby ORDERS Defendant DOS to complete its processing and production of all responsive documents no later than June 28, 2018. Furthermore, DOS should produce those documents that they identify as responsive to Plaintiff's request on a rolling basis. The Court determines that this schedule provides a reasonable time frame for DOS to respond to, Plaintiff's request. SO ORDERED. ( Responses due by 6/28/2018) (Signed by Judge Andrew L. Carter, Jr on 5/18/2018) (rj) (Entered: 05/21/2018)
64 STATUS REPORT. Second Joint Status Report Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 05/21/2018)
65 ORDER. The Court is in receipt of the parties' joint status report dated May 21, 2018. ECF No. 64. Defendant U.S. Immigration and Customs Enforcement ("ICE") shall submit a status report advising the Court how many pages of records are responsive to Plaintiff's narrowed request by June 18, 2018 or as soon as ICE completes its responsiveness review, whichever is sooner. Defendant U.S. Department of JusticeOffice of Legal Counsel ("DOJ-OLC") shall submit a declaration by May 28, 2018 explaining in more detail the bases for its proposed production schedule. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 5/23/2018) (rjm) (Entered: 05/23/2018)

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66 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated May 29, 2018 re: OLC Production Schedule with Declaration. Document filed by U.S. Department of Justice. (Attachments: # 1 Affidavit Paul P. Colborn)(Blain, Jennifer) (Entered: 05/29/2018)
67 ORDER: The Court is in receipt of Defendant U.S. Department of Justice-Office of Legal Counsel ("DOJ-OLC")'s declaration dated May 29, 2018. ECF No. 66. The Court hereby orders DOJ-OLC to complete its processing and production of all responsive documents no later than July 16, 2018. Furthermore, DOJ-OLC should produce those documents that they identify as responsive to Plaintiff's request on a rolling basis. The Court determines that this schedule provides a reasonable time frame for DOJ-OLC to respond to Plaintiff's request. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 5/31/2018) (ne) (Entered: 05/31/2018)
68 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated June 18, 2018 re: Status Update on Behalf of ICE. Document filed by U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 06/18/2018)
69 ORDER: In a joint status report dated May 21, 2018, Defendant United States Immigration and Customs Enforcement ("ICE") proposed to produce records responsive to Plaintiffs Freedom of Information Act ("FOIA") request on a rolling basis, to be completed by December 31, 2018. ECF No. 64. Plaintiff requested a production deadline of August 31, 2018. Id. At that time, ICE did not know how many documents were responsive to Plaintiff's narrowed request. Id. On May 23, 2018, this Court ordered ICE to submit a status report by June 18, 2018 indicating how many pages of records are responsive to Plaintiff's narrowed request. ECF No. 65. On June 18, 2018, ICE wrote to this Court stating that it has determined that 99 pages of documents are most likely responsive to the narrowed request. ECF No. 68. Plaintiff shall file a response by June 25, 2018 indicating its position on a deadline for ICE's production in light of this information. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 6/21/2018) (rj) (Entered: 06/22/2018)
70 LETTER addressed to Judge Andrew L. Carter, Jr. from Carrie DeCell dated June 22, 2018 re: ICE's Letter dated June 18, 2018. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 06/22/2018)
71 ORDER: The Court hereby ORDERS Defendant U.S. Immigration and Customs Enforcement ("ICE") to complete its processing and production of all responsive documents no later than July 3, 2018.

07/18/2018 07/20/2018 07/24/2018
07/24/2018 07/26/2018
07/27/2018

Furthermore, ICE should produce those documents that they identify as responsive to Plaintiff's request on a rolling basis. SO ORDERED. Responses due by 7/3/2018. (Signed by Judge Andrew L. Carter, Jr on 6/26/2018) (rj) (Entered: 06/26/2018)
72 LETTER addressed to Judge Andrew L. Carter, Jr. from Carrie DeCell dated July 18, 2018 re: Request for Clarification of Orders Setting DOS and ICE Production Schedules. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Declaration of Carrie DeCell)(Decell, Caroline) (Entered: 07/18/2018)
73 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated July 20, 2018 re: Plaintiff's July 18, 2018 Letter. Document filed by U.S. Department of State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 07/20/2018)
74 ORDER: The Court is in receipt of Plaintiff's letter dated July 18, 2018 (ECF No. 72) and Defendants' response dated July 20, 2018 (ECF No. 73). Defendant United States Department of State ("DOS") shall produce all responsive documents by July 31, 2018. Defendant United States Immigration and Customs Enforcement ("ICE") shall make a further submission to this Court stating how many of the referred pages are responsive to Plaintiff's narrowed request and when the review of those pages will be complete by July 25, 2018 at 11:00 a.m. (Signed by Judge Andrew L. Carter, Jr on 7/24/2018) (mro) (Entered: 07/24/2018)
75 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated July 24 2018 re: ICE July 24 Update. Document filed by U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 07/24/2018)
76 ORDER: The Court is in receipt of Defendant United States Immigration and Customs Enforcement ("ICE")'s letter dated July 24, 2018 (ECF No. 75). ICE shall submit a status report informing the Court how many documents are responsive to Plaintiff's narrowed request by July 27, 2018. ICE shall also refer any such remaining responsive documents to the relevant agencies no later than July 27, 2018. The Court defers ruling on a production date for any such documents until it receives ICE's status report. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 7/26/2018) (rj) (Entered: 07/26/2018)
77 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated July 27, 2018 re: Further ICE Update. Document filed by U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 07/27/2018)

10/05/2018 11/09/2018 11/28/2018 12/18/2018

78 LETTER addressed to Judge Andrew L. Carter, Jr. from the Knight Institute dated 10/05/2018 re: Status Update. Document filed by Knight First Amendment Institute at Columbia University.(Graham, Megan) (Entered: 10/05/2018)
79 LETTER addressed to Judge Andrew L. Carter, Jr. from Carrie DeCell dated November 9, 2018 re: Request for Pre-Motion Conference re Motion for Partial Summary Judgment. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 11/09/2018)
80 MEMO ENDORSEMENT on re: 79 Letter regarding Request for PreMotion Conference re Motion for Partial Summary Judgment, filed by Knight First Amendment Institute at Columbia University. ENDORSEMENT: SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 11/28/2018) (rj) (Entered: 11/29/2018)
81 NOTICE OF APPEARANCE by Caroline Decell on behalf of Knight First Amendment Institute at Columbia University. (Decell, Caroline) (Entered: 12/18/2018)

12/27/2018 12/27/2018 02/01/2019
02/06/2019
02/06/2019

82 STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (anc) (Entered: 01/02/2019)
Case Stayed. (anc) (Entered: 01/14/2019)
83 NOTICE OF CHANGE OF ADDRESS by Caroline Decell on behalf of Knight First Amendment Institute at Columbia University. New Address: Knight First Amendment Insitute at Columbia University, 475 Riverside Drive, Suite 302, New York, New York, United States of America 10115, (646) 745-8500. (Decell, Caroline) (Entered: 02/01/2019)
84 MOTION for Aditya Vijay Kamdar to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-16304455. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Knight First Amendment Institute at Columbia University.
(Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Kamdar, Aditya) (Entered: 02/06/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 84 MOTION for Aditya Vijay Kamdar to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number

02/07/2019 02/13/2019
02/15/2019 02/15/2019 02/26/2019
02/26/2019 02/26/2019 02/26/2019

ANYSDC-16304455. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/06/2019)
85 ORDER FOR ADMISSION TO PRACTICE PRO HAC VICE granting 84 Motion for Adi Kamdar to Appear Pro Hac Vice. (Signed by Judge Andrew L. Carter, Jr on 2/7/2019) (ks) (Entered: 02/07/2019)
86 LETTER MOTION for Extension of Time of Proposed Briefing Schedule, on Consent addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated February 13, 2019. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 02/13/2019)
87 ORDER granting 86 Letter Motion for Extension of Time. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 2/15/2019) (mro) (Entered: 02/15/2019)
Set/Reset Deadlines: Cross Motions due by 4/15/2019. Motions due by 3/15/2019. Responses due by 5/15/2019 Replies due by 5/29/2019. (mro) (Entered: 02/15/2019)
88 LETTER MOTION for Leave to File Excess Pages On Consent, and a Status Update Regarding DHS addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated February 26, 2019. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 02/26/2019)
89 MOTION for Summary Judgment as to OLC, ICE and the State Department. Document filed by U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 02/26/2019)
90 MEMORANDUM OF LAW in Support re: 89 MOTION for Summary Judgment as to OLC, ICE and the State Department. . Document filed by U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 02/26/2019)
91 DECLARATION of Toni Fuentes in Support re: 89 MOTION for Summary Judgment as to OLC, ICE and the State Department.. Document filed by U.S. Department of Justice. (Attachments: # 1 Exhibit, # 2 Exhibit)(Blain, Jennifer) (Entered: 02/26/2019)

02/26/2019

92 DECLARATION of Paul P. Colborn in Support re: 89 MOTION for Summary Judgment as to OLC, ICE and the State Department.. Document filed by U.S. Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Blain, Jennifer) (Entered: 02/26/2019)

02/26/2019

93 DECLARATION of Eric F. Stein in Support re: 89 MOTION for Summary Judgment as to OLC, ICE and the State Department.. Document filed by U.S. Department of State. (Attachments: # 1 Exhibit 1 - Vaughn Index, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Blain, Jennifer) (Entered: 02/26/2019)

02/27/2019

94 ORDER granting 88 Letter Motion for Leave to File Excess Pages. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 2/27/2019) (ne) (Entered: 02/27/2019)

03/15/2019

95 MOTION for Summary Judgment as to USCIS and ICE. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 03/15/2019)

03/15/2019

96 MEMORANDUM OF LAW in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE. . Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 03/15/2019)

03/15/2019

97 DECLARATION of Jill A. Eggleston in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE.. Document filed by U.S. Citizenship and Immigration Services. (Blain, Jennifer) (Entered: 03/15/2019)

03/15/2019

98 DECLARATION of Toni Fuentes in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE.. Document filed by U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Vaughn Index)(Blain, Jennifer) (Entered: 03/15/2019)

03/28/2019

99 LETTER MOTION for Leave to File Excess Pages on Consent addressed to Judge Andrew L. Carter, Jr. from Carrie DeCell dated March 28, 2019. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 03/28/2019)

03/28/2019

100 MOTION for Summary Judgment as to ICE, OLC, and DOS. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 03/28/2019)

03/28/2019

101 MEMORANDUM OF LAW in Support re: 100 MOTION for Summary Judgment as to ICE, OLC, and DOS. . Document filed by Knight First Amendment Institute at Columbia University. (Decell, Caroline) (Entered: 03/28/2019)

03/28/2019

102 DECLARATION of Carrie DeCell in Support re: 100 MOTION for Summary Judgment as to ICE, OLC, and DOS.. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Decell, Caroline) (Entered: 03/28/2019)

04/01/2019

103 ORDER granting 99 Letter Motion for Leave to File Excess Pages. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 4/1/2019) (mro) (Entered: 04/01/2019)

04/15/2019

104 MOTION for Summary Judgment as to ICE and USCIS. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 04/15/2019)

04/15/2019

105 MEMORANDUM OF LAW in Support re: 104 MOTION for Summary Judgment as to ICE and USCIS. . Document filed by Knight First Amendment Institute at Columbia University. (Decell, Caroline) (Entered: 04/15/2019)

04/15/2019

106 DECLARATION of Carrie DeCell in Support re: 104 MOTION for Summary Judgment as to ICE and USCIS.. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Decell, Caroline) (Entered: 04/15/2019)

04/16/2019

107 NOTICE of Errata and Corrections re: 105 Memorandum of Law in Support of Motion, 106 Declaration in Support of Motion,. Document filed by Knight First Amendment Institute at Columbia University. (Decell, Caroline) (Entered: 04/16/2019)

04/16/2019

108 MEMORANDUM OF LAW in Support re: 104 MOTION for Summary Judgment as to ICE and USCIS. CORRECTION OF ECF No. 105 . Document filed by Knight First Amendment Institute at Columbia University. (Decell, Caroline) (Entered: 04/16/2019)

04/16/2019

109 DECLARATION of Carrie DeCell in Support re: 104 MOTION for Summary Judgment as to ICE and USCIS.. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Exhibit A, # 2 Exhibit B [CORRECTED], # 3 Exhibit C)(Decell, Caroline) (Entered: 04/16/2019)

04/22/2019

110 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated April 22, 2019. Document filed by U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 04/22/2019)

05/03/2019

111 MEMORANDUM OF LAW in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE. and In Opposition to Plaintiff's Motion. Document filed by U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 05/03/2019)

05/03/2019

112 DECLARATION of Eric Stein in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE.. Document filed by U.S. Department of State. (Blain, Jennifer) (Entered: 05/03/2019)

05/03/2019

113 DECLARATION of Toni Fuentes in Support re: 89 MOTION for Summary Judgment as to OLC, ICE and the State Department.. Document filed by U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 05/03/2019)

05/03/2019

114 MEMORANDUM OF LAW in Support re: 89 MOTION for Summary Judgment as to OLC, ICE and the State Department. CORRECTED. Document filed by U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 05/03/2019)

05/13/2019

115 LETTER MOTION for Extension of Time to File Response/Reply by Two Days, On Consent addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated May 13, 2019. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 05/13/2019)

05/13/2019 116 ORDER granting 110

Letter Motion for Extension of Time to File

Response/Reply re 110 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated April 22, 2019., 115 LETTER MOTION for Extension of Time to File Response/Reply by Two Days, On Consent addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated May 13, 2019. ; granting 115 Letter Motion for Extension

of Time to File Response/Reply re 110 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated April 22, 2019., 115 LETTER MOTION for Extension of Time to File

Response/Reply by Two Days, On Consent addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated May 13, 2019. ENDORSEMENT: SO ORDERED. Responses due by 5/17/2019 Replies due by 5/31/2019. (Signed by Judge Andrew L. Carter, Jr on 5/13/2019) (rj) (Entered: 05/13/2019)

05/17/2019

117 REPLY MEMORANDUM OF LAW in Support re: 100 MOTION for Summary Judgment as to ICE, OLC, and DOS. . Document filed by Knight First Amendment Institute at Columbia University. (Decell, Caroline) (Entered: 05/17/2019)

05/17/2019

118 REPLY MEMORANDUM OF LAW in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE. And In Opposition to Plaintiff's Cross-Motion. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 05/17/2019)

05/17/2019

119 DECLARATION of Jill Eggleston in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE.. Document filed by U.S. Citizenship and Immigration Services. (Blain, Jennifer) (Entered: 05/17/2019)

05/17/2019

120 DECLARATION of Elliot Viker in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE.. Document filed by U.S. Citizenship and Immigration Services. (Blain, Jennifer) (Entered: 05/17/2019)

05/17/2019

121 DECLARATION of Toni Fuentes in Support re: 95 MOTION for Summary Judgment as to USCIS and ICE.. Document filed by U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 05/17/2019)

05/31/2019

122 REPLY MEMORANDUM OF LAW in Support re: 104 MOTION for Summary Judgment as to ICE and USCIS. . Document filed by Knight First Amendment Institute at Columbia University. (Decell, Caroline) (Entered: 05/31/2019)

06/28/2019

123 LETTER addressed to Judge Andrew L. Carter, Jr. from the Knight First Amendment Institute dated 06/28/2019 re: Request for Oral Argument. Document filed by Knight First Amendment Institute at Columbia University.(Graham, Megan) (Entered: 06/28/2019)

07/01/2019

124 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated July 1, 2019 re: DHS Status Update. Document filed by U.S. Department of Homeland Security.(Blain, Jennifer) (Entered: 07/01/2019)

07/02/2019

125 ORDER: The Court is in receipt of Plaintiff's letter dated June 28, 2019 (ECF No. 123) and Defendants' letter in response dated July 1, 2019. ECF No. 124. The Court will hold a status conference in this matter on July 9, 2019 at 3:00 p.m. The parties (and/or counsel) should appear in person in Courtroom 1306 at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY, on the date and time specified above. SO ORDERED. Status Conference set for 7/9/2019 at 03:00 PM in Courtroom 1306, 40 Foley Square, New York, NY 10007 before Judge Andrew L. Carter Jr. (Signed by Judge Andrew L. Carter, Jr on 7/2/2019) (rj) (Entered: 07/03/2019)

07/08/2019

126 LETTER addressed to Judge Andrew L. Carter, Jr. from Knight First Amendment Institute dated 07/08/2019 re: Request to Appear Telephonically. Document filed by Knight First Amendment Institute at Columbia University.(Graham, Megan) (Entered: 07/08/2019)

07/08/2019

127 ORDER: Due to a change in the Court's schedule, the status conference previously scheduled for July 9, 2019, is ADJOURNED to July 16, 2019, at 3:00 p.m. The parties should appear in person in Courtroom 1306 at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY, on the date and time specified above. SO ORDERED., Status Conference set for 7/16/2019 at 03:00 PM in Courtroom 1306, 40 Foley Square, New York, NY 10007 before Judge Andrew L. Carter Jr. (Signed by Judge Andrew L. Carter, Jr on 7/8/2019) (rj) (Entered: 07/08/2019)

07/16/2019

Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Status Conference held on 7/16/2019. Aditya Kamdar, Caroline Decell, and Megan Graham for Petitioner(s). AUSA Jennifer Blain for Government. Andre Manuel, Summer Intern present. See Docket No. 128 for details. (Court Reporter: Sonya Ketter Moore) (tdh) (Entered: 07/26/2019)

07/17/2019

128 ORDER SETTING ORAL ARGUMENT: The Court hereby schedules oral argument for July 31, 2019 at 11:00 a.m. The parties should appear in person at the Thurgood Marshall United States Courthouse, 40 Foley Square, in Courtroom 1306 on the date and time specified above. Furthermore, as discussed in the July 16, 2019 proceeding, the parties are directed to submit joint status reports on or before July 19, 2019 and August 2, 2019 respectively. (Oral Argument set for 7/31/2019 at 11:00 AM in Courtroom 1306, 40 Centre Street, New York, NY 10007 before Judge Andrew L. Carter Jr..) (Signed by Judge Andrew L. Carter, Jr on 7/17/2019) (ne) (Entered: 07/17/2019)

07/19/2019

129 STATUS REPORT. Third Joint Status Report Document filed by Knight First Amendment Institute at Columbia University.(Graham, Megan) (Entered: 07/19/2019)

07/22/2019

130 LETTER addressed to Judge Andrew L. Carter, Jr. from the Knight First Amendment Institute dated 07/22/2019 re: DHS's new search. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 07/22/2019)

07/31/2019

Minute Entry for proceedings held before Judge Andrew L. Carter, Jr: Oral Argument held on 7/31/2019. Caroline Decell, Megan Graham, and Aditya Kamdar for Plaintiff(s). AUSA Jennifer Blain for the Defendant(s). Defendant(s) Supplemental Affidavit Due: 8/7/19. Plaintiff(s) Response Due: 8/14/19. (Court Reporter: Lisa Smith) (tdh) (Entered: 08/01/2019)

08/02/2019

131 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated August 2, 2019 re: Status Update re DHS's Search. Document filed by U.S. Department of Homeland Security.(Blain, Jennifer) (Entered: 08/02/2019)

08/07/2019

132 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated August 7, 2019 re: ICE Searches of the Office of the Director and ERO. Document filed by U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 08/07/2019)

08/07/2019

133 DECLARATION of Alexander Choe in Support re: 89 MOTION for Summary Judgment as to OLC, ICE and the State Department.. Document filed by U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 08/07/2019)

08/07/2019

134 DECLARATION of Eliman Jussara Solorzano in Support re: 89 MOTION for Summary Judgment as to OLC, ICE and the State Department.. Document filed by U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 08/07/2019)

08/09/2019

135 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated August 9, 2019 re: DHS Status Update. Document filed by U.S. Department of Homeland Security.(Blain, Jennifer) (Entered: 08/09/2019)

08/14/2019

136 LETTER addressed to Judge Andrew L. Carter, Jr. from Knight First Amendment Institute dated 08/14/2019 re: ICE Searches of the Office of the Director and ERO. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 08/14/2019)

08/21/2019

137 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated August 21, 2019 re: DHS Search Status Update. Document filed by U.S. Department of Homeland Security.(Blain, Jennifer) (Entered: 08/21/2019)

08/28/2019

138 MOTION for Adi Kamdar to Withdraw as Attorney FOR PLAINTIFF. Document filed by Knight First Amendment Institute at Columbia University.(Kamdar, Aditya) (Entered: 08/28/2019)

08/29/2019

139 MEMO ENDORSED ORDER granting 138 Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. Attorney Aditya Kamdar terminated. (Signed by Judge Andrew L. Carter, Jr on 8/29/2019) (rj) (Entered: 08/29/2019)

09/13/2019

***DELETED DOCUMENT. Deleted document number 140

Opinion and Order. The document was incorrectly filed in this case. (js) (Entered: 09/16/2019)

09/13/2019

140 OPINION AND ORDER re: 100 MOTION for Summary Judgment as to ICE, OLC, and DOS filed by Knight First Amendment Institute at Columbia University. For the foregoing reasons, Defendants' partial motion for summary judgment is GRANTED in part and DENIED in part. Plaintiff's Cross Partial Motion for Summary Judgment is GRANTED in part and DENIED in part. The Clerk of Court is respectfully directed to terminate the Motion at docket entry 100. (Signed by Judge Andrew L. Carter, Jr on 9/13/2019) (ne) (Entered: 09/16/2019)

09/23/2019

141 OPINION AND ORDER re: 95 MOTION for Summary Judgment as to USCIS and ICE filed by U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, 89 MOTION for Summary Judgment as to OLC, ICE and the State Department filed by U.S. Department of State, U.S. Immigration and Customs Enforcement, U.S. Department of Justice, 104 MOTION for Summary Judgment as to ICE and USCIS filed by Knight First Amendment Institute at Columbia University. For the foregoing reasons, Defendants' Motions for Summary Judgment are GRANTED in part and DENIED in part, and Plaintiff's Cross-Motion for Summary Judgment is GRANTED in part and DENIED in part as follows: (1) ICE's Motion is granted and Plaintiff's Cross-Motion is denied with respect to its application of Exemption 5 to the First Amendment Concerns Memo, the 235(c) Memo, the EO Implementation Memo. (2) Plaintiff's Cross-Motion is granted and ICE's Motion is denied with respect to the Extreme Vetting Memo, the Foreign Policy Provisions Memo, and the HSI Updates Memo. ICE must re-assess its applied exemptions to these records,

using this Opinion as guidance, and disclose all responsive non-exempt materials that can reasonably be segregated from exempt materials. (3) USCIS' Motion is granted and Plaintiff's Cross-Motion denied with respect to the TRIG Options Paper and TRIG Exemptions. (4) Plaintiff's Cross-Motion is granted and USCIS' motion is denied with respect to the Acting Director Memo and Senior Policy Council Paper. USCIS must release the reasonably segregable information in these records. (5) The government's motions for summary judgment regarding the unchallenged documents are granted. (Signed by Judge Andrew L. Carter, Jr on 9/23/2019) (ne) (Entered: 09/23/2019)

09/24/2019

142 NOTICE OF APPEARANCE by Leena M. Charlton on behalf of Knight First Amendment Institute at Columbia University. (Charlton, Leena) (Entered: 09/24/2019)

09/30/2019

143 MOTION for Reconsideration in Part of the Court's September 16 and 23 Orders. Document filed by U.S. Citizenship and Immigration Services, U.S. Department of State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 09/30/2019)

09/30/2019

144 MEMORANDUM OF LAW in Support re: 143 MOTION for Reconsideration in Part of the Court's September 16 and 23 Orders. . Document filed by U.S. Citizenship and Immigration Services, U.S. Department of State, U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 09/30/2019)

10/04/2019

145 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated October 4, 2019 re: ICE Status Update. Document filed by U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 10/04/2019)

10/11/2019

146 LETTER addressed to Judge Andrew L. Carter, Jr. from Knight First Amendment Institute dated 10/11/2019 re: ICE, DHS, and Item 1 Searches. Document filed by Knight First Amendment Institute at Columbia University.(Decell, Caroline) (Entered: 10/11/2019)

10/15/2019

147 MEMORANDUM OF LAW in Opposition re: 143 MOTION for Reconsideration in Part of the Court's September 16 and 23 Orders. . Document filed by Knight First Amendment Institute at Columbia University. (Decell, Caroline) (Entered: 10/15/2019)

10/22/2019

148 REPLY MEMORANDUM OF LAW in Support re: 143 MOTION for Reconsideration in Part of the Court's September 16 and 23 Orders. . Document filed by U.S. Citizenship and Immigration Services, U.S. Department of State, U.S. Immigration and Customs Enforcement. (Blain, Jennifer) (Entered: 10/22/2019)

12/06/2019

149 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated December 6, 2019 re: Status of DHS's Search. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State.(Blain, Jennifer) (Entered: 12/06/2019)

12/20/2019

150 STATUS REPORT. (Joint) Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement.(Blain, Jennifer) (Entered: 12/20/2019)

01/30/2020

151 NOTICE OF CHANGE OF ADDRESS by Megan Kathleen Graham on behalf of Knight First Amendment Institute at Columbia University. New Address: Samuelson Law, Technology & Public Policy Clinic, U.C. Berkeley School of Law, Berkeley, CA, 94720, 510-664-4381. (Graham, Megan) (Entered: 01/30/2020)

02/21/2020

152 LETTER MOTION for Extension of Time from February 21 to February 24 to file joint status report addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated February 21, 2020. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement..(Blain, Jennifer) (Entered: 02/21/2020)

02/24/2020

153 ORDER granting 152 Letter Motion for Extension of Time. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 2/24/2020) (ks) (Entered: 02/24/2020)

02/24/2020

154 STATUS REPORT. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement..(Blain, Jennifer) (Entered: 02/24/2020)

05/14/2020

155 STATUS REPORT. (Joint) Document filed by Knight First Amendment Institute at Columbia University..(Decell, Caroline) (Entered: 05/14/2020)

08/13/2020

156 STATUS REPORT. (Joint) Document filed by Knight First Amendment Institute at Columbia University..(Decell, Caroline) (Entered: 08/13/2020)

09/03/2020

157 MOTION for Leena Charlton to Withdraw as Attorney . Document filed by Knight First Amendment Institute at Columbia University..(Charlton, Leena) (Entered: 09/03/2020)

09/13/2020

158 OPINION & ORDER re: 143 MOTION for Reconsideration in Part of the Court's September 16 and 23 Orders. filed by U.S. Department of State, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services. For the reasons set forth below, Defendants' motion for reconsideration is hereby DENIED. I had enough information from DOS's and USCIS's affidavits to conduct the required de novo review of the agencies' withholdings. I determined that the 7(E) exemption did not apply to certain sections of the FAM and the TRIG questions. No supplemental submissions or in camera review is necessary. Defendants have not met the burden to warrant reconsideration of these determinations. Defendants' motion for reconsideration is DENIED in full. (Signed by Judge Andrew L. Carter, Jr on 9/13/2020) (rj) (Entered: 09/14/2020)

10/16/2020

159 LETTER MOTION for Extension of Time to Submit Status Report, with Consent addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated October 16, 2020. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement..(Blain, Jennifer) (Entered: 10/16/2020)

10/19/2020

160 ORDER granting 159 Letter Motion for Extension of Time. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 10/19/2020) (nb) (Entered: 10/19/2020)

10/20/2020

161 STATUS REPORT. (Joint) Document filed by Knight First Amendment Institute at Columbia University..(Decell, Caroline) (Entered: 10/20/2020)

10/21/2020

162 ORDER: The Court is in receipt of the parties' joint status report. (ECF No. 161). The parties shall file a joint status report by December 11, 2020. So Ordered. (Signed by Judge Andrew L. Carter, Jr on 10/21/2020) (js) (Entered: 10/21/2020)

11/04/2020

163 FILING ERROR - DEFICINT DOCKET ENTRY - MOTION for Xiangnong Wang to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-22441979. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Knight First Amendment Institute at Columbia University. (Attachments:

# 1 Affidavit (notarized), # 2 Certificate of Good Standing,

# 3 Text of Proposed Order).(Wang, Xiangnong) Modified on 11/4/2020 (vba). (Entered: 11/04/2020)

11/04/2020

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 163 MOTION for Xiangnong Wang to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-22441979. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from SUPREME COURT OF OREGON;. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (vba) (Entered: 11/04/2020)

11/10/2020

164 MOTION for Xiangnong Wang to Appear Pro Hac Vice with corrected Certificate of Good Standing. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Affidavit (notarized), # 2 Corrected Certificate of Good Standing, # 3 Text of Proposed Order).(Wang, Xiangnong) Modified on 11/10/2020 (bcu). (Entered: 11/10/2020)

11/10/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 164 MOTION for Xiangnong Wang to Appear Pro Hac Vice with corrected Certificate of Good Standing. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 11/10/2020)

11/10/2020

165 FILING ERROR - NO ORDER SELECTED FOR APPEAL - NOTICE OF APPEAL. Document filed by U.S. Citizenship and Immigration Services, U.S. Department of State, U.S. Immigration and Customs Enforcement. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(Blain, Jennifer) Modified on 11/10/2020 (tp). (Entered: 11/10/2020)

11/10/2020

***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Blain, Jennifer to RE-FILE Document No. 165 Notice of Appeal. The filing is deficient for the following reason(s): the order/judgment being appealed was not selected. Refile the appeal using the event type Corrected Notice of Appeal found under the event list Appeal Documents - attach the correct signed PDF - select the correct named filer/filers - select the correct order/judgment being appealed. (tp) (Entered: 11/10/2020)

11/11/2020 166 CORRECTED NOTICE OF APPEAL re: 165 Notice of Appeal, 158

Memorandum & Opinion,,, 140 Memorandum &

Opinion,, 141 Memorandum & Opinion,,,,,,,. Document filed by U.S. Citizenship and Immigration Services, U.S. Department of State, U.S. Immigration and Customs Enforcement..(Blain, Jennifer) (Entered: 11/11/2020)

11/11/2020

167 MEMO ENDORSEMENT on MOTION FOR ADMISSION PRO HAC VICE OF XIANGNONG WANG AS ADDITIONAL COUNSEL FOR PLAINTIFF: granting 164 Motion for Xiangnong Wang to Appear Pro Hac Vice. ENDORSEMENT: SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 11/11/2020) (ama) (Entered: 11/11/2020)

11/12/2020

Appeal Fee Not Required for 166 Corrected Notice of Appeal. Appeal filed by U.S. Government. (tp) (Entered: 11/12/2020)

11/12/2020

Transmission of Notice of Appeal and Certified Copy of Docket Sheet

to US Court of Appeals re: 166 (Entered: 11/12/2020)

Corrected Notice of Appeal.(tp)

11/12/2020

Appeal Record Sent to USCA (Electronic File). Certified Indexed

record on Appeal Electronic Files for 166 Corrected Notice of Appeal, filed by U.S. Department of State, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services were transmitted to the U.S. Court of Appeals. (tp) (Entered: 11/12/2020)

11/13/2020

168 ORDER granting 157 Motion to Withdraw as Counsel for Plaintiff Attorney Leena M. Charlton terminated. So Ordered. (Signed by Judge Andrew L. Carter, Jr on 11/13/2020) (js) (Entered: 11/13/2020)

12/09/2020

169 LETTER addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated December 9, 2020 re: Clarification of Government Position, or in the alternative, Request for a Stay Pending Appeal. Document filed by U.S. Citizenship and Immigration Services, U.S. Department of State, U.S. Immigration and Customs Enforcement..(Blain, Jennifer) (Entered: 12/09/2020)

12/10/2020

170 ORDER: The Court is in receipt of the Defendants' letter. (ECF No. 169). Accordingly, the Court stays this matter pending the disposition of the appeal. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 12/10/2020) (jca) (Entered: 12/10/2020)

12/11/2020

171 STATUS REPORT. (Joint) Document filed by Knight First Amendment Institute at Columbia University..(Decell, Caroline) (Entered: 12/11/2020)

02/09/2021

172 STATUS REPORT. (Joint) Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement..(Blain, Jennifer) (Entered: 02/09/2021)

02/10/2021

173 MEMO ENDORSEMENT on re: 172 Status Report, filed by U.S. Department of Homeland Security, U.S. Department of State, U.S. Immigration and Customs Enforcement, U.S. Department of Justice, U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services. ENDORSEMENT: The parties shall file a joint status report by April 9, 2021. So Ordered. (Signed by Judge Andrew L. Carter, Jr on 2/10/2021) (js) (Entered: 02/10/2021)

04/09/2021

174 JOINT LETTER MOTION for Extension of Time to file Joint Status Report addressed to Judge Andrew L. Carter, Jr. from AUSA Ellen Blain dated April 9, 2021. Document filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State, U.S. Immigration and Customs Enforcement..(Blain, Jennifer) (Entered: 04/09/2021)

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1:17-cv-07572ALC 1.90

 
 Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF JUSTICE, and U.S. DEPARTMENT OF STATE,
Defendants.

No. _______________

COMPLAINT FOR INJUNCTIVE RELIEF Plaintiff Knight First Amendment Institute at Columbia University (the “Knight Institute”), by and through its attorneys, hereby complains as follows against Defendants U.S. Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”), U.S. Immigration and Customs Enforcement (“ICE”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Department of Justice (“DOJ”), and U.S. Department of State (“DOS”):
INTRODUCTION 1. In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief, the Knight Institute seeks the immediate release of agency records concerning the exclusion or removal of individuals from the United States based on their speech, beliefs, or associations. 2. During his 2016 presidential campaign, then-candidate Donald Trump evoked a

Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 2 of 10
Cold War–era “ideological screening test” for admission into the United States and proclaimed that a “new screening test” involving “extreme, extreme vetting” was overdue.1
3. A week after his inauguration, President Trump issued Executive Order 13,769, declaring that the United States “must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles” and “cannot, and should not, admit those who do not support the Constitution.” Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). The President subsequently explained that only individuals who “want to love our country” should be admitted into the United States.2
4. Following legal challenges to the January 27, 2017 order, the President issued a revised order on March 6, 2017. That order directed the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop a more robust vetting program for visa applicants and refugees seeking entry into the United States, involving, among other things, “collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility.” Exec. Order No. 13,780, 82 Fed. Reg. 13,209, 13,215 (Mar. 6, 2017). The order further required the Secretary of Homeland Security, in conjunction with the Secretary of State, Attorney General, and Director of National Intelligence, to make periodic reports through October 2, 2017 on their progress in developing the new vetting program. Exec. Order No. 13,780, 82 Fed. Reg. at 13,215.
5. Pursuant to President Trump’s order, Defendants DHS and DOS have been
1 Karen DeYoung, Trump Proposes Ideological Test for Muslim Immigrants and Visitors to the U.S., Wash. Post (Aug. 15, 2016), https://perma.cc/G9SC-EPHT.
2 Trump Defends Immigration Restrictions, Wants People ‘Who Love Our Country,’ Chi. Trib. (Feb. 6, 2017), http://trib.in/2vIQeuw.
2

Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 3 of 10
developing new vetting policies.3 For example, following approval by the U.S. Office of Management and Budget in late May 2017, DOS adopted a new questionnaire for certain visa applicants, which requested any social media platforms and handles used during the last five years. See 82 Fed. Reg. 20,956, 20,957 (May 4, 2017).4 More recently, DHS proposed to modify its system of immigration records to include the “social media handles, aliases, [and] associated identifiable information,” as well as “publicly available information obtained from the internet, . . . and information obtained and disclosed pursuant to information sharing agreements.” 82 Fed. Reg. 43,556, 43,557 (Sept. 18, 2017). This modification covers not only visa applicants, but also naturalized U.S. citizens and lawful permanent residents, id. at 43,560, and is scheduled to take effect on October 18, 2017, id. at 43,556.
6. The public has an urgent need to know about these and other new vetting policies, and about the government’s understanding of its authority to base immigration decisions on individuals’ speech, beliefs, or associations. Furthermore, the public has a right to evaluate the government’s past and ongoing reliance on existing statutory provisions to exclude or remove individuals from the United States on those grounds.
7. Toward that end, the Knight Institute submitted an identical FOIA Request (the “Request”) to Defendants DHS, CBP, ICE, USCIS, DOJ,5 and DOS on August 7, 2017. The Request sought, among other things, information about any new vetting policies, and about the
3 See Jordan Fabian & Morgan Chalfant, Trump Quietly Puts Teeth Into His ‘Extreme Vetting’ Policy, The Hill (June 29, 2017), https://perma.cc/5J5C-TDW3. But see Michael D. Shear & Ron Nixon, Despite Trump’s Tough Talk on Travel Ban, Few Changes to Vetting, N.Y. Times (June 11, 2017), https://perma.cc/N82G-2SW3.
4 Yeganeh Torbati, Trump Administration Approves Tougher Visa Vetting, Including Social Media Checks, Reuters (May 31, 2017), https://perma.cc/2BUE-FLKJ.
5 Specifically, the Knight Institute submitted the Request to the DOJ Office of Public Affairs (“OPA”), Office of Information Policy (“OIP”), and Office of Legal Counsel (“OLC”).
3

Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 4 of 10
government’s understanding of its authority to base immigration decisions on individuals’ speech, beliefs, or associations.
8. On September 29, 2017, Defendant ICE released one document in response to one item of the Request. All other Defendants have failed to release any records responsive to the Request.
9. The Knight Institute now seeks the injunctive relief necessary to ensure Defendants’ timely compliance with FOIA’s requirements.
JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. 11. Venue is proper in this District pursuant to 5 U.S.C. § 552(a)(4)(B).
PARTIES 12. The Knight Institute is a New York not-for-profit corporation based at Columbia University that works to preserve and expand the freedoms of speech and the press through strategic litigation, research, and public education. Public education is essential to the Knight Institute’s mission. Obtaining information about government activity, analyzing that information, and publishing and disseminating it to the press and public are among the core activities the Knight Institute was established to conduct. The Knight Institute is a “person” within the meaning 5 U.S.C. § 551(2). 13. DHS is an “agency” within the meaning of 5 U.S.C. § 552(f). CBP, ICE, and USCIS are components of DHS. DHS and these components have possession and control over some or all of the requested records. 14. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f). DOJ has possession
4

Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 5 of 10
and control over some or all of the requested records. 15. DOS is an “agency” within the meaning of 5 U.S.C. § 552(f). DOS has possession
and control over some or all of the requested records. FACTUAL ALLEGATIONS The FOIA Request
16. On August 7, 2017, the Knight Institute submitted identical versions of the Request6 to all Defendants.
17. In general, the Request seeks information about any new vetting policies, and about the government’s understanding of its authority to base immigration decisions on individuals’ speech, beliefs, or associations. The Request further seeks information about the government’s past and ongoing reliance on existing statutory provisions to exclude or remove individuals from the United States on those grounds.
18. The relevant statutory provisions include the “endorse or espouse provisions” of the Immigration and Nationality Act (“INA”), which make inadmissible any alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(VII), or who is a representative of “a political, social, or other group that endorses or espouses terrorist activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(IV)(bb). The endorse or espouse provisions provide a basis for removal as well. See 8 U.S.C. § 1225(c) (expedited removal of arriving aliens); 8 U.S.C. § 1227(a)(4)(B) (removal of admitted aliens); see also 8 U.S.C. § 1158(b)(2)(A)(v) (removal of refugees otherwise qualified for asylum on similar grounds).
19. The relevant statutory provisions also include the “foreign policy provision” of the INA, which makes inadmissible any “alien whose entry or proposed activities in the United States
6 A true and correct copy of the Request is attached hereto as Exhibit A.
5

Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 6 of 10
. . . would have potentially serious adverse foreign policy consequences.” 8 U.S.C. § 1182(a)(3)(C)(i). Under certain circumstances, such aliens are inadmissible even where the determination of inadmissibility is based on “beliefs, statements or associations [that] would be lawful within the United States.” 8 U.S.C. § 1182(a)(3)(C)(iii); see also 8 U.S.C. §§ 1225(c)(1), 1227(a)(4)(C) (providing for expedited removal and removal on the same grounds).
20. Specifically, the Request seeks (1) communications from the White House to any federal agency since January 19, 2017 regarding consideration of individuals’ speech, beliefs, or associations in connection with immigration determinations. The Request further seeks the following records created on or after May 11, 2005: (2) all memoranda concerning the legal implications of excluding or removing individuals from the United States based on their speech, beliefs, or associations; (3) all legal or policy memoranda concerning the endorse or espouse provisions, or the foreign policy provision as it relates to “beliefs, statements or associations”; (4) all records containing policies, procedures, or guidance regarding the application or waiver of the endorse or espouse provisions or the foreign policy provision; (5) all Foreign Affairs Manual sections (current and former) relating to the endorse or espouse provisions or the foreign policy provision, as well as records discussing, interpreting, or providing guidance regarding such sections; and (6) all records concerning the application or waiver of the endorse or espouse provisions to exclude or remove individuals from the United States, or the application or waiver of the foreign policy provision to exclude or remove individuals from the United States based on “beliefs, statements or associations.”
21. The Knight Institute requested expedited processing of the Request on the ground that there is a “compelling need” for the documents because they contain information “urgent[ly]” needed by the Knight Institute, an organization “primarily engaged in disseminating information,”
6

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in order to “inform the public concerning actual or alleged Federal Government Activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II).
22. The Knight Institute also requested a waiver of document search, review, and duplication fees on the grounds that (a) disclosure of the requested records is in the public interest and that disclosure 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); (b) the Knight Institute is an “educational . . . institution” whose purposes include “scholarly . . . research” and the records are not sought for commercial use, 5 U.S.C. § 552(a)(4)(A)(ii)(II); and (c) the Knight Institute is a “representative of the news media” within the meaning of FOIA and the records are not sought for commercial use, 5 U.S.C. § 552(a)(4)(A)(ii)(II).
Agency Responses 23. By letter dated August 17, 2017, Defendant DHS acknowledged receipt of the Request and assigned it reference number 2017-HQFO-01179. DHS invoked a ten-day extension of its response time but granted the Knight Institute’s request for expedited processing and a fee waiver. To date, DHS has released no records responsive to the Request. 24. Defendant CBP has not acknowledged receipt of the Request, responded to the Knight Institute’s requests for expedited processing and a fee waiver, or released any records responsive to the Request to date. 25. By email dated August 23, 2017, Defendant ICE acknowledged receipt of the Request and assigned it reference number 2017-ICFO-43023. ICE invoked a ten-day extension of its response time, granted the Knight Institute’s request for a fee waiver, and initially denied its request for expedited processing. Following an administrative appeal of that denial, ICE granted
7

Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 8 of 10
the request for expedited processing on September 26, 2017. On September 29, 2017, ICE released 1,666 pages of records responsive to Item (1) of the Request but redacted all but 13 pages in their entirety, claiming exemptions under FOIA. ICE has released no other records responsive to the Request.
26. Defendant USCIS effectively acknowledged receipt of the Request in emails dated September 8, 2017 and September 18, 2017, requesting clarification regarding the scope of certain items of the Request and assigning it reference number COW2017000956. To date, USCIS has not responded to the Knight Institute’s requests for expedited processing and a fee waiver or released any records responsive to the Request.
27. By letter dated August 17, 2017, DOJ OIP acknowledged receipt of the Request and assigned it reference number DOJ-2017-005910. DOJ OIP noted that the Request required a search in another office and therefore involved “unusual circumstances,” granted the Knight Institute’s request for expedited processing, and stated that it had not reached a decision regarding the Knight Institute’s request for a fee waiver. To date, DOJ OIP has released no records responsive to the Request.
28. By letter dated August 21, 2017, DOJ OLC acknowledged receipt of the Request and assigned it reference number FY17-275. DOJ OLC noted that it had tentatively assigned the Request to the “complex” processing track, denied the Knight Institute’s request for expedited processing, and stated that it had not reached a decision regarding the Knight Institute’s request for a fee waiver. The Knight Institute submitted an administrative appeal challenging DOJ OLC’s denial of expedited processing to DOJ OIP on August 31, 2017, but has yet to receive a decision. To date, DOJ OLC has released no records responsive to the Request.
29. By letter dated August 15, 2017, Defendant DOS acknowledged receipt of the
8

Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 9 of 10
Request and assigned it reference number F-2017-14346. DOS granted the Knight Institute’s request for expedited processing and a fee waiver. To date, DOS has released no records responsive to the Request.
CAUSES OF ACTION 30. Defendants’ failure to make records responsive to the Request promptly available violates FOIA, 5 U.S.C. § 552(a)(3)(A), and Defendants’ corresponding regulations. 31. Defendants’ failure to process the Request as soon as practicable violates FOIA, 5 U.S.C. § 552(a)(6)(E)(iii), and Defendants’ corresponding regulations. 32. Defendant DOJ’s and Defendant USCIS’s failure to grant the Knight Institute’s request for expedited processing violates FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendants’ corresponding regulations. 33. Defendant DOJ’s and Defendant USCIS’s failure to grant the Knight Institute’s request for a waiver of search, review, and duplication fees violates FOIA, 5 U.S.C. § 552(a)(4)(A)(ii)(II), (iii), and Defendants’ corresponding regulations.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court: A. Order Defendants to conduct a thorough search for responsive records; B. Order Defendants to process and release any responsive records immediately; C. Enjoin Defendants DOJ and USCIS from charging Plaintiff search, review, and
duplication fees relating to the Request; D. Retain jurisdiction of this action to ensure no agency records are wrongfully
withheld, and order Defendants to disclose any wrongfully withheld records; E. Award Plaintiff its reasonable costs and attorney’s fees incurred in this action; and
9

Case 1:17-cv-07572 Document 1 Filed 10/04/17 Page 10 of 10

F. Grant such other and further relief as the Court may deem just and proper.

Dated: October 4, 2017

Sincerely,
/s/ Jameel Jaffer
Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Carrie DeCell (application for admission
forthcoming) Knight First Amendment Institute at
Columbia University 314 Low Library 535 West 116th Street New York, NY 10027 jameel.jaffer@knightcolumbia.org (212) 854-9600
Counsel for Plaintiff

10

Case 1:17-cv-07572 Document 1-1 Filed 10/04/17 Page 1 of 9
EXHIBIT A

Case 1:17-cv-07572 Document 1-1 Filed 10/04/17 Page 2 of 9

Caroline M. DeCell
Staff Attorney

August 7, 2017

Dr. James V.M.L. Holzer Deputy Chief FOIA Officer The Privacy Office U.S. Department of Homeland Security 245 Murray Lane SW STOP-0655 Washington, DC 20528-0655 Email: foia@hq.dhs.gov
FOIA Officer U.S. Customs and Border Protection 1300 Pennsylvania Avenue NW Room 3.3D Washington, DC 20229
FOIA Officer U.S. Immigration and Customs Enforcement Freedom of Information Act Office 500 12th Street SW STOP-5009 Washington, DC 20536-5009 Email: ice-foia@dhs.gov
FOIA Officer U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office P. O. Box 648010 Lee’s Summit, MO 64064-8010 Email: uscis.foia@uscis.dhs.gov
Director of Public Affairs Office of Public Affairs U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530

535 West 116th Street, 314 Low Library, New York, NY 10027 | (212) 854-9600 | firstname.lastname@knightcolumbia.org

Case 1:17-cv-07572 Document 1-1 Filed 10/04/17 Page 3 of 9
Laurie Day Chief, Initial Request Staff Office of Information Policy Department of Justice Suite 11050 1425 New York Avenue NW Washington, DC 20530-0001
Melissa Golden Lead Paralegal and FOIA Specialist Office of Legal Counsel Department of Justice Room 5511, 950 Pennsylvania Avenue NW Washington, DC 20530-0001
FOIA Officer U. S. Department of State Office of Information Programs and Services A/GIS/IPS/RL SA-2, Suite 8100 Washington, DC 20522-0208
Re: Freedom of Information Act Request Expedited Processing Requested
To Whom It May Concern:
The Knight First Amendment Institute at Columbia University (“Knight Institute” or “Institute”) submits this request pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for records concerning the exclusion or removal of individuals from the United States based on their speech, beliefs, or associations.1
I. Background
During his 2016 presidential campaign, then-candidate Donald Trump evoked a Cold War–era “ideological screening test” for admission into the United States and proclaimed that a “new screening test” involving “extreme, extreme vetting” was overdue.2 A week after his inauguration,
1 The Knight First Amendment Institute is a New York not-for-profit organization based at Columbia University that works to preserve and expand the freedoms of speech and the press through strategic litigation, research, and public education. 2 Karen DeYoung, Trump Proposes Ideological Test for Muslim Immigrants and Visitors to the U.S., Wash. Post (Aug. 15, 2016), https://perma.cc/G9SC-EPHT.
2

Case 1:17-cv-07572 Document 1-1 Filed 10/04/17 Page 4 of 9
President Trump issued Executive Order 13,769, declaring that the United States “must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles” and “cannot, and should not, admit those who do not support the Constitution.” Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017).
The President issued a revised order on March 6, 2017. It directed the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop a more robust vetting program for aliens seeking entry into the United States, involving, among other things, “collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility.” Exec. Order No. 13,780, 82 Fed. Reg. 13,209, 13,215 (Mar. 6, 2017).
The Knight Institute seeks to inform the public about any new vetting policies and about the government’s understanding of its authority to base immigration decisions on individuals’ speech, beliefs, or associations. It also seeks to report on the government’s use of existing statutory provisions, including the “endorse or espouse provisions”1 and the “foreign policy provision,”2 to exclude or remove individuals from the United States on these grounds.
II. Records Requested
The Knight Institute requests the following records created on or after May 11, 2005:
1. All directives, memoranda, guidance, emails, or other communications sent by the White House3 to any federal agency
1 Any alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(VII), as well as any alien who is a representative of “a political, social, or other group that endorses or espouses terrorist activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(IV)(bb) (together, the “endorse or espouse provisions”) is deemed inadmissible. The endorse or espouse provisions provide a basis for removal as well. See 8 U.S.C. § 1225(c) (expedited removal of arriving aliens); 8 U.S.C. § 1227(a)(4)(B) (removal of admitted aliens); see also 8 U.S.C. § 1158(b)(2)(A)(v) (removal of refugees otherwise qualified for asylum on similar grounds).
2 Any “alien whose entry or proposed activities in the United States . . . would have potentially serious adverse foreign policy consequences” is inadmissible, 8 U.S.C. § 1182(a)(3)(C)(i), even, under certain circumstances, where the determination of inadmissibility is based on “beliefs, statements or associations [that] would be lawful within the United States,” 8 U.S.C. § 1182(a)(3)(C)(iii). See also 8 U.S.C. §§ 1225(c)(1), 1227(a)(4)(C) (providing for expedited removal and removal on the same grounds).
3 The term “White House” includes, but is not limited to, the Executive Office of the President, the Office of the President, the White House Office, the Office of Counsel to the President, the National Security Council, the Office of the Vice President, the Cabinet, as well as any government officer who directly advises the President or the Vice President as to the legality of, or authority to undertake, any executive action.
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since January 19, 2017, regarding consideration of individuals’ speech, beliefs, or associations in connection with immigration determinations, including decisions to exclude1 or remove individuals from the United States.
2. All memoranda concerning the legal implications of excluding or removing individuals from the United States based on their speech, beliefs, or associations.
3. All legal or policy memoranda concerning the endorse or espouse provisions, or the foreign policy provision as it relates to “beliefs, statements or associations.”
4. All records containing policies, procedures, or guidance regarding the application or waiver of the endorse or espouse provisions or the foreign policy provision. Such records would include policies, procedures, or guidance concerning the entry or retrieval of data relevant to the endorse or espouse provisions or the foreign policy provision into or from an electronic or computer database.
5. All Foreign Affairs Manual sections (current and former) relating to the endorse or espouse provisions or the foreign policy provision, as well as records discussing, interpreting, or providing guidance regarding such sections.
6. All records concerning the application, waiver, or contemplated application or waiver of the endorse or espouse provisions to exclude or remove individuals from the United States, or the application, waiver, or contemplated application or waiver of the foreign policy provision to exclude or remove individuals from the United States based on “beliefs, statements or associations,” including:
a. Statistical data or statistical reports regarding such application, waiver, or contemplated application or waiver;
b. Records reflecting the application, waiver, or contemplated application or waiver of the endorse or espouse provisions or foreign affairs provision by an immigration officer, a border officer, a Department of Homeland Security official, or a Department of Justice official;
c. Records concerning any determination made by the Attorney General pursuant to 8 U.S.C. § 1225(c) regarding
1 As used herein, the term “exclude” includes denying a visa, revoking a visa, or otherwise deeming inadmissible for entry into the United States.
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the admissibility of arriving aliens under the endorse or espouse provisions or the foreign policy provision;
d. Department of Homeland Security and Department of Justice records concerning consultation between the Secretary of State, the Secretary of Homeland Security, and/or the Attorney General (or their designees) relating to any waiver or contemplated waiver of the endorse or espouse provisions pursuant to 8 U.S.C. §§ 1158(b)(2)(v), 1182(d)(3)(A), or 1182(d)(3)(B)(i); and
e. Notifications or reports from the Secretary of Homeland Security or the Secretary of State concerning waivers of the endorse or espouse provision pursuant to 8 U.S.C. § 1182(d)(3)(B)(ii).
Where a document contains information that falls into one or more of the categories described above, we seek the entirety of that document. If processing the entirety of a given document would be unusually burdensome, we ask that you give us an opportunity to narrow our request. Please disclose all segregable portions of otherwise exempt records. See 5 U.S.C. § 552(b).
We also ask that you provide responsive electronic records in their native file format or a generally accessible electronic format (e.g., for tabular data, XLS or CSV). See 5 U.S.C. § 552(a)(3)(B). Alternatively, please provide the records electronically in a text-searchable, static-image format (e.g., PDF), in the best image quality in the agency’s possession, and in separate, Batesstamped files.
III. Application for Expedited Processing
The Knight Institute requests expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E). There is a “compelling need” for the records sought because the information they contain is “urgent[ly]” needed by an organization primarily engaged in disseminating information “to inform the public about actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II).
A. The Knight Institute is primarily engaged in disseminating information in order to inform the public about actual or alleged government activity.
The Knight Institute is “primarily engaged in disseminating information” within the meaning of FOIA. 5 U.S.C. § 552(a)(6)(E)(v)(II).
The Institute is a newly established organization at Columbia University dedicated to defending and strengthening the freedoms of speech and the
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press in the digital age. Research and public education are central to the Institute’s mission.1 Obtaining information about government activity, analyzing that information, and publishing and disseminating it to the press and the public are among the core activities the Institute was established to perform. See ACLU v. DOJ, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding public interest group that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience” to be “primarily engaged in disseminating information”).
B. The records sought are urgently needed to inform the public about actual or alleged government activity.
The requested records are urgently needed to inform the public about actual or alleged government activity. See 5 U.S.C. § 552(a)(6)(E)(v)(II). The records sought concern the government’s exclusion and removal of individuals from the United States based on their speech, beliefs, or associations. Such activity is ongoing, and the President has promised “strong programs” to ensure that the only individuals allowed in the United States are those who “want to love our country.”2 To this end, the President has mandated more robust vetting standards for all immigration programs, and has directed the Secretary of Homeland Security to report periodically on the development of these standards from now until October 2, 2017. Exec. Order No. 13,780, 82 Fed. Reg. at 13,215.
President Trump’s executive orders on immigration have already been the subject of widespread debate,3 and the development of new vetting policies will ensure continued public interest in the issue. Yet, lack of transparency with respect to current policies and practices stymies
1 Mike McPhate, Columbia University To Open a First Amendment Institute, N.Y. Times (May 17, 2016), https://perma.cc/YC9M-LUAD; James Rosen, New Institute Aspires To Protect First Amendment in Digital Era, McClatchy DC (May 20, 2016), https://perma.cc/ZS2K-FPED.
2 Trump Defends Immigration Restrictions, Wants People ‘Who Love Our Country,’ Chi. Trib. (Feb. 6, 2017), http://trib.in/2vIQeuw.
3 See, e.g., Mark Berman, To Argue for Stricter Vetting of Immigrants, Trump Invokes Attacks Carried Out by U.S. Citizens, Wash. Post (Feb. 28, 2017), https://perma.cc/PA4P-9KPP; Lauren Gambino & Tom McCarthy, Trump Pressing Ahead with ‘Extreme Vetting’ in Spite of Court Battles, The Guardian (June 6, 2017), https://perma.cc/Q6WT-XCRX; Jonathan E. Meyer, The Consequences of Extreme Vetting, Politico (May 5, 2017), https://perma.cc/9F5P-65PQ; S.A. Miller & Dave Boyer, Trump Signs New Extreme Vetting Order, Wash. Times (Mar. 6, 2017), https://perma.cc/2XME-QKFH; Michael Price, Does the President’s Immigration Order Violate the Rule Against Ideological Exclusion?, Lawfare (Feb. 1, 2017), https://perma.cc/9BKA-X86L; Yeganeh Torbati, State Department Proposes Collecting Immigrants’ Social Media Handles in Move Toward ‘Extreme Vetting,’ Bus. Insider (May 4, 2017), https://perma.cc/H4Q9-648S; Trump Administration’s Threat To Impose Ideological Test for Immigrants Evokes Dark Chapter in U.S. History, Says PEN America, PEN America (Jan. 27, 2017), https://perma.cc/BVS8-8AV4.
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meaningful debate over the form that the new “extreme vetting” policies may take.
The public’s interest in the records is even greater because current practices may violate constitutional rights. The First Amendment encompasses the right “to receive suitable access to social, political, esthetic, moral, and other ideas and experiences,” Red Lion Broad. v. FCC, 395 U.S. 367, 390 (1969), and this “right to receive information” is implicated where the government excludes a non-citizen from the United States based on her speech or beliefs, Kleindiest v. Mandel, 408 U.S. 753, 763–65 (1972). At present, the public can neither determine the degree to which its First Amendment rights are being abridged under existing policies, nor assess how proposed policies could further curtail these rights moving forward.
For these reasons, the Knight Institute is entitled to expedited processing of this request.
IV. Application for Waiver or Limitation of Fees
The Knight Institute requests a waiver of document search, review, and duplication fees on the grounds that disclosure of the requested records is in the public interest and that disclosure 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). For the reasons explained above, disclosure of the records would be in the public interest. Moreover, disclosure would not further the Knight Institute’s commercial interest. The Institute will make any disclosed information available to the public at no cost. Thus, a fee waiver would fulfill Congress’s legislative intent in amending FOIA to ensure “that it be liberally construed in favor of waivers for noncommercial requesters.” Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (citation omitted).
In addition, the Knight Institute requests a waiver of search and review fees on the ground that it qualifies as an “educational . . . institution” whose purposes include “scholarly . . . research” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II). The Institute has a substantial educational mission. Situated within a prominent academic research university, the Institute will perform scholarly research on the application of the First Amendment in the digital era. The Institute is in the midst of inaugurating a research program that will bring together academics and practitioners of different disciplines to study contemporary First Amendment issues and offer informed, non-partisan commentary and solutions. It will publish that commentary in many forms — in scholarly publications, in long-form reports, and in short-form essays.
Finally, the Knight Institute requests a waiver of search and review fees on the ground that it is a “representative of the news media” within the
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meaning of FOIA and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II). The Institute qualifies as a “representative of the news media” because it is 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.” 5 U.S.C. § 552(a)(4)(A)(ii); see Nat’l Sec. Archive v. DOD, 880 F.2d 1381, 1387 (D.C. Cir. 1989) (finding that an organization that gathers information, exercises editorial discretion in selecting and organizing documents, “devises indices and finding aids,” and “distributes the resulting work to the public” is a “representative of the news media” for purposes of FOIA); Serv. Women’s Action Network v. DOD, 888 F. Supp. 2d 282, 287–88 (D. Conn. 2012); ACLU, 321 F. Supp. 2d at 30 n.5. Courts have found other non-profit organizations with research and public education missions similar to that of the Knight Institute to be representatives of the news media. See, e.g., Elec. Privacy Info. Ctr. v. DOD, 241 F. Supp. 2d 5, 10–15 (D.D.C. 2003) (finding non-profit group that disseminated an electronic newsletter and published books was a “representative of the news media” for purposes of FOIA); Nat’l Sec. Archive, 880 F.2d at 1387; Judicial Watch, Inc. v. DOJ, 133 F. Supp. 2d 52, 53–54 (D.D.C. 2000) (finding Judicial Watch, self-described as a “public interest law firm,” a news media requester).
For these reasons, the Knight Institute is entitled to a fee waiver.
* * *
Thank you for your attention to our request. We would be happy to discuss its terms with you over the phone or via email to clarify any aspect of the request or, where reasonable, to narrow it.
I certify that the foregoing is true and correct.
Sincerely,
/s/ Caroline M. DeCell Caroline M. DeCell Knight First Amendment Institute at
Columbia University 314 Low Library 535 West 116th Street New York, NY 10027 carrie.decell@knightcolumbia.org (212) 854-9600
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF JUSTICE, and U.S. DEPARTMENT OF STATE,
Defendants.

No. 1:17-cv-07572-ALC

FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF1 Plaintiff Knight First Amendment Institute at Columbia University (the “Knight Institute”), by and through its attorneys, hereby complains as follows against Defendants U.S. Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”), U.S. Immigration and Customs Enforcement (“ICE”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Department of Justice (“DOJ”), and U.S. Department of State (“DOS”):
INTRODUCTION 1. In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief, the Knight Institute seeks the immediate release of agency

1 Plaintiff files this amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). Defendants’ counsel provided written consent for the filing of an amended complaint on March 8, 2018, which Plaintiffs have submitted by letter to the Court. ECF No. 41. A true and correct copy of that letter, along with Defendants’ written consent, is attached hereto as Exhibit A.

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records concerning the exclusion or removal of individuals from the United States based on their speech, beliefs, or associations.
2. During his 2016 presidential campaign, then-candidate Donald Trump evoked a Cold War-era “ideological screening test” for admission into the United States and proclaimed that a “new screening test” involving “extreme, extreme vetting” was overdue.2
3. A week after his inauguration, President Trump issued Executive Order 13,769, declaring that the United States “must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles” and “cannot, and should not, admit those who do not support the Constitution.” Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). The President subsequently explained that only individuals who “want to love our country” should be admitted into the United States.3
4. Following legal challenges to the January 27, 2017 order, the President issued a revised order on March 6, 2017. That order directed the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop a more robust vetting program for visa applicants and refugees seeking entry into the United States, involving, among other things, “collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility.” Exec. Order No. 13,780, 82 Fed. Reg. 13,209, 13,215 (Mar. 6, 2017). The order further required the Secretary of Homeland Security, in conjunction with the Secretary of State, Attorney General, and Director of National Intelligence, to make periodic reports through October 2, 2017 on their progress in developing the new vetting program. Exec.
2 Karen DeYoung, Trump Proposes Ideological Test for Muslim Immigrants and Visitors to the U.S., Wash. Post (Aug. 15, 2016), https://perma.cc/G9SC-EPHT.
3 Trump Defends Immigration Restrictions, Wants People ‘Who Love Our Country,’ Chi. Trib. (Feb. 6, 2017), http://trib.in/2vIQeuw.
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Order No. 13,780, 82 Fed. Reg. at 13,215. 5. Pursuant to President Trump’s order, DHS and DOS have been developing new
vetting policies.4 For example, following approval by the U.S. Office of Management and Budget in late May 2017, DOS adopted a new questionnaire for certain visa applicants requesting any social media platforms and handles used during the last five years. 82 Fed. Reg. 20,956, 20, 957 (May 4, 2017).5 More recently, DHS modified its system of immigration records to include the “social media handles, aliases, [and] associated identifiable information,” as well as “publicly available information obtained from the internet, . . . and information obtained and disclosed pursuant to information sharing agreements.” 82 Fed. Reg. 43,556, 43,557 (Sept. 18, 2017). This modification covers not only visa applicants, but also naturalized U.S. citizens and lawful permanent residents, id. at 43,560, and it took effect on October 18, 2017, id. at 43,556.
6. The public has an urgent need to know about these and other new vetting policies, and about the government’s understanding of its authority to base immigration decisions on individuals’ speech, beliefs, or associations. Furthermore, the public has a right to evaluate the government’s past and ongoing reliance on existing statutory provisions to exclude or remove individuals from the United States on those grounds.
7. Toward that end, the Knight Institute submitted an identical FOIA Request (the
4 See Jordan Fabian & Morgan Chalfant, Trump Quietly Puts Teeth Into His ‘Extreme Vetting’ Policy, The Hill (June 29, 2017), https://perma.cc/5J5C-TDW3. But see Michael D. Shear & Ron Nixon, Despite Trump’s Tough Talk on Travel Ban, Few Changes to Vetting, N.Y. Times (June 11, 2017), https://www.nytimes.com/2017/06/11/us/politics/as-trump-sounds-urgent-note-ontravel-ban-a-vetting-revamp-grinds-on.html?mcubz=0.
5 Yeganeh Torbati, Trump Administration Approves Tougher Visa Vetting, Including Social Media Checks, Reuters (May 31, 2017), https://perma.cc/2BUE-FLKJ.
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“Request”) to DHS, CBP, ICE, USCIS, DOJ,6 and DOS on August 7, 2017. The Request sought, among other things, information about any new vetting policies, and about the government’s understanding of its authority to base immigration decisions on individuals’ speech, beliefs, or associations.
8. On September 29, 2017, ICE released 1,666 pages of records responsive to the Request but withheld all but thirteen of those pages, claiming exemptions under FOIA. The Knight Institute sought review of this response in an administrative appeal submitted on December 22, 2017 and amended on January 5, 2018.
9. On February 6, 2018, ICE responded to the administrative appeal. ICE affirmed the withholdings in its initial production, but remanded the Request to the ICE FOIA Office to conduct new and/or additional searches. On February 13, 2018, ICE informed the Knight Institute that it had completed its search and would begin processing the potentially responsive records. On March 7, 2018, ICE released a small subset of those records. ICE has failed to release, or even to describe, the full set of records responsive to the Request.
10. All other Defendants have failed to release any records responsive to the Request. 11. The Knight Institute now seeks the injunctive relief necessary to ensure Defendants’ timely compliance with FOIA’s requirements.
JURISDICTION AND VENUE 12. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. 13. Venue is proper in this District pursuant to 5 U.S.C. § 552(a)(4)(B).
6 Specifically, the Knight Institute submitted the Request to the DOJ Office of Public Affairs (“OPA”), Office of Information Policy (“OIP”), and Office of Legal Counsel (“OLC”).
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PARTIES 14. The Knight Institute is a New York not-for-profit corporation based at Columbia University that works to preserve and expand the freedoms of speech and the press through strategic litigation, research, and public education. Public education is essential to the Knight Institute’s mission. Obtaining information about government activity, analyzing that information, and publishing and disseminating it to the press and public are among the core activities the Knight Institute was established to conduct. The Knight Institute is a “person” within the meaning 5 U.S.C. § 551(2). 15. DHS is an “agency” within the meaning of 5 U.S.C. § 552(f). CBP, ICE, and USCIS are components of DHS. DHS and these components have possession and control over some or all of the requested records. 16. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f). DOJ has possession and control over some or all of the requested records. 17. DOS is an “agency” within the meaning of 5 U.S.C. § 552(f). DOS has possession and control over some or all of the requested records.
FACTUAL ALLEGATIONS The FOIA Request
18. On August 7, 2017, the Knight Institute submitted identical versions of the Request7 to all Defendants.
19. In general, the Request seeks information about any new vetting policies, and about the government’s understanding of its authority to base immigration decisions on individuals’ speech, beliefs, or associations. The Request further seeks information about the government’s
7 A true and correct copy of the Request is attached hereto as Exhibit B.
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past and ongoing reliance on existing statutory provisions to exclude or remove individuals from the United States on those grounds.
20. The relevant statutory provisions include the “endorse or espouse provisions” of the Immigration and Nationality Act (“INA”), which make inadmissible any alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(VII), or who is a representative of “a political, social, or other group that endorses or espouses terrorist activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(IV)(bb). The endorse or espouse provisions provide a basis for removal as well. See 8 U.S.C. § 1225(c) (expedited removal of arriving aliens); 8 U.S.C. § 1227(a)(4)(B) (removal of admitted aliens); see also 8 U.S.C. § 1158(b)(2)(A)(v) (removal of refugees otherwise qualified for asylum on similar grounds).
21. The relevant statutory provisions also include the “foreign policy provision” of the INA, which makes inadmissible any “alien whose entry or proposed activities in the United States . . . would have potentially serious adverse foreign policy consequences.” 8 U.S.C. § 1182(a)(3)(C)(i). Under certain circumstances, such aliens are inadmissible even where the determination of inadmissibility is based on “beliefs, statements or associations [that] would be lawful within the United States.” 8 U.S.C. § 1182(a)(3)(C)(iii); see also 8 U.S.C. §§ 1225(c)(1), 1227(a)(4)(C) (providing for expedited removal and removal on the same grounds).
22. Specifically, the Request seeks (1) communications from the White House to any federal agency since January 19, 2017, regarding consideration of individuals’ speech, beliefs, or associations in connection with immigration determinations. The Request further seeks the following records created on or after May 11, 2005: (2) all memoranda concerning the legal implications of excluding or removing individuals from the United States based on their speech, beliefs, or associations; (3) all legal or policy memoranda concerning the endorse or espouse
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provisions, or the foreign policy provision as it relates to “beliefs, statements or associations”; (4) all records containing policies, procedures, or guidance regarding the application or waiver of the endorse or espouse provisions or the foreign policy provision; (5) all Foreign Affairs Manual sections (current and former) relating to the endorse or espouse provisions or the foreign policy provision, as well as records discussing, interpreting, or providing guidance regarding such sections; and (6) all records concerning the application or waiver of the endorse or espouse provisions to exclude or remove individuals from the United States, or the application or waiver of the foreign policy provision to exclude or remove individuals from the United States based on “beliefs, statements or associations.”
23. The Knight Institute requested expedited processing of the Request on the ground that there is a “compelling need” for the documents because they contain information “urgent[ly]” needed by the Knight Institute, an organization “primarily engaged in disseminating information,” in order to “inform the public concerning actual or alleged Federal Government Activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II).
24. The Knight Institute also requested a waiver of document search, review, and duplication fees on the grounds that (a) disclosure of the requested records is in the public interest and that disclosure 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); (b) the Knight Institute is an “educational . . . institution” whose purposes include “scholarly . . . research” and the records are not sought for commercial use, 5 U.S.C. § 552(a)(4)(A)(ii)(II); and (c) the Knight Institute is a “representative of the news media” within the meaning of FOIA and the records are not sought for commercial use, 5 U.S.C. § 552(a)(4)(A)(ii)(II).
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ICE Responses and Administrative Appeal 25. By email dated August 23, 2017, ICE acknowledged receipt of the Request and assigned it reference number 2017-ICFO-43023. ICE invoked a ten-day extension of its response time, granted the Knight Institute’s request for a fee waiver, and initially denied its request for expedited processing. Following an administrative appeal of that denial, ICE granted the request for expedited processing on September 26, 2017. 26. On September 29, 2017, ICE sent the Knight Institute a “final response” to its FOIA request “for 1. All directives, memoranda, guidance, emails, or other communications sent by the White House to any federal agency since January 19, 2017, regarding consideration of individuals’ speech, beliefs, or associations in connection with immigration determinations, including decisions to exclude1 [sic] or remove individuals from the United States (please see request for more details).” The letter mentioned no other Item of the Request and contained no other indication that it constituted a response to the entire Request.8 27. As part of its September 29, 2017 response, ICE released 1,666 pages of records responsive to the Request. ICE withheld 1,653 of those pages in full, however, claiming FOIA exemptions (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). 28. On October 4, 2017, the Knight Institute filed its original Complaint against all Defendants, including ICE. Thereafter, ICE informed the Knight Institute of its position that the Knight Institute had failed to exhaust its administrative remedies with respect to ICE’s September 29, 2017 response. On December 21, 2017, the Knight Institute submitted an administrative appeal requesting review of ICE’s response to Item 1 of the Request, on the view that ICE had responded
8 A true and correct copy of ICE’s September 29, 2017 response letter is attached hereto as Exhibit C.
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only as to that Item.9 29. On December 28, 2017, ICE filed a pre-motion letter with the Court indicating its
intent to pursue a motion to dismiss. ECF No. 28. Characterizing its September 29, 2017 response as a final response to the entire Request, ICE argued that the Knight Institute had failed to exhaust its administrative remedies prior to filing suit. Id. at 2–3. Based on ICE’s characterization of its September 29, 2017 response, the Knight Institute amended its administrative appeal by letter dated January 5, 2018, to request review of ICE’s response to the entire Request.10
30. On January 11, 2018, the Knight Institute and counsel for ICE filed a stipulation of voluntary dismissal, without prejudice, of ICE from this lawsuit. ECF No. 29. On January 16, 2018, the Court dismissed ICE without prejudice. ECF No. 31.
31. On February 6, 2018, ICE responded to the Knight Institute’s amended administrative appeal, concluding that the withholdings in its initial production were “proper in all respects,” but determining that “new search(s) or modifications to the existing search(s) . . . could be made,” and remanding the Request to ICE’s FOIA Office for further processing and retasking.11
32. On February 13, 2018, ICE informed the Knight Institute that ICE had located approximately 14,000 pages of “potentially responsive documents,” and that it would “commit to reviewing and processing a minimum of 500 pages per month.” ICE indicated that the first production would be made on March 7, 2018, with subsequent productions on the seventh day of
9 A true and correct copy of the Knight Institute’s December 21, 2017 administrative appeal is attached hereto as Exhibit D.
10 A true and correct copy of the Knight Institute’s January 5, 2018 letter amending its administrative appeal is attached hereto as Exhibit E.
11 A true and correct copy of ICE’s February 6, 2018 response letter is attached hereto as Exhibit F.
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each month thereafter.12 33. By letter dated March 7, 2018, ICE informed the Knight Institute that it had
processed 560 pages of records and referred 87 of those pages to other agencies. Along with the letter, ICE released 463 pages, redacting certain pages and withholding others in their entirety on the basis of FOIA exemptions (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E).13
34. To date, ICE has failed to respond adequately to the Request as required by FOIA. Other Agency Responses
35. By letter dated August 17, 2017, DHS acknowledged receipt of the Request and assigned it reference number 2017-HQFO-01179. DHS invoked a ten-day extension of its response time but granted the Knight Institute’s request for expedited processing and a fee waiver. To date, DHS has released no records responsive to the Request.
36. On August 15, 2017, CBP sent the Knight Institute an email notification confirming receipt of the Request and assigning it tracking number CBP-2017-080352. CBP did not issue a formal acknowledgement letter. To date, CBP has not responded to the Knight Institute’s requests for expedited processing and a fee waiver, nor has it released any records responsive to the Request.
37. USCIS effectively acknowledged receipt of the Request in emails dated September 8, 2017 and September 18, 2017, requesting clarification regarding the scope of certain items of the Request and assigning it reference number COW2017000956. To date, USCIS has not responded to the Knight Institute’s requests for expedited processing and a fee waiver, nor has it released any records responsive to the Request.
12 A true and correct copy of ICE’s February 13, 2018 email is attached hereto as Exhibit G. 13 A true and correct copy of ICE’s March 7, 2018 response letter is attached hereto as Exhibit H.
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38. By letter dated August 17, 2017, DOJ OIP acknowledged receipt of the Request and assigned it reference number DOJ-2017-005910. DOJ OIP noted that the Request required a search in another office and therefore involved “unusual circumstances,” granted the Knight Institute’s request for expedited processing, and stated that it had not reached a decision regarding the Knight Institute’s request for a fee waiver. To date, DOJ OIP has released no records responsive to the Request.
39. By letter dated August 21, 2017, DOJ OLC acknowledged receipt of the Request and assigned it reference number FY17-275. DOJ OLC noted that it had tentatively assigned the Request to the “complex” processing track, denied the Knight Institute’s request for expedited processing, and stated that it had not reached a decision regarding the Knight Institute’s request for a fee waiver. The Knight Institute submitted an administrative appeal challenging DOJ OLC’s denial of expedited processing to DOJ OIP on August 31, 2017, but has yet to receive a decision. To date, DOJ OLC has released no records responsive to the Request.
40. To date, DOJ OPA has not acknowledged receipt of the Request, responded to the Knight Institute’s requests for expedited processing and a fee waiver, or released any records responsive to the Request.
41. By letter dated August 15, 2017, DOS acknowledged receipt of the Request and assigned it reference number F-2017-14346. DOS granted the Knight Institute’s request for expedited processing and a fee waiver. To date, DOS has released no records responsive to the Request.
CAUSES OF ACTION 1. Defendants’ failure to make records responsive to the Request promptly available violates FOIA, 5 U.S.C. § 552(a)(3)(A), and Defendants’ corresponding regulations.
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2. Defendants’ failure to process the Request as soon as practicable violates FOIA, 5 U.S.C. § 552(a)(6)(E)(iii), and Defendants’ corresponding regulations.
3. DOJ’s, USCIS’s, and CBP’s failure to grant the Knight Institute’s request for expedited processing violates FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendants’ corresponding regulations.
4. DOJ’s, USCIS’s, and CBP’s failure to grant the Knight Institute’s request for a waiver of search, review, and duplication fees violates FOIA, 5 U.S.C. § 552(a)(4)(A)(ii)(II), (iii), and Defendants’ corresponding regulations.
5. ICE has wrongly withheld responsive agency records to which the Knight Institute is entitled under FOIA.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court: A. Order Defendants to conduct a thorough search for responsive records; B. Order Defendants to process and release any responsive records immediately; C. Enjoin Defendants DOJ, USCIS, and CBP from charging Plaintiff search, review,
and duplication fees relating to the Request; D. Retain jurisdiction of this action to ensure no agency records are wrongfully
withheld, and order Defendants to disclose any wrongfully withheld records; E. Award Plaintiff its reasonable costs and attorney’s fees incurred in this action; and F. Grant such other and further relief as the Court may deem just and proper.
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Dated: March 12, 2018

Sincerely,
/s/ Jameel Jaffer
Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Carrie DeCell (CD-0731) Knight First Amendment Institute at
Columbia University 475 Riverside Drive, Suite 302 New York, NY 10115 jameel.jaffer@knightcolumbia.org (646) 745-8500
Counsel for Plaintiff
/s/ Catherine Crump
Catherine Crump (CC-4067) Megan Graham (pro hac vice) Samuelson Law, Technology & Public Policy
Clinic University of California, Berkeley, School of
Law 433 Boalt Hall, North Addition Berkeley, CA 94720-7200 ccrump@clinical.law.berkeley.edu (510) 642-5049
Counsel for Plaintiff

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x

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KNIGHT FIRST AMENDMENT INSTITUTE :

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U.S. DEPARTMENT OF HOMELAND

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------------------------------------------------------------x

1:17-cv-7572 (ALC) OPINION & ORDER

ANDREW L. CARTER, JR., United States District Judge

Plaintiff the Knight First Amendment Institute at Columbia University (the “Knight

Institute” or “Institute”) filed this action under the Freedom of Information Act, 5 U.S.C. § 552

(“FOIA”), seeking several categories of documents from the United States Immigration and

Customs Enforcement (“ICE”), the Office of Legal Counsel (“OLC”) within the Department of

Justice (“DOJ”), the Department of State (“DOS”), the United States Citizenship and

Immigration Services (“USCIS”), Customs and Border Protection (“CBP”), Department of

Homeland Security (“DHS”), Department of Justice Office of Public Affairs (“OPA”), and

Office of Information Policy (“OIP”) (collectively “Defendants”). Specifically, Plaintiff filed

identical FOIA requests (the “Request”) seeking records relating to the government’s authority to

exclude or remove individuals from the United States based on their speech, beliefs, or

associations—including its authority to conduct the kind of “extreme ideological vetting”

President Trump threatened during his 2016 presidential campaign and delivered shortly after

taking office. ECF. No. 1. The parties’ cross-motions for partial summary judgment are now

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pending before the Court. This Opinion and Order addresses Plaintiff’s challenges to the searches conducted by ICE and OLC, and the withholding determinations made by the DOS.
FOIA actions are typically resolved by summary judgment. Families for Freedom v. U.S. Customs and Border Protection, 797 F. Supp. 2d 375, 385 (S.D.N.Y. 2011). Summary judgment must 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. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where parties file cross-motions for summary judgment, “‘each party’s motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.’” New York Times Co. v. U.S. Dep’t of Def., 499 F.Supp.2d 501, 509 (S.D.N.Y. 2007) (citing Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001)).
Having carefully considered the parties’ submissions, the Court concludes that (1) ICE failed to prove as a matter of law it conducted an adequate search; (2) OLC conducted an adequate search; (3) DOS properly withheld documents pursuant to Exemption 5; (4) DOS did not properly withhold documents pursuant to Exemption 7(E).
BACKGROUND I. Immigration and Nationality Act
The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., establishes how individuals are ineligible to enter or remain in the United States. Certain INA provisions permit or require government officials to assess an individual’s admissibility on the basis of her speech, beliefs, and associations—regardless of whether her speech, beliefs, or associations would be protected by the First Amendment.
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The INA provisions relevant here make inadmissible any individual who “endorses or
espouses terrorist activity” or whose presence in the United States may pose foreign policy
concerns.1 The INA also provides that any “alien whose entry or proposed activities in the
United States . . . would have serious adverse foreign policy consequences . . . is inadmissible,”
even when that determination is based on “beliefs, statements or associations [that] would be
lawful within the United States.” 8 U.S.C. §§ 1182(a)(3)(C)(i), (a)(3)(C)(iii).2
II. Executive Orders 13769 and 13780
On January 27, 2017, the president issued Executive Order (“E.O.”) 13769, entitled
“Protecting the Nation from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8977.3
After the Ninth Circuit upheld a temporary restraining order enjoining portions of E.O. 13769,4
the president promised to “go[ ] further” with a new executive action, and assured that
“[e]xtreme vetting will be put in place,” and that “it already is in place in many places.” The
president then issued E.O. 13780; rescinding E.O. 13769 in its entirety. 82 Fed. Reg. 13209,
13218 (March 6, 2017).5
After declaring that only individuals who “want to love our country” should be admitted
into the United States,6 the president ordered the Secretary of State, the Attorney General, the
1 Specifically, the INA provides that “[a]ny alien who . . . endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization,” 8 U.S.C. § 1182(a)(3)(B)(i)(VII), or who “is a representative of . . . a political, social, or other group that endorses or espouses terrorist activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(IV)(bb), is inadmissible. See also 8 U.S.C. § 1225(c) (expedited removal of arriving aliens on same grounds); 8 U.S.C. § 1227(a)(4)(B) (removal of admitted aliens on same grounds); 8 U.S.C. § 1158(b)(2)(A)(v) (removal of refugees otherwise qualified for asylum on similar grounds) (collectively, the “endorse or espouse provisions” of the INA). 2 See also 8 U.S.C. §§ 1225(c)(1), 1227(a)(4)(C) (removal on same grounds) (together, the “foreign policy provisions” of the INA). 3 See Wagafe v. Trump, No. C17-0094-RAJ, 2017 WL 2671254, at *2 (W.D. Wash. June 21, 2017). 4 See Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). 5 Stephen Miller, the president’s Senior Advisor stated that E.O.13780 would have “the same basic policy outcome for the country.” Wagafe, 2017 WL 2671254, at *2. The president’s Press Secretary stated that the goal of E.O. 13780 was “obviously to maintain the way we did it the first time.” Id. 6 Trump Defends Immigration Restrictions, Wants People “Who Love Our Country,” Chi. Trib. (Feb. 6, 2017), http://trib.in/2vIQeuw
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Secretary of Homeland Security, and the Director of National Intelligence to develop a more
robust vetting program for visa applicants and refugees seeking entry into the United States,
involving, among other things, “collection of all information necessary for a rigorous evaluation
of all grounds of inadmissibility.” Exec. Order No. 13,780, 82 Fed. Reg. 13,209, 13,215 (Mar. 6,
2017); see also Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017).
III. The Knight Institute’s Requests
On August 7, 2017, following E.O. 13780, the Knight Institute filed identical FOIA
requests with the Defendants. Am. Compl. Ex. B, at 2–3, ECF No. 42-2. The Knight Institute
initially sought six categories of information relating to the Trump Administration’s “extreme
vetting policies”, as well as the government’s past and ongoing reliance on the “endorse” or
“espouse” INA provisions. Id. at 3–5. After negotiating with Defendants, the Knight Institute
narrowed the Request to seek the following information:
Item 1: All directives, memoranda, guidance, emails, or other communications sent by the White House to any federal agency since January 19, 2017, regarding consideration of individuals’ speech, beliefs, or associations in connection with immigration determinations, including decisions to exclude or remove individuals from the United States;
Item 2: All final memoranda written since May 11, 2005 concerning the legal implications of excluding or removing individuals from the United States based on their speech, beliefs, and associations;
Item 3: All final legal or policy memoranda written since May 11, 2005 concerning the endorse or espouse provisions or the foreign policy provisions of the INA as they relate to “beliefs, statements or associations”;
Item 4: All final records created since May 11, 2005 containing policies, procedures, or guidance regarding the application or waiver of the endorse or espouse provisions or the foreign policy provisions as they relate to “beliefs, statements or associations”;
Item 5: All final Foreign Affairs Manual sections (current and former, created since May 11, 2005) relating to the endorse or espouse provisions or the foreign policy provisions as they relate to “beliefs, statements or associations,” as well as
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records discussing, interpreting, or providing guidance regarding such sections;
Item 6(a): All statistical data or statistical reports created since January 19, 2012, regarding the application, waiver, or contemplated application or waiver of the endorse or espouse provisions, or of the foreign policy provisions as they relate to “beliefs, statements or associations,” to exclude or remove individuals from the United States; and
Item 6(e): All notifications or reports created since May 11, 2005 from the Secretary of Homeland Security or the Secretary of State concerning waivers of the endorse or espouse provision pursuant to 8 U.S.C. § 1182(d)(3)(B)(ii). See Joint Status Report (“JSR”) ¶ 2, ECF No. 48; Decl. of Carrie DeCell (“DeCell
Decl.”) ¶¶ 7–8. The parties agreed that Defendants would search for records responsive to
each item with the following exceptions: 1) Defendants would search only White House
systems for records responsive to Item 1, providing “an explanation of the White House
record retention policy so the Knight Institute could assess the comprehensiveness of the
response to this Item of the Request,” (JSR ¶ at 2(a)); 2) only DOS would search for
records responsive to Item 5; and 3) only DHS and DOS would search their respective
Office of the Secretary systems for records responsive to Item 6(e). Id. at ¶ 2.
IV. Defendants’ Responses
Defendants produced records by July 2018. In August 2018, the Knight Institute
requested that Defendants provide draft search descriptions and Vaughn indices
explaining these records.7 ECF No. 79; DeCell Decl. ¶ 24. Defendants’ responses are
detailed below:
ICE: On September 29, 2017, ICE sent the Knight Institute a “final response” letter quoting language in Item 1. ECF No. 42-3. ICE also released 1,666 pages of records but
7 Vaughn indices “require[] agencies to itemize and index the documents requested, segregate their disclosable and non-disclosable portions, and correlate each non-disclosable portion with the FOIA provision which exempts it from disclosure.” Brennan Ctr. for Justice v. U.S. Dep’t of State, 300 F. Supp. 3d 540, 547 (S.D.N.Y. 2018) (quotation omitted); see also ACLU v. U.S. Dep’t of Justice, 844 F.3d 126, 129 n.4 (2d Cir. 2016); Vaughn v. Rosen, 484 F.2d 820, 826-28, 157 U.S. App. D.C. 340 (D.C. Cir. 1973). Thus, agencies submit Vaughn indexes listing withheld documents and claimed exemptions, along with Vaughn affidavits that describe the withheld documents and the rationale for withholding them. See ACLU v. DOJ, No. 13 Civ. 7347, 2017 U.S. Dist. LEXIS 44597, 2016 WL 5394738, at *4 (S.D.N.Y. Sept. 27, 2016).
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withheld 1,653 of those pages in full. Id. Following an administrative appeal, ICE determined that “new search(s) or modifications to the existing search(s) . . . could be made,” and remanded the Request to ICE’s FOIA Office for further processing and retasking. DeCell Decl. at ¶¶ 10–15. On February 13, 2018, ICE informed the Knight Institute that ICE located approximately 14,000 pages of “potentially responsive documents,” (ECF No. 42-7), based on the initial Request. On March 7, 2018, ICE informed the Knight Institute that it processed 560 pages for release. ECF No. 42-8. ICE referred eighty-seven of those pages to other agencies for processing and released the remaining 463 pages with redactions. JSR ¶ 25. On April 30, 2018, ICE informed the Knight Institute that it processed an additional 1,124 pages of responsive records. It released 395 pages in full or in part, and referred 728 pages to other agencies. DeCell Decl. ¶ 21.
To expedite ICE’s processing of the remaining records, the Knight Institute agreed that ICE could process only records responsive to a narrowed Request. DeCell Decl. ¶ 22. After re-reviewing its responsive records to the initial Request, ICE identified ninety-nine pages of records as responsive to the Narrowed Request. Id. at ¶ 23. ICE referred forty-nine of those pages to DHS and USCIS, both of which withheld all referred pages in full, and released an additional fifty pages in part or in full to the Knight Institute. ECF No. 77.
In total, ICE produced 2,677 pages of responsive records, withholding most of those pages in part or in full. ECF No. 78. In October 2018, ICE sent the Knight Institute a draft search description and agreed to produce a draft Vaughn index by December 4, 2018. DeCell Decl. ¶ 25.
DOJ: OLC identified 128 pages of responsive records but withheld them all in full pursuant to Exemption 5. It did not refer any pages to other agencies for review. DeCell Decl. ¶¶ 27–28. OLC produced a draft search description and draft Vaughn index on November 2, 2018. Id. at ¶ 29.
DOS: DOS identified 243 records, totaling 1,719 pages, responsive to the Request. It released ninety records in full, withheld 126 records in part, and withheld 16 records in full, invoking FOIA Exemptions 1, 3, 5, 6, and 7(E). It referred eleven records to other agencies for review. Stein Decl. ¶ 6. On November 9, 2018, and February 26, 2019, DOS re-released documents, explaining that it determined that additional information could be released, additional exemptions could be applied to portions previously withheld, and certain information was inadvertently released. Id.; DeCell Decl. ¶¶ 31, 34. DOS withheld numerous records in full or in part under Exemptions 5 and Exemption 7(E). Stein Decl. ¶¶ 44, 50.
V. Procedural Background
ICE, OLC and DOS filed the instant motion for summary judgment on February
26, 2019. ECF No. 89. Plaintiff filed a Cross Motion for Partial Summary Judgment in its
Opposition. ECF No. 100. In addition to the moving papers, the Court heard the parties’
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claims in oral argument on July 31, 2019. ECF No. 128. As to ICE and OLC, Plaintiff claims each agency failed to establish the adequacy
of their searches for responsive records. Specifically, Plaintiff challenges the adequacy of ICE’s search methods and affidavits, but only challenges OLC’s decision not to search the White House for responsive records. ICE and OLC contend they conducted reasonable and diligent searches, searching multiple offices, components and locations reasonably likely to have records responsive to Plaintiff’s FOIA request. On August 7, 2019, ICE submitted supplemental information regarding the searches conducted by ICE’s Office of the Director and the ERO.8 ECF No. 132. The Knight Institute filed a letter in response on August 14, 2019. ECF No. 136.
As to DOS, Plaintiff argues the agency failed to justify its withholding of responsive records pursuant to FOIA Exemptions 5 and 7(E). DOS claims it justifiably withheld certain documents in full or in part pursuant to FOIA Exemptions 5 and/or 7(E), and thus is entitled to summary judgment. 5 U.S.C. §§ 552(b)(5), (b)(7)(E).
STANDARD OF REVIEW I. Summary Judgment
Summary judgment is the usual mechanism for resolving a FOIA action. Families for Freedom, 797 F. Supp. 2d at 385. Summary judgment must 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. 56(a); see also Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. There is no issue of material fact where the facts are irrelevant to the
8 This included a declaration of Alexander Choe (“Choe Decl.”), Administrative Specialist in the Office of the Director and the declaration of Eliman Jussara Solorzano (“Solorzano Decl.”), Special Assistant in the Enforcement, Removal and Operations office. ECF Nos. 133-134.
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disposition of the matter. Chartis Seguros Mexico, S.A. de C.V. v. HLI Rail & Rigging, LLC, 967 F.Supp.2d 756, 761 (S.D.N.Y. 2013); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Where parties file cross-motions for summary judgment, “‘each party’s motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.’” New York Times Co., 499 F.Supp.2d at 509 (citing Morales, 249 F.3d at 121).
II. FOIA A federal agency responding to a FOIA request must (1) conduct an adequate
search using reasonable efforts, (2) provide the information requested, unless it falls within a FOIA Exemption, and (3) provide any information that can be reasonably segregated from the exempt information. DiGirolamo v. Drug Enf’t Admin., No. 1:15CV-5737, 2017 WL 4382097, at *3 (S.D.N.Y. Sept. 29, 2017) (citations omitted). See also Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citing 5 U.S.C. § 552(a)(4)(B) and EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973)). Affidavits or declarations providing “reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency’s burden” and are “accorded a presumption of good faith.” Id. (citing Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).
Furthermore, in the national security context, courts “‘must accord substantial weight to an agency’s affidavit concerning the details of the classified status of the
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disputed record.’” Am. Civil Liberties Union v. Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (citing Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). Agency affidavits, however, must describe with reasonable specificity the nature of the documents at issue and the justification for nondisclosure—conclusory assertions are insufficient. Bloomberg LP v. Bd. of Governors of Fed. Reserve Sys., 649 F. Supp. 2d 262, 271 (S.D.N.Y. 2009) (citing Halpern v. F.B.I., 181 F.3d 279, 291 (2d Cir. 1999)).9
In sum, courts may award summary judgment on the basis of agency affidavits that “[1] describe the justifications for nondisclosure with reasonably specific detail, [2] demonstrate that the information withheld logically falls within the claimed exemption, and [3] are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009). Conversely, “[s]ummary judgment in favor of the FOIA plaintiff is appropriate when an agency seeks to protect material which, even on the agency’s version of the facts, falls outside the proffered exemption.” N.Y. Times Co. v. United States Dep’t of Justice, No. 14CIV03776ATSN, 2016 WL 5946711, at *5 (S.D.N.Y. Aug. 18, 2016) (citing Bloomberg, 649 F.Supp.2d at 271).
DISCUSSION I. Search Adequacy A. Legal Standard An agency bears the burden to “show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents.” Nat’l Day Laborer Org.
9 “[C]onclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not, standing alone, carry the government’s burden,” Larson v. Dep’t of State, 565 F.3d 857, 864, 385 U.S. App. D.C. 394 (D.C. Cir. 2009).
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Network v. U.S. Immigration & Customs Enf’t Agency, 877 F. Supp. 2d 87, 95 (S.D.N.Y. 2012) (citation omitted); see also Carney, 19 F.3d at 812 (burden of establishing the adequacy of a search is on the agency). To demonstrate search adequacy, an agency must submit “relatively detailed and nonconclusory” affidavits. Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 488–89 (2d Cir. 1999) (citation omitted). “[A]n agency affidavit or declaration must describe in reasonable detail the scope of the search and the search terms or methods employed.” Gelb v. Fed. Reserve Bank of N.Y., No. 1:12-cv-4880-ALC, 2014 WL 4402205, at *4 (S.D.N.Y. Sept. 5, 2014) (quoting Davis v. U.S. Dep’t of Homeland Sec., No. 11-cv-203-ARR-VMS, 2013 WL 3288418, at *6 (E.D.N.Y. June 27, 2013)); see also Garcia v. U.S. Dep’t of Justice Office of Info. & Privacy, 181 F. Supp. 2d 356, 366 (S.D.N.Y. 2002) (citation omitted) (ruling that agencies must prove their searches were adequate by showing “a good faith effort to search for the requested documents, using methods ‘reasonably calculated’ to produce documents responsive to the FOIA request.”) Applying this reasonableness standard, courts consider: 1) the search terms and the type of search performed; 2) the nature of the records system or database searched; and 3) whether the search was “logically organized”. See Schwartz v. DOD, No. 15-CV-7077 (ARR) (RLM), 2017 U.S. Dist. LEXIS 2316, at *16 (E.D.N.Y. Jan. 6, 2017).10 Agency searches need not be perfect. Conti v. United States Dep’t of Homeland Sec., 2014 U.S. Dist. LEXIS 42544, at *29-30 (S.D.N.Y. Mar. 24, 2014). “[A]n agency ‘is not expected to take extraordinary measures to find the requested records, but only to conduct a search reasonably designed to identify and locate responsive documents.’” Id. (citing Adamowicz v. I.R.S., 672 F. Supp. 2d 454, 462 (S.D.N.Y. 2009), aff’d, 402 F.
10 See also Amnesty Int'l USA v. C.I.A., No. 07 Civ. 5435, 2008 U.S. Dist. LEXIS 47882, 2008 WL 2519908, at *11 (S.D.N.Y. June 19, 2008).
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App’x 648 (2d Cir. 2010). Speculation that other documents exist, without more, “does not undermine [a] finding that the agency conducted a reasonable search.” Conti, 2014 U.S. Dist. LEXIS 42544, at *30 (quoting Garcia, 181 F. Supp. 2d at 366).
B. Application: ICE’s Search ICE contends it identified four components within the agency likely to have records responsive to Plaintiff’s FOIA request – Enforcement and Removal Operations (“ERO”), Office of Principal Legal Advisor (“OPLA”), Office of Policy, and the Office of the Director – because those components relate to the crux of Plaintiff’s FOIA request: operations concerning the exclusion or removal of individuals. ECF No. 91(“Fuentes Decl.”) ¶¶ 16-30. OPLA also directed five additional offices or divisions to search for responsive records: Immigration Law and Practice Division (“ILPD”), National Security Law Section (“NSLS”), Enforcement and Removal Operations Law Division (“EROLD”), Field Legal Operations (“FLO”) and Deputy Principal Legal Advisor (“DPLA”). Id. at ¶¶ 18-24. In each office or division a point of contact (“POC”) determined the locations likely to contain responsive documents; attorneys, senior staff members, and in some cases the entire division then conducted the searches. Id. ICE searched government computers either manually or with various search terms. Id. at ¶¶ 17-30.11 ICE believes these facts entitle it to summary judgment since it reasonably identified multiple offices within the agency likely to possess responsive records, reasonably
11 ICE used the following search terms: “Association,” Foreign Affairs Manual,” “Gang Association,” “Foreign Policy Provision,” “Beliefs,” “Speech,” “Memorandum,” “waiver,” “White House,” and “ICE Policy.” The documents found to be responsive were provided to ICE FOIA on December 6, 2017. Additionally, Special Counsel to the DPLA searched the DPLA’s government computer (including personal and shared drives) and Outlook e-mail account, using the following search terms: “endorse,” espouse,” and “eop.gov.” Fuentes Decl. ¶ 17-30.
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calculated searches of those offices’ electronic files to discover responsive records and located 99 pages of records responsive to the Narrowed Request. The Court disagrees.
ICE’s search was inadequate for several reasons. First, an agency must search all locations likely to contain responsive records; not simply where the records are “most likely” to be found. See Schwartz, 2017 U.S. Dist. LEXIS 2316, at *19-20; Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 877 F. Supp. 2d 87, 98 (S.D.N.Y. 2012) (“[T]he government is not required to search only the files…‘most likely’ to have responsive records; it must also search other locations that are reasonably likely to contain records.”)(citations omitted) DiBacco v. United States Army, 795 F.3d 178, 190(D.C. Cir. 2015) (“‘[M]ost likely’ is not the relevant metric”)(citations omitted); Mobley v. C.I.A., 806 F.3d 568, 582, 420 U.S. App. D.C. 108 (D.C. Cir. 2015) (“Had the [agency] only searched the record systems ‘most likely’ to contain responsive records, its search would be inadequate.”)
Here, the Fuentes affidavit states that EROLD did not search a certain component because it determined the component was not likely to have responsive records. Fuentes Decl. ¶¶ 20–22. ICE defended its decision by contending that two attorneys “concluded that if EROLD were involved in the subjects requested by the FOIA requests, they would have been the individuals involved,” and that “they had had no interaction with anything related to policies, procedures, or guidance related to the exclusion or removal of individuals based on their ‘beliefs, statements or associations.’” Suppl. Fuentes Decl. ¶ 16. This explanation is inadequate. Plaintiff’s Request seeks records from 2005. Nothing indicates those attorneys are the only EROLD employees who would have handled relevant matters over the past fourteen years. Moreover, FOIA requires agencies to search
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for responsive records, not rely on memories. See 5 U.S.C. § 552(a)(3); Am. Compl. Ex. B, at 3.
ICE cites SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) to defend its search. There, the D.C. Circuit found a search adequate where the agency actively looked for responsive records, investigated the accidental destruction of some records, and conducted an “unavailing room-to-room search for the box of missing documents” anyway. 926 F.2d at 1201. Here, EROLD did not perform a similar hunt, raising “serious doubts as to the completeness of the agency’s search.” Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 96 (citation omitted). Thus, SafeCard Services, Inc. is inapposite.
Furthermore, ICE’s affidavits provide an inadequate amount of detail. See Gelb, 2014 WL 4402205, at *4 (explaining that an agency’s affidavit “must describe in reasonable detail the scope of the search and the search terms or methods employed”). Specifically, ICE provided no description of the search terms used by custodians in the ILPD and NSLS. Fuentes Decl. ¶¶ 20–22.
Moreover, ICE also failed to establish that the search terms used were expansive. The searches run by the Office of the Director and ERO were too restrictive to be reasonably calculated to uncover all responsive records. See Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 95.
For example, The Office of the Director’s use of search terms “endorse provision” and “espouse provision,” was unreasonably narrow given the breadth of Plaintiff’s request. Fuentes Decl. ¶ 28. Plaintiff points out that it used its own defined shorthand phrases—specifically, the “endorse or espouse provisions”—to refer to numerous statutory provisions collectively throughout the Request. See ECF No. 42-2, at 3; id. at 3
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nn.1–2. The Knight Institute did not borrow those phrases from ICE or other government records, and the Court has no reason to believe ICE uses these phrases to refer to the relevant provisions. Thus, the Office of the Director’s search using the phrases “endorse provision” and “espouse provision” are underinclusive and unduly restrictive. The search leaves out, for example, records discussing the exclusion or removal of an individual who purportedly endorsed or espoused terrorist activity but did not explicitly mention the “endorse provision” or “espouse provision.” Therefore, searches limited to Plaintiff’s shorthand phrases verbatim are not reasonably calculated to uncover all relevant documents. See Amnesty Int’l, 2008 U.S. Dist. LEXIS 47882, 2008 WL 2519908, at *15 (“[A] search that is designed to return documents containing the phrase ‘CIA detainees’ but not ‘CIA detainee’ or ‘detainee of the CIA’ is not ‘reasonably calculated to uncover all relevant documents.’” (emphasis omitted) (quoting Truitt, 897 F.2d at 542)).
ICE contends “the search need not be ‘perfect’ in Plaintiffs’ estimation (or even the Court’s), so long as the agency has provided logical explanations for each of the decisions it made as to search terms to be used and how to conduct the searches…’” Def.’s Rep. Mem. 9, ECF No. 117 (quoting Immigrant Def. Project, 208 F. Supp. 3d at 527-28). Indeed, “an agency is not required to search for all possible variants of a particular name or term”. Conti, 2014 U.S. Dist. LEXIS 42544, 2014 WL 1274517, at *15. However, it must use search terms reasonably calculated to yield responsive records. Schwartz, 2017 U.S. Dist. LEXIS 2316, at *24. ICE failed to demonstrate how using these underinclusive and unduly restrictive search terms is reasonably likely to yield responsive records. See Garcia, 181 F. Supp. 2d 356, 368 (“In order to fulfill the adequate search requirement, the Government should ‘identify the searched files’ and
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‘recite facts which enable the District Court to satisfy itself that all appropriate files have been searched.’” (quotations omitted). Therefore, because the Office of the Director failed to search for additional terms the agency itself would have used in referring to the relevant statutory provisions—and offers no reasonable justification to support its decision—ICE has not established the adequacy of the Office of the Director searches.
Similarly, ERO’s search was unreasonable because it did not include keywords—like “endorse” and “espouse”—from the INA. See Id. at ¶ 30. Furthermore, ERO’s use of terms such as “removal policies,” “removal terrorist,” “removal speech,” “removal belief,” and “removal association” are not reasonably calculated to return relevant records. ERO’s search terms seem especially deficient when compared to the terms used by DOS and OLC. See Stein Decl. ¶¶ 19, 22–23; Colborn Decl. ¶ 10, ECF No. 92.
Finally, ICE’s contention that its search returned responsive documents holds little weight since a FOIA search’s adequacy is not determined “by the fruits of the search”. Schwartz, 2017 U.S. Dist. LEXIS 2316, at *26 (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 315, 354 U.S. App. D.C. 230 (D.C. Cir. 2003)).
In sum, ICE’s affidavit fails to establish adequacy by omitting key details about the search terms used, how the agency handled the administrative remand, and how the agency narrowed its search results. It is “patently incomplete.” See Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 96 (citation and internal quotation marks omitted). Additionally, the searches run by the Office of the Director and ERO were not calculated to uncover all relevant documents. See Id. at 95. Thus, ICE’s motion for partial summary judgment is DENIED and Plaintiff’s cross motion for partial summary judgment is GRANTED. ICE must conduct new searches. The parties should meet and confer and
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submit a joint status report regarding the new search terms within twenty-one days of this Order.
C. OLC’s Search Unlike ICE, OLC meets its summary judgment burden as a matter of law. Plaintiff does not challenge the adequacy of OLC’s search of its own records, but rather, asserts that OLC should have searched the White House’s records instead of its own. Plaintiff’s assertion is based on Defendants’ proposal to search the White House’s systems as a more efficient means of gathering records responsive to Item 1. DeCell Decl. ¶ 9. Plaintiff contends it conditionally agreed to minimize Defendants’ burden in this way, as detailed in a Joint Status Report prepared by both parties. ECF No. 48.12 Despite OLC’s apparent failure to abide by its word, FOIA does not allow the Court to compel it to do so. As an initial matter, the White House and OLC are distinct entities. When not referring to the building itself, the term “White House” generally refers to the President’s advisors working in the White House Office, one of the components of the Executive Office of the President (“EOP”).13 OLC operates within the DOJ, is led by an Assistant Attorney General who reports to the Attorney General of the United States, and provides legal advice to the president and all executive branch agencies. See 28 C.F.R. § 0.25. (establishing the OLC under the DOJ). Accordingly, the OLC cannot be compelled to search records possessed by other
12 The Joint Status Report reads: the parties agreed that Defendants would “[s]earch only White House systems for the records sought as Counsel for Defendants indicated that searching each recipient agency would be a slower and duplicative process,” and that Defendants would “provide an explanation of the White House record retention policy so the Knight Institute can assess the comprehensiveness of the response to this Item of the Request.” Joint Status Report ¶ 2(a), ECF No. 48 13 See Exec. Order No. 8248, 3 C.F.R., 1938-1943 Comp., p. 576 (Sept. 8, 1939) (establishing EOP and, inter alia, the White House Office); 3 U.S.C § 105 (providing for the hiring of employees of the White House Office).
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agencies. Jones-Edwards v. Appeal Bd. of NSA, 196 F. App’x 36, 38 (2d Cir. 2006).14 FOIA applies to “agency records.” 5 U.S.C. § 552(a)(4)(B); see also DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989); FLRA v. U.S. Dep’t of Veterans Affairs, 958 F.2d 503, 508 (2d Cir. 1992). Under FOIA, agency records are materials “created or obtained by the agency to which the FOIA request was made” and “under that agency’s control at the time the FOIA request is made”. Bloomberg, 649 F. Supp. 2d at 275 (citing Tax Analysts, 492 U.S. at 144-45)), aff’d, 601 F.3d 143 (2d Cir. 2010). Since FOIA “only obligates [agencies] to provide access to [agency records] it in fact has created and retained,” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980), an agency is not required to search for records outside its possession or control”. Jones-Edwards 196 F. App’x at 38. Indeed, as a practical matter, one agency does not have access to another agency’s records systems. Therefore, as a matter of law, OLC was not obliged to search White House records. See Jones-Edwards, 196 F. App’x at 38 (finding an agency conducted an adequate search and the agency was not obligated to expand its search to encompass “domestic and international networks” outside its control).
Furthermore, the Colborn Declaration demonstrates that OLC conducted an adequate search regarding Plaintiff’s Narrowed Request. The affidavit pointed out that OLC searched the central storage system containing “all final unclassified written legal advice,” which, since “OLC attorneys use this database to perform internal research,” is kept “as complete as possible.” Colborn Decl. ¶¶ 8, 10. Moreover, after receiving one document from the State Department, OLC staff “revisited the search of [the] Perceptive
14 Sonds v. Huff, 391 F. Supp. 2d 152, 160 (D.D.C. 2005), aff’d, 2006 WL 3093808 (D.C. Cir. 2006) (agency is “not required to respond to a FOIA request that should be directed to another agency.”)
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[database] to ensure that nothing had been missed.” Id. at ¶ 12. These facts demonstrate that OLC’s search was “reasonably calculated to discover” responsive documents. Grand Cent. P’ship, 166 F.3d at 489.
Accordingly, OLC satisfied its burden in demonstrating it conducted an adequate search of the records it possessed. Therefore, OLC’s partial motion for summary judgment is GRANTED. Plaintiff’s cross motion for partial for summary judgment is DENIED.
II. Withholding Responsive Records under FOIA Exemptions An agency may withhold records responsive to a FOIA request if the withheld information is exempt under FOIA. 5 U.S.C. § 552(b). Defendants withheld various responsive records pursuant to Exemptions 5 and 7(e). Plaintiff, however, contends that DOS failed to justify these withholdings in its Vaughn index. See ECF No. 93-1.15 FOIA exemptions are exclusive and narrowly construed. Am. Civil Liberties Union v. Dep’t of Def., 543 F.3d 59, 66 (2d Cir. 2008), vacated on other grounds, 558 U.S. 1042, 130 S. Ct. 777, 175 L. Ed. 2d 508 (2009). “[A] district court must review de novo an agency’s determination to withhold information requested under the FOIA.” Florez v. C.I.A., 829 F.3d 178, 182 (2d Cir. 2016) (citing 5 U.S.C. § 552(a)(4)(B)). The agency has the burden of persuasion; “[d]oubts, therefore, are to be resolved in favor of disclosure.” Am. Civil Liberties Union, 543 F.3d at 66. To justifiably withhold responsive records, an agency must provide “reasonably detailed explanations why any withheld documents fall within an exemption.” Carney, 19 F.3d at 812. Essentially, “agency affidavits . . . must
15 In its moving papers, DOS agreed that its Vaughn index was inadequate and provided more detail in a supplemental declaration. Decl. of Eric R. Stein (“Suppl. Stein Decl.”) ¶¶ 5–8, ECF No. 112. However, Plaintiff argues DOS still fails to carry its burden.
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describe with reasonable specificity the nature of the documents at issue and the justification for nondisclosure—conclusory assertions are insufficient.” N.Y. Times Co. v. CIA, 314 F. Supp. 3d 519, 525 (2018).
A. Exemption 5 and The Deliberative Process Privilege: Legal Standard Exemption 5 permits agencies to withhold “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5); Dep’t of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S. Ct. 1060, 149 L. Ed. 2d 87 (2001). Agencies may withhold documents that originate from a government agency and are susceptible to normal discovery rule privileges. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); United States v. Weber Aircraft Corp., 465 U.S. 792, 800, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984); Spadaro v. United States Customs & Border Prot., No. 16-cv-16 (RJS), 2019 U.S. Dist. LEXIS 50273, at *14 (S.D.N.Y. Mar. 26, 2019) (citing Grand Cent. P’ship, 166 F.3d at 481) An apparently privileged document may nevertheless be subject to disclosure “if it closely resembles that which FOIA affirmatively requires to be disclosed: ‘final opinions . . . made in the adjudication of cases,’ ‘statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register,’ and ‘administrative staff manuals and instructions to staff that affect a member of the public.’” Seife v. United States Dep’t of State, 298 F. Supp. 3d 592, 613 (S.D.N.Y. 2018) (quoting Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 195 (2d Cir. 2012) (quoting 5 U.S.C. § 552(a)(2)(A)-(C)).
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FOIA requires “final opinions,” “statements of policy and interpretations which have been adopted by the agency,” and “instructions to staff that affect a member of the public” to be indexed. 5 U.S.C. § 552(a)(2). These provisions reflect a “strong congressional aversion to secret (agency) law and [represent] an affirmative congressional purpose to require disclosure of documents which have the force and effect of law.” Sears, 421 U.S. at 153. The deliberative process privilege, however, protects records that are: (1) pre-decisional, i.e., prepared to assist an agency decisionmaker in arriving at a decision, and (2) deliberative, i.e., related to the policy forming process. See Nat’l Council of La Raza v. DOJ, 411 F.3d 350, 356 (2d Cir. 2005) (internal quotation marks omitted). Pre-decisional, deliberative documents include “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency,” as well as “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Grand Cent. P’Ship, 166 F.3d at 482 (citation omitted); see also Hopkins v. HUD, 929 F.2d 81, 84-85 (2d Cir. 1991).
To determine whether a document is deliberative, courts consider whether the document: “(i) formed an essential link in a specified consultative process, (ii) ‘reflect[s] the personal opinions of the writer rather than the policy of the agency,’ and (iii) if released, would ‘inaccurately reflect or prematurely disclose the views of the agency.’” Seife, 298 F. Supp. 3d at 630 (quoting Schiller v. City of New York, 04-cv-7922 (KMK) (JCF), 2007 U.S. Dist. LEXIS 4285, 2007 WL 136149, at *12 (S.D.N.Y. Jan. 19, 2007)).
To determine if a document is pre-decisional, courts consider whether the government can: (i) pinpoint the specific agency decision related to the document, (ii) establish its
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author prepared the document to assist the agency official charged with making the
decision, and (iii) verify that the document precedes the related decision. Seife, 298 F.
Supp. 3d at 630 (quoting Nat’l Congress for Puerto Rican Rights ex rel. Perez v. City of
New York, 194 F.R.D. 88, 92 (S.D.N.Y. 2000).
The deliberative process privilege does not apply to documents that embody law and
policy. Sears, 421 U.S. at 152–53, 161; Civil Liberties Union v. Nat’l Sec. Agency, 925 F.3d 576, 593 (2d Cir. 2019) (“ACLU v. NSA”).16 The theoretical distinction between pre-
decisional advice and post-decisional explanation may not be clear in practice. For
example, a document advising an agency leader how to interpret a statute may seem
identical to a letter informing an agency subordinate how to interpret a statute. See Id.
Realizing this potential conflation, The Second Circuit recently explained the following
doctrines to help courts determine if a document is privileged under Exemption 5:
“working law” describes post-decisional material, and “express adoption” and
“incorporation by reference describe two methods by which pre-decisional material can become post-decisional.” Id.17 “[I]t is the government’s burden to prove” that the
Exemption 5 privileges apply. Brennan Ctr., 697 F.3d at 201–02.
16 The deliberative process privilege protects “communications received by the decisionmaker on the subject of the decision prior to the time the decision is made” to ensure that the subsequent decision will be fully informed. ACLU v. NSA, 925 F.3d at 593 (quoting Sears, 421 U.S. at 151-53, 95 S.Ct. 1504). By contrast, there is little need to preserve the confidentiality of discussions rendered as the agency’s “effective law and policy.” Id. A record “more properly characterized as an opinion or interpretation which embodies the agency’s effective law and policy” is considered “working law” and, given “a strong congressional aversion to secret agency law” and “an affirmative congressional purpose to require disclosure of documents which have the force and effect of law,” is not privileged. Id.; see also Brennan, 697 F.3d at 195, 196 (internal quotation marks, alterations, and citations omitted). 17 The Second Circuit also offered the following guideline principles to determine if a document constitutes “working law”: whether agency officials feel free to disregard the document’s instructions; whether an agency superior distributes the document to subordinates (rather than vice versa); whether agency superiors direct their subordinates to follow the document’s instructions; whether the document is applied in the agency’s dealings with the public; and whether failure to follow a document’s instructions provides cause for professional sanction. ACLU v. NSA, 925 F.3d at 595. These factors indicate whether a document has become binding on agency officials and therefore represents an agency’s “effective law and policy.” Id.
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B. Application Here, the DOS contends it withheld the following documents pursuant to the deliberative process privilege: 1) legal memorandum concerning “Inadmissibility Based on Endorsing or Espousing Terrorist Activity: First Amendment Concerns,” dated August 22, 2017 (C06534021) (“First Amendment Concerns”); 2) (a) portions of an Action Memorandum entitled “Travel Sanctions Against Persons Who Participate in Serious Human Rights Violations and Other Abuses,” dated February 22, 2011 (C06569352), (b) Tab 2 to the memorandum in full entitled “Proposed Implementation Procedures” (C06569347), and (c) Tab 3 to the memorandum in full entitled “Background on Sanctions Authority” (C06569349) (collectively, “Travel Sanctions”); 3) an OLC memorandum entitled “Informal Legal Opinion on Section 212(d)(3)(B)(i) of the Immigration and Nationality Act” (C06568577) (“Section 212(d)(3)(B)(i)”); and 4) “Memorandum for Michele T. Bond Acting Assistant Secretary,” dated June 4, 2015 (C06570336) (“AAS Memo”). These documents appear to be pre-decisional. DOS argues the First Amendment Concerns memorandum contains legal analysis that “has not been publicly adopted formally or informally” and “offers a legal analysis of a range of possible policy options” and “explicitly assesses the litigation risk for policy decisions.” Suppl. Stein Decl. ¶ 5. DOS also contends that The Travel Sanctions memorandum offers “proposals [that were] not binding on the Department or the President” in the furtherance of policy announced by Presidential Proclamation 8697, and “presents . . . options to the President” concerning “legal options for barring entry into the United States to aliens who participate in serious human rights and humanitarian law violations.” Id. at ¶ 6.
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Similarly, DOS claims the Section 12(d)(3)(B)(i) legal opinion provided “non-binding” analysis and presents “different viable legal interpretations” (Id. at ¶ 7), and the AAS Memo contains analysis of the NSC’s “legal views on a proposed exemption under INA § 212(d)(3)(B) for material support provided to a terrorist organization under duress,” and analysis that “did not bind the Department to take an action” Id. at ¶ 8.
Despite each document’s pre-decisional appearance, Plaintiff claims DOS failed to demonstrate the documents are not “working law”. Specifically, Plaintiff claims DOS’s statements do not allow the Court to determine whether DOS or the President adopted the reasoning provided in these records as their own, or whether DOS treats the records as having the force and effect of law. However, Plaintiff expands the boundaries of the “working law” doctrine too far. The Second Circuit considers a document as “working law” only when it operates as functionally binding authority on agency decision-makers. Here, the Stein declaration repeats similar language for each record at issue: “To the best of my knowledge, the analysis has not been publicly adopted formally or informally. The document offers legal analysis of a range of possible policy options, and this analysis was not binding on the Department or the President” Suppl. Stein Decl. ¶ 5–8. Indeed, the withheld documents may have been persuasive, but nothing indicates they were persuasive enough to have operative effect. Accordingly, DOS demonstrated the withheld documents were drafted as legal advice rather than binding authority; they were not “post-decisional”. Therefore, the withheld documents were not “working law”.
Furthermore, nothing indicates that the government expressly adopted these documents or incorporated them by reference. Because the adoption process is usually internal and hidden from public view, “express adoption” cases in this Circuit generally
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involve external evidence that such adoption has occurred. See New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 121 (2d Cir.), opinion amended on denial of reh’g, 758 F.3d 436 (2d Cir. 2014), supplemented, 762 F.3d 233 (2d Cir. 2014) (holding that an initially confidential and advisory memorandum was no longer privileged after senior government officials invoked the memorandum and declared it binding authority); La Raza, 411 F.3d at 356 (holding that an OLC memorandum was not privileged since the Attorney General and his senior staff repeatedly invoked the OLC memorandum not just to defend its own policy, but as embodying this new policy) Brennan Ctr., 697 F.3d at 196 (holding that an OLC memorandum was disclosable since a senior agency official confirmed that the OLC’s determination had effectively dictated the agency’s new binding authority); ACLU v. NSA, 925 F.3d at 595-97. Similarly, a document is subject to disclosure under the “incorporation by reference” doctrine only when an agency’s formal opinion or determination of law or policy expressly references and relies on that document and its reasoning as the basis for a decision. Id at 32 (emphasis added); see also Sears, 421 U.S. at 135 (limiting “incorporation by reference” to circumstances where the government relies on a disputed memorandum in a “final opinion” or “ruling”).
Here, there are no external statements indicating the President or other senior government executives adopted or enacted the disputed documents. Plaintiff suggests the reasoning and views expressed within these documents may be consistent with the Trump Administration’s highly publicized immigration policy. However, reflection is not adoption. Reports or recommendations that have “no operative effect” do not need to be disclosed even where the agency action agrees with the conclusion of the report or recommendation. Brennan Ctr., 697 F.3d at 196 (quoting Renegotiation Bd. v. Grumman
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Aircraft Eng’g Corp., 421 U.S. 168, 184, 95 S. Ct. 1491, 44 L. Ed. 2d 57 (1975)); see also ACLU v. NSA, 2017 U.S. Dist. LEXIS 44597, at *27 (S.D.N.Y. Mar. 27, 2017). There is no evidence the government adopted these advisory opinions as binding or explicitly relied upon them in a final decision. Essentially, nothing indicates the purported advice mutated into law.
In sum, the evidence suggests the government did not create the disputed documents as working law, never adopted them as working law, and never incorporated them by reference. Sears, 421 U.S. at 153 (emphasis added) (internal quotation marks and citation omitted); see also Brennan Ctr., 697 F.3d at 201. Therefore, the deliberative process privilege applies to the disputed documents, and the DOS properly withheld them under Exemption 5.18
III. DOS 7(e) Withholdings A. Legal Standard Exemption 7 protects the government from disclosing records or information “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). This includes records with “a rational nexus to the agency’s law-enforcement duties, including the prevention of terrorism and unlawful immigration.” Chivers v. United States Dep’t of Homeland Sec., 45 F. Supp. 3d 380, 387 (S.D.N.Y. 2014) (citation omitted).19 Exemption 7(E) exempts from disclosure records that: 1) “would disclose techniques and procedures for
18 The DOS also claimed the First Amendment Concerns Memorandum was protected by other privileges under Exemption 5. However, “the Court need not make redundant findings to justify non-disclosure.” Spadaro, 2019 U.S. Dist. LEXIS 50273, at *7-8. 19 “As the D.C. Circuit has explained, ‘Law enforcement entails more than just investigating and prosecuting individuals after a violation of the law.’ The 'ordinary understanding' of the term 'includes . . . proactive steps designed to prevent criminal activity and maintain security.’” Human Rights Watch v. Dep’t of Justice Fed. Bureau of Prisons, No. 13 Civ. 7360, 2015 U.S. Dist. LEXIS 123592, 2015 WL 5459713, at *5 (S.D.N.Y. Sept. 16, 2015) (citation omitted) (quoting Public Emples. for Envtl. Responsibilty v. United States Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 203, 408 U.S. App. D.C. 61 (D.C. Cir. 2014)).
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law enforcement investigations or prosecutions”; or 2) “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); See also Allard K. Lowenstein Int’l Project v. DHS, 626 F.3d 678, 681 (2d Cir. 2010).20
A record discloses “techniques and procedures” if it refers to how law enforcement officials may investigate a crime. Allard, 626 F.3d at 682. Guidelines are “indication[s] or outline[s] of future policy or conduct,” and generally refer “to resource allocation.” Id. Guidelines are exempt “from disclosure only if public access to such guidelines would risk circumvention of the law.” Id. at 681.
B. Application DOS invokes Exemption 7(E) to withhold versions of three Foreign Affairs Manual (“FAM”) Sections: 9 FAM 302.6, 9 FAM 40.32, and 9 FAM 302.14. As a threshold matter, it is not clear that the FAM was “compiled for law enforcement purposes,” even if some sections of the FAM may serve those purposes. There is no dispute that DOS is a mixed-function agency; it performs both “law enforcement and administrative functions.” Tax Analysts v. IRS, 294 F.3d 71, 77 (D.C. Cir. 2002) (citation omitted); Suppl. Stein Decl. ¶ 9. Accordingly, the Court must “scrutinize with some skepticism the particular purpose claimed for disputed documents redacted under FOIA Exemption 7.” Id. DOS claims the FAM sections at issue reflect its mixed functions – certain released portions recite statutes and background and the withheld portions contain specific techniques for applying those statutes. See ECF. No. 102 at 15 (reciting Section 212(a)(3)(B)(i) and describing the background of agency enforcement); Id. at 21
20 Such techniques and procedures are categorically exempt from disclosure, without any need for inquiry into the harm that would result from their disclosure. Id.
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(redacting techniques used to check for terrorism-related ineligibilities). DOS contends that the purpose of the redacted FAM sections is to help enforce the INA and therefore “falls squarely within the Department’s law enforcement functions” – specifically, its responsibilities to process visa applications. Suppl. Stein Decl. ¶ 9. Plaintiff contends the redacted sections appear to contain definitions and broad statements of law, which fall outside of the techniques, procedures, and guidelines subject to Exemption 7(E). See 5 U.S.C. § 552(b)(7)(E); see also ACLU v. Dep’t of Homeland Sec., 243 F. Supp. 3d 393, 403–04 (S.D.N.Y. 2017). The Court agrees with Plaintiff.
The redacted portions are within the FAM’s “Definitions” section. DeCell Decl. Ex. B at 7. Furthermore, other portions of the FAM appear to contain “recitations of statutes and background” not subject to Exemption 7(E). For example, 9 FAM 302.6-2(B)(3) references nine examples of material support, including a “safe house,” “[t]ransportation,” and “[c]ommunications.” This list derives from the INA definition for “engage in terrorist activity,” which includes “to commit an act that the actor knows, or reasonably should know, affords material support.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). Yet DOS completely withholds the context for these nine examples in the FAM, claiming that this paragraph “identif[ies] the situations that trigger the process of checking for terrorism-related ineligibilities and reveal[s] the techniques used during that process.” Vaughn Index 1. The similarity between the withheld information and the INA’s text, however, suggests Exemption 7(E) does not apply.
Moreover, DOS admits the FAM generally consists of “policy.” The mere descriptions of codified law and policy, even those including “interpretation and application of immigration laws and regulations,” Vaughn Index 1, are not protected
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under Exemption 7(E). To be “compiled for law enforcement purposes,” the information must go a step further and describe “proactive steps” for preventing criminal activity and maintaining security. Milner v. Dep’t of the Navy, 562 U.S. 562, 582 (2011) (Alito, J., concurring). DOS failed to satisfy its burden of showing that the withheld FAM sections do so.
DOS similarly withheld information in other sections of the FAM containing interpretive information characterized as “guidelines.” For example, DOS withheld a section under 9 FAM 302.6-3(B) (C06533909) titled “Not a Permanent Bar” and described it as “guidelines for situations in which an individual may cease to be inadmissible,” Vaughn Index 2. DeCell Decl. Ex. B at 44. DOS claims that, “terrorists and other bad actors could use [this information] to conceal derogatory information, provide fraudulent information, or otherwise circumvent the security checks put in place to ensure that terrorists and other bad actors cannot gain visas to enter into the United States,” Id. at 3. However, it is unclear how explaining to the public what may constitute grounds for inadmissibility—essentially a legal interpretation—may potentially help an individual circumvent the law. Indeed, knowledge of the law always enables individuals to avoid committing a crime. Thus, DOS is not entitled to withhold documents under Exemption 7(e) on these grounds.
Accordingly, Defendants’ motion for summary judgment as to the documents withheld pursuant to Exemption 7(e) is DENIED and Plaintiff’s cross motion for partial summary judgment is GRANTED. Defendants are Ordered to turnover these categories of documents.
C. In Camera Review Request
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Plaintiff also asks the Court to conduct an in camera review of Defendants’ withheld and redacted documents to determine whether the claimed exemptions are reasonable. Courts should only conduct in camera review of undisclosed records as a last resort. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978). Records should not be reviewed in camera as a substitute for requiring an agency to explain its claimed exemptions in accordance with Vaughn. Am. Civil Liberties Union v. United States Dep’t of Justice, 210 F. Supp. 3d 467, 485 (S.D.N.Y. 2016) (quoting Spirko v. U.S. Postal Serv., 147 F.3d 992, 997, 331 U.S. App. D.C. 178 (D.C. Cir. 1998)). The Court finds that in camera review is unnecessary and Orders the Government to supplement its submissions in accordance with this Opinion.
CONCLUSION For the foregoing reasons, Defendants’ partial motion for summary judgment is GRANTED in part and DENIED in part. Plaintiff’s Cross Partial Motion for Summary Judgment is GRANTED in part and DENIED in part. The Clerk of Court is respectfully directed to terminate the Motion at docket entry 100.

SO ORDERED. Dated: September 13, 2019
New York, New York

___________________________________
ANDREW L. CARTER, JR. United States District Judge

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 Case 1:17-cv-07572-ALC Document 158 Filed 09/13/20 Page 1 of 17

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK KNIGHT FIRST AMENDEMENT INSTITUTE AT COLUMBIA UNIVERSITY,
Plaintiffs,
-against-

9/13/20
1:17-cv-7572 (ALC) OPINION & ORDER

U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.
Defendants. ANDREW L. CARTER, JR., United States District Judge:
Defendants United States Immigration and Customs Enforcement (“ICE”), the Office of Legal Counsel (“OLC”) with the Department of Justice (“DOJ”), the Department of State (“DOS”), United States Citizenship and Immigration Services (“USCIS”), United States Customs and Border Protection (“CBP”), the Department of Homeland Security (“DHS”), the Department of Justice Office of Public Affairs (“OPA”), and Office of Information Policy (“OIP”) (collectively “Defendants) seek clarification and reconsideration of this Court’s September 13, 2019 opinion and order, Knight First Amendment Institute at Columbia University v. U.S. Department of Homeland Security, et al, 407 F.Supp.3d 311 (S.D.N.Y. 2019), and September 23, 2019 opinion and order, Knight First Amendment Institute at Columbia University v. Department of Homeland Security et al, 407 F.Supp.3d 334 (S.D.N.Y. 2019). Specifically, Defendants ask the Court to reconsider its determination that ICE’s search in response to Plaintiff’s FOIA request was inadequate, and to clarify and reconsider its ruling that FOIA Exemption 7(E) was inapplicable to several records Defendants withheld.

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For the reasons set forth below, Defendants’ motion for reconsideration is hereby DENIED.
BACKGROUND Familiarity with the facts and procedural history of this case as set forth fully in this Court’s September 13, 2019 opinion, is presumed here. See 407 F. Supp. 3d 311 (S.D.N.Y. 2019). However, I will summarize briefly the matters relevant to this decision. Through Executive Order 13,780, President Trump directed the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop a more robust vetting program for visa applicants and refugees seeking entry into the United States. Exec. Order No. 13,780, 82 Fed. Reg. 13,209, 13,215 (Mar. 6, 2017). The Executive Order called for, among other things, the “collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.” Id. After the President issued E.O. 13,780, Plaintiff filed FOIA requests with various government agencies, the Defendants, seeking information relating to the consideration of individuals’ speech, beliefs, or associations in connection with immigration determinations such as decisions to exclude or remove individuals from the United States. ICE’s production process particularly is relevant to the instant motion and is therefore outlined here in more detail. One of Plaintiff’s requests from ICE was the production of: 1. All directives, memoranda, guidance, emails, or other communications sent by the White House to any federal agency since January 19, 2017, regarding consideration of individuals’ speech, beliefs, or associations in connection with immigration determinations, including decisions to exclude [sic ] or remove individuals from the United States…ICE released 1,666 pages of records
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responsive to this request, but withheld 1,653 of those pages in full, invoking FOIA exemptions. (ECF No. 106 at ¶ 7). ICE initially responded to that request by searching its Office of Policy and DPLA only. (ECF No. 113 at ¶¶ 7-8; ECF No. 114 at 2-3). Instead of filing an appeal challenging this limited response, Plaintiff filed the instant complaint on October 4, 2017. “Anticipating that plaintiff would file…an administrative appeal challenging the sufficiency of ICE’s initial search, and further anticipating that ICE would grant such an appeal, ICE proactively conducted another search between October 2017 and January 2018.” (ECF 144 at 8-9 (citing ECF No. 113 at ¶¶ 13-20)). Plaintiff filed an administrative appeal seeking review of ICE’s initial response on January 5, 2018. (ECF No. 113 at ¶ 11). “That is, ICE in effect granted plaintiff’s administrative appeal before plaintiff even filed one.” (ECF No. 144 at 9 (emphasis in original)). On January 11, 2018, the parties filed a stipulation of voluntary dismissal without prejudice as to ICE in this action. (ECF Nos. 30-31). On March 14, 2018, Plaintiff filed an amended complaint adding ICE back as a defendant. (ECF No. 42). ICE’s subsequent searches resulted in approximately 14,000 pages of potentially responsive documents (including those originally identified) based on Plaintiff’s initial request. (ECF No. 106 at ¶ 11; ECF No. 42-7). On March 7, 2018, ICE informed Plaintiff that it had processed 560 pages for release. (ECF 42-8). ICE referred 87 of those pages to other agencies for processing and released the other 463 pages with redactions. (JSR at ¶ 25). On April 30, 2018, ICE reached out again, informing Plaintiff it had processed an addition 1,124 pages. It released 395 pages in full and referred 728 to other agencies. (ECF No. 106 at ¶¶ 14, 21).
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To expedite the release of the remaining ICE documents, the parties agreed to narrow the request to only final policy guidance or memoranda, court filings and opinions, and email correspondence. (Id. at ¶ 15; ECF No. 113 at ¶ 23; ECF No. 42 at ¶ 23). ICE “identified only ninety-nine pages of records responsive to the provisionally narrowed Request. ICE referred forty-nine pages to other agencies for processing and released fifty pages to [Plaintiff][.]” (ECF No. 106 at ¶ 16).
Plaintiff claimed that the agencies had performed inadequate searches under FOIA and had improperly withheld certain documents in reliance on inapplicable FOIA exemptions. See (ECF No. 42).
On February 26, 2019, OLC, ICE, and DOS moved for partial summary judgment. (ECF No. 90). Specifically, OLC and ICE moved for summary judgment on Plaintiff’s claims that they had performed inadequate searches, and DOS moved for summary judgment on Plaintiff’s claim challenging its withholding determinations pursuant to FOIA Exemptions 5 and 7. (Id.) Plaintiff cross-moved for summary judgment on the same claims. (ECF No. 101). I resolved these motions in my September 13, 2019 opinion, holding that ICE’s searches were inadequate, OLC’s searches were adequate, and DOS was entitled to withhold documents pursuant to FOIA exemption 5, but not 7. See Knight First Amendment Institute at Columbia U. v. Dep’t of Homeland Security, et al, 407 F. Supp. 3d. 311 (S.D.N.Y. 2019).
On March 15, 2019, ICE and USCIS moved for partial summary judgment on Plaintiff’s claims challenging both agencies’ decisions to withhold certain documents pursuant to FOIA exemptions 5 and 7(C), and/or 7(E). (ECF No. 96). Plaintiff cross moved for summary judgment. (ECF No. 105, corrected by ECF No. 108). I resolved
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these motions in my September 23, 2019 opinion and order, holding that both ICE and USCIS had properly relied on exemptions to justify the withholding of portions of some documents, but improperly withheld portions of other documents citing inapplicable FOIA exemptions. See Knight First Amendment Institute at Columbia U. v. Dep’t of Homeland Security, et al, 407 F. Supp. 3d 334 (S.D.N.Y. 2019).
On September 30, 2019, Defendants filed a motion for reconsideration and clarification. (ECF No. 144). Defendants specifically moved for (1) reconsideration of my September 13 determination that ICE’s searches were inadequate; (2) clarification as to which material I determined USCIS to have improperly withheld in reliance on Exemption 7(E); and (3) clarification as to whether DOS and USCIS are required to turn over immediately to Plaintiff the documents I determined the agencies improperly to have withheld pursuant to Exemption 7(E), or alternatively, whether the September opinions and orders directed the agencies to provide supplemental submissions explaining further the appropriateness of the withholdings. (Id. at 2). Defendants do not ask that I reconsider my determination that DOS and USCIS failed to justify adequately their 7(E)-based withholdings. However, Defendants ask that if my September orders were intended to direct the agencies to produce the improperly withheld documents to Plaintiff right away, I reconsider this decision and allow DOS and USCIS to provide supplemental materials justifying further the withholdings and/or provide me with these documents for an in camera review. (Id. at 3).
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ANALYSIS I. Legal Standard
Local Rule 6.3 provides the standard for a motion for reconsideration, “an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” Sigmon v. Goldman Sachs Mortgage Co., 229 F. Supp. 3d 254, 257 (S.D.N.Y. 2017) (internal citations omitted). “A motion for reconsideration should be granted only when the [movant] identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks omitted).
Where a movant seeks only to present “the case under new theories” or take “a second bit at the apple,” a motion for reconsideration should be denied. Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). II. ICE Search
The agency served with a FOIA request bears the burden of “show[ing] beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents.” Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 877 F. Supp. 2d 87, 95 (S.D.N.Y. 2012) (internal citation omitted); see Seife v. United States Dep’t of State, 298 F. Supp. 3d 592, 606 (S.D.N.Y. 2018). “[T]he defending agency [also] has the burden of showing that its search was adequate…” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994)).
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ICE was required to “establish the adequacy of its searches by showing that [it] made a good faith effort to search for the requested documents, using methods reasonably calculated to produce documents responsive to the FOIA request.” Adamowicz v. I.R.S., 672 F.Supp.2d 454, 461-62 (S.D.N.Y. 2009) (internal quotation marks omitted). “Reasonableness must be evaluated in the context of each particular request,” Amnesty Int’l USA v. C.I.A., 728 F.Supp.2d 479, 497 (S.D.N.Y. 2010), and demands consideration of the search terms and the type of search performed, the nature of the records system or database searched, and whether the search was “logically organized.” See Schwartz v. DOD, No. 15-CV-7077, 2017 WL 78482, at *6 (E.D.N.Y. Jan. 6, 2017). “Although an agency is not required to search every record system, the agency must set forth in an affidavit why a search of other some record systems, but not others, would lead to the discovery of responsive documents.” Amnesty Int’l USA, 728 F.Supp.2d at 497.
Toni Fuentes, the Deputy Officer of ICE’s FOIA Office submitted three declarations explaining ICE’s response to Plaintiff’s FOIA request. See (ECF Nos. 91, 98, and 113). Fuentes provided that four of ICE’s offices were identified as those reasonably likely to have responsive records, the Office of Principal Legal Advisor (“OPLA”), Office of Policy, Enforcement and Removal Operations (“ERO”), and Office of the Director. (ECF No. 91 at ¶ 17). Five additional divisions within OPLA were directed to perform searches including the Immigration Law and Practice Division (“OLPD”), National Security Law Section (“NSLS”), Enforcement and Removal Operations Law Division (“EROLD”), Field Legal Operations (“FLO”), and Deputy Principal Legal Advisor (“DPLA”). (Id. at ¶¶ 17, 19).
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Based on these affidavits, I concluded that ICE had not demonstrated the adequacy of its searches. In particular, I expressed concern with respect to four major issues. First, ICE failed to provide an adequate explanation as to why its EROLD component was not searched, raising “‘serious doubts as to the completeness of the agency’s search’ as a whole.” 407 F. Supp. 3d at 324 (quoting Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 96) (citation omitted). Second, ICE’s affidavits lacked sufficient detail regarding the scope of the searches, the search terms and methods employed, how the agency handled an administrative remand, and how the agency narrowed its search results. Id. at 325-26. In particular, ICE provided no description of the search terms used by custodians in the ILPD and NSLS. Id. at 325.Third, the searches run by the Officer of the Director and ERO were too narrow and failed to use critical keywords. Id. at 325-26.
In their motion for reconsideration, Defendants challenge only the second basis for finding the search inadequate. (ECF No. 144). Specifically, they argue that I overlooked the third, supplemental declaration submitted by Fuentes, which demonstrates that ICE provided the factual details I found lacking. In particular, Defendants note that the supplemental Fuentes declaration explains the search process and terms both ILPD and NSLS underwent and used, how ICE handled the administrative remand, and how ICE narrowed its search after collecting documents responsive to the original FOIA request. (Id. at 6-10). Defendants are right that the September 13 opinion overlooks the descriptions of ILPD’s and NSLS’s searches provided in the supplemental declaration. However, those descriptions do not alter the conclusion that ICE’s overall search was patently inadequate. The September 13 opinion did not overlook the supplemental
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declaration with respect to its conclusion that ICE failed to provide sufficient detail
regarding how the agency handled the administrative remand and narrowed its search
results.
In stating that ICE failed to provide a description of the search terms used by
custodians in ILPD and NSLS, the September 13 opinion did not account for paragraphs
14 and 15 of the supplemental Fuentes declaration providing that ILPD conducted the
following search:
Between October and November 2017, ILPD tasked the entire division to search for responsive records. Consistent with ICE’s practice, and as was the case here, when a plaintiff does not suggest search terms, the ICE FOIA Office suggests search terms and individual employees then use their knowledge and experience to choose among the suggested terms and to determine if there are other search terms which would be helpful. ILPD attorneys and staff searched their government computers (including personal and shared drives) and Outlook e-mail accounts, using the following electronic search terms: “endorse,” “espouse,” “espouses,” “speech,” “beliefs,” and/or “association.”
(ECF No. 113 at ¶ 14). It also omitted consideration of paragraph 15, which explains:
In October 2017, NSLS tasked the entire division to search for responsive records. Consistent with ICE’s practice, and as was the case here, when a plaintiff does not suggest search terms, the ICE FOIA Office suggests search terms and individual employees then use their knowledge and experience to choose among the suggested terms and to determine if there are other search terms which would be helpful. NSLS staff searched their government computers (including personal and shared drives) and Outlook e-mail accounts, using the following electronic search terms: “endorse,” “espouse,” “foreign policy,” “212(a)(3)(B)(i)(VII),” “212(a)(3)(C),” and/or “200715919.”
(Id. at ¶ 15).
Defendants argue that both sets of terms were reasonably calculated to return
responsive records, which suggests that ICE’s search was adequate. Defendants are
correct that ICE’s provision of these descriptions indicates that ICE’s overall search was
more adequate than the Court recognized in its September 13 opinion. However, this new
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information is not enough to tip the scale. ICE’s overall search, considered in full, is inadequate still.
For one, although these search terms are better than none, they do not, as Defendants erroneously argue, mirror the terms used by OLC and DOS, which I cited with approval. See (ECF No. 144 at 7 (citing 407 F. Supp. at 325–26)). OLC used the terms “endorse and espouse,” “endorse or espouse,” “espouse and endorse,” “espouse or endorse,” “1st Amendment,” “First Amendment,” “would have potentially serious adverse foreign policy consequences,” “freedom of speech,” “freedom of belief,” “freedom of association,” “freedom of expression,” or “protected speech,” “potentially serious adverse,” “serious adverse foreign,” “speech,” “express,” “belief,” “member,” “association,” “waiver,” “Visa Inadmissibilities,” and “Visa Sanctions,” (ECF No. 93 at ¶¶ 19-23). DOS used the terms “endorse w/3 espouse,” “potentially serious adverse foreign policy,” “(beliefs OR statements OR associations) w/5 ‘would be lawful,’” “8 w/3 1182,” “8 w/3 1158,” “8 w/3 1225,” “(‘first amendment’ OR speech OR belief OR association) w/10 (immigrat* OR exclu* OR remov*).” (ECF No. 92 at ¶ 10).
In addition to including more terms, OLC’s and DOS’s searches also permitted for variations of key words to turn up results by searching, for example, the singular of the word “belief” and adding asterisks to the roots of important terms.
But even if ILPD’s and NSLS’s terms had been as comprehensive as OLC’s and DOS’s, they still would not have remedied the other problems I identified with ICE’s overall search. They would not remedy, for instance, the discussed deficiencies with the Office of the Director’s and ERO’s search terms, or the fact that EROLD failed to justify its decision not to conduct a search.
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Defendants argue that the September 13 opinion’s finding that ICE “omit[ted] key details about…how the agency handled the administrative remand, and how the agency narrowed its search results” is erroneous because it failed to consider relevant sections of the supplemental Fuentes declaration. (ECF No. 144 at 5). With respect to remand, Defendants’ position is fundamentally flawed. By Defendants’ own admission, ICE conducted all searches by January 2018, before the administrative remand was requested let alone granted. Accordingly, the information provided in the supplemental declaration does not address ICE’s response to the remand.
Defendants additionally take issue with the September 13 opinion’s finding that ICE “omit[ed] key details about…how the agency narrowed its search results.” Defendants contend that the supplemental Fuentes declaration explained how ICE’s “Government Information Law Division (‘GILD’) manually reviewed” documents searching for “final policy memoranda or guidance, thus removing emails, the vast majority of collected documents,” and ultimately identified only ninety-nine pages responsive to the narrowed Request.” (ECF No. 113 at ¶¶ 21, 23-24). Defendants point out that the supplemental declaration further provides:
This “narrowing” of records resulted in a corruption of the electronic files within the database containing the records; as a result, ICE requested plaintiff to provide CDs of the produced documents for comparison purposes when drafting the Vaughn indices. GILD determined that 99 pages were responsive to the narrowed request. On July 3, 2018, ICE produced in full or in part 50 pages, and referred 49 pages to DHS and USCIS. On August 3, 2018, DHS and USCIS responded to plaintiff, withholding those pages in full. (ECF No. 144 at 10 (quoting Id. at ¶ 24)). Defendants’ reconsideration argument here is that the information provided by Fuentes is a detailed enough description of how ICE narrowed its search and was
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overlooked by the Court. The parties briefed this issue in their summary judgment memos. Plaintiff argued that ICE did not explain adequately why it did not review email attachments in its narrowed search, which Plaintiff argues could have contained documents responsive to the narrowed requests. (ECF 117 at 3). I agree with Plaintiff that ICE’s search description was inadequate. Although the supplemental Fuentes declaration explains the physical processes ICE took to locate responsive documents, it does not explain how choices were made regarding where to look for those documents. A more detailed description was needed.
Defendants’ motion for reconsideration as to the inadequacy of ICE’s searches is DENIED. III. DOS and USCIS Withholdings
Defendants seek clarification regarding my findings that DOS and USCIS failed to justify adequately their withholding of documents pursuant to FOIA exemption 7(E). Defendants inquire as to whether the September 13 and September 23 opinions directed them to turnover immediately the improperly withheld materials, or alternatively, to submit supplemental submissions to the Court further explaining why withholding is appropriate. (ECF No. 144 at 11). In the event the decisions ordered the first directive, Defendants ask that I reconsider this ruling and permit DOS and USCIS to supplement the record with additional declarations or review the relevant documents in camera. (Id. at 12). With respect to USCIS, Defendants also seek clarification regarding which documents and information the September 23 order concluded constitute improperly withheld “TRIG questions.” (Id. at 11).
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A. DOS 7(E) Exemptions DOS invoked Exemption 7(E) to withhold sections of its Foreign Affairs Manual.
The September 13 opinion denied Defendants’ motion for summary judgment as to these withheld documents, granted Plaintiffs cross motion and stated: “Defendants are Ordered to turnover these categories of documents.” 407 F.Supp.3d at 332. Defendants argue that this clear directive was confused by later language in the opinion addressing Plaintiff’s request for an in camera review of Defendants’ withheld and redacted documents. (ECF No. 144 at 11). In denying this request, the opinion found “that in camera review is unnecessary and [o]rder[ed] the Government to supplement its submissions in accordance with [the] Opinion.” 407 F. Supp. 3d at 333–34. Defendants argue this sentence is at odds with the Court’s previous directive to State to turn over the withheld documents. (ECF No. 144 at 11). It is not. As explained, the latter directive appears in a completely different section of the opinion than the first and simply orders the Defendants to comply with all submission directives provided in the above opinion, including the order for DOS to turn over the improperly withheld documents.
In short, the September 13 opinion ordered DOS to turn over the disputed sections of the Foreign Affairs Manual promptly because, based on the information Defendants provided, application of Rule 7(E) was not appropriate.
USCIS withheld 256 pages of records and 33 PowerPoint slides pursuant to FOIA Exemption 7(E). (ECF No. 97 at ¶ 11-41). Plaintiff challenged Defendants’ application of Exemption 7(E) to many of these documents, including the various versions of the USCIS BASIC Instructor Guide on TRIG, USCIS BASIC Participant Guide on TRIG, USCIS TRIG Training PowerPoint Course 234, USCIS TRIG Instructor Guide, USCIS
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TRIG Participant Guide, the officer training manual entitled TRIG EXEMPTIONS— Group-Based Exemptions/Situations Exemptions; and the manual entitled USCIS RAIO Officer Training –Combined Training Manual on National Security.1 (ECF 108 at 17 n. 11). Specifically, Plaintiff challenged the withholding of two categories of information contained in these records: (1) questions that should be asked in immigration interviews to assess whether applicants had TRIG bars to admission; and (2) information related to determining whether applicants qualify for exemptions to TRIG bars. (Id. at 17-21).
The September 23 opinion concluded that USCIS was not entitled to rely on Exemption 7(E) to withhold the TRIG questions, but that the agency had properly withheld information related to the TRIG exemption qualifications in reliance on the same. 407 F. Supp. 3d at 353-54.
In their motion for clarification and reconsideration, Defendants assert that they are unclear how to differentiate between improperly withheld information concerning TRIG Questions and properly withheld information concerning TRIG exemptions. Defendants contend that, often, the two sets of information overlap because “[i]mmigration officers ask questions to elicit an applicant’s terrorist ties in order to determine whether an exemption to the terrorist bar applies. While the agency can isolate ‘questions’ in the materials, it is not always clear how questions designed to determine
1USCIS BASIC Instructor Guide on TRIG, versions dated Nov. 2015, 2012, and 2010, see Eggleston Decl. ¶¶ 22, 32, 36; USCIS BASIC Participant Guide on TRIG, versions dated 2012 and 2010, see Eggleston Decl. ¶¶ 33, 37; USCIS TRIG Training PowerPoint, Course 234, versions dated Mar. 21, 2017, Nov. 2015, May 9, 2012, and May 2010, see Eggleston Decl. ¶¶ 30–31, 34–35, 38; USCIS TRIG Instructor Guide, versions dated May 2017 and Mar. 2017, see Eggleston Decl. ¶¶ 28, 39; USCIS TRIG Participant Guide, versions dated May 2017 and Mar. 2017, see Eggleston Decl. ¶¶ 29, 40; TRIG Exemptions – Group-Based Exemptions / Situational Exemptions (officer training manual), see Eggleston Decl. ¶ 26; USCIS RAIO Office Training – Combined Training Manual on National Security, versions dated Jan. 24, 2013 and Oct. 26, 2015, see Eggleston Decl. ¶¶ 27, 41.
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the existence, extent, and nature of an applicant’s terrorist ties can be neatly categorized as reflecting ‘TRIG questions’ as opposed to ‘TRIG Exemptions.” (ECF 144 at 12). Thus, Defendants ask the court to clarify which materials the court defines as “TRIG Questions” as opposed to “TRIG Exemptions.”
I understand TRIG Questions to be “the questions and follow-ups” “designed to elicit” information from applicants “that would shed light on…whether the applicant[s] ha[ve] any ties to terrorist organizations and activities.” (ECF No. 118 at 15) (emphasis added)). TRIG Exemptions, by contrast, are the criteria USCIS uses to evaluate applicants’ answers. The latter material is internal to the agency and protectable, whereas the former material is, by definition shared, specifically with applicants. See 407 F. Supp. 3d at 353-54.
Although the September 23 opinion did not order as clearly as the September 13 opinion Defendants to turn over the improperly withheld records, it also did not provide for supplemental submissions and was intended to order USCIS to turnover these records, the TRIG Questions, to Plaintiff.
Defendants cite no intervening changes in controlling law, newly available evidence, or clear error warranting reversal of my decisions to order production of improperly withheld FOIA materials as opposed to permitting supplemental agency submissions attempting to further support withholding. Instead, Defendants cite several cases to support their argument that “[d]istrict courts typically allow the Government to make supplemental submissions, rather than ordering disclosure, where they find an agency’s submissions insufficiently detailed to justify application of a FOIA exemption.” (ECF No. 144 at 12-13) (citing N.Y. Legal Assistance Grp. v. U.S. Dep’t of Educ., No. 15
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Civ. 3818, 2017 WL 2973976, at *7-8, 10 (S.D.N.Y. July 12, 2017); ACLU v. U.S. DOJ, 210 F. Supp. 3d 467, 485-86 (S.D.N.Y. 2016); Intellectual Prop. Watch v. U.S. Trade Representative, 134 F. Supp. 3d 726, 746-47 (S.D.N.Y. 2015); N.Y. Times Co. v. U.S. DOJ, 915 F. Supp. 2d 508, 545-46 (S.D.N.Y. 2013), supplemented by 2013 WL 238928 (S.D.N.Y. Jan 22, 2013); Adm. Civil Liberties Union v. Office of the Dir. of Nat. Intelligence, No. 10 CIV. 4419, 2011 WL 5563520, at *13 (S.D.N.Y. Nov. 15, 2011).
Defendants misunderstand the grounds upon which I found the agencies’ 7(E) withholdings to be justified inadequately. DOS and USCIS submitted sufficiently detailed justifications for withholding the FAM sections and TRIG questions respectively. I understood the agencies’ arguments and was not persuaded. In the majority of cases cited by Defendants, supplemental submissions were requested where courts determined that they did not have enough information to decide whether an exemption applied. See, e.g. American Civil Liberties Union v. United States Dep’t of Justice, 210 F. Supp. 3d 467, 483, 485-86 (S.D.N.Y. 2016) (where section of DOJ asserted deliberative process privilege and attorney work product privilege to justify withholding document but failed to “provide the Court with sufficient information to determine whether work product protection applies” the court granted DOJ opportunity to enhance its submissions regarding work product privilege and deferred ruling on the applicability of the deliberative process exception); Intellectual Property Watch v. U.S. Trade Representative, 134 F. Supp. 3d 726, 745-47 (S.D.N.Y. 2015) (to justify exemption, agency provided conclusory statements that were not document-specific so court asked for supplemental submissions “in order to provide ‘a sufficient degree of detail’ as to withholdings and redactions”); N.Y. Times Co. v. U.S. DOJ, 915 F. Supp. 2d
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508, 545-46 (S.D.N.Y. 2013) (requiring additional submissions from agency where court did not have enough information to reach a conclusion about the duplicative process privilege); Am. Civil Liberties Union v. Office of the Dir. of Nat. Intelligence, No. 10 CIV. 4419, 2011 WL 5563520, at *13 (S.D.N.Y. Nov. 15, 2011) (ordering supplemental submissions where “faced with conclusory or otherwise insufficient agency affidavits”).
I had enough information from DOS’s and USCIS’s affidavits to conduct the required de novo review of the agencies’ withholdings. I determined that the 7(E) exemption did not apply to certain sections of the FAM and the TRIG questions. No supplemental submissions or in camera review is necessary. Defendants have not met the burden to warrant reconsideration of these determinations.
CONCLUSION Defendants’ motion for reconsideration is DENIED in full.

SO ORDERED. Dated: September 13, 2020 New York, New York

__________________________________ ANDREW L. CARTER, JR. United States District Judge

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