U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18−cv−00659−RA

CLOSED,ECF

National Immigration Project of the National Lawyers Guild et al v. United States Department of Homeland Security et al Assigned to: Judge Ronnie Abrams Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 01/25/2018 Date Terminated: 04/23/2019 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

National Immigration Project of the National Lawyers Guild

represented by Sejal Ramnik Zota National Immigration Project of The National Lawyers Guild 14 Beacon St., Suite 602 Boston, MA 02108 (919)−698−5015 Fax: (617)−227−5495 Email: sejal@nipnlg.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Babette Morawetz Washington Square Legal Services,Inc. 245 Sullivan Street New York, NY 10012 212/998−6430 Fax: (212)−995−4802 Email: nancy.morawetz@nyu.edu ATTORNEY TO BE NOTICED

Jessica Louise Rofe Washington Square Legal Services, Inc. 245 Sullivan Street 5th Floor New York, NY 10012 (212) 992−7245 Fax: (212) 995−4031 Email: jessica.rofe@nyu.edu ATTORNEY TO BE NOTICED

Plaintiff Margaret Satterthwaite

represented by Sejal Ramnik Zota (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Babette Morawetz (See above for address) ATTORNEY TO BE NOTICED

Jessica Louise Rofe (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
United States Department of Homeland Security

represented by Caleb Hayes−Deats United States Attorney's Office

Defendant United States Department of State
Defendant U.S. Immigration and Customs Enforcement
Defendant U.S. Citizenship and Immigration Services

Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212)−637−2699 Fax: (212)−637−2686 Email: chayes−deats@mololamken.com TERMINATED: 09/07/2018
represented by Caleb Hayes−Deats (See above for address) TERMINATED: 09/07/2018
represented by Caleb Hayes−Deats (See above for address) TERMINATED: 09/07/2018
represented by Caleb Hayes−Deats (See above for address) TERMINATED: 09/07/2018

Date Filed 01/25/2018 01/25/2018
01/25/2018 01/25/2018
01/25/2018
01/25/2018 01/25/2018

# Docket Text
1 FILING ERROR − PDF ERROR − CIVIL COVER SHEET filed. (Rofe, Jessica) (Entered: 01/25/2018)
2 COMPLAINT against Department of Homeland (DHS), Department of State − USA, Immigration and Customs Enforcement (ICE). (Filing Fee $ 400.00, Receipt Number 0208−14620466)Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9)(Rofe, Jessica) (Entered: 01/25/2018)
3 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST As To − REQUEST FOR ISSUANCE OF SUMMONS as to Geoffrey Berman, U.S. Attorney, re: 2 Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/25/2018)
4 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST As To − REQUEST FOR ISSUANCE OF SUMMONS as to Jefferson B. Sessions, III, U.S. Attorney General, re: 2 Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/25/2018)
5 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST As To − REQUEST FOR ISSUANCE OF SUMMONS as to Joseph Maher, Office of the General Counsel, DHS, re: 2 Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/25/2018)
6 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST As To − REQUEST FOR ISSUANCE OF SUMMONS as to Office of the Legal Adviser, DOS, re: 2 Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/25/2018)
7 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST As To − REQUEST FOR ISSUANCE OF SUMMONS as to ICE, Office of the Principal Legal Advisor, re: 2 Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/25/2018)

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8 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite.(Rofe, Jessica) (Entered: 01/25/2018)
9 NOTICE OF APPEARANCE by Nancy Babette Morawetz on behalf of National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Morawetz, Nancy) (Entered: 01/25/2018)
10 NOTICE OF APPEARANCE by Sejal Ramnik Zota on behalf of National Immigration Project of the National Lawyers Guild. (Zota, Sejal) (Entered: 01/25/2018)
11 NOTICE OF APPEARANCE by Sejal Ramnik Zota on behalf of Margaret Satterthwaite. (Zota, Sejal) (Entered: 01/25/2018)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Jessica Louise Rofe. The party information for the following parties has been modified: Department of Homeland (DHS), Department of State − USA, Immigration and Customs Enforcement (ICE), and Margaret Satterthwaite. The information for the parties has been modified for the following reason: party name contained a typographical error. (pne) (Entered: 01/26/2018)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Jessica Louise Rofe. The following case opening statistical information was erroneously selected/entered: County code New York; Fee Status code due (due). The following corrections have been made to your case entry: the County code has been modified to Suffolk; the Fee Status code has been modified to pd (paid). (pne) (Entered: 01/26/2018)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Analisa Torres. 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. (pne) (Entered: 01/26/2018)
Magistrate Judge Stewart D. Aaron 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. (pne) (Entered: 01/26/2018)
Case Designated ECF. (pne) (Entered: 01/26/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney Jessica Louise Rofe to RE−FILE Document No. 1 Civil Cover Sheet. The filing is deficient for the following reason: the caption entered on the civil cover sheet form does not match the caption on the pleading. Re−file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF. Use civil cover sheet issued by S.D.N.Y. dated June 2017. The S.D.N.Y. Civil Cover Sheet dated June 2017 is located at http://nysd.uscourts.gov/file/forms/civil−cover−sheet.. (pne) (Entered: 01/26/2018)
12 CIVIL COVER SHEET filed. (Rofe, Jessica) (Entered: 01/26/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Jessica Louise Rofe to RE−FILE Document No. 5 Request for Issuance of Summons, 3 Request for Issuance of Summons, 4 Request for Issuance of Summons, 6 Request for Issuance of Summons, 7 Request for Issuance of Summons,. The filing is deficient for the following reasons: The parties names for whom the issuance of summons is requested is not listed on the pleading; the defendant's name the summons is addressed to was entered incorrectly on the docket entry text. 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

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correct summons form PDF. (pne) (Entered: 01/26/2018)
NOTICE OF CASE REASSIGNMENT to Judge Ronnie Abrams. Judge Analisa Torres is no longer assigned to the case. (bcu) (Entered: 01/29/2018)
13 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Homeland Security, re: 2 Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/29/2018)
14 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of State, re: 2 Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/29/2018)
15 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Immigration and Customs Enforcement, re: 2 Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/29/2018)
16 ELECTRONIC SUMMONS ISSUED as to United States Department of Homeland Security. (vf) (Entered: 01/30/2018)
17 ELECTRONIC SUMMONS ISSUED as to United States Department of State. (vf) (Entered: 01/30/2018)
18 ELECTRONIC SUMMONS ISSUED as to U.S. Immigration and Customs Enforcement. (vf) (Entered: 01/30/2018)
19 SUMMONS RETURNED EXECUTED Summons and Complaint,, served. U.S. Immigration and Customs Enforcement served on 1/30/2018, answer due 2/20/2018; United States Department of Homeland Security served on 1/30/2018, answer due 2/20/2018; United States Department of State served on 1/30/2018, answer due 2/20/2018. Service was made by Mail. Document filed by National Immigration Project of the National Lawyers Guild; Margaret Satterthwaite. (Rofe, Jessica) (Entered: 01/30/2018)
20 ORDER: This case has been assigned to me for all purposes. Plaintiffs are directed to notify the Court when service has been executed on Defendants, after which the Court will promptly schedule an initial conference. SO ORDERED. (Signed by Judge Ronnie Abrams on 1/31/2018) (rj) (Entered: 01/31/2018)
21 ORDER: It is hereby ORDERED that counsel for all parties appear for an initial status conference on February 15, 2018 at 11:00 a.m. in Courtroom 1506 of the U.S. District Court for the Southern District of New York, 40 Foley Square, New York, New York. IT IS FURTHER ORDERED that, by February 12, 2018, the parties submit a joint letter, not to exceed five (5) pages, providing the following information in separate paragraphs. Plaintiffs are ordered to serve Defendants with a copy of this order and to file an affidavit on ECF certifying that such service has been effectuated. And as set forth herein. SO ORDERED. Initial Conference set for 2/15/2018 at 11:00 AM in Courtroom 1506, 40 Centre Street, New York, NY 10007 before Judge Ronnie Abrams. (Signed by Judge Ronnie Abrams on 2/02/2018) (ama) (Entered: 02/02/2018)
22 NOTICE of Service of Court's Order. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Morawetz, Nancy) (Entered: 02/05/2018)
23 NOTICE OF APPEARANCE by Caleb Hayes−Deats on behalf of U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State. (Hayes−Deats, Caleb) (Entered: 02/05/2018)
24 LETTER MOTION to Adjourn Conference addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated February 12, 2018., LETTER MOTION for Extension of Time addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated February 12, 2018. Document filed by U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 02/12/2018)

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25 ORDER granting 24 LETTER MOTION to Adjourn Conference addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated February 12, 2018., LETTER MOTION for Extension of Time addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated February 12, 2018. Document filed by U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State. Application granted. So ordered. (Initial Conference set for 2/20/2018 at 11:30 AM before Judge Ronnie Abrams.); granting 24 Letter Motion for Extension of Time. (Signed by Judge Ronnie Abrams on 2/12/2018) (rjm) (Entered: 02/13/2018)
26 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Jessica Louise Rofe on behalf of National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite (Rofe, Jessica) (Entered: 02/14/2018)
27 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Jessica Louise Rofe on behalf of National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite (Rofe, Jessica) (Entered: 02/14/2018)
28 FILING ERROR − DEFICIENT PLEADING − FILED AGAINST PARTY ERROR −FIRST AMENDED COMPLAINT amending 2 Complaint,, against U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State, U.S. Citizenship and Immigration Services.Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. Related document: 2 Complaint,,. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12)(Rofe, Jessica) Modified on 2/15/2018 (pc). (Entered: 02/14/2018)
29 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Citizenship and Immigration Services, re: 28 Amended Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) Modified on 2/15/2018 (pc). (Entered: 02/14/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Jessica Louise Rofe to RE−FILE re: Document No. 28 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; Parties added to CM ECF must exactly match what is listed on the amended complaint caption title. Add United States Immigration and Customs Enforcement and United States Immigration and Customs Enforcement to CM ECF. 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. (pc) Modified on 2/15/2018 (pc). (Entered: 02/15/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Jessica Louise Rofe to RE−FILE Document No. 29 Request for Issuance of Summons,. The filing is deficient for the following reason(s): The summons requested was not processed due to the deficient pleading. Please file your request for summons when you correct and refile your pleading. 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. (pc) (Entered: 02/15/2018)
30 FIRST AMENDED COMPLAINT amending 2 Complaint,, 28 Amended Complaint,,, against U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. Related document: 2 Complaint,, 28 Amended Complaint,,,. (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,

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# 11 Exhibit 11, # 12 Exhibit 12)(Rofe, Jessica) (Entered: 02/15/2018)
31 FILING ERROR − DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Citizenship and Immigration Services, re: 30 Amended Complaint. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) Modified on 2/15/2018 (sj). (Entered: 02/15/2018)
32 ORDER: LAW STUDENT INTERN APPEARANCE FORM. I authorize this student: Sarah D. Thompson (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge Ronnie Abrams on 2/15/2018) (ap) Modified on 4/11/2018 (ap). (Entered: 02/15/2018)
33 ORDER: LAW STUDENT INTERN APPEARANCE FORM. I authorize this student: Kevin Siegel (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge Ronnie Abrams on 2/15/2018) (ap) Modified on 4/11/2018 (ap). Modified on 4/11/2018 (ap). (Entered: 02/15/2018)
34 ORDER: LAW STUDENT INTERN APPEARANCE FORM. ENDORSEMENT: I authorize this student: Nora Searle (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge Ronnie Abrams on 2/15/2018) (ap) Modified on 4/11/2018 (ap). (Entered: 02/15/2018)
35 ORDER: LAW STUDENT INTERN APPEARANCE FORM. ENDORSEMENT: I authorize this student: Fatima Carrillo (a) to appear in court or other proceedings on behalf of the above client, and (b) to prepare documents on behalf of the above client. (Signed by Judge Ronnie Abrams on 2/15/2018) (ap) Modified on 4/11/2018 (ap). (Entered: 02/15/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Jessica Louise Rofe to RE−FILE Document No. 31 Request for Issuance of Summons. The filing is deficient for the following reason(s): All parties must be listed in caption. If all defendant's names do not fit, list leading defendant followed by "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. (sj) (Entered: 02/15/2018)
36 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Citizenship and Immigration Services, re: 30 Amended Complaint,,. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Rofe, Jessica) (Entered: 02/15/2018)
37 ELECTRONIC SUMMONS ISSUED as to U.S. Citizenship and Immigration Services. (laq) (Entered: 02/16/2018)
38 LETTER addressed to Judge Ronnie Abrams from Nancy Morawetz and Caleb Hayes−Deats dated 02/16/2018 re: Initial Conference. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite.(Morawetz, Nancy) (Entered: 02/16/2018)
Minute Entry for proceedings held before Judge Ronnie Abrams: Initial Pretrial Conference held on 2/20/2018. (arc) (Entered: 02/20/2018)
39 SUMMONS RETURNED EXECUTED. U.S. Citizenship and Immigration Services served on 2/16/2018, answer due 3/9/2018. Service was made by MAIL. Document filed by National Immigration Project of the National Lawyers Guild; Margaret Satterthwaite. (Rofe, Jessica) (Entered: 02/20/2018)
40 ANSWER to 30 Amended Complaint,,. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 03/01/2018)
Set/Reset Hearings: Status Conference set for 3/9/2018 at 11:00 AM in Courtroom 1506, 40 Centre Street, New York, NY 10007 before Judge Ronnie Abrams. (arc)

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(Entered: 03/06/2018)
41 LETTER addressed to Judge Ronnie Abrams from Nancy Morawetz & Caleb Hayes−Deats dated March 8, 2018 re: update in advance of pre−trial conference. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 03/08/2018)
Minute Entry for proceedings held before Judge Ronnie Abrams: Status Conference held on 3/9/2018. (Court Reporter Pam Utter) (arc) (Entered: 03/09/2018)
42 LETTER addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated March 13, 2018 re: update concerning the parties' discussions of prioritization. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 03/13/2018)
43 LETTER MOTION for Leave to File Excess Pages addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated March 16, 2018. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 03/16/2018)
44 ORDER granting 43 Letter Motion for Leave to File Excess Pages. Application granted. SO ORDERED. (Signed by Judge Ronnie Abrams on 3/16/2018) (anc) (Entered: 03/16/2018)
45 LETTER addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated March 16, 2018 re: Defendants' request that the Court set a schedule requiring them to process 300 to 500 pages per month. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State. (Attachments: # 1 Affidavit Decl. of James Holzer dated March 14, 2018, # 2 Affidavit Decl. of Jill Eggleston dated March 16, 2018, # 3 Affidavit Decl. of Eric Stein dated March 16, 2018, # 4 Exhibit Excerpts from transcript of March 9th conference)(Hayes−Deats, Caleb) (Entered: 03/16/2018)
46 LETTER addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated March 19, 2018 re: two non−substantive corrections to the declaration of James Holzer. Document filed by United States Department of Homeland Security. (Attachments: # 1 Corrected Decl. of James Holzer)(Hayes−Deats, Caleb) (Entered: 03/19/2018)
47 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/9/2018 before Judge Ronnie Abrams. Court Reporter/Transcriber: Pamela Utter, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/10/2018. Redacted Transcript Deadline set for 4/20/2018. Release of Transcript Restriction set for 6/18/2018.(McGuirk, Kelly) (Entered: 03/20/2018)
48 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/9/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/20/2018)
49 LETTER addressed to Judge Ronnie Abrams from Nancy Morawetz dated 3/23/2018 re: Production Schedule and Expedition. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (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, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Morawetz, Nancy) (Entered: 03/23/2018)
50 LETTER addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated March 28, 2018 re: request that the Court consider this letter in reply to Plaintiffs' newly

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raised arguments for expedited processing. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 03/28/2018)
51 LETTER addressed to Judge Ronnie Abrams from Nancy Morawetz dated 03/29/2018 re: Correction to Letter Dated 3/23/2018. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite.(Morawetz, Nancy) (Entered: 03/29/2018)
52 LETTER addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated March 29, 2018 re: submission of supplemental declaration to ensure that the record is complete regarding DHS's practices for recording FOIA requests in 2016 & 2017. Document filed by United States Department of Homeland Security. (Attachments: # 1 Supplemental Declaration of Nicole C. Barksdale−Perry)(Hayes−Deats, Caleb) (Entered: 03/29/2018)
53 LETTER addressed to Judge Ronnie Abrams from Nancy Morawetz & Caleb Hayes−Deats dated March 29, 2018 re: the parties' proposed briefing schedules. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 03/29/2018)
54 LETTER addressed to Judge Ronnie Abrams from Nancy Morawetz and Caleb Hayes−Deats dated April 4, 2018 re: Proposed Briefing Schedule. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite.(Morawetz, Nancy) (Entered: 04/04/2018)
Minute Entry for proceedings held before Judge Ronnie Abrams: Status Conference held on 4/5/2018. (Court Reporter Sonya Ketter/Anita Trombetta) (arc) (Entered: 04/05/2018)
55 MEMO ENDORSEMENT: on re: 54 Letter filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. ENDORSEMENT: As discussed at the conference on April 5, 2018, the Court hereby adopts the briefing schedule outlined in the letter above. Furthermore, with regard to the parties' disputes concerning a production schedule, the Court orders a schedule of 1,500 pages processed per month per agency, for the Departments of State and Homeland Security and United States Citizenship and Immigration Services. SO ORDERED. (Signed by Judge Ronnie Abrams on 4/06/2018) (ama) (Entered: 04/06/2018)
Set/Reset Deadlines: Replies due by 6/7/2018. (ama) (Entered: 06/01/2018)
56 MOTION for Partial Summary Judgment . Document filed by United States Department of Homeland Security, United States Department of State. Responses due by 5/18/2018(Hayes−Deats, Caleb) (Entered: 04/27/2018)
57 MEMORANDUM OF LAW in Support re: 56 MOTION for Partial Summary Judgment . . Document filed by United States Department of Homeland Security, United States Department of State. (Hayes−Deats, Caleb) (Entered: 04/27/2018)
58 DECLARATION of Michael D. Isacco, Jr. in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by United States Department of Homeland Security. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Hayes−Deats, Caleb) (Entered: 04/27/2018)
59 DECLARATION of Eric F. Stein in Support re: 56 MOTION for Partial Summary Judgment .. Document filed by United States Department of State. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2−3, # 3 Exhibit 3−7)(Hayes−Deats, Caleb) (Entered: 04/27/2018)
60 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/5/2018 before Judge Ronnie Abrams. Court Reporter/Transcriber: Sonya Ketter Moore, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/22/2018. Redacted Transcript Deadline set for 6/1/2018. Release of Transcript Restriction set for 7/30/2018.(McGuirk, Kelly) (Entered: 05/01/2018)

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61 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/5/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/01/2018)
62 FIRST MOTION for Partial Summary Judgment . Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. Responses due by 5/28/2018(Morawetz, Nancy) (Entered: 05/18/2018)
63 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU (SEE DOCUMENT #64) − FIRST MOTION for Partial Summary Judgment 56.1 Statement, Exhibits A−B9. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. Responses due by 5/28/2018 (Attachments: # 1 Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2, # 4 Exhibit B3, # 5 Exhibit B4, # 6 Exhibit B5, # 7 Exhibit B6, # 8 Exhibit B7, # 9 Exhibit B8, # 10 Exhibit B9)(Morawetz, Nancy) Modified on 5/23/2018 (ldi). (Entered: 05/18/2018)
64 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 71 Rulr 56.1 Statement) − RULE 56.1 STATEMENT. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2, # 4 Exhibit B3, # 5 Exhibit B4, # 6 Exhibit B5, # 7 Exhibit B6, # 8 Exhibit B7, # 9 Exhibit B8, # 10 Exhibit B9)(Morawetz, Nancy) Modified on 5/24/2018 (db). (Entered: 05/18/2018)
65 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 71 Rule 56.1 Statement) − RULE 56.1 STATEMENT. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I)(Morawetz, Nancy) Modified on 5/24/2018 (db). (Entered: 05/18/2018)
66 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 71 Rule 56.1 Statement) − RULE 56.1 STATEMENT. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Exhibit J, # 2 Exhibit K)(Morawetz, Nancy) Modified on 5/24/2018 (db). (Entered: 05/18/2018)
67 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 71 Rule 56.1 Statement) − RULE 56.1 STATEMENT. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit N, # 4 Exhibit O, # 5 Exhibit P, # 6 Exhibit Q, # 7 Exhibit R, # 8 Exhibit S, # 9 Exhibit T, # 10 Exhibit U, # 11 Exhibit V, # 12 Exhibit W, # 13 Exhibit X)(Morawetz, Nancy) Modified on 5/24/2018 (db). (Entered: 05/18/2018)
68 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 72 Memorandum) − FIRST MEMORANDUM OF LAW in Support re: 63 FIRST MOTION for Partial Summary Judgment 56.1 Statement, Exhibits A−B9., 62 FIRST MOTION for Partial Summary Judgment . . Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Morawetz, Nancy) Modified on 5/24/2018 (db). (Entered: 05/18/2018)
69 LETTER MOTION for Extension of Time addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated May 21, 2018. Document filed by United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 05/21/2018)
70 ORDER granting 69 Letter Motion for Extension of Time. Application granted. SO ORDERED. (Signed by Judge Ronnie Abrams on 5/22/2018) (ne) (Entered: 05/22/2018)
Set/Reset Deadlines: Responses due by 6/4/2018. Replies due by 6/14/2018. (ne) (Entered: 05/22/2018)
71 RULE 56.1 STATEMENT. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Exhibit A, # 2

05/23/2018 06/04/2018 06/04/2018 06/04/2018 06/14/2018 06/14/2018 08/06/2018
09/06/2018 09/07/2018 12/27/2018

Exhibit B1, # 3 Exhibit B2, # 4 Exhibit B3, # 5 Exhibit B4, # 6 Exhibit B5, # 7 Exhibit B6, # 8 Exhibit B7, # 9 Exhibit B8, # 10 Exhibit B9, # 11 Exhibit C, # 12 Exhibit D, # 13 Exhibit E, # 14 Exhibit F, # 15 Exhibit G, # 16 Exhibit H, # 17 Exhibit I, # 18 Exhibit J, # 19 Exhibit K, # 20 Exhibit L, # 21 Exhibit M, # 22 Exhibit N, # 23 Exhibit O, # 24 Exhibit P, # 25 Exhibit Q, # 26 Exhibit R, # 27 Exhibit S, # 28 Exhibit T, # 29 Exhibit U, # 30 Exhibit V, # 31 Exhibit W, # 32 Exhibit X)(Morawetz, Nancy) (Entered: 05/23/2018)
72 AMENDED MEMORANDUM OF LAW in Support re: 62 FIRST MOTION for Partial Summary Judgment . . Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Morawetz, Nancy) (Entered: 05/23/2018)
73 MEMORANDUM OF LAW in Opposition re: 62 FIRST MOTION for Partial Summary Judgment . and in Further Support of Defendants' Cross−Motion for Partial Summary Judgment. Document filed by United States Department of Homeland Security, United States Department of State. (Hayes−Deats, Caleb) (Entered: 06/04/2018)
74 COUNTER STATEMENT TO 71 Rule 56.1 Statement,,. Document filed by U.S. Citizenship and Immigration Services, United States Department of Homeland Security, United States Department of State. (Hayes−Deats, Caleb) (Entered: 06/04/2018)
75 DECLARATION of Caleb Hayes−Deats in Opposition re: 62 FIRST MOTION for Partial Summary Judgment .. Document filed by United States Department of Homeland Security, United States Department of State. (Attachments: # 1 Exhibit 1)(Hayes−Deats, Caleb) (Entered: 06/04/2018)
76 FIRST REPLY MEMORANDUM OF LAW in Support re: 62 FIRST MOTION for Partial Summary Judgment . . Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Appendix A − Plaintiffs' Description of Remaining Disputes Among the Parties, # 2 Appendix B − Federal Register References to Recovery Setbacks in Explanations of Extensions and Terminations of TPS)(Rofe, Jessica) (Entered: 06/14/2018)
77 DECLARATION of Jessica L. Rofe in Support re: 62 FIRST MOTION for Partial Summary Judgment .. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Rofe, Jessica) (Entered: 06/14/2018)
78 JOINT LETTER addressed to Judge Ronnie Abrams from AUSA Jean−David Barnea dated 8/6/18 re: Pending Partial Summary Judgment Motions. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State. (Attachments: # 1 Original State Department Release, # 2 Corrected State Department Cover Letter, # 3 Corrected State Department Release, # 4 USCIS Cover Letter, # 5 USCIS Release)(Barnea, Jean−David) (Entered: 08/06/2018)
79 LETTER addressed to Judge Ronnie Abrams from Caleb Hayes−Deats dated September 6, 2018 re: request for an order withdrawing my appearance. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Hayes−Deats, Caleb) (Entered: 09/06/2018)
80 MEMO ENDORSEMENT: on re: 79 Letter filed by U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, United States Department of State, United States Department of Homeland Security. ENDORSEMENT: Application Granted. SO ORDERED., Attorney Caleb Hayes−Deats terminated. (Signed by Judge Ronnie Abrams on 9/07/2018) (ama) (Entered: 09/07/2018)
81 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)

12/27/2018 01/29/2019
02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/22/2019 03/08/2019
03/11/2019
03/29/2019 04/02/2019
04/12/2019 04/12/2019 04/22/2019 04/23/2019

Terminate Transcript Deadlines re: 47 , 60 . (anc) (Entered: 01/14/2019)
82 ORDER: Counsel for all parties shall appear for oral argument on the pending motions for partial summary judgment on February 15, 2019 at 2:30 p.m. in Courtroom 1506 of the U.S. District Court for the Southern District of New York, 40 Foley Square, New York, New York. SO ORDERED. Oral Argument set for 2/15/2019 at 02:30 PM in Courtroom 1506, 40 Foley Square, New York, NY 10007 before Judge Ronnie Abrams. (Signed by Judge Ronnie Abrams on 1/29/2019) (rj) (Entered: 01/29/2019)
83 LETTER MOTION to Continue Oral Argument addressed to Judge Ronnie Abrams from Jessica Rofe dated 02/08/2019. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite.(Rofe, Jessica) (Entered: 02/08/2019)
84 ORDER granting 83 Letter Motion to Continue. Application granted. The motions pending at docket entries 56 and 62 are stayed until further notice. The parties shall submit a joint status letter to the Court no later than March 8, 2019. SO ORDERED. (Signed by Judge Ronnie Abrams on 2/8/2019) (rj) (Entered: 02/11/2019)
85 ORDER deferring ruling on 56 Motion for Partial Summary Judgment (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (arc) (Entered: 02/19/2019)
ORDER deferring ruling on 62 Motion for Partial Summary Judgment (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (arc) (Entered: 02/19/2019)
Case Stayed (rj) (Entered: 02/22/2019)
86 JOINT LETTER addressed to Judge Ronnie Abrams from AUSA Jean−David Barnea dated 3/8/19 re: Status Report. Document filed by U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States Department of State.(Barnea, Jean−David) (Entered: 03/08/2019)
87 MEMO ENDORSEMENT on re: 86 Letter, filed by U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, United States Department of State, United States Department of Homeland Security. ENDORSEMENT: Application granted. SO ORDERED. (Signed by Judge Ronnie Abrams on 3/11/2019) (kv) (Entered: 03/11/2019)
88 LETTER addressed to Judge Ronnie Abrams from Jessica Rofe dated 03/29/2019 re: Status Report. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite.(Rofe, Jessica) (Entered: 03/29/2019)
89 MEMO ENDORSEMENT on re: 88 Letter re: Status Report filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. ENDORSEMENT: Application granted. The parties shall further update the Court no later than April 12, 2019. SO ORDERED. (Signed by Judge Ronnie Abrams on 4/2/2019) (rj) (Entered: 04/02/2019)
90 LETTER addressed to Judge Ronnie Abrams from Nancy Morawetz dated April 12, 2019 re: Status Update. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite.(Morawetz, Nancy) (Entered: 04/12/2019)
91 MEMO ENDORSEMENT on re: 90 Letter re: Status Update filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. ENDORSEMENT: Application granted. SO ORDERED. (Signed by Judge Ronnie Abrams on 4/12/2019) (rj) (Entered: 04/15/2019)
92 LETTER addressed to Judge Ronnie Abrams from Nancy Morawetz dated 4/22/2019 re: Update and Notice of Voluntary Dismissal. Document filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite. (Attachments: # 1 Rule 41 Notice)(Morawetz, Nancy) (Entered: 04/22/2019)
93 NOTICE OF VOLUNTARY DISMISSAL: The case is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), without attorney's fees or costs to any party. The parties withdraw their pending cross−motions for partial summary judgment, ECF Nos. 56, 62. Plaintiffs withdraw their Freedom of Information Act requests to the defendant agencies without prejudice to refiling any requests as to the same subject.

The defendant agencies are relieved of their obligation to continue to produce documents pursuant to this Court's order of April 6, 2018, ECF No. 55. SO ORDERED., Motions terminated: 62 FIRST MOTION for Partial Summary Judgment . filed by National Immigration Project of the National Lawyers Guild, Margaret Satterthwaite, 56 MOTION for Partial Summary Judgment . filed by United States Department of State, United States Department of Homeland Security. (Signed by Judge Ronnie Abrams on 4/23/2018) (ama) (Entered: 04/23/2019)

 
 Case 1:18-cv-00659-AT Document 2 Filed 01/25/18 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, and
MARGARET SATTERTHWAITE,

Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
UNITED STATES DEPARTMENT OF STATE, and
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants.

Case No. 18-cv-659
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Freedom of Information Act, 5 U.S.C. § 552

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking agency records of the determination to terminate Temporary Protected Status (TPS) for Haitian nationals. Timely disclosure of these records is critically important because of the looming termination of legal immigration status for tens of thousands of Haitian nationals living in the United States. The documents sought through this request will shed light on the legality of the termination, the reasons for the termination, the adequacy of the review of relevant conditions and the need for immediate action to reverse or otherwise ameliorate that decision. 2. TPS is a status under the Immigration and Nationality Act (INA) that provides access to employment authorization and protection from deportation. TPS requires two steps:

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first, the country must be designated as warranting TPS due to specific statutory conditions; second, nationals of that country must apply for TPS and demonstrate eligibility, including a demonstration that they do not have disqualifying criminal convictions. Once a country is designated for TPS, the Secretary of Homeland Security (“Secretary”) does not have the discretion to terminate that status. Instead, the statute requires a factual inquiry, including consultation with other government agencies, into the conditions that warranted TPS and requires that TPS be continued unless the factual record warrants termination.
3. The Secretary of Homeland Security designated Haiti for TPS in 2010 after a 7.0 magnitude earthquake struck the island, and redesignated Haiti in 2011 due to conditions postdating the earthquake, including a deadly cholera epidemic. Haiti’s conditions were reviewed in October 2012 (79 FR 59943), March 2014 (79 FR 1808) and August 2015 (80 FR 51582). Each time, the Secretary of Homeland Security made findings about the conditions on the ground and concluded that they warranted continued provision of TPS.
4. In May 2017, Secretary of Homeland Security John Kelly extended TPS for six months, with findings including extensive damage and fatalities caused by Hurricane Matthew in October 2016 and heavy rains and flooding in April 2017, which together compounded existing food insecurity on the island. See 82 FR 23830. Despite his finding that conditions warranted an extension of TPS, Secretary Kelly stated in the Federal Register that Haitian nationals with TPS were “encouraged to prepare for their return to Haiti, including requesting updated travel documents from the Government of Haiti.” In testimony before Congress, Secretary Kelly stated that the six month extension was meant as an “alert” and that TPS had been granted for “a specific event – the earthquake,” with no mention of the post-earthquake conditions that had led to the redesignation of TPS in 2011 or the three prior extensions of TPS. The Secretary further
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testified that he would like to see the situation for TPS recipients solved “in some other way.” Senate Homeland Hearing on the Department of Homeland Security Budget, Fiscal Year 2018, June 6, 2017.
5. On or about October 31, 2017, Secretary of State Rex Tillerson transmitted the findings of the Department of State (DOS) to the Department of Homeland Security (DHS) addressing whether the conditions in Haiti warranted extension or termination of TPS for Haitian nationals.
6. On November 20, 2017, Acting Secretary of Homeland Security Elaine Duke issued a press release stating that she had terminated TPS. Her statement did not discuss most of the conditions that had led to extension in May of 2017.1 No notice was placed in the Federal Register until January 18, 2018, at which point one sentence was added noting the cholera epidemic, but offering no analysis of its reach other than to say that it was “at its lowest level.”
7. As a result of the decision to terminate TPS, 58,000 Haitian nationals who have lived in the United States since at least 2011 face loss of their right to remain in the United States and to obtain employment authorization. These TPS recipients are parents to approximately 27,000 U.S.-citizen children, who face total disruption of their lives if their parents lose their ability to remain in the United States.2
8. Plaintiffs, the National Immigration Project of the National Lawyers Guild (NIPNLG) and Professor Margaret Satterthwaite (collectively, “Plaintiffs”) bring this action to
1 DHS Press Release, “Acting Secretary Elaine Duke Announcement on Temporary Protected Status for Haiti (Nov. 20, 2017) (“DHS Press Release”) available at https://www.dhs.gov/news/2017/11/20/actingsecretary-elaine-duke-announcement-temporary-protected-status-haiti. 2 Donald Kerwin and Robert Warren, A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras and Haiti, JOURNAL ON MIGRATION AND HUMAN SECURITY (August 2017) http://cmsny.org/publications/jmhs-tps-elsalvador-honduras-haiti/.
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obtain undisclosed government records regarding the facts and standard applied by the agency in its termination of TPS for nationals of Haiti.
9. Plaintiffs submitted two FOIA requests seeking records relating to the DHS’s non-discretionary determination to terminate TPS for nationals of Haiti. The first, short-form request was addressed to Defendant DHS, and the second, long-form request was addressed to Defendants DHS, Department of State (DOS), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). Plaintiffs are entitled to the timely release of records responsive to the requests.
10. The records Plaintiffs seek would contribute to a much greater understanding of the relevant conditions undergirding the termination of TPS for Haiti. Specifically, the records will reveal the extent to which Defendants cabined their evaluation of conditions to those immediately caused by the January 2010 earthquake that struck Haiti, or whether subsequent conditions that impeded earthquake recovery including the cholera epidemic, Hurricane Matthew in 2016 and heavy rains and flooding in 2017, were part of Defendants’ determination. Moreover, the records will help clarify the extent to which the determination to terminate TPS involved a changed legal standard and / or policy considerations and the improper consideration of factors unrelated to extraordinary and temporary conditions in Haiti that prevent Haitian nationals from returning to Haiti in safety.
11. To date, Defendants have produced no records in response to Plaintiffs’ FOIA requests.
12. Defendants’ failure to respond to Plaintiffs’ requests violates FOIA. Plaintiffs seek an order requiring Defendants to produce, and enjoining Defendants from withholding, records responsive to the requests.
4

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JURISDICTION AND VENUE 13. This Court has jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B) because one of the Plaintiffs, Professor Margaret Satterthwaite, has her principal place of business within this District. Venue is proper under 5 U.S.C. § 552(a)(4)(B).
PARTIES 14. Plaintiff NIPNLG is a national, nonprofit organization dedicated to providing legal assistance and support to immigrant communities and advocating on behalf of noncitizens. Its principal place of business is located at 14 Beacon Street, Suite 602, Boston, MA 02108. Members and supporters of NIPNLG include attorneys, legal workers, law students, judges, jailhouse lawyers, grassroots advocates, community organizations, and others seeking to defend and expand the rights of immigrants in the United States. NIPNLG is primarily engaged in disseminating information to the public. It is the author of four treatises on immigration law published by Thomson Reuters. NIPNLG provides technical and litigation assistance, participates in impact litigation, advocates for fair and just policies and legislation, provides legal training to the bar and the bench, and regularly publishes practice advisories and community resources on immigration law topics that are disseminated to its members and a large public audience through its website, www.nationalimmigrationproject.org. 15. Plaintiff Margaret Satterthwaite is a clinical law professor at the New York University (NYU) School of Law. She directs a human rights clinic and conducts academic and applied research related to human rights issues. A significant strand of her ongoing clinical work and academic research relates to Haiti and Haitian immigrants in the United States. Her research is frequently published in open-access and academic settings. She has authored or co-authored numerous articles and reports concerning human rights conditions in Haiti, including two reports
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Case 1:18-cv-00659-AT Document 2 Filed 01/25/18 Page 6 of 25
about post-earthquake sexual violence and exploitation in displacement camps. She travels to Haiti several times per year. Professor Satterthwaite’s principal place of business is located at NYU School of Law, 245 Sullivan Street, New York, NY 10012.
16. Defendant Department of Homeland Security (DHS) is a department within the executive branch of the United States government. It is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). DHS is headquartered in Washington, DC, and has field offices in New York, NY. Upon information and belief, DHS has possession, custody, and control over the records Plaintiffs seek.
17. Defendant Department of State (DOS) is a department within the executive branch of the United States government. It is an “agency” within the meaning of 5 U.S.C. § 552(f)(1) and is headquartered in Washington, DC. Upon information and belief, DOS has possession, custody, and control over the records Plaintiffs seek.
18. Defendant Immigration and Customs Enforcement (ICE) is a component agency of DHS. It also is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). ICE is headquartered in Washington, DC, and has field offices in New York, NY. Upon information and belief, ICE has possession, custody, and control over the records Plaintiffs seek.
STATEMENT OF FACTS Background of TPS Designation and Termination for Haiti 19. Under 8 U.S.C. § 1254a(b)(1), the Secretary of Homeland Security (Secretary) is authorized to designate a foreign state for TPS upon a finding that such state is experiencing ongoing armed conflict, an environmental disaster, or “extraordinary and temporary conditions.” 20. During the period for which the Secretary has designated a country for TPS, TPS beneficiaries are eligible to remain in the United States and may obtain work authorization. 8
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U.S.C. § 1254a(a)(1). 21. At least sixty days before the end of the period of the TPS designation, the
Secretary, in consultation with the other agencies, must review the conditions in the foreign state. 8 U.S.C. § 1254a (b)(3)(A). Unless the Secretary determines that a foreign state no longer meets the conditions for which a designation is in effect, the period of designation is automatically extended for an additional period of at least six months. 8 U.S.C. § 1254a(b)(3)(C).
22. On January 21, 2010, after consulting with the DOS and other government agencies, Secretary Janet Napolitano designated Haiti for TPS for a period of 18 months because she determined that there existed in Haiti “extraordinary and temporary conditions” preventing Haitian nationals from returning to Haiti in safety. 75 FR 3476 (Jan. 21, 2010).
23. At that time, the “extraordinary and temporary conditions” were a result of a 7.0 magnitude earthquake that occurred on January 12, 2010. Id. at 3477.
24. The earthquake destroyed most of Haiti’s capital city, Port-au-Prince, and killed more than 200,000 people.3 More than 2.3 million people were displaced, and many more were affected by the emergency conditions caused by the earthquake.4 Hospitals overflowed with victims, electricity was cut off, potable water was hard to find, and telephone service was severely affected. Food and medicine were scarce. Roads blocked with debris made it difficult to transport food, clean water, and medical supplies. 75 FR 3476, 3477.
3 U.N. OFFICE FOR THE COORDINATION OF HUMANITARIAN AFFAIRS (U.N. OCHA), Haiti: One Year Later (Jan. 18, 2011) http://www.unocha.org/issues-indepth/haiti-one-year-later. 4 The earthquake destroyed more than 300,000 homes, U.N. OFFICE OF THE SECRETARY-GENERAL’S SPECIAL ADVISER ON COMMUNITY-BASED MEDICINE & LESSONS FROM HAITI, Lessons from Haiti: Key Statistics (2012) [hereinafter Lessons], http://www.lessonsfromhaiti.org/ lessons-from-haiti/keystatistics/#section-two; killed 20% of civil servants, INTERIM HAITI RECOVERY COMMISSION, Haiti One Year Later: The Progress to Date an d the Path Forward 3 (2011) [hereinafter One Year Later], http://www.lessonsfromhaiti.org/download/Report_Center/IHRC_Haiti_One_Year_Later_EN__original.p df; and contributed to public health emergencies, including a cholera epidemic.
7

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25. The initial TPS designation was effective through July 22, 2011. Id. at 3476. 26. In October 2010, one of the deadliest cholera outbreaks in modern history erupted in Haiti, overwhelming the nation’s public health system. Cholera, which continues to sicken Haitians today, is a stand-alone disaster, adding to and exacerbating the damage caused by the earthquake.5 27. On May 19, 2011, Secretary Napolitano both extended the existing TPS designation for Haiti and re-designated Haiti for TPS in order to “allow[] additional individuals . . . to obtain TPS . . . including certain Haitians who arrived in the United States following the January 12, 2010 earthquake in Haiti.” 76 FR 29000 (May 19, 2011). 28. Secretary Napolitano cited the fact that the earthquake had “exacerbated Haiti’s position as the least-developed country in the Western Hemisphere and one of the poorest in the world,” where 80 percent of the population lived below the poverty line, and per capita gross domestic product was under $2 per day. She specifically noted that the cholera outbreak in Haiti evidenced the vulnerability of the public health sector, citing 199,497 cholera cases since the earthquake, including 112,656 hospitalizations and 3,297 deaths. Id. at 29001. 29. This 18-month TPS extension and re-designation were effective through January 22, 2013. Id. at 29000. 30. TPS was extended for Haitian nationals for 18-month intervals again in October 2012, March 2014, and August 2015. For each extension, the DHS outlined conditions arising from the January 12, 2010 earthquake in Haiti and its attendant damage to infrastructure, public health, agriculture, transportation and educational facilities. Each subsequent extension named
5 See Global Justice Clinic, Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualifications for TPS (Oct. 2017) at 8 (“GJC report”) available at http://chrgj.org/wpcontent/uploads/2017/10/171025_Global-Justice-Clinic-Haiti-TPS-Report-web-version.pdf.
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the cholera epidemic and the exacerbation of pre-existing vulnerabilities caused by the
earthquake, including food insecurity and a housing crisis, as contributing to the extension of
TPS for Haitian nationals.
31. In December 2016, in advance of the expiration of the August 2015 extension of
TPS for Haitian nationals, Secretary of State John F. Kerry issued a letter to Secretary of
Homeland Security Jeh Johnson which outlined the extraordinary and temporary conditions that
made Haiti unsafe for the return of nearly 60,000 Haitian nationals and recommended that Secretary Johnson extend TPS for Haiti upon its expiration on July 22, 2017.6
32. On April 10, 2017, Acting Director of USCIS James W. McCament issued a memo regarding the Haitian TPS extension in which he recommended termination of TPS.7
Despite this recommendation, the memo stated:
Haiti’s weak public health system is further strained by an ongoing cholera epidemic, whose inception was traced to U.N. peacekeepers assisting with earthquake recovery. Since October 2010, close to 800,000 Haitians have contracted cholera, and nearly 10,000 people have died from the disease.
33. The memo also stated that 40 percent of the Haitian population lacked access to fundamental health and nutrition services.8
34. In April and May 2017, upon information and belief, USCIS officials asked the
agency to compile evidence on any crimes committed and public benefits used by Haitians with
6 Letter from Secretary of State John F. Kerry to Secretary of Homeland Security Jeh Johnson (December 12, 2016), http://www.ijdh.org/wp-content/uploads/2016/10/Haiti_TPS_StateDept-Dec2016HaitiMemo.pdf [hereinafter Letter to the Honorable Jeh Johnson] (requesting an extension of TPS for Haiti). 7 Memo from James W. McCament to the Secretary of Homeland Security, “Haiti’s Designation for Temporary Protected Status,” (Apr. 10, 2017) (“McCament memo”) available at https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/04/21/uscisrecommendation-to-terminate-tps-for-haiti-apr-10-2017.aspx. 8 Id.
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TPS.9 35. On May 24, 2017, Secretary John F. Kelly once again extended TPS for Haiti. 82
FR 23830 (May 24, 2017). This 6-month extension was effective through January 22, 2018. Id. 36. In his designation notice, Secretary Kelly documented a number of country
conditions that continued to prevent Haitian nationals from returning to Haiti in safety, including the “ongoing cholera epidemic,” stating that since October 2010, close to 800,000 Haitians had contracted cholera, and nearly 10,000 people had died of the disease. Id. at 23832.
37. Secretary Kelly presented the fact that Hurricane Matthew, which made landfall on October 4, 2016, caused 546 fatalities and left over 175,000 people without housing, as well as causing “extensive damage to crops, housing, livestock, and infrastructure” across Haiti. Id. at 23832. Further, Secretary Kelly noted that approximately 3.2 million people faced food insecurity. Id. at 23832.
38. Though Kelly found that 96% of people had moved out of IDP camps, he noted that 55,000 people continued to live in IDP camps, where they remained vulnerable to gender based violence and other security risks. Id.
39. Kelly acknowledged that many camp residents may have moved back to unsafe conditions. “Some people who were displaced by the earthquake, although no longer in camps, have moved back to unsafe homes or relocated to informal settlements located in hazardous areas.” Id. at 23823.
40. Despite Secretary Kelly’s finding that conditions warranted an extension of TPS, he advised Haitian nationals to prepare to return to Haiti and made public statements that the short, 6-month extension was meant to be an “alert.” He also attributed past extensions to 9 Alicia A. Caldwell, “AP Exclusive: U.S. Digs for Evidence of Haiti Immigrant Crimes,” A.P. NEWS, May 9, 2017 available at https://apnews.com/740ed5b40ce84bb398c82c48884be616.
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“automatic renewals.” 41. On or about October 31, 2017, Secretary of State Rex Tillerson sent a letter to
DHS Acting Secretary Elaine Duke, recommending that conditions in Haiti no longer justify its TPS designation.10 Unlike Secretary Kerry’s letter from December of 2016, Secretary Tillerson’s letter has not been made available to the public, and it is a document sought by the instant FOIA request.
42. On November 20, 2017, Acting Secretary Duke announced her decision to terminate the TPS designation for Haiti with a delayed effective date of 18 months.11
43. Acting Secretary Duke stated that the “extraordinary but temporary conditions relating to the 2010 earthquake that prevented Haitian nationals from returning in safety—are no longer met.”12
44. This determination was made although the conditions and challenges arising from the earthquake have not substantially changed since Secretary Kelly’s extension determination on May 24, 2017.
45. Unlike her predecessors, Duke did not meaningfully address the ongoing cholera epidemic, the effects of Hurricane Matthew, the housing crisis, the ongoing presence of internally displaced people, and other conditions cited in earlier extensions and the redesignation.
46. Instead of examining all of the conditions that had supported earlier extensions
10 See Nick Miroff and Karen DeYoung, “Protected Status No Longer Justified for Central Americans and Haitians in U.S., State Dept. says,” WASHINGTON POST, November 3, 2017, available at https://www.washingtonpost.com/world/central-americans-and-haitians-no-longer-need-protected-statusstate-dept-says/2017/11/03/647cbd5c-c0ba-11e7-959cfe2b598d8c00_story.html?utm_term=.4e2a260d7f51. 11 DHS Press release, supra n. 1. 12 Id.
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and the TPS re-designation, Secretary Duke stated that the IDP population had decreased and that the United Nations had withdrew its peacekeeping mission. Secretary Duke noted that a new president is in office, and that he intends to rebuild the National Palace. Last, Secretary Duke stated that Haiti’s economy has been recovering since the earthquake.13
47. A Federal Register Notice of the termination of TPS was delayed until January 18, 2018. 83 FR 2468. At this time, there are approximately 58,700 beneficiaries of Haitian TPS14 who are currently required to leave the country on or before July 22, 2019.
48. On January 10, 2018, more than a week before the publication of the Federal Register notice for Haiti, the State Department issued a travel advisory for Haiti. The alert designated Haiti as level 3: Reconsider Travel.15 The alert noted that violent crime and armed robbery are common. Id.
49. In September of 2017, the State Department issued a travel advisory for Haiti that stated that the rates of kidnapping, murder, and rape rose in 2016.16
50. Reviews of country conditions in Haiti made in the weeks prior to the November 20, 2017 decision to terminate TPS suggest that the extraordinary and temporary conditions for which Haiti was designated for TPS in 2010 and redesignated for TPS in 2011 remain. The conditions include:
(i) internal displacement: More than 37,000 people remain in IDP camps, with tens of thousands more displaced but not recorded in official statistics due to lack of
13 Id. 14 McCament memo, supra n.7, at 2. 15 https://travel.state.gov/content/travel/en/international-travel/International-Travel-Country-InformationPages/Haiti.html 16 https://ht.usembassy.gov/haiti-travel-warning/
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tracking or reclassification;17
(ii) a housing and physical infrastructure crisis that demonstrates that many people
who left camps settled in equally inadequate homes, many of which were damaged by the earthquake;18 (iii) one of the world’s worst cholera epidemics;19
(iv) grave hunger and malnutrition, with more than one million people facing severe, acute food insecurity;20
(v) political instability and security risks, including the risk of gender based violence.21 The United Nations Peacekeeping force played an important role in
stabilizing Haiti. Its replacement with a smaller force has generated concern that
Haiti lacks necessary police presence. Nearly one quarter of police supervisory
positions remain unfilled, and the police have a presence in fewer than half of Haiti’s 570 communal sections;22 and
(vi) a widening fiscal deficit, with economic growth slowing to one percent and public expenditures on the rise to meet post-Matthew reconstruction needs.23
51. The records sought through the FOIA requests will show what standard was
17 U.N. OCHA, Haiti: Humanitarian Snapshot (Aug. 2017) 18 REFUGEES INTERNATIONAL, TWO STEPS BACK: HAITI STILL REELING FROM HURRICANE MATTHEW 13 (2017), https://www.refugeesinternational.org/reports/2017/4/6/haiti. 19 U.N. OCHA, Haiti: Humanitarian Snapshot (November 2017), https://www.humanitarianresponse.info/system/files/documents/files/hti_humanitarian_snapshot_novemb er2017-en.pdf. 20 Id. 21 REFUGEES INTERNATIONAL, TWO STEPS BACK: HAITI STILL REELING FROM HURRICANE MATTHEW 5 (2017), https://www.refugeesinternational.org/reports/2017/4/6/haiti. 22 U.N. Secretary-General, Report of the Secretary-General on the United Nations Stabilization Mission in Haiti, ¶ 39, U.N. Doc. S/2016/753 (Aug. 31, 2016). 23 THE WORLD BANK, Haiti: Overview, http://www.worldbank.org/en/country/haiti/overview (October 2017).
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applied to evaluate the conditions in Haiti and the actual conditions that were and were not considered in the finding that TPS should be terminated.
Plaintiffs’ First FOIA Request 52. On November 22, 2017, following Acting Secretary of Homeland Security Duke’s announcement to terminate the TPS designation for Haiti, Plaintiffs submitted a FOIA request (Request I) to Defendant DHS. (See Exhibit 1). The Request sought the following documents, none of which are presently in the public domain:
1. “All records sent by or to Elaine Duke, Acting Director of the DHS, relating to TPS for nationals of Haiti, including but not limited to the extension, redesignation, or termination of TPS for Haitian nationals; and
2. All records relating to and including a letter dated on or about October 31, 2017 from Secretary of State Rex Tillerson to Elaine Duke, Acting Director of Department of Homeland Security, informing her that conditions in Haiti no longer justify its TPS designation.”
53. Plaintiffs sought “expedited processing” under 5 U.S.C. § 552(a)(6)(E)(i) and a full fee waiver pursuant to both 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k)(1) (public interest waivers).
54. By email dated November 28, 2017, DHS acknowledged receipt of Request I and informed Plaintiffs that DHS had “determined that item one of [Plaintiffs’] request is too broad in scope.” (See Exhibit 2). DHS instructed Plaintiffs to “resubmit [their] request with a time period for item 1.” DHS also noted that the agency would consider Plaintiffs to be “no longer interested” and would “administratively close[]” Plaintiffs’ request if DHS did not receive a response within 30 days of the date of the email.
55. By email sent December 1, 2017, Plaintiffs responded to DHS’s November 28, 2017 email. (See Exhibit 3). Plaintiffs notified DHS that Plaintiffs remained interested in the
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FOIA request and that the case should not be administratively closed. Plaintiffs further specified
that with regard to item one, they “seek records between April 4, 2017 and November 22, 2017.”
56. To date, Plaintiffs have not received any additional communications from DHS
regarding Request I.
57. More than 20 working days have passed since DHS received Request I and since
Plaintiffs perfected their request, and DHS has not yet responded.
Plaintiffs’ Second FOIA Request
58. On November 24, 2017, Plaintiffs submitted a second and longer FOIA request
(Request II) to DHS, ICE, DOS, and USCIS. (See Exhibit 4). The Request sought the following
documents:
1. “All records relating to any recommendation made by any employee of the DHS, USCIS, ICE, or DOS for the extension or redesignation of TPS for nationals of Haiti since January 20, 2017;
2. All records relating to any recommendation made by any employee of USCIS, DHS, ICE, or DOS for the termination of TPS for nationals of Haiti since January 20, 2017;
3. All records relating to correspondence and/or communications between any employee of USCIS, DHS, or ICE and any employee of DOS regarding TPS for nationals of Haiti since January 20, 2017;
4. All records relating to any recommendation made by any persons tasked with developing TPS policy or directives from the White House to any employee of USCIS, DHS, ICE, or DOS regarding the termination of TPS for nationals of Haiti since January 20, 2017;
5. All other records relating to correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and any White House personnel regarding TPS for nationals of Haiti since January 20, 2017;
6. All records relating to correspondence and/or communications from President Trump’s Cabinet to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017;
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7. All records relating to correspondence and/or communications from Department of Justice (DOJ) officials to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017;
8. All records pertaining to current country conditions of Haiti, including but not limited to those compiled by United States Agency for International Development (USAID), since November 1, 2016;
9. All records relating to correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and Haitian leaders, including but not limited to Haitian Foreign Minister Antonio Rodrigue and Haitian Ambassador Paul Altidor, regarding the extension, redesignation, or termination of TPS for Haitian nationals;
10. All records since January 20, 2017 relating to any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with John Kelly, former Secretary of the DHS and with Elaine Duke, Acting Director of DHS.
11. All records relating to any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with White House personnel and/or DOJ officials;
12. All records relating to any response made by any employee of USCIS, DHS, ICE, or DOS to the inquiries referenced in Requests #10 and 11, including but not limited to any data or information responsive to the inquiry;
13. All records relating to any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit;
14. All records relating to any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit;
15. All records relating to any response made by any employee of USCIS, DHS, ICE, or DOS to the inquiry referenced in Requests #13 and 14, including but not limited to any data or information responsive to the inquiry;
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16. All records since January 1, 2010 relating to and including previous recommendations and standards to extend and redesignate TPS for the nationals of Haiti;
17. All records relating to any policy, guidance, directives, and/or memoranda issued since January 1, 2010 pertaining to the country conditions in Haiti and the use of this information in the determination of designating, redesignating, extending, or terminating TPS for the nationals of Haiti;
18. All records relating to the number of Haitian nationals with TPS who are employed by small businesses, small non-profit organizations, and small jurisdictions of government; and
19. All records relating to any analysis of the potential economic impacts on small businesses, small non-profit organizations, and small jurisdictions of government of the termination of TPS for nationals of Haiti.”
59. Plaintiffs sought “expedited processing” under 5 U.S.C. § 552(a)(6)(e)(i) and a full fee waiver pursuant to both 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k)(1) (public interest waivers).
60. By email dated November 29, 2017, DHS acknowledged receipt of Request II and informed Plaintiffs that DHS had “determined that [Plaintiffs’] request is too broad in scope or did not specifically identify the records which [Plaintiffs] are seeking.” (See Exhibit 5). DHS instructed Plaintiffs to “resubmit [their] request containing a reasonable description of the records [Plaintiffs] are seeking.” DHS further notified Plaintiffs that it would consider Plaintiffs to be “no longer interested” and would “administratively close[]” Plaintiffs’ requests if DHS did not receive a response within 30 days of the date of the email.
61. By email sent December 4, 2017, Plaintiffs responded to DHS’s November 28, 2017 email. (See Exhibit 6). Plaintiffs notified DHS that Plaintiffs remained interested in the
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FOIA request and that the case should not be administratively closed. Plaintiffs further agreed to
narrow fifteen of the nineteen requests as follows:
Item three asks for “all records relating to correspondence and/or communications between any employee of USCIS, DHS, or ICE and any employee of DOS regarding TPS for nationals of Haiti since January 20, 2017.” We narrow our request to “all correspondence and/or communications between any employee of USCIS, DHS, or ICE and any employee of DOS regarding TPS for nationals of Haiti since January 20, 2017.”
Item five asks for “all other records relating to correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and any White House personnel regarding TPS for nationals of Haiti since January 20, 2017.” We narrow our request to “all correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and any White House personnel regarding TPS for nationals of Haiti since January 20, 2017.”
Item six asks for “all records relating to correspondence and/or communications from President Trump’s Cabinet to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017.” We narrow our request to “all correspondence and/or communications from President Trump’s Cabinet to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017.”
Item seven asks for “all records relating to correspondence and/or communications from Department of Justice (DOJ) officials to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017.” We narrow our request to “all correspondence and/or communications from Department of Justice (DOJ) officials to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017.”
Item eight asks for “all records pertaining to current country conditions of Haiti, including but not limited to those compiled by United States Agency for International Development (USAID), since November 1, 2016.” We narrow our request to “all records reflecting current country conditions in Haiti, including but not limited to those compiled by United States Agency for International Development (USAID), since November 1, 2016.”
Item nine asks for “all records relating to correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS
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and Haitian leaders, including but not limited to Haitian Foreign Minister Antonio Rodrigue and Haitian Ambassador Paul Altidor, regarding the extension, redesignation, or termination of TPS for Haitian nationals.” We narrow our request to “all correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and Haitian leaders, including but not limited to Haitian Foreign Minister Antonio Rodrigue and Haitian Ambassador Paul Altidor, regarding the extension, redesignation, or termination of TPS for Haitian nationals.”
Item ten asks for “records since January 20, 2017 relating to any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with John Kelly, former Secretary of the DHS and with Elaine Duke, Acting Director of DHS.” We narrow our request to “records since January 20, 2017 reflecting any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with John Kelly, former Secretary of the DHS and with Elaine Duke, Acting Director of DHS.”
Item eleven asks for “all records relating to any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with White House personnel and/or DOJ officials.” We narrow our request to “records since January 20, 2017, reflecting any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with White House personnel and/or DOJ officials.”
Item twelve asks for “all records relating to any response made by any employee of USCIS, DHS, ICE, or DOS to the inquiries referenced in Requests #10 and 11, including but not limited to any data or information responsive to the inquiry.” We narrow our request to “any responses made by any employee of USCIS, DHS, ICE, or DOS to the inquiries referenced in Requests #10 and 11.”
Item thirteen asks for “all records relating to any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit.” We narrow our request to “records reflecting any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit.”
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Item fourteen asks for “all records relating to any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit.” We narrow our request to “records since January 20, 2017, reflecting any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit.”
Item fifteen asks for “all records relating to any response made by any employee of USCIS, DHS, ICE, or DOS to the inquiry referenced in Requests #13 and 14, including but not limited to any data or information responsive to the inquiry.” We narrow our request to “any responses made by any employee of USCIS, DHS, ICE, or DOS to the inquiries referenced in Requests #13 and 14.”
Item seventeen asks for “all records relating to any policy, guidance, directives, and/or memoranda issued since January 1, 2010 pertaining to the country conditions in Haiti and the use of this information in the determination of designating, redesignating, extending, or terminating TPS for the nationals of Haiti.” We narrow our request to “any policy, guidance, directives, and/or memoranda issued since January 1, 2010 pertaining to the country conditions in Haiti and the use of this information in the determination of designating, redesignating, extending, or terminating TPS for the nationals of Haiti.”
Item eighteen asks for “all records relating to the number of Haitian nationals with TPS who are employed by small businesses, small nonprofit organizations, and small jurisdictions of government.” We narrow our request to “all records reflecting the number of Haitian nationals with TPS who are employed by small businesses, small non-profit organizations, and small jurisdictions of government.”
Item nineteen asks for “all records relating to any analysis of the potential economic impacts on small businesses, small non-profit organizations, and small jurisdictions of government of the termination of TPS for nationals of Haiti.” We narrow our request to “all records containing any analysis of the potential economic impacts on small businesses, small non-profit organizations, and small jurisdictions of government of the termination of TPS for nationals of Haiti.”
We add an additional item twenty, through which we seek all communications between January 20, 2017 and May 24, 2017 regarding the May 24, 2017 Federal Register publication justifying the six-month extension of TPS at that time for nationals of Haiti.
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62. By email dated November 30, 2017, DOS acknowledged receipt of Request II and informed Plaintiffs that “before [the agency] can begin processing [Plaintiffs’] request, [the agency] ask[s] that [Plaintiffs] narrow the subject.” (See Exhibit 6). DOS instructed Plaintiffs to “respond by close of business” the following day and identify specific individuals employed by DOS who may have sent or received the requested communications.
63. By email sent December 1, 2017, Plaintiffs responded to DOS’s November 30, 2017 email. (See Exhibit 7). Plaintiffs notified DOS that Plaintiffs sought communications regarding TPS for Haiti by “DOS personnel who were involved in the assessment of whether to extend TPS for nationals of Haiti,” and identified the following officials whose communications should be reviewed:
Rex Tillerson, Secretary of State John Sullivan, Deputy Secretary of State Thomas Shannon, Under Secretary of State for Political Affairs Francisco Palmieri, Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs Kenneth Merten, Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs and Haiti Special Coordinator Simon Henshaw, Deputy Assistant Secretary, Bureau of Population, Refugees, and Migration Randy Berry, Deputy Assistant Secretary, Bureau of Democracy, Human Rights, and Labor Scott Busby, Deputy Assistant Secretary, Bureau of Democracy, Human Rights, and Labor Robin Diallo, Chargé d’Affaires, U.S. Embassy in Haiti Michele Sison, Ambassador to Haiti
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64. By email dated December 12, 2017, ICE acknowledged receipt of Request II, granted Plaintiffs’ claim for a fee waiver, denied Plaintiffs’ claim for expedited processing, and invoked the ten day extension as allowed under 5 U.S.C. § 552(a)(6)(B). (See Exhibit 8).
65. To date, Plaintiffs have not received any additional communications from DHS, DOS, or ICE regarding Request II.
66. More than 20 working days have passed since Defendants DHS, DOS, and ICE received Request II and since Plaintiffs perfected their request, and none of the agencies have yet responded to Request II.
CAUSE OF ACTION COUNT I
FOIA Violation: Failure To Disclose and Release Responsive Records (Against Defendant DHS)
67. Plaintiffs re-allege and incorporate by reference paragraphs 1–66. 68. Plaintiffs have exhausted all administrative remedies with respect to Request I under 5 U.S.C. § 552(a)(6)(C)(i). 69. Plaintiffs have a statutory right under FOIA, 5 U.S.C. § 552(a)(3)(A), to the records they requested, and there is no legal basis for DHS’s failure to disclose them. 70. Upon receiving Plaintiffs’ Request I, Defendant DHS was obligated under 5 U.S.C. § 552(a) to promptly conduct a reasonable search for records responsive to Request I and to produce any responsive records. 71. As of the date of this Complaint and in violation of the deadlines set forth in 5 U.S.C. § 552(a)(6), DHS has failed to disclose and release records in violation of 5 U.S.C. § 552(a).
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72. Defendant DHS has not identified any legal basis for their failure to timely conduct a reasonable search for, and to produce, responsive records.
73. The failure by DHS to conduct reasonable searches for records responsive to Request I and to produce responsive records violates 5 U.S.C. § 552(a) and the regulations promulgated thereunder.
COUNT II FOIA Violation: Failure To Disclose and Release Responsive Records
(Against Defendants DHS, DOS, and ICE) 74. Plaintiffs re-allege and incorporate by reference paragraphs 1–66. 75. Plaintiffs have exhausted all administrative remedies with respect to Request II under 5 U.S.C. § 552(a)(6)(C)(i). 76. Plaintiffs have a statutory right under FOIA, 5 U.S.C. § 552(a)(3)(A), to the records they requested, and there is no legal basis for DHS, DOS, or ICE’s failure to disclose them. 77. Upon receiving Plaintiffs’ Request II, Defendants were obligated under 5 U.S.C. § 552(a) to promptly conduct a reasonable search for records responsive to Request II and to produce any responsive records. 78. As of the date of this Complaint and in violation of the deadlines set forth in 5 U.S.C. § 552(a)(6), Defendants have failed to disclose and release records in violation of 5 U.S.C. § 552(a). 79. Defendants have not identified any legal basis for their failure to timely conduct a reasonable search for, and to produce, responsive records.
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80. The failure by Defendants to conduct reasonable searches for records responsive to Request II and to produce responsive records violates 5 U.S.C. § 552(a) and the regulations promulgated thereunder.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
(1) Declare that Defendants’ withholding of the requested records is unlawful; (2) Order Defendants to immediately conduct a full, adequate, and expedited search and
make available all records responsive to the Requests; (3) Enjoin the Defendants from withholding all records responsive to the Requests; (4) Award Plaintiffs their costs and reasonable attorneys’ fees pursuant to 5 U.S.C. § 552(a)(4)(E); and (5) Grant such other and further relief as this Court may deem just and proper.

Dated: January 25, 2018

Respectfully submitted,
/s/ Jessica Rofé Sejal Zota Elizabeth Simpson* NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 14 Beacon Street, Suite 602 Boston, MA 02108 (617) 227-9727 sejal@nipnlg.org *application for pro hac vice admission forthcoming
Nancy Morawetz Jessica Rofé Terry Ding, Legal Intern Sarah Thompson, Legal Intern WASHINGTON SQUARE LEGAL SERVICES, INC. Immigrant Rights Clinic
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Case 1:18-cv-00659-AT Document 2 Filed 01/25/18 Page 25 of 25 245 Sullivan Street, 5th Floor New York, NY 10012 (212) 998-6430 nancy.morawetz@nyu.edu jessica.rofe@nyu.edu Attorneys for Plaintiffs
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 Case 1:18-cv-00659-RA Document 30 Filed 02/15/18 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, and
MARGARET SATTERTHWAITE,

Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
UNITED STATES DEPARTMENT OF STATE,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, and
U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
Defendants.

Case No. 18-cv-659
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Freedom of Information Act, 5 U.S.C. § 552

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking agency records of the determination to terminate Temporary Protected Status (TPS) for Haitian nationals. Timely disclosure of these records is critically important because of the looming termination of legal immigration status for tens of thousands of Haitian nationals living in the United States. The documents sought through this request will shed light on the legality of the termination, the reasons for the termination, the adequacy of the review of relevant conditions and the need for immediate action to reverse or otherwise ameliorate that decision.

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2. TPS is a status under the Immigration and Nationality Act (INA) that provides access to employment authorization and protection from deportation. TPS requires two steps: first, the country must be designated as warranting TPS due to specific statutory conditions; second, nationals of that country must apply for TPS and demonstrate eligibility, including a demonstration that they do not have disqualifying criminal convictions. Once a country is designated for TPS, the Secretary of Homeland Security (“Secretary”) does not have the discretion to terminate that status. Instead, the statute requires a factual inquiry, including consultation with other government agencies, into the conditions that warranted TPS and requires that TPS be continued unless the factual record warrants termination.
3. The Secretary of Homeland Security designated Haiti for TPS in 2010 after a 7.0 magnitude earthquake struck the island, and redesignated Haiti in 2011 due to conditions postdating the earthquake, including a deadly cholera epidemic. Haiti’s conditions were reviewed in October 2012 (79 FR 59943), March 2014 (79 FR 1808) and August 2015 (80 FR 51582). Each time, the Secretary of Homeland Security made findings about the conditions on the ground and concluded that they warranted continued provision of TPS.
4. In May 2017, Secretary of Homeland Security John Kelly extended TPS for six months, with findings including extensive damage and fatalities caused by Hurricane Matthew in October 2016 and heavy rains and flooding in April 2017, which together compounded existing food insecurity on the island. See 82 FR 23830. Despite his finding that conditions warranted an extension of TPS, Secretary Kelly stated in the Federal Register that Haitian nationals with TPS were “encouraged to prepare for their return to Haiti, including requesting updated travel documents from the Government of Haiti.” In testimony before Congress, Secretary Kelly stated that the six month extension was meant as an “alert” and that TPS had been granted for “a
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specific event – the earthquake,” with no mention of the post-earthquake conditions that had led to the redesignation of TPS in 2011 or the three prior extensions of TPS. The Secretary further testified that he would like to see the situation for TPS recipients solved “in some other way.” Senate Homeland Hearing on the Department of Homeland Security Budget, Fiscal Year 2018, June 6, 2017.
5. On or about October 31, 2017, Secretary of State Rex Tillerson transmitted the findings of the Department of State (DOS) to the Department of Homeland Security (DHS) addressing whether the conditions in Haiti warranted extension or termination of TPS for Haitian nationals.
6. On November 20, 2017, Acting Secretary of Homeland Security Elaine Duke issued a press release stating that she had terminated TPS. Her statement did not discuss most of the conditions that had led to extension in May of 2017.1 No notice was placed in the Federal Register until January 18, 2018, at which point one sentence was added noting the cholera epidemic, but offering no analysis of its reach other than to say that it was “at its lowest level.”
7. As a result of the decision to terminate TPS, 58,000 Haitian nationals who have lived in the United States since at least 2011 face loss of their right to remain in the United States and to obtain employment authorization. These TPS recipients are parents to approximately 27,000 U.S.-citizen children, who face total disruption of their lives if their parents lose their ability to remain in the United States.2
1 DHS Press Release, “Acting Secretary Elaine Duke Announcement on Temporary Protected Status for Haiti (Nov. 20, 2017) (“DHS Press Release”) available at https://www.dhs.gov/news/2017/11/20/actingsecretary-elaine-duke-announcement-temporary-protected-status-haiti. 2 Donald Kerwin and Robert Warren, A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras and Haiti, JOURNAL ON MIGRATION AND HUMAN SECURITY (August 2017) http://cmsny.org/publications/jmhs-tps-elsalvador-honduras-haiti/.
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8. Plaintiffs, the National Immigration Project of the National Lawyers Guild (NIPNLG) and Professor Margaret Satterthwaite (collectively, “Plaintiffs”) bring this action to obtain undisclosed government records regarding the facts and standard applied by the agency in its termination of TPS for nationals of Haiti.
9. Plaintiffs submitted two FOIA requests seeking records relating to the DHS’s non-discretionary determination to terminate TPS for nationals of Haiti. The first, short-form request was addressed to Defendant DHS, and the second, long-form request was addressed to Defendants DHS, Department of State (DOS), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). Plaintiffs are entitled to the timely release of records responsive to the requests.
10. The records Plaintiffs seek would contribute to a much greater understanding of the relevant conditions undergirding the termination of TPS for Haiti. Specifically, the records will reveal the extent to which Defendants cabined their evaluation of conditions to those immediately caused by the January 2010 earthquake that struck Haiti, or whether subsequent conditions that impeded earthquake recovery including the cholera epidemic, Hurricane Matthew in 2016 and heavy rains and flooding in 2017, were part of Defendants’ determination. Moreover, the records will help clarify the extent to which the determination to terminate TPS involved a changed legal standard and / or policy considerations and the improper consideration of factors unrelated to extraordinary and temporary conditions in Haiti that prevent Haitian nationals from returning to Haiti in safety.
11. To date, Defendants have produced no records in response to Plaintiffs’ FOIA requests.
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12. Defendants’ failure to respond to Plaintiffs’ requests violates FOIA. Plaintiffs seek an order requiring Defendants to produce, and enjoining Defendants from withholding, records responsive to the requests.
JURISDICTION AND VENUE 13. This Court has jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B) because one of the Plaintiffs, Professor Margaret Satterthwaite, has her principal place of business within this District. Venue is proper under 5 U.S.C. § 552(a)(4)(B).
PARTIES 14. Plaintiff NIPNLG is a national, nonprofit organization dedicated to providing legal assistance and support to immigrant communities and advocating on behalf of noncitizens. Its principal place of business is located at 14 Beacon Street, Suite 602, Boston, MA 02108. Members and supporters of NIPNLG include attorneys, legal workers, law students, judges, jailhouse lawyers, grassroots advocates, community organizations, and others seeking to defend and expand the rights of immigrants in the United States. NIPNLG is primarily engaged in disseminating information to the public. It is the author of four treatises on immigration law published by Thomson Reuters. NIPNLG provides technical and litigation assistance, participates in impact litigation, advocates for fair and just policies and legislation, provides legal training to the bar and the bench, and regularly publishes practice advisories and community resources on immigration law topics that are disseminated to its members and a large public audience through its website, www.nationalimmigrationproject.org. 15. Plaintiff Margaret Satterthwaite is a clinical law professor at the New York University (NYU) School of Law. She directs a human rights clinic and conducts academic and applied research related to human rights issues. A significant strand of her ongoing clinical work
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and academic research relates to Haiti and Haitian immigrants in the United States. Her research is frequently published in open-access and academic settings. She has authored or co-authored numerous articles and reports concerning human rights conditions in Haiti, including two reports about post-earthquake sexual violence and exploitation in displacement camps. She travels to Haiti several times per year. Professor Satterthwaite’s principal place of business is located at NYU School of Law, 245 Sullivan Street, New York, NY 10012.
16. Defendant Department of Homeland Security (DHS) is a department within the executive branch of the United States government. It is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). DHS is headquartered in Washington, DC, and has field offices in New York, NY. Upon information and belief, DHS has possession, custody, and control over the records Plaintiffs seek.
17. Defendant Department of State (DOS) is a department within the executive branch of the United States government. It is an “agency” within the meaning of 5 U.S.C. § 552(f)(1) and is headquartered in Washington, DC. Upon information and belief, DOS has possession, custody, and control over the records Plaintiffs seek.
18. Defendant Immigration and Customs Enforcement (ICE) is a component agency of DHS. It also is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). ICE is headquartered in Washington, DC, and has field offices in New York, NY. Upon information and belief, ICE has possession, custody, and control over the records Plaintiffs seek.
19. Defendant United States Citizenship and Immigration Services (USCIS) is a department of the United States Department of Homeland Security that provides immigration and citizenship benefits and information services including the adjudication of immigration benefits and petitions, provision of travel documents, and provision of information services. It
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has field offices located throughout the U.S and in 25 countries. STATEMENT OF FACTS
Background of TPS Designation and Termination for Haiti 20. Under 8 U.S.C. § 1254a(b)(1), the Secretary of Homeland Security (Secretary) is authorized to designate a foreign state for TPS upon a finding that such state is experiencing ongoing armed conflict, an environmental disaster, or “extraordinary and temporary conditions.” 21. During the period for which the Secretary has designated a country for TPS, TPS beneficiaries are eligible to remain in the United States and may obtain work authorization. 8 U.S.C. § 1254a(a)(1). 22. At least sixty days before the end of the period of the TPS designation, the Secretary, in consultation with the other agencies, must review the conditions in the foreign state. 8 U.S.C. § 1254a (b)(3)(A). Unless the Secretary determines that a foreign state no longer meets the conditions for which a designation is in effect, the period of designation is automatically extended for an additional period of at least six months. 8 U.S.C. § 1254a(b)(3)(C). 23. On January 21, 2010, after consulting with the DOS and other government agencies, Secretary Janet Napolitano designated Haiti for TPS for a period of 18 months because she determined that there existed in Haiti “extraordinary and temporary conditions” preventing Haitian nationals from returning to Haiti in safety. 75 FR 3476 (Jan. 21, 2010). 24. At that time, the “extraordinary and temporary conditions” were a result of a 7.0 magnitude earthquake that occurred on January 12, 2010. Id. at 3477. 25. The earthquake destroyed most of Haiti’s capital city, Port-au-Prince, and killed more than 200,000 people.3 More than 2.3 million people were displaced, and many more were
3 U.N. OFFICE FOR THE COORDINATION OF HUMANITARIAN AFFAIRS (U.N. OCHA), Haiti: One Year
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affected by the emergency conditions caused by the earthquake.4 Hospitals overflowed with victims, electricity was cut off, potable water was hard to find, and telephone service was severely affected. Food and medicine were scarce. Roads blocked with debris made it difficult to transport food, clean water, and medical supplies. 75 FR 3476, 3477.
26. The initial TPS designation was effective through July 22, 2011. Id. at 3476. 27. In October 2010, one of the deadliest cholera outbreaks in modern history erupted in Haiti, overwhelming the nation’s public health system. Cholera, which continues to sicken Haitians today, is a stand-alone disaster, adding to and exacerbating the damage caused by the earthquake.5 28. On May 19, 2011, Secretary Napolitano both extended the existing TPS designation for Haiti and re-designated Haiti for TPS in order to “allow[] additional individuals . . . to obtain TPS . . . including certain Haitians who arrived in the United States following the January 12, 2010 earthquake in Haiti.” 76 FR 29000 (May 19, 2011). 29. Secretary Napolitano cited the fact that the earthquake had “exacerbated Haiti’s position as the least-developed country in the Western Hemisphere and one of the poorest in the world,” where 80 percent of the population lived below the poverty line, and per capita gross domestic product was under $2 per day. She specifically noted that the cholera outbreak in Haiti
Later (Jan. 18, 2011) http://www.unocha.org/issues-indepth/haiti-one-year-later. 4 The earthquake destroyed more than 300,000 homes, U.N. OFFICE OF THE SECRETARY-GENERAL’S SPECIAL ADVISER ON COMMUNITY-BASED MEDICINE & LESSONS FROM HAITI, Lessons from Haiti: Key Statistics (2012) [hereinafter Lessons], http://www.lessonsfromhaiti.org/ lessons-from-haiti/keystatistics/#section-two; killed 20% of civil servants, INTERIM HAITI RECOVERY COMMISSION, Haiti One Year Later: The Progress to Date an d the Path Forward 3 (2011) [hereinafter One Year Later], http://www.lessonsfromhaiti.org/download/Report_Center/IHRC_Haiti_One_Year_Later_EN__original.p df; and contributed to public health emergencies, including a cholera epidemic. 5 See Global Justice Clinic, Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualifications for TPS (Oct. 2017) at 8 (“GJC report”) available at http://chrgj.org/wpcontent/uploads/2017/10/171025_Global-Justice-Clinic-Haiti-TPS-Report-web-version.pdf.
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evidenced the vulnerability of the public health sector, citing 199,497 cholera cases since the earthquake, including 112,656 hospitalizations and 3,297 deaths. Id. at 29001.
30. This 18-month TPS extension and re-designation were effective through January 22, 2013. Id. at 29000.
31. TPS was extended for Haitian nationals for 18-month intervals again in October 2012, March 2014, and August 2015. For each extension, the DHS outlined conditions arising from the January 12, 2010 earthquake in Haiti and its attendant damage to infrastructure, public health, agriculture, transportation and educational facilities. Each subsequent extension named the cholera epidemic and the exacerbation of pre-existing vulnerabilities caused by the earthquake, including food insecurity and a housing crisis, as contributing to the extension of TPS for Haitian nationals.
32. In December 2016, in advance of the expiration of the August 2015 extension of TPS for Haitian nationals, Secretary of State John F. Kerry issued a letter to Secretary of Homeland Security Jeh Johnson which outlined the extraordinary and temporary conditions that made Haiti unsafe for the return of nearly 60,000 Haitian nationals and recommended that Secretary Johnson extend TPS for Haiti upon its expiration on July 22, 2017.6
33. On April 10, 2017, Acting Director of USCIS James W. McCament issued a memo regarding the Haitian TPS extension in which he recommended termination of TPS.7 Despite this recommendation, the memo stated:
6 Letter from Secretary of State John F. Kerry to Secretary of Homeland Security Jeh Johnson (December 12, 2016), http://www.ijdh.org/wp-content/uploads/2016/10/Haiti_TPS_StateDept-Dec2016HaitiMemo.pdf [hereinafter Letter to the Honorable Jeh Johnson] (requesting an extension of TPS for Haiti). 7 Memo from James W. McCament to the Secretary of Homeland Security, “Haiti’s Designation for Temporary Protected Status,” (Apr. 10, 2017) (“McCament memo”) available at https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/04/21/uscisrecommendation-to-terminate-tps-for-haiti-apr-10-2017.aspx.
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Haiti’s weak public health system is further strained by an ongoing cholera epidemic, whose inception was traced to U.N. peacekeepers assisting with earthquake recovery. Since October 2010, close to 800,000 Haitians have contracted cholera, and nearly 10,000 people have died from the disease. 34. The memo also stated that 40 percent of the Haitian population lacked access to fundamental health and nutrition services.8 35. In April and May 2017, upon information and belief, USCIS officials asked the agency to compile evidence on any crimes committed and public benefits used by Haitians with TPS.9 36. On May 24, 2017, Secretary John F. Kelly once again extended TPS for Haiti. 82 FR 23830 (May 24, 2017). This 6-month extension was effective through January 22, 2018. Id. 37. In his designation notice, Secretary Kelly documented a number of country conditions that continued to prevent Haitian nationals from returning to Haiti in safety, including the “ongoing cholera epidemic,” stating that since October 2010, close to 800,000 Haitians had contracted cholera, and nearly 10,000 people had died of the disease. Id. at 23832. 38. Secretary Kelly presented the fact that Hurricane Matthew, which made landfall on October 4, 2016, caused 546 fatalities and left over 175,000 people without housing, as well as causing “extensive damage to crops, housing, livestock, and infrastructure” across Haiti. Id. at 23832. Further, Secretary Kelly noted that approximately 3.2 million people faced food insecurity. Id. at 23832. 39. Though Kelly found that 96% of people had moved out of IDP camps, he noted that 55,000 people continued to live in IDP camps, where they remained vulnerable to gender
8 Id. 9 Alicia A. Caldwell, “AP Exclusive: U.S. Digs for Evidence of Haiti Immigrant Crimes,” A.P. NEWS, May 9, 2017 available at https://apnews.com/740ed5b40ce84bb398c82c48884be616.
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based violence and other security risks. Id. 40. Kelly acknowledged that many camp residents may have moved back to unsafe
conditions. “Some people who were displaced by the earthquake, although no longer in camps, have moved back to unsafe homes or relocated to informal settlements located in hazardous areas.” Id. at 23823.
41. Despite Secretary Kelly’s finding that conditions warranted an extension of TPS, he advised Haitian nationals to prepare to return to Haiti and made public statements that the short, 6-month extension was meant to be an “alert.” He also attributed past extensions to “automatic renewals.”
42. On or about October 31, 2017, Secretary of State Rex Tillerson sent a letter to DHS Acting Secretary Elaine Duke, recommending that conditions in Haiti no longer justify its TPS designation.10 Unlike Secretary Kerry’s letter from December of 2016, Secretary Tillerson’s letter has not been made available to the public, and it is a document sought by the instant FOIA request.
43. On November 20, 2017, Acting Secretary Duke announced her decision to terminate the TPS designation for Haiti with a delayed effective date of 18 months.11
44. Acting Secretary Duke stated that the “extraordinary but temporary conditions relating to the 2010 earthquake that prevented Haitian nationals from returning in safety—are no longer met.”12
10 See Nick Miroff and Karen DeYoung, “Protected Status No Longer Justified for Central Americans and Haitians in U.S., State Dept. says,” WASHINGTON POST, November 3, 2017, available at https://www.washingtonpost.com/world/central-americans-and-haitians-no-longer-need-protected-statusstate-dept-says/2017/11/03/647cbd5c-c0ba-11e7-959cfe2b598d8c00_story.html?utm_term=.4e2a260d7f51. 11 DHS Press release, supra n. 1. 12 Id.
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45. This determination was made although the conditions and challenges arising from the earthquake have not substantially changed since Secretary Kelly’s extension determination on May 24, 2017.
46. Unlike her predecessors, Duke did not meaningfully address the ongoing cholera epidemic, the effects of Hurricane Matthew, the housing crisis, the ongoing presence of internally displaced people, and other conditions cited in earlier extensions and the redesignation.
47. Instead of examining all of the conditions that had supported earlier extensions and the TPS re-designation, Secretary Duke stated that the IDP population had decreased and that the United Nations had withdrew its peacekeeping mission. Secretary Duke noted that a new president is in office, and that he intends to rebuild the National Palace. Last, Secretary Duke stated that Haiti’s economy has been recovering since the earthquake.13
48. A Federal Register Notice of the termination of TPS was delayed until January 18, 2018. 83 FR 2468. At this time, there are approximately 58,700 beneficiaries of Haitian TPS14 who are currently required to leave the country on or before July 22, 2019.
49. On January 10, 2018, more than a week before the publication of the Federal Register notice for Haiti, the State Department issued a travel advisory for Haiti. The alert designated Haiti as level 3: Reconsider Travel.15 The alert noted that violent crime and armed robbery are common. Id.
50. In September of 2017, the State Department issued a travel advisory for Haiti that
13 Id. 14 McCament memo, supra n.7, at 2. 15 https://travel.state.gov/content/travel/en/international-travel/International-Travel-Country-InformationPages/Haiti.html
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stated that the rates of kidnapping, murder, and rape rose in 2016.16 51. Reviews of country conditions in Haiti made in the weeks prior to the November
20, 2017 decision to terminate TPS suggest that the extraordinary and temporary conditions for which Haiti was designated for TPS in 2010 and redesignated for TPS in 2011 remain. The conditions include:
(i) internal displacement: More than 37,000 people remain in IDP camps, with tens of thousands more displaced but not recorded in official statistics due to lack of tracking or reclassification;17
(ii) a housing and physical infrastructure crisis that demonstrates that many people who left camps settled in equally inadequate homes, many of which were damaged by the earthquake;18
(iii) one of the world’s worst cholera epidemics;19 (iv) grave hunger and malnutrition, with more than one million people facing severe,
acute food insecurity;20 (v) political instability and security risks, including the risk of gender based
violence.21 The United Nations Peacekeeping force played an important role in stabilizing Haiti. Its replacement with a smaller force has generated concern that Haiti lacks necessary police presence. Nearly one quarter of police supervisory
16 https://ht.usembassy.gov/haiti-travel-warning/ 17 U.N. OCHA, Haiti: Humanitarian Snapshot (Aug. 2017) 18 REFUGEES INTERNATIONAL, TWO STEPS BACK: HAITI STILL REELING FROM HURRICANE MATTHEW 13 (2017), https://www.refugeesinternational.org/reports/2017/4/6/haiti. 19 U.N. OCHA, Haiti: Humanitarian Snapshot (November 2017), https://www.humanitarianresponse.info/system/files/documents/files/hti_humanitarian_snapshot_novemb er2017-en.pdf. 20 Id. 21 REFUGEES INTERNATIONAL, TWO STEPS BACK: HAITI STILL REELING FROM HURRICANE MATTHEW 5 (2017), https://www.refugeesinternational.org/reports/2017/4/6/haiti.
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positions remain unfilled, and the police have a presence in fewer than half of Haiti’s 570 communal sections;22 and (vi) a widening fiscal deficit, with economic growth slowing to one percent and public expenditures on the rise to meet post-Matthew reconstruction needs.23 52. The records sought through the FOIA requests will show what standard was applied to evaluate the conditions in Haiti and the actual conditions that were and were not considered in the finding that TPS should be terminated.
Plaintiffs’ First FOIA Request 53. On November 22, 2017, following Acting Secretary of Homeland Security Duke’s announcement to terminate the TPS designation for Haiti, Plaintiffs submitted a FOIA request (Request I) to Defendant DHS. (See Exhibit 1). The Request sought the following documents, none of which are presently in the public domain:
1. “All records sent by or to Elaine Duke, Acting Director of the DHS, relating to TPS for nationals of Haiti, including but not limited to the extension, redesignation, or termination of TPS for Haitian nationals; and
2. All records relating to and including a letter dated on or about October 31, 2017 from Secretary of State Rex Tillerson to Elaine Duke, Acting Director of Department of Homeland Security, informing her that conditions in Haiti no longer justify its TPS designation.”
54. Plaintiffs sought “expedited processing” under 5 U.S.C. § 552(a)(6)(E)(i) and a full fee waiver pursuant to both 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k)(1) (public interest waivers).
22 U.N. Secretary-General, Report of the Secretary-General on the United Nations Stabilization Mission in Haiti, ¶ 39, U.N. Doc. S/2016/753 (Aug. 31, 2016). 23 THE WORLD BANK, Haiti: Overview, http://www.worldbank.org/en/country/haiti/overview (October 2017).
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55. By email dated November 28, 2017, DHS acknowledged receipt of Request I and informed Plaintiffs that DHS had “determined that item one of [Plaintiffs’] request is too broad in scope.” (See Exhibit 2). DHS instructed Plaintiffs to “resubmit [their] request with a time period for item 1.” DHS also noted that the agency would consider Plaintiffs to be “no longer interested” and would “administratively close[]” Plaintiffs’ request if DHS did not receive a response within 30 days of the date of the email.
56. By email sent December 1, 2017, Plaintiffs responded to DHS’s November 28, 2017 email. (See Exhibit 3). Plaintiffs notified DHS that Plaintiffs remained interested in the FOIA request and that the case should not be administratively closed. Plaintiffs further specified that with regard to item one, they “seek records between April 4, 2017 and November 22, 2017.”
57. To date, Plaintiffs have not received any additional communications from DHS regarding Request I.
58. More than 20 working days have passed since DHS received Request I and since Plaintiffs perfected their request, and DHS has not yet responded.
Plaintiffs’ Second FOIA Request 59. On November 24, 2017, Plaintiffs submitted a second and longer FOIA request (Request II) to DHS, ICE, DOS, and USCIS. (See Exhibit 4). The Request sought the following documents:
1. “All records relating to any recommendation made by any employee of the DHS, USCIS, ICE, or DOS for the extension or redesignation of TPS for nationals of Haiti since January 20, 2017;
2. All records relating to any recommendation made by any employee of USCIS, DHS, ICE, or DOS for the termination of TPS for nationals of Haiti since January 20, 2017;
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3. All records relating to correspondence and/or communications between any employee of USCIS, DHS, or ICE and any employee of DOS regarding TPS for nationals of Haiti since January 20, 2017;
4. All records relating to any recommendation made by any persons tasked with developing TPS policy or directives from the White House to any employee of USCIS, DHS, ICE, or DOS regarding the termination of TPS for nationals of Haiti since January 20, 2017;
5. All other records relating to correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and any White House personnel regarding TPS for nationals of Haiti since January 20, 2017;
6. All records relating to correspondence and/or communications from President Trump’s Cabinet to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017;
7. All records relating to correspondence and/or communications from Department of Justice (DOJ) officials to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017;
8. All records pertaining to current country conditions of Haiti, including but not limited to those compiled by United States Agency for International Development (USAID), since November 1, 2016;
9. All records relating to correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and Haitian leaders, including but not limited to Haitian Foreign Minister Antonio Rodrigue and Haitian Ambassador Paul Altidor, regarding the extension, redesignation, or termination of TPS for Haitian nationals;
10. All records since January 20, 2017 relating to any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with John Kelly, former Secretary of the DHS and with Elaine Duke, Acting Director of DHS.
11. All records relating to any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with White House personnel and/or DOJ officials;
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12. All records relating to any response made by any employee of USCIS, DHS, ICE, or DOS to the inquiries referenced in Requests #10 and 11, including but not limited to any data or information responsive to the inquiry;
13. All records relating to any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit;
14. All records relating to any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit;
15. All records relating to any response made by any employee of USCIS, DHS, ICE, or DOS to the inquiry referenced in Requests #13 and 14, including but not limited to any data or information responsive to the inquiry;
16. All records since January 1, 2010 relating to and including previous recommendations and standards to extend and redesignate TPS for the nationals of Haiti;
17. All records relating to any policy, guidance, directives, and/or memoranda issued since January 1, 2010 pertaining to the country conditions in Haiti and the use of this information in the determination of designating, redesignating, extending, or terminating TPS for the nationals of Haiti;
18. All records relating to the number of Haitian nationals with TPS who are employed by small businesses, small non-profit organizations, and small jurisdictions of government; and
19. All records relating to any analysis of the potential economic impacts on small businesses, small non-profit organizations, and small jurisdictions of government of the termination of TPS for nationals of Haiti.”
60. Plaintiffs sought “expedited processing” under 5 U.S.C. § 552(a)(6)(e)(i) and a
full fee waiver pursuant to both 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k)(1) (public
interest waivers).
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61. By email dated November 29, 2017, DHS acknowledged receipt of Request II and
informed Plaintiffs that DHS had “determined that [Plaintiffs’] request is too broad in scope or
did not specifically identify the records which [Plaintiffs] are seeking.” (See Exhibit 5). DHS
instructed Plaintiffs to “resubmit [their] request containing a reasonable description of the
records [Plaintiffs] are seeking.” DHS further notified Plaintiffs that it would consider Plaintiffs
to be “no longer interested” and would “administratively close[]” Plaintiffs’ requests if DHS did
not receive a response within 30 days of the date of the email.
62. By email sent December 4, 2017, Plaintiffs responded to DHS’s November 28,
2017 email. (See Exhibit 6). Plaintiffs notified DHS that Plaintiffs remained interested in the
FOIA request and that the case should not be administratively closed. Plaintiffs further agreed to
narrow fifteen of the nineteen requests as follows:
Item three asks for “all records relating to correspondence and/or communications between any employee of USCIS, DHS, or ICE and any employee of DOS regarding TPS for nationals of Haiti since January 20, 2017.” We narrow our request to “all correspondence and/or communications between any employee of USCIS, DHS, or ICE and any employee of DOS regarding TPS for nationals of Haiti since January 20, 2017.”
Item five asks for “all other records relating to correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and any White House personnel regarding TPS for nationals of Haiti since January 20, 2017.” We narrow our request to “all correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and any White House personnel regarding TPS for nationals of Haiti since January 20, 2017.”
Item six asks for “all records relating to correspondence and/or communications from President Trump’s Cabinet to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017.” We narrow our request to “all correspondence and/or communications from President Trump’s Cabinet to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017.”
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Item seven asks for “all records relating to correspondence and/or communications from Department of Justice (DOJ) officials to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017.” We narrow our request to “all correspondence and/or communications from Department of Justice (DOJ) officials to any employee of USCIS, DHS, ICE, or DOS regarding TPS for nationals of Haiti since January 20, 2017.”
Item eight asks for “all records pertaining to current country conditions of Haiti, including but not limited to those compiled by United States Agency for International Development (USAID), since November 1, 2016.” We narrow our request to “all records reflecting current country conditions in Haiti, including but not limited to those compiled by United States Agency for International Development (USAID), since November 1, 2016.”
Item nine asks for “all records relating to correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and Haitian leaders, including but not limited to Haitian Foreign Minister Antonio Rodrigue and Haitian Ambassador Paul Altidor, regarding the extension, redesignation, or termination of TPS for Haitian nationals.” We narrow our request to “all correspondence and/or communications between any employee of USCIS, DHS, ICE, or DOS and Haitian leaders, including but not limited to Haitian Foreign Minister Antonio Rodrigue and Haitian Ambassador Paul Altidor, regarding the extension, redesignation, or termination of TPS for Haitian nationals.”
Item ten asks for “records since January 20, 2017 relating to any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with John Kelly, former Secretary of the DHS and with Elaine Duke, Acting Director of DHS.” We narrow our request to “records since January 20, 2017 reflecting any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with John Kelly, former Secretary of the DHS and with Elaine Duke, Acting Director of DHS.”
Item eleven asks for “all records relating to any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning the criminal history of nationals of Haiti with TPS, including any communications and/or correspondence with White House personnel and/or DOJ officials.” We narrow our request to “records since January 20, 2017, reflecting any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning the criminal history of nationals
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of Haiti with TPS, including any communications and/or correspondence with White House personnel and/or DOJ officials.”
Item twelve asks for “all records relating to any response made by any employee of USCIS, DHS, ICE, or DOS to the inquiries referenced in Requests #10 and 11, including but not limited to any data or information responsive to the inquiry.” We narrow our request to “any responses made by any employee of USCIS, DHS, ICE, or DOS to the inquiries referenced in Requests #10 and 11.”
Item thirteen asks for “all records relating to any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit.” We narrow our request to “records reflecting any inquiry or request made by Kathy Nuebel Kovarik, Chief of USCIS Office of Policy and Strategy, concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit.”
Item fourteen asks for “all records relating to any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit.” We narrow our request to “records since January 20, 2017, reflecting any inquiry or request made by or to any employee of USCIS, DHS, ICE, or DOS concerning whether, when, and how nationals of Haiti with TPS have used any type of public benefit.”
Item fifteen asks for “all records relating to any response made by any employee of USCIS, DHS, ICE, or DOS to the inquiry referenced in Requests #13 and 14, including but not limited to any data or information responsive to the inquiry.” We narrow our request to “any responses made by any employee of USCIS, DHS, ICE, or DOS to the inquiries referenced in Requests #13 and 14.”
Item seventeen asks for “all records relating to any policy, guidance, directives, and/or memoranda issued since January 1, 2010 pertaining to the country conditions in Haiti and the use of this information in the determination of designating, redesignating, extending, or terminating TPS for the nationals of Haiti.” We narrow our request to “any policy, guidance, directives, and/or memoranda issued since January 1, 2010 pertaining to the country conditions in Haiti and the use of this information in the determination of designating, redesignating, extending, or terminating TPS for the nationals of Haiti.”
Item eighteen asks for “all records relating to the number of Haitian nationals with TPS who are employed by small businesses, small nonprofit organizations, and small jurisdictions of government.” We narrow
20

Case 1:18-cv-00659-RA Document 30 Filed 02/15/18 Page 21 of 26
our request to “all records reflecting the number of Haitian nationals with TPS who are employed by small businesses, small non-profit organizations, and small jurisdictions of government.”
Item nineteen asks for “all records relating to any analysis of the potential economic impacts on small businesses, small non-profit organizations, and small jurisdictions of government of the termination of TPS for nationals of Haiti.” We narrow our request to “all records containing any analysis of the potential economic impacts on small businesses, small non-profit organizations, and small jurisdictions of government of the termination of TPS for nationals of Haiti.”
We add an additional item twenty, through which we seek all communications between January 20, 2017 and May 24, 2017 regarding the May 24, 2017 Federal Register publication justifying the six-month extension of TPS at that time for nationals of Haiti.
63. By email dated November 30, 2017, DOS acknowledged receipt of Request II and
informed Plaintiffs that “before [the agency] can begin processing [Plaintiffs’] request, [the
agency] ask[s] that [Plaintiffs] narrow the subject.” (See Exhibit 6). DOS instructed Plaintiffs to
“respond by close of business” the following day and identify specific individuals employed by
DOS who may have sent or received the requested communications.
64. By email sent December 1, 2017, Plaintiffs responded to DOS’s November 30,
2017 email. (See Exhibit 7). Plaintiffs notified DOS that Plaintiffs sought communications
regarding TPS for Haiti by “DOS personnel who were involved in the assessment of whether to
extend TPS for nationals of Haiti,” and identified the following officials whose communications
should be reviewed:
Rex Tillerson, Secretary of State
John Sullivan, Deputy Secretary of State
Thomas Shannon, Under Secretary of State for Political Affairs
Francisco Palmieri, Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs
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Case 1:18-cv-00659-RA Document 30 Filed 02/15/18 Page 22 of 26
Kenneth Merten, Deputy Assistant Secretary, Bureau of Western Hemisphere Affairs and Haiti Special Coordinator Simon Henshaw, Deputy Assistant Secretary, Bureau of Population, Refugees, and Migration Randy Berry, Deputy Assistant Secretary, Bureau of Democracy, Human Rights, and Labor Scott Busby, Deputy Assistant Secretary, Bureau of Democracy, Human Rights, and Labor Robin Diallo, Chargé d’Affaires, U.S. Embassy in Haiti Michele Sison, Ambassador to Haiti 65. By email dated December 12, 2017, ICE acknowledged receipt of Request II, granted Plaintiffs’ claim for a fee waiver, denied Plaintiffs’ claim for expedited processing, and invoked the ten day extension as allowed under 5 U.S.C. § 552(a)(6)(B). (See Exhibit 8). 66. By email dated December 11, 2017, USCIS acknowledged receipt of Request II and requesting that Plaintiffs “modify [their] request in order to speed up the collection and processing of [the] request” and “suggest[ing] that [Plaintiffs] narrow [their] request to a couple of people in upper management and to two or three specific offices.” (See Exhibit 10). 67. By email dated December 14, 2017, Plaintiffs responded to USCIS’s December 11, 2017 email. (See Exhibit 11). Plaintiffs notified USCIS that Plaintiffs sought communications regarding TPS for Haiti “sent or received by USCIS personnel who were involved in the assessment of whether to extend TPS for nationals of Haiti,” and identified the following officials whose communications should be reviewed: L. Francis Cissna, Director, USCIS James McCament, former Acting Director and current Deputy Director, USCIS Donald Neufeld, Associate Director, USCIS Service Center Operations
22

Case 1:18-cv-00659-RA Document 30 Filed 02/15/18 Page 23 of 26
Kathy Neubel Kovarik, Chief, USCIS Office of Policy and Strategy; and Any employee of the USCIS Office of Policy and Strategy. 68. By email dated December 14, 2017, USCIS acknowledged receipt of Plaintiffs’ modified Request II and invoked the ten day extension as allowed under 5 U.S.C. § 552(a)(6)(B). (Exhibit 12). 69. To date, Plaintiffs have not received any additional communications from DHS, DOS, ICE, or USCIS regarding Request II. 70. More than 20 working days have passed since Defendants DHS, DOS, ICE and USCIS received Request II and since Plaintiffs perfected their request, and none of the agencies have yet responded to Request II.
CAUSE OF ACTION COUNT I
FOIA Violation: Failure To Disclose and Release Responsive Records (Against Defendant DHS)
71. Plaintiffs re-allege and incorporate by reference paragraphs 1–70. 72. Plaintiffs have exhausted all administrative remedies with respect to Request I under 5 U.S.C. § 552(a)(6)(C)(i). 73. Plaintiffs have a statutory right under FOIA, 5 U.S.C. § 552(a)(3)(A), to the records they requested, and there is no legal basis for DHS’s failure to disclose them. 74. Upon receiving Plaintiffs’ Request I, Defendant DHS was obligated under 5 U.S.C. § 552(a) to promptly conduct a reasonable search for records responsive to Request I and to produce any responsive records.
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Case 1:18-cv-00659-RA Document 30 Filed 02/15/18 Page 24 of 26
75. As of the date of this Complaint and in violation of the deadlines set forth in 5 U.S.C. § 552(a)(6), DHS has failed to disclose and release records in violation of 5 U.S.C. § 552(a).
76. Defendant DHS has not identified any legal basis for their failure to timely conduct a reasonable search for, and to produce, responsive records.
77. The failure by DHS to conduct reasonable searches for records responsive to Request I and to produce responsive records violates 5 U.S.C. § 552(a) and the regulations promulgated thereunder.
COUNT II FOIA Violation: Failure To Disclose and Release Responsive Records
(Against Defendants DHS, DOS, ICE, and USCIS) 78. Plaintiffs re-allege and incorporate by reference paragraphs 1–70. 79. Plaintiffs have exhausted all administrative remedies with respect to Request II under 5 U.S.C. § 552(a)(6)(C)(i). 80. Plaintiffs have a statutory right under FOIA, 5 U.S.C. § 552(a)(3)(A), to the records they requested, and there is no legal basis for DHS, DOS, USCIS or ICE’s failure to disclose them. 81. Upon receiving Plaintiffs’ Request II, Defendants were obligated under 5 U.S.C. § 552(a) to promptly conduct a reasonable search for records responsive to Request II and to produce any responsive records. 82. As of the date of this Complaint and in violation of the deadlines set forth in 5 U.S.C. § 552(a)(6), Defendants have failed to disclose and release records in violation of 5 U.S.C. § 552(a).
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Case 1:18-cv-00659-RA Document 30 Filed 02/15/18 Page 25 of 26

83. Defendants have not identified any legal basis for their failure to timely conduct a reasonable search for, and to produce, responsive records.
84. The failure by Defendants to conduct reasonable searches for records responsive to Request II and to produce responsive records violates 5 U.S.C. § 552(a) and the regulations promulgated thereunder.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
(1) Declare that Defendants’ withholding of the requested records is unlawful; (2) Order Defendants to immediately conduct a full, adequate, and expedited search and
make available all records responsive to the Requests; (3) Enjoin the Defendants from withholding all records responsive to the Requests; (4) Award Plaintiffs their costs and reasonable attorneys’ fees pursuant to 5 U.S.C. § 552(a)(4)(E); and (5) Grant such other and further relief as this Court may deem just and proper.

Dated: February 14, 2018

Respectfully submitted,
/s/ Jessica Rofé Sejal Zota Elizabeth Simpson* NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 14 Beacon Street, Suite 602 Boston, MA 02108 (617) 227-9727 sejal@nipnlg.org *application for pro hac vice admission forthcoming
Nancy Morawetz Jessica Rofé Fatima Carrillo, Legal Intern
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Case 1:18-cv-00659-RA Document 30 Filed 02/15/18 Page 26 of 26 Terry Ding, Legal Intern Nora Searle, Legal Intern Kevin Siegel, Legal Intern Sarah Thompson, Legal Intern WASHINGTON SQUARE LEGAL SERVICES, INC. Immigrant Rights Clinic 245 Sullivan Street, 5th Floor New York, NY 10012 (212) 998-6430 nancy.morawetz@nyu.edu jessica.rofe@nyu.edu Attorneys for Plaintiffs
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Case 1:18-cv-00659-RA Document 38 Filed 02/16/18 Page 1 of 6

February 16, 2018

The Hon. Judge Ronnie Abrams ·united States District Judge, Southe111 District of New York Thurgood Marshall United States Courthouse 40 Foley Square, Courtroom 1506 New York, NY 10007

RE:

Nat'l 111l11tigJ•atioJt Project, et al. v. U.S. Dep't ofHomeland Sec., et al.,

No. 18 Civ. 659 (RA) Joint Letter of the Parties

Dear Judge Abrams,

The Parties respectfullysubn1it the following joint letter pursuant to Your Honor's Order dated February 2, 2018.

I. Plaintiffs' statell1ent ofthe. nature of the action
This case involves a Freedom oflnformation Act ("FOIA") request for docutnents relating to the Department ofHomeland Security's decision to terminate the Temporary Protected Status (''TPS") designation of Haiti. TPS is a form of immigration relief granted to eligible nationals of countries that, in the opinion ofthe Secretary o:fHomeland Security, are unable to ensure the personal safety of their nationals due to ongoing arn1ed conflict, an environmental disaster> an epidemic, or other HextraordinarY an<ltemporary conditions." See 8
tJ.S.C, §; l254a..In ¢onsu1tation.;witlt qfher government agencies·, the Secretary reviews TPS
designations to determine ifthe conditions for TPS continue to be n1et. Ifso, the period of
designation is extended for up to eighteen months. See 8 U.S.C. § 1254a(b)(3)(A)-(C). Haiti was
designated as a TPS oountty on January 21, 2010, following a severe earthquake that devastated the cotmtry. TPS forHaiti was subsequently redesignated in 2011 and extendedfour additional times, most recently on May 24, 2017. See 82 Fed. Reg, 23830-31 (May 24, 2017). On November 20, 2017, Acting Secretary of Homeland Security Blaine Duke announced her decision to terminate the TPS designation for Haiti. See Press Release, U.S. DHS, Acting
Secretary Elaine.Duke Announcement 011 'femporary Protected Status f9rHWti (Nov. 20, :2017).
The decision was published in the Federal Register onJanuary 18,20l8.See '83 Fed. Reg.2648 (Jan. 18, 2018).

On November22, 2017, Plaintiffs submitted a request to the Department of Homeland Security ("DHS"} under FOIA, 5 U.S.C. § 552, for records relating to the facts and standard
applied by DHS in its termination ofTPS for Haitian nationals. The request asked DHS for: (1) "[a]ll records,sent by orto Blaine Duke, Acting ·Director ofthe DHS, relath1gto TPS for
nationals .ofHaiti, inclyding but not limited to the extension;, redesignatiort, or tetthinatiort of TPS. for. Haitian fl:ationals''; 'and (2) ''[a}fl' t¢cotds' relatin.g:'to mtd'irtcluditig a_t letter dated on or
about October 31, 201Tfro111 Secretary ofState 'Rex Tillerson to Elaine Duke, Acting Director of [DHS],infotmingher that conditions in Haiti no longer justify its TPS designation.'' On
November28, 2017, DHS acknowledged receipt of this request and also informed Plaintiffs that
Item One ofthe request was too broad and asked for the request to be resubmitted with a time petiod. Plaintiffs. responded on December 1, 2017, clarifyingthat for Item One they "seek

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Case 1:18-cv-00659-RA Document 38 Filed 02/16/18 Page 2 of 6

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records between Apri14, 2017 and November 22, 2017.H Plaintiffs have since received no additional communications from DHS.
On November 24,2017, Plaintiffs submitted a second and longer FOIA request to DHS, U.S. Citizenship and Immigration Service ("CIS"), the Department of State {"DOS"), and U.S. ~gration _®4~ (Ju~tQms. ~:g._fotpymynte.tCE:'),. ~~~ki_p,g_t~~ordsxelating !Qgo;rrespondence, inquiries and recommendations between employees of those agencies relevant to DHS' decision to terminate TPS for Haiti. While the agencies acknowledged receipt of the request, they have · not yet produced any documerits. 1 On January 25, 2018, Plaintiffs filed the present action requesting this Court declare Defendants' withholding ofthe requested records unlawful, order Defendants to conduct a full, adequate, and expedited search and make available all records responsive to the Requests, award Plaintiffs their costs and reasonable attorneys'. fees,' and grant such other reliefas the Court deems just and proper. On February 15, 2018 Plaintiffs filed an amended complaint to add CIS as.a party.2

Plaintiffs have proposed to Defendants astaggered search for documents. First, plaintiffs requested that the government produce byWednesday, February 21, a specific set ofdocuments including the letter dated approximately 10/31/17 from SecretaryTillerson to Acting Secretary Duke, together with the packets of documents reviewed by: (1) Secretary Tillerson prior to his 10/31/17letter to Acting Secretary Duke; (2) Acting Secretary Duke prior to her 11/20/17 announcement; and (3) Secretary Nielsen prior to the 1/18/18 publication ofthe ter.tnination of TPS forHaitiinthe.Fedet:al Register.

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Plaintiffs h<:tve also asked that the· agencies begin their initial searches and that the

agencies assign internally consistent codes to any individuals whose names are redacted so that

plaintiffs 1nayidentify; by these codes, individuals who are likely to have responsive docu1nents

meriting further search.

Plaintiffs contest Defendants' .assertion that their requests would impose an undue burden. Plaintiffs' FirstRequestreferred to a specific October 31, 2017letterbetween Secretary
of State Rex.Tillerson and Elaine Dulce as well as: documents to and frotn Elaine Duke on a
speCific topic. Defendants do not address the ease with whichthey could reasonaBly be expected
tohave already searched for and.identifiedthese documents, which were requested over three n1onths ago. With respect to the second request, Plaintiffs believe that defendants are greatly exaggerating the breadth ofthe request, which provided direction onrelevant documents. Plaintiffs also clarified in a February 13 letter that they will prioritize production of the above mentioned discrete documents. Inthe same letter, Plaintiffs expressed their willingness to agree upon a timeline for subsequent series ofproduction. Finally, Plaintiffs are amenable to

~ CIS :also acktiowledged.receipt ofthe request~ but.~skedfor an a:dditionallQ ,bt}sine~s day~ to process the. request.
OnNovember 29, 2017~,DHS ~clmowledged receipt ~nd reqp.est¢d that.PhiiD.tiffs' resubmitth~ request'with a
reasonable description ofthe records sought. Plaintiffs replied onbecember 4, 2017, narrowing the request. On November30, 2017, DOS acknowledged receipt and requested that Plaintiffs .narrow the subject. Plaintiffs replied onDecember 1,2017, narrowing the request. Finally, onDecember 12, 2017,ICE aclmowledgedreceipt and invoked aten-day extension pursuant to 5 U,S.C, § 552(a)(6)(B). Plaintiffs received no further communication from DHS, DOS oriCE.
2 The original complaints did not name CIS as a party because its. response to Plaintiffs' FO!Arequest was not due tmtil January 31, 2018~ and the original complaint was filed onJanuary25, 201:8.

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Case 1:18-cv-00659-RA Document 38 Filed 02/16/18 Page 3 of 6

negotiating the staging of the search by time-period or office searched and identifying
individuals most likely to have responsive information, but are limited by their lack of understanding of the intemal workings of Defendants' data systems. In a February 13 lett~r
Plaintiffs requested additional information to aid in the formulating of search proposals.

Regardless, it will be Defendants' burden to challe11ge the scope of the request. See) e.g., Ruotolo v. Dep't ofJustice, Tax. Div;, 53 F.3d 4, 9 (2d Cir. 1995) (requiring agency to demonstrate that search was unreasonablyburdensotne). Especially in light ofPlaintiffs' w111ingness to narrow the initial production to three packages, it would be unreasonable to offer the agencies extensive time to search and produce on the theory that the requests impose an undue burden. See Public Citizen} h1c. v. Dep 't ofEduc., 292 F. Supp. 2d 1, 7 (D.D.C. 2003) (holding that, absent a detailed explanation, a search of25,000 paper files was not unduly burdensotne ).

Plaintiffs note further that Defendants havefailed to comply with their requirement to "detennine within 20 days ... after the receipt of [a] request whether to comply with such request" 5 U.S.C. § 552(a)(6)(A)(i); seeNatJl Sec. Counselors v. C.LA~, 960 F. Supp. 2d 101,
146 (D.D.C. 2013) {"Compliance with the .statutory timeframe ... is not an undue burden; it is a burden that Congress expects. agencies to bear."). This provision "reqqires. that, within the relevant time period, an agency must determine whether to comply witha request-that is, whether a requester will receive all the docmnents the requester seeks•. It is not enoughthat,
withinthe relevant time peri~d,. the agency simply·decide to decide. late!-~''. C}itizens for
Responsibility and Ethics in' Washington v. Fed. Election Comm'n (''CREW'), 711 F.3d 180, 186 (D.C. Cir. 2013). "[T]he agency must at least: (i) gather and review the documents; (ii)
determine·and corntnunicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) infonn the requester thatit can appeal whatever portion of the 'determination' is adverse." 1d. at 188; see also Nat'l1)ay Laborer Org. Networkv. U.S. .Immigration and Customs Enforcement, 236F. Supp. 3d 810,814 (S.D.N.Y. 2017) (citingto CREW's defmitiort of''dete1111inatio11").3

·. IT. ·. · Defendants' stateme:nl ofthe,\prhteiJ.)al defenses: \

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Plaintiffs' initial complaint named only DRS, ICE, and DOS. On February 14,2018, Plaintiffs amended their complaint to add CIS as a. defendant. Defendants' deadline for answeri11g Plaintiffs' amended complaint is March 1; 2018, See 5 U.S.C; § 552(a)(4)(C); Fed. R. Civ. P. 15(a)(3). Because Defendants continue to review the complaint and Plaintiffs' requests, they may identify additional defenses beyond.those described below.

D~fenda1:1ts p.ot¢ that'l;7QIA'~'tecogni:z;es·that ag~nc.ies lliaynot:alwaysbe able to adhere to thetimelirtes'' thatapplYatthe'adininistrative 1evel.1CREW, 711 F3daf 189.Ifan agency does
not comply with the twe:nty-day deadline for responding to a FOIA request, '~he 'penalty' is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting

3 The Court in Nat'l Day Laborer Org further cited CREWfor the propositionthat"[a]s to ·actualproduction, FOIA

requires that the agency make the records 'promptly available/ which depending on the circumstan-ces typically

would mean within .days ora few weeks ofa. !determination/ not months or yeats.n NttCZ Day Laborer Org.

Network~ 23.6 F. Supp, 3d '81 0 at8l5..

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Case 1:18-cv-00659-RA Document 38 Filed 02/16/18 Page 4 of 6
into court." I d. Defendants do not intend to argue that Plaintiffs have not exhausted their administrative remedies. After a plaintiff has filed a lawsuit, the Court does not impose a twentyday deadline, but instead "will supervise the a:gency' s ongoing progress" to ensure that it ~~exercise[s] due·diligence~" Id. Even in casesofexpedited proqes~ing, anagency·need.only process requests "as soon as practicable.·,; 5 U.S.C~ § 552(a)(6)(E)(iii). As described below, Plaintiffs' proposed deadlines·are not reasonably practicable.
Defendants' are prepared to negotiate with Plaintiffs in goodfaith to narrow the FOIA request and produce responsive, non-exempt records as quicldy as reasonably practicable. In their view, however, Plaintiffs' second request is not framed "with sufficient particularity to ensure that searches are not unreasonably burdensome." Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000) (quotation marks omitted); see also Nat'l Day Laborer Org. Networkv. U.S.. hnmlgration & Customs Enforcem,ent, No 16 Civ. 387 (KBF), 2017 WL 1494513, at *11 (S.D.N.Y. Apr. 19, 2017) ("An agency need not respond to a request that is so broad as to impose an unreasonable burden upon the agency . . . ." (intetnal quotation marks and alterations onritted)). Specifically, Plaintiffs' second request seeks either"[a]ll records" or all "correspo11dence and/or cottununications" from "anyemployee" of Defendants on nineteen different topics; including"TPS for nationals of Haiti since January 20, 2017," "current country conditions of Haiti," and ''previous.recommendations and standards to extend and redesignate TPS for the nationals of Haiti," going back to January 1,2010. See Cmplt. ~~·58, 61.
While Plaintiffs purported to narrow their secondrequest after DHS and DOS asked the~ to do so, Defendants believe that the' narrowing consisted entirely of deleting the words "all records relating to" before phrases such as·'~cotrespondence and/or conununications" and identifying a non-exclusive list often officials at DOS whose communications should be reviewed. Id. .,-r 61.
As a result, Plaintiffs' second request continues to seek broad swaths ofinformation fron1. numerous potential custodians. In such circumstances, while Defendants are "obliged to pursue ?-nY 'clear and certain.' lead [they] cannot in good faith ignore,'' they "need not conduct a search that plainly is unduly burdensome." Halperin v. FBI, 181 F.3d 279, 288 (2d Cir. 1999).
In light orthe undue burde:n inlposed by'Plaintiff's' second request; Defendants believe
that the parties shouldt1rst negotiate the scope ofthat request so that Defendants can conduct a reasonable search. Such negotiations will expedite the production of responsive, non~exempt records by (1) allowing the Plaintiffs to clarify what records they are seeking and regard as most important; and (2.) reducing the likelihood of a future dispute over the adequacy ofDefendants' searches. Defendants also anticipate that some, and possibly a substantialnumber, ofthe responsive records arelilcelyto be exempt from disclosure itrwhole or in part. SeeS U.S.C. § 552(b). Specifically, Defendants anticipate that.portions·ofthe requested. records may be
classified, and thus ~xempt undet §. S52(b)(l),' because theyl?ertain:~o.:foreign government . .·
information or foreign relations'.' See.E:kec. Order No. 13526 § 1.4, 75 .Fed. Reg. 707~ 709 (Dec. 29, 2009). Other records maybe exempt fron1 disclosure by statute under § 552(b)(3), deliberative or otherwise privileged under § 552(b)(5), invasive ofindividuals' personal privacy under§ 552(b)(6)~ or protected law enforcement records under§ 552(b)(7).
III. A brief description of all contemplated and/or outstanding motions.
The Parties h'l.ye filed tlP wo.tipns .a:s. of Febrn~ l6, .2018~ Goi11g forward, Plaintiffs' motions :wi,Il d~p¢:(ld ou, :th~ .~P~e,d M4 ;ad~.q®Q)'I ofthe S:ea:tch and th¢ ;exemptioJ:lS \claimed~
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Case 1:18-cv-00659-RA Document 38 Filed 02/16/18 Page 5 of 6

Defendants note that it maybe necessary to engage in motion practice ifthe parties are unable to agree upon ·a proposed schedule for the processing and production ofresponsive, non-exempt records.

IV. A proposed schedule for the case going forward.

Plaintiffs·are .ofthe view that Defendants have failed to produce documents as required

by statute and that given the urgency of the issue, and the fact that the basis for tern1ination is of

high public interest, the proceedings should be expedited. As such, Plaintiffs request production

of the three doclm1ent packages mentioned above presented to the-Acting Secretary Elaine Duke,

• I

Secretary of State RexTillerson and SecretaryNielsenby Wednesday, February 21, 2018.

I

Plaintiffs also request that Defendants conduct an initial search by March 1, 2018. Plaintiffs are

under no responsibility to propose search terms but are willing to cooperate and discuss this

issue. To do so, Plaintiffs first need answers to the questions provided to Defendants in the

Proposal Letter sent on February 13, 2018, Plaintiffs thus request that the Court schedule a date

by which Defendants will produce documents. .

Defendants have begun efforts to locate records that are responsive to the narrowed
request that Plaintiffs identified on February 13th, butrespectfully $VlJnUt that February 21st is
not a reasonab1e deadline. Plaintiffs seek docutl1ents from the offices ofthe Secretaries of State and Homeland Security, and such documents receive 1nultiple levels ofreview. Moreover, the documents in question likely contain 1naterials from other agencies, and thus also require
external review. Defendants notethattheyreceive tens of thousands ofFOIArequests each year, and are currently under court-ordered deadlines in other cases. Additionally,, Defendants s-ubmit that entering a production schedule, with respect to other documents would be premature. Instead, Defendants requ~st that the Court. give the parties thirty days to negotiate the scope of the
requests> and to attemptto agree. on a production schedule that accounts for the breadth ofthe
requests and the availability oftesoutces' at the respective agencies, to· search for 'andreview
:responsive records. '

IV. Any other information that the parties believe may assist the Court
Plaintiffs believe that the public has a vital interest ih the release of the requested documents, which would i11mninate the Government's operations and activities surrounding its
tem1ination ofTPS for Haiti, ,a decision with considerable political reverberations ,made yet more
pressing by ongoing legislative proposals., S?e U.'S; Dep't. ofDefense v. Fed. Lal:Jpr Relations Auth., 510 U.S: 487~'497' (1·994) (referring to FOIA's main purpose of"contributing significantly
to public understandingofthe operations or activities of the government'') (citation omitted).

Defendants sub1nit that their prpposed approach will lead to the efficient processing of

the records that Plaintiffs seek and respectfully requestthat any schedule in, this case take

account of Defendants' obligations to other requestors, Hthe administrative challenges inherent in

processing a large number ofFOIA requests(,] and the time constraints that cotnpetingrequests

and/or court orders can present." Brennan (:tr; for Justice y. U.S.)Jep 't ofJus.tice., No. 17 Civ.

63:35 (KBF),2018WL637424'(S;D.N:Y~Jan.>3l;,20t8}; ,, · ,,j,,,,,,,,

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Respectfully submitted,

Fatima Carrillo, Legal Inten1 Nora Searle, LegaLinten1 I(evin Siegel, Legal Intetn Sarah Thompson, Legal Intern WASHINGTON SQUARE LEGAL SERVICES, INC. Itnmigrant Rights Clinic 245 Sullivan Street, 5th Floor New York, NY 10012
nancy~morawetz@nyu,edu
.jessica.rofe@nyu.edu
Sejal Zota Elizabeth Simpson* NATIONAL IMMIGRATION PROJECT OF THE NATION.{\L LAWYERS o·uiLD 14 Beacon Street, Suite 602
Boston; MA 02108
(617)227~9727 sejal@nipnlg~org
*application forpro hac vice admission forthcoming
Attorneys for Plaintiffs

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GEOFFREY S. BERMAN United States Attorney for the Southern District ofNew York
By:
Assistant United States Attorney 86 Chambers Street, Third Floor New York, New York 10007 Telephone: (212) 637-2699 Fax: {212) 637-2686 caleb.hayes-deats@usdoj .gov
Attorney for Defendants

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 Case 1:18-cv-00659-RA Document 41 Filed 03/08/18 Page 1 of 6

March 8, 2018

The Hon. Judge Ronnie Abrams United States District Judge, Southern District of New York Thurgood Marshall United States Courthouse 40 Foley Square, Courtroom 1506 New York, NY 10007

RE:

Nat'! Immigration Project., t!t al~ v~<f!:.S. Dep't ofHomeland Sec., et al.,

No. 18 Civ. 659 (RA) Joint Letter of the Parties

Dear Judge Abrams,

The Parties respectfully submit the following joint letter in response to the Court's request for an update on the status of the parties' negotiations over the scope of Plaintiffs' Freedom of Information Act ("FOIA") requests.

I. Plaintiffs' Report

Plaintiffs' report on the progress ofnegotiations with Defendants related to the scope

o[the search requests: After conferring with Defendants, Plaintiffs agreed on a major nanowing

that substantially reduces the scope ofthe search for the seven-year period preceding January

2017. This narrowing relates to items 16 and 17 on Plaintiffs' second FOJA request, which

. originally stated: "16. All records since January 1, 2010 relating to and including previous

recommendations and standards to extend and redesignate TPS for the nationals of Haiti; 17.

Any policy, guidance, directives, and/or memoranda issued since January 1, 2010 pertaining to

the country conditions in Haiti and the use of this information in the determination of

! .

designating, redesignating, extending, or terminating TPS for the nationals of Haiti." Plaintiffs

limited these requests to include only the document packets that were presented to the Secretary

ofDHS, the Secretary of State, and the Director of CIS who were involved in making the

dete1mination to designate, redesignate, and extend TPS for Haiti since the first designation in

January 2010. Since items 16 and 17 were the only items that requested documents from before

2017, this narrowing means that the agencies' searches will be substantially narrower.

Plaintiffs have also agreed to a staggered production pending the Court's resolution of the exemptions applicable to the first productions. Plaintiffs informed Defendants that they are amenable to postponing production of the pre-2017 documents until after the resolution of any issues that relate to the propriety of exemptions claimed as to the three packets and one memorandum that the agencies will produce by March 22, 2018.

Plaintiffs have sought to assist Defendants in crafting a search that will result in the production of responsive documents. Plaintiffs provided Defendants with a list of proposed search terms as well as additional custodians proposed to be searched at the respective agencies via email. In this email, Plaintiffs noted that neither the search term list nor the custodian list was exhaustive, as Plaintiffs are outsiders in these agencies and expect the agencies to conduct the search in a manner likely to produce responsive documents. As Plaintiffs have noted, they cannot . be expected to know internal agency terminology and expect the agency to determine search

Case 1:18-cv-00659-RA Document 41 Filed 03/08/18 Page 2 of 6

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tetmS and custodians likely to elicit responsive documents. It is ultimately the Defendants' burden tc show that they conducted a search "reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep'l.()jJustice, 745 F.2d 1476, 1485 (D.C. Cir. 19g4).
Plaintiffs request more information on a previous, separate FOIA request that may contain documents responsive to their requests: Plaintiffs wish to infonn the Court that they have received a copy of a 118-page production through which DHS responded to a previous FOIA request that was extremely similar in wording to portions of the Plaintiffs' requests. The previous FOIA request was filed by the National Immigration Law Center ("NILC") and also requested documents related to TPS for Haiti.
The documents in the NILC production span the period January 20, 2017 to May 22, 2017. Since NILC's request was fi·amed so similarly, Plaintiffs believe the production is at least partially responsive to 1heirrequests as regards the January 20 to May 22 interval.
Plaintiffs request that they be permitted to provide briefings on the exemptions invoked as to the NILC production. They believe this is an efficient use of the Parties' and the Court's time because, given that NILC's request and Plaintiffs' request overlap so significantly, the agencies would almost certainly invoke the same exemptions when they produce documents for the Plaintiffs. Plaintiffs therefore request that DHS prepare a Vaughn index containing "an adequate description" of any withheld records and "a plain statement of the exemptions relied upon to withhold each record." Nat'l Treasury Emps. Union v. US. Customs Serv., 802 F.2d 525, 527 n.9 (D.C. Cir. 1986); see also Ruotolo v. Dep't of.Justice, Tax Div., 53 F.3d 4, 6 (2d Cir. 1995) ("A Vaughn index is provided in the course of FOIA litigation by a government agency to correlate specific documents or portions thereof that the agency desires to shield from disclosure with statements ofjustification for the non-disclosure.")
Plaintiffs note that the cases cited by Defendants regarding standing to litigate a FOIA request not submitted by the plaintiff, McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993) and McKevitt v. Mueller, 689 F. Supp. 2d 661 (S.D.N.Y. 2010) do not apply to the facts ofthe situation at hand. In McDonnell, the court was addressing a plaintiff who had not filed a FOIA request at all and filed suit to litigate the FOIA request of another individual. h1 McKevitt, too, the plaintiff had not filed a FOIA request, but rather had attempted to use FOIA to litigate a request made under the Hague Evidence Convention. In contrast, Plaintiffs in the litigation before this Court have tiled a FOIA request and filed suit under their rightto receive documents responsive to that request. h1 order to expedite the search and production process, they are willing to treat a search request that is highly similar to their own as the relevant request for a portion of the time period covered by their own FOIA with respect to the agency that produced these documents. They propose only to evaluate the adequacy of a previous production that is extremely similar to what their request would elicit because it responds to an overlapping request. The proposed plan also has the potential to assist both parties in resolving exemptions in a timely fashion given that these documents-- which DHS produced in July 2017 --appear to be at least pmiially responsive to the requests Plaintiffs made in December 2017 to which DHS has yet to respond. Rather than constituting an attempt to litigate the FOIA request of another, this offer on the part of the Plaintiffs represents a narrowing of their request, given that the NTLC

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Case 1:18-cv-00659-RA Document 41 Filed 03/08/18 Page 3 of 6
request does not minor exactly Plaintiff's own and thus certain elements of Plaintiff's request are not included for that p01tion of the search.
Proposed timeline: Plaintiffs request that the court schedule a date for producing the Vaughn index for the NILC FOIA. Plaintiffs also request that the Court schedule a date approximately a week after the initial March 22 production for a conference to discuss any proposed motions. Plaintiffs propose that the Court provide a reasonable date by which the agencies will complete their searches and by which they will produce responsive documents and claim exemptions.
II. Defendants' Report
The Parties' Negotiations & Defendants' Searches: In the parties' letter ofFebruary 16, 2018, Defendants DHS, CIS, State, and ICE requested an opportunity to "negotiate the scope of [Plaintiffs' second FOIA request] so that Defendants can conduct a reasonable search." See Dkt. No. 38 at 4. On February 23,2018, Defendants identified the employees and offices that they believed were reasonably likely to have responsive records and proposed initially narrowing Plaintiffs' second request to records from those employees and offices. On February 27, 2018, Plaintiffs proposed that Defendants search additional employees and offices, but explicitly declined to nariow the scope of their requests, with the exception of items 16 and 17 in their second request. Thus, Plaintiffs continue to request communications relating to Haiti's
designation for TPS from "any employee" of four agencies over the course of more than a: year.
DRS's search results, which are described below, demonstrate that this request is overly broad and unduly burdensome, even as nanowed.
While Defendants have considered the feedback Plaintiffs provided, existing precedent does not impose any obligation to negotiate with Plaintiffs over the searches Defendants will conduct. To the contrary, courts in the S.D.N.Y. and elsewhere have recognized that FOIA gives agencies substantial discretion over how to search for responsive records. See, e.g., Immigrant Del Project v. ICE, 208 F. Supp. 3d 520, 526 (S.D.N.Y. 2016) ("[T]he 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, evincing a good faith effort to design a comprehensive search." (internal quotation marks omitted)); Estate ofGhais Abduljaami v. U.S. Dep 't ofState, No. 14 Civ. 7902 (RLE), 2016 WL 94140, at *5 (S.D.N.Y. Jan. 7, 2016) ("Even if a plaintiff specifies certain locations to be searched, an agency's search obligations are not dictated by a requester's demands to search particular components or databases." (internal quotation marks and alterations omitted)); Bigwoodv. U.S. Dep 'tofDef, 132 F. Supp. 3d 124,140 (D.D.C. 2015) ("In general, aFOIA petitioner cannot dictate the search terms for his or her FOIA request."). To the extent Plaintiffs wish to challenge the adequacy of Defendants' searches, they may do so on a motion for summary judgment after Defendants have completed their productions. See Abduljaami, 2016 WL 94140, at *5 ("Summary judgment is.the preferred procedural vehicle for resolving FOIA disputes." (internal quotation marks omitted)); Canning v. U.S. Dep 't o.fState, 134 F. Supp. 3d 490, 498 (D.D.C. 2015) (noting that, because "the processing and production of responsive documents is still ongoing" for a portion of plaintiffs FOIA request, "issues relating to [that] portion ... are not presently before the Court").
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Case 1:18-cv-00659-RA Document 41 Filed 03/08/18 Page 4 of 6

Defendants have initiated the following searches in response to Plaintiffs' FOJA requests. First, DHS has identified eleven employees and one office as reasonably likely to have records responsive to Plaintiffs' FOIA requests. The eleven employees work in the Office ofthe Secretary and the Office of Policy. Within the Office ofPolicy, DHS will also search the Office oflmmigration Policy. An electronic search ofthe sources described above has preliminarily identified at least 28,300 pages for processing and review.

Second, State has identified the Office of the Executive Secretariat ("S/ES") and twenty

employees as likely to have responsive records. S/ES serves as a liaison for the Secretary,

Deputy Secretaries, and Under Secretaries, and thus possesses communications to and from those

officers. In connection with Plaintiffs' prioritized request for bdefing packets, see Diet. No. 38 at

2, State searched S/ES for the month of October 2017 and located more than 400 documents,

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including approximately 30 on State's classified server. State is currently broadening its search

I

of S/ES to cover the time period from January 2017 to the present and expects to know the

number of documents located by next week. The twenty additional employees State will search

work in (1) the Bureau of Western Hemisphere Affairs, which includes the Office of the Haiti

Special Coordinator, (2) the Bureau of Population, Refugees, and Migration, (3) the Office of the

Under Secretary for Civilian Security, Democracy, and Human Rights, (4) the Office of the

Under Secretary for Political Affairs, and (5) the Office of the Legal Adviser. State has initiated

searches of these twenty employees and expects to have a preliminary count of the number of

documents for review within a week.

Third, CIS has gathered electronically stored information ("ESI") from its Executive Secretariat/Office of the Director, its Office of Policy and Strategy, its Field Operations Directorate, its Service Center Operations, and its Refugee, Asylum and International Operations Directorate. These sources have provided more than eighteen gigabytes of EST, and CIS intends to use keyword searches to identify potentially responsive docmnents for review. CIS is uploading those eighteen gigabytes of data onto a platform that can search them and identify duplicates~ It hopes to have preliminary information by next week about the number of documents it will review as potentially responsive.

Finally, ICE has searched for documents from its Executive Secretariat/Office of the Director, Offl.ce of the Principle Legal Advisor, and Office of Policy. These searches have identified approximately 1,100 pages of potentially responsive documents, which ICE expects to be able to review and process by the end of May.

The NJLC Request: On May 17,2017, NILC filed a FOIA request with DHS, ICE, CIS, and State seeking records relating to Haiti's designation for temporary protected status. NILC subsequently narrowed its requests, and DHS produced 118 pages on July 24, 2017. NILC has challenged neither the adequacy ofDHS's search nor DRS's withholdings of exempt material.

Plaintiffs now request that the Court permit them to challenge the withholdings that NILC did not. Plaintiffs cannot do so for two reasons. First, Plaintiffs' amended complaint does not assert any claim based on NILC's request. Instead, it challenges DRS' s response to Plaintiffs' FOIA request ofNovember 22,2017, see Dkt. No. 30 ~~ 30, 71-77, and all Defendants' response to Plaintiffs' FOIA request of November 24, 2017, id ~~59, 78- 84.

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Case 1:18-cv-00659-RA Document 41 Filed 03/08/18 Page 5 of 6

Second, to the extent Plaintiffs sought leave to amend to assert a claim based on the NILC request, they would lack standing to do so. See McDonnell v. United States, 4 F.3d 1227, 1237 (3d Cir. 1993) ("[A] person ... whose name does not appear on a FOIA request for records may not sue in district couti when the agency refuses to release requested documents because he has not administratively asserted a right to receive them in the first place."); McKevitt v. Mueller, 689 F. Supp. 2d 661, 667 (S.D.N.Y. 2010). Accordingly, the case before the Court concerns only Plaintiffs' claims based on their own requests.

To the extent Plaintiffs intend to ask that DRS prioritize the documents released to NILC

for processing in response to Plaintiffs' requests, DHS is willing to confer with Plaintiffs about

such prioritization. Based on other conversations with Plaintiffs, DHS has prioritized processing

the briefing packets described in the parties' letter of February 16, 2018, see Dkt. No. 38 at 2,

and crafting a search in response to Plaintiffs' requests. Focusing on the documents produced in

response to the NILC request would distract DHS from the issues it has currently prioritized.

DHS ·would need to expend significant effort producing a Vaughn index for materials provided to

j.

NILC. First, because NILC did not challenge DHS'.s withholdings, DRS bas not previously

; .
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prepared a Vaughn index. Second, the attorney who oversaw DHS ' s response to NILC bas since

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left the agency, requiring new personnel to reanalyze the records DHS released. Finally, the

creation of a Vaughn index is extraordinarily painstaking and time-consuming.

Proposal for Further Proceedings: Defendants expect that the searches described above will identify a large number of documents for review and processing. In light of that expectation, Defendants continue to maintain that Plaintiffs must narrow the scope of their requests to ensure that they are not unreasonably burdensome. Defendants further submit that Plaintiffs' proposal that Defendants simultaneously brief issues relating to withholdings and process additional documents for production is unreasonable. Typically, agencies complete their productions before briefing any challenges a requester may raise. Cf ACLU v. NSA, No. 13 Civ. 9198 (KMW)(JCF), 2017 WL 1155910, at *3 (S.D.N.Y. Mar. 27, 2017) ("Following each agency's search and production, ... the pmiies discussed their disagreements regarding the lawfulness of the agencies' withholdings ·and redactions and the adequacy ofthe agencies' searches."). Such an approach maximizes efficiency because it allows agencies to focus on one task at a time and consolidates all disagreements into a single motion for resolution by the Court.

Defendants will consent to early briefing of any challenges to Plaintiffs may raise to the production due on March 22, 2018, but respectfully request that the Corni suspend any schedule for the processing of records drning that briefmg so that Defendants may focus their efforts on preparing Vaughn indices, declarations, and other motion papers. Finally, to the extent that the Court wishes to consider a production schedule, Defendants propose that they each make monthly rolling productions of non-exempt material. Defendants further request an opportunity to submit letter-briefs on the appropriate schedule so that they can create a record of their diligence and the workload facing each agency. We thank the Court for considering this letter.

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Case 1:18-cv-00659-RA Document 41 Filed 03/08/18 Page 6 of 6

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Respectfully submitted,
/~z~ Jessica Ro ' Fatima Carrillo, Legal Intem Nora Searle, Legal Intem Kevin Siegel, Legal Intem Sarah Thompson, Legal Intern WASHINGTON SQUARE LEGAL SERVICES, INC. Immigrant Rights Clinic 245 Sullivan Street, 5lh Floor New York, NY 10012 nancy.morawetz@nyu.edu jessica.rofe@nyu.edu
Sejal Zota Elizabeth Simpson* NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 14 Beacon Street, Suite 602 Boston, MA 02108 (617) 227-9727 sejal@nipnlg.org *application for pro hac vice admission forthcoming
Attorneysfor Plaintiffs

GEOFFREY S_BERMAN United States Attorney for the Southem District of New York
By: CALEB HAYES-DEATS Assistant United States Attorney 86 Chambers Street, Third Floor New York, New York 10007 Telephone: (212) 637-2699 Fax: (212) 637-2686 caleb.hayes-deats@usdoj .gov
Attorneyfor Defimdants

 
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XQH[SODLQHGIDLOXUHWRILOOSRVLWLRQV Cf.Elec. Frontier Found. v. Dep’t of Justice)6XSS

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See, e.g.Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enf't Agency&LY6$6 6'1<RUGHULQJ,&(WRSURGXFHSDJHVZLWKLQDSSUR[LPDWHO\WZRZHHNV1RWDEO\WKLVRUGHUZDV PDGHGXULQJD\HDULQZKLFKWKHQXPEHURIUHTXHVWVGLUHFWHGDW,&(KDGLQFUHDVHGE\RYHU6HH)2,$JRY Department of Homeland Security FOIA Requests Received, Processed and PendingKWWSVZZZIRLDJRYGDWDKWPO

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