UNITED STATES DISTRICT COURT 

NORTHERN DISTRICTT OF ILLINOIS 

EASTERN DIVISION

NATIONAL IMMIGRANT JUSTICE 

CENTER, 

Plaintiff, 

v. 

UNITED STATES DEPARTMENT 

OF HOMELAND SECURITY and 

IMMIGRATION AND CUSTOMS 

ENFORCEMENT, 

Defendants. 

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COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF 

UNDER THE FREEDOM OF INFORMATION ACT

Plaintiff alleges violations of the Freedom of Information Act (“FOIA”), 5 

U.S.C. § 552, by Defendants U.S. Department of Homeland Security, (“DHS”) and 

Immigration and Customs Enforcement, (“ICE”). Plaintiff requested, pursuant to 

FOIA, information about alien minors in Defendant ICE’s custody from October 1, 

2008 through September 30, 2010. Defendants failed to conduct an adequate search 

for responsive documents and improperly withheld certain information about the 

minors. This action is being filed in order to vindicate the public’s fundamental 

right to know whether the government is complying with the law in its treatment of 

alien minors detained in ICE custody. 

Based on the partial information released by Defendants, a large number of 

alien minors are affected. In fact, of the 27,000 minors apprehended between 

October 1, 2008 and September 30, 2010, it appears that approximately 2,000 

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minors were detained in non-juvenile specific facilities, usually adult facilities, for 

anywhere from 4 to 450 days. Plaintiff intends to analyze the data produced in 

order to inform the public whether ICE is complying with legal requirements when 

it houses minors in its custody. Full release of the data concerning these minors is, 

without doubt, in the public interest. 

JURISDICTION, VENUE, AND BASIS FOR RELIEF 

1. This Court has jurisdiction over this matter pursuant to 5 U.S.C. § 

552(a)(4)(B) and 28 U.S.C. § 1331 because this action arises under the FOIA and the 

Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. 

2. Venue properly rests with this Court pursuant to 5 U.S.C. § 

552(a)(4)(B) because Plaintiff’s principal place of business is within this district. 

3. This Court may award Plaintiff declaratory relief pursuant to the 

FOIA and the Declaratory Judgment Act. 

PARTIES 

4. Plaintiff, National Immigrant Justice Center (“NIJC”) is an Illinois 

non-profit dedicated to ensuring human rights protections and access to justice for 

immigrants, refugees and asylum seekers. NIJC provides direct legal services to 

more than 10,000 individuals each year and advocates for these populations 

through direct representation, policy reform, impact litigation, and public 

education. NIJC’s principal place of business is Chicago, Illinois. NIJC submitted 

the FOIA requests denied by Defendants DHS and ICE that are the subject of this 

action. 

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5. Defendant DHS is a Department of the Executive Branch of the United 

States government. It has possession of, and control over, the information sought by 

Plaintiff NIJC under FOIA, and it has withheld said information from Plaintiff. 

6. Defendant ICE is a component agency of DHS. It has possession of, 

and control over, the information sought by Plaintiff NIJC under FOIA, and it has 

withheld said information from Plaintiff. 

7. Both DHS and ICE are “agencies” within the meaning of 5 U.S.C. § 

552(f)(1). 

STATUTORY FRAMEWORK 

8. The FOIA requires executive branch agencies of the United States 

government to release information to the public, upon request, unless one of nine 

specific statutory exemptions applies. 5 U.S.C. §§ 552(a)(3)(A); 552(b). 

9. The FOIA exempts from production “personnel and medical files and 

similar files the disclosure of which would constitute a clearly unwarranted 

invasion of personal privacy.” 5 U.S.C. §§ 552(b)(6). 

10. The FOIA exempts from production “records or information compiled 

for law enforcement purposes, but only to the extent the production of such law 

enforcement records or information...could reasonably be expected to constitute a 

clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). 

STATEMENT OF FACTS

11. Beginning in March of 2003, with the reorganization of the former 

Immigration and Naturalization Service, (“INS”), the Office of Refugee 

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Resettlement, (“ORR”), assumed responsibility for and authority related to the 

custody and care of “unaccompanied alien minors” who are detained in federal 

custody for immigration violations. 

12. ORR manages a network of juvenile facilities and other housing 

options for alien minors and is required to comply with regulations and an ongoing 

Consent Decree regarding the detention of immigrant minors in custody. 

13. Plaintiff’s FOIA request concerned the minors apprehended by ICE 

who do not fit the definition “unaccompanied alien minor” and are detained in ICE 

custody as opposed to ORR custody. 

14. On information and belief, when detained in ICE custody, as opposed 

to ORR custody, minors are detained in facilities that house adults and may lack 

access to child-appropriate conditions and services. 

15. Alien minors in ICE custody have far more limited access to legal 

counsel than minors detained in ORR custody. 

16. The custodial conditions of alien minors in ICE custody potentially 

violate the basic rights of the minors and DHS’s regulations regarding the detention 

and release of juveniles which codified the long-standing Consent Decree entered in 

Flores v. Meese, 85-CV-4544 (C.D.C.) See 8 C.F.R. §236.3 et.al. 

17. Plaintiff seeks the information that is the subject of this lawsuit in 

order to determine how many and for how long apprehended minors are being 

detained in ICE custody, and whether they have access to legal counsel and 

appropriate services while in ICE custody. 

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18. By letter dated December 20, 2010, Plaintiff NIJC submitted a request 

pursuant to FOIA to Defendant ICE requesting “electronic records from the 

[Defendant] DHS’s central database for all minors in ICE custody from October 1, 

2008 through September 30, 2010.” Exhibit A. 

19. The letter requested a maximum of 22 pieces of information pertaining 

to each such minor including: Alien numbers, birth dates, the zip code of the minor’s 

home address and information from the minor’s removal proceeding. Exhibit A. 

20. The information was requested “for the purpose of determining the 

number and locations of minors held in the custody of ICE, including those 

transferred to ORR [Office of Refugee Resettlement] custody [allowing NIJC] to 

analyze the length of detention for minors in ICE custody.” Id.

21. On April 12, 2011, having received no substantive response from 

Defendants, Plaintiff filed a timely appeal. Exhibit B. 

22. On April 22, 2011, Defendant ICE responded to Plaintiff’s original 

request. Exhibit C. 

23. ICE responded that for much of the information requested, the 

“requested data points are not available.” Exhibit C. 

24. ICE provided an Excel spreadsheet that contained the apprehension 

date, book in date, book out date, the name and address of the detention facility 

where the minor was held, and the reason for release for each minor. 

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25. Relying on three exemptions, the Privacy Act Exemption (k)(2), FOIA 

Exemption 6, and FOIA Exemption 7(C), Defendant ICE withheld from production 

the birthdates and Alien numbers of the minors apprehended. 

26. On June 13, 2011, Plaintiff timely appealed ICE’s April 22, 2011, 

determination. Exhibit D. 

27. On September 22, 2011, Defendant DHS denied Plaintiff’s appeal. 

Exhibit E. 

28. The Defendant reversed the reliance on the Privacy Act finding that 

“use of Privacy Act Exemption (k)(2) ... was improper.” Id. However, Defendant did 

not release any additional data. 

29. DHS affirmed ICE’s reliance on FOIA Exemptions (b)(6) and (b)(7)(C) 

to withhold “A-numbers and birth dates, [because] the use of the knowledge of this 

information ... could be used to determine the identity of the individual who is the 

subject of the proceeding.” Id. 

DEFEDANTS FAILED TO ADEQUATELY SEARCH FOR THE 

INFORMATION REGARDING THE MINORS’ REMOVAL PROCEEDINGS

30. The “data points” Defendants asserted was “not available” consisted of 

information germane to the individual minors’ removal proceedings. The FOIA 

requested (a) the date the Notice to Appear was issued to the minor; (b) the 

Immigration Court that handled the minor’s case; (c) whether any EOIR-28 form 

was filed by an attorney for the minor in the case; (d) whether any G-28 form was 

filed by an attorney for the minor in the case; (e) the date the removal proceedings 

began and concluded; and (f) the outcome of the removal proceedings. 

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31. Removal proceedings are conducted by the Immigration Court in the 

Executive Office for Immigration Review in the Department of Justice. 

32. ICE is the prosecuting authority in a removal proceeding. 

33. ICE officers are authorized to issue a Notice to Appear upon an alien 

which initiates the removal proceeding. 8 C.F.R. § 239.1(a). 

34. ICE officers routinely issue and serve the Notice to Appear. 

35. The Notice to Appear for minors in ICE custody is in the possession 

and control of the Defendants. 

36. Form G-28, Notice of Entry of Appearance as Attorney or 

Representative, is a DHS form and is used when representing individuals in 

immigration matters. It is customary and required for an attorney to file a form G28 with ICE when the attorney is representing an individual in the custody of ICE. 

37. When a Notice of Entry of Appearance as Attorney or Representative 

before the Immigration Court, EOIR-28, is filed on behalf of a person in removal 

proceedings, a copy must be served on ICE’s Office of Chief Counsel. 

38. Any EOIR-28 filed on behalf of a minor in the Defendants’ custody is in 

the possession and control of the Defendants. 

39. At the conclusion of the removal proceedings for persons detained in 

ICE custody, ICE must be notified of the result. 

40. Defendants’ assertion that this information is “not available” is not 

accurate, and their failure to produce this information to Plaintiff violated FOIA. 

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DEFENDANTS VIOLATED FOIA WHEN IT REFUSED TO PRODUCE THE 

ALIEN NUMBERS AND BIRTH DATES OF THE MINORS

41. FOIA “mandates a strong presumption in favor of disclosure.” Nat’l 

Ass’n of Homebuilders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2003) (quoting Dep’t of 

State v. Ray, 502 U.S. 164, 173 (1991)). Indeed, “FOIA reflects a general philosophy 

of full agency disclosures unless information is exempted under clearly delineated 

statutory language.” Id. Thus, “unlike the review of other agency action that must 

be upheld if supported by substantial evidence and not arbitrary and capricious, the 

FOIA expressly places the burden ‘on the agency to sustain its action and directs 

the district courts to determine the matter de novo.’” Dept. of Justice v. Reporters 

Comm. For Freedom of the Press, 489 U.S. 749, 754 (1989) (quoting 5 U.S.C. § 

552(a)(4)(B)). 

42. A-Numbers are identification numbers assigned by DHS to all noncitizens, including, for example, legal residents, U-Visa recipients, and immigrants 

who have been detained by DHS. 

43. DHS maintains data regarding detention locations and adjudications 

according to a person’s A-number. 

44. A-numbers are essential to NIJC’s ability to study and report on 

detained minors’ access to legal services. 

45. Defendants’ refusal to provide birthdate or Alien number information 

renders the information provided essentially useless. Plaintiffs cannot know for 

certain even how many minors were in ICE custody during the requested time 

period. 

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46. Immigrants detained by ICE are commonly detained in facilities 

administered by state or other federal authorities under agreements with ICE. 

Detainees are often shuffled between jails based on availability. 

47. In the absence of A-numbers and birth dates, it is impossible to discern 

whether each entry contained in the information provided by Defendants pertains 

to a single minor or if a single minor may be represented several times on the 

spreadsheet based on transfers within the system. 

48. Unlike social security numbers, A-Numbers have no significance for 

the purpose of any financial records and cannot be used to effectuate identity theft. 

Similarly, unlike medical or personnel files, there are no confidentiality laws 

specifically restricting the disclosure of A-numbers. 

49. DHS routinely discloses a person’s A-number to the public. For 

example, DHS employees frequently disclose A-numbers in immigration courts, 

both in writing and orally. 

50. Defendants’ reliance on exemptions b(6) and b(7)(c) to refuse to 

produce A-numbers and dates of birth is misplaced. CIE Washington v. Dept. of 

Justice, 469 F.3d 126 (D.C.Cir. 2006) (reversing summary judgment to government 

when it refuse to produce Alien numbers). 

CAUSE OF ACTION 

51. Plaintiff re-alleges and incorporates the allegations of all preceding 

paragraphs of this Complaint as if fully set forth herein. 

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52. By failing to provide all records responsive to Plaintiffs FOIA Request, 

Defendant has violated the FOIA’s mandate to release agency records to the public. 

5 U.S.C. § 552(a)(6). 

53. Plaintiff has a statutory right to have Defendant process the Request 

in a manner which complies with FOIA. Plaintiff’s rights in this regard were 

violated when Defendant unlawfully denied Plaintiff’s request. 

54. Unless enjoined by this Court, Defendant will continue to violate 

Plaintiff’s statutory rights to receive records under the FOIA. 

55. Plaintiff is entitled to obtain the requested records immediately at no 

cost. 

56. Plaintiff is entitled to reasonable costs of litigation, including attorney 

fees, pursuant to the FOIA. 5 U.S.C. § 552(a)(4)(E). 

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff prays that this Court enter a judgment: 

(1) declaring that Defendant has violated FOIA by failing to timely 

provide all records responsive to Plaintiff’s FOIA Request; 

(2) ordering that Defendant make all records responsive to the Request 

available to Plaintiff at no cost within twenty days; 

(3) awarding Plaintiff its litigation costs and reasonable attorneys’ fees in 

this action; and, 

(4) ordering such other relief as the Court may deem just and proper. 

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January 30, 2012 

Respectfully submitted, 

 s/ Mary M. Rowland 

Mary M. Rowland 

José J. Behar 

Mary M. Rowland 

Hughes Socol Piers Resnick & Dym, Ltd. 

70 West Madison Street, Suite 4000 

Chicago, Illinois 60602 

Tel: 312-580-0100 

Fax: 312-580-1994 

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