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New York Times Co. v. United States Department of Homeland Sec.

United States District Court, S.D. New York

June 13, 2013

THE NEW YORK TIMES COMPANY and MARIA SACCHETTI, Plaintiffs, -
v.
- UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant

For Plaintiffs: David Edward McCraw, Esq., Stephen Nathaniel Gikow, Esq., The New York Times Company, New York, NY.

For Defendants: Cristine Irvin Phillips, Assistant U.S. Attorney, United States Attorney Office, SDNY, New York, NY.

OPINION

Shira A. Scheindlin, U.S.D.J.

Page 450

OPINION AND ORDER

I. INTRODUCTION

In Zadvydas v. Davis , the Supreme Court held that individuals who have been found unlawfully present in the United States and are scheduled for removal may not be detained for a period longer than six months where there is no significant likelihood of removal in the reasonably foreseeable future.[1] The New York Times Co. and its employee Maria Sacchetti, a reporter for the Boston Globe, (collectively " Plaintiffs" ) request, pursuant to the Freedom of Information Act (" FOIA" ),[2] that the United States Department of Homeland Security (" DRS" ) produce a list of all aliens since 2008 who, after being convicted of a crime and serving their sentence, were designated for removal but were released from DHS custody pursuant to Zadvydas . In response to this request DHS produced a list of 6,843 individuals (the " Released Individuals" ) along with certain relevant information, but redacted the individuals' names pursuant to FOIA Exemptions 6 and 7(C) concerning protection of privacy interests. The parties now cross-move for summary judgment on the propriety of DHS's decision to withhold the names of the individuals.

II. STATEMENT OF FACTS

When an alien is designated for removal from the United States, DHS, and specifically Immigrations and Customs Enforcement (" ICE" ), generally places the individual in administrative detention until removal is effected.[3] During that period, an ICE officer works to obtain necessary travel documents from the individual's home country.[4] Occasionally ICE is unable

Page 451

to obtain the necessary documents, for example because of the state of U.S. diplomatic relations with the country or the individual's medical condition.[5] If ICE's efforts to obtain the necessary documentation exceed six months without the likelihood of success in the foreseeable future, Zadvydas mandates that the individual be released unless special circumstances exist, i.e., risk of flight or danger to the community.[6]

As part of a journalistic investigation into the government's handling of immigration matters, Sacchetti researched the government's procedures and policies for releasing aliens convicted of crimes who were designated for removal to their home country, but whose administrative detention implicated the Supreme Court's ruling in Zadvydas .[7] Sacchetti was interested in learning whether, for instance, " aliens with a history of violent crimes were being released, whether repeat offenders were being released on more than one occasion, and whether sentencing decisions that had been affected by the court's belief that removal would follow were being undermined by release." [8]

Sacchetti submitted a FOIA request to ICE on September 28, 2011, which was subsequently modified into a request seeking " a list of convicted criminal aliens released by ICE, but not deported, since 1/1/2008 due to the 2001 Supreme Court decision in Zadvydas []" (the " Request" ).[9] DHS produced a spreadsheet (the " Spreadsheet" ) containing, for each individual, the most serious crime for which the individual was convicted, the date of release from ICE custody, and the jurisdiction in which the release took place (the " Area of Responsibility" ).[10] The names of the individuals were redacted based on DHS's aassertion that the information fell within FOIA Exemptions 6 and 7(C).[11] On February 24, 2012, Sacchetti administratively appealed the redaction of the ...


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