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American Civil Liberties Union Foundation v. Department of Homeland Security

United States District Court, S.D. New York

March 22, 2017

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND B PROTECTION, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE OF REFUGEE RESETTLEMENT, Defendants.

          Attorneys for Plaintiff ACLU FOUNDATION IMMIGRANTS' RIGHTS PROJECT By: Cecillia Derphine Wang, Esq. AMERICAN CIVIL LIBERTIES UNION, WOMEN'S RIGHTS PROJECT By: Omar C. Jadwat, Esq. CARDOZO IMMIGRATION JUSTICE CLINIC By: Lindsay Cotten Nash, Esq.

          Attorneys for Defendants JOON H. KIM Acting U.S. Attorney for the Southern District of N.Y By: Elizabeth Tulis, Esq. Caleb Hayes-Deats, Esq.

          OPINION

          ROBERT W. SWEET U.S.D.J.

         Defendant United States Customs and Border Protection ("CBP" or the "Government") has moved for partial summary judgment pursuant to Rule 56 F. R. Civ. P. (Exemptions 6, 7(C), 7(E), and 7(F) of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(6), (7)(C), (E) & (F)) upholding CBP's decision to withhold certain questions and answers put to alien minors suspected of smuggling. The plaintiff American Civil Liberties Union Foundation ("ACLUF" or the "Plaintiff") has cross-moved pursuant to Rule 56, F. R. Civ. P. to compel release of documents redacted by CBP and to compel U.S. Immigrations and Customs Enforcement ("ICE") and the Office of Refugee Resettlement ("ORR") to respond to the ACLUF's FOIA requests.

         Based upon the facts and conclusions set forth below, the CBP motion is denied in part and granted in part and the ACLUF motion is granted in part and denied in part with leave granted to renew.

         Prior Proceedings

         On November 25, 2014, the ACLUF filed an FOIA request seeking "[a]11 records relating to the Juvenile Referral Program (VRP')." The JRP was pilot program implemented by CBP to deal with the exploitation of juveniles by criminal organizations along the border between the United States and Mexico. The CBP determined that criminal organizations used unaccompanied alien children ("UACs") from Mexico to smuggle aliens and narcotics, expecting that authorities in the United States would not prosecute the juveniles and would instead allow them to voluntarily return to Mexico. Under the JRP, CBP stopped permitting Mexican UACs who were suspected of smuggling to voluntarily return to Mexico, and instead referred them to the ORR. The procedures applied by the JRP parallel CBP's procedures for UACs from non-contiguous countries. The JRP differed from CBP's procedures for UACs from non-contiguous countries to the extent that, because CBP by definition suspected the minors in the JRP of having committed a crime, its referrals to ORR generally requested secure placement. CBP terminated the JRP in September 2015.

         On July 22, 2015, CBP produced 113 pages of records in response to the ACLUF's request. On July 30, 2015, Plaintiff administratively appealed the July 22, 2015, response, arguing that the response had not included existing documents that fell within the scope of the request.

         On November 17, 2015, Plaintiff filed the instant suit. Three days later, the ACLUF filed a second FOIA request that updated its November 25, 2014, request by seeking all documents relating to the JRP from between November 2 6, 2014, and November 20, 2015. The ACLUF subsequently amended its complaint to incorporate the November 20, 2015, request into this suit.

         During the course of this lawsuit, CBP has produced over 1, 000 pages of documents concerning the JRP. These documents include internal memoranda describing the JRP, retrospective analyses of the JRP's effectiveness, presentations explaining the JRP to CBP officials, forms associated with the JRP, standard operating procedures, correspondence with legal service and advocacy organizations concerning the JRP, internal emails about individual aliens processed through the JRP (with identifying information redacted), and the memorandum announcing the termination of the JRP. CBP has also provided spreadsheets that contain limited information about every alien minor processed through the JRP, including his or her country of birth, age, gender, date of arrest, processing disposition, incidents of recidivism, time in CBP custody, and type of placement with ORR.

         Certain documents produced by CBP contain a list of questions that CBP poses to minors suspected of smuggling, together with the minors' answers to those questions. These questions and answers appear in different types of documents, including forms entitled "Unaccompanied Alien Child (UAC) - JRP Secure Placement Referral Form, " and emails sent by CBP officials.

         The material redacted consists of twenty-five to thirty questions that CBP routinely asks in order to elicit information about smuggling and other criminal activity in which the minor and others may have engaged. CBP has also redacted the minors' answers to those questions.

         After CBP redacted the interview questions and the accompanying answers from the documents it produced, ACLU challenged those redactions. Despite negotiating in good faith over the appropriateness of the redactions, the parties failed to reach agreement.

         The instant motion and cross-motion were heard and marked fully submitted on October 27, 2016.

         The Facts

         The facts are set forth in the July 22, 2016 declarations of Shari Suzuki ("Suzuki"), the September 19, 2016 Declaration of Fernando Pineiro ("Pineiro") and the Supplemental Declaration of Shari Suzuki ("Suzuki Supp."), the September 16, 2016 Declaration of Kimberly N. Epstein ("Epstein") submitted on behalf of CBP and the Plaintiff s Statement pursuant to Local Civil Rule 56.1.

         The Declarations submitted by CBP include the following facts.

         The examples of documents submitted by CBP demonstrate that CBP has not redacted all indications of the types of information it attempts to obtain from minors suspected of smuggling and reflect that CBP records the minors' names, aliases, apprehension date, tattoos, and affiliation with any criminal organization, behavioral issues, and prior criminal history. The redactions challenged by the ACLU consist of twenty-five to thirty questions that CBP routinely asked as part of the JRP in order to elicit information about smuggling and other criminal activity in which the minor and others may have engaged. ACLUF has also challenged CPB's redaction of the minors' answers to those questions.

         The questions in the JRP forms, which CBP routinely poses to minors it suspects of smuggling, themselves constitute a technique CBP uses to investigate smuggling and crimes related to the exploitation of minors. This technique was devised in order to elicit information regarding the affiliations between the suspected juvenile smugglers and each other, criminal organizations, and gangs, as well as information about their modus operandi. Exemption (b)(7)(E) has been applied by CBP to protect the law enforcement techniques used in questioning suspected juvenile smugglers of humans or illegal drugs and deciding how to respond and ask follow-up questions based on the answer elicited. Some of the information withheld presents situational responses, instructing the questioner that, "if a reply is received, then the b follow-up may be required because of x, y, and z considerations." Even though CBP has terminated the JRP, it continues to use these interview questions, as well as other similar questions that explore related topics, in carrying out its law enforcement responsibilities.

         Although the public is aware that suspects are questioned or interrogated following detention or arrest, the Government asserts that the specific questions and the actual questioning techniques are not generally known to the public. Release of this information could facilitate circumvention of the techniques and procedures related to the interrogation of juvenile smugglers who have been apprehended or detained while smuggling people or drugs into the United States. Criminal organizations exploiting juveniles could coach them on how to respond to CBP's questions and how to avoid providing information that might prove useful to CBP.

         The specific questions and follow-ups in the JRP forms, which CBP routinely poses to minors it suspects of smuggling, might constitute a technique and procedure that CBP uses to investigate smuggling and crimes related to the exploitation of minors. The Government asserts that these questions and follow ups were devised in order to elicit information regarding the affiliations between and among the suspected juvenile smugglers, criminal organizations, and gangs, as well as information about their modus operandi. Some of the information withheld presents situational responses, instructing the questioner that, "if a reply is received, then the b follow-up may be required because of x, y, and z considerations." Although CBP has terminated the JRP, it continues to use these interview questions, as well as other similar questions that explore related topics, in carrying out its law enforcement responsibilities. The specific set of questions and follow-ups used in the JRP is not generally known to the public.

         In challenging CBP's invocation of Exemption (b)(7)(E), the ACLU cites clips from the television series "Border Wars." However, the Government asserts that none of the clips cited depicts the specific set of questions and follow-ups utilized by CBP in the JRP.

         Release of the information could facilitate circumvention of the techniques and procedures related to the interrogation of juvenile smugglers who have been apprehended or detained while smuggling people or drugs into the United States. If the specific list of questions and follow-ups were made public, criminal organizations exploiting juveniles could more effectively coach them on how to respond to CBP's questions and how to avoid providing information that might prove useful to CBP.

         This set of questions and follow-ups - including the particular terminology used, the order of questions, and the directions for situational follow-ups - was carefully calibrated, based on intelligence and prior experiences and observations of smuggling activities at the border, to elicit specific information from the juveniles interviewed as part of the JRP. The particular information the questions and follow-ups were designed to elicit includes both information that would shed light on the smuggling operations and trafficking operations, and information that would help CBP understand the abuse and exploitation to which juvenile smugglers are often subject.

         The Office of Refugee Resettlement ("ORR") is part of the Administration for Children and Families ("ACF"), which is an operating division of HHS. ACF has jurisdiction over FOIA requests seeking records originating within ACF.

         The only withholding by ACF challenged in the ACLU's pending motion is the redaction, pursuant to FOIA Exemption (b)(5), of portions of the JRP Memorandum dated May 4, 2015, which was originally produced to the ACLU on February 19, 2016. The ACLU challenged the redaction of portions of the "Overview" section of the JRP Memorandum. On September 16, 2016, via counsel, ACF produced to the ACLU a reprocessed version of the May 4, 2015, JRP Memorandum. In the reprocessed JRP Memorandum only three sentences remain redacted in the "Overview" section. The remaining redactions are found in the sections titled "Issues" and "Recommendations."

         ACF's searches, processing, and productions of ORR records in response to the ACLU's FOIA request are not yet complete.

         Because ACF's searches, processing, and productions are not yet complete, this declaration addresses only the ACLU's challenge to ACF's withholding, pursuant to Exemption (b)(5), of certain information in the JRP Memorandum dated May 4, 2015 (the "JRP Memorandum").

         Exemption (b)(5) exempts from disclosure: "interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

         The JRP Memorandum sets forth recommendations from the ACF Assistant Secretary to the HHS Acting Deputy Secretary regarding potential policy decisions related to the JRP process. The information redacted pursuant to Exemption (b)(5) in the JRP Memorandum, including the three sentences that remain redacted in the "Overview" section, consists of opinion, analysis and recommendations from the ACF Assistant Secretary to the HHS Secretary regarding the JRP process, including staff opinions and ...


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