United States District Court, S.D. New York
IMMIGRANT DEFENSE PROJECT, HISPANIC INTEREST COALITION OF ALABAMA, and THE CENTER FOR CONSTITUTIONAL RIGHTS, Plaintiffs,
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants.
OPINION AND ORDER
PAUL OETKEN, District Judge
Immigrant Defense Project, the Hispanic Interest Coalition of
Alabama, and the Center for Constitutional Rights
(collectively “Plaintiffs”) brought this action
against United States Immigration and Customs Enforcement
(“ICE”) and the United States Department of
Homeland Security (“DHS”) (together
“Defendants”) under the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552 et
seq., seeking information related to ICE's
enforcement and arrest operations at homes and residences.
(Dkt. No. 31 at 1.)
initial discord over Defendants' production of records,
the Court directed Defendants to produce documents on a
rolling deadline. (Dkt. No. 15.) Pursuant to that order,
Defendants produced approximately 8, 500 pages of responsive
documents. (Dkt. No. 38 at 1.) The parties then cross-moved
for partial summary judgment on the adequacy of
Defendants' search. This Court issued an Opinion and
Order on September 23, 2016, granting in part and denying in
part both parties' motions. See Immigrant Def.
Project v. U.S. Immigration & Customs Enforcement,
208 F.Supp.3d 520 (S.D.N.Y. 2016). Plaintiffs thereafter
filed a motion for reconsideration (see Dkt. No.
52), and a letter apprising the Court of additional
developments (see Dkt. No. 62). For the reasons that
follow, Plaintiffs' motion is granted.
with the facts and history of this case is presumed. This
Court's Opinion and Order of September 23, 2016, provides
a detailed account. See Immigrant Def. Project, 208
F.Supp.3d at 524-25.
relevant to the pending motion for reconsideration, following
the Court's directive that the Department of Homeland
Security's Office of Public Affairs (“OPA”)
conduct additional searches, Defendants produced 366 pages of
new documents that are responsive to Plaintiffs' FOIA
request. (Dkt. No. 62 at 1.) Included in these documents are
emails discussing enforcement operations and aggregating data
related to arrests made at residences (so-called “home
arrests”), including attributions to various field
offices for carrying out these operations and arrests. (Dkt
No. 62, Exs. 1, 2.)
new documents provide a glimpse into the kind of data
tracking and record-keeping at these field offices that was
not previously known to Plaintiffs or this Court, due to
Defendants' earlier failure to carry out the OPA
searches, which this Court found at partial summary judgment
to be contrary to the command of the FOIA.
for reconsideration are . . . committed to the sound
discretion of the district court.” Wilder v. News
Corp., No. 11 Civ. 4947, 2016 WL 5231819, at *3
(S.D.N.Y. Sept. 21, 2016) (quoting Liberty Media Corp. v.
Vivendi Universal, S. A., 861 F.Supp.2d 262,
265 (S.D.N.Y. 2012)). While “a party may not advance
new facts, issues or arguments not previously presented to
the Court, ” Steinberg v. Elkman, No. 15 Civ.
278, 2016 WL 1604764, at *1 (S.D.N.Y. Apr. 6, 2016) (quoting
Nat'l Union Fire Ins. Co. v. Stroh Cos., 265
F.3d 97, 115 (2d Cir. 2001)), reconsideration may be granted
because of “an intervening change of controlling law,
the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice, ” Luv
n' Care Ltd. v. Goldberg Cohen, LLP, No. 15 Civ.
9248, 2016 WL 6820745, at *1 (S.D.N.Y. Nov. 10, 2016)
(quoting Hollander v. Members of the Bd. of Regents,
524 Fed. App'x 727, 729 (2d Cir. 2013)).
regards a defending agency's burden under the FOIA, as
the Court explained in its earlier ruling on partial summary
judgment, an agency must show that its search was
“reasonably calculated to uncover all relevant
documents.” Bloomberg L.P. v. Bd. of Governors of
Fed. Reserve Sys., 649 F.Supp.2d 262, 271 (S.D.N.Y.
2009), aff'd, 601 F.3d 143 (2d Cir. 2010).
Plaintiffs, for their part, can defeat summary judgment in
the agency's favor “by raising ‘tangible
evidence' that the agency's search was not
complete.” Immigrant Def. Project, 208
F.Supp.3d at 527 (quoting Carney v. U.S. Dep't of
Justice, 19 F.3d 807, 812 (2d Cir. 1994)). In order to
make this showing, “Plaintiffs must aver specific
evidence about a search's inadequacy; ‘purely
speculative claims about the existence and discoverability of
other documents' are not enough.” Id.
(quoting Adamowicz v. I.R.S., 402 Fed. App'x
648, 650 (2d Cir. 2010)).
partial summary judgment stage, the Court held that
Plaintiffs' pointing to Defendants' failure to use
certain search terms was inadequate to defeat summary
judgment generally at the ICE Enforcement and Removal
Operations (“ERO”) field offices and the Homeland
Security Investigations (“H.S.I.”) Special Agent
in Charge (“SAC”) field offices. See
Immigrant Def. Project, 208 F.Supp.3d at 528. The Court
carved out a narrow exception to this holding as regards
these field offices: Defendants' use of certain plural
search terms (which would be exclusive of the singular form)
could not be reasonably calculated to produce all relevant
records. Id. at 529. As a result, the Court directed
the field offices to carry out a narrow slate of additional
their latest submission to the Court, Plaintiffs point to
“tangible evidence” of outstanding materials at
the field offices in question, indicating that
Defendants' earlier search of these offices was not
complete. See Carney, 19 F.3d at 812. Specifically,
Plaintiffs have submitted a chart listing immigration arrests
based on type (including those at “residence[s],
” the primary subject of Plaintiffs' FOIA requests)
and the responsible field office (indicated by abbreviation).
(See Dkt. No. 62, Ex. 1.) Contrary to
Defendants' earlier representations to this Court
(see, e.g., Dkt. No. 41 ¶ 11), these new data
strongly suggest that the field offices in question-which are
responsible for investigating potential targets and
conducting enforcement operations, including at homes
(see Dkt. No. 1, Ex. 1; Dkt. No. 32, Ex. 3 ¶
7)-in fact, collect and maintain at least some information on
failed to produce these records from the field offices in
question. Moreover, at the partial summary judgment stage,
they claimed that they had discharged their duties under the
FOIA and turned up all responsive data and documents,
constructively denying the existence of such
records-representations that the Court took ...