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Immigrant Defense Project v. United States Immigration and Customs Enforcement

United States District Court, S.D. New York

May 16, 2017

IMMIGRANT DEFENSE PROJECT, HISPANIC INTEREST COALITION OF ALABAMA, and THE CENTER FOR CONSTITUTIONAL RIGHTS, Plaintiffs,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants.

          OPINION AND ORDER

          J. PAUL OETKEN, District Judge

         The 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.)

         Following 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.

         I. Background

         Familiarity 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.

         As 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.)

         These 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.

         II. Legal Standard

         “Motions 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)).

         As 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)).

         III. Discussion

         At the 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 searches.

         But, in 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 home arrests.

         Defendants 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 ...


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