Group Alleges Stonewall on Immigration Court Records

     WASHINGTON (CN) – The Brennan Center sued the Department of Homeland Security on Monday after a prolonged tug-of-war with the department failed to yield requested information on immigration court proceedings.
     As detailed in the complaint filed in the D.C. Federal Court, the nonprofit legal center founded by the family of late Supreme Court Justice William Brennan, has since 2015 filed numerous Freedom of Information Act requests intended to uncover “the number of times the government, i.e. Immigration Customs Enforcement (ICE), filed motions seeking to have proceedings closed or protective orders issued on national security grounds.”
     The center has also asked for information on the number of times those requests were granted.
     Despite its persistence, however, the center says it has been repeatedly brushed off by both the department and its agency.
     Much of the August 8 complaint is given over to the saga of navigating the federal bureaucracy.
     The center says it made its initial Freedom of Information Act request to the Executive Office for Immigration Review (EOIR), and in return received a curious response letter from the Department of Homeland Security.
     The letter said that “the information [sought is] under the purview of the Executive Office for Immigration Review, a Department of Justice component,” and that DHS would therefore send the FOIA to the appropriate team of request processors at the Office of Immigration Review.
     But this was a blatant redundancy, the center says, because it had already made a direct request for information from EOIR in its initial request.
     What they were seeking in their subsequent FOIA was direct access to information held by ICE since attempts to find the court proceedings through EOIR had proven fruitless.
     This request, the plaintiff contested was based on the specific “recommendations of EOIR’s FOIA staff, who had informed the Brennan Center that EOIR was unable to locate many responsive records and that the plaintiff might be able to receive more records from ICE.”
     The center was then “informed by email that ICE had to close the file on the plaintiff’s request because agency staff members handling it felt that ‘the entirety of the material is with a different office.'”
     This response inspired a series of new exchanges and appeals by the Brennan Center, eventually leading to its plainly informing the agency of its impropriety.
     “ICE’s decision not to conduct a search was improper because 1) the plaintiff informed ICE of EOIR’s conclusion that it did not possess very many responsive records; 2) the Brennan Center’s request sought protective orders issued by immigration courts and it is unlikely that ICE attorneys would not maintain court orders issued to them in their cases; and 3) the request sought the government’s motions seeking protective orders and ‘ICE is the most likely repository of those records,” the complaint says.
     A few weeks later, ICE processed the appeal and agreed to make the modifications necessary to help the center obtain their records. But when the response was finally submitted to the Brennan Center, the complaint alleges, ICE only produced “106 pages of records deemed responsive, of which 11 would be produced in full while 95 would be withheld entirely.”
     The complaint goes on to say that of the 106 pages given to the center, 93 were fully redacted, where the remaining pages were “two copies of the same three page document.” Instead of identifying or describing the nature of the records which were withheld, as was their duty, the agency instead claimed it was exempt according to attorney-client or attorney work product privileges.
     In the next round of appeals, the Brennan Center argued the department not only failed to conduct an “adequate search for responsive records,” but that of the 13 unredacted pages produced by ICE, none contained information on motions or orders at all. Of the 93 redacted pages produced, the complaint showed ICE did not indicate what those records were with any specificity at all.
     Appeals by the plaintiff were made at least four more times over the course of several months and as recently as June; yet none of the requested information has been forthcoming.
     According to the complaint, the department and ICE have only assigned FOIA tracking numbers to the center’s requests.
     The center is seeking declaratory relief in the form of an order directing the department and ICE to disclose the requested records.
     When reached for comment, ICE spokesperson Carissa Cutrell said “unfortunately, we don’t comment on pending litigation. We’re happy to [comment] once court proceedings conclude.”
     Elizabeth Goitein, co-director of Liberty and National Security Program at the Brennan Center, was unavailable for comment Wednesday.

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