Immigrant’s FOIA Win Upended by 9th Circuit

     SAN FRANCISCO (CN) – The Ninth Circuit reversed a federal judge’s ruling that the U.S. Citizenship and Immigration Services has a “pattern and practice” of violating Freedom of Information Act time limits.
     Immigration attorney James Mayock says he has been requesting his clients’ alien registration files from the agency and its predecessor the Immigration and Naturalization Service for more than 30 years, but that the agency has never produced the requested documents within the statutory 20-day time limit.
     Mayock and client Mirsad Hajro filed a FOIA lawsuit in 2008 after Citizenship and Immigration once again dragged its feet in producing files.
     The attorney was a plaintiff in a 1992 lawsuit challenging INS’ alleged patterns of violating FOIA. The suit ended in a settlement, with INS implementing an “expedited” system for immigrants whose “life or personal safety would be jeopardized” by deportation.
     But Mayock, who submitted declarations from 26 other immigration attorneys in his 2008 lawsuit, says the agency still violates federal law.
     Citizenship and Immigration moved for summary judgment in 2009, which U.S. Magistrate Judge Paul Grewal denied in 2011.
     Grewal said the lawsuit proved that the agency indeed has a “pattern or practice” of violating FOIA, but dismissed claims against U.S. Attorney General Eric Holder.
     The plaintiffs were also awarded $318,568 in attorney’s fees. The agency appealed Grewal’s decision in December 2011.
     A three-judge panel of the Ninth Circuit, citing the U.S. Supreme Court decision in Kokkonen v. Guardian Life Ins. Co., ruled on Friday that Grewal lacked jurisdiction to enforce the settlement agreement and reversed his summary judgment in favor of the plaintiffs.
     “In sum, because Kokkenen applies retroactively and the 1992 district order did not retain jurisdiction over the prior lawsuit’s settlement agreement, the district court does not have the inherent power to enforce the terms of the settlement agreement,” Circuit Judge Richard Tallman wrote for a three-judge panel.
     The panel added that “the factual record is not sufficiently developed to determine whether Mayock has standing to bring a pattern or practice claim, satisfying the personal harm and future harm prongs under our clarified standard.”
     Those claims were remanded so that the Grewal “can make the requisite factual findings and determine in the first instance whether Mayock has standing to bring this claim,” Tallman wrote in the 45-page opinion. “We also reverse and remand Hajro’s pattern and practice claim with instructions to dismiss the claim as moot. In light of our reversal, we vacate the permanent injunction and we also vacate and remand the attorneys’ fee award for recomputation.”
     Circuit Judge Johnnie Rawlinson concurred in part, dissenting on the issue of Mayock’s standing.
     Rawlinson said she would “reverse the district court’s ruling that Mayock had standing to pursue an action in his own right, and remand for dismissal of all claims.”
     U.S. District Judge Stephen Murphy III of the Eastern District of Michigan rounded out the panel.

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