Smith v. U.S. Immigration and Customs Enforcement et al

Filing 73

ORDER by Magistrate Judge Kristen L. Mix on 6/21/18. Revised Motion for Leave to Take 30(b)(6) Deposition of U.S. Immigration and Customs Enforcement 69 is GRANTED in part and DENIED in part. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02137-WJM-KLM
JENNIFER M. SMITH,
Plaintiff,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Revised Motion for Leave to Take
30(b)(6) Deposition of U.S. Immigration and Customs Enforcement [#69]1 (the
“Motion”). Defendant filed a Response [#72]. No reply was permitted. See Minute Entry
[#68]. The Court has reviewed the filings, the record, and the applicable law, and is
sufficiently advised in the premises. For the reasons stated below, the Motion [#69] is
GRANTED in part and DENIED in part.
I. Summary of the Case
Plaintiff, an immigration attorney, filed this action challenging the withholding of
agency records pertaining to her client’s immigration status. Compl. [#1]. On or around
May 22, 2013, Plaintiff submitted a Freedom of Information Act (“FOIA”) request on behalf

1

“[#69]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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of her client seeking agency records from U.S. Citizenship and Immigration Services
(“USCIS”) and U.S. Immigration and Customs Enforcement (“Defendant” or “the agency”
or “ICE”). Am Compl. [#32] ¶ 15. On September 3, 2015, Defendant sent Plaintiff a letter
containing the following response:
[Defendant’s] records indicate that as of September 3, 2015, the subject of
your request is a fugitive under the Immigration and Nationality Act of the
United States. It is [Defendant’s] practice to deny fugitive alien FOIA
requesters access to the FOIA process when the records requested could
assist the alien in continuing to evade immigration enforcement efforts.
Id. ¶ 20. Defendant withheld 18 pages of documents. Id. ¶ 2. After Plaintiff filed the
Complaint [#1] initiating this case on August 24, 2016, Defendant provided the 18 pages
of documents to Plaintiff and argued in this Court that the case was moot. Motion to
Dismiss [#15]. However, Plaintiff filed an Amended Complaint [#32] on January 12, 2017,
and the parties were permitted a brief period of written discovery. See Order Regarding
Discovery Motions [#51]; Abbreviated Scheduling Order [#55]. Plaintiff’s First Amended
Complaint acknowledges that her claim for records is moot, but she continues to seek
injunctive and declaratory relief, which is further explained below.
Defendant’s practice of denying information to fugitive alien FOIA requesters is
referred to as the “fugitive alien doctrine,” or “fugitive disentitlement doctrine.” Pursuant to
this practice, FOIA requesters are denied access to documents that “could assist the alien
in continuing to evade immigration enforcement efforts.” Am Compl. [#32] ¶ 20. Plaintiff
argues that Defendant is unlawfully denying access to records otherwise subject to
disclosure under FOIA on the basis of the “fugitive alien doctrine.” Id. ¶ 1. During the
course of this case, Defendant drafted and provided to Plaintiff a new Standard Operating
Procedure (“SOP”), which the agency has explained represents its current policy with
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respect to withholding documents pursuant to the “fugitive alien doctrine.” Response [#72]
at 2. Although Defendant has now disclosed its new policy, Plaintiff contends that the SOP
is vague in various respects and therefore seeks to conduct a Rule 30(b)(6) deposition of
Defendant in order to clarify the scope of its practices for purposes of proving her claim for
injunctive and declaratory relief. See generally Motion [#69].
II. Legal Standards
The proper scope of discovery is “any nonprivileged matter that is relevant to any
party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). However, the Court may prohibit
discovery “to protect a party or any person from annoyance, embarrassment, oppression,
or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).

Further, discovery that is

duplicative or unduly burdensome should not be permitted. Fed. R. Civ. P. 26(b)(2)(C); see
also SEC v. Nacchio, No. 05-cv-00480-MSK-CBS, 2008 WL 4087240, at *3 (D. Colo. Oct.
19, 2008).
“In FOIA cases, discovery is both rare and disfavored.” Freedom Watch v. Bureau
of Land Mgmt., 220 F. Supp. 3d 65, 68 (D.D.C. 2016). This is because discovery requests
in FOIA cases concerning the issue of a plaintiff’s entitlement to documents may be
“tantamount to granting the final relief sought.” Id. (quoting Tax Analysts v. IRS, 410 F.3d
715, 722 (D.C. Cir. 2005)). Exceptions to the general rule of not allowing discovery in FOIA
cases include circumstances where issues of material fact exist, agency affidavits are
incomplete, or the plaintiff has made a showing that the agency acted in bad faith. Id.;
Scudder v. CIA, 25 F. Supp. 3d 19, 50 (D.D.C. 2014).
“Agency affidavits are accorded a presumption of good faith, which cannot be

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rebutted by purely speculative claims about the existence and discoverability of other
documents.” Am. Ctr. for Law & Justice v. United States Dep’t of State, 289 F. Supp. 3d
81, 86 (D.D.C. 2018) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (internal quotation marks and citation omitted)).
III. Language of the SOP and Affidavit
The SOP states that FOIA requests to the agency are received either by: (1) direct
request to Defendant, or (2) referral from other DHS “components,” such as USCIS, who
encounter requests for Defendant’s records when assembling their own responses to FOIA
requests. SOP [#60-2] at 1. The SOP states that it applies
only to FOIA requests submitted directly to ICE, which are more likely to
implicate law enforcement equities than requests for portions of A-files [Alien
Files] referred to ICE. Referrals are processed in the ordinary course and
categorical withholding based on the alien’s fugitive status does not apply.
Id. Furthermore, the SOP provides that Defendant
may categorically withhold the fugitive’s law enforcement records or
information pursuant to FOIA Exemption (b)(7)(A) . . ., which permits the
withholding of records or information compiled for law enforcement purposes
to the extent that production of law enforcement records or information could
reasonably be expected to interfere with law enforcement proceedings, and
the fugitive disentitlement doctrine.
Id. at 2 (emphasis added).
In support of the SOP, Defendant submits the Declaration of its Deputy FOIA Officer,
Fernando Pineiro (“Pineiro”), who attests that the SOP provides the only practices and
policies Defendant employs in order to determine whether documents concerning fugitive
aliens should be withheld. Pineiro Decl. [#72-1] ¶ 4. He affirms the SOP’s provision that
“categorical withholding based on the alien’s fugitive status does not apply” to referrals from
other agencies. Id. ¶¶ 4, 6. Mr. Pineiro further explains that the statement that FOIA
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referrals from other agencies are processed “in the ordinary course” means that the agency
looks to the FOIA regulations to determine whether the requested records should be
released, or whether they are exempt from release. Id. ¶ 6. Accordingly, Mr. Pineiro states
that “there is no special policy or practice that applies to such requests [that are referred
from other DHS components].” Id.
IV. Analysis
Plaintiff seeks leave to take Defendant’s Rule 30(b)(6) deposition regarding the
implementation and effect of the SOP. Motion [#69]. Rule 30(b)(6) expressly permits a
party to notice the deposition of “a governmental agency.” Fed. R. Civ. P. 30(b)(6).
However, the District Judge denied without prejudice Plaintiff’s previous request to take
such a deposition, finding that it was unnecessary at the time. Order [#51] at 2. The Order
advised Plaintiff that she could renew the motion “for good cause.” Id. As grounds for the
present request, Plaintiff states that Defendant’s interrogatory responses and the SOP do
not sufficiently explain fundamental details about the scope of the fugitive alien doctrine that
Plaintiff must ascertain prior to filing her anticipated motion for summary judgment.2 Motion
[#69] at 7, 10.
As an initial matter, the Court is not persuaded by Defendant’s assertion that Plaintiff
has failed to explain how the discovery she seeks relates to her claim for declaratory and
injunctive relief. See Response [#72] at 14. Plaintiff seeks the following relief:

2

As Defendant points out, the District Judge denied without prejudice Plaintiff’s previous
request for a Rule 30(b)(6) deposition and stated that “the Court would strongly prefer that any
request for renewal come in the form of a Rule 56(d) argument and declaration included in a
summary judgment response . . . .” Order [#51] at 2-3. However, Plaintiff represents that she plans
to file an affirmative motion for summary judgment, to which Rule 56(d) – which pertains to a
nonmovant – does not apply.

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Declare that defendant ICE’s stated “practice” of denying access to records
otherwise obtainable under the FOIA process pertaining to persons it deems
to be “fugitive alien FOIA requesters” is in violation of the FOIA; [and]
Permanently enjoin ICE’s stated “practice” of denying access to records
otherwise obtainable under the FOIA process pertaining to persons it deems
to be “fugitive alien FOIA requesters[.]”
Am. Compl. [#32] at 9. Plaintiff’s request to conduct a Rule 30(b)(6) deposition is for the
purpose of clarifying the scope of Defendant’s “practice” in order to analyze its legality and
gather evidence to support Plaintiff’s claim for relief. See generally Motion [#69]. Thus, it
is readily apparent that Plaintiff has explained how the discovery she seeks is related to the
relief sought. The Court is similarly unpersuaded by Defendant’s argument that further
factual development – specifically, permitting a Rule 30(b)(6) deposition – is unnecessary
because Plaintiff’s claim presents a purely legal question, namely, “whether or not the
practice set forth in the SOP is invalid under FOIA.” Response [#72] at 11. Plaintiff is
seeking information regarding the scope of the practice, which is a factual inquiry.
Next, in a discovery hearing on September 8, 2017, the Court instructed the parties
to brief the issue of who will ultimately carry the burden of proof on Plaintiff’s claim. The
parties disagree on the burden of proof issue. Plaintiff argues that once she establishes
that there is a “pattern and practice” of FOIA violations, the burden shifts to the government
to establish by a preponderance of the evidence that the practice falls under a FOIA
exemption. Motion [#69] at 14. Defendant argues that Plaintiff has not provided sufficient
legal authority in support of her argument, and then contends that Plaintiff not only has to
prove a “pattern and practice” constituting an ongoing failure to abide by FOIA, but that she
also must show “that there is ‘no set of circumstances’ in which the challenged practice
might be applied consistent with the agency’s statutory authority.” Response [#72] at 12
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(citing Scherer v. USFS, 653 F.3d 1241, 1243 (10th Cir. 2011)). As the issue before the
Court is whether to permit Plaintiff to take Defendant’s Rule 30(b)(6) deposition, the Court
does not find it necessary to resolve with finality the issue of burden of proof at this time.
Rather, for the purposes of this Motion [#69], the Court merely notes that both sides
contend that Plaintiff bears at least part of the burden of proof, to the extent that Plaintiff
must establish that there is a “pattern and practice” of FOIA violations.
Hence, the Court proceeds to examine the parties’ remaining arguments about the
need for the Rule 30(b)(6) deposition. The Court first notes that it is unclear how Plaintiff
could attempt to gather evidence related to Defendant’s alleged “pattern and practice” of
FOIA violations without conducting discovery. Given Defendant’s concession regarding
Plaintiff’s at least partial burden of proof, permitting such discovery is reasonable. As to
the Rule 30(b)(6) deposition sought by Plaintiff, Defendant argues that a deposition is
unnecessary because the other discovery Defendant has provided to Plaintiff has
sufficiently explained Defendant’s practice. See Response [#72] at 2. For the reasons
discussed below, the Court finds that the discovery previously provided to Plaintiff is
insufficient, at least in part.
First, Plaintiff argues that the SOP is vague regarding the agency’s applicable
authority when withholding documents. Plaintiff points out that the SOP states that
Defendant
may categorically withhold the fugitive’s law enforcement records or
information pursuant to FOIA Exemption (b)(7)(A) . . ., which permits the
withholding of records or information compiled for law enforcement purposes
to the extent that production of law enforcement records or information could
reasonably be expected to interfere with law enforcement proceedings, and
the fugitive disentitlement doctrine.
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SOP [#60-2] at 2 (emphasis added). Plaintiff argues that “[t]he (b)(7)(A) exception is a
proper FOIA exception, if correctly applied – but the ‘fugitive entitlement doctrine’ is not.”
Motion [#69] at 12. Thus, Plaintiff contends that a Rule 30(b)(6) deposition is necessary
to ascertain “under what circumstances [Defendant] relies on the ‘fugitive disentitlement
doctrine’ (per the SOP), versus when it relies on the (b)(7)(A) exception.” Id. at 16.
Defendant responds that “[u]nder the plain language of the SOP, there is no instance in
which [Defendant] may rely on the fugitive disentitlement doctrine ‘versus’ exemption 7(A).”
Response [#72] at 17. Mr. Pineiro attests: “[T]here is never a situation in which [Defendant]
would deny a fugitive alien’s FOIA request on the basis [of] the fugitive disentitlement
doctrine but not FOIA Exemption 7(A).” Pineiro Decl. [#72-1] ¶ 5. Moreover, the Court
notes that the plain conjunctive language of the SOP (“and the fugitive disentitlement
doctrine”) makes Defendant’s explanation logical and reasonable.
Thus, from the plain language of the SOP and Mr. Pineiro’s supporting statement,
it appears that the agency applies both the (b)(7)(A) exception and the fugitive alien
doctrine to justify withholding certain documents. This is a clear answer to Plaintiff’s
question regarding whether Defendant applies the (b)(7)(A) exception “versus” the fugitive
alien doctrine. Plaintiff has not made a showing that Defendant has acted in bad faith and
that the affidavit can therefore be ignored. See Scudder, 25 F. Supp. 3d at 50. The Court
therefore declines to permit Plaintiff to inquire about this issue in a Rule 30(b)(6) deposition.

Second, Plaintiff argues that Defendant has not fully explained in the SOP or
interrogatory responses its practice of processing FOIA requests that are referred from
other DHS “components.” Motion [#69] at 11-12. The SOP provides: “Referrals are
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processed in the ordinary course and categorical withholding based on the alien’s fugitive
status does not apply.” SOP [#60-2] at 1. Plaintiff contends that, because Defendant’s
practice regarding such “ordinary course” processing is undefined, the following key
question remains unanswered: “Does [Defendant] continue to deny FOIA requests ‘from
or on behalf of fugitives’ when the FOIA request was initially directed to a sister agency,
rather [than] directly to ICE?” Id. at 11. Mr. Pineiro’s affidavit explains that the “ordinary
course” means that the agency looks to the FOIA regulations to determine whether the
requested records should be released, or whether they are exempt from release. Pineiro
Decl. [#72-1] ¶ 6. This is a reasonable explanation of the phrase “ordinary course.”
Nevertheless, the Court takes issue with a different aspect of this language. The
addition of the word “categorical” in the phrase “categorical withholding does not apply”
makes the phrase’s meaning somewhat ambiguous. “Categorical” means “absolute,” or
“unqualified.” Categorical, MERRIAM-WEBSTER (2018). Saying that documents will not be
withheld “categorically” leaves open the possibility that some documents could be withheld
based on an alien’s fugitive status even when the FOIA request has been referred from
another agency. On the other hand, Mr. Pineiro’s affidavit states that “there is no special
policy or practice that applies to such [referred] requests,” implying that the fugitive alien
doctrine is never applied to referred FOIA requests. Pineiro Decl. [#72-1] ¶ 6. Thus, it
appears to the Court that there may be inconsistency between Mr. Pineiro’s affidavit and
the language of the SOP.
Additionally, as Plaintiff points out, the SOP language and Mr. Pineiro’s affidavit
appear to create a dual standard. See SOP [#60-2] at 1; Pineiro Decl. [#72-1] ¶¶ 4, 6.
Specifically, it seems that Defendant applies the fugitive alien doctrine to direct requests,
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but may or may not apply it to referrals (based on the use of the word “categorical,” as
explained above). Thus, the heart of Plaintiff’s remaining inquiry related to referred FOIA
requests is the following: “[H]ow can a statutory FOIA exception . . . be applied to reach
opposite results as to the same document held by the same agency, depending on which
agency received the original request?” Motion [#69] at 12. Defendant argues that the
SOP and Mr. Pineiro’s affidavit clarify the rationale behind its practices. For example, the
SOP states that “requests submitted directly to ICE . . . are more likely to implicate law
enforcement equities than requests for portions of A-files referred to ICE.” SOP [#60-2] at
1 (emphasis added). Mr. Pineiro adds that “referrals predominantly involve requests for
A-files.” Pineiro Decl. [#72-1] ¶ 6. However, these explanations do not entirely resolve the
issue. Rather, the phrases “more likely” and “predominantly” both indicate that there may
be a scenario where a request referred from another agency does implicate law
enforcement equities and does not simply involve a request for an A-file. Thus, the Court
concludes that Plaintiff should be entitled to inquire in a Rule 30(b)(6) deposition of
Defendant regarding the circumstances under which such a request could be treated
differently from an identical request submitted directly to ICE.
V. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#69] is GRANTED in part and DENIED
in part. The Motion [#69] is granted to the extent that Plaintiff seeks information about the
following: the inconsistency between the SOP and Mr. Pineiro’s affidavit regarding how
referrals from other DHS components are handled with respect to the fugitive alien

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doctrine; whether identical FOIA requests can and are treated the same or differently
depending on whether they are initially sent to ICE, another DHS component, or both; and
if the requests are treated differently, the agency’s explanation for such treatment.
Defendant shall provide a Rule 30(b)(6) deponent to testify on these topics on a mutually
agreeable date and time, for a period of no longer than 90 minutes. The Motion [#69] is
denied in all other respects.

Dated: June 21, 2018

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