Stevens v. U.S. Immigration and Customs Enforcement

Filing 80

MEMORANDUM Opinion and Order. The court denies ICE's cross-motion for summary judgment on the adequacy of its search and denies in part ICE's cross-motion for summary judgment that it has properly withheld information under FOIA Exemptions 5, 6, and 7(C) 64 . The court orders ICE to produce the responsive documents it located in its search of ERO and conduct a limited search of the Law Enforcement Support Center records. Concerning redactions to "statement of the case" and "facts" sections of finalized USC Claims memos under Exemptions 5, 6, and 7(C), the court directs ICE to reexamine the documents and, within 21 days, either produce additional material consistent with the principles articulated in this opin ion or provide a supplemental Vaughn index and affidavit that address in detail the concerns the court has raised. The court reserves judgment on all other issues. If the court is incorrect that Stevens does not seek the "legal analysis" and "conclusion and recommendation" sections of finalized USC Claims memos, she must notify the court within 21 days and show cause why she needs these sections for her research. Plaintiff's motion for summary judgment 54 is denied without prejudice. Signed by the Honorable Rebecca R. Pallmeyer on 1/9/2020. Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACQUELINE STEVENS,
Plaintiff,
v.
U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT,
Defendant.

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Case No. 17 C 2853
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Jacqueline Stevens is a professor of political science and director of a
"Deportation Research Clinic" at Northwestern University. (Compl. [1] ¶ 4.) Professor Stevens
has requested certain records from defendant, U.S. Immigration and Customs Enforcement
("ICE"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552; in this action, Stevens
challenges the adequacy of the government's response to her FOIA request. In response to an
earlier motion for summary judgment, this court directed the government to submit a supplemental
Vaughn index—a document setting out the bases for ICE's redactions in a representative sample
of documents. ICE submitted the supplemental Vaughn index in March 2019, and both sides now
seek summary judgment on the issue of the adequacy of ICE's search and production. As
explained here, the court concludes ICE has not established that its search was adequate or that
it has properly withheld information under certain exemptions to the Freedom of Information Act,
and therefore denies ICE's cross-motion in part. The court reserves judgment on all other issues
pending the parties' compliance with various directives that could obviate the need for further
rulings.
BACKGROUND
The parties' summary judgment submissions support the following facts.

ICE is a

component of the U.S. Department of Homeland Security ("DHS") and an agency of the United

States within the meaning of 5 U.S.C. § 552(f)(1). (ICE Oct. 2019 L.R. 56.1 Stat. [67] ¶ 36.) DHS
administers and enforces laws relating to immigration and naturalization. (See id. ¶ 37.) "ICE is
the principal investigative arm of DHS and is tasked with preventing any activities that threaten
national security and public safety by, among other things, investigating individuals who may be
present in the United States illegally." (Id. ¶ 38.) The parties' FOIA dispute centers on what
Stevens calls "USC Claims Memos." ICE attorneys, working with ICE officers and agents, prepare
a USC Claims Memo whenever ICE encounters an individual who makes a claim to U.S.
citizenship or has certain indicia of U.S. citizenship. (Stevens Mem. in Supp. of Mot. for Summ.
J. ("Stevens Mot.") [55], 8; see ICE Oct. 2019 L.R. 56.1 Stat. ¶¶ 40-41.)1 Each USC Claims Memo
"contain[s] a factual examination and legal analysis of the [citizenship] claim." (ICE Oct. 2019
L.R. 56.1 Stat. ¶ 40.) It also contains "a recommended course of action regarding removal
proceedings, in particular whether the agency should initiate, continue, or move to terminate the
actual or contemplated removal proceedings based on the facts available to the agency at the
time." (Id. ¶ 42.)
The USC Claims Memos are prepared in order "to prevent ICE personnel from
inadvertently detaining a U.S. citizen and/or initiating or continuing removal proceedings against
a citizen." (Id. ¶ 41.) For example, the legal analysis in a USC Claims Memo "must indicate
whether" the evidence "strongly suggests that the individual is a U.S. citizen or his or her claim to
U.S. citizenship is credible on its face." (ICE Directive 16001.2, Ex. 1 to Decl. of Rhonda Dent in
Supp. of ICE Cross-Mot. for Summ. J. [67-1], ¶ 5.1(2)(b)(1).) If the legal analysis so indicates,

1

According to ICE, the following are individuals "encountered by ICE" for whom
USC Claims Memos are prepared: "(1) individuals currently in removal proceedings (either before
ICE or the Department of Justice Executive Office for Immigration Review); (2) individuals
arrested and taken into ICE custody pursuant to the agency's civil immigration authorities; and (3)
individuals subject to ICE immigration detainers following their release from criminal custody of
another law enforcement agency." (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 48.) According to Stevens,
ICE must prepare USC Claims Memos after it encounters any "individuals bearing indicia of U.S.
Citizenship, not just [individuals falling within] these three categories." (Stevens Nov. 2019 L.R.
56.1 Resp. [74-1] ¶ 48.)

2

ICE is required to take certain actions, such as canceling an immigration detainer if ICE has
lodged one against the claimant or "immediately release[ing]" a claimant who is in custody.
(Id. ¶ 5.2(4)(a).) As discussed in more detail below, Stevens challenges the redactions ICE made
to final versions of USC Claims Memos that were responsive to her FOIA request.
A.

ICE Directive 16001.2
In November 2015, ICE issued a Directive that "establishes ICE policy and procedures for

ensuring that the potential U.S. citizenship of individuals encountered by [ICE] officers, agents,
and attorneys is immediately and carefully investigated and analyzed."

(ICE Directive

16001.2 ¶ 1.) The Directive provides, in relevant part:
ICE personnel must assess the potential U.S. citizenship of an individual
encountered by ICE if the individual makes or has made a claim to U.S. citizenship,
as well as when certain indicia of potential U.S. citizenship, as identified in this
Directive, are present in a case even if the individual does not affirmatively make
a claim to U.S. citizenship.
ICE Directive 16001.2 ¶ 2.
"Regardless of the citizenship-claim trigger (affirmative claim or indicia), ICE documents
these citizenship claims via alert emails to shared inboxes maintained by two ICE program offices:
the Office of the Principal Legal Advisor ("OPLA") and Enforcement Removal Operations ("ERO").
(ICE Oct. 2019 L.R. 56.1 Stat. ¶ 39.) Sometimes, ICE receives citizenship claims through a
telephone hotline operated by ERO's Law Enforcement Support Center ("LESC"), whose
responsibilities include investigating such claims.

(See Stevens Aug. 2019 L.R. 56.1 Stat.

[56] ¶¶ 16-18.) ICE and the Law Enforcement Support Center created the hotline "for detained
individuals to call if they believe they are U.S. citizens." (Id. ¶ 18.) ICE asserts that the public
can also call the hotline "with concerns." (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 62.) When the Law
Enforcement Support Center receives a citizenship claim through the hotline, it must
"immediately . . . forward[] [the caller's information] to the ERO field office victim/witness email
inbox with the specific subject heading of 'Immediate review needed: USC claim.'" (Stevens Aug.
2019 L.R. 56.1 Stat. ¶ 19.) The court presumes that review must be "immediate" because the

3

claimant has been detained.
Under ICE Directive 16001.2, OPLA attorneys must prepare a USC Claims Memo
concerning every citizenship claim ICE receives. (See ICE Oct. 2019 L.R. 56.1 Stat. ¶ 40; ICE
Directive 16001.2 ¶ 5.1(2).) As noted above, each memorandum contains "a legal analysis of
the . . . claim based on facts available to the agency at the time." (ICE Oct. 2019 L.R. 56.1
Stat. ¶ 42.) It also contains "a recommended course of action regarding removal proceedings."
(Id.) "The memorandum must be clearly annotated as containing pre-decisional, privileged
attorney-client communication, attorney work product, and sensitive personally identifiable
information." (ICE Directive 16001.2 ¶ 5.1(2)(c).) After completing a USC Claims Memo, the
attorney within the Office of Principal Legal Advisor must "submit [it] for review to [ERO
headquarters ("ERO HQ")] and the Immigration Law and Practice Division . . . of OPLA, who
decide either to concur with the attorney's conclusion and recommendation . . . or to decline to
concur and request alternate courses of action." (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 44; see ICE
Directive 16001.2 ¶¶ 5.1(2)(d), 5.1(3).) "In the event [ERO HQ] or [the Immigration Law and
Practice Division] require more information or further analysis, the OPLA attorney and an
[Immigration Law and Practice Division] attorney work together to address those concerns." (ICE
Oct. 2019 L.R. 56.1 Stat. ¶ 44.) "Once [ERO HQ] and the [Immigration Law and Practice Division]
reach a decision, the memorandum is finalized . . . ." (Id. ¶ 45.) A USC Claims Memo can be
updated after ERO HQ and the Immigration Law and Practice Division decide on a course of
action, such as initiating, continuing, or moving to terminate a removal proceeding. (See ICE
Directive 16001.2 ¶ 5.1(2)(e).)
B.

Stevens' FOIA Request
Stevens submitted her FOIA request to ICE on February 13, 2017. (See Stevens February

2017 Email, Ex. 2 to Decl. of Fernando Pineiro in Supp. of ICE Cross-Mot. for Summ. J. [67-2],
1.) She sought "all correspondence on the detention or removal proceedings for people claiming
or proving U.S. citizenship since January 1, 2017. This request includes but is not limited to email

4

received by or sent to an email address established by ICE for the purpose of assessing claims
of U.S. citizenship." (Id.) In addition, Stevens sought "all correspondence as well as attachments
and referenced reports, notes, text messages, or any other information maintained in any medium
associated with" these U.S. citizenship claims. (Id.) 2 Stevens filed this lawsuit after ICE reported
that it could not process her request within the statutory time limit. (See Feb. 2019 Order [40], 1.)
That delay is no longer at issue; ICE processed the request while this action was pending. (See
id. at 2.) ICE collected 6,042 pages of responsive records. (ICE Oct. 2019 L.R. 56.1 Stat. ¶ 59.)
It released 4,841 pages with partial redactions, withheld 746 pages in full, released 280 pages in
full, withheld 158 pages as duplicates, and "referred 17 pages to other agencies for processing
and release." (Id.) 3
ICE moved for summary judgment in April 2018, asserting that it had conducted an
adequate search for responsive records and had not improperly withheld any information from
Stevens. (See Feb. 2019 Order 2.) Pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
ICE concurrently filed an index explaining the bases for its redactions in an agreed representative
sample of documents. (See Feb. 2019 Order 2.) The sample comprised the first 150 pages of
two productions but, as the court explained in its previous order, it happened not to contain any
finalized—as opposed to draft—USC Claims Memos. (See id. at 2-3.) Because ICE's redactions
to finalized USC Claims Memos had become the main point of contention between the parties,
the court directed ICE to "prepare a supplemental Vaughn index and affidavit that specifically
address finalized USC Claims Memos." (Id. at 4-6.)

2

The parties appear to agree that Stevens seeks responsive materials only through
mid-May 2017, when ICE finished processing her FOIA request. (See Decl. of Fernando Pineiro
in Supp. of ICE Cross-Mot. for Summ. J. ("Pineiro Decl.") [67-2] ¶ 23; see generally Stevens Reply
in Supp. of Mot. for Summ. J. & in Opp. to ICE Cross-Mot. for Summ. J. ("Stevens Reply") [73].)
3

The court is uncertain whether this means that ICE forwarded 17 of its own
documents to other agencies, or that ICE directed Stevens to obtain 17 documents from other
agencies having custody of them. Neither side here has explained whether the "other agencies"
have released these 17 pages to Stevens, but Stevens does not appear to be seeking any relief
concerning these pages.

5

After ICE complied with that directive, both parties moved for summary judgment. Plaintiff
Stevens again challenges ICE's redactions to finalized USC Claims Memos. She also challenges,
for the first time, redactions to other documents and the adequacy of ICE's search. Stevens asks
the court to "order ICE to conduct an adequate search" and "enjoin [its] improper withholdings in
violation of [FOIA]." (Stevens Mot. 19.) ICE, on the other hand, doubles down on its contention
that it "conducted a reasonable search and did not improperly withhold any information," and asks
the court to enter summary judgment in its favor. (ICE Mem. in Supp. of Cross-Mot. for Summ. J.
("ICE Cross-Mot.") [69], 1.)
DISCUSSION
Summary judgment is proper if the moving party "shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P.
56(a). When ruling on a motion for summary judgment, a court views the record in the light most
favorable to the non-moving party and draws all reasonable inferences in that party's favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On cross-motions for summary
judgment, a court examines the record and draws "all reasonable inferences in the light most
favorable to the party against whom the motion was filed." Yeatts v. Zimmer Biomet Holdings,
Inc., 940 F.3d 354, 358 (7th Cir. 2019).
"FOIA requires a federal agency upon request to disclose records in its possession,
subject to nine exemptions." Enviro Tech Int'l, Inc. v. U.S. Envtl. Prot. Agency, 371 F.3d 370, 374
(7th Cir. 2004) (citing 5 U.S.C. § 552(a), (b)). "Disclosure is required unless the requested record
is clearly exempted from disclosure by the statute." Enviro Tech, 371 F.3d at 374. Because
disclosure is the "dominant objective" of FOIA, courts are to construe the exemptions narrowly.
Patterson v. Internal Revenue Serv., 56 F.3d 832, 836 (7th Cir. 1995) (quoting Dep't of Air Force
v. Rose, 425 U.S. 352, 361 (1976)); see also Enviro Tech, 371 F.3d at 374; Solar Sources, Inc.
v. United States, 142 F.3d 1033, 1037 (7th Cir. 1998) ("While we must . . . give 'meaningful reach
and application' to the Exemption . . . we must also take care to construe the Exemption narrowly

6

given the general policy favoring disclosure . . . ." (quoting John Doe Agency v. John Doe Corp.,
493 U.S. 146, 152 (1989)). It is the government's burden to prove "by a preponderance of the
evidence that a withheld document falls within one of the exemptions." Enviro Tech, 371 F.3d at
374. To determine whether the government has met that burden, the court conducts a de novo
review of the record. See 5 U.S.C. § 552(a)(4)(b). The government is entitled to summary
judgment "only if 'the agency affidavits describe the documents withheld and the justifications for
nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld
is logically within the domain of the exemption claimed.'" Patterson, 56 F.3d at 836 (quoting PHE,
Inc. v. Dep't of Justice, 983 F.2d 248, 250 (D.C. Cir. 1993)).
A.

Adequacy of Search
In opposing ICE's first motion for summary judgment, Stevens stated that she "does not

challenge, and expressly stipulates to, entry of partial summary judgment on . . . the adequacy of
ICE's search." (Stevens Opp. to ICE Mot. for Summ. J. [29], 2 n.1.) Stevens has changed her
position, however; she now argues that the search was inadequate. Stevens contends she has
not waived the argument (see Stevens Mot. 17-19), and ICE does not so much as mention waiver,
so the court will entertain this challenge.
To prevail on summary judgment concerning this issue, ICE "must show that there is no
genuine issue of material fact about the adequacy of its records search." Rubman v. U.S.
Citizenship & Immigration Servs., 800 F.3d 381, 387 (7th Cir. 2015). To this end, it "must show
that it made a good faith effort to conduct a search for the requested records, using methods
which can be reasonably expected to produce the information requested." Id. (quoting Oglesby
v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see also Henson v. Dep't of Health &
Human Servs., 892 F.3d 868, 875 (7th Cir. 2018). A court presumes that the agency acted in
good faith. See Henson, 892 F.3d at 875; Rubman, 800 F.3d at 387.4 That presumption can be

4

It is unclear whether the presumption applies from the outset, or whether it applies
only to affidavits that an agency has submitted to support the adequacy of its search. Henson,

7

supported by "reasonably detailed," non-conclusory affidavits describing the agency's search.
Henson, 892 F.3d at 875 (stating that the affidavits must, among other things, describe "the kind
of search performed by the agency" and "aver that all files likely to contain responsive documents
were searched").
A FOIA requester can respond to an agency's affidavit by offering "'countervailing
evidence' as to the adequacy of the agency's search." Rubman, 800 F.3d at 387 (quoting Iturralde
v. Comptroller of Currency, 315 F.3d 311, 314 (D.C. Cir. 2003)). "The requester must show 'some
reason to think that the document would have turned up if the agency had looked for it.'"
Patterson, 56 F.3d at 841 (quoting Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir.
1985)). Because "neither the requester nor the court know the content of the agency's records,
this is a low bar." Rubman, 800 F.3d at 387. Ultimately, "the question at summary judgment is
not whether the agency might have additional, unidentified responsive documents in its
possession." Rubman, 800 F.3d at 387. "Rather the court need only determine whether the
search itself was performed reasonably and in good faith." Id. But "if a review of the record raises
substantial doubt [about the adequacy of the search], particularly in view of well defined requests
and positive indications of overlooked materials, summary judgment [in favor of the agency] is
inappropriate." Rubman, 800 F.3d at 387 (quoting Iturralde, 315 F.3d at 314).
Stevens argues that ICE's search was inadequate, first, because the Enforcement
Removal Operations unit did not conduct an independent search. Rather, after ICE's FOIA office
identified both the Office of Principal Legal Advisor and ERO as reasonably likely to possess

892 F.3d at 875, and Rubman, 800 F.3d at 387, imply the former. The court in Rubman, however,
cites SafeCard Services, Inc. v. Securities and Exchange Commission, 926 F.2d 1197 (D.C. Cir.
1991), in its discussion of the presumption. There, the D.C. Circuit stated,
"Agency affidavits are accorded a presumption of good faith." Id. at 1200 (emphasis added); see
also Matter of Wade, 969 F.2d 241, 249 n.11 (7th Cir. 1992) ("In the face of government affidavits
made in good faith, speculation would not defeat" an agency's motion for summary judgment on
the adequacy of its search). For the reasons discussed below, the distinction does not affect the
outcome in this case.

8

responsive documents, only OPLA—specifically, its Field Legal Office and Immigration and Law
Practice Division—conducted a search. (See Stevens Mot. 6; Stevens Aug. 2019 L.R. 56.1
Stat. ¶ 11.) Stevens believes that ERO likely has responsive documents unique from those that
the Office of Principal Legal Advisor produced because ERO plays a different role in processing
USC Claims Memos. ERO HQ, for example, reviews the memoranda and decides whether the
agency should implement the recommendations therein. (See, e.g., Stevens Reply [73], 5-6.) In
addition, the Law Enforcement Support Center—which operates the citizenship claims hotline—
is located within ERO, not OPLA. (See Stevens Mot. 13; Stevens Reply 2-5.)
To support the adequacy of ICE's search, ICE's Acting FOIA Officer, Fernando Pineiro,
submitted an affidavit in which he explained that ERO uses just one email inbox "for initial USC
claims alerts, for review and concurrence on USC claims memoranda, and for documentation of
USC claims memoranda." (Pineiro Decl. ¶ 27.) Mr. Pineiro also explained that the inbox is "the
only place where ERO stores USC claims memo[s]." (Id.) And he stated that ERO "reviewed"
that inbox and determined that its contents would not "have unique responsive emails and
accompanying attachments . . . that were different from the responsive emails from [the Office of
the Principal Legal Advisor's] USC Claims inbox and/or [Immigration Law and Practice Division]
attorneys." (Id. ¶ 28.) Regarding the ERO's Law Enforcement Support Center, Mr. Pineiro
explained that "[i]f the LESC receives an inquiry regarding a USC claim, [it] emails the inquiry to
the appropriate ERO field office." (Pineiro Decl. ¶ 30.) The ERO field office, in turn, emails the
inquiry to two inboxes for USC claims: one maintained by ERO and the other by the Office of the
Principal Legal Advisor. (Id.) According to Mr. Pineiro, "any LESC information" is therefore
"captured by" the Office of the Principal Legal Advisor, which produced responsive documents to
Stevens. (Id.) Mr. Pineiro also stated that "the LESC only received four calls during the timeframe
in question, all of which ended up triggering USC claim memos." (Id.)
Although the issue is close, the court concludes that it cannot properly grant summary
judgment in ICE's favor concerning the adequacy of its search. "To support an agency's assertion

9

that it conducted a reasonable search," an affidavit must, among other things, "aver that all files
likely to contain responsive documents were searched." Henson, 892 F.3d at 875. ICE's affidavit
does not do so. Rather, it states that the ERO and LESC do have responsive documents—but
that ICE did not search those divisions because it determined that the searches would not yield
unique responsive documents. Later, in a reply, ICE clarified that "ERO searched for responsive
records and determined during that search that it did not possess any [unique] responsive
documents." (ICE Reply [79], 2.) This statement, however, still falls short of an averment that
ICE searched "all files likely to contain responsive documents." Henson, 892 F.3d at 875. It also
makes the court wonder why ICE did not simply produce the duplicates it purportedly located or
explain why it would be burdensome to do so—especially because it appears that ICE did include
duplicates in its production of documents maintained by the Office of Principal Legal Advisor.
(See, e.g., Stevens Mot. 8 (discussing Stevens' efforts to de-duplicate that production).)
Stevens, for her part, explains how these three units—the Office of Principal Legal
Advisor, Enforcement Removal Operations and the ERO Law Enforcement Support Center—
serve different functions, and argues that those divisions might have different documents as a
result. Moreover, according to a regulation Stevens cites, the Law Enforcement Support Center
stores information concerning U.S. citizenship claims in a database that is separate from the
LESC's email system. See Privacy Act of 1974; Immigration and Customs Enforcement (ICE)007 Law Enforcement Support Center (LESC) Alien Criminal Response Information Management
(ACRIMe) System of Records, 73 Fed. Reg. 74739, 74741 (Dec. 9, 2008). ICE contends that
Stevens is merely speculating about the database's contents, but it does not expressly assert that
the database lacks responsive, non-exempt information.

(See ICE Reply 4.) Significantly,

Stevens' FOIA request can fairly be read as requesting responsive information contained in that
database. (See Stevens February 2017 Email (seeking "any other information maintained in any
medium associated with" U.S. citizenship claims).) The court recognizes that when an agency
provides a "reasonably detailed" and "nonconclusory" affidavit recounting its search efforts, a

10

FOIA requestor's "speculation that other documents might exist" "does not undermine the
reasonableness of the agency's search." Moore v. Fed. Bureau of Investigation, 366 F. App'x
659, 661 (7th Cir. 2010); see also Rubman, 800 F.3d at 387 (the court's inquiry on summary
judgment "is not whether the agency might have additional, unidentified responsive documents in
its possession"). But Stevens has articulated specific reasons why additional documents "would
have turned up if [ICE] had looked for" them. Patterson, 56 F.3d at 841 (quoting Miller , 779 F.2d
at 1383)). At this point neither Stevens nor the court has solid information about what ICE's
records contain. See Rubman, 800 F.3d at 387. For these reasons, the court concludes that
Stevens has identified "positive indications of overlooked materials" that "raise[] substantial doubt"
about the adequacy of ICE's search. Id. (quoting Iturralde, 315 F.3d at 314). Summary judgment
in ICE's favor, therefore, is inappropriate. 5
That said, ICE will not be required to conduct expansive searches of ERO and its Law
Enforcement Support Center.

Because ICE states that ERO has already "searched for

responsive records," ICE can satisfy the court's concerns by producing all responsive documents
located in that search, even if they are identical to documents OPLA produced. (ICE Reply 2.)
The court also orders ICE to search the Law Enforcement Support Center records, including the
database Stevens identified, for documents concerning the "four calls" ICE says it received
"during the timeframe in question." (Pineiro Decl. ¶ 30.)
B.

Exemptions
In addition to challenging the adequacy of ICE's search, Stevens argues that ICE

improperly redacted and/or withheld information under FOIA Exemptions 5, 6, and 7(C).6 She

5

Because the court's ruling is based on the reasons just articulated, it does not
address Stevens' other arguments on the issue of adequacy. These arguments include Stevens'
contention, based on information she received through a separate FOIA request, that ICE created
more USC Claims Memos in the relevant timeframe than it produced to Stevens.
6

Stevens does not challenge ICE's redactions or withholdings under FOIA
Exemption 7(E), so the court does not address them. (See ICE Cross-Mot. 25-27; Supp. Vaughn
Index, Ex. 1 to Pineiro Decl. [67-2], 10).

11

also contends that ICE failed to segregate non-exempt material. Stevens' arguments concern
three categories of documents: emails, attachments, and finalized USC Claims Memos.
Regarding emails, Stevens' position is again inconsistent with the one she took in opposing ICE's
first motion for summary judgment. (See Stevens Opp. to ICE Mot. for Summ. J. 2 n.1 ("expressly
stipulat[ing] to" entry of partial summary judgment in ICE's favor on "withholdings in the body of
all emails").) Moreover, Stevens' argument is undeveloped; it ends with an incomplete sentence
describing the relief she seeks. (See Stevens Mot. 17.) Stevens does not respond to ICE's
argument that the court should deny her motion concerning emails on that basis. In addition,
Stevens challenges the email redactions on the ground that "ICE has apparently withheld the
domain names following all email addresses . . . making it impossible to determine whether
recipients of responsive documents were agency employees," and thus calling into question
"ICE's assertion that USC Claims [Memos] are 'for internal use only.'" (Id.) But Stevens does not
challenge ICE's response that "[a] review of every email produced . . . confirmed that citizenship
memoranda were never shared or produced to anyone outside the agency." (ICE Oct. 2019 L.R.
56.1 Stat. ¶ 64.) Finally, Stevens does not respond to ICE's point that she "fail[ed] to identify any
of the specific emails . . . that she believes were not reasonably segregated." (ICE Cross-Mot.
28.) The court, therefore, concludes that Stevens has abandoned her challenge to redactions
and/or withholdings in emails.

For similar reasons, the court concludes that Stevens has

abandoned her challenge to redactions and/or withholdings in attachments. Stevens stated in
her opening motion that she would address ICE's "specific justifications" for such redactions
and/or withholdings in her reply (see Stevens Mot. 17), but she did not do so.
What remains is the parties' central dispute: whether ICE acted properly in redacting
finalized USC Claims Memos nearly in their entirety. Notably, Stevens has produced copies of
what the court understands to be finalized USC Claims Memos that ICE produced to her in
response to a separate FOIA request in 2010. (See 2010 USC Claims Memos, Ex. A to June
2018 Decl. of Jacqueline Stevens [30].)

As Stevens emphasizes, ICE redacted far less

12

information from the memoranda it produced in 2010 than from the memoranda it produced in
response to the FOIA request at issue here. (See Stevens Mot. 5.) Each memorandum produced
in 2010 contains the following sections: (1) "statement of the case," which includes information
concerning the "initial claim" of U.S. citizenship; (2) "facts," which includes information concerning
ICE's factual investigation and the individual's criminal history, if any; (3) "legal analysis"; and (4)
"conclusion and recommendation." (See id. at 4-6; see also, e.g., id. at 8-9, 11-12, 14-17.) As
reflected in its supplemental Vaughn index, the USC Claims Memos that ICE produced in this
case follow the same, or a very similar, format. (See Supp. Vaughn Index 7 (stating that the USC
Claims Memo "template . . . sets forth the facts of the individual case, the relevant legal standards
for USC claims, the attorney's evaluation of evidence and data against the relevant USC law, a
suggested conclusion on the matter of law, and a recommendation for agency action").) In
contrast to the full redactions in its production in this case, back in 2010, ICE redacted all portions
of the "legal analysis" and "conclusion and recommendation" sections, but made just partial
redactions to the "statement of the case" and "facts" sections. (See generally 2010 USC Claims
Memos.)
Significantly, Stevens has not argued here that she is entitled to disclosure of the "legal
analysis" and "conclusion and recommendation" sections that were redacted in the current
production as well as the production in 2010. She does contend that ICE should be required to
release the same type of information in this litigation that it released in 2010. (See, e.g., Stevens
Mot. 5 (arguing that ICE's 2010 production—which "left significant portions of the Facts Sections
unredacted, and the legal analysis reasonably segregated"—"fed into [Stevens'] scholarly and
popular writings" concerning ICE's handling of citizenship claims); id. (stating that Stevens
submitted the present FOIA request "[t]o assess how ICE was responding to U.S. citizenship
claims received after January 2017, and to compare that assessment with records from the
previous administration").) The court assumes, therefore, that Stevens is seeking disclosure only
of the "statement of the case" and "facts" sections. For the following reasons, the court concludes

13

that ICE has not met its burden to prove that these sections are exempt from production in their
entirety.
First, a "withholding agency must supply 'a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and correlating those claims with
the particular part of a withheld document to which they apply.'" King v. U.S. Dep't of Justice, 830
F.2d 210, 224 (D.C. Cir. 1987)(emphasis supplied; citations omitted). ICE's supplemental Vaughn
index does not satisfy this standard because the court cannot determine from the index which
exemptions ICE has applied to various sections of finalized USC Claims Memos, including the
"statement of the case" and "facts" sections. (See Supp. Vaughn Index 6-8 (asserting that
Exemptions 5, 6, and 7(C) apply to approximately 90 pages without specifying the portions of the
memoranda to which they apply or whether there is overlap in the exemptions' application).)
Second, as discussed below, assuming ICE had specified that each of the exemptions
independently applies to the "statement of the case" and "facts" sections, it has not proven by a
preponderance of the evidence that these sections fall within the exemptions. See Enviro Tech,
371 F.3d at 374.
1.

Exemptions 6 and 7(C)

Exemption 6 "excuses the disclosure of 'personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.'"
Henson, 892 F.3d at 878 (quoting 5 U.S.C. § 552(b)(6).) Exemption 7(C) applies to "records or
information compiled for law enforcement purposes" and permits their withholding if release
"could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5
U.S.C. § 552(b)(7)(C). "Exemption 7(C) is more protective of privacy than Exemption 6: The
former provision applies to any disclosure that 'could reasonably be expected to constitute' an
invasion of privacy that is 'unwarranted,' while the latter bars any disclosure that 'would constitute'
an invasion of privacy that is 'clearly unwarranted." U.S. Dep't of Defense v. Fed. Labor Relations
Auth., 510 U.S. 487, 496 n.6 (1994) (quoting § 552(b)(6), (7)(C)). Stevens does not dispute that

14

ICE compiled the relevant documents and information for law enforcement purposes (see
generally Stevens Reply), meaning that ICE need "satisfy only the lower withholding standard
contained in Exemption 7(C)." Stevens v. U.S. Dep't of Homeland Sec., No. 13 C 03382, 2014
WL 5796429, at *6 (N.D. Ill. Nov. 4, 2014) (citing Patterson, 56 F.3d at 838-39). To determine
whether disclosing the redacted information "could reasonably be expected to constitute an
unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(7)(C), a court must weigh the third
parties' private interest in the nondisclosure of the information at issue against "the only relevant
public interest in the FOIA balancing analysis—the extent to which disclosure of the information
sought would 'she[d] light on an agency's performance of its statutory duties' or otherwise let
citizens know 'what their government is up to.'" Fed. Labor Relations Auth., 510 U.S. at 497
(quoting U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773
(1989)).
In its supplemental Vaughn index, ICE reports that it redacted personally identifiable
information under Exemptions 6 and 7(C), including "the names, biometric information, contact
information, immigration history, and/or other identifying information, of third-party individuals."
(Supp. Vaughn Index 6.) ICE also states that it redacted "contextual information around the
[personally identifiable information] that could be used to identify a third party . . . as that
information could be used in conjunction with information found online, news stories, and other
forms of media and internet information to breach personal privacy." (Id.; see also ICE CrossMot. 20 (stating that it redacted, among other things, "case history," under Exemption 6).) Stevens
has made clear, however, that she "does not seek the name, date of birth, full A-Number,7 or
social security number of any subject or third party whose personally identifiable information is
contained in the responsive records." (Stevens Reply 8.) Presumably, Stevens does not seek

7

An A-number, or alien number, "is a unique registration number assigned by
USCIS to a noncitizen of the United States." Yith v. Nielsen, No. 1:14-cv-01875-LJO-SKO, 2019
WL 2567290, at *5 n.6 (E.D. Cal. June 21, 2019).

15

biometric information or contact information, either. What Stevens does want is the factual
context, such as "case history," that ICE has redacted. (See id.) According to Stevens, "case
history" includes, among other things, "immigration and criminal history details." (Id.) Stevens
contends that she cannot adequately challenge ICE's wholesale redaction of this information
without a more detailed Vaughn index. (See id.) The court agrees.
In response to Stevens' separate FOIA request in 2010, ICE appears to have released the
very information it is now withholding. ICE attempts to justify its new approach by arguing that
today, it is easier to find individuals' identities using contextual information. (See Supp. Vaughn
Index 6; Pineiro Decl. ¶ 53 ("With the increase in information available online about criminal
histories, ancestral/genealogy databases, and other sensitive details of USC claimants'
backgrounds, ICE now limits the information that is disseminated in response to FOIA requests
because the detailed histories drafted . . . in USC memoranda can be used to determine the
identity of U.S. citizenship claimants in ICE custody . . . ."); see also ICE Cross-Mot 22 (noting
that the third parties identified in the records did not consent to the release of their personal
information).) To support the broad assertion that information available online today is so different
than it was in 2010 that complete redaction of contextual information is required, ICE offers little:
two cases that state general propositions regarding privacy (both of which predate 2010, see ICE
Cross-Mot. 25) and the opinion of its acting FOIA officer. What this means is that ICE has not yet
persuaded the court that releasing the contextual information Stevens seeks would jeopardize
third-party privacy interests at all.
On the other side of the scale, Stevens argues that when ICE in 2010 released contextual,
factual information from finalized USC Claims Memos, that information "shed[] light on" how ICE
responds to citizenship claims of individuals it encounters. (Stevens Mot. 5; Fed. Labor Relations
Auth., 510 U.S. at 497.) ICE's release of similar information in response to the present FOIA
request would serve the same function, she suggests. (See Stevens Mot. 5.) ICE responds that
releasing "names" and "identifying information" does not serve "the public's interest in

16

understanding" how ICE performs its duties (ICE Cross-Mot. 22), but as noted, Stevens does not
seek release of such information. ICE's contention that third-party privacy interests outweigh any
public interest in disclosure (see id. at 22-23) fails because ICE has not established that the
disclosure Stevens seeks poses a threat to privacy interests.
For these reasons, the court denies ICE's cross-motion for summary judgment that its
redactions under Exemptions 6 and 7(C) to the "statement of the case" and "facts" sections of
finalized USC Claims Memos are appropriate. The court orders ICE to reexamine the finalized
USC Claims Memos and either (1) produce contextual information in the "statement of the case"
and "facts" sections consistent with the principles articulated in this opinion, or (2) provide a
supplemental Vaughn index that describes in more detail the kind of contextual information it is
withholding; states the section of the memoranda in which the information is located; and provides
more specific factual support for the proposition that the risk of disclosing individuals' identities
through the release of contextual information is significantly greater today than it was in 2010.
2.

Exemption 5

"Exemption 5 allows an agency to withhold 'inter-agency or intraagency memorandums or
letters that would not be available by law to a party other than an agency in litigation with the
agency.'" Henson, 892 F.3d at 877 (quoting 5 U.S.C. § 552(b)(5)). It incorporates the attorneyclient privilege, the work-product privilege, and the deliberative process privilege. See id; see
also Enviro Tech, 371 F.3d at 374. The parties address at length whether Exemption 5 applies
to finalized USC Claims Memos, but much of that discussion appears to concern the "legal
analysis" and "conclusion and recommendation" sections.

Because the court does not

understand Stevens to be seeking disclosure of those sections, the court will not address those
arguments. If Stevens is seeking disclosure of those sections, she is directed to notify the court
within 21 days and show cause why she needs them, considering her representations that the
memoranda ICE released in 2010 were sufficient for her research purposes, and her statement
that she seeks to "compare" ICE's then-and-now responses to citizenship claims.

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Separately, ICE's supplemental Vaughn index and briefing invoke Exemption 5 in support
of redactions of the "statement of the case" and "facts" sections. (See Supp. Vaughn Index 6-8
(citing Exemption 5 for redactions to 90 pages of finalized USC Claims Memos); ICE Cross-Mot.
15, 17 (stating that ICE "withheld factual information in the memoranda in accordance with the
work-product doctrine" and the deliberative process privilege).)8 The court is not satisfied that
ICE has provided information sufficient to determine whether the redactions properly fall within
that exemption.

Namely, in asserting that the redacted pages contain work product and

deliberative material, ICE simultaneously indicates that they contain purely factual passages—
that is, passages that lack any "legal evaluation[]" or "commentary" by attorneys. (See Supp.
Vaughn Index 7 (stating that the memoranda "follow[] a set template that sets forth" both "the
facts of the individual case" and "the attorney's evaluation of evidence and data against the
relevant USC law" (emphasis added)).) Even assuming for the sake of argument that the work
product and deliberative process privileges cover attorney recommendations and agency
decision-making reflected in finalized USC Claims Memos, 9 ICE has not adequately explained
why it cannot segregate and produce statements that are purely factual. See Enviro Tech., 371
F.3d at 374-75 (deliberative process privilege "typically does not justify the withholding of purely
factual material . . . but it does apply to . . . factual matters inextricably intertwined with
[predecisional policy discussions]"); Mervin v. Fed. Trade Comm'n, 591 F.2d 821, 826 (D.C. Cir.
1978) (recognizing that "an attorney's appraisal of factual evidence is attorney work-product
exempted from disclosure by exemption 5," but stating that "the government cannot exempt pure
statements of fact from disclosure by calling them attorney work-product"). In addition, the 2010

8

ICE does not state that it withheld factual information under the attorney-client
privilege. (See id. at 12-13.)
9

The court doubts that these privileges apply at all, but as it stated previously, it
does not reach this issue because Stevens does not appear to be seeking disclosure of this
information.

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documents that Stevens provided to the court cast doubt on any argument that the factual content
in finalized USC Claims Memos is "inextricably intertwined with" deliberative information or would,
if produced, reveal attorneys' "tactical and strategic thoughts." Enviro Tech., 371 F.3d at 375;
Mervin, 591 F.2d at 826. Indeed, in the subset of 2010 USC Claims Memos that the court
reviewed, ICE did not redact any information in the "statement of the case" or "facts" sections
under Exemption 5. (See 2010 USC Claims Memos 4-6, 8-9, 11-12, 14-17, 19-21, 23-25, 27-28,
30-32.) ICE has provided no explanation in its supplemental Vaughn index, affidavits, or briefing
why its approach should be any different here.
For these reasons, the court denies ICE's cross-motion for summary judgment on the
adequacy of redactions under Exemption 5 to "statement of the case" and "facts" sections of
finalized USC Claims Memos. The court directs ICE to reexamine the documents and make
disclosures consistent with the principles discussed herein, or provide a supplemental Vaughn
index and affidavit that more adequately explain why ICE cannot or will not make such
disclosures.
CONCLUSION
For the foregoing reasons, the court denies ICE's cross-motion for summary judgment on
the adequacy of its search and denies in part ICE's cross-motion for summary judgment that it
has properly withheld information under FOIA Exemptions 5, 6, and 7(C) [64]. The court orders
ICE to produce the responsive documents it located in its search of ERO and conduct a limited
search of the Law Enforcement Support Center records. Concerning redactions to "statement of
the case" and "facts" sections of finalized USC Claims memos under Exemptions 5, 6, and 7(C),
the court directs ICE to reexamine the documents and, within 21 days, either produce additional
material consistent with the principles articulated in this opinion or provide a supplemental Vaughn
index and affidavit that address in detail the concerns the court has raised. The court reserves
judgment on all other issues. If the court is incorrect that Stevens does not seek the "legal
analysis" and "conclusion and recommendation" sections of finalized USC Claims memos, she

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must notify the court within 21 days and show cause why she needs these sections for her
research. Plaintiff’s motion for summary judgment [54] is denied without prejudice.

ENTER:

Dated: January 9, 2020

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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