Project S. v. ICE, No. 21-08440, 2024 WL 1116164 (S.D.N.Y. Mar. 12, 2024) (Carter, Jr., J.)

Project S. v. ICE, No. 21-08440, 2024 WL 1116164 (S.D.N.Y. Mar. 12, 2024) (Carter, Jr., J.)

Re:  Requests for records concerning detention and deportation of Cameroonian migrants from late 2020 to early 2021

Disposition:  Granting in part and denying in part defendants’ motion for partial summary judgment; granting in part and denying in part plaintiff’s motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  Regarding ICE’s search, the court finds that while “ICE is entitled to some deference as to search locations[,]” “ICE has failed to demonstrate that it conducted a reasonably calculated search of [the office that it did search].”  “ICE’s declarations are devoid of detail as to how a search of [the office] was conducted for Plaintiffs’ Communications Request, or which search terms or custodians were used.”  “ICE’s nondetailed response ‘raises serious doubts as to the completeness of the agency’s search[.]’”  “While Defendants are correct that agencies have discretion to employ search terms, they have not met their burden to establish that their searches were reasonable.”  “Defendants’ submissions are silent as to why certain custodians did not identify which search terms they used, if any, or why in some cases only a custodian’s email was searched, and not their shared drive.”  “Without further information on ICE’s ‘logical explanations for each of the decisions it made as to search terms to be used and how to conduct the searches,’ . . . the Court cannot conclude that ICE’s search was reasonable.”  The court finds similarly regarding DHS, holding that “[a]gencies have broad discretion to select search locations based on their expertise.”  “However, DHS’s lack of detail as to the search terms or methods . . . custodians used in their manual searches is cause for concern.”  “Without further information, the Court cannot determine whether DHS’s searches of these custodians was reasonably calculated to locate relevant documents.”  Finally, the court finds that “State has clearly performed a satisfactory search.”  “It explained why simpler terms were used and employed agreed-upon search terms on custodians.”  “The parties also reached agreement on the relevant offices.”  “Plaintiff has not shown that State’s search was in any way unreasonable.”

• Exemption 3:  The court relates that “ICE withheld identifying spreadsheet data relating to Cameroonian applicants for relief from deportation pursuant to Exemption 3, including the names of detainees, their alien numbers, their birthdates, sex, country of citizenship, criminal charge, the final order from the Immigration Judge, and their appeal status.”  “Plaintiffs only challenge the withholding of columns regarding travel documents pending or expiration, a final order from the Immigration Judge, and their appeal status.”  “ICE cites to privacy concerns under 8 U.S.C. § 1367(a)(2) and 8 C.F.R. § 208.6.”  “Under 8 U.S.C. § 1367(a)(2), no employee or official of the Departments of Justice, State, or Homeland Security may ‘permit use by or disclosure to anyone (other than a sworn officer or employee of the Department, or bureau or agency thereof, for legitimate Department, bureau, or agency purposes) of any information which relates to an alien who is the beneficiary of an application for relief’ under the Violence Against Women Act of 1994 (VAWA) and the Victims of Trafficking and Violence Prevention Act of 2000 (T and U nonimmigrant status for victims of trafficking and other serious crimes).”  “8 C.F.R. § 208.6, implemented through DHS, prohibits disclosure of ‘[i]nformation contained in or pertaining to any application for refugee admission, asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, or protection under regulations issued pursuant to the Convention Against Torture's implementing legislation, records pertaining to any credible fear determination conducted pursuant to § 208.30, and records pertaining to any reasonable fear determination conducted pursuant to § 208.31,’ except under particular circumstances.”  The court finds that “Plaintiffs do not challenge the redaction of personally identifying information such as alien number and name, and without this information, it seems highly unlikely that the inclusion of information regarding the Cameroonians’ travel documents or immigration proceedings would permit a third party to link the identity of an individual to the details of their asylum claims, in violation of § 208.6.”  “As such, ICE has failed to explain why 8 U.S.C. § 1367(a)(2) applies to the requested information, and Exemption 3 does not apply to this information.”  “However, as explained below, this information is properly withheld under Exemption 6.”

• Exemption 5, Deliberative Process Privilege:  The court relates that “ICE withheld certain internal deliberations relating to organization of removal flights as well as internal ICE discussions regarding how to respond to press inquiries.”  “State withheld certain internal deliberations relating to response to Congressional inquiries; deliberations relating to policy issues surrounding sanctions and removals; deliberations relating to interagency discussions around policy issues; and discussion of policy concerns around upcoming removal flights.”  “Plaintiffs only challenge ICE’s redacted discussions between ICE employees regarding logistics for removal flights.”  “The redacted information includes ‘various options for flight departure times and locations, itineraries, landing locations, flight routes, crew duty information and staging locations.’”  The court finds that “ICE has met its burden to redact records regarding flight logistics under Exemption 5.”  “The discussions are pre-decisional as they concern multiple flight options before a final decision was reached.”  “The discussions on flight logistics are also deliberative because they reflect the ‘give-and-take of the consultative process’ and the ‘personal opinions of the writer[s] rather than the policy of the agency.’” 
  
  The court relates that “State redacted email chains regarding an interagency policy call; email chains regarding policy and sanctions issues relating to a removal flight; and email chains regarding a congressional letter and media coverage of removal flights.”  “Plaintiffs challenge email chains regarding policy and sanctions issues relating to a removal flight; and email chains regarding media coverage.”  “State contends the redactions to an email chain regarding an upcoming ICE removal flight to Cameroon are both pre-decisional and deliberate.”  “State argues the email chain is pre-decisional because it predates a final decision on the flight.”  “The email chain is also deliberative because it contains State officials commenting on policy issues related to sanctions and ICE removal orders, and potential responses.”  “This includes a reference to an executive order by President Biden.”  “State believes the deliberations are part of a ‘specific decisionmaking process’ for its approach to the upcoming removal flight.”  “State contends release of the information would chill its internal discussions about policy questions.”  The court finds that “State’s explanation for the ‘Sanctions/Removals’ email thread is sufficient to establish it is pre-decisional and deliberative as it pertains to ‘potential responses’ State considered to policy issues relating to Cameroon, DHS, and ICE.”  “It is properly protected under Exemption 5 as a part of State’s ‘specific decisionmaking process[.]’”  The court also relates that “State contends its redacted email chains regarding policy responses and approaches to a Congressional letter and media coverage of the removal flights are also pre-decisional and deliberative.”  The court finds that “State’s argument is untenable.”  “Draft talking points are not protected by the deliberative process privilege.”  “State has not shown that the record contains deliberations about the talking points.”  “State is directed to submit this record to the Court for in camera inspection.”
   
• Exemption 6:  The court relates that “ICE, DHS, and State all withheld the names of low-level employees of the responding agencies and of other agencies, and third parties, phone numbers, email addresses, or other contact information.”  “ICE also withheld identifying spreadsheet data about Cameroonian applicants for relief from deportation, including the names of detainees, and information regarding detainees’ travel documents and immigration proceedings.”  “Plaintiffs only challenge the withholding of columns regarding travel documents pending or expiration, a final order from the Immigration Judge, and their appeal status.”  The court finds that “ICE has shown that the requested information implicates detainees’ privacy interest.”  “Because Plaintiffs seek information on 81 deportees on 3 flights, the Court finds ICE has cause for concern that information on detainees’ travel documents and immigration proceedings could be personally identifying.”
   
• Exemption 7(E):  The court relates that “ICE asserted Exemption 7(E) and withheld in full intelligence reports.”  “It also redacted portions of email discussions about scheduling and logistical arrangements of removal flights . . . and discussions with a foreign law enforcement agency.”  “The fully withheld record is an intelligence report that ‘contains detailed information on how the intelligence data was collected and techniques and procedures that were used in collecting such data, including various law enforcement databases and coordination with other intelligence communities.’”  Defendant “argues the information constitutes law enforcement techniques or procedures because ‘[m]uch of the information pertaining to charter flight itineraries, scheduling of locations, and other details are repeated with future flights[.]’”  “ICE also redacted an email chain regarding negotiations and discussions between ICE ERO and the Canadian government ‘relating to procedural issues surrounding the release or deportation of a particular Cameroonian migrant.’”  “[The] Court has already determined that ICE has met its burden to redact records regarding flight logistics under Exemption 5.”  “Plainly, this information is also properly withheld under Exemption 7(e) as a law enforcement technique or procedure.”  “While Plaintiff is correct that the flights discussed have already occurred, ICE has asserted that these logistics are repeated with future flights.”  “The fully withheld intelligence report, information on ICE’s removal operations, and negotiations with a foreign government are protected under Exemption 7(E) as information ‘compiled for law enforcement purposes.’”  “The information is compiled to provide ‘comprehensive guidance to employees in the field on how to apply and enforce the laws within the agency’s purview[.]’”

• Litigation Considerations, In Camera Inspection:  The court relates that “Plaintiffs also asks the Court to conduct an in camera review of Defendants’ withheld and redacted documents to determine whether the claimed exemptions are reasonable.”  The court finds that “[r]ecords should not be reviewed in camera as a substitute for requiring an agency to explain its claimed exemptions in accordance with Vaughn.’”  “The Court finds that in camera review is necessary only for the records State withheld under Exemption 5.”