Project South v. United States Immigration and Customs Enforcement

Background

Project South and the Center for Constitutional Rights brought this Freedom of Information Act (FOIA) action against United States Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS), United States Citizenship and Immigration Services, the Department of Justice’s Executive Office for Immigration Review, and the Department of State. The plaintiffs sought records concerning the detention and deportation of Cameroonian migrants from August 2020 through February 2021. They challenged the searches and withholding decisions of ICE, DHS, and the State Department, but did not challenge the searches or withholdings by USCIS or EOIR.

The agencies produced records but withheld some material under FOIA Exemptions 3, 5, 6, 7(C), and 7(e). The parties filed cross-motions for partial summary judgment. Summary judgment is a decision without a trial when the relevant facts are not genuinely disputed and one side is entitled to judgment under the law.

Search adequacy

The court held that the State Department proved that it conducted an adequate search. The State Department searched relevant embassy systems, email accounts, and electronic records, and explained why it used different search methods in some systems. The court granted the State Department’s motion for partial summary judgment on search adequacy and denied the plaintiffs’ cross-motion on that issue.

The court held that ICE did not prove that its search was adequate. ICE did not provide enough information about its search of the Office of the Principal Legal Advisor, including the custodians and search terms used. ICE also did not adequately explain why some custodians used particular search terms, why some searches covered email but not shared drives, or why clearly relevant terms were omitted. The court denied ICE’s motion for partial summary judgment on search adequacy and granted the plaintiffs’ cross-motion. ICE was ordered to conduct new searches involving the Office of the Principal Legal Advisor, the ICE Attaché for Cameroon, and the Enforcement and Removal Operations Removal Division for special high-risk charter flights. The parties were directed to meet and confer and submit a joint status report about proposed searches and search terms within 21 days.

The court likewise held that DHS had not provided enough detail about the search terms and methods used in manual searches by custodians in the Office of International Affairs within the Office of Strategy, Policy, and Plans. The court denied DHS’s motion for partial summary judgment on search adequacy and granted the plaintiffs’ cross-motion. DHS was ordered to conduct a new search of the relevant custodians, with a joint status report due within 21 days after the parties met and conferred about proposed search terms.

Withholding under FOIA exemptions

The court upheld ICE’s withholding of records under Exemption 5, which protects certain confidential government deliberations, including pre-decision discussions reflecting the exchange of policy options. The protected ICE records concerned logistics for removal flights, such as possible departure times, locations, routes, and staging arrangements. The court also upheld ICE’s withholding under Exemption 7(e), which protects law-enforcement techniques and procedures when disclosure could reveal how the government conducts operations. The protected material included an intelligence report, information about removal operations and intelligence gathering, flight logistics, and discussions with a foreign law-enforcement agency.

The court also found that ICE’s withholding of information about detainees’ travel documents and immigration proceedings was proper under Exemption 6, which protects personal information when disclosure would cause a clearly unwarranted invasion of privacy. Because the records concerned 81 deportees on three flights, the court found a sufficient risk that the information could identify individuals. The court therefore did not need to decide whether the same material was also protected by Exemption 7(C). ICE’s motion for partial summary judgment concerning Exemptions 5, 6, and 7(e) was granted, and the plaintiffs’ cross-motion was denied.

The court found that ICE had not shown that Exemption 3 applied to the challenged spreadsheet information concerning travel documents, immigration proceedings, and appeal status. The court nevertheless concluded that the same information was properly withheld under Exemption 6.

As to the State Department, the court found that the explanation for withholding a “Sanctions/Removals” email thread under Exemption 5 was sufficient, but denied the State Department’s motion as to that thread and granted the plaintiffs’ cross-motion on it. The court granted the State Department’s Exemption 5 motion in all other respects. However, it found that the State Department had not shown that certain proposed talking points were deliberative, particularly because some statements appeared already to have been cleared. The State Department was ordered to submit those Exemption 5 records to the court for private review, called in-camera review, to determine whether the withholding was justified.

Disposition

The opinion granted and denied the parties’ partial-summary-judgment motions as described above. ICE and DHS must conduct additional searches, while the State Department’s search was sustained. ICE’s challenged Exemption 5, 6, and 7(e) withholdings were upheld. The State Department’s records withheld under Exemption 5 must be submitted for in-camera review. The opinion’s conclusion also states that the State Department did not properly withhold documents under Exemptions 3 and 5, although the detailed Exemption 3 discussion addresses ICE’s withholding and the operative Exemption 5 ruling expressly addresses the State Department.