2019 Eoir emails about pretermitting asylum cases

Dear Mr. Hoppock:

We are in receipt of your FOIA request dated May 17, 2019 requesting e-mails to any immigration judge having the term "asylum" plus one or more terms identified in your request in 2019. For purposes of this request, your request category has been determined to be a commercial use request, or a "request that asks for information for a use or purpose that furthers a commercial trade, or profit interest, which can include furthering those interests through litigation." See 28 C.F.R. 16.10(b)(1). In that regard, you are responsible for all direct costs associated with processing your request, including search (if document volume exceeds 5000 pages), review and duplication fees. See 28 C.F.R. § 16.10(b)(2).

For purposes of this request, we have determined that you that you are not a representative of the news media within the meaning of 28 C.F.R. § 16.10(b)(6). If you are seeking a waiver or reduction of fees, please submit a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. See 28 C.F.R. § 16.10(k)(1)-(2).

Your request is on hold until a fee agreement has been reached or until you submit a written application requesting a waiver or reduction of fees. If we do not hear from you within 30 calendar days, or by the first business day following 30 calendar days, or by Thursday, June 27, 2019, your request will be closed.

Sincerely,

Shelley M. O'Hara
Attorney Advisor (FOIA)
Office of the General Counsel
Executive Office for Immigration Review
Department of Justice
5107 Leesburg Pike, Suite 2600
Falls Church, VA 22041
(703) 605-0275

Dear Atty. Hoppock,

Ms. O’Hara made the commercial use determination and unfortunately, she is out of the office for several weeks. In the meantime, I can push the search but as we have discussed, the “all IJ” requests are overbroad and would certainly entail fees greater than $25. I can push the search for “all ACIJ” e-mails as we’ve done previously.

Wr/JRS

Dear Mr. Hoppock:

Thank you for your response and comments. Please note that a component’s decision to place a requester in the commercial use category is made on a case-by-case basis based on the requester’s intended use of the information. See 28 C.F.R. §16.10(b)(1). Accordingly, a determination that you were a representative of the news media as defined in 28 C.F.R. § 16.10(b)(6) for a previous request is not applicable as relates to other requests, including this request (FOIA 2019-32571).

In your e-mail, you state that your request is “made on behalf of a non-profit organization”, which appears to be MuckRock, the platform through which you submitted this request. However, your request as-filed specifically states that, “[t]his request is not filed by a MuckRock staff member, but is being sent through MuckRock by the above in order to better track, share, and manage public records requests.” In view of that you are not a MuckRock staff member, we have determined that your request is made on behalf of the Hoppock Law Firm, LLC, which is a private practice law firm that furthers your business’s profit interest. See 28 C.F.R. §16.10(b)(1). In that regard, we have determined that you are not a representative of the news media as relates to this request (FOIA 2019-32571).

Additionally, we have considered your request for a waiver or reduction of fees pursuant to 28 C.F.R. § 16.10(k)(1)-(2) in your June 12, 2019 e-mail. Upon review of your comments, it has been determined that your request did not meet the threshold. Therefore, your request for a fee waiver has been denied.

It is estimated that review fees alone associated with your request as-filed will exceed $2000. Therefore, we require an agreement to pay fees before we begin processing your request. If we do not hear from you within 30 days of this notice, your request will be administratively closed.

You may contact the FOIA Public Liaison at the telephone number 703-605-1297 for any further assistance and to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001; e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.

If you are not satisfied with the agency's determinations above, you may administratively appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the following web site: https://www.foiaonline.gov/foiaonline/action/public/home. Your appeal must be postmarked or electronically transmitted within 90 days of the date of my response to your request. If you submit your appeal by mail, both the letter and the envelope should be clearly marked “Freedom of Information Act Appeal.”

Sincerely,

Shelley M. O’Hara
Attorney Advisor (FOIA)
(703) 605-0275

Department of Justice, Executive Office for Immigration Review
FOIA Office
Suite 1903
5107 Leesburg Pike
Falls Church, VA 20530

June 12, 2019

This is a follow up to a previous request:

Ms. O'Hara, thank you for your message with respect to 2019-32571. I am unable to respond as you have requested, and cannot agree with the agency placing the request on hold, because you have not complied with the regulatory requirements for doing so or with the FOIA statute.

In particular, I am concerned that the agency's current determination is unlawful given that no determination has been made pursuant to 28 C.F.R. 16.10(d)(5) that more than $25 in fees will be at stake. Your e-mail does not properly invoke the exception under 28 C.F.R. 16.10(e) because you have not determined that "after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search" the fees will exceed $25.00. 28 C.F.R. 16.10(d)(5). Nor have you complied with the requirement of 28 C.F.R. 16.10(e) by providing "a breakdown of the fees for search, review or duplication." 28 C.F.R. 16.10(e). See also the DOJ's FOIA reference guide. https://www.justice.gov/oip/department-justice-freedom-information-act-reference-guide.

I would request that your agency comply with the FOIA statute and produce the responsive records within the time period set out in the statute.

Second, I dispute the agency's determination that this request, made on behalf of a non-profit media organization, is made for a commercial purpose. Note that the agency did not make such a determination when I made an identical request for 2018 records in Request Number 2019-18719. Note also that in that previous request the agency did not conclude I as not a member of the news media. Could you please explain how the agency made that determination in this case given its prior determinations in my previous FOIA requests? I am a member of the news media, and my request is intended to gather information and records for a writing project. I also intend to publish the results for free on the internet.

I also dispute the agency's determination that I am not a member of the news media. The agency has previously determined that I am a member of the news media and has declined to charge search or processing fees in my previous FOIA requests because of this. It is unclear what, if anything, the agency believes to have changed.

Although you have asked me to make a fee waiver request, I can't do that without the agency first determining that any fees would actually be at issue as 28 C.F.R. 16.10(d)(5) requires. However, if the agency has determined any fee would apply, I am requesting a fee waiver, as disclosure of the requested information is in the public interest and will contribute significantly to the public's understanding of the operations and activities of the government. In particular, whether and to what extent immigration judges are pretermitting asylum applications despite precedent in Matter of Fefe stating they are not lawfully permitted to do so is a matter of extreme public importance. Previous FOIA results have revealed e-mail messages between Immigration Judges on how to pretermit asylum applications after the Attorney General's decision in Matter of E-F-H-L- (despite that decision not authorizing the same). This request is intended to help determine how often that is happening and why. I intend to write an article on the recurrence of pretermission as a tool for violating asylum applicants' (especially pro se asylum applicants) due process. Violation of the law by DOJ employees is a matter of public concern and if it is occurring the public should be informed. I have no commercial purpose in making this request, will gain no profit from my publication of these records or writing for the news media about them, and specifically request both news media status and a fee waiver.

Because your determination does not explicitly deny a fee waiver or explicitly state that a fee will be charged, I cannot file an administrative appeal. Accordingly, please clarify and if fees are to be charged please provide the “breakdown” required by 28 C.F.R. 16.10(e). Thereafter, please address the request for a fee waiver. Thank you.

Filed via MuckRock.com
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For mailed responses, please address (see note):
MuckRock News
DEPT MR 72945
411A Highland Ave
Somerville, MA 02144-2516

PLEASE NOTE: This request is not filed by a MuckRock staff member, but is being sent through MuckRock by the above in order to better track, share, and manage public records requests. Also note that improperly addressed (i.e., with the requester's name rather than "MuckRock News" and the department number) requests might be returned as undeliverable.

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On May 28, 2019:
Subject: 2019-32571 EOIR FOIA request
Dear Mr. Hoppock:

We are in receipt of your FOIA request dated May 17, 2019 requesting e-mails to any immigration judge having the term "asylum" plus one or more terms identified in your request in 2019. For purposes of this request, your request category has been determined to be a commercial use request, or a "request that asks for information for a use or purpose that furthers a commercial trade, or profit interest, which can include furthering those interests through litigation." See 28 C.F.R. 16.10(b)(1). In that regard, you are responsible for all direct costs associated with processing your request, including search (if document volume exceeds 5000 pages), review and duplication fees. See 28 C.F.R. § 16.10(b)(2).

For purposes of this request, we have determined that you that you are not a representative of the news media within the meaning of 28 C.F.R. § 16.10(b)(6). If you are seeking a waiver or reduction of fees, please submit a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. See 28 C.F.R. § 16.10(k)(1)-(2).

Your request is on hold until a fee agreement has been reached or until you submit a written application requesting a waiver or reduction of fees. If we do not hear from you within 30 calendar days, or by the first business day following 30 calendar days, or by Thursday, June 27, 2019, your request will be closed.

Sincerely,

Shelley M. O'Hara
Attorney Advisor (FOIA)
Office of the General Counsel
Executive Office for Immigration Review
Department of Justice
5107 Leesburg Pike, Suite 2600
Falls Church, VA 22041
(703) 605-0275
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On May 9, 2019:
Subject: Freedom of Information Act Request: 2019 Eoir emails about pretermitting asylum cases

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

The email messages to any immigration judge in 2019 mentioning the words “asylum” and any of the following: pretermit, pretermission, pretermitted, “Matter of Fefe”, or “Matter of E-F-H-L-”

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Matthew Hoppock

Filed via MuckRock.com
E-mail (Preferred): requests@muckrock.com<mailto:requests@muckrock.com>
Upload documents directly: https://www.muckrock.com/
Is this email coming to the wrong contact? Something else wrong? Use the above link to let us know.

For mailed responses, please address (see note):
MuckRock News
DEPT MR 72945
411A Highland Ave
Somerville, MA 02144-2516

PLEASE NOTE: This request is not filed by a MuckRock staff member, but is being sent through MuckRock by the above in order to better track, share, and manage public records requests. Also note that improperly addressed (i.e., with the requester's name rather than "MuckRock News" and the department number) requests might be returned as undeliverable.
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