Correspondence Regarding Bond Hearing Policies in Charlotte Immigration Court

Evan Benz filed this request with the Department of Justice, Executive Office for Immigration Review of the United States of America.
Tracking #

2019-32774

Est. Completion None
Status
Partially Completed

Communications

From: Evan Benz

To Whom It May Concern:

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

1. Any and all written communications (electronic or otherwise) sent between any of the Charlotte Immigration Judges (V. Stuart Couch, Barry J. Pettinato (former), Theresa Holmes-Simmons, Rodger C. Harris, and G. William Riggs) and R. Elliott Edwards, the Court Administrator for the Charlotte Immigration Court, between January 1, 2017 and the date of processing for this request, which contain the words “bond” or “bonds.”

2. Any and all written communications (electronic or otherwise) sent between any of the Charlotte Immigration Judges, and ACIJ Deepali Narkarni between January 1, 2017 and the date of processing for this request, which contain the words “bond” or “bonds.”

3. Any and all written communications (electronic or otherwise) sent between any of the Charlotte Immigration Judges, and ACIJ Sirce E. Owen between January 1, 2018 and the date of processing for this request, which contain the words “bond” or “bonds.”

The search should include records where any two of the above-listed EOIR employees (i.e., any IJ and either ACIJ or the Court Administrator) were included in any of the "To," "From," "CC," or "BCC" fields.

To clarify my request, I seek all responsive records regardless of format, medium, or physical characteristics. In conducting the search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. My request includes any attachments to these records, including e-mail attachments. No category of material should be omitted from search, collection, and production. If the agency has any questions about the scope of this request or the intent, please let me know.

Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149–50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955–56 (D.C. Cir. 2016).

It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; I exercise and specifically preserve and assert my right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016).

In addition, please note that in conducting a “reasonable search” as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered EOIR’s prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches. Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments & Independent Agencies, “Managing Government Records Directive,” M-12-18 (Aug. 24, 2012), https://www.archives.gov/files/records-mgmt/m-12-18.pdf. Please note that it is unlawful to have the email custodians perform their own searches.

Furthermore, agencies that have adopted the National Archives and Records Agency (NARA) Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians’ files. For example, a custodian may have deleted a responsive email from his or her email program, but EOIR’s archiving tools would capture that email under Capstone. Accordingly, I insist that the EOIR use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched. I am available to work with you to craft appropriate search terms.

If it is your position that any portion of the requested records is exempt from disclosure, I request that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). The index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). Moreover, the index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987). Further, “the 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.’” Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).

In the event some portions of the requested records are properly exempt from disclosure, please contact me so that we can work on limiting this request to only those records that are not exempt. If it is your position that a record contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

You should institute a preservation hold on information responsive to this request. I intend to pursue all legal avenues to enforce my right of access under the FOIA, including prompt litigation if that becomes necessary. Accordingly, EOIR is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, I welcome an opportunity to discuss this request with you before you undertake your search or incur search or duplication costs. By working together at the outset, we can decrease the likelihood of costly and time-consuming litigation in the future. If it will accelerate release of responsive records to me, please also provide responsive material on a rolling basis.

Fee Waiver Request:

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k), I request a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to a better understanding of relevant government procedures by the general public in a significant way. 6 C.F.R. § 5.11(k)(1)(i). These data will be used for academic research and news reporting, and this entirely and fundamentally for non-commercial purposes. 6 C.F.R. § 5.11(k)(1)(ii). How an immigrant can obtain a bond when detained by the DHS has been the subject of several recent Supreme Court decisions and implicates basic notions of due process and fair play.

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,

Evan Benz

From: Department of Justice, Executive Office for Immigration Review

An acknowledgement letter, stating the request is being processed.

From: Department of Justice, Executive Office for Immigration Review

Dear Atty. Benz:

We are in receipt of your FOIA request dated May 21, 2019 requesting records regarding bonds at the Charlotte, NC Immigration Court. This is currently #92 of 118 pending complex FOIA requests, and #32,774 of over 35,000 FOIA requests received by EOIR since October 1, 2018.

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 the processing your request, including search (if document volume exceeds 5000 pages), review and duplication fees. See 28 C.F.R. 16.10(b)(2).

Your request for a fee waiver is denied. As you did not indicate a minimum amount of fees you are willing to pay, your request is on hold until a fee agreement has been reached. If we do not hear from you within 30 calendar days, we will assume you no longer need this information, and close your request electronically.

Wr/
Joseph R. Schaaf
Chief Counsel, Administrative Law
Executive Office for Immigration Review

From: Evan Benz

Dear Mr. Schaaf:

I object to your baseless determination that my FOIA is a commercial use request, and reserve my right to challenge that determination on appeal. While it is true that my office is engaged in the practice of law, the request does not relate to any specific client which my office represents. For further context, my office does not represent clients in seeking bond before the Charlotte Immigration Court. My goal in requesting these records is simply to shed light on an issue that is of great public interest, namely the current detention procedures and conditions of immigrants in the United States. I deliberately choose to submit this FOIA request via the MuckRock channel (rather than through my firm's FOIAonline account) to demonstrate clearly that my request is being made in the public interest, and that the disclosure and dissemination of the responsive records via MuckRock will educate the public about the workings of the federal government in general, and the immigration court system in particular -- a matter of great public interest, now more than ever.

I recognize that this request may be a complex one, although I suspect the data requested should be compilable from running a few database reports. Pursuant to the FOIA statute and normal operating procedures, I am entitled to the first 100 pages of duplication and first two hours of search to be provided without cost. Beyond those parameters, if you estimate that search or duplication costs will be over $25, you must notify me. In terms of your desired "fee agreement," I agree to pay no more than $50 total for your office's processing of my request, after the initial two hours of search and first 100 pages of duplication.

Please provide the responsive records as expeditiously as possible. Any further delay over more than 30 days will be construed as a constructive agency denial, and will oblige me to exercise my rights of appeal.

Sincerely,

Evan

From: Department of Justice, Executive Office for Immigration Review

Evan,

Thank you for the additional information regarding your request. We will consider this information and make a final determination within 5 business days.

Would you be willing to narrow the timeframe of your request? E.g. January 1, 2019 to present. This would go a long way toward allowing us to allocate our resources to this request.

Wr/
Joseph R. Schaaf
Chief Counsel, Administrative Law
Executive Office for Immigration Review

From: Department of Justice, Executive Office for Immigration Review

Evan,

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). We have determined that your request is made on behalf of the Law Office of Derrick J. Hensley, PLLC, which is a profit-oriented private practice law firm operating primarily in North Carolina. In that regard, we have determined that you are not a representative of the news media as it relates to this request. Note that your request 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.”

However, as you have agreed to pay fees up to $50, we will now proceed with processing your request. We will inform you if fees will exceed this amount. Additionally, we reserve the right to waive fees in our sole discretion.

Wr/
Joseph R. Schaaf
Chief Counsel, Administrative Law
Executive Office for Immigration Review

From: Evan Benz

Dear Mr. Schaaf:

Thank you for your response. Regarding the scope of the request, I am willing to condense the time period for the first two categories of records to be June 1, 2017 to the date of processing of this request. The time period for the third category of records remains the same (January 1, 2018 to the date of processing of this request). I look forward to receiving the responsive records in a timely manner.

Best,

Evan

From: Department of Justice, Executive Office for Immigration Review

Thank you Evan, a search has been initiated. Wr/JRS

From: Department of Justice, Executive Office for Immigration Review

Evan, an electronic search was conducted and responsive documents were found.

As the processing does not appear burdensome, no fees will be required.

We will continue to process your request and provide responsive documents after they have been reviewed.

Wr/JRS

From: Evan Benz

Dear Mr. Schaaf:

Thank you for your response. I look forward to receiving the responsive records in a timely manner.

Best,

Evan

Files

pages

Close