Gender and Nationality as a Particular Social Group
| Tracking # |
2019-34534, DOJ-AP-2020-000369 2019-34534 |
| Submitted | May 31, 2019 |
| Est. Completion | None |
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Communications
From: Christina Brown
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
1. Any memoranda or other guidance documents within Denver EOIR custodians (between Denver EOIR employees and to/from the Denver ACIJ), including but not limited to: any memoranda or guidance provided to Immigration Judges on how to handle gender and nationality-based particular social groups and any e-mail messages, instant messages, Skype messages, or other correspondence from any employee of EOIR or the Office of the Attorney General to Immigration Judges about gender and nationality as a basis for particular social groups in asylum cases between April 1, 2018 and May 31, 2019.
2. All email messages and/or other correspondence, including messages in Skype for Business or other instant messaging applications to or from any Denver EOIR employee mentioning gender and nationality as a particular social group in asylum claims between April 1, 2018 and May 31, 2019.
3. All decisions from Denver EOIR immigration judges in gender-based particular social group asylum claims (keywords include "Honduran women" "Guatemalan women" "Salvadoran women" "women in guatemala" "women in El Salvador" or "women in Honduras" as a particular social group) between April 1, 2018 and May 31, 2019.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes. Transparency in the treatment of asylum seekers by the US government is clearly within the public interest, particularly at the moment, when asylum dominates our news media and the President discusses the merits of these claims on a daily basis.
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,
Christina Brown
From: Department of Justice, Executive Office for Immigration Review
An acknowledgement letter, stating the request is being processed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on May 31, 2019. Please let me know when I can expect to receive a response. You had assigned it reference number #2019-34534.
Thanks for your help, and let me know if further clarification is needed.
From: Department of Justice, Executive Office for Immigration Review
Dear Ms. Brown:
Thank you for your inquiry. For your information, FOIA requests are processed in the order received absent a grant of a request for expedited processing. Your request is categorized as "complex" and is number 81 on our "complex" docket.
Sincerely,
Shelley M. O'Hara
Attorney Advisor (FOIA)
(703) 605-0275
-
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From: Department of Justice, Executive Office for Immigration Review
Dear Ms. Brown:
We have determined that the above-referenced request constitutes 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)) The agency makes a "commercial use request" determination on a case-by-case basis based on the requester's "intended use." See 28 C.F.R. § 16.10(b)(1).
To the extent that you are seeking a "public interest" waiver or reduction in fees pursuant to 28 C.F.R. § 16.10(k)(1)-(4), you have not provided sufficient information to determine whether the requested records are not primarily in the commercial interest of The Law Office of Christina A. Brown, LLC. A unsupported statement that your request is "not being made commercial purposes" is not sufficient.
Your request is on hold until we receive an agreement to pay fees or until you provide additional information as outlined above. If we do not hear from you by the first business days following 30 calendar days of receipt of this e-mail, your request will be administratively 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
From: Christina Brown
Ms. O'Hara,
I filed this FOIA request on May 31, 2019. I did not receive a response until July 10, 2019. I will note that the agency has missed the statutory deadline to invoke the fee provisions of the FOIA.
Once again, as I noted in my FOIA request, "[t]he requested documents will be made available to the general public, and this request is not being made for commercial purposes. Transparency in the treatment of asylum seekers by the US government is clearly within the public interest, particularly at the moment, when asylum dominates our news media and the President discusses the merits of these claims on a daily basis." This request is submitted through a non-profit organization that makes these FOIA responses available to the public, including other non-profits and media outlets. There is not justification on behalf of EOIR to assume, despite the filing of this FOIA through a non-profit organization, and despite my written description of how transparency is necessary in these matters due to the treatment of asylum seekers at the border and in immigration courts dominating the national news, that this is a commercial request made for litigation use by my own office. If that were truly an exception to the public interest waiver, only media and large groups, and not individuals, would be able to ensure government transparency - an outcome not intended under the FOIA statute.
I request that the agency immediately take my request off hold and process it in compliance with the statute. If it is decided that you will once again deem my request a "commercial request" and duplication fees are required (not search fees as the agency did not timely reply), I request that I am immediately sent an estimate as to the costs of those fees and a final disposition of my request for a fee waiver so that I may begin the appeal process.
Thank you,
Christina
From: Department of Justice, Executive Office for Immigration Review
Dear Ms. Brown:
Thank you for your response and comments. Please note that, under the FOIA, the full text of which is available here https://www.justice.gov/oip/freedom-information-act-5-usc-552, there is no “statutory deadline to invoke the fee provisions of the FOIA.”
Please also note that, under the FOIA and for purposes of assessing fees, there are three categories of requesters. 5 U.S.C. § 552(a)(4)(A)(i)(I)-(III). These three categories do not include “non-profit organizations.”
Notwithstanding that a non-profit organization is not a recognized requester category under the FOIA, in your July 31, 2019 e-mail, you state that your request is “submitted through a non-profit organization that makes FOIA responses available to the public”, which appears to be MuckRock. 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.”
The agency makes no determination on whether MuckRock is entitled to a fee waiver because you are not making this request as a MuckRock staff member. Accordingly, we have determined that your request is made on behalf of the Law Office of Christina Brown, LLC, which is a private practice law firm, and that the request is being made to further your business’s profit interest. See 28 C.F.R. §16.10(b)(1).
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 July 31, 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 $1800. 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<mailto: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
-
~WRD191
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on May 31, 2019. Please let me know when I can expect to receive a response. You had assigned it reference number #2019-34534.
Thanks for your help, and let me know if further clarification is needed.
From: Department of Justice, Executive Office for Immigration Review
A fix is required to perfect the request.
From: Christina Brown
To Whom It May Concern:
I am writing to appeal my FOIA request #2019-34534. I received correspondence dated July 22, 2019 telling me that my request for public interest fee waiver had been denied because it was determined that my request was made for commercial purposes.
The correspondence indicated that these requests were considered under 28 C.F.R. 16.10(k)(1). This section states “Requesters may seek a waiver of fees by submitting 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.”
In my written correspondence regarding this FOIA, I explained that transparency in the treatment of families seeking asylum in immigration court is necessarily in the public interest given that it currently dominates our news cycle and is discussed regularly by the Trump administration. I also indicated multiple times that the response to this request would be made available to the public immediately.
Additionally, as I mentioned in my email to EOIR FOIA staff, the agency responded outside of the 20 day response period under the FOIA, and therefore cannot charge me search fees. This was acknowledged by Ms. O'Hara in a previous case and in this case disputed.
This request for fee waiver was improperly denied and the FOIA closed, and as such I am hereby appealing the decision.
Sincerely,
Christina A. Brown
From: Department of Justice, Executive Office for Immigration Review
This message is to notify you of a new appeal submission to the FOIAonline application. Appeal information is as follows:
* Appeal Tracking Number: DOJ-AP-2020-000369
* Request Tracking Number: 2019-34534
* Requester Name: Christina Brown
* Date Submitted: 10/17/2019
* Appeal Status: Submitted
* Description:
EOIR appeal
From: Department of Justice, Executive Office for Immigration Review
The Office of Information Policy has made its final determination on your FOIA Appeal Number DOJ-AP-2020-000369 . A copy of this determination is enclosed for your review, along with any enclosures, if applicable. Thank you.
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