|Submitted||Feb. 13, 2019|
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To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
1. It appears Immigration Judges in San Antonio may be warning local attorneys off the record that entering a pleading denying the allegations in an NTA and declining to concede removability goes against a "local practice" and could result in reporting the attorneys for EOIR to discipline. Given the prohibition since 2008 against immigration courts implementing "local operating procedures" and the recent developments in EOIR policy on when immigration attorneys should be investigated or prosecuted for zealous advocacy on behalf of their clients, we are filing this request.
To that end, please produce the e-mail messages and Skype instant messages from July 1, 2018 to the present that mention any of the following keywords:
"admit* and concede*"
"local operating procedure*"
Please note that I am using the asterisk (*) to designate the standard use of “wildcards” in the search for responsive records. For example, a search for “admit*” would return all of the following: admit, admits, admitted, etc. If you are unable to search for wildcards, please advise so that I may specifically include the variations I would like searched.
The search should include the following Immigration Judges' e-mail and Skype accounts:
Thomas G. Crossan, Jr.
Clay N. Martin
Charles M. McCullough
Robert Reid McKee
Eric J. Tijerina
2. In addition to the records requested above, I also request records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If you use FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, I also request any such records prepared in connection with the processing of this request.
Please note it is unlawful to assign the task of e-mail searches to the e-mail custodians themselves.
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 or personal Skype 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 DHS’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.
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 DHS’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 disclose any reasonably segregable non-exempt portions of the requested records. 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, the 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). It involves possible violation of the prohibition against local operating procedures and implicates serious due process concerns for immigrants appearing before the San Antonio Immigration Court. Moreover, the request is entirely and fundamentally for non-commercial purposes. 6 C.F.R. § 5.11(k)(1)(ii).
I am also a member of the news media and have written and researched Immigration Court and BIA policies and procedures, and I request that all search and production fees be waived due to my news media status.
Pursuant to 6 CFR § 5.5(e)(1) I am requesting the processing and production of records in response to this request be expedited. In particular, to the extent the San Antonio court may be violating the prohibition on local operating procedures and violating immigrants' right to due process, the matter is especially urgent. As outlined above, I am primarily engaged in disseminating information. The loss of substantial due process rights cannot be overstated. Finally, as outlined above, this is a matter of "widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." For all such reasons, the EOIR should expedite its request and produce the requested records at once.
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.
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Feb. 13, 2019. Please let me know when I can expect to receive a response.
Thanks for your help, and let me know if further clarification is needed.
We did an electronic search as requested and found 1,729 e-mails in just the seven users you listed. We cannot process that many e-mails.
I can retry this as a custodial search. Alternately, you can refine your search request. I would guess the terms “admit” and “concede” are jamming the search.
Please let me know which you prefer. If I don’t hear from you within 30 days, I will assume you no longer need this information, and close the case administratively.
Joseph R. Schaaf
Chief Counsel, Administrative Law
Executive Office for Immigration Review
OK no problem, will proceed with that. Wr/JRS