Matter of E-F-H-L- IJ Correspondence

To Whom It May Concern:

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

In the Mater of E-F-H-L- case, the BIA had published its decision in the case in June, 2014. https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3803.pdf.

Four years later, on March 5, 2018, Attorney General Jeff Sessions issued a published order directing the BIA to refer the case to him and then vacated the decision. https://www.justice.gov/eoir/page/file/1040936/download. He said that post-remand, the case had been administratively closed and the asylum application had been withdrawn. Accordingly, he concluded, the decision about the requirement of a hearing had been "effectively mooted" and he ordered "that this matter be re-calendared and restored to the active docket of the Immigration Court."

Less than a week after the AG's order, Dallas Immigration Court Administrator Barbara Baker was scheduling a new hearing. It does not appear the BIA ever entered an order following the AG's remand (which would have been required for the case to be remanded back to the IJ). Nor does it appear a hearing notice was mailed or the CASE Database updated. And at that hearing only days following the Attorney General's decision, the records seem to show the immigrant was ordered to depart.

The events after the Attorney General's decision , and the re-calendaring of the proceedings by the Immigration Court afterward are hard to explain. We are seeking records related to this process to try to better understand what happened here and why. To that end, please provide:

1. James McHenry's calendar for the days between March 1, 2018 and March 29, 2018. If the Calendar is maintained in Outlook or a similar calendaring platform, this request should include the notes, attachments, and any other details for each item listed on the calendar.

2. Any correspondence to or from James McHenry received between March 1, 2018 and March 29, 2018 mentioning any of these keywords: "E-F-H-L," "EFHL" "201-297-359," or "201297359." For e-mail messages, this should include items that were sent directly to him and items on which he was "copied" using the "cc" or "Bcc" fields. This request includes other forms of correspondence, including paper notes, letters, or memoranda.

3. Any correspondence to or from Mary Beth Keller between March 1, 2018 and March 29, 2018 mentioning any of these keywords: "E-F-H-L," "EFHL" "201-297-359," or "201297359." For e-mail messages, this should include items that were sent directly to him and items on which he was "copied" using the "cc" or "Bcc" fields. This request includes other forms of correspondence, including paper notes, letters, or memoranda.

4. Any correspondence to or from Deitrich H. Sims between March 1, 2018 and March 29, 2018 mentioning any of these keywords: "E-F-H-L," "EFHL" "201-297-359," or "201297359." For e-mail messages, this should include items that were sent directly to him and items on which he was "copied" using the "cc" or "Bcc" fields. This request includes other forms of correspondence, including paper notes, letters, or memoranda.

5. Any correspondence to or from Katherine Reilly between March 1, 2018 and March 29, 2018 mentioning any of these keywords: "E-F-H-L," "EFHL" "201-297-359," or "201297359." For e-mail messages, this should include items that were sent directly to him and items on which he was "copied" using the "cc" or "Bcc" fields. This request includes other forms of correspondence, including paper notes, letters, or memoranda.

6. Any correspondence to or from Kate Sheehey between March 1, 2018 and March 29, 2018 mentioning any of these keywords: "E-F-H-L," "EFHL" "201-297-359," or "201297359." For e-mail messages, this should include items that were sent directly to him and items on which he was "copied" using the "cc" or "Bcc" fields. This request includes other forms of correspondence, including paper notes, letters, or memoranda.

7. Any correspondence to or from Anthony Murry between March 1, 2018 and March 29, 2018 mentioning any of these keywords: "E-F-H-L," "EFHL" "201-297-359," or "201297359." For e-mail messages, this should include items that were sent directly to him and items on which he was "copied" using the "cc" or "Bcc" fields. This request includes other forms of correspondence, including paper notes, letters, or memoranda.

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.

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 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 USCIS 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 USCIS 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).

Moreover, the request is entirely and fundamentally for non-commercial purposes. 6 C.F.R. § 5.11(k)(1)(ii).

I request a waiver of fees because 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.” 6 C.F.R. § 5.11(k)(1)(i); see also 6 C.F.R. § 5.11(k)(2)(i)-(iv). Understanding how the BIA and the Immigration Courts operate, including whether they comply with the Immigration statute, the federal immigration regulations, and the binding precedents of federal courts is of grave national importance. p

I am also a member of the news media and have written and researched immigration court practice and procedures, including specifically developments in docketing procedures since the change in administration, and I request that all search and production fees be waived due to my news media status. See e.g. https://www.law360.com/articles/1050952/foia-documents-shed-light-on-eoir-case-management (referencing my writing and research on docketing procedure changes); https://www.aila.org/infonet/eoir-foia-response-no-dark-courtrooms-policy (same); https://www.washingtonpost.com/world/national-security/scanning-immigrants-old-fingerprints-us-threatens-to-strip-thousands-of-citizenship/2018/06/13/2230d8a2-6f2e-11e8-afd5-778aca903bbe_story.html?utm_term=.c59c400f0ef7 (referencing my research and writing on denaturalization procedures); https://www.thetimes.co.uk/article/us-may-strip-citizenship-cheats-of-their-passports-lwt7kddq0 (same); http://www.recorder.com/US-goes-after-naturalized-immigrants-with-criminal-records-18780878 (same). I am quoted in a number of the articles listed above and intend to use the documents and information received in response to this request to share with the public and to write related news articles about immigration enforcement efforts.

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