Lawsuit Demands Records On Us Immigration Enforcements Role in Protests Complaint
Lawsuit Demands Records On Us Immigration Enforcements Role in Protests Complaint
v.
Defendant.
INTRODUCTION
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552
et seq., seeking to compel the release of records by U.S. Customs and Border Protection (CBP)
relating to CBP’s surveillance of, and deployment of CBP personnel to, protests in various U.S.
cities following the killing of George Floyd by Minnesota police officers on May 25, 2020.
law enforcement agency with a long history of abusive policing tactics, including the use of racially
derogatory language towards migrants and members of Congress and the repeated, egregious use
of excessive force. Moreover, CBP routinely evades scrutiny and accountability for its misconduct.
This combination of systemic misconduct and impunity necessitates timely public scrutiny of CBP
operations as the agency extends its reach to policing domestic protests within the United States.
The need for public information is all the more urgent in light of reporting that CBP continues to
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 2 of 19 PageID #: 2
prepare for further deployments to U.S. cities under the pretext of further unrest following the
presidential election.
exposed CBP abuses and the agency’s lack of accountability. They seek records via FOIA to
further public understanding of the contours and legality of CBP’s involvement in domestic
policing. Plaintiffs also seek data to understand the impact of CBP policing on individuals, in the
form of apprehensions, arrests, deportations, or other legal actions. Plaintiffs’ request embodies
the hallmark of FOIA: the demand for records to provide the public with information about the
4. Plaintiffs filed their FOIA request on July 28, 2020, invoking expedited treatment
given its urgent nature. While CBP acknowledged receipt of Plaintiffs’ FOIA request on July 28,
2020 and granted expedited treatment to the request on the same day, to date, it has failed to act
§ 1331.
6. This Court has jurisdiction to grant declaratory and further proper relief pursuant
to 5 U.S.C. § 552(a)(4)(B), 28 U.S.C. §§ 2201–2202 and Federal Rules of Civil Procedure 57 and
65.
7. Venue lies in this District under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e)
because Plaintiff Black Alliance for Just Immigration (BAJI) resides in this district.
2
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 3 of 19 PageID #: 3
PARTIES
organization. BAJI is a racial justice and migrant rights organization which engages in legal
end the criminalization and economic disenfranchisement of African American and Black
immigrant communities. BAJI works with local community groups to educate impacted
communities in understanding their rights and responding to increased militarized police presence
in their communities. To further its mission, BAJI creates and disseminates presentations, reports,
articles, interviews, testimony, and social media to educate the public about the activities of the
about government activity, analyzing that information, and disseminating that information to the
advocates for the fair and just administration of U.S. immigration laws, protects the legal rights of
noncitizens and citizens, and educates the public about the enduring contributions of immigrants.
Through research and analysis, the Council has become a leading resource for policymakers at the
national, state, and local levels who seek to understand the power and potential of immigration and
to develop policies that are based on facts rather than myths. The Council also seeks to hold the
government accountable for unlawful conduct, restrictive interpretations of the law, and for failing
3
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 4 of 19 PageID #: 4
to ensure that the immigration laws are implemented and executed in a manner that comports with
10. Plaintiff American Civil Liberties Union of San Diego and Imperial Counties
(ACLU SDIC) is an affiliate of the ACLU. The ACLU is “primarily engaged in disseminating
information” within the meaning of the FOIA. 5 U.S.C. § 552(a)(6)(E)(v)(II). See also 6 C.F.R. §
5.5(e)(1)(ii). Obtaining information about government activity, analyzing that information, and
widely publishing and disseminating that information to the press and public are critical and
substantial components of the ACLU’s work and are among its primary activities. See ACLU v.
U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest
group that “gathers information of potential interest to a segment of the public, uses its editorial
skills to turn the raw material into a distinct work, and distributes that work to an audience” to be
“primarily engaged in disseminating information”). The ACLU does this work alone and with our
national partners and allies. The ACLU SDIC regularly issues press statements (and shares
statements generated by the National ACLU and other California affiliates) and creates and shares
talking points, memos, and fact sheets with community partners and the public at large. The ACLU
SDIC also disseminates information via its various social media platforms. Most recently, the
ACLU SDIC published tens of thousands of pages of documents related to CBP’s mistreatment of
11. Plaintiff American Civil Liberties Union of Texas is an affiliate of the ACLU. The
ACLU of Texas is “primarily engaged in disseminating information” within the meaning of the
about government activity, analyzing that information, and widely publishing and disseminating
that information to the press and public are critical and substantial components of the ACLU’s
4
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 5 of 19 PageID #: 5
work and are among its primary activities. See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24,
29 n.5 (D.D.C. 2004) (finding non-profit public interest group that “gathers information of
potential interest to a segment of the public, uses its editorial skills to turn the raw material into a
distinct work, and distributes that work to an audience” to be “primarily engaged in disseminating
information”). The ACLU of Texas, which houses the Border Rights Center, does this work alone
and with national partners and allies. The ACLU of Texas regularly creates and disseminates works
in the form of presentations, reports, articles, interviews, testimony, social media, and blog posts
to educate the public about the activities of the United States government—including works
containing information gained through information requests to the government. The ACLU of
Texas also regularly publishes “know your rights” materials, fact sheets, and educational brochures
and pamphlets designed to educate the public about civil liberties issues and government policies
12. Defendant CBP is a component agency of DHS and an agency within the meaning
of 5 U.S.C. § 552(f). Its law enforcement mandate is tied to U.S. borders and ports of entry. CBP
STATEMENT OF FACTS
13. According to its website, CBP “is one of the world’s largest law enforcement
organizations and is charged with keeping terrorists and their weapons out of the [United States]
while facilitating lawful international travel and trade.”1 CBP’s recent deployment to domestic
protests within the United States strays far from this mandate and warrants public scrutiny.
1
Customs and Border Protection, About CBP (Sept. 18, 2019), https://www.cbp.gov/about.
5
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 6 of 19 PageID #: 6
14. CBP has a long history of troubling enforcement tactics and mistreatment of people
CBP officials. This includes the use of racial profiling, unjustified shootings and other use of
excessive force, as well as unlawful arrests and deportations.2 CBP misconduct, including the use
of racially derogatory language and the repeated physical and verbal abuse of individuals in the
2
See generally Hold CBP Accountable: Stopping U.S. Customs and Border Protection (CBP)
Abuse, https://holdcbpaccountable.org/abuses/; see also, e.g., John Washington, “Kick Ass, Ask
Questions Later”: A Border Patrol Whistleblower Speaks Out About Culture of Abuse Against
Migrants, The Intercept (Sept. 20, 2018), https://theintercept.com/2018/09/20/border-patrol-
agent-immigrant-abuse/; Garrett M. Graff, The Green Monster: How the Border Patrol Became
America’s Most Out-of-Control Law Enforcement Agency, Politico (Nov./Dec. 2014),
https://www.politico.com/magazine/story/2014/10/border-patrol-the-green-monster-112220.
3
See, e.g., American Civil Liberties Union of San Diego & Imperial Counties, et al.,
Administrative Complaint Re: U.S. Border Patrol’s Verbal Abuse of Detained Individuals (July
2020), https://www.aclusandiego.org/wp-content/uploads/2020/07/2020-07-07-OIG-Complaint-
4-FINAL.pdf; Garrett M. Graff, The Border Patrol Hits a Breaking Point, Politico (July 15,
2019), https://www.politico.com/magazine/story/2019/07/15/border-patrol-trump-administration-
227357; Univ. of Chicago Law School Int’l Human Rights Clinic, et al., Neglect and Abuse of
Unaccompanied Immigrant Children by U.S. Customs and Border Protection, at 10-13 (May
2018), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1001&context=ihrc;
Sara Campos & Guillermo Cantor, Am. Immigr. Council, Deportations in the Dark: Lack of
Process and Information in the Removal of Mexican Migrants, at 13-16 (Sept. 2017),
https://www.americanimmigrationcouncil.org/research/deportations-dark; Guillermo Cantor &
Walter Ewing, Am. Immigr. Council, Still No Action Taken: Complaints Against Border Patrol
Agents Continue to Go Unanswered, at 8 (Aug. 2017),
https://www.americanimmigrationcouncil.org/research/still-no-action-taken-complaints-against-
border-patrol-agents-continue-go-unanswered.
4
See, e.g., Daniel E. Martinez, Guillermo Cantor & Walter Ewing, Am. Immigr. Council, No
Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse (May 2014),
https://www.americanimmigrationcouncil.org/research/no-action-taken-lack-cbp-accountability-
responding-complaints-abuse; Cantor & Ewing, Still No Action Taken, supra n. 3 (examining
records of alleged misconduct by Border Patrol employees).
6
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 7 of 19 PageID #: 7
16. In July 2019, media outlets reported that thousands of CBP officers were members
of a Facebook group in which CBP officers mocked a father and his toddler who drowned while
attempting to enter the United States.5 The same Facebook group members engaged in abusive,
racist language about members of Congress—and then attempted to delete the posts.6 In the same
month, journalists reported that CBP officers forced a noncitizen to walk in front of other detainees
holding a sign identifying himself as attracted to men,7 detained children in “poor conditions that
are not pure byproducts of overcrowding,”8 sexually assaulted a child in CBP custody, and
retaliated against other children for protesting the conditions of their confinement.9
17. CBP continually evades responsibility for its actions and operates in a culture of
secrecy and impunity. Complaints by migrants who have come forward to raise allegations of
5
A.C. Thompson, Inside the Secret Border Patrol Facebook Group Where Agents Joke About
Migrant Deaths and Post Sexist Memes, ProPublica (July 1, 2019, 10:55 AM),
https://bit.ly/2YyJXfu.
6
Id.; see also Ryan Deveraux, Border Patrol Agents Tried to Delete Racist and Obscene
Facebook Posts. We Archived Them, The Intercept (July 5, 2019),
https://theintercept.com/2019/07/05/border-patrol-facebook-group/.
7
Nick Valencia et al., Border Patrol agents allegedly tried to shame a migrant by making him
hold a sign reading ‘I like men,’ emails show, CNN (July 4, 2019, 4:58 PM),
https://cnn.it/2mPKOes.
8
Jacob Soboroff & Julia Ainsley, Migrant kids in overcrowded Arizona border station allege sex
assault, retaliation from U.S. agents, NBC News (July 9, 2019, 8:30 PM),
https://nbcnews.to/2LbfbGP; see also Simon Romero et al., Hungry, Scared and Sick: Inside the
Migrant Detention Center in Clint, Tex., N.Y. Times (July 9, 2019), https://nyti.ms/2L7dREA.
9
See Soboroff & Ainsley, supra.
10
See, e.g., Martinez, Cantor & Ewing, No Action Taken, supra n. 4; Cantor & Ewing, Still No
Action Taken, supra n. 3.
7
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 8 of 19 PageID #: 8
18. Earlier this year, CBP successfully obtained “security agency” status, shielding “all
CBP employee names from subsequent responses to [FOIA] requests or other public disclosures
19. Building on this trend towards further secrecy, CBP recently sought approval from
the National Archives and Records Administration (NARA) to destroy various types of records
pertaining to its misconduct.12 These include documents held by CBP, including witness testimony
and other evidence, due to complaints made to the DHS Office of Civil Rights and Civil Liberties
(CRCL); complaints raised under the Prison Rape Elimination Act (PREA); and internal
complaints and criminal investigations concerning CBP personnel. In some cases, records could
20. Rather than accountability, CBP instead enjoys an astronomical budget of $18.2
billion for FY 2020—a 19% increase over FY 2019—and an increased number of personnel.14
Most troubling, CBP’s reach has gone beyond its law enforcement mandate to patrol the U.S.
11
Ken Klippenstein, Exclusive: Customs and Border Protection Gains an Extra Layer of
Secrecy, The Nation (Feb. 4, 2020), https://www.thenation.com/article/politics/cbp-security-
agency/ (quoting an CBP internal memo obtained by The Nation); Jessica K. Lang, U.S. Customs
and Border Protection Designated ‘Security Agency,’ The Nat’l Law Review (Feb. 24, 2020),
https://www.natlawreview.com/article/us-customs-and-border-protection-designated-security-
agency.
12
85 FR 47248, National Records and Archives Administration (NARA), Notice of Availability
of Proposed Records Schedules, Request for Comments; Alice Speri, Homeland Security Wants
to Erase Its History of Misconduct, The Intercept (Oct. 6, 2020, 11:57 AM),
https://theintercept.com/2020/10/06/homeland-security-dhs-misconduct-records-erasure/.
13
Id.
14
Executive Office of the President, Border Security 2020 Fact Sheet: Strengthening Border
Security and Immigration Enforcement, https://www.whitehouse.gov/wp-
content/uploads/2019/03/FY20-Fact-Sheet_Immigration-Border-Security_FINAL.pdf.
8
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 9 of 19 PageID #: 9
21. For example, in April of 2019, DHS surreptitiously implemented a pilot program
in which CBP officers were tasked with the unprecedented role of conducting sensitive threshold
screening interviews, known as “credible fear interviews,” that determine whether asylum-seekers
can present their claims before an immigration judge.15 This screening role has been historically
undertaken by asylum officers, who are trained in asylum law and in dealing with individuals
suffering trauma after enduring persecution and arduous journeys to the United States. The
assignment of CBP officers to this role drew criticism and concern, given the agency’s historical
function as a law enforcement agency and its well-documented animosity towards asylum
seekers.16
22. On May 25, 2020, George Floyd was killed by Minnesota police officers. Mr.
Floyd’s killing triggered mass protests in cities across the United States.17 Protestors took to the
15
See Molly O’Toole, Border Patrol agents, rather than asylum officers, interviewing families
for ‘credible fear’, L.A. Times (Sept. 19, 2019, 5:50 AM), https://lat.ms/2mqC263; Julia
Ainsley, Stephen Miller wants Border Patrol, not asylum officers, to determine migrant asylum
claims, NBC News (July 29, 2019, 7:31 PM), https://nbcnews.to/2YpVQni; Nick Miroff, U.S.
asylum screeners to take more confrontational approach as Trump aims to turn more migrants
away at the border, Wash. Post (May 7, 2019), https://wapo.st/2JzaEe4;Geneva Sands et al.,
White House Backs Stephen Miller Proposal to Let Border Patrol Agents to Conduct Asylum
Interviews, CNN (May 8, 2019, 1:27 PM), https://cnn.it/2ntS5AZ.
16
See, e.g., John Washington, Bad Information: Border Patrol Arrest Reports Are Full of Lies
That Can Sabotage Asylum Claims, The Intercept (Aug. 11, 2019, 12:20 PM),
https://bit.ly/2Kx6Zir; Amnesty International, ‘You Don’t Have Any Rights Here’: Illegal
Pushbacks, Arbitrary Detention & Ill-Treatment of Asylum-Seekers in the United States, at 17.
(2018), https://www.amnesty.org/en/latest/research/2018/10/usa-treatment-of-asylum-seekers-
southern-border/; Shaw Drake et al., Human Rights First, Crossing the Line: U.S. Border Agents
Illegally Reject Asylum Seekers (May 2017), http://bit.ly/2pb69jd; U.S. Comm’n on Int’l
Religious Freedom, Barriers to Protection: The Treatment of Asylum Seekers in Expedited
Removal (2016), https://bit.ly/2uydMQ8.
17
See, e.g., Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time
(June 4, 2020), https://time.com/5847967/george-floyd-protests-trump/.
9
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 10 of 19 PageID #: 10
streets to express outrage over Mr. Floyd’s death, as well as to call for racial justice and police
reform. These protests were met with stepped-up police presence as local law enforcement
23. In early June, media outlets reported that CBP personnel and aerial surveillance,
along with other DHS and federal agency personnel, had been deployed to the protests over Mr.
Floyd’s killing and accompanying calls for racial justice and police reform.19 These reports
revealed that CBP and other DHS officers were present in various cities throughout the United
States. Further, aerial surveillance recorded hours of footage at these largely peaceful gatherings.20
A leaked CBP document would later reveal that purported requests from law enforcement agencies
across the country resulted in 326.4 hours of aviation assets deployed and 2,174 agency
personnel.21
24. As protests calling for racial justice and police reform continued, President Trump
issued Executive Order No. 13933, “Protecting American Monuments, Memorials, and Statues
18
Id.
19
Jana Winter, Leaked Document Reveals Details of Federal Law Enforcement Patrolling
Washington Amid Protests, YahooNews (June 5, 2020), https://news.yahoo.com/exclusive-
leaked-document-reveals-details-of-federal-law-enforcement-patrolling-washington-amid-
protests-154138680.html; Geneva Sands, Customs and Border Protection Drone Flew Over
Minneapolis to Provide Live Video to Law Enforcement, CNN (May 29, 2020),
https://www.cnn.com/2020/05/29/politics/cbp-drone-minneapolis/index.html.
20
Zolan Kanno-Youngs, U.S. Watched George Floyd Protests in 15 Cities Using Aerial
Surveillance, N.Y. Times (June 19, 2020),
https://www.nytimes.com/2020/06/19/us/politics/george-floyd-protests-surveillance.html; Sands,
Customs and Border Protection Drone, supra n. 19.
21
Ken Klippenstein, The Federal Response to Protests Extends Far Beyond Portland, The
Nation (July 23, 2020), https://www.thenation.com/article/society/cbp-deployment-harris/.
22
See Exec. Order No. 13933, 85 Fed. Reg. 40081 (2020),
https://www.govinfo.gov/content/pkg/FR-2020-07-02/pdf/2020-14509.pdf.
10
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 11 of 19 PageID #: 11
25. In direct response to Exec. Order No. 13933, DHS, as well as the Department of
Justice (DOJ), took various non-transparent measures to purportedly implement the presidential
directive. Among these, DHS created the “Protecting American Communities Task Force”
(PACT), which includes “Rapid Deployment Teams” or “Rapid Deployment Forces” (RDTs or
RDFs), roving teams composed of federal law enforcement officers to dispatch to protests.23 These
RDTs or RDFs have been deployed to support operations carried out in the name of Executive
Order 13933, such as “Operation Diligent Valor” in Portland, and “Operation Legend” in various
U.S. cities.24
26. CBP and other federal law enforcement presence at peaceful protests has only
served to exacerbate tensions and violence, drawing criticism from elected officials in the cities to
23
In its official announcement, DHS referred to these roving units as “Rapid Deployment
Teams” or RDTs. See Department of Homeland Security, “DHS Announces New Task Force to
Protect American Monuments, Memorials, and Statues,” July 1, 2020,
https://www.dhs.gov/news/2020/07/01/dhs-announces-new-task-force-protect-american-
monuments-memorials-and-statues. However, federal officials have also referred to these patrols
as “Rapid Deployment Forces” or RDFs. See Josh Gerstein, Feds Assemble ‘Operation Diligent
Valor’ Force to Battle Portland Unrest, Politico (July 22, 2020, 9:37 AM),
https://www.politico.com/news/2020/07/22/federal-government-assembles-force-portland-
unrest-377785 (quoting a court declaration by a federal official describing the actions of a “DHS
Rapid Deployment Force”).
24
Gerstein, supra n. 23; Sergio Olmos, et al., Federal Officers Deployed in Portland Didn’t
Have Proper Training, D.H.S. Memo Said, N.Y. Times (July 21, 2020),
https://www.nytimes.com/2020/07/18/us/portland-protests.html; Ken Klippenstein, The Border
Patrol Was Responsible for An Arrest in Portland, The Nation (July 17, 2020),
https://www.thenation.com/article/society/border-patrol-portland-arrest/.
25
Letter from Speaker Nancy Pelosi to President Donald Trump (June 4, 2020),
https://www.speaker.gov/sites/speaker.house.gov/files/06.04.2020.Letter%20to%20President%2
0Trump_2.pdf; Letter from Senator Kamala Harris to Mark A. Morgan, Acting Commissioner,
U.S. CBP, and Matthew T. Albence, Acting Director, U.S. ICE (June 5, 2020),
https://www.harris.senate.gov/imo/media/doc/Harris%20Letter%20to%20CBP%20and%20ICE
%20at%20Demonstrations%20FINAL.pdf; see also, e.g., Klippenstein, The Federal Response to
Protests, supra n. 21; Steve Vladeck, What the Heck Are Federal Law Enforcement Officials
11
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 12 of 19 PageID #: 12
27. DHS has expressed its continued intention to deploy personnel from various sub-
agencies—including CBP—to assist with local law enforcement efforts around the country.26
Recent reporting indicates that DHS is preparing to deploy CBP and Immigration & Customs
Enforcement (ICE) tactical law enforcement teams under the alleged justification of potential civil
unrest following the election.27 As reporting indicates, CBP remains on “standby” at all times.28
28. CBP’s expanded law enforcement role and its participation in PACT remains
29. Plaintiffs seek information that will provide the public with critical insight into
CBP’s recent deployments to U.S. cities—during Floyd Protests, as part of the Protecting
any other capacity—since May 25, 2020. Given that CBP’s core mandate is immigration-related
law enforcement at U.S. borders, the public has a right to know the scope of CBP’s role in these
deployments and understand the basis for CBP’s purported authority to engage in more generalized
12
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 13 of 19 PageID #: 13
30. Plaintiffs filed their FOIA request on July 27, 2020. Ex. A, Plaintiffs’ FOIA
“For the period beginning May 25, 2020 to the present, all records…mentioning, referring,
or relating to”:
1) Requests, communications, and/or correspondence received by DHS, or
CBP directly, regarding the deployment of CBP personnel to U.S. cities—whether at
Floyd Protests, as part of the Protecting American Communities Task Force, or in any
other capacity, anywhere in the United States;
7) Final versions of all policies governing the use of, and/or documents
stating the legal authority or authorities for, any surveillance (including but not limited to
aerial surveillance) by CBP in U.S. cities, whether at Floyd Protests, as part of the
Protecting American Communities Task Force, or in any other capacity;
13
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 14 of 19 PageID #: 14
9) The total number of CBP personnel, per Field Office and/or Sector,
deployed to U.S. cities, whether at Floyd Protests, as part of the Protecting American
Communities Task Force, or in any other capacity; and
32. In their FOIA request, Plaintiffs defined “Floyd Protests” as follows: “For purposes
of this FOIA request, ‘Floyd Protests’ are protests, demonstrations, or gatherings that occurred in
the wake of Mr. Floyd’s death on May 25, 2020, regardless of attribution or official designation,
e.g., ‘Black Lives Matter’ protests or any other variation in name that reasonably relates to protests
33. Plaintiffs further defined “deployment of CBP to U.S. cities” as including, but not
limited to, “all CBP deployments to U.S. cities from late May 2020 to the present, even those not
yet publicly identified by name, including but not limited to: any U.S. Department of Homeland
Security (DHS) Rapid Deployment Force (such as ‘Operation Diligent Valor’ in Portland,
Oregon); any CBP deployments in support of other federal deployments (such as ‘Operation
Legend’); and all CBP deployments as part of the DHS ‘Protecting American Communities Task
14
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 15 of 19 PageID #: 15
34. Plaintiffs also requested a fee waiver because the information they sought is “likely
and is not primarily in the commercial interest of the [requesters]….” Id. at 3-8; 5 U.S.C. §
552(a)(4)(A)(iii).
35. Plaintiffs further invoked expedited treatment of their FOIA request on the basis
that the request met all four criteria for such treatment under the statute and agency regulations.
36. Plaintiffs received email confirmation from CBP that it had received Plaintiffs’
FOIA request by email on July 27, 2020. Ex. B, CBP Confirmation Email.
37. Plaintiffs then received an acknowledgment letter that CBP had received their
38. In the same letter, CBP invoked an extension of 10 days, finding that Plaintiffs’
request entailed “a voluminous amount of separate and distinct records” Id.; 6 C.F.R. § 5.5(c); see
also 5 U.S.C. § 552(a)(6)(B)(i). CBP assigned Plaintiffs’ FOIA request tracking number CBP-
2020-068594. Id.
39. Also on July 28, Plaintiffs received various email communications from CBP.
40. In one email, CBP communicated to Plaintiffs that their FOIA request had been
41. As to Plaintiffs’ fee waiver request, CBP communicated its determination that the
waiver was “not applicable as the request is not billable.” Ex. E, CBP July 28, 2020 Fee Waiver
Disposition.
42. Last, CBP granted Plaintiffs’ request for expedited treatment in another email
15
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 16 of 19 PageID #: 16
43. Nearly three months later, Plaintiffs have heard nothing further from CBP.
44. Because Defendants have failed to respond to Plaintiffs’ FOIA request within the
applicable statutory and regulatory periods, any administrative remedies are deemed exhausted. 5
U.S.C. § 552(a)(6)(C)(i).
45. Plaintiffs face ongoing and irreparable harm by Defendant’s failure to provide a
46. Plaintiffs incorporate each and every allegation contained in the preceding
paragraphs.
47. Defendant has custody and control over the records Plaintiffs seek to make
for records responsive to Plaintiffs’ FOIA Requests. Defendant failed to conduct such a search.
49. Defendant possesses the records Plaintiffs seek and Plaintiffs have a legal right to
obtain such records. No legal basis exists for Defendants’ failure to search for them.
51. Plaintiffs incorporate each and every allegation contained in the preceding
paragraphs.
16
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 17 of 19 PageID #: 17
52. Plaintiffs sought expedited treatment of their FOIA request pursuant to 5 U.S.C.
§ 552(a)(6)(E).
53. Defendant granted Plaintiffs’ request for expedited processing on July 28, 2020,
54. Defendant has failed to provide records as soon as practicable after granting
56. Plaintiffs incorporate each and every allegation contained in the preceding
paragraphs.
on Plaintiffs’ FOIA Request within twenty business days. In unusual circumstances, Defendant
58. Defendant has failed to make a determination within thirty days, the maximum
§ 552(a)(3)(A)(i).
61. Defendant’s failure to make a determination within the statutory time frame and
(a)(6)(B)(i).
17
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 18 of 19 PageID #: 18
a. Order Defendant to conduct a search for records responsive to the FOIA request
soon as practicable in accordance with its grant of expedited treatment under 5 U.S.C.
§ 552(a)(3);
e. Declare that Defendant’s failure to process the Plaintiffs’ FOIA request as soon as
g. Award Plaintiffs reasonable attorneys’ fees and other litigation costs pursuant to
h. Grant such other relief as the Court may deem just, equitable, and appropriate.
Respectfully submitted,
18
Case 1:20-cv-05198 Document 1 Filed 10/28/20 Page 19 of 19 PageID #: 19
Andre Segura
American Civil Liberties Union Foundation of
Texas, Inc.
5225 Katy Freeway, Suite 350
Houston, TX 77007
(713) 942-8146
[email protected]
[email protected]
[email protected]
19