On November 8, 2011, the American Immigration Council (AIC), an immigrant rights advocacy organization, filed this lawsuit against the U.S. Department of Homeland Security (DHS) in the U.S. District Court for the District of Columbia. AIC sued under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. The complaint sought declaratory and injunctive relief, claiming that DHS had failed to make a reasonable search for and disclosure of requested documents concerning individuals' access to legal counsel during their interactions with U.S. Customs and Border Protection (CBP). (That same day, AIC filed a similar lawsuit relating to a similar records request made to a different DHS component, U.S. Citizenship and Immigration Services. For information on that one, see IM-DC-0017 in this Clearinghouse.)

DHS moved for summary judgment, but withdrew the motion voluntarily several months later. On May 22, 2012, DHS filed a consent motion that set out a schedule for a rolling production of responsive documents over a period of between six and nine months, with monthly status reports to the court. Following this period, the parties agreed to consult regarding a renewed briefing schedule.

For more than a year, DHS produced documents on a rolling basis. At the August 27, 2013, status conference, the parties identified nine documents that remained at issue. AIC requested that DHS release four of the nine documents and in exchange, AIC would forego challenges to the exemptions asserted by the defendants in the remaining five documents.

On September 10, 2013, DHS determined that it could not release the four documents in full. A briefing schedule was therefore set. On November 5, 2013, DHS filed a motion for summary judgment and argued that withholding those four documents were appropriate under FOIA Exemption 7, which protects certain information that could be expected to risk circumvention of the law when disclosed.

On February 25, 2014, the district court (Judge James E. Boasberg) decided that an in camera (in chambers) review of the documents in question was necessary and ordered DHS to produce redacted and unredacted copies of the disputed records. On March 21, 2014, Judge Boasberg granted the defendants’ motion for summary judgment after because the in camera review of the documents convinced the court that DHS had a better argument, albeit the thin applicability of the claimed exemptions. The court agreed with DHS that each of the withheld records has a “rational nexus” to the agency’s law enforcement duties, including the prevention of terrorism and unlawful immigration. The documents therefore fell under Exemption 7 of FOIA. As a result, the court granted DHS's summary judgment for Documents 1 through 6 and dismissed as moot AIC's claim regarding Document 7.

On August 29, 2014, AIC filed a motion to set a schedule regarding plaintiff’s attorneys' fees, which the court granted on September 24, 2014. In its motion for attorneys' fees and costs on October 17, 2014, AIC mainly argued for fees and costs because DHS voluntarily and unilaterally changed its position, and that AIC was entitled to reasonable attorneys’ fees and costs because it substantially prevailed under FOIA. AIC also argued that the fees and costs sought were reasonable and that AIC was entitled to those fees because it met all four factors for entitlement: (1) the public benefited from plaintiff’s request, (2) plaintiff derived no commercial benefit from its request, (3) nature of plaintiff’s interest in the information supported award of fees, and (3) defendant’s conduct was not reasonable. On March 10, 2015, Judge Boasberg awarded fees and costs in the total amount of $82,513.42 out of the $131,100.21 that the plaintiff originally sought.

The case is now closed.

Elizabeth Daligga - 07/23/2012
Jennifer Bronson - 11/25/2013
MJ Koo - 04/09/2017


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