On Oct. 5, 2017, the organizations Muslim Advocates, Southern Poverty Law Center, and Americans United for Separation of Church and State, brought this suit in the U.S. District Court for the District of Columbia. Plaintiffs sued the Department of State (DOS), Department of Homeland Security (DHS), and the latter's component U.S. Customs and Border Protection (CBP), under the Freedom of Information Act (FOIA).

Plaintiffs are nonprofit organizations promoting civil rights and civil liberties. According to their complaint, they seek information on persons affected by the Trump administration's travel ban, so that they may advise and assist travelers. Plaintiffs noted that, according to both the Executive Orders and the latest Proclamation, CBP is authorized to grant case-by-case waivers for people whom the travel ban would otherwise exclude.

The complaint alleged that on June 27, 2017, plaintiffs had submitted a FOIA request to defendants seeking records created on or after Jan. 27, 2017, concerning the waiver provisions, including:

1. Policies, practices, and procedures that went into effect on or after Jan. 27, 2017, relating to criteria for evaluating individual waiver requests;
2. Policies, practices, and procedures that went into effect on or after Jan. 27, 2017, concerning how officers should determine when a waiver request should be granted;
3. Internal guidance on how to assess when denying an individual's entry "would cause undue hardship" or when "his or her entry would not pose a threat to national security and would be in the national interest";
4. Processes for accepting and adjudicating waiver requests;
5. The person or office to whom waiver requests should be directed;
6. The number of waiver requests received by defendants or any other DHS component agency;
7. The number of waiver requests granted by defendants or any other DHS component agency, and the reasoning for the grants;
8. The number of waiver requests denied by defendants or any other DHS component agency, and the reasoning for the denials;
9. Any guidance provided to defendants' field personnel regarding the waiver provisions of the Second EO;
10. Any memoranda providing guidance for defendants or any other DHS component agency, on enforcement of the waiver provisions of the Second EO in light of federal court decisions granting preliminary injunctions against the implementation of the EO.

The complaint further alleged that, to date, plaintiffs had not received a substantive response from defendants. Plaintiff sought a disclosure order under FOIA, legal fees, and expedited action.

On Oct. 6, 2017, the case was assigned to Judge Tanya S. Chutkan. The parties filed a status report on Feb. 20, 2018, stating that all defendant agencies had initiated searches. Status reports filed in June and October indicated that the government had produced some responsive records and that the review and production of additional records was ongoing.

Document production continued largely without incident in ensuing status reports. However, in early 2020, the State Department reported significant delays in document production due to an inability to access files because of in-person work restrictions due to the COVID-19 pandemic. The Department disclosed this in a June 2, 2020 status report, and the plaintiffs were concerned at the lack of ability to remotely access documents.

Another status report is due on August 3, 2020. The case is ongoing.

Ava Morgenstern - 04/21/2018
Virginia Weeks - 10/30/2018
Ellen Aldin - 06/09/2020


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