On June 28, 2018, Muslim Advocates and the Center for Constitutional Rights (non-profit legal advocacy organizations) filed this complaint in the U.S. District Court for the District of Columbia against the U.S. State Department, the Department of Homeland Security, Customs and Border Protection, and the U.S. Citizenship and Immigration Service, raising claims under the Freedom of Information Act. The plaintiffs sought injunctive relief, asking the court to compel the defendants to immediately process and release to the plaintiffs all documents relevant to a FOIA request they had submitted in January 2018. They also sought reasonable costs and attorney's fees.

The organizations had requested materials concerning guidance, interpretation, implementation, and enforcement of the waiver provision that was included included in the third iteration of the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Proclamation 9645): the so-called “Muslim Ban.” They also sought a fee waiver, as their request was made in the public interest. The plaintiffs argued that no information about the waiver process had been made available to the public, even though the Supreme Court held in Trump v. Hawaii that the transparency and effectiveness of the waiver program was critical to assessing the ban’s legality.

On November 19, 2018, the parties filed a Joint Status Report detailing progress in the process of producing documents responsive to plaintiffs' FOIA request. The Joint Status Report stated that on October 24, 2018, the State Department provided plaintiffs 51 pages of responsive documents consisting of emails and agency guidance on Proclamation 9645. USCIS stated that it had located 345 pages of documents that were potentially responsive to plaintiffs’ requests; it anticipated that production of the documents would begin in December 2018 and end by mid-January 2019. CPB had found three responsive documents. Finally, DHS reported that it located 3,675 potentially responsive documents, and that it anticipated production to being by December 15, 2018.

While the filing of the December 20 Joint Status Report was delayed owing to extensions ordered by the Court at the request of the parties, three subsequent reports of this nature were filed on February 11, 2019, March 11, 2019, and July 9, 2019. According to the March 11 Joint Status Report, the State Department indicated that it had begun rolling production of responsive documents, and would continue to make such productions on a monthly basis. USCIS stated that it would begin rolling production of 2,700 responsive pages it located in April 2019. CBP reported that production of its responsive documents was complete, and that the agency had provided plaintiffs an explanatory memorandum describing the context and nature of the outcome of the agency’s search for responsive documents. Last, DHS indicated that its review of the 3,709 pages of its responsive documents was ongoing but that it was unable to provide an estimate as to when production would begin.

Additional Joint Status Reports were filed on September 9, 2019, November 8, 2019, and January 8, 2020. According to the reports, USCIS finished its search and review of potentially responsive records, having processed 304 pages itself and referred over 2000 pages to DHS for review, which remained pending. Furthermore, DHS claimed that it had referred parts of the 3,709 pages of responsive documents to the Office of Inspector General for review and ICE and the State Department for consultation, from whom DHS was waiting for a response. DHS was also processing 2000 pages of documents referred by ICE, and would begin review of the documents in February 2020. Finally, per plaintiffs’ request, DHS considered producing a Vaughn index for documents that had been withheld or redacted. (A Vaughn index is a document that identifies withheld documents, states the claimed statutory exemptions, and explains how disclosure of documents would damage interests protected by the claimed exemption.) DHS said it was willing to consider a Vaughn index in a more limited form, and it asked plaintiffs to see if they would challenge any specific withholdings to which a Vaughn index could respond.

This case is ongoing.

Alexandra Gilewicz - 11/12/2018
Bogyung Lim - 02/18/2020


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