Am. Immigr. Council v. EOIR, No. 23-1952, 2025 WL 506572 (D.D.C. Feb. 14, 2025) (Contreras, J.)

Am. Immigr. Council v. EOIR, No. 23-1952, 2025 WL 506572 (D.D.C. Feb. 14, 2025) (Contreras, J.)

Re: Request for records concerning advancement of hearings, motions to continue, and related issues

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiffs’ motion for summary judgment

• Exemption 6; Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  “Because Plaintiffs do not dispute the application of Exemption 6 or that the agency satisfied its segregability obligations, the Court grants EOIR summary judgment on those issues.”
   
• Procedural Requirements, Searching for Responsive Records:  “[T]he Court determines that EOIR properly construed Plaintiffs’ FOIA request as to records held by [the Office of the Chief Immigration Judge (“OCIJ”)] and complied with its obligations when it declined to search for records relating to implementation of a rule that has yet to come into effect.”  “EOIR nonetheless should have expanded the scope of its search to reach records likely to be held by Assistant Chief Immigration Judges that govern individual immigration courts.”  First, “Plaintiffs contend that EOIR’s search for solely ‘officially issued’ and ‘centrally disseminated’ guidance documents improperly narrowed their request.”  “Plaintiffs requested ‘EOIR records of guidelines, procedures, protocols, or policies relating to’ a series of immigration court practices, including advancement of merits hearing dates, adjudication of motions to continue, notification of parties, and selection of new hearing dates following advancement.”  “EOIR argues that Plaintiffs’ targeting of guidelines, procedures, protocols, and policies reaches only ‘official’ documents, as those forms of documents are official ‘by their nature.’”  “The Court agrees with this interpretation of the FOIA request.”  “Plaintiffs contend that the text of their request is broader because it defines ‘records’ to include a wide range of media.”  “But the scope of requested documents cannot be broadened by a generic footnote advising the agency that Plaintiffs sought the records in any available form.”  “Plaintiffs additionally fail to broaden the scope by emphasizing the words ‘related to’ in the request.”  “The request does not seek records relating to the guidelines or policies, but rather guidelines or polices related to certain topics.”  “Plaintiffs thus sought the policy records themselves, not a broader scope of documents related to those records.”
  
  “The Court does not agree, however, with EOIR’s stance that Plaintiffs requested solely centrally disseminated records.” “Several provisions of the Code of Federal Regulations imply that individual immigration courts oversee scheduling of their own matters.”  “These provisions demonstrate that responsive records are likely to exist within individual immigration courts rather than within OCIJ alone.”  “Thus, EOIR’s decision to search within OCIJ alone improperly narrowed the scope of Plaintiffs’ request.”
  
  “Finally, Plaintiffs contend that ‘Defendant has not offered sufficient foundation for determining that records responsive to Item 1.e do not exist.’”  “This portion of the request sought ‘records of guidelines, procedures, protocols, or policies relating to . . . [t]he agency’s implementation of the November 27, 2020, Notice of Proposed Rulemaking titled “Good Cause for a Continuance in Immigration Proceedings.”’”  “Yet the policy document clarifies that “the proposed regulatory changes” in the notice of proposed rulemaking ‘are not in effect.’”  “Plaintiffs’ request is itself difficult to parse, as it is not easy to understand how an agency might issue guidelines, procedures, protocols, or policies relating to implementation of a rule that has not yet been promulgated.” “Plaintiffs do not clearly describe the records they search for, other than to speculate that EOIR ‘may have implemented aspects of the proposed rule through other means.’”  “This vague language does not ‘reasonably describe[ ]’ the records sought.”
   
• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  “The Court determines that EOIR’s search for records within OCIJ was adequate, but that the agency must search for responsive records within ACIJ accounts and shared drives, which are more likely to contain local immigration court orders responsive to Plaintiffs’ FOIA request.”  “EOIR’s methods to search for records within OCIJ were reasonably calculated to uncover guidance documents responsive to Plaintiffs’ request.” “[One judge] first performed a manual search of her email account.”  “That account was likely to contain any extant records of guidelines, procedures, protocols, or policies relating to immigration court advancement of merits hearings, motions to continue, and processes for selecting a new hearing date because [that judge] would have been included on those communications when she served in various leadership positions reaching back to 2015.”  “EOIR then conducted a keyword search of [the judge’s] email, along with those of the two previous Chief Immigration Judges.”
  
  “EOIR has not conducted an adequate search, however, for responsive records that may exist outside of OCIJ.”  “The agency explains that it ‘has no reason to believe that individual immigration courts have enacted guidelines, procedures, protocols or policies related to the subitems specified in the request that would deviate from any centrally issued guidelines, procedures, protocols or policies.’”  “The agency does not explain why this is so, particularly given that immigration courts may establish their own local operating procedures.”  “Plaintiffs additionally provide some local operating procedures that govern the scheduling of hearings and appear to be signed by ACIJs.” “Plaintiffs’ FOIA request also specifically targeted procedures used by ‘[i]mmigration courts’ and ‘[i]mmigration judges’ rather than EOIR-wide policies.”  “The Court is thus left with ‘substantial doubt as to the sufficiency of the search,’ which precludes summary judgment.”