Borromeo v. Mayorkas, No. 22-00289, 2023 WL 2249966 (E.D. Va. Feb. 27, 2023) (Tolliver Giles, J.)

Borromeo v. Mayorkas, No. 22-00289, 2023 WL 2249966 (E.D. Va. Feb. 27, 2023) (Tolliver Giles, J.)

Re:  Requests for plaintiff’s, as well as plaintiff’s mother’s, immigration records

Disposition:  Granting defendants’ partial motion to dismiss

• Litigation Considerations, Statute of Limitations:  “[The] Court finds that any claims related to the adequacy of Defendants’ search or the withholding of records in connection to Plaintiff’s First Request in 2014 are barred as untimely pursuant to 28 U.S.C. § 2401(a).”  “Under 28 U.S.C. § 2401(a), ‘every civil action[,]’ including the FOIA, ‘commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.’”  “Plaintiff concedes that the Complaint was untimely as to her First Request and that she cannot ‘demonstrate extraordinary circumstances to justify the application of equitable tolling in this case to establish a timely filing of the Complaint after the 2014 USCIS FOIA appeal decision.’”
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that “Plaintiff has failed to exhaust administrative remedies for her claim that USCIS performed an inadequate search as to her Second Request and is barred from raising this claim before this Court.”  “Plaintiff fails to respond to Defendants’ argument that she did not challenge the adequacy of USCIS’ search in her administrative appeal.”  “Thus, the Court finds that Plaintiff has conceded that she failed to fully exhaust administrative remedies.”  “Even without this concession, the Court finds that the record herein demonstrates that Plaintiff failed to exhaust administrative remedies as to her Second Request.”  “Plaintiff administratively appealed USCIS’ decision on the basis of an ‘excessive amount of withholding’ and ‘incorrect or over inclusive’ application of the FOIA exemptions.”  “Nothing in Plaintiff’s appeal letter challenged the adequacy of USCIS’ search or requested USCIS perform a new or enlarged search.”
  
  The court also finds that “Plaintiff’s appeals of her Third and Fourth Requests put USCIS on notice that Plaintiff sought to challenge the application of FOIA exemptions and withholding of documents.”  “Those appeals also made USCIS aware that Plaintiff sought, specifically, the visa packet referenced in the FOIA record.”  “USCIS’ actions, as evidenced by its February 3 decision letter, indicate that USCIS believed Plaintiff’s appeal was limited to locating the visa packet.”  “The plain text of Plaintiff’s appeal letter (1) challenged the withholding of documents and (2) highlighted the ‘repeated references’ in the FOIA record to, and requested a new search for, the visa packet.”  “Thus, Plaintiff’s appeal is reasonably construed as being limited to those two categories.”  “For these reasons, Plaintiff has failed to exhaust administrative remedies for her claim that USCIS performed inadequate searches as to her Third and Fourth Requests – except the aspect of Plaintiff’s claim regarding a search for a visa packet.”
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court finds that “[i]n adjudicating Plaintiff’s Fourth Request, USCIS informed Plaintiff it had identified 69 pages responsive to Plaintiff’s request.”  “USCIS initially enclosed 34 pages in their entirety, and informed Plaintiff it was withholding 7 pages in full and 28 pages in part (35 pages in total) pursuant to certain FOIA exemptions.”  “Later, in response to Plaintiff’s administrative appeal of that decision, USCIS released 35 additional pages in full and notified Plaintiff that there ‘was no evidence of a Visa Packet at the National Records Center.’”  “The 35 pages released in full in response to Plaintiff’s administrative appeal appear to be consistent with the 7 pages (in full) and 28 pages (in part) that were initially withheld from disclosure, a fact which Plaintiff does not acknowledge or respond to in her briefing.”  “Considering both parties’ pleadings and exhibits, this Court finds that Plaintiff has not presented facts sufficient to support by a preponderance of evidence her claim that USCIS has withheld documents in response to her Second and Fourth Requests.”