McCann v. USCIS, No. 22-2502, 2023 WL 4706223 (E.D. La. July 24, 2023) (Triche Milazzo, J.)

McCann v. USCIS, No. 22-2502, 2023 WL 4706223 (E.D. La. July 24, 2023) (Triche Milazzo, J.)

Re:  Request for records concerning defendant’s decision to issue a Notice of Intent to Revoke (“NOIR”) Permanent Resident Status

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

• Procedural Requirements:  The court relates that “Plaintiff alleges that USCIS improperly withheld duplicates.”  “Although USCIS maintains that the withholding of duplicates is permissible, it has decided, in its discretion, to release all duplicates to Plaintiff.”  “Plaintiff’s argument regarding the release of duplicates, thus, is moot.”

• Procedural Requirements, Consultations and Referrals; Litigation Considerations, Vaughn Index/Declaration:  The court relates that “USCIS referred sixteen pages to ICE on April 13, 2022 and argues that the referral was proper.”  “Plaintiff argues that USCIS, via ICE, unlawfully withheld the 16 pages in full.”  “In its communications to Plaintiff, ICE identifies the documents at issue, indicated which exemptions applied, and labelled each redacted section with the FOIA exemption used to withhold the information.”  “USCIS also submitted [a declaration from] the FOIA Director of ICE, which describes in detail the FOIA exemptions and their application to the records at issue, and provides a Vaughn index.”  “[Defendant’s] declaration also states that a ‘line by line review was conducted to identify information exempt from disclosure,’ and that ‘non-exempt portions were released.’”  “Based on [defendant’s] declaration and the detailed Vaughn index, the Court finds that USCIS has met its burden with regards to the first 16 pages referred to ICE.”  However, the court notes that “USCIS’s Vaughn index and its Motion state that 17 pages were referred to ICE . . . .”  “ICE’s Vaughn index, however, only discusses and applies exemptions to 16 pages of information.”  “Indeed, neither USCIS nor ICE’s Vaughn index discusses the one additional page of referred information.”  “Accordingly, the Court orders USCIS to produce a supplemental declaration addressing this page, and whether it is withheld subject to a lawful FOIA exemption or whether it may be produced to Plaintiff.”

• Litigation Considerations, Adequacy of Search:  The court relates that “[r]egarding the February Release, [defendant’s] declaration states that ‘based on the information sought, certain of the records . . . would most likely be maintained in the Electronic Immigration System [(“ELIS”)].’”  “She also states that the New Orleans District Office was sent the request to search its records after USCIS personnel determined that Plaintiff’s A-file was located there.”  “The affidavit, however, does not explain how the search of ELIS or the New Orleans District Office was conducted.”  “It does not explain who searched ELIS or the New Orleans District Office, or whether the search included both paper and electronic files.”  “It also does not include the search terms used, or what locations were searched.”  “As a result, the declaration lacks the required level of detail.”  The court also finds that “[defendant’s] declarations suffer from similar deficiencies when discussing the search of [other facilities], and the employees’ searches of their personal computers.”  “Specifically, when discussing the search of [one system], [defendant] states that the ‘search terms were the names of individuals including Plaintiff and others named in her request.’”  “The declaration, however, does not state who conducted the search.”  “Regarding the . . . search [in another system], the declaration states that [defendant] conducted ‘an electronic email pull of responsive records,’ but does not state how this search was conducted, whether other records were searched, the search terms used, or who . . . conducted the search.”  “[Defendant’s] declaration as to the searches conducted by [specific employees] only state[s] that the employees ‘searched [their] laptop[s] and email archives,’ without identifying the search terms used.”
  
  Additionally, the court relates that “Plaintiff also argues that the scope of the search was insufficient.”  “The Court agrees and finds the scope of the search to be insufficient to carry Defendant’s burden of showing that all components that likely have responsive documents were searched.”  “USCIS submits [defendant’s] declaration which states that ‘[a]s there are no other components with USCIS that directly deal with the matters raised in the request, no other USCIS Offices were searched for responsive records.’”  “Although the offices searched are those that deal directly with the matters in the requests, other USCIS Offices which indirectly deal with the matters may also likely have responsive documents.”  “While the Court notes that there is ‘no requirement that an agency search every record system,’ a search is not reasonable ‘if there are additional sources that are likely to turn up the information requested.’”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that “USCIS submitted a Vaughn index describing the application of each exemption[, Exemptions 3, 5, 6, 7(C), and 7(E),] to each withheld section.”  The court finds that “[t]he Vaughn index is detailed and meticulous.”  “Plaintiff does not contest the invocation of certain exemptions to certain pages, and only states that USCIS ‘did not segregate and produce the nonexempt responsive withheld information to Plaintiff as mandated by FOIA.’”  “On this record, the Court finds that USCIS’s segregability analysis is sufficient to carry its burden that all responsive, non-exempt information was produced.”