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Nightingale v. USCIS, No. 19-03512, 2020 WL 7640547 (N.D. Cal. Dec. 17, 2020) (Orrick, J.)

Date

Nightingale v. USCIS, No. 19-03512, 2020 WL 7640547 (N.D. Cal. Dec. 17, 2020) (Orrick, J.)

Re:  Request for declaration that failure of DHS, USCIS, and ICE to make timely determinations on requests under FOIA for Alien Registration Files constitutes an unlawful pattern and practice

Disposition:  Granting plaintiffs' motion for summary judgment; granting plaintiffs' request for declaratory relief

  • Litigation Considerations, Pattern-or-Practice Claim:  The court holds that "the evidence is clear that USCIS, ICE and DHS have a pattern of unreasonable delay in responses to A-File FOIA requests."  "Even if there is no 'egregious' policy to violate FOIA's statutory deadlines, 'informal agency conduct resulting in long delays in making requested non-exempt records available may serve as the basis for a policy or practice claim.'"  The court explains that "no genuine issue of material fact exists here regarding defendants' 'unmistakable history' of failing to make timely determinations on A-File FOIA requests."  "USCIS has reported a backlog for each of the last eight years."  "The backlog has increased in recent years."  "It increased by more than 6,000 cases between June and August 2020."  "Ninety-nine percent of the total FOIA requests that USCIS receives are A-File FOIA requests that 'account for the largest portion of DHS' FOIA backlog.'"  "The average processing time for USCIS continues to exceed well beyond the statutory deadline of 20-days, or-30-days in 'unusual circumstances.'"  Additionally, the court explains that "ICE has also reported a backlog for each year since 2012 that has steadily increased since 2015.  As of August 11, 2020, ICE's backlog recorded at 56,661 requests."  "The 'vast majority' of ICE's backlog consists of A-File FOIA requests; all of ICE's backlogged A-File FOIA requests originated with USCIS as the custodian of A-Files."  Finally, the court explains that "DHS ultimately shares responsibility with its component agencies for the chronic failure to comply with the FOIA statute."  "It admits that 'FOIA backlogs have continued to be a systemic problem at DHS' and that '[r]equests for A-file material comprise the vast majority of DHS's FOIA workload.'"  The court finds that "[d]efendants do not rebut the evidence discussed above."  "They do not dispute that there has been a systemic failure across the agencies to make timely determinations on A-File FOIA requests and that noncitizens experience significant delays in obtaining their A-Files nationwide."  "Instead, defendants contend that the backlogs fail to reflect the incredible volume of incoming A-File requests received since 2012 and their good faith efforts to address the problem."  However, the court finds that "this argument appears to 'confuse whether the evidence supports a finding of a pattern or practice of FOIA violations with the basis for injunctive relief,' a separate inquiry that I will address below."  However, "[the court] will assume that the 'exceptional circumstances' and 'due diligence' defenses are applicable to the pattern or practice claims in this case."  "But the voluminous record here does not support defendants' position." The court also holds that "[d]efendants cannot use a predictably increasing workload to excuse their chronic failure to make timely determinations on A-File FOIA requests."  The court finds that "a reasonable fact finder could only conclude that defendants' increasing workload was predictable."  "[The court explains that it is] not considering a sudden spike in cases; defendants have had a FOIA backlog every year since at least 2012."  "Moreover, since 2017 these defendants have employed aggressive immigration enforcement policies that made an increasing workload predictable and expected."  "The unfortunate reality is that FOIA is the only realistic mechanism through which noncitizens can obtain A-Files."  "Given the critical importance of the information in A-Files to removal defense and legalizing status, it is not at all surprising that the number of A-File FOIA requests have increased along with this increase in immigration enforcement."  "Nor does the record demonstrate reasonable progress in reducing the backlog of pending requests."  "Rather than seek congressional funding, defendants continue to rely on a patchwork of short-term fixes – overtime, staff detailed from other departments, and contract support – none of which has succeeded in the long-term."  "One would expect that as an agency that 'consistently receives more FOIA requests on an annual basis than any other federal agency,' USCIS would have a proportionately higher number of FOIA staff to meet that demand."  "There is no evidence in the record that defendants have even attempted, let alone succeeded, in persuading Congress to change the law [that defendants contend prevent defendants from receiving congressional appropriations for their FOIA operations and, therefore, USCIS has to rely on its own generated income or provide additional funds to achieve compliance] or provide additional funds to achieve compliance."
     
  • Litigation Considerations, Preliminary Injunctions:  The court notes that "[d]efendants admit that the 'current FOIA process raises several concerns,' including delay that 'adversely impacts [noncitizens], delays immigration proceedings, and potentially extends detention.'"  The court finds that "[t]he likelihood of recurrence continues as thousands of class members either still have unanswered A-File FOIA requests in the agencies' backlog or will file an A-File FOIA request that will likely end up in the backlog."  "The character of the past violations, discussed above, also weighs in favor of granting injunctive relief."  "Defendants' recent efforts, including those taken in response to this lawsuit, do not undermine the need for comprehensive injunctive relief."  "They have done little to address the systemic problem and do not indicate that defendants have created a path forward towards achieving substantial compliance with FOIA's statutory deadlines."  The court grants plaintiffs' requested relief of "(i) permanently enjoin[ing] defendants from continuing to violate FOIA, ordering them to adhere to the FOIA timing requirements [and] (ii) clear[ing] the A-File FOIA backlog within thirty (30) days."  In response to defendants' contention "that an order requiring elimination of the backlog within thirty (30) days, is 'unworkable' and 'likely impossible[,]' [the court] do[es] not require 100% compliance."  "[The court] do[es] expect substantial compliance within sixty (60) days in light of the importance of plaintiffs' receipt of A-files in a timely fashion."  Regarding "[p]laintiffs' final form of requested relief, an order compelling DHS and ICE to provide notice to all persons in removal proceedings of their right to request their A-File through FOIA and how to do so," the court holds that "[it has] broad equitable powers under FOIA, but [the court] cannot see how this particular form of injunctive relief 'is necessary to effectuate the congressional purpose behind the [FOIA] statute.'"
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Policy-or-Practice Claims
Litigation Considerations, Preliminary Injunctions
Updated January 12, 2021