Smith v. ICE, No. 16-2137, 2017 WL 1246488 (D. Colo. Apr. 5, 2017) (Martínez, J.)

Smith v. ICE, No. 16-2137, 2017 WL 1246488 (D. Colo. Apr. 5, 2017) (Martínez, J.)

Re: Request for client's alien file

Disposition: Denying defendant's motion to dismiss

• Litigation Considerations, Mootness or Other Grounds for Dismissal: The court holds that "[plaintiff] . . . possesses Article III standing to pursue this lawsuit beyond the pleading phase." The court notes that this case concerns defendant's "self-described practice of denying requests under the [FOIA] if those requests might assist a fugitive alien." The court relates that "[plaintiff] alleges that FOIA requests are an integral part of her practice as an immigration attorney because most of her clients are not legally savvy and therefore the client's A-File is often the only useful record of '[the] agency [the client] met with, and what type of interaction transpired, and what the legal issues may be.'" "[Plaintiff] also alleges that she 'regularly submits FOIA requests to the government that are related to non-citizen clients who may be deemed to be "fugitives" by ICE.'" "[Plaintiff] has also alleged three instances in which her FOIA requests have been denied based on the Fugitive Practice." "Finally, ICE's own words establish that ICE indeed has a self-described 'practice' of denying FOIA requests that could assist a fugitive alien." The court finds that, while "[plaintiff's] case in this regard is not overwhelming[,]" "[o]n this record at the pleading phase, the Court finds that [plaintiff] has presented a sufficiently 'concrete' allegation of likely future harm based on the Fugitive Practice – sufficient, at least, to meaningfully 'reduce the possibility of deciding a case in which no injury would have occurred at all.'"