Judge Tells CBP That It Certainly CAN Be Sued For Its FOIA Response Foot Dragging

from the there's-a-reason-the-CBP-is-rarely-the-'moving'-party-in-FOIA-lawsui dept

Customs and Border Patrol, like many government agencies involved with law enforcement and/or security, isn’t all that thrilled that Joe Citizen can demand access to its records. When not dragging its feet on requests, the agency actively thwarts FOIA requests, albeit using more than the normal “so sue us” non-response.

The DHS’s Inspector General found that over a three-year period (2011-13), the CBP “mishandled” 23,000 FOIA requests. “Mishandled” is a misnomer. The agency improperly closed 11,000 requests. The other 12,000 requests were stashed in boxes and forgotten, never making their way into the CBP’s FOIA response system.

A class action lawsuit has been brought against the agency for its “pattern and practice of failing to respond to FOIA requests within the statutory timeline.” The plaintiffs are five immigration attorneys and thirteen non-citizens, the latter of which have found it difficult to remain in the country legally thanks to the CBP’s unwillingness to turn over documents pertaining to their immigration status. (via Courthouse New Service)

The order notes that the CBP does not challenge the assertion that it doesn’t respond in a timely fashion. But, as the plaintiffs point out, this is a problem that the CBP doesn’t seem to be interested in solving. As it stands now, it’s unlikely the CBP will get its FOIA act together. At least not in the near future. Or possibly ever.

CBP does not seriously dispute that it has failed to respond to plaintiffs’ FOIA requests within the statutory timelines. See, e.g., Dkt. No. 29 at 2 n.1. Plaintiffs also allege that CBP’s FOIA backlog — the number of requests that have gone unanswered past the statutory deadline — has swelled over the last few years and will require almost 10 years to zero out at the current pace.

While the CBP doesn’t dispute the accusations of consistently tardy responses, it does make the dubious assertion that a pattern of late (or nonexistent) responses just isn’t an actionable injury in the context of a class action suit.

No sale.

The government says that the case should be dismissed because an agency’s failure to meet the response deadline is not an actionable violation of FOIA. Dkt. No. 26 at 4. That argument is wholly at odds with the statute and cases construing it. FOIA’s intended purpose is to assure timely public access to governmental information and records. As Congress stated, “‘[i]nformation is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial.’” Gilmore v. U.S. Dep’t of Energy. The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent.

If the people the law is supposed to serve are going to be granted an opportunity to seek redress for their grievances, than you’d better believe FOIA-related foot dragging is actionable — no matter how much the CBP wishes that weren’t the case.

The government grudgingly acknowledges that “[s]ome Northern District of California decisions have recognized claims for delay in responding to FOIA requests” — which of course overlooks the decisions outside this District that reach the same conclusion — but urges the Court to discount them because they pre-date the District of Columbia Circuit opinion in CREW. In the government’s view, CREW undercuts these cases because it holds that the failure to meet FOIA’s deadlines has no legal consequence other than “an agency’s forfeiture of the exhaustion of administrative remedies defense.”

The CBP could not be more wrong, says Judge James Donato.

This argument is tantamount to a willful misreading of CREW. The case says nothing at all about the vitality of a FOIA claim based on a violation of the response deadline. The sole “question presented” in CREW “concerns when a FOIA requester must exhaust administrative appeal remedies before filing suit.” CREW held that when an agency fails to respond to a FOIA request within the statutory timeline, it cannot invoke an administrative exhaustion argument to keep cases out of court.

The government also argues the plaintiffs have no standing because their accusations require “specific allegations of future harm.” Again, Judge Donato points out the error in its thinking.

Once again, CBP’s position is bereft of support. It does not cite a single case holding that specific allegations of futurity are essential to a pattern and practice claim or standing under FOIA. To the contrary, several cases have allowed pattern and practice claims for unreasonable delay — and recognized a plaintiff’s standing to bring them — “even where the plaintiff’s FOIA request had already been resolved.” Gilmore, 33 F. Supp. 2d at 1186 (and cases cited therein).

In Payne itself, the case on which CBP hangs its hat, the court sustained a claim for undue delay despite the fact that the agency had released the specific documents that prompted the lawsuit. And even if allegations of future harm were required, plaintiffs have stated enough facts to infer it here. Plaintiffs include several immigration attorneys, some of whom have practiced for decades, who “regularly file[]” FOIA requests on behalf of their clients. It is more than plausible to infer that they will continue to make regular FOIA requests for the CBP documents that are critical for their work, and continue to experience improper delays.

The plaintiffs haven’t actually been handed a win here, but rather survived a motion to dismiss from the government. But the court’s reading of the government’s arguments here show it’s not too impressed with the CBP’s excuses for its miserable track record on FOIA responses.

The most disheartening aspect of this lawsuit, however, is contained in the plaintiffs’ complaint. The CBP’s delaying tactics have generated a 10-year backlog of unanswered requests. That backlog will only continue to grow as more and more people avail themselves of FOIA tools provided by the government. The government has opened up the process and made it more accessible, but has yet to fix the bottlenecks in the system — recalcitrant agencies and/or those that are simply understaffed. The problem will continue, as will the lawsuits, for the foreseeable future, no matter the outcome of this particular case.

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Comments on “Judge Tells CBP That It Certainly CAN Be Sued For Its FOIA Response Foot Dragging”

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Anonymous Coward says:

There is a cure to all this mishandling of FOIA requests. When an agency loses it’s case, make the head of the branch as well as it’s senior representatives personally responsible for breaking the law. Make that a federal law and you will see a sudden about face from all these government agencies.

If they lose the case, the taxpayer doesn’t pick up the bill, those in charge do. I don’t think it would take more than one or two cases to see an about face on FOIA actions.

Most likely a lot of them would retire to avoid the penalties which at this point is exactly what is needed to remove a lot of these purposeful misunderstandings of the law and stone walling to avoid responsibility.

Getting such a law established and passed would require whole sale throwing out of those new in congress and I can’t help but think given the way things are, that would be an improvement.

Anonymous Coward says:

Re: Re:

Most likely a lot of them would retire to avoid the penalties which at this point is exactly what is needed to remove a lot of these purposeful misunderstandings of the law and stone walling to avoid responsibility.

We already have revolving doors between the defense industry and government agencies. You’re hoping to open it up to the rest of industry as well? 🙂

david deen says:

Cruel & Illegal Actions by the Customs & Border Patrol Gestapo Squad

In April of 2016 a young girl was preparing to make a 10,000 mile journey across the globe to finally be united after a long wait to marry her fiancé in the U.S.
She just received her fiancé k1 visa after a 12 month wait. They communicated with each other for a year and a half every single day over Skype. With her newly born excitement she quit her job, gave away some of her possessions and departed for the airport. There was not much to go back to as a new life would begin with the man she fell in love with in the U.S.
Little did she know she would never arrive to her final destination as she would be turned away by the U.S. government Gestapo border squad called the CBP.

Background of the CBP: Customs and Border Protection is the trial, Judge and jury of the U.S. Government policing our vulnerable border entry points.
With more than 60,000 employees, CBP is one of the world’s largest law enforcement organizations and is charged with keeping terrorists and their weapons from entering the U.S. borders, while also validating travelers from committing travel fraud. The agency was granted its full power in 1996, when the U.S. Congress with President Clinton gave them the authority to remove any traveler or migrant they see fit from the United States and without the need for a hearing before an immigration judge.
In addition to the removal they can also make an arrest.
A criminal fraud statute provides for sanctions to those presenting false information to customs officers, with violators facing a maximum of 2 years imprisonment, or a $5,000 fine, or both, for each violation involving an importation or attempted importation.
With millions passing through our borders it is their job to make sure terrorists, smugglers, & criminals don’t make it into our country.

Our encounter with the CBP is an unfortunate event and not unique as countless others have experienced similar problems that have been reported and many more that have gone unreported by travelers.
While traveling to the Philippines in January of 2015 I was lucky to have met the woman I would spend the rest of my life with. Returning home 30 days later, I immediately had her file an application for a tourist visa to come visit me in the U.S. But the process was taking too long and I proposed we marry instead. Within a few weeks I filed for the K1 Fiancé visa.
This changed our status from friends to fiancé locking us into a marriage contract built by love. During the long waiting period I had returned 2 more times each visit for 30 days giving us more time to know each other better & develop a stronger relationship.
As soon as she arrived at LAX airport the CBP brought her in for interrogation. It was unexpected since she already was meticulously examined and interviewed by the U.S. Embassy in Manila.
Later they would hint something in her file made the CBP suspicious about her fiancé entry request.
After the basic kindergarten questions a cold female CBP officer asked her if she could recognize a picture of my 1st ex-wife from 25 years ago. She couldn’t answer the question because I didn’t have any pictures of my ex-wife from 25yrs ago and didn’t discuss many details about that relationship. Later I would find out the picture they showed her was not my ex-wife but an unknown woman who was never identified.
This made the CBP officer more suspicious and told her your fiancé is still married and living with his prior ex-wife. A fabricated lie from the officer because in reality this divorced ex-wife was not living in the USA and moved to Russia some time ago to live with her family.
But since her mailing address was still registered with the DMV as my mailing address made the CBP officer more suspicious. Then the officer asked if she had a contract to come work for me as a domestic helper. When she told her no, the officer called out loud, “you’re lying”! And continued with her suspicions accusations to say you are coming to the U.S to find a job then divorce or leave your fiancé and bring your daughter here.
When the CBP officer heard her state no it’s not true she yelled at her, “you’re a liar”.
The overall aggressive behavior started to make this poor naïve girl worry these officers can hurt her, as in her country when the gov’t officials bring you in they can do as they please and a young girl will have no recourse.

After more screaming and accusations to break her down the CBP officer stated you have committed fraud to enter the U.S. on a fiancé visa as we have found you’re arrival here for the intent of employment. As they prepared her paperwork to return her back to the Philippines they placed her in a locked room and prepared her removal paperwork. She would ask if she could call her fiancé, family, or embassy and was denied any communications. In their custody they held her cell phone where they could of observed all the hundreds of pictures of the 2 of us together, and the everyday Skype chats which could of also confirm our marriage bond. But they refused for some reason to see or report the truth. We also made a video of us together during my 2nd visit to the Philippines but this would never have a chance to help the situation.
When they brought her back into the interrogation room it was basically over for her at this point. Now the CBP officers needed to wrap this case up & get their scorecard brightened up, maybe for their next promotion.

The intimidating CBP officer in a threatening manner would tell her I can pick up the phone and put you in jail for 5yrs for lying & committing fraud. But the law actually states it’s a 2 year sentence and not 5. Perhaps the officer forgot to read her manual.
She held a bunch of papers and said if you just want to go home I need you to sign these papers. Without explanation of what these papers were or allowing her anytime to review these papers the poor girl frightened by the officer & fearing she may never see her family again signed the pages blindly to end the torture.
After she signed she realized a big mistake was made when the officer told her you cannot come back to the U.S. for the next 5yrs.
To make the matter even worst, signed copies of the officer Sworn Statement and expedited removal forms where never placed inside a small yellow envelope she received from the airline upon landing in her home country.
It seemed these papers were deliberately omitted by the officer to further hide her actions and deter any future complaints.

It took over a month for me to finally obtain copies of these documents from the Freedom of Information Act or FOIA which included the questions and answers they wrote on her behalf. She tried to call from Philippines many times to the CBP office at LAX but was never connected to a supervisor to request the copies of the missing papers that we needed to review and understand why they returned her home.
When I received the final copy with her initials and signatures I was shocked by the computer typed answers next to each question.

Immediately after her deportation I was devastated by the news and immediately sought legal counsel as I changed my schedule to leave the U.S. and be with her during this tragic time.
I searched on-line for answers and guidance where I found contact information for the CBP complaint dept in Washington D.C. When I phoned them I was relieved to speak with someone that was sympathetic to my situation.
I was directed to complete certain complaint forms and obtain releases which I did and uploaded all the information to their investigative dept.
There 1st reply to me requested I send them the officers statement which we did not have at the time and were not aware these forms were supposed to be provided. I replied she never received these forms and the CBP complaint dept told me they cannot do any investigation without this form. They also did not believe she was not provided copies of these forms at deportation and suspected her of concealing or lying about the forms. I could not understand how the head dept. of the CBP could not pull up these forms themselves.
It took more than 30 days of persistent attempts to obtain these forms as the CBP refused to release them for unknown reasons.
When I finally sent the CBP complaint dept. the obtained forms I felt relieved that action would finally take place.
But in fact nothing would happen except lost time in waiting. I was told there was nothing they could do. They had sent my information to the CBP California branch but nothing would ever come of it.
I was praying my hired attorney would be able to get better results from them. But they also ignored his letters and the letters from a local congresswoman as well. Only after about 4 months a response from the CBP was issued.
It was a stock template letter that had gibberish in it regarding examples of how to provide economic ties to their place of residence. It stated what ties where, “”Ties” are the various aspects of a person’s life that bind him or her to his or her country or residence and are categorized by one’s possessions, employment, and social and family relationships.”
This had absolutely nothing to do with our case and was further proof how the CBP did nothing to investigate the complaint and their arresting officer’s abusive actions.
Now let me highlight some of the CBP officer’s action regarding her sworn statement form.
Q. “Did you sign up for the website so you could find an American husband?”
A. I signed up to find a husband not specifically and American husband.

Q. Why did Mr. ______ list himself as your friend under your U.S contact on the B1/B2 visa application and not as your boyfriend?
A. The application was filed before the Fiance visa petition began. The officer took this as part of her fraud suspicion to assume there was no intimate relationship.

Q. Is it your intention to marry Mr. DEGEN only to bring your daughter so that you both can live in the u.s. legally?
A: Yes. (The CBP officer interpreted this question as part of the sole purpose of her arrival. Strictly coming for the purpose of bringing her daughter to the U.S.)

Q. Were you coming to the u.s to be a domestic employee for Mr. DEGEN and his ex-wife, who is living with him at this time?
A. Yes, ma’am. (I freaked when I saw this, but she swore she never gave the Yes answer and it was the CBP officer who falsely wrote her own answer and not the one given)

Q. How much money did Mr. ____ offer you?
A: I don’t understand. I will work for him and for myself. (She replied “I don’t understand because she already told her “I am not coming to be a domestic employee. And if I don’t have enough money I can always get a job.” )

Q: Were you going to work for free?
A: No, he was going to pay me but I am not sure how much (My fiancĂ© NEVER said No to this question & never said “he was going to pay me”, this statement is UNTRUE! This question was never asked and the answer was fabricated by the officer)

Q: Did he give you details of when he was married and why he divorced his prior wife’s?
A: No ma’am.( The officer did not say prior wife, officer said 1st wife from 25 yrs ago which she did not have the information. I assumed this question would further enforce the CBP’s suspicions of a fraudulent relationship)

Before the interrogation began the CBP officer advise her the session will be recorded. But I was never able to obtain this recording and kept calling the complaint dept. asking them to review the recording with her actual given answers.
I still do not understand the role of the CBP complaint dept. in Washington. If my complaint was dismissed then what is their purpose or role?
Finally to get rid of my nagging they suggested I file a redress complaint with Homeland security.
This is the only real help I received as I quickly learned the Dept. of Homeland Security investigates wrongful entry denial issues.
After filing another complaint and sending them all the forms, notarized statements, and proof we were put on a waiting list for an investigation.
This again is no quick process, after 100 day wait I was told they will start and come to a resolution within the next 30 days.

The CBP is a large enforcement group with many good dedicated officers making sure our country remains protected from the bad people. It’s a shame there are some who do not follow the U.S. laws, procedures, and guidelines as we came into contact with one of their bad apples.
It’s a further shame the bureaucracy and incompetence of the CBP to enforce and follow through complaints is discarded into the unknown.

We have waited so long to be together and now precious time we could use is being lost that we will never recover.
This has caused an emotional & financial strain on my life with unexpected, legal & travel expenses, loss of work, and loss of health. To date my fiancé is unable to be re-employed after quitting her job.
A situation such as this should never have to happen for anyone abiding honestly by the immigration laws.

I would advise everyone to stay away at all costs from CBP officer’s Lorraine Tapia and officer Lau stationed at LAX airport. You should avoid confrontation with them if possible.

Finally after a long 5 month wait I received a response from DHS redress dept. My hopes for a proper investigative resolution were shattered upon the receipt of the letter. This was another boiler plate response with an added paragraph stating the CBP would also send me a letter shortly and the case was closed by DHS without any positive conclusions.
Next day the CBP letter came with a paragraph describing the duties of the CBP and a reason why my fiancé had been deported. But all my complaints were ignored and not identified in either letter.
I realized dealing with the government and bringing the injustice to the surface was just a waste of time. My complaint was ignored and the officers’ cruel behavior was covered up by the officials. Our future we had planned and waited for so long was destroyed. The only option now was to start a new plan from the beginning and try again, meanwhile losing another 1 to 2 years of waiting while being separated.

Other CBP Complaints:
Lopez-Venegas v. Johnson
Deceptive tactics used by Border Patrol agents and ICE officers to convince noncitizens to accept “voluntary return.”
The complaint alleged that Border Patrol agents and ICE officers have a pattern and practice of pressuring undocumented immigrants to sign what amount to their own summary expulsion documents.

FTCA Administrative Complaints against the United States
On various dates in early 2013, four women were apprehended at the United States Texas border by Customs and Border Protection (CBP) agents.
CBP agents regularly asked each of the women to sign documents printed in English, which the women could not read and did not understand. Agents threatened that they would be kept in the holding cell until they signed these documents. These agents also referred to them in demeaning ways, including calling them “bitches.”

Leonel Ruiz o/b/o E.R. v. U.S.
E.R., a four-year-old U.S. citizen, was detained by Customs and Border Protection following her arrival at Dulles Airport.
E.R. was returning home to New York from a vacation in Guatemala with her grandfather.
CBP detained E.R. with her grandfather for the next 20 plus hours, gave her only a cookie and soda during the entire time, and provided her nowhere to nap other than the cold floor.
Although CBP officers had the phone number of E.R’s parents, they failed to contact them for nearly 14 hours, and repeatedly refused her grandfather’s requests to be allowed to call them.

Leo says:

Re: LAX Lorraine Tapia

Hi David, my wife and I had contact with a CBP officer in LAX by the name of Lorraine Tapia. I have never used this platform but I was wondering if I could reach out and talk in detail about are cases and share what happened. My case is still on going but we are in a position that we can go after this CBP officer and any other who is convicted of misconduct and wrongdoing.

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