AFL Motion in AFL V DHS

Case 1:21-cv-02168-RDM Document 28 Filed 09/15/23 Page 1 of 1
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
AMERICA FIRST LEGAL FOUNDATION,
Plaintiff,
v.
Case No.: 21-cv-02168-RDM
U.S. DEPARTMENT OF HOMELAND
SECURITY and U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT,
Defendants.
PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, and Part 10 of this Court’s
Standing Order, Plaintiff respectfully requests that the Court enter summary judgment in its favor
with respect to Defendants’ withholdings under Freedom of Information Act Exemptions 6, 7(C),
and 7(E). As set forth in the accompanying Memorandum of Points and Authorities, Defendants
have failed to carry their burden to demonstrate that those withholdings are lawful. Accordingly,
the Court should enter partial summary judgment in Plaintiff’s favor and direct Defendants to
release the unlawfully withheld material.
September 15, 2023 Respectfully submitted,
/s/ Brian J. Field

BRIAN J. FIELD
D.C. Bar No. 985577
SCHAERR | JAFFE LLP
1717 K Street NW, Suite 900
Washington, DC 20006
Tel.: (202) 787-1060
Email: bfield@schaerr-jaffe.com
Case 1:21-cv-02168-RDM Document 28-1 Filed 09/15/23 Page 1 of 35

Plaintiff,
v.
Defendants.
PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AND

OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
TABLE OF CONTENTS
BACKGROUND ............................................................................................................................ 3
ARGUMENT .................................................................................................................................. 4
I. FOIA’s Privacy Protections Do Not Provide the Same Privacy Rights for Non-Citizens
as for Citizens. ...................................................................................................................... 5
II. ICE Cannot Rely on Exemption 7 Because the Records were not Created for Law
Enforcement Purposes. ......................................................................................................... 8
A. ICE fails to identify any law enforcement purpose for which these records were
created. ........................................................................................................................ 8
B. ICE ignores that the true purpose behind these records is political. ......................... 10
III. ICE Fails to Carry Its Burden of Demonstrating the Presence of Sufficient Privacy
Interests Under Exemption 7(C)......................................................................................... 11
A. ICE fails to demonstrate that it lawfully withheld court case numbers. .................... 11
B. ICE fails to demonstrate that it lawfully withheld information about gang, cartel,
or terrorist group affiliation. ...................................................................................... 16
C. ICE fails to demonstrate that it lawfully withheld the names and monikers of
aliens identified in the records................................................................................... 19
D. ICE fails to demonstrate that it lawfully withheld dates of birth. ............................. 24
E. ICE fails to demonstrate that it lawfully withheld residential addresses. ................. 25
IV. ICE Fails to Carry its Burden of Demonstrating that its Exemption 7(E) Withholdings
Protect Law Enforcement Techniques and Procedures. ..................................................... 26
A. ICE fails to demonstrate that the withheld apprehension location and address
information constitutes a law enforcement technique or procedure. ......................... 26
B. ICE also fails to demonstrate that the withheld gang, cartel, and terrorist
affiliation information constitutes a law enforcement technique or procedure. ........ 29
CONCLUSION ............................................................................................................................. 30
TABLE OF AUTHORITIES
Cases
ACLU v. U.S. Dep’t of Just.,
750 F.3d 927 (D.C. Cir. 2014) .................................................................................................. 14
American Immigration Council v. U.S. Dep’t of Homeland Sec.,
950 F. Supp. 2d 221 (D.D.C. 2013) ............................................................................................ 9
American Immigration Council v. U.S. Immigration & Custom Enforcement,
464 F. Supp. 3d 228 (D.D.C. 2020) .................................................................................... 24, 28
Bartko v. U.S. Dep’t of Just.,

898 F.3d 51 (D.C. Cir. 2018) .................................................................................................... 11
Boyd v. Crim. Div. of U.S. Dep’t of Just.,
475 F.3d 381 (D.C. Cir 2007) ................................................................................................... 26
Brennan Ctr. for Just. at N.Y. Univ. Sch. of L. v. U.S. Dep’t of Just.,
No. 18-cv-1860 (RDM), 2021 WL 2711765 (D.D.C. July 1, 2021) ............................ 12, 13, 14
Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just.,
746 F.3d. 1082 (D.C. Cir. Apr. 1, 2014) ................................................................. 12, 22, 27, 30
Concepcion v. FBI,
606 F. Supp. 2d 14 (D.D.C. 2009) ............................................................................................ 20
Davis v. U.S. Dep’t of Just.,
968 F.2d 1276 (D.C. Cir. 1992) ................................................................................................ 21
Demore v. Kim,
538 U.S. 510 (2003) .................................................................................................................... 6
Dep’t of Air Force v. Rose,
425 U.S. 352 (1976) .................................................................................................................... 1
Dep’t of Homeland Sec. v. Thuraissigiam,
140 S. Ct. 1959 (2020) .......................................................................................................... 6, 12
FBI v. Abramson,
456 U.S. 615 (1982) .................................................................................................................... 6
Galvan v. Press,
347 U.S. 522 (1954) .................................................................................................................... 1
Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec.,
514 F. Supp. 2d 7, 9 (D.D.C. 2007) ............................................................................................ 7
Judicial Watch, Inc. v. U.S. Dep’t of State,
282 F. Supp. 3d 36 (D.D.C. 2017) ............................................................................................ 25
Kay v. FCC,
976 F. Supp. 23 (D.D.C. 1997) ................................................................................................... 8
Kleindienst v. Mandel,
408 U.S. 753 (1972) ................................................................................................................ 1, 6
Mathews v. Diaz,
426 U.S. 67 (1976) ...................................................................................................................... 6
Maydak v. Dep’t of Just.,
254 F. Supp. 2d 23 (D.D.C. 2003) ........................................................................................ 8, 11
McKinley v. Bd. of Governors of the Fed. Rsrv. Sys.,
849 F. Supp. 2d 47 (D.D.C. 2012) ............................................................................................ 12
N.L.R.B. v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978) ................................................................................................................ 1, 6
ii
Nation Mag., Washington Bureau v. U.S. Customs Serv.,

71 F.3d 885 (D.C. Cir. 1995) ...................................................................................................... 5
New Orleans Workers’ Ctr. for Racial Just. v. ICE,
373 F. Supp. 3d 16 (D.D.C. 2019) ............................................................................................ 10
New York Times Co. v. U.S. Dep’t of Homeland Sec.,
959 F. Supp. 2d 449 (S.D.N.Y. 2013)....................................................................................... 20
Pinson v. Dep’t of Just.,
236 F. Supp. 3d 338 (D.D.C. 2017) ............................................................................................ 9
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) .................................................................................................................. 13
Roseberry-Andrews v. Dep’t of Homeland Sec.,
299 F. Supp. 3d 9 (D.D.C. 2018) ................................................................................................ 9
Rosenfeld v. FBI,
No. 07-cv-3240, 2011 WL 13269173 (N.D. Cal. Feb. 23, 2011) ............................................. 10
SAI v. Transp. Sec. Admin.,
315 F. Supp. 3d 218 (D.D.C. 2018) .................................................................................... 17, 27
Schiller v. I.N.S.,
205 F. Supp. 2d 648 (W.D. Tex. 2002)....................................................................................... 7
Schoenman v. FBI,
604 F. Supp. 2d 174 (D.D.C. 2009) ............................................................................................ 8
Thompson v. Dep’t of Just.,
851 F. Supp. 2d 89 (D.D.C. 2012) ............................................................................................ 20
Tuffly v. U.S. Dep’t of Homeland Sec.,
870 F.3d 1086 (9th Cir. 2017) .................................................................................................. 21
U.S. Dep’t of Just. v. Reps. Comm. for Freedom of Press,
489 U.S. 749 (1989) .............................................................................................................. 5, 16
Union Leader Corp. v. U.S. Dep’t of Homeland Sec.,
749 F.3d 45 (1st Cir. 2014) ........................................................................................... 12, 20, 22
United States v. Flores-Montano,
541 U.S. 149 (2004) .................................................................................................................. 16
United States v. Montoya de Hernandez,
473 U.S. 531 (1985) .................................................................................................................. 16
United States v. Ramsey,
431 U.S. 606 (1977) .................................................................................................................... 7
Vymetalik v. FBI,
785 F.2d 1090 (D.C. Cir. 1986) .................................................................................................. 9
Weaver v. Massachusetts,
582 U.S. 286 (2017) .................................................................................................................. 13
iii
Whittaker v. U.S. Dep’t of Just.,

No. 18-cv-1434-APM, 2019 WL 2569915 (D.D.C. June 21, 2019)................................... 26, 28
Witte v. United States,
515 U.S. 389 (1995) .................................................................................................................. 13
Statutes
5 U.S.C. § 552 ................................................................................................................. 6, 8, 11, 26
Other Authorities
Adam Shaw, Illegal immigrant accused of abduction, rape in Virginia overstayed visa: ICE,
Fox News (Aug. 31, 2023) ........................................................................................................ 22
Anna Giaritelli, ‘He should have never been allowed in’: Mother demands border fix after
daughter’s murder by suspected MS-13 immigrant, Wash. Examiner (Feb. 1, 2023) ............. 18
Comm. on Homeland Sec., A Review of the Fiscal Year 2024 Budget Request for the
Department of Homeland Security Before the House Committee on Homeland Security,
118th Cong. (2023) ................................................................................................................... 23
Drug Overdose Death Rates, National Institutes of Health .......................................................... 17
Economy Remains the Public’s Top Policy Priority; COVID-19 Concerns Decline Again,
PEW RESEARCH (Feb. 6, 2023)................................................................................................. 18
J. Baxter Oliphant & Andy Cerda, Republicans and Democrats Have Different Top Priorities
for U.S. Immigration Policy, Pew Rsch. Ctr. (Sept. 8, 2022) ................................................... 19
Memo. from Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec., to U.S. Immigr. &
Customs Enf’t; U.S. Customs & Border Prot.; U.S. Citizenship & Immigr. Servs.; Off. of
Strategy, Pol’y, & Plans; Off. for Civ. Rts. & Civ. Liberties; and Priv. Off., Guidelines for the
Enforcement of Civil Immigration Law (Sept. 30, 2021) ........................................................... 1
Pew Rsch. Ctr., Inflation, Health Costs, Partisan Cooperation Among the Nation’s Top
Problems (2023)........................................................................................................................ 19
Press Release, U.S. Att’ys Off. for S. Dist. Tex., U.S. Dep’t of Just., Sex offender sentenced
for illegally being in US … for the 9th time (Aug. 23, 2023) .................................................. 22
U.S. Deaths Due to Fentanyl Nearly Quadrupled in 5 Years, U.S. NEWS AND
WORLD REPORT ......................................................................................................................... 17
Constitutional Provisions
U.S. Const. amend. IV .................................................................................................................... 7
iv
The Supreme Court has long recognized the Federal Government’s authority in matters of
immigration and border security. See Kleindienst v. Mandel, 408 U.S. 753, 766 (1972); Galvan v.
Press, 347 U.S. 522, 531 (1954). And the Supreme Court has similarly recognized the importance
of the Freedom of Information Act (“FOIA”) in ensuring an “informed citizenry.” N.L.R.B. v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Indeed, Congress enacted FOIA “to pierce
the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t
of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation and quotation marks omitted). This case
lands at the intersection of these two principles. While the Federal Government has responsibility
for immigration matters, the public must have the information necessary to check agency action
and “to hold the governors accountable to the governed.” Robbins Tire, 437 U.S. at 242.
As discussed in the Defendants’ motion, on February 18, 2021, political leadership at
Immigration and Customs Enforcement (“ICE”) issued an Interim Guidance memorandum setting
forth new requirements for ICE agents. ECF No. 26 (“ICE Mot.”) at 2. This memorandum was in
effect until November 29, 2021, when it was superseded by a September 30, 2021, memorandum
issued by Department of Homeland Security (“DHS”) Secretary Mayorkas.1 While in effect, the
Interim Guidance implemented new bureaucratic requirements before ICE officers could take
enforcement action against non-citizens illegally in the United States. Specifically, before arresting
or removing an alien, ICE officers were required to pause and seek approval from Washington,
D.C. headquarters. Considering the serious public health and safety risks posed by many such
individuals, this added delay left convicted violent criminals and other dangerous aliens in
1
Memo. from Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec., to U.S. Immigr. &
Customs Enf’t; U.S. Customs & Border Prot.; U.S. Citizenship & Immigr. Servs.; Off. of Strategy,
Pol’y, & Plans; Off. for Civ. Rts. & Civ. Liberties; and Priv. Off., Guidelines for the Enforcement
of Civil Immigration Law (Sept. 30, 2021), https://tinyurl.com/4t8a3sjm.
communities longer than they otherwise would have been and made an already complex job for
ICE officers even more challenging.
To better understand how this new preapproval requirement was being applied, and the
impact it was having in real time, Plaintiff America First Legal Foundation submitted a FOIA
request on May 18, 2021, seeking copies of the weekly reports detailing all such enforcement
actions where an ICE officer sought to take an enforcement action but was first required to receive
political approval. And, while ICE eventually began producing the reports, ICE substantially
redacted those reports to withhold many pieces of information that are vital for the public to
examine ICE’s actions and the propriety of a politically enacted policy that delayed enforcement
against violent convicted criminals. The withheld information also deprived the public of
information needed to understand other threats posed to the American public by this political
preapproval requirement.
Yet, ICE’s redactions find no support in FOIA. For instance, ICE’s focus on the privacy
interests of aliens named in the requested reports ignores the diminished privacy protections that
FOIA provides to non-citizens. And, moreover, ICE fails to carry its burden of showing that any
cognizable privacy interests are at issue. But even if ICE had carried that burden and showed a
cognizable privacy interest, the public interest in knowing how public health and safety are
impacted by these policies would far outweigh any privacy interest. Similarly, ICE’s attempt to
withhold information to protect law enforcement techniques and procedures fails for the simple
reason that ICE does not identify any such technique or procedure that would be implicated by
disclosure.
2
Because ICE’s withholdings find no support under FOIA, the Court should deny ICE’s
motion for partial summary judgment and grant Plaintiff’s cross-motion for partial summary
judgment.
BACKGROUND
Upon entering office in January 2021, the Biden Administration issued multiple
memoranda effecting significant changes in immigration policy. For instance, on January 20, 2021,
then-Acting DHS Secretary David Pekoske issued a memorandum titled “Review of and Interim
Revision to Civil Immigration Enforcement and Removal Policies and Priorities.” See ECF
No. 1-1. Shortly thereafter, ICE’s Acting Director, Tae Johnson, issued a memorandum to all ICE
employees titled “Interim Guidance: Civil Immigration Enforcement and Removal Priorities.” See
ECF No. 1-2 (“Johnson Memo.”).
Through these memoranda, ICE’s political leadership instituted a political review process
for various enforcement actions. Unless an alien fell into one of three categories, ICE officers
could not remove an alien without first requesting and receiving political preapproval. Id.
Additionally, the Johnson Memorandum created a weekly reporting requirement, where two
weekly reports would be created and sent to the Acting ICE Director and made available to the
Secretary of Homeland Security. Id. at 7.
These reports were to be compiled each Friday and include the following: “(1) identifying
each enforcement action taken in the prior week, including the applicable priority criterion, if any;
(2) providing a narrative justification of the action; and (3) identifying the date, time, and location
of the action.” Id. Thus, these reports catalog all interior enforcement actions and removals
completed by ICE since the beginning of the Biden Administration. By reviewing this information
against historical ICE data, and other public reporting on crimes committed by the individuals
3
named in the reports, the public can learn important information about how current political
leadership has handled this matter of critical importance.
That is why Plaintiff submitted a FOIA request to ICE on May 18, 2021, requesting copies
of the weekly reports required by the Johnson Memorandum. See ECF No. 1-3. After receiving no
response from ICE, Plaintiff was forced to resort to litigation, filing its Complaint on August 13,
2021. See ECF No. 1. After extensive negotiations and the filing of multiple status reports, ICE
began reviewing and producing these reports on a periodic basis, releasing 2,000 rows of a
cumulative spreadsheet each month. See Min. Order (Apr. 7, 2022).
After ICE had processed records for several months, it became clear that several categories
of withholdings were improper. Accordingly, Plaintiff requested that the Court permit the parties
to file interim motions for summary judgment addressing several categories of withholdings. See
ECF No. 18 ¶ 12. Otherwise, Plaintiff and the Court would be required to wait years to evaluate
the propriety of ICE’s withholdings. The Court agreed, and ICE filed its motion for partial
summary judgment on August 4, 2023. See ICE Mot. at 26. In that motion, ICE addressed several
categories of withholdings that Plaintiff had identified. As reflected below, Plaintiff challenges the
following withholdings made under Exemptions 6, 7(C), or 7(E): (1) court case numbers; (2) gang,
cartel, and terrorist group information; (3) names and monikers; (4) month and year from dates of
birth; (5) city, state, and country from residential addresses; and (6) apprehension locations.2
ARGUMENT
ICE’s arguments fail for various reasons. As a threshold matter, ICE’s privacy arguments
fail because ICE asserts privacy interests on behalf of non-citizens that are not cognizable under
2
Accordingly, Plaintiff does not challenge ICE’s withholdings under Exemption 3, A-numbers
and other identifying numbers, or information about honoring ICE detainers. See ICE Mot. at 6–
7, 19–21, 30.
4
FOIA. Further, ICE fails to demonstrate that the records here were created for law enforcement
purposes. These reasons alone are sufficient to deny ICE’s motion in full.
But ICE’s privacy-related withholdings also fail because ICE does not carry its burden of
demonstrating that releasing the withheld information would harm any privacy interest. And, even
if it did, ICE wholly ignores the substantial public interest in knowing: (1) how the Federal
Government is executing the law of a wholly federal responsibility; (2) the types of threats that are
present in communities around the country from people who have a demonstrated history of
criminal conduct; and (3) how public health and safety are affected by the requirement that ICE
officers receive political approval before taking enforcement action.
Finally, ICE’s Exemption 7(E) withholdings fail because ICE does not demonstrate that
releasing the withheld information would disclose any law enforcement technique or procedure.
I. FOIA’s Privacy Protections Do Not Provide the Same Privacy Rights for Non-
Citizens as for Citizens.
At the outset, the Court should deny ICE’s summary judgment motion with respect to all
Exemption 6 and 7(C) withholdings because FOIA’s privacy protections only apply when a
“citizen” is identified in the records. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of Press,
489 U.S. 749, 780 (1989) (“Accordingly, we hold as a categorical matter that a third party’s request
for law enforcement records or information about a private citizen can reasonably be expected to
invade that citizen’s privacy[.]”) (emphasis added); see also Nation Mag., Washington Bureau v.
U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (explaining that there is “a long line of
FOIA cases holding that disclosure of the identities of private citizens mentioned in law
enforcement files constitutes an unwarranted invasion of privacy and is thus exempt under 7(C).”)
(first emphasis in original, second emphasis added).
5
This limiting construction follows from the general rule that “FOIA exemptions are to be
narrowly construed” because “the basic policy of the Act is in favor of disclosure.” FBI v.
Abramson, 456 U.S. 615, 630 (1982). The limitation of FOIA’s privacy protection to citizens is
also in accord with the overarching purpose of the statutory scheme; that is, “to ensure an informed
citizenry, vital to the functioning of a democratic society, needed to check against corruption and
to hold the governors accountable to the governed.” Robbins Tire, 437 U.S. at 242 (citations
omitted) (emphasis added). Citizens are the primary beneficiaries of the FOIA process and
correspondingly are provided protection from “invasion[s] of personal privacy” that can arise from
the FOIA regime. See 5 U.S.C. § 552(b)(7)(C). Because noncitizens are not beneficiaries of FOIA,
they do not receive the special protection of Exemptions 6 and 7(C).
The limitation of this statutory exemption to citizens is also consistent with the broader
architecture of the protection that U.S. law gives to noncitizens. For example, the Due Process
Clause does provide some protections to noncitizens, but the Supreme Court has been clear that,
“[i]n the exercise of its broad power over naturalization and immigration, Congress regularly
makes rules that would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 521
(2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79–80 (1976)); accord Dep’t of Homeland Sec. v.
Thuraissigiam, 140 S. Ct. 1959, 1982 (2020) (“[T]he due process rights of an alien seeking initial
entry … rests on” a very different set of “fundamental propositions: the power to admit or exclude
aliens is a sovereign prerogative, … [and] the Constitution gives the political department of the
government plenary authority to decide which aliens to admit”) (cleaned up). This lower standard
for due process and other Constitutional challenges to immigration law flows from Congress’s
“plenary congressional power to make policies and rules for exclusion of aliens.” Kleindienst, 408
U.S. at 769. Similarly, there is a long-recognized exception to the Fourth Amendment’s prohibition
6
on “unreasonable searches and seizures” for border searches. U.S. Const. amend. IV; accord
United States v. Ramsey, 431 U.S. 606, 620 (1977) (“The border-search exception is grounded in
the recognized right of the sovereign to control, subject to substantive limitations imposed by the
Constitution, who and what may enter the country.”). Construing FOIA’s privacy protections
narrowly to exclude noncitizens would thus: (1) further FOIA’s “general policy of disclosure”;
(2) fit within the statutory purpose of creating “an informed citizenry”; and (3) be consistent with
how U.S. law broadly distinguishes between citizens and noncitizens.
To be sure, Plaintiff acknowledges that some courts have concluded otherwise and have
applied FOIA’s privacy protections to non-citizens. See, e.g., Judicial Watch, Inc. v. U.S. Dep’t of
Homeland Sec., 514 F. Supp. 2d 7, 9 n.4 (D.D.C. 2007); Schiller v. I.N.S., 205 F. Supp. 2d 648,
662 (W.D. Tex. 2002). But those courts were not directly presented with the argument that FOIA’s
privacy protections should not extend to non-citizens, and thus they did not have occasion to pass
on this question. And, to the extent those courts concluded that FOIA’s privacy protections extend
to non-citizens, Plaintiff submits that the decisions cannot be reconciled with FOIA’s text or the
authority discussed above.
However, if this Court were inclined to follow the decisions in Judicial Watch or Schiller,
it should nonetheless conclude that any privacy interest held by non-citizens is substantially
reduced where, as here, the non-citizens are identified in the records due to their illegal presence
in the United States, and, in many instances, their previous convictions for criminal activity.
Accordingly, the Court should deny ICE’s motion with respect to all Exemption 6 and 7(C)
withholdings.
7
II. ICE Cannot Rely on Exemption 7 Because the Records were not Created for Law
Enforcement Purposes.
The next reason to deny ICE’s motion is that ICE fails to carry its burden of demonstrating
that the records here were created for a law enforcement purpose. But, of course, that is a threshold
requirement before ICE may rely on either Exemptions 7(C) or 7(E). See 5 U.S.C. § 552(b)(7);
Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C. 1997), aff’d, 172 F.3d 919 (D.C. Cir. 1998). In fact, ICE
hardly even attempts to satisfy this burden, relying on the same conclusory statements about law
enforcement purpose that other courts have rejected. Moreover, ICE fails to acknowledge that the
true purpose behind the creation of the records was political, not law enforcement.
A. ICE fails to identify any law enforcement purpose for which these records
were created.
In the Pineiro Declaration, ICE devotes just a single sentence to this burden, baldly stating
that “[t]he law enforcement records at issue pertain to investigations and enforcement activities
conducted pursuant to ICE’s law enforcement authorities.” Pineiro Decl. ¶ 62 (ECF No. 26-2). The
remaining portions of the Pineiro Declaration discussing Exemption 7’s threshold merely restate
the law and make generalized statements about the role of ICE and general activities of ICE
Enforcement and Removal Operations officers. See id. ¶¶ 56–62. These perfunctory statements
fall far short of satisfying ICE’s burden under Exemption 7.
Rather than provide facts to satisfy this burden, ICE joins a growing chorus of federal
agencies asking courts simply to assume that records were compiled for law enforcement purposes
because the agencies perform some law enforcement functions. See, e.g., Schoenman v. FBI, 604
F. Supp. 2d 174, 203 (D.D.C. 2009) (“advis[ing]” the FBI to provide “a more detailed explanation
in line with D.C. Circuit case law” on “this threshold question”); Maydak v. Dep’t of Just., 254 F.
Supp. 2d 23, 38 (D.D.C. 2003) (holding that “BOP’s failure to satisfy the threshold law
enforcement requirement defeats its motion for summary judgment under exemption 7”);
8
Vymetalik v. FBI, 785 F.2d 1090, 1095 (D.C. Cir. 1986) (“FBI records are not law enforcement
records simply by virtue of the function that the FBI serves”) (citation omitted). ICE’s perfunctory
statements will not do. True, “[a]gencies classified as law enforcement agencies receive a special
deference in their claims of law enforcement purpose.” Pinson v. Dep’t of Just., 236 F. Supp. 3d
338, 364 (D.D.C. 2017) (citation omitted). But “[t]his review … is not vacuous.” Id. (quotation
marks and citation omitted). And “[n]ot every document compiled by a law enforcement agency
satisfies the law enforcement purpose inquiry.” Id.
In fact, other courts have previously rejected ICE’s attempt to rely on similarly circular
explanations of law enforcement purpose. In American Immigration Council v. U.S. Dep’t of
Homeland Sec., 950 F. Supp. 2d 221 (D.D.C. 2013) (“AIC”), the court rejected ICE’s argument
that, “because Plaintiff requested information related to activities that ICE performs in a law
enforcement and national security context, this Court can take it for granted that all of ICE’s
withholdings under Exemption 7(E) automatically satisfy the ‘law enforcement purposes’
requirement.” Id. at 246 (cleaned up). The AIC court rejected ICE’s ipse dixit, noting that “similar
explanations prepared by ICE’s FOIA unit and submitted in other jurisdictions have been deemed
insufficient to prove that the underlying records were ‘compiled for law enforcement purposes.’”
Id. (citing cases). Rather, the court held that ICE must provide “an itemized listing of their
withholdings and redactions,” and that listing must include “a description of the circumstances in
which the records were compiled, the relevant law-enforcement activity for each, the nature of the
incident or individual involved, and the perceived security risk or likely violation of the law.” Id.
(citations omitted). Other courts have concluded likewise. See Roseberry-Andrews v. Dep’t of
Homeland Sec., 299 F. Supp. 3d 9, 31 n.10 (D.D.C. 2018) (rejecting ICE’s “blanket assertion” that
“any records created by a program office that provides support to ICE meet the Exemption 7
9
threshold”); New Orleans Workers’ Ctr. for Racial Just. v. ICE, 373 F. Supp. 3d 16, 56 (D.D.C.
2019) (noting that ICE’s Vaughn index “make[s] no attempt to address the specific law
enforcement purpose of the withheld documents”), vacated pursuant to Stip., No. 15-431 (RBW),
2019 WL 4852743 (D.D.C. July 11, 2019).
Yet, ICE relies again on the same conclusory explanation here. And the Court should reject
it for the same reason the AIC court rejected this argument. ICE has not provided any of the
requisite information, and thus it fails to satisfy Exemption 7’s threshold requirement.
B. ICE ignores that the true purpose behind these records is political.
Even if ICE had attempted to provide more information, it cannot satisfy this requirement
here. While arrests and removals related to immigration-law violations may be law enforcement
activities, the records at issue here are not related to those law enforcement duties. Rather, these
records were created exclusively for political purposes. As noted, the Johnson Memorandum
required reports to be created about removal activities to update political leadership. See ECF
No. 1-2 at 7. In other words, these reports summarize and catalog law enforcement activities, and
thus are not part of any such activities. The reports have nothing to do with ICE carrying out its
law enforcement functions, and, in fact, only served to add an extra layer of bureaucracy to slow
down the process of law enforcement. Talking about a law enforcement activity is not the same
thing as engaging in a law enforcement activity. See, e.g., Rosenfeld v. FBI, No. 07-cv-3240, 2011
WL 13269173, at *4 (N.D. Cal. Feb. 23, 2011) (explaining that political purposes are distinct from
law enforcement purposes under Exemption 7). ICE’s political leadership cannot stymie the law
enforcement activity of the agency by creating a new preapproval process that did not previously
exist, and then turn around and claim the benefit of “law enforcement activity” to shield these new
records from release.
10
Because the reports were not compiled for law enforcement purposes, but rather political
purposes, the Court must deny ICE’s motion in full. See Maydak, 254 F. Supp. 2d at 38.
III. ICE Fails to Carry Its Burden of Demonstrating the Presence of Sufficient Privacy
Interests Under Exemption 7(C).
Even if the Court were to conclude that FOIA’s privacy protections extend to non-citizens,
and that ICE satisfied Exemption 7’s threshold requirement, ICE has still failed to carry its burden
of demonstrating that various Exemption 7(C) withholdings were proper. For each category the
Plaintiff is challenging, there are strong factors favoring public disclosure and little to no
competing privacy interest. When paired with FOIA’s general presumption of disclosure, these are
clear reasons to deny ICE’s motion with respect to those withholdings.3
A. ICE fails to demonstrate that it lawfully withheld court case numbers.
Under Exemption 7(C), ICE may only withhold court case numbers if disclosure “could
reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C). And, even where the disclosure may constitute an invasion of personal privacy,
the “privacy interest the government asserts” must “outweigh[] any public interest in disclosure.”
Bartko v. U.S. Dep’t of Just., 898 F.3d 51, 64 (D.C. Cir. 2018).
ICE fails at each turn, and the Court should also reject ICE’s attempt to withhold court case
numbers from the narrative portions of the spreadsheets. See Pineiro Decl. ¶ 79. The privacy
interest in those numbers is low, and the public interest is high. Indeed, the docket numbers are
already in the public domain, thereby significantly reducing any privacy interest. And releasing
this information will allow the public to learn more about the criminal history of those aliens who
3
In its motion, ICE focuses on Exemption 7(C), rather than Exemption 6. However, the
shortcomings of ICE’s arguments under Exemption 7(C) are equally applicable to its attempt to
withhold this information under Exemption 6.
11
ICE officers were unable to remove without first obtaining political approval. As this Court has
held in a similar context, the court case numbers are relevant to “an array of issues of public
attention[.]” Brennan Ctr. for Just. at N.Y. Univ. Sch. of L. v. U.S. Dep’t of Just., No. 18-cv-1860
(RDM), 2021 WL 2711765, at *4 (D.D.C. July 1, 2021) (“Brennan Ctr. III”).
i. The public interest in court case numbers is high.
The public interest in issues related to immigration is particularly weighty, as “the
Constitution gives ‘the political department of the government’ plenary authority to decide which
aliens to admit[,]” Thuraissigiam, 140 S. Ct. at 1982, and “[t]he purpose of FOIA is to require the
release of government records upon request and to ‘ensure an informed citizenry, vital to the
functioning of a democratic society,’” McKinley v. Bd. of Governors of the Fed. Rsrv. Sys., 849 F.
Supp. 2d 47, 55 (D.D.C. 2012); see also Brennan Ctr. III, 2021 WL 2711765, at *4.
That is why the First Circuit recognized a “significant” public interest in obtaining the
names of certain immigrants designated for removal but released. Union Leader Corp. v. U.S.
Dep’t of Homeland Sec., 749 F.3d 45, 54 (1st Cir. 2014). This was because the names would
“enable the [requester] to investigate public records pertaining to the arrestees’ prior convictions
and arrests, potentially bringing to light” information on ICE’s performance of its duties. Id. at 56
(citing Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 746 F.3d. 1082, 1093 (D.C. Cir.
Apr. 1, 2014) (“CREW”)).
Releasing court case numbers serves the same public interest because those numbers will
allow the public to consider the criminal histories of those aliens who ICE officers sought to
remove but were required first to receive political approval. In particular, this information will
allow the public to determine if these aliens present serious public safety risks based on their
previous criminal activity.
12
The public interest in dockets will not be satisfied by the information ICE has already
provided. For example, in many cases, summaries of the charges of conviction will not contain
information on other crimes actually committed and proved by a preponderance of the evidence,
which might be taken into account in the sentencing hearing. See, e.g., Witte v. United States, 515
U.S. 389, 401 (1995). Indeed, discrepancies between convictions—including those reported in the
spreadsheets—and relevant uncharged conduct will assist the public in “[u]nderstanding what the
Department means when it describes its efforts to fight” crime. Brennan Ctr. III, 2021 WL
2711765, at *2. Furthermore, courts have long recognized the value to the public of evaluating the
information contained in a whole trial, which cannot be adequately replicated by mere summaries.
See, e.g., Weaver v. Massachusetts, 582 U.S. 286, 298–99 (2017); Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 572 (1980) (“When a criminal trial is conducted in the open, there is at
least an opportunity both for understanding the system in general and its workings in a particular
case”). Thus, the public has an important interest in this information, which cannot be satisfied by
the otherwise available information.
ii. Any privacy interest is low.
The privacy interests here, in contrast, are very low, and they are substantially outweighed
by the public interest. This Court’s decisions in the Brennan Center litigation are instructive. As
the Court explained, “the privacy interest at stake in the disclosure of public docket numbers varies
depending on the outcome of the underlying case.” Brennan Ctr. III, 2021 WL 2711765, at *3.
Where an individual was acquitted or the charges were dismissed, he has a “much stronger privacy
interest[.]” Id. But where the case led to a conviction, the individual’s privacy interests do not
comprise “much more” than “a de minimis privacy interest.” Id. (cleaned up).
13
Applying those principles here, the Court should conclude that the privacy interests are low
in all docket numbers listed in the spreadsheet.4 With respect to acquittals or dismissals, the
Brennan Center decision was particularly concerned with the fact that release of the docket
numbers would connect the named individuals to charges of terrorism, where such an association
is “stigmatic.” Id. at *4. Similarly, the D.C. Circuit in ACLU II was concerned with releasing
docket numbers for cases where the government had obtained cellular phone tracking data without
a warrant and the case resulted in acquittal. See ACLU v. U.S. Dep’t of Just., 750 F.3d 927, 932–
33 (D.C. Cir. 2014) (“ACLU II”). In both instances, the docket numbers were central to the
requests, and release would connect those individuals with specific government action (e.g.,
terrorism charges or warrantless surveillance). Not so here. Rather, the docket numbers in the
records here are ancillary to the request, as docket numbers are merely listed in passing throughout
the narrative portions of the spreadsheets. See Vaughn Index, Sept. 2022 Production, Row 1636;
id., Dec. 2022 Production, Row 883.
To be sure, individuals whose cases resulted in acquittals or dismissals “have a much
stronger privacy interest in controlling information concerning those prosecutions,” but that
privacy interest is still not absolute. Brennan Ctr. III, 2021 WL 2711765, at *4 (quoting ACLU II,
750 F.3d at 933). And there is no basis here to conclude that releasing docket numbers (even for
cases resulting in acquittals) will cause any additional public attention to the specific criminal
allegations. Here, the primary focus is on the government’s actions, not the individual’s actions.
And a criminal non-citizen cannot be entitled to any more privacy interests under FOIA than an
4
It is striking that ICE persists in withholding court case numbers despite this Court’s holdings in
the Brennan Center litigation. ICE’s refusal to follow that clear guidance casts serious questions
on the reasonableness of the other positions ICE takes in this case.
14
acquitted citizen, so the privacy interest due to the individuals in the spreadsheets at issue here
must be less than what ICE argues.
Even if the Court were to conclude that docket numbers for acquittals should be withheld,
the Court’s Brennan Center decisions confirm that ICE cannot withhold docket numbers where
the cases resulted in convictions. And the Vaughn Index includes many such court case numbers.
See, e.g., Vaughn Index, June 2022 Production, Row 41 (domestic-violence conviction); id., June
2022 Production, Row 525 (conviction for sexual assault of female child age 6); id., Dec. 2022
Production, Row 883 (drug-trafficking conviction); id., Nov. 2022 Production, Row 921 (guilty
plea for “pre-planned execution-style murder”). This Court in Brennan Center III assessed privacy
interests for cases where an individual was convicted of terrorism-related charges. 2021 WL
2711765, at *4. And, as the Court explained, such cases carry significant stigma. Id. Yet the Court
still concluded that there is barely more than a de minimis privacy interest in docket numbers where
the individual was convicted of such charges. Id. at *3. If individuals convicted of charges as
stigmatic as terrorism have a low privacy interest, it follows that the individuals named here have
even less of a privacy interest because they were convicted of less-stigmatic charges. And ICE’s
resort to an across-the-board withholding of all court case numbers cannot be squared with this
authority.
Accordingly, the Court should order ICE to release these docket numbers. And it is no
answer to hide behind a claim of a heightened privacy interest because the docket numbers
“include those for many crimes unrelated to an immigration status and not prosecuted by ICE.”
ICE Mot. at 19. It is of no moment whether the alien’s criminal history relates to an ICE
prosecution. The question is whether ICE is successfully removing aliens with a history of criminal
activity, including those with violent criminal histories.
15
When analyzing this question, context is important. Indeed, the Court must consider the
Constitutional and common-law privacy interests when evaluating the privacy interests conferred
by FOIA exemptions. See Reps. Comm. for Freedom of Press, 489 U.S. at 767 (looking to
“common-law and dictionary understandings”). Looking to these standards, there is a limited
expectation of privacy in contexts related to border security. See, e.g., United States v. Flores-
Montano, 541 U.S. 149, 154 (2004) (“suspicionless disassembly of” an automobile fuel tank was
acceptable because “the expectation of privacy is less at the border than it is in the interior.”);
United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (“Since the founding of our
Republic, Congress has granted the Executive plenary authority to conduct routine searches and
seizures at the border, without probable cause or a warrant”). This diminished privacy interest
should inform the Court’s analysis of whether ICE has sufficiently identified any privacy interests
here.
Accordingly, the Court should order ICE to release all court case numbers because any
privacy interests are low and substantially outweighed by the public interest.
B. ICE fails to demonstrate that it lawfully withheld information about gang,

cartel, or terrorist group affiliation.
ICE also fails to carry its burden of demonstrating that it properly withheld information
about gang, cartel, or terrorist group affiliations. Pineiro Decl. ¶¶ 87–88. In fact, for these
withholdings, ICE argues, without citing a single source of authority, that a convicted felon cartel
member’s right to privacy and be “free from harassment” outweighs the public’s right to know
about the dangers posed by those cartel members’ presence in the country. ICE Mot. at 23–24.
That is a remarkable argument, where ICE puts the interests of cartel members—the organizations
16
smuggling fentanyl and other drugs into this country killing 100,000 people a year5—above the
interests of the American public.
The Court should reject the notion that cartel and gang members have any privacy interest
in hiding their identity under FOIA, and thus no balancing is required. But even if the Court
proceeds to balancing, the Plaintiff should prevail because the interests of a cartel member to be
free from harassment cannot outweigh the American public’s right to know about matters of public
safety.
i. Cartel and Gang Members have no privacy interests.
With respect to privacy, ICE musters only the speculative statement that “[t]he release of
the criminal organization affiliation in conjunction with the compilation of other information
included in the Spreadsheet Report could be used to identify the non-citizens at issue.” Id. ¶ 87
(emphasis added). But ICE does not even attempt to explain how that would be possible,
considering its broad redactions of many other pieces of information about the individuals listed
in the spreadsheet. And such speculation is not enough to support an assertion of a privacy interest
under Exemption 7(C). Rather, ICE has the burden of demonstrating that a privacy interest would
be implicated by release. See SAI v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 233 (D.D.C. 2018)
(quotation marks and citation omitted) (noting that an agency’s declarations must be “relatively
detailed and non-conclusory” to carry the agency’s burden). Indeed, ICE does not explain how
releasing passing references to such criminal organizations would implicate any cognizable
privacy interest of a specific individual.
5
Drug Overdose Death Rates, National Institutes of Health, https://tinyurl.com/uzmntdjb (last
accessed Sept. 14, 2023); U.S. Deaths Due to Fentanyl Nearly Quadrupled in 5 Years, U.S. NEWS
AND WORLD REPORT (“The latest tally from the CDC … in fentanyl-related overdose deaths … is
over 107,000 people in the 12-month period ending in August 2022”),
https://tinyurl.com/3kdbjcrm (last accessed Sept. 14, 2023).
17
Even accepting ICE’s premise that a name could be identified, it still does not explain how
or why cartel members are entitled to any privacy interests. Considering that ICE could not muster
a single authority for this category of withholdings (ICE Mot. at 23–24), it is unsurprising that ICE
was unable to demonstrate any privacy interests that would be implicated by release.
ii. There is overwhelming public interest in this information.
Equally unavailing is ICE’s wholesale refusal to acknowledge any public interest. Instead,
ICE baldly states that releasing this “information serves no public benefit and would not assist the
public in understanding how the agency is carrying out its statutory responsibilities.” Pineiro Decl.
¶ 88. That blinks reality. The public is keenly interested in knowing the level to which members
of foreign gangs or other criminal enterprises are in the United States illegally, and what the
Federal Government is doing about it.6
Recent polling from Pew Research suggests this is a matter that crosses the political
spectrum and is a pressing concern to a majority of Americans, regardless of political or partisan
affiliation. For instance, 53% of Americans say that dealing with immigration is a top priority for
them, and the same number say that reducing the availability of illegal drugs is also a top priority.
And 57% of Americans say that reducing crime is a top priority.7 Further, 73% of Americans think
that it is either “very” or “somewhat” important to increase border security.8 And, when asked to
name problems that are “very big” in America today, 61% responded that drug addiction is an
6
See, e.g., Anna Giaritelli, ‘He should have never been allowed in’: Mother demands border fix
after daughter’s murder by suspected MS-13 immigrant, Wash. Examiner (Feb. 1, 2023),
https://tinyurl.com/7ehpuxab.
7
Economy Remains the Public’s Top Policy Priority; COVID-19 Concerns Decline Again, PEW
RESEARCH (Feb. 6, 2023), https://tinyurl.com/9ut7r6a3.
8
J. Baxter Oliphant & Andy Cerda, Republicans and Democrats Have Different Top Priorities for
U.S. Immigration Policy, Pew Rsch. Ctr. (Sept. 8, 2022), https://tinyurl.com/4x3uvve3.
18
issue, and 59% said that violent crime is a major issue.9 All of these data points indicate a strong
public interest in releasing information related to gang and cartel activity.
Indeed, such information would show the public safety risks posed by such individuals and
by the bureaucratic red tape that the Johnson Memorandum imposes. Undoubtedly, the public
would be interested to know if a member of a violent cartel who is in the United States illegally
cannot be immediately removed because the ICE officer was required to first receive political
approval. Armed with such information, the public may be able to petition the government to
change such a potentially harmful policy. For instance, the public would undoubtedly benefit from
knowing more about the individual listed on ICE’s Vaughn Index at 98, where the individual
appears to be convicted of abusing his wife and is also a cartel member. According to ICE, this
person’s privacy interest outweighs the public’s interest. That cannot be the case.
Accordingly, the Court should order ICE to release the withheld gang, cartel, and terrorist
group affiliations.
C. ICE fails to demonstrate that it lawfully withheld the names and monikers of
aliens identified in the records.
For similar reasons, ICE fails to justify its decision to withhold names and monikers of
aliens identified in the records. With respect to the privacy interest, ICE significantly overstates
the interests at play. According to ICE, the aliens named in the records here “have an undisputable
privacy interest in not being publicly associated with both criminal and non-criminal law
enforcement efforts[.]” ICE Mot. at 13. But that misunderstands the law. The records here only
identify aliens for whom enforcement action has been approved. See Johnson Memo. at 7. And, as
noted above, many such records discuss public aspects of their background (e.g., previous
9
Pew Rsch. Ctr., Inflation, Health Costs, Partisan Cooperation Among the Nation’s Top Problems
(2023), https://tinyurl.com/2sphrcr4.
19
convictions, gang affiliation, etc.). As the First Circuit explained in a similar case involving ICE
records, “although the arrestees have a cognizable privacy interest in their names, that interest is
attenuated both by the status of their underlying convictions and arrests as matters of public record
and by the limited nature of the [requester’s] proposed investigation.” Union Leader, 749 F.3d
at 54; accord New York Times Co. v. U.S. Dep’t of Homeland Sec., 959 F. Supp. 2d 449, 450, 455
(S.D.N.Y. 2013) (noting the “significantly diminished” privacy interest of those named in “a list
of all aliens since 2008 who, after being convicted of a crime and serving their sentence, were
designated for removal but were released from DHS custody”).
Importantly, this case differs substantially from many other cases where courts analyzed
the privacy interests of third parties incidentally named in law enforcement records. Here, Plaintiff
seeks only the names of the aliens listed in the spreadsheet for enforcement actions. Plaintiff does
not seek the names of third parties who are inadvertently listed in the records. Accordingly, the
myriad cases discussing third parties incidentally listed in law enforcement records are inapposite.
See, e.g., Thompson v. Dep’t of Just., 851 F. Supp. 2d 89, 99 (D.D.C. 2012) (discussing, among
other things, third parties “merely mentioned in documents related to the FBI’s criminal
investigation”); Concepcion v. FBI, 606 F. Supp. 2d 14, 40 (D.D.C. 2009) (discussing withholding
of third-party names “merely mentioned in the law enforcement investigatory records”). The aliens
listed in the requested records are not “incidentally named” in law enforcement records. Rather,
they are listed because an ICE agent sought to take enforcement action against them, and the ICE
political leadership approved that action. Moreover, any privacy interest is even further reduced
by the fact that many entries in ICE’s spreadsheet do not even list an alien’s full name. See, e.g.,
Vaughn Index, Feb. 2022 Denials Tab, Row 27; id., June 2022 Production, Row 41.
20
The authority on which ICE relies is unavailing. For instance, ICE relies heavily on the
Ninth Circuit’s decision in Tuffly v. U.S. Dep’t of Homeland Sec., 870 F.3d 1086 (9th Cir. 2017).
ICE Mot. at 14. But Tuffly addressed a list of detainees who had been released in the United States
pending final determination on removal. 870 F.3d at 1090. In that context, the court discussed
concerns about how those detainees may be treated if their names were released. Id. at 1096. That
is not the case here, where the aliens listed in the requested records have been approved for removal
or other enforcement action, and thus are not at the same risk of “harassment, embarrassment, or
stigma.” Id. And the conclusory statements ICE offers in the Pineiro Declaration do not suffice to
identify an adequate privacy interest. See Pineiro Decl. ¶ 64 (baldly stating that releasing the names
of non-citizens “could reasonably be expected to constitute an unwarranted invasion of privacy”).
But whatever the privacy interests held by aliens in this case, they are significantly
outweighed by the public’s interest in “be[ing] informed about what their government is up to.”
Davis v. U.S. Dep’t of Just., 968 F.2d 1276, 1282 (D.C. Cir. 1992). Again, the records at issue here
reflect information about aliens who ICE agents concluded should be removed or subject to other
enforcement actions. See Johnson Memo. at 7. In many instances, as noted above, that is due to
their involvement in gang activity or other violent crimes. Yet those agents were not permitted to
act on their expertise. Rather, they were required first to receive political approval. See Johnson
Memo. at 6–7.
The public has a keen interest in knowing more about the individuals that ICE agents were
unable to remove without first receiving political approval. By receiving names, the public will be
able to determine if the same person appears multiple times in the records, confirming that the
same individual is repeatedly subject to removal actions. As the First Circuit explained in Union
Leader, this type of information serves an important public interest: “Disclosure of the redacted
21
names will enable the Union Leader to investigate public records pertaining to the arrestees’ prior
convictions and arrests, potentially bringing to light the reasons for ICE’s apparent torpor in
removing these aliens.” 749 F.3d at 56. The D.C. Circuit has recognized a similar public interest,
where “[d]isclosure of the records would likely reveal much about the diligence of the FBI’s
investigation and the DOJ’s exercise of its prosecutorial discretion: whether the government had
the evidence but nevertheless pulled its punches.” CREW, 746 F.3d at 1093. In this context,
releasing the names provides more than “mere information about private citizens,” but rather will
“forward the legitimate public interest in knowing what the Government is up to[.]” Union Leader,
749 F.3d at 56 (cleaned up).
Here, there can be no dispute that the public has a strong interest in knowing more about
how ICE removes individuals, including whether it must devote resources to removing the same
individual multiple times.10 Releasing the names of aliens included in the reports will allow the
public to determine when individuals are on those lists multiple times, and thus clearly pose a
greater risk. And it will allow the public to review other material about these individuals to learn
the potential risks created by ICE political leadership’s decision to require ICE officers to spend
additional time before proceeding with any enforcement action.
In fact, just such an issue arose at a recent Congressional hearing. On April 19, 2023, during
a Congressional oversight hearing at the House Committee on Homeland Security, Representative
Ezell questioned the Secretary of Homeland Security about a specific instance of ICE officers
10
Press Release, U.S. Att’ys Off. for S. Dist. Tex., U.S. Dep’t of Just., Sex offender sentenced for
illegally being in US … for the 9th time (Aug. 23, 2023), https://tinyurl.com/3vcnyayn; Adam
Shaw, Illegal immigrant accused of abduction, rape in Virginia overstayed visa: ICE, Fox News
(Aug. 31, 2023), https://tinyurl.com/2mbf4nk6; Charles Creitz, Illegal immigrant mass murder
suspect captured was deported five times, ex-detective says, Fox News (May 2, 2023),
https://tinyurl.com/yd89sh6k.
22
being required to seek preapproval before removing an alien who had been convicted of possession
with the intent to distribute 10 kilograms of methamphetamine.11 An elected Representative, using
the information published by the Plaintiff to question the Secretary of Homeland Security about a
political policy, is the essence of public interest. And further details could have been elicited, had
ICE not withheld names and other information. For instance, with a name, case number, and gang
information, further ties could be drawn to illustrate the full impact of the Department’s policies.
Thus, while there may be an inclination to summarily bless ICE’s across-the-board
withholding of names from these records, a closer look at the Pineiro Declaration confirms that
ICE has failed to demonstrate the privacy interests that disclosure would implicate. Indeed, while
ICE proposes that it be permitted to withhold all names, ICE would be hard pressed to support that
argument for all aliens listed in the records. As discussed above, many such individuals have been
convicted of heinous crimes, and their privacy interests (if any) are substantially diminished.
Moreover, ICE has wholly failed to address the public interest through its bald statement that
releasing “the non-citizen’s name serves no public benefit and would not assist the public in
understanding how the agency is carrying out its statutory responsibilities.” Pineiro Decl. ¶ 66.
Accordingly, the Court should order ICE to release the names of the aliens listed in the records.12
11
Comm. on Homeland Sec., A Review of the Fiscal Year 2024 Budget Request for the Department
of Homeland Security Before the House Committee on Homeland Security, 118th Cong. (2023),
YouTube, at 2:44:24 (Apr. 19, 2023), https://tinyurl.com/3x5xpxkb.
12
The same is true for ICE’s withholding of monikers, which ICE characterizes as “AKAs” and
“alias.” Pineiro Decl. ¶ 73. According to ICE, monikers “can be linked to and identify an
individual[.]” Id. That proposition fails for at least two reasons. First, ICE offers nothing beyond
its own speculation that monikers listed in the spreadsheets “can be linked to and identify an
individual[.]” Second, even if the moniker could be connected to an individual, this argument fails
for the same reason as ICE’s attempt to withhold names—the public’s interest far outweighs any
privacy interest.
23
D. ICE fails to demonstrate that it lawfully withheld dates of birth.
Moving to ICE’s withholding of full dates of birth, ICE clearly cannot carry its burden
under Exemption 7(C). Indeed, another Court in this District has rejected the same withholdings
in a substantially similar case. In American Immigration Council v. U.S. Immigration & Custom
Enforcement, 464 F. Supp. 3d 228 (D.D.C. 2020), the requester sought “a complete dataset
containing detailed information about all individuals who were apprehended by U.S. Customs and
Border Protection; encountered by [ICE]; or removed from the United States between January 1,
2016 and October 10, 2017.” Id. at 233. Among other withholdings, ICE withheld dates of birth
from those datasets. Id. at 234. According to ICE, it “withheld birth dates from their productions
to protect the privacy of third-parties,” and because releasing such information “could expose the
individual to identity theft and may reasonably lead to unwanted contact from persons that might
seek to harm the individual.” Id. at 237. This bears striking similarity to the justifications ICE
offers here. See Pineiro Decl. ¶ 71 (stating that ICE withheld dates of birth because they “can be
used to identify” individuals).
The American Immigration Council court rejected those arguments, holding that ICE relied
on “very vague and speculative harms[.]” 464 F. Supp. 3d at 239. Further, the court held that “there
is no genuine dispute that the government can adequately protect whatever minimal privacy
interests the detainees have in their birthdates by redacting the date but not the month and year,
because the agency has not identified any harm that would flow from a more limited disclosure,
and the statute requires that reasonably segregable portions of records should be provided.” Id. So
too here.
As Plaintiff explained during the parties’ meet-and-confer process, ICE should release at
least the month and year for each entry on the reports. And, because ICE cannot identify any
privacy interest in the month and year of birthdates, that is the end of the analysis. See Judicial
24
Watch, Inc. v. U.S. Dep’t of State, 282 F. Supp. 3d 36, 42 (D.D.C. 2017) (explaining two-part test
under Exemption 7(C)). But even if the Court determined that it needed to evaluate the public
interest, releasing this minimal birthdate information will allow the public to assess better the ages
of those for whom ICE allocates resources for removal. Here again, this information will help to
better understand the potential public safety risks posed by those who are subject to removal and
will help inform the public debate about what additional steps could be taken to reduce illegal
border crossings.
Accordingly, just as ICE’s arguments failed in American Immigration Council, they fail
here, and the Court should order ICE to release months and years for any birthdates listed in the
underlying records.
E. ICE fails to demonstrate that it lawfully withheld residential addresses.
Finally, ICE also fails to carry its burden of demonstrating that it may withhold the full
residential addresses listed in the narrative portions of the various records. As ICE explains, it
withheld “[f]ull residential addresses, which include street name and number, apt/unit number, as
well as the city and state of the address[.]” Pineiro Decl. ¶ 76. This information, ICE suggests,
“can be used to identify and/or locate the non-citizens at issue[.]” Id. ¶ 75. But Plaintiff does not
seek the full address information. Rather, Plaintiff challenges only ICE’s redacting city, state, and
country information.
This segregable information would not implicate the privacy interests ICE identifies. See
id. ¶ 77 (stating that disclosure of this information “could also potentially identify other third
parties that either are associated with or residing with the non-citizen at the subject residential
address, or other unrelated third parties who at one time lived at the listed address.”). By disclosing
only the city, state, and country information, there is no risk that the address could be linked to
specific individuals or locations. And there is no risk that releasing this information could
25
“expose[] [individuals] to harassment, criticism, intimidation, or undue public attention that
directly violates their privacy rights.” ICE Mot. at 22–23. Thus, ICE cannot demonstrate a privacy
interest in this information. See Boyd v. Crim. Div. of U.S. Dep’t of Just., 475 F.3d 381, 385 (D.C.
Cir 2007) (ICE has the “burden of demonstrating that the withheld documents are exempt from
disclosure.”). And FOIA requires release of such segregable portions of records. 5 U.S.C. § 552(b).
But even if there were a slight privacy interest in this information, the public interest would
outweigh it. The public has an interest in knowing the locations from which aliens subject to
removal came. This is deeply relevant to discussions about how the federal government interacts
with neighboring countries. And it would shed light on whether there are certain countries that
should receive additional scrutiny. Accordingly, because ICE has failed to identify any privacy
interest sufficient to withhold the city, state, and country address information included in the
spreadsheets, the Court should order ICE to release all such information.
IV. ICE Fails to Carry its Burden of Demonstrating that its Exemption 7(E) Withholdings
Protect Law Enforcement Techniques and Procedures.
ICE also fails to carry its burden of justifying its Exemption 7(E) withholdings.
Specifically, ICE fails to carry its burden with respect to redacting: (i) apprehension locations and
addresses; and (ii) names of gangs, terrorist groups, and monikers. Unless ICE demonstrates that
each withholding would “disclose techniques and procedures for law enforcement investigations
or prosecutions, or [] disclose guidelines” for such investigations or prosecutions, the Court must
deny ICE’s motion. 5 U.S.C. § 552(b)(7)(E); Whittaker v. U.S. Dep’t of Just., No. 18-cv-1434-
APM, 2019 WL 2569915, at *1, *3 (D.D.C. June 21, 2019).
A. ICE fails to demonstrate that the withheld apprehension location and address
information constitutes a law enforcement technique or procedure.
With respect to apprehension locations, ICE asserts that it withheld “information on the
specific locations of the apprehensions of non-citizens entering the U.S.” Pineiro Decl. ¶ 115. From
26
there, ICE asserts that disclosure of this information “could reveal techniques and procedures, as
well as guidelines for law enforcement investigations or prosecutions, which could reasonably be
expected to risk circumvention of the law.” Id. ¶ 116 (emphases added). Adding speculation on
top of speculation does not carry ICE’s burden. SAI, 315 F. Supp. 3d at 233. Not only is ICE simply
speculating that this information might risk circumvention of the law, but it is also important to
note what is missing from ICE’s declaration. ICE does not argue that apprehension locations are
part of any law enforcement technique or procedure. See generally Pineiro Decl. ¶¶ 114–19.
Indeed, based on the Pineiro Declaration, it is equally possible that the apprehension locations
were the product of chance.
The D.C. Circuit has previously rejected similarly vague justifications for Exemption 7(E)
withholdings. In CREW, the D.C. Circuit rejected DOJ’s “near-verbatim recitation of the statutory
standard [as] inadequate” where DOJ had asserted Exemption 7(E) “to protect procedures and
techniques used by FBI [agents] during the investigation.” 746 F.3d at 1102 (alteration in original;
citation omitted). This was insufficient, the D.C. Circuit explained, because: “We are not told what
procedures are at stake. (Perhaps how the FBI conducts witness interviews? Or how it investigates
public corruption?).” Id. Additionally, the D.C. Circuit noted that DOJ had not explained how
releasing the withheld information “could reveal such procedures.” Id. For instance, “[a]re the
procedures spelled out in the documents? Or would the reader be able to extrapolate what the
procedures are from the information contained therein?” Id. Acknowledging the “low bar” to
justify Exemption 7(E) withholdings, the D.C. Circuit nonetheless held that “the agency must at
least provide some explanation of what procedures are involved and how they would be disclosed.”
Id. (emphasis in original).
27
Here, ICE has failed to provide any such information, which distinguishes this case from
American Immigration Council, 464 F. Supp. 3d 228, on which ICE relies. ICE Mot. at 28. While
true that the court in that case held that apprehension location data could be withheld under
Exemption 7(E), the facts were substantially different. 464 F. Supp. 3d at 244–45. Plaintiff’s
request here seeks various reports about ICE removal activities. In contrast, the request in
American Immigration Council sought information about “all apprehensions and arrests over a 34-
month period across the United States.” 464 F. Supp. 3d at 245 (cleaned up). And the agency
provided a declaration in that case explaining that “[t]he substantive effect of over 1 million points
of location data would be the disclosure of law enforcement techniques and procedures” because
it would provide information on all “operations, arrests and apprehensions and staffing and specific
ports of entry[.]” Id. The request here does not come close to implicating the same volume of
information, as releasing apprehension locations here would not provide a full listing of all
apprehension activity over a series of years.
Rather, the records here bear more similarity to those at issue in Whittaker, where the FBI
sought to withheld various name-check results under Exemption 7(E). 2019 WL 2569915, at *1.
The apprehension information here is simply the result of ICE actions, and “[t]he phrase
techniques and procedures … refers to how law enforcement officials go about investigating a
crime.” Id. at *2 (quotation marks omitted; alteration and emphasis in original). Just as
“[d]isclosing the results of Plaintiff’s National Agency Check would not necessarily reveal how
the FBI ‘goes about’ collecting information returned from such inquiries,” releasing the
apprehension location information does not explain how ICE “goes about” using any law
enforcement technique or procedure. Id.
28
If ICE uses specific techniques and procedures to determine apprehension locations, it must
say as much. By failing to do so, ICE asks the Court to assume that this withheld information
would divulge a law enforcement technique or procedure, which this Court cannot do. Id.
B. ICE also fails to demonstrate that the withheld gang, cartel, and terrorist
affiliation information constitutes a law enforcement technique or procedure.
Similarly, ICE’s attempt to withhold gang, cartel, terrorist affiliation and monikers under
Exemption 7(E) fails for the same reason as under Exemption 7(C). Releasing this information
will not divulge the information ICE suggests. According to ICE, this information must be
withheld because it was the result of “law enforcement agencies identifying, based on intelligence
and law enforcement review, the criminal organization groups, for which the non-citizens … are
or suspected to be affiliated with.” Pineiro Decl. ¶ 130. Plaintiff does not doubt the importance of
withholding gang-related information when releasing it would show that a law enforcement agency
has recruited valuable sources inside that gang. Nor does Plaintiff doubt the importance of
withholding such information when a law enforcement agency has infiltrated an organization and
releasing the name of the gang would divulge that law enforcement activity.
But that case is not this case. Rather, the records here show that ICE officers merely
referenced the gang affiliation in passing. See, e.g., Vaughn Index, Nov. 2022 Production, Row
921; id., Nov. 2022 Production, Row 1725; id., Dec. 2022 Production, Row 136. In many
instances, that is likely the result of nothing more than observing physical markings (such as
tattoos) or speaking with the individual. And ICE has not come close to demonstrating that this is
the type of case where releasing gang, cartel, or terrorist group information will cause any harms.
Again, despite Exemption 7(E)’s low bar, the D.C. Circuit confirms that ICE “must at least provide
some explanation of what procedures are involved and how they would be disclosed.” CREW, 746
29
F.3d at 1102 (emphasis in original). ICE has not done so, and the Court should therefore deny
ICE’s motion.
CONCLUSION
The public has a keen interest in knowing more about how the Federal Government applies
immigration law to protect U.S. citizens. Here, the public record shows that political leadership
has imposed additional hurdles that frustrate immigration enforcement. Only by requiring ICE to
release the withheld information can the public learn about the public health and safety risks posed
by this policy. Accordingly, the Court should deny ICE’s motion for partial summary judgment
and grant Plaintiff’s motion.
/s/ Brian J. Field

BRIAN J. FIELD
D.C. Bar No. 985577
SCHAERR | JAFFE LLP
Tel.: (202) 787-1060
30

Plaintiff,
v.
Defendants.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ STATEMENT

OF MATERIAL FACTS AND PLAINTIFF’S COUNTER-STATEMENT
OF MATERIAL FACTS NOT IN DISPUTE
Pursuant to Local Civil Rule 7(h), Plaintiff America First Legal Foundation hereby
responds to Defendants’ Statement of Material Facts Not in Dispute.
1. Undisputed.
2. Undisputed.
3. Undisputed.
4. Undisputed.
5. Undisputed.
6. Undisputed.
7. Undisputed.
8. Undisputed.
9. This paragraph contains ICE’s conclusions, not statements of fact. If a response is
nonetheless required, Plaintiff disputes this statement because the cited portion of the record does
not support ICE’s suggestion that the records here were compiled for law enforcement purposes,
rather than political purposes. The cited portion of the record does not demonstrate that these
records were compiled to effect enforcement actions, but rather to catalogue enforcement actions.
10. Undisputed.
11. Undisputed.
12. Undisputed that ICE represents this to be a summary of the material included in the
reports. As ICE has redacted substantial information, Plaintiff is unable to determine whether this
is an accurate statement.
13. Undisputed that ICE redacted this information. The reason for doing so is a legal
conclusion, not a statement of fact.
14. This paragraph contains ICE’s legal conclusions, not statements of fact.
18. Undisputed that ICE reviewed each line. The remainder of this paragraph contains
ICE’s legal conclusions, not statements of fact.
Pursuant to Local Rule 7(h), Plaintiff respectfully submits the following Statement of
Material Facts Not In Dispute.
1. The public has a substantial interest in matters involving immigration and the risks
to public health and safety posed by various non-citizens who are in the United States illegally.1
1
See, e.g., Anna Giaritelli, ‘He should have never been allowed in’: Mother demands border fix
after daughter’s murder by suspected MS-13 immigrant, Wash. Examiner (Feb. 1, 2023),
https://tinyurl.com/7ehpuxab; Press Release, U.S. Att’ys Off. for S. Dist. Tex., U.S. Dep’t of Just.,
2. Recent polling from Pew Research suggests this is a matter that crosses the political
spectrum and is a pressing concern to a majority of Americans, regardless of political or partisan
affiliation. For instance, 53% of Americans say that dealing with immigration is a top priority for
them, and the same number say that reducing the availability of illegal drugs is also a top priority.
And 57% of Americans say that reducing crime is a top priority.2
3. Further, 73% of Americans think that it is either “very” or “somewhat” important
to increase border security.3 And, when asked to name problems that are “very big” in America
today, 61% responded that drug addiction is an issue, and 59% said that violent crime is a major
issue.4
/s/ Brian J. Field

BRIAN J. FIELD
D.C. Bar No. 985577
SCHAERR | JAFFE LLP
Tel.: (202) 787-1060
Sex offender sentenced for illegally being in US … for the 9th time (Aug. 23, 2023),
https://tinyurl.com/3vcnyayn; Adam Shaw, Illegal immigrant accused of abduction, rape in
Virginia overstayed visa: ICE, Fox News (Aug. 31, 2023), https://tinyurl.com/2mbf4nk6; Charles
Creitz, Illegal immigrant mass murder suspect captured was deported five times, ex-detective says,
Fox News (May 2, 2023), https://tinyurl.com/yd89sh6k.
2
Economy Remains the Public’s Top Policy Priority; COVID-19 Concerns Decline Again, PEW
RESEARCH (Feb. 6, 2023), https://tinyurl.com/9ut7r6a3.
3
J. Baxter Oliphant & Andy Cerda, Republicans and Democrats Have Different Top Priorities for
U.S. Immigration Policy, Pew Rsch. Ctr. (Sept. 8, 2022), https://tinyurl.com/4x3uvve3.
4
Pew Rsch. Ctr., Inflation, Health Costs, Partisan Cooperation Among the Nation’s Top Problems
(2023), https://tinyurl.com/2sphrcr4.

Plaintiff,
v.
Defendants.
[PROPOSED] ORDER
Upon consideration of the parties’ cross-motions for partial summary judgment, and the
entire record herein, it is hereby:
ORDERED that Defendants’ motion for partial summary judgment is DENIED; and it is
FURTHER ORDERED that Plaintiff’s motion for partial summary judgment is
GRANTED.
SO ORDERED.
Date United States District Judge

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Case 1:21-cv-02168-RDM Document 28 Filed 09/15/23 Page 1 of 1

UNITED STATES DISTRICT COURT

AMERICA FIRST LEGAL FOUNDATION,

PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

release the unlawfully withheld material.

September 15, 2023 Respectfully submitted,

/s/ Brian J. Field

UNITED STATES DISTRICT COURT

AMERICA FIRST LEGAL FOUNDATION,

PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AND

Bartko v. U.S. Dep’t of Just.,

Nation Mag., Washington Bureau v. U.S. Customs Serv.,

Whittaker v. U.S. Dep’t of Just.,

of the Freedom of Information Act (“FOIA”) in ensuring an “informed citizenry.” N.L.R.B. v.

As discussed in the Defendants’ motion, on February 18, 2021, political leadership at

ICE officers even more challenging.

ECF No. 1-2 (“Johnson Memo.”).

Secretary of Homeland Security. Id. at 7.

leadership has handled this matter of critical importance.

cumulative spreadsheet each month. See Min. Order (Apr. 7, 2022).

officers receive political approval before taking enforcement action.

(first emphasis in original, second emphasis added).

they do not receive the special protection of Exemptions 6 and 7(C).

how U.S. law broadly distinguishes between citizens and noncitizens.

authority discussed above.

fall far short of satisfying ICE’s burden under Exemption 7.

satisfies the law enforcement purpose inquiry.” Id.

explanations of law enforcement purpose. In American Immigration Council v. U.S. Dep’t of

2019 WL 4852743 (D.D.C. July 11, 2019).

records from release.

clear reasons to deny ICE’s motion with respect to those withholdings.3

A. ICE fails to demonstrate that it lawfully withheld court case numbers.

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.

(RDM), 2021 WL 2711765, at *4 (D.D.C. July 1, 2021) (“Brennan Ctr. III”).

i. The public interest in court case numbers is high.

The public interest in issues related to immigration is particularly weighty, as “the

Apr. 1, 2014) (“CREW”)).

previous criminal activity.

the otherwise available information.

ii. Any privacy interest is low.

id., Dec. 2022 Production, Row 883.

To be sure, individuals whose cases resulted in acquittals or dismissals “have a much

must be less than what ICE argues.

activity, including those with violent criminal histories.

“common-law and dictionary understandings”). Looking to these standards, there is a limited

B. ICE fails to demonstrate that it lawfully withheld information about gang,

interests of the American public.

i. Cartel and Gang Members have no privacy interests.

privacy interest of a specific individual.

ii. There is overwhelming public interest in this information.

Federal Government is doing about it.6

spectrum and is a pressing concern to a majority of Americans, regardless of political or partisan

public interest in releasing information related to gang and cartel activity.

designated for removal but were released from DHS custody”).

of non-citizens “could reasonably be expected to constitute an unwarranted invasion of privacy”).

749 F.3d at 56 (cleaned up).

additional time before proceeding with any enforcement action.

APM, 2019 WL 2569915, at 1, 3 (D.D.C. June 21, 2019).