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National Day Laborer Organizing Network (NDLON) v. US Immigration and Customs Enforcement Agency (ICE)

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Synopsis


Adem Carroll of the Muslim Progressive-Traditionalist Alliance speaking at the New York S-Comm vigil, on Wednesday, May 11th, 2011. (Photo by Marcus Yam, Special for the New Sanctuary Coalition.)

FOR THE LATEST UPDATES ON SECURE COMMUNITIES, VISIT UNCOVERTHETRUTH.ORG

The National Day Laborer Organizing Network (NDLON), the Center for Constitutional Rights (CCR), and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law filed a request under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), for information pertaining to U.S. Immigration and Customs Enforcement’s (ICE)  new Secure Communities program. In the Fall of 2010, the firm Mayer Brown LLP joined the legal team.

The program, launched in March 2008, further involves state and local entities in the enforcement of federal immigration law. Secure Communities institutes a mechanism to run fingerprints through various databases when individuals are arrested – even for minor charges or if charges are dismissed. These checks are performed on presumptively innocent arrestees prior to conviction, raising serious doubts as to the program’s true objectives. Although ICE presents Secure Communities as an innocuous information sharing program, it seems designed to function as a dragnet to funnel even more people into the already mismanaged ICE detention and removal system. According to the Department of Homeland Security (DHS), Securities Communities has been implemented in at least 3,074 jurisdictions in all 50 states as of August 22, 2012.

Status

On July 3, 2013, the parties reached settlement and the Judge issued a Stipulation and Order regarding all outstanding issues concerning attorneys' fees.

In early 2013, Defendants produced the final sets of documents in the case.

Description

NDLON, CCR & Benjamin Cardozo Immigration Justice Clinic filed an administrative request for documents in February 2010.  The three groups filed suit in the Southern District of New York on April 27, 2010 due to the urgent public need for the requested records.  In the Fall of 2010, the firm Mayer Brown LLP joined the legal team, representing plaintiffs along with CCR and Cardozo.

Purpose of the Request
The American public has a strong interest in understanding the role of law enforcement in our communities. Secure Communities raises issues of immediate concern for local communities, including but not limited to: community policing, public safety, racial profiling, and constitutional violations in immigration detention. The requested information will shed light on Secure Communities’ procedures and help assess the program’s impact on states, localities, and immigrant communities. With the program set to expand nationwide by 2013 this information will assist communities in determining whether their local interests are served by the Secure Communities program.

Requested Information
The FOIA request covers materials necessary to provide the public with comprehensive information on the Secure Communities program, including:

  • Policies, Procedures, and Objectives
  • Fiscal Impact
  • Data and Statistical Information
  • Individual Records
  • Communications
  • Secure Communities Assessment Records

The mission of the National Day Laborer Organization Network is to improve the lives of day laborers in the U.S. by unifying and strengthening its member organizations to be more strategic and effective in their efforts to develop leadership, mobilize day laborers in order to protect and expand their civil, labor and human rights. Visit www.ndlon.org.

The Immigration Justice Clinic of the Benjamin N. Cardozo School of Law was founded in 2008 to provide quality pro bono legal representation to indigent immigrants facing deportation. Under the supervision of experienced practitioners, law students in the Clinic represent individuals facing deportation and community-based organizations in public advocacy, media and litigation projects. Visit http://www.cardozo.yu.edu/immigrationjustice.

GENERAL DOCUMENTS

Guides and Documents from Plaintiffs (NDLON, CCR, Cardozo)

Other Documents

RECORDS PRODUCED
March 16, 2012 release of Detainer-related documents produced by ICE.

January 9, 2012 release of ICE's October 2nd, 2010 "Mandatory Memo"

August 18, 2011 release of ICE and DHS Opt-Out Reproductions

ICE Interoperability Reports

Documents Released by ICE on August 2, 2010

  1. Sample IAQs and IARs
  2. IDENT Interoperability Statistics
  3. 1st Quarterly Status Report april-june 2008
  4. 4th Quarter FY2008 Congressional Status Report
  5. 1st Quarter FY2009 Report to Congress
  6. 2nd Quarter FY2009 Report to Congress
  7. 3rd Quarter FY2009 Report to Congress (part 1 of 2)
  8. 3rd Quarter FY2009 Report to Congress (part 2 of 2)
  9. 4th Quarter FY2009 Report to Congress
  10. 1st Quarter FY2010 Report to Congress
  11. 2nd Quarter FY2010 Report to Congress (part 1 of 2)
  12. 2nd Quarter FY2010 Report to Congress (part 2 of 2)
  13. Secure Communities Talking Points January 10, 2010
  14. ICE Budget Director Briefing
  15. Appropriation Utilization Plan FY2009
  16. DHS FY2011 Budget in Brief
  17. ICE FY2010 Salaries and Expenses overview
  18. ICE DRO Field Office Deployment Briefing NYC
  19. State Identification Bureau Deployment Briefing
  20. ICE DRO Field Office Deployment Briefing NYC
  21. Secure Communities Field Training Handout Sample IDR IAR
  22. Secure Communities Field Training
  23. Secure Communities Quick Reference

Selected Documents Released by ICE on 1-17-11.
For full descriptions of the documents below, please click here to visit the Uncover the Truth website.

Selected State-Related Documents from January 17, 2010 Production

Next Generation Identification Records from FBI and ICE

FBI CJIS Agreements with States and Territories

LITIGATION-RELATED DOCUMENTS AND COURT DECISIONS

FOIA REQUEST AND COMPLAINT

COURT ORDERS

PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - EXEMPTIONS

DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - CUT-OFF DATES

DEFENDANTS' APPEAL TO THE SECOND CIRCUIT OF DISTRICT COURT'S FEBRUARY 7 AND 14 FOR OF PRODUCTION ORDERS REGARDING METADATA

DEFENDANTS' MOTION FOR STAY

7-25-11 PLAINTIFFS' MOTION TO RECONSIDER

9-2-11 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON ITS WITHHOLDINGS PURSUANT TO EXEMPTION (b)(5) AND ATTORNEY-CLIENT PRIVILEGE AND PLAINTIFFS'CROSS-MOTION FOR SUMMARY JUDGMENT ON THE INAPPLICABILITY OF EXEMPTION (b)(5) TO WITHHELD INFORMATION IN THE OCTOBER 2 MEMORANDUM, OR FOR DISCOVERY PURSUANT TO FED. R. CIV. P. 56(d)

11-24-11 DEFENDANTS' MOTION FOR STAY PENDING APPELLATE REVIEW OF THE COURT’S OCTOBER 24, 2011 OPINION AND ORDER

1-12-12 DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEQUACY OF SEARCH FOR OPT-OUT AND RPL DOCUMENTS

3-2-12 DEFENDANTS' RE-FILED MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEQUACY OF SEARCH FOR OPT-OUT AND RPL DOCUMENTS

3-26-12 PLAINTIFFS' MOTION IN OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEQUACY OF SEARCH AND IN SUPPORT OF PLAINTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEQUACY OF SEARCH ON OPT-OUT AND RPL DOCUMENTS

4-9-12 DEFENDANTS' REPLY IN OPPOSITION TO PLANTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEQUACY OF SEARCH AND IN SUPPORT OF DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEQUACY OF SEARCH ON OPT-OUT AND RPL DOCUMENTS

4-16-12 PLAINTIFFS' REPLY IN FURTHER SUPPORT OF PLAINTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADEQUACY OF SEARCH FOR OPT-OUT AND RPL DOCUMENTS

Timeline

The FOIA Request was filed February 3, 2010.

The FOIA Complaint was filed April 27, 2010.

ICE, DHS, FBI answered on July 1, 2010.

ICE released a small portion of the records on August 2, 2010.

On October 28, 2010 Plaintiffs filed a motion for preliminary injunction to obtain a limited set of urgently needed opt-out records while negotiations around the remaining records are ongoing.

On December 9, 2010, Judge Schiendlin set January 17, 2011 as the new date for defendants to release the documents or explain why they must be withheld. She also set February 25, 2011 as the deadline for ICE to release a second set of documents related to other topics in the records request, noting several times that if defendants fail to produce documents in the two upcoming hearings they may face sanctions.

The government produced a number of "opt-out" documents from the FBI, ICE, DHS and EOIR on January 17, 2011. More documents from the FBI, ICE and DHS were produced on February 25, 2011.

In February 2011, Judge Scheindlin issued an Order and Supplemental Order regarding "metadata" and format of production by defendants. On February 21, 2011, the government filed a Notice of Appeal to the Second Circuit and a Stay Pending Appellate Review of these Orders.

On January 26, 2011, the government filed for Partial Summary Judgment on the issue of "search cut-off dates" in regards to the FOIA request. The plaintiffs filed a cross-motion opposing the government, and additionally asking for Partial Summary Judgment against the government, on Februray 9, 2011.

On January 28, 2011, the government filed for Partial Summary Judgment on the issue of "exemptions" claimed in their January 17 production of documents.  and Partial Summary Judgment on the issue of "cut-off dates" claimed in their January 17th production. Attorneys for plaintiffs have filed a motion that both opposes the government's summary judgement motion, and also asks for summary judgment in favor of plaintiffs.

On April 8, 2011, the Judge issued a Stipulation and Order regarding sampling of individual ICE and EOIR records.

On May 26, 2011, regarding the summary judgement motions on the issue of exemptions, the Judge ordered defendants to produce several key documents identified by plaintiffs for in-camera review.

On June 16, 2011, the Judge issued an order for parties to address the impact of the case Milner v. Dept. of the Navy on a specific category of exemptions claimed by defendants.

On June 17, 2011, the Judge issued two orders. One order withdrew the form of production order from February 14, 2011. The second order specified how productions from the government should be formated going forward.

On July 11, 2011, the Judge issued an opinion and order regarding the "opt-out" documents and the exemptions claimed by the government, and specifically focused on those documents she reviewed in-camera. She ordered the government to reproduce certain documents unredacted, while upholding the government's redactions in others.

On July 12, 2011, the Judge issued a stipulation and order regarding the "Final Production List," as agreed to by parties, which sets up where and who the defendants will search for the remaining documents in the FOIA request.

On July 29, 2011, the Judge issued a scheduling order for the "Final Production List."

On August 17, 2011, the defendants re-produced a number of key documents without redactions as ordered by the Judge.

On October 24, 2011, the Judge granted summary judgment for Plaintiffs and ordered the Government to release the majority of an ICE October 2, 2010 legal memorandum to plaintiffs unredacted by November 1, 2011.

On October 28, 2011, the Judge issued an additional order granting the government a Stay on releasing the October 2nd memorandum until November 14, 2011.

On November 14, 2011, the defendants filed a Notice of Appeal, and a Motion for Stay Pending Appellate Review of the Court's October 24, 2011 Order.

On December 28, 2011, the defendants withdrew their Appeal due to deficiencies in ICE's August 23, 2011 declaration, and released the un-redacted version of the October 2, 2010 "Mandatory Memo."

On January 12, 2012, defendants filed their Motion for Partial Summary Judgment on Adequacy of Search for the "Opt Out" and "Rapid Production List" sets of documents.

On February 2, 2012, Judge Scheindlin denied defendants Motion for Partial Summary Judgment on Adequacy of Search with leave to re-file.

On March 2, 2012, defendants re-filed their Motion for Partial Summary Judgment on Adequacy of Search for the "Opt Out" and "Rapid Production List" sets of documents.

On March 26, 2012, plaintiffs filed their opposition to defendants' Motion for Partial Summary Judgment and a Cross-motion for Partial Summary Judgment on Adequacy of Search for the "Opt Out" and "Rapid Production List" sets of documents.

On April 9, 2012, defendants filed their Reply in Opposition to Plaintiffs' Cross-Motion and in Support of Defendants' Adequacy of Search motion.

On April 16, 2012, plaintiffs filed their Reply in Further Support of Plaintiffs' Adequacy of Seach cross-motion.

On July 13, 2012, the Judge issued her decision on the Adequacy of Defendants' Searches. Motions for Summary Judgment by OLC and EOIR were granted, while Motions for Summary Judgment of ICE, FBI, DHS and the Plaintiffs were granted in part and denied in part. Parties were ordered to meet and confer regarding new searches.

On July 3, 2013, the parties reached settlement and the Judge issued a Stipulation and Order regarding all outstanding issues concerning attorneys' fees.

Attached Files