Federal Court Orders ICE Release 13,000 Pages: ICE "Plain Wrong," Redactions "Egregious"
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In the past, a request for a U.S. citizen's "A"-file ("A" for Alien) would yield several hundred pages and any litigation would be over redactions or pages that were withheld. Now, even AFTER I go to court, ICE will take months or years before releasing just one to four pages from a computer print-out, thus forcing me to respond to round after round of their motions for summary judgment.
The result is stale information, and a diversion of my time away from writing and research and into tracking and drafting declarations revealing ICE's idiocies.
A recent order revealed I was not the only one frustrated by ICE's Prozess -- the word from which Kafka's "The Trial" is translated.
Northern Illinois District Court Judge Matthew Kennelly also has had enough. Here are some excerpts from his order, castigating ICE's declarant Fernando Pineiro for his vague and inaccurate statements:
It is apparent from the way Pineiro worded this that his declaration does not contain a full list of program offices where ICE maintains its records, nor does it explain why he listed only four program offices as potential locations where responsive records may be found. Stevens v. Health and Human Services, et al., 1:22-cv-05072, ECF 121 at 11.
Judge Kennelly faults Pineiro for his lack of explanation as to the locations searched, ICE redactions of information from publicly available federal court cases, as well as errors, including misstating the number of columns in his own Vaughn Index:
[T]he information he references as forthcoming ("described below") is nowhere to be found. Pineiro does describe the specific search terms used and databases searched, but he does not provide an explanation regarding why "no other record system was likely to produce responsive documents" related to prison grievances, commissary account data, and work program participation. [Webster's Dictionary] defin[es] "explain" as "to make known; to make plain or understanding; to give the reason for or cause of; or to show the logical development or relationship of"). In essence, ICE is asking the Court to take Pineiro's bottom-line word for it without the benefit of any reasoning or justification. Ibid at 15, emphasis in original.
Judge Kennelly finds,
T]hough ICE is afforded the presumption of good faith, Stevens has supplied the requisite evidence to 'raise substantial doubt [about the adequacy of the search]' byproviding her "well defined requests" and pointing to "positive indications of overlooked materials." See Rubman, 800 F.3d at 387. In particular, Stevens contends that there are over 10,000 pages of documents that ICE identified as potentially responsive but that were withheld without a sufficient explanation or description of which program office they came from, or even to which request they relate. Based on the record, no reasonable factfinder could find that ICE performed its search reasonably and in good faith. This is not a question of whether ICE "might have additional, unidentified responsive documents in its possession." Id. Rather, ICE has affirmed that there are over 10,000 pages of potentially responsive documents found by the various program offices, yet it has not sufficiently explained how it determined which of these pages to produce "to allow the . . . court to determine if the search was adequate." Oglesby, 920 F.2d at 68. Ibid at 16.
ICE filed a motion for stay. Today Judge Kennelly denied the motion without prejudice. ICE likely will file a new motion to preserve the right to file an appeal. At that point, ICE also will file a new motion for stay. Meanwhile, other records need to be released before January 30, 2025.
U.S. Citizen Kidnapped and Deported
The records I requested include those of U.S. citizens ICE detained or deported, including a Stockton-born U.S. citizen then-INS basically kidnapped. The information from Miguel's narrative and records I obtained through this litigation reveal the San Joaquin County jail turned Miguel over to INS agents, who brought him to a mobile CBP office in the Port of Stockton commercial rail yard. An agent there filled out a bogus arrest report asserting Miguel first entered two weeks earlier. The then 19 year-old had no idea where he was being taken. "Everything they did, they did at night," Miguel told me, including the chemical spray and shots of tranquilizers in an Arizona INS facility. Six days after being kidnapped he was walking over a bridge into Mexico. This was in 1999. He "snuck" back in and was put into deportation proceedings again in 2004.
Miguel reached out to me because he is terrified of this happening again. Alas, his worries are not groundless. ICE knows that the entire deportation machine will fall apart if the evidence of its wrongful deportation of U.S. citizens is judicially recognized. To delay the inevitable, ICE now regularly challenges findings by immigration judges terminating deportations based on evidence of U.S. citizenship. If Miguel is encountered by law enforcement and they see he was deported, they might well re-arrest him and try again, despite his contemporaneous birth certificate from Stockton, CA.
With deportation protocols, past is prologue.
As political scientist Raul Hilberg explained about the Nazis, the stereotype of the Einsatzgruppen following legal orders is a canard. The deportation regiments were systematic only in their protocols, while their interpretations of statutes were improvisational.*
*I am referencing in particular the period of 1933 to 1940, before the mass killings in Poland and Latvia; I do not believe anything like death camps or mass shootings in remote forests is possible in the United States. I do believe the nativism and national security rhetoric to which the Supreme Court regularly defers entails abandoning the rule of law, and is unconstitutional as well as harmful to most Americans.
The records I have been obtaining for 15 years and am seeking now indicate that the U.S. government cannot abandon due process for deportations and avoid deporting U.S. citizens. No wonder ICE refuses to follow the FOIA.
Thanks as ever to attorney Nicolette Glazer and to Northwestern University Buffett Institute Deportation Research Clinic research assistants Addie Fleming, Caitlin Jimmar, Kendall McKay, Gabriel Sanchez, and Julianna Zitron for carefully combing through ICE's productions and flagging missing information crucial to this litigation.
