Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 1 of 9. PageID #: 1 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO 2 3 4 5 DAVID MALIK, ESQ, ESPERANZA PACHECO PADILLA 8437 MAYFIELD RD. CHESTERLAND, OHIO 44026 6 Plaintiffs, 7 8 9 10 11 12 Case No.: COMPLAINT (JURY DEMAND) vs. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12TH ST., SW WASHINGTON, DC 20024 Defendant 13 14 COMPLAINT 15 INTRODUCTION 16 17 1. Plaintiffs seek information via FOIA regarding the government’s basis for its repeated 18 collection of a $155 filing fee and its subsequent systemic denials of I-246, Stay of 19 Deportation filings. This conduct has led to a public, humanitarian, and bioethical crisis 20 in Painesville, Ohio and throughout the United States, yet the government has ignored 21 Plaintiffs’ FOIA requests. 22 23 2. Plaintiffs Esperanza Pacheco Padilla and David B. Malik bring this action under the 24 Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 to compel Defendant United 25 States Immigration and Customs Enforcement (“ICE”) to comply with a FOIA request. 26 3. On November 14th, 2018, Mr. Malik, acting as an attorney on behalf of Esperanza 27 Pacheco Padilla, sought records from ICE including: 28 COMPLAINT(JURY DEMAND) - 1 Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 2 of 9. PageID #: 2 1 1) Any policies related to its criteria for assessing I-246 petitions for Stays of Removal, 2) Any policies relating to priority enforcement categories, or a lack of enforcement categories, for removable individuals, 3) Any policies related to racial or ethnic profiling, 4) Any policies related to the level of suspicion necessary for ICE to detain an individual, 5) The nationalities and ICE’s biographical racial identification of all individuals denied Stays of Removal from January 2017-October 2018 by the agency’s Detroit ERO Field Office. 6) Policies and procedures which describe the determination of the filing fee of $155 for an I -246 Stay of Removal petition and any policies or procedures which relate to the manner in which the Detroit ERO Field Office utilizes this fee in determining the outcome of an I-246 petition. 2 3 4 5 6 7 4. Defendant ICE, has violated the FOIA by failing to respond to Ms. Pacheco Padilla and 8 9 Mr. Malik’s request within the statutorily prescribed time limit of twenty business days 10 and by failing to disclose the documents requested. Thus, Plaintiffs now seek declaratory 11 relief from the Court to order Defendant to respond to the request and disclose all 12 records which have been improperly withheld. 13 14 15 16 17 18 JURISDICTION AND VENUE 5. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction over this action as a federal question under 28 U.S.C. § 1331. 6. This Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a). Venue is proper under 5 U.S.C. § 552(a)(4)(B), as 19 20 21 22 23 the requested agency records are located in this district, and 28 U.S.C. § 1391(e). PARTIES 7. Plaintiff David Malik is the attorney representing Plaintiff Esperanza Pacheco Padilla. David Malik sent the FOIA request in his name while acting on behalf of 24 Plaintiff Esperanza Pacheco Padilla. He is seeking records on her behalf in 25 26 anticipation of further litigation regarding the circumstances surrounding her 27 deportation. Ms. Pacheco-Padilla was a 25-year resident of the United States living 28 in Painesville, Ohio prior to her removal by ICE. She is a native and national of COMPLAINT(JURY DEMAND) - 2 Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 3 of 9. PageID #: 3 1 2 Mexico and currently resides near León, Mexico. Her Lawful Permanent Resident husband and four United States Citizen children continue to reside in the Cleveland, 3 Ohio area. 4 5 8. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the sub-agency 6 of the Department of Homeland Security responsible for carrying out removal 7 orders and for deciding I-246 petitions for Stays of Removal. 8 STATUTORY FRAMEWORK 9 9. The FOIA provides every person with a right to request and receive federal agency 10 11 records pursuant to 5 U.S.C. § 552(a)(3)(A) in an effort to promote administrative 12 transparency. In furtherance of this policy, FOIA imposes strict deadlines on agencies to 13 provide requesting individuals documents responding to FOIA requests under 5 U.S.C.§ 14 552(a)(6)(A). 15 10. An agency must comply with a FOIA request by issuing a determination within twenty 16 17 business days after receipt of the request. 5 U.S.C. § 552(a)(6)(A)(i). However, an 18 agency may be entitled to a ten-day extension of time to respond to a request if it 19 provides written notice to the individual requesting documents and provides that the 20 delay in responding to the request is the result of unusual circumstances which warrant 21 additional time, pursuant to 5 U.S.C. § 552(a)(6)(B). 22 23 24 25 26 11. Under 5 U.S.C. § 552(a)(6)(B)(ii), an agency must immediately notify the requester of its determination to comply with or refuse a request and the reasons for it. 12. Under 5 U.S.C. § 552(a)(6)(C)(i), failure to comply with a FOIA request within the statutorily proscribe time frame constitutes a constructive denial and thus fulfills 27 28 requester’s requirement to exhaust administrative remedies. COMPLAINT(JURY DEMAND) - 3 Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 4 of 9. PageID #: 4 1 2 3 13. Pursuant to 5 U.S.C. § 552(a)(4)(B), an individual seeking information via FOIA who has exhausted administrative remedies may petition the court for injunctive and declaratory relief from the agency’s withholding of records. 4 5 6 7 8 FACTUAL BACKGROUND Background of Ms. Pacheco Padilla’s Circumstances 14. Mr. Malik is an attorney currently licensed in the State of Ohio. He is certified to practice in the Northern District of Ohio and he is representing Ms. Pacheco Padilla. 9 15. Esperanza Pacheco Padilla is a native and citizen of Mexico. She entered the United 10 11 States without inspection in March of 1995. She was placed into immigration 12 proceedings in 2002. She was ordered removed on May 2, 2003. After retaining 13 counsel, Ms. Pacheco Padilla applied for and was granted a Stay of Deportation in 14 2011 by the Detroit ERO office. 15 16. At the time that she was granted her stay of removal, ICE was made fully aware of 16 17 Ms. Pacheco Padilla’s forthcoming eligibility for relief and path to legal status under 18 INA §245(i), her strong family ties to the United States, her good moral character, 19 and her positive role in her Painesville, Ohio community. 20 17. Ms. Pacheco Padilla diligently renewed her stay annually through the proper filing of 21 I-246 petitions and applicable filing fees from 2012-2017. She also personally 22 23 checked in with ICE at each and every Order of Supervision (OSUP) ICE 24 appointment, accompanied by her immigration attorney. 25 26 18. However, on November 14, 2017, Ms. Pacheco Padilla’s situation changed dramatically. In an effort to comply with all ICE directives, Ms. Pacheco Padilla 27 28 attended her scheduled OSUP check-in appointment with ICE at their offices in COMPLAINT(JURY DEMAND) - 4 Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 5 of 9. PageID #: 5 1 2 Brooklyn Heights, Ohio. At this time, she was separated from her husband, who was present, and her immigration attorney, who was also present, and she was taken into 3 custody and transferred to the Geauga County Jail. 4 5 19. Three days later, on November 20, 2017, prior to Ms. Pacheco Padilla’s actual 6 removal from the United States, her immigration attorney filed a timely emergency 7 request for a Stay of Removal. A mandatory government required processing fee of 8 $155 was paid when the Stay of Removal was filed. 9 20. Without a response to this request, Ms. Pacheco Padilla was removed from the 10 11 12 13 14 United States to Mexico. The removal occurred in November of 2017. 21. Ms. Pacheco Padilla currently resides near León, Mexico. Her four U.S. citizen children currently remain in the Painesville, Ohio area. 22. As a result of her forced removal from the United States Ms. Pacheco Padilla has 15 experienced severe emotional distress and her children have suffered severe mental 16 17 anguish as a result of the deportation. Additionally, loss of their parent has resulted 18 in a multitude of barriers in the children’s attempt to obtain appropriate and 19 necessary mental health care following their mother’s deportation. 20 ICE’s Failure to Respond to November 14, 2018 FOIA Request 21 22 23. Plaintiffs sent a FOIA request electronically to ICE on November 14, 2018. This 23 request sought the records identified above which relate to ICE’s policies and criteria 24 for assessing I-246 petitions for Stays of Removal. 25 26 24. The request also sought information about policies relating to priority enforcement categories, or a lack of enforcement categories for removable individuals, policies 27 28 related to racial or ethnic profiling, policies related to the level of suspicion COMPLAINT(JURY DEMAND) - 5 Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 6 of 9. PageID #: 6 1 necessary for ICE to detain an individual, information about the nationalities of those 2 deported and ICE’s biographical racial identification data of all individuals denied 3 Stays of Removal from January 2017-October 2018 by the agency’s Detroit ERO 4 5 Field Office. Information was also requested about the policies and procedures 6 which describe the determining criteria that set the filing fee for an I-246 Stay of 7 Removal petition at $155 as well as any policies or procedures which relate to the 8 manner in which the Detroit ERO Field Office utilizes this fee in the final 9 determination of the outcome of an I-246 petitions. 10 11 25. ICE is an “agency” as defined by 5 U.S.C. § 552(f)(1), as it is an executive 12 department. Therefore, ICE must comply with the prescribed statutory requirements 13 of FOIA, including response times. 14 26. The statutory deadline for ICE to response to the Request passed on December 14th, 15 2018. 16 17 27. ICE never acknowledged receipt of the FOIA request, though confirmation of 18 electronic submission was provided to the requestor at the time of submission. 19 28. At the time of filing this Complaint, ICE has not produced a response or any of the 20 requested documents, nor has ICE provided information regarding the specific 21 circumstances preventing the disclosure of the documents Mr. Malik requested. 22 23 29. This failure to respond constitutes a constructive denial of the request, and as such, 24 Plaintiffs have thus exhausted their administrative remedies to access the requested 25 records. 26 30. Plaintiffs have a compelling and immediate need to access this information for 27 28 urgent humanitarian reasons in the course of Ms. Pacheco Padilla case, including, but COMPLAINT(JURY DEMAND) - 6 Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 7 of 9. PageID #: 7 1 2 not limited to, considerations of the mental health of Ms. Pacheco Padilla’s four U.S. Citizen children. 3 31. Many similarly situated individuals in the Cleveland area are being deported without 4 5 notice and without a rationale for the denial of their Stays of Removal, though they 6 have properly filed their I-246 petitions and submitted a processing fee of $155 to 7 ICE. This has led to a public health, humanitarian, and bioethics crisis in the 8 Painesville Latino community. Fears of parental deportation and deportations 9 themselves have caused significant detrimental impacts on the emotional and 10 11 12 13 14 behavioral functioning of children fearing the loss of one or both parents and for children left behind in the wake of parental deportations. 32. In light of these public, humanitarian, and bioethical concerns for her own family, it is critical for Mr. Malik and Ms. Pacheco Padilla to understand ICE’s true removal 15 motivations, removal priorities, policies for processing and deciding properly filed I16 17 246 motions, and the agency’s policies regarding racial profiling and discrimination. 18 CAUSES OF ACTION 19 COUNT I Failure to Respond to Request Within Statutory Timeframe in Violation of 5 U.S.C. § 552(a)(6)(A)(i) 20 21 33. All of the foregoing allegations are repeated and realleged as though fully set forth 22 23 24 25 26 herein. 34. Defendant ICE failed to respond to Plaintiffs’ November 14, 2018 FOIA request within the statutorily mandated timeframe, which has violated Plaintiffs’ rights under FOIA and continues to impede Mr. Malik’s representation of Ms. Pacheco 27 Padilla. 28 COMPLAINT(JURY DEMAND) - 7 Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 8 of 9. PageID #: 8 1 2 COUNT II Failure to Produce Search for or Produce Responsive Records in Violation of 5 U.S.C. § 552(a)(3) and 5 U.S.C. § 552(a)(3)(A) 3 35. All of the foregoing allegations are repeated and realleged as though fully set forth 4 5 6 7 8 9 herein. 36. ICE failed to make reasonable efforts to search for records to respond to Mr. Malik and Ms. Pacheco Padilla’s request, thus violating their rights under FOIA. 37. ICE failed to disclose records or produce any records pursuant to Mr. Malik and Ms. Pacheco Padilla’s request, thus violating their rights to those records under FOIA. 10 11 12 13 14 38. ICE failed to provide a legal basis for withholding records, thus violating its statutory obligations under FOIA. 39. Ms. Pacheco Padilla is entitled to her reasonable attorney’s fees and costs under 5 U.S.C. § 552(a)(4)(E). 15 PRAYER FOR RELIEF 16 17 Plaintiffs asks that this Court grant the following relief: 18 40. Expedite its consideration of this action pursuant to 28 U.S.C. § 1657; 19 41. Find that Defendant’s failure to respond or disclose records within the statutorily 20 proscribed timeframe was unlawful; 21 22 23 24 25 26 42. Find that Defendant’s failure to provide a legal basis for withholding the requested records was unlawful; 43. Order Defendant to search for and promptly disclose all records responsive Plaintiffs’ Request; 44. Award Ms. Pacheco Padilla’s attorneys’ fees and costs; 27 28 45. Grant such other relief as the Court may deem just and proper. COMPLAINT(JURY DEMAND) - 8 Case: 1:19-cv-00059 Doc #: 1 Filed: 01/09/19 9 of 9. PageID #: 9 1 2 Respectfully submitted, 3 4 /s/ David B. Malik David B. Malik (0023763) Sara Gedeon (0085759) Attorneys for Plaintiffs Malik Law 8437 Mayfield Road, Suite 101 Chesterland, OH 44026 (440) 729-8260 (440) 490-1177 david@davidmaliklaw.com sgedeon1021@gmail.com 5 6 7 8 9 10 11 12 13 14 /s/ Anna Markovich Anna Markovich (0076899) Attorney for Plaintiffs Law Office of Anna Markovich, LLC 18975 Villaview Rd., Suite 3 Cleveland, OH 44119 440-759-1420 f. 888-376-8848 lawoffice@annamarkovich.com 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT(JURY DEMAND) - 9