Case 1:19-cv-01817 Document 1 Filed 06/21/19 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff, )
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v.
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U.S. DEPARTMENT OF
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HOMELAND SECURITY,
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Office of the General Counsel
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245 Murray Lane SW
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Mailstop: 0485
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Washington, DC 20528,
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U.S. IMMIGRATION
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AND CUSTOMS ENFORCEMENT,
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500 12th Street SW
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Washington, DC 20536,
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and
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U.S. CUSTOMS
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AND BORDER PROTECTION,
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1300 Pennsylvania Avenue NW
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Washington, DC 20229
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Defendants. )
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AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. ____________

COMPLAINT
1.

Plaintiff American Oversight brings this action against the U.S. Department of

Homeland Security and its related component agencies, the U.S. Immigration and Customs
Enforcement and U.S. Customs and Border Protection, under the Freedom of Information Act,
5 U.S.C. § 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking
declaratory and injunctive relief to compel compliance with the requirements of FOIA.

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JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. §§ 1331, 2201, and 2202.
3.

Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e)(1).
4.

Because Defendants have failed to comply with the applicable time-limit

provisions of FOIA, American Oversight is deemed to have exhausted its administrative
remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i), and is now entitled to judicial action enjoining
the agencies from continuing to withhold agency records and ordering the production of agency
records improperly withheld.
PARTIES
5.

Plaintiff American Oversight is a nonpartisan, non-profit section 501(c)(3)

organization primarily engaged in disseminating information to the public. American Oversight
is committed to the promotion of transparency in government, the education of the public about
government activities, and ensuring the accountability of government officials. Through research
and FOIA requests, American Oversight uses the information gathered, and its analysis of such
information, to educate the public about the activities and operations of the federal government
through reports, published analyses, press releases, and other media. The organization is
incorporated under the laws of the District of Columbia.
6.

Defendant U.S. Department of Homeland Security (“DHS”) is a department of the

executive branch of the U.S. government headquartered in Washington, DC, and an agency of
the federal government within the meaning of 5 U.S.C. § 552(f)(1). The DHS Privacy Office
(“DHSHQ”) coordinates FOIA requests for several DHS components, including the DHS Office

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for Civil Rights and Civil Liberties (“CRCL”). DHS has possession, custody, and control of the
records that American Oversight seeks.
7.

Defendants U.S. Immigration and Customs Enforcement (“ICE”) and U.S.

Customs and Border Protection (“CBP”) are components of DHS headquartered in Washington,
DC, and agencies of the federal government within the meaning of 5 U.S.C. § 552(f)(1). ICE and
CBP have possession, custody, and control of the records that American Oversight seeks.
STATEMENT OF FACTS
8.

On February 8, 2019, American Oversight submitted four FOIA requests to DHS,

ICE, and CBP seeking documents relating to individuals who died during or following their
detention by ICE or CBP. American Oversight limited its requests to documents post-dating
January 1, 2018 for certain requests, and March 1, 2018 for remaining requests in order to reduce
the volume of responsive records.
CRCL Complaints FOIA
9.

On February 8, 2019, American Oversight submitted a FOIA request to DHS with

internal tracking number DHS-19-0192, seeking the following records:
1. All complaints received by [CRCL] since January 1, 2018, alleging any
misconduct or violation of rights related to any of the following:
a) Conditions, actions, or failures to take action that are alleged to have
contributed to the death of any person held in the custody of CBP or ICE, or
conditions, actions or failures to take action of CBP or ICE that are alleged to
have contributed to the death of any person after their release from CBP or
ICE custody;
b) Lack of adequate mental health care provision for any person held in the
custody of CBP or ICE (including, but not limited to, complaints related to the
failure to provide medications);
c) Lack of adequate health care provision for any pregnant person held in the
custody of CBP or ICE (including, but not limited to, complaints related to
miscarriage and failure to provide required medications);
d) Lack of adequate health care provision for any infant or child held in the
custody of CBP or ICE; or

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e) Dangerous conditions experienced by any pregnant person held in the custody
of CBP or ICE (including, but not limited to, complaints regarding the
inadequate provision of food, beds, or appropriate heat (for example, extreme
cold experienced in “hieleras” used by CBP)).
2. Records sufficient to show the number of complaints received by CRCL since
January 1, 2018, regarding the issues specified in item 1. To the extent CRCL
maintains database records that can be readily exported as or otherwise produced
in the form of spreadsheets or lists of such complaints, American Oversight
requests those records.
American Oversight understands that privacy interests may be implicated by some of
the records responsive to this request, but American Oversight believes much of the
requested information should nonetheless be disclosed. First, the requested
information would be of significant public benefit in exposing matters of great public
importance, and this public benefit must be weighed against the privacy interests of
individuals’ information in these records. Second, CRCL must produce reasonablysegregable non-exempt material from any exempt material. The redaction of
potentially exempt, personally identifiable information from the requested complaints
may be appropriate, but withholding the records in service of privacy interests would
be an unreasonable failure to segregate non-exempt material.
10.

On February 11, 2019, DHS acknowledged receipt of the CRCL Complaints

FOIA, conditionally granted American Oversight’s request for a fee waiver, and assigned the
FOIA request reference number 2019-HQFO-00407.
11.

American Oversight has not received any further communication from DHS

regarding the CRCL Complaints FOIA.
ICE Reports FOIA
12.

On February 8, 2019, American Oversight submitted a FOIA request to ICE with

internal tracking number DHS-ICE-19-0196, seeking the following records:
1. A copy of ICE’s initial report on the May 2018 death of ICE detainee Roxana
Hernandez (also listed in DHS records as Jeffry Hernandez), which ICE was
required to publish by June 24, 2018.
2. A copy of ICE’s final report on the May 2018 death of ICE detainee Roxana
Hernandez (also listed in DHS records as Jeffry Hernandez), which ICE was
required to publish by July 24, 2018.

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3. A copy of ICE’s initial report on the November 2018 death of ICE detainee
Mergensana Amar.
4. A copy of ICE’s final report on the November 2018 death of ICE detainee
Mergensana Amar.
Please provide all responsive records from March 1, 2018, through the date of the
search.
13.

On March 6, 2019, ICE acknowledged receipt of the ICE Reports FOIA and

assigned it reference number 2019-ICFO-29821.
14.

American Oversight has not received any further communication from ICE

regarding the ICE Reports FOIA.
ICE Records FOIA
15.

On February 8, 2019, American Oversight submitted a FOIA request to ICE with

internal tracking number DHS-ICE-19-0197, seeking the following records:
1. All records related to ICE’s detention of Roxana Hernandez (also listed in DHS
records as Jeffry Hernandez) who died in May 2018 following her detention at the
ICE detention facility in Cibola County, New Mexico. Responsive records
include, but are not limited to, records related to the care, treatment, discipline,
and abuse of Ms. Hernandez, as well as reports or reviews of Ms. Hernandez’s
death.
2. The records containing the factual information relied upon for ICE’s public
statements regarding Ms. Hernandez’s death and detention are also responsive.
3. All records related to ICE’s detention of Mergensana Amar who died in
November 2018 following his detention at the Northwest Detention Center in
Washington State. Responsive records include, but are not limited to, records
related to the care, treatment, discipline, forced-feeding, and involuntary
hydration of Mr. Amar, as well as reports or reviews of Mr. Amar’s death.
4. The records containing the factual information relied upon for ICE’s public
statements regarding Mr. Amar’s death and detention are also responsive.
Please provide all responsive records from March 1, 2018, through the date of the
search.

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16.

American Oversight has not received any further communication from ICE

regarding the ICE Records FOIA. ICE has not assigned a reference number to the FOIA request.
CBP Records FOIA
17.

On February 8, 2019, American Oversight submitted a FOIA request to CBP with

the internal tracking number DHS-CBP-19-0198, seeking the following records:
1. All records related to CBP’s detention of Jakelin Caal Maquin, who died in
December 2018 following her detention by CBP in New Mexico. Responsive
records include, but are not limited to, records related to her care and treatment, as
well as reports or reviews of her death.
The records that formed the factual basis for CBP’s statements to media outlets
regarding Jakelin Caal Maquin’s death are responsive to this request.
2. All records related to CBP’s detention of Felipe Alonzo Gomez, who died in
December 2018 following his detention by CBP in New Mexico. Responsive
records include, but are not limited to, records related to his care and treatment, as
well as reports or reviews of his death.
The records that formed the factual basis for CBP’s statements to media outlets
regarding Felipe Alonzo Gomez’s death are responsive to this request.
3. All records related to CBP’s 2018 detention of Roxana Hernandez (also listed in
DHS records as Jeffry Hernandez), who died following her transfer to ICE
custody and her detention at the ICE detention facility in Cibola County, New
Mexico. Responsive records include, but are not limited to, records related to the
care, treatment, discipline, and abuse of Ms. Hernandez, as well as reports or
reviews of Ms. Hernandez’s death.
Please provide all responsive records from March 1, 2018, through the date of the
search.
18.

On March 11, 2019, CBP acknowledged receipt of the CBP Records FOIA,

granted American Oversight’s request for a fee waiver, and assigned the FOIA request reference
number CBP-2019-027899.
19.

On May 15, 2019, CBP changed the reference number for the FOIA request to

CBP-IA-2019-027899.

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20.

American Oversight has not received any further communication from CBP

regarding the CBP Records FOIA.
Exhaustion of Administrative Remedies
21.

As of the date of this Complaint, Defendants have failed to (a) notify American

Oversight of a final determination regarding American Oversight’s FOIA requests, including the
scope of responsive records Defendants intend to produce or withhold and the reasons for any
withholdings; or (b) produce the requested records or demonstrate that the requested records are
lawfully exempt from production.
22.

Through Defendants’ failure to respond to American Oversight’s FOIA requests

within the time period required by law, American Oversight has constructively exhausted its
administrative remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
23.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
24.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
25.

Defendants are agencies subject to FOIA, and they must therefore make

reasonable efforts to search for requested records.
26.

Defendants have failed to promptly review agency records for the purpose of

locating those records that are responsive to American Oversight’s FOIA requests.
27.

Defendants’ failure to conduct an adequate search for responsive records violates

FOIA and applicable regulations.

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28.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

relief requiring Defendants to promptly make reasonable efforts to search for records responsive
to American Oversight’s FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
29.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
30.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
31.

Defendants are agencies subject to FOIA, and they must therefore release in

response to a FOIA request any non-exempt records and provide a lawful reason for withholding
any materials.
32.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce non-exempt records responsive to its FOIA requests.
33.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to segregate exempt information in otherwise non-exempt records
responsive to American Oversight’s FOIA requests.
34.

Defendants’ failure to provide all non-exempt responsive records violates FOIA

and applicable regulations.
35.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendants to promptly produce all non-exempt records responsive to its FOIA
requests and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.

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REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendants to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA requests;
(2) Order Defendants to produce, within twenty days of the Court’s order, or by such
other date as the Court deems appropriate, any and all non-exempt records responsive
to American Oversight’s FOIA requests and indexes justifying the withholding of any
responsive records withheld under claim of exemption;
(3) Enjoin Defendants from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA requests;
(4) Award American Oversight the costs of this proceeding, including reasonable
attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant
to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.

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Dated: June 21, 2019

Respectfully submitted,
/s/ Erica C. Lai
.
Melissa H. Maxman, D.C. Bar No. 426231
Erica C. Lai, D.C. Bar No. 995143
COHEN & GRESSER LLP
2001 Pennsylvania Avenue NW, Suite 300
Washington, DC 20006
(202) 851-2070
mmaxman@cohengresser.com
elai@cohengresser.com
Daniel A. McGrath, D.C. Bar No. 1531723
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-4213
daniel.mcgrath@americanoversight.org
Counsel for Plaintiff

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