Case 1:20-cv-00652 Document 1 Filed 03/05/20 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

v.
U.S. DEPARTMENT OF
HOMELAND SECURITY,
245 Murray Lane SW
Washington, DC 20528
and
U.S. CITIZENSHIP AND
IMMIGRATION SERVICES,
20 Massachusetts Avenue NW
Washington, DC 20529-2120

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Plaintiff, )
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Defendants. )
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Case No. 20-cv-652

COMPLAINT
1.

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

Homeland Security and the U.S. Citizenship and Immigration Services 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.
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.

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3.

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

§ 1391(e).
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 it, 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). DHS has possession,
custody, and control of the records that American Oversight seeks.
7.

Defendant U.S. Citizenship and Immigration Services (USCIS) is a component of

DHS—an agency of the U.S. government within the meaning of 5 U.S.C. § 552(f)(1) —and is

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headquartered in Washington, DC. USCIS has possession, custody, and control of the records
that American Oversight seeks.
STATEMENT OF FACTS
8.

On November 8, 2019, American Oversight submitted three FOIA requests to

both DHS and USCIS seeking, broadly speaking, all guidance documents, training materials, and
data related to a 2019 pilot program that transferred responsibility for conducting credible fear
asylum interviews from USCIS officers to U.S. Customs and Border Protection (CBP) agents.
Guidelines FOIA
9.

On November 8, 2019, American Oversight submitted a FOIA request to both

DHS and USCIS seeking the following:
Any final policies, procedures, protocols, instructions or guidance regarding the
transfer of responsibility for credible fear interview from asylum officers within
USCIS to law enforcement agents within CBP.
To be clear, this request encompasses guidance originating in headquarters, as
well as guidance originating in branch offices where law enforcement agents are
responsible for conducting credible fear interviews. At a minimum, American
Oversight requests a search for responsive records in the USCIS Asylum Offices
in Houston, Los Angeles, San Francisco, and Miami as well as the CBP Field
Operation Offices in San Diego, Tucson, El Paso, Houston, Laredo, New Orleans,
Tampa, and Miami.
10.

American Oversight requested all responsive records from April 1, 2019, until the

date of the search.
11.

American Oversight requested a fee waiver in connection with the Guidelines

12.

By letter dated November 14, 2019, USCIS acknowledged receipt of American

FOIA.

Oversight’s FOIA request, assigned the Guidelines FOIA tracking number COW2019501574,
and granted American Oversight’s fee waiver request.
13.

By letter dated November 22, 2019, DHS acknowledged receipt of American
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Oversight’s FOIA request, assigned the Guidelines FOIA tracking number 2020-HQFO-00156,
and conditionally granted American Oversight’s fee waiver request.
14.

American Oversight has not received further communication from either DHS or

USCIS regarding the Guidelines FOIA.
Training Materials FOIA
15.

Also on November 8, 2019, American Oversight submitted a FOIA request to

both DHS and USCIS seeking the following:
Any materials used to train border patrol agents to conduct credible fear
interviews, including but not limited to lessons, PowerPoint presentations, guides,
handbooks, hand-outs, and manuals.
To be clear, this request encompasses records originating in headquarters, as well
as guidance originating in branch offices where law enforcement agents are
responsible for conducting credible fear interviews. At a minimum, American
Oversight requests a search for responsive records in the USCIS Asylum Offices
in Houston, Los Angeles, San Francisco, and Miami as well as the CBP Field
Operation Offices in San Diego, Tucson, El Paso, Houston, Laredo, New Orleans,
Tampa, and Miami.
16.

American Oversight requested all responsive records from April 1, 2019, until the

date of the search.
17.

American Oversight requested a fee waiver in connection with the Training

Materials FOIA.
18.

By letter dated November 22, 2019, DHS acknowledged receipt of the Training

Materials FOIA, assigned it tracking number 2020-HQFO-00157, and conditionally granted
American Oversight’s fee waiver request.
19.

American Oversight has not received any further communication from either DHS

or USCIS regarding the Training Materials FOIA.

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Categorical Data FOIA
20.

Also on November 8, 2019, American Oversight submitted a FOIA request to

both DHS and USCIS seeking the following:
Records sufficient to identify the frequency of each category of determination in
credible fear interviews conducted by border patrol agents. This includes but is
not limited to the percentage of cases (1) found to involve a credible fear, (2) the
percentage of cases found not to involve credible fear, and (3) the percentage of
cases in which it was not possible to make a determination.
Public reporting suggests that this information is being compiled in an aggregated
format in order to evaluate the performance of border patrol agents and determine
the success of the pilot program. To the extent your agency maintains this data in
aggregated form, such as in a spreadsheet or within a database or other format that
can be readily exported to a spreadsheet, American Oversight requests responsive
data in such format. In addition to records in the form of spreadsheets and tables,
this request encompasses records in the form of final memoranda, reports, and
talking points which reflect the frequency of each category of determination made
in credible fear interviews conducted by border patrol agents.
To be clear, American Oversight is not requesting details about individual cases of
credible fear determinations and does not object to the redaction of such details,
e.g. names or other identifying information, from records responsive to this
request.
American Oversight believes that your agency is best positioned to determine
where responsive records may reside. American Oversight requests that at a
minimum you search the Office of the Secretary, White House Liaison, and
Immigration Statistics within DHS; the Office of the Director, White House
Liaison, and the Asylum Division within USCIS; and the Office of the
Commissioner, White House Liaison, and Office of Field Operations within CBP.
21.

American Oversight requested all responsive records from April 1, 2019, until the

date of the search.

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22.

American Oversight requested a fee waiver in connection with the Categorical

Data FOIA.
23.

By letter dated November 21, 2019, USCIS acknowledged receipt of the

Categorical Data FOIA and assigned it tracking number COW2019501598.
24.

By letter dated November 22, 2019, DHS acknowledged receipt of the

Categorical Data FOIA and assigned it tracking number 2020-HQFO-00158.
25.

By letter dated November 25, 2019, DHS conditionally granted American

Oversight’s fee waiver request.
26.

American Oversight has not received any further communication from either DHS

or USCIS regarding the Categorical Data FOIA.
Exhaustion of Administrative Remedies
27.

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

Oversight of any determination regarding its FOIA requests, including the scope of any
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.
28.

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
29.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.

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30.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
31.

Defendants are an agency and a component thereof subject to FOIA, and they

must therefore make reasonable efforts to search for requested records.
32.

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

locating those records that are responsive to American Oversight’s FOIA requests.
33.

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

FOIA and applicable regulations.
34.

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
35.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
36.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
37.

Defendants are an agency and a component thereof 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.
38.

Defendants are wrongfully withholding non-exempt agency records requested by

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

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39.

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.
40.

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

and applicable regulations.
41.

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.
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: March 5, 2020

Respectfully submitted,
/s/ Khahilia Y. Shaw
Khahilia Y. Shaw
D.C. Bar No. 1616974
/s/ Hart W. Wood
Hart W. Wood
D.C. Bar No. 1034361
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-4213
khahilia.shaw@americanoversight.org
Counsel for Plaintiff

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