Archive | NDLON v. DHS
July 13, 2012, New York – Today, in an important victory for open government, Judge Shira A. Scheindlin, of the Southern District of New York, ruled that the Federal Bureau of Investigation (FBI), the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have failed to adequately search for and disclose information pursuant to the Freedom of Information Act (FOIA). The ruling comes in NDLON v. ICE, a FOIA lawsuit brought by 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, with representation by Mayer Brown LLP. The suit seeks government records relating to the controversial Secure Communities (SCOMM) program.
Said Center for Constitutional Rights attorney Ghita Schwarz, “Today’s decision rightly holds the government to standards of transparency and accountability, an important step in stopping the harm this program is causing in our communities. Despite claims that SCOMM targets serious criminals, the fact is that SCOMM has done nothing but break families apart and undermine public safety by intimidating victims and witnesses of real crimes from reporting them.”
In a strongly worded opinion, Judge Scheindlin sided largely with plaintiffs, stating that “[t]ransparency is indeed expensive, but it pales in comparison to the cost of a democracy of operating behind a veil of secrecy.” Judge Scheindlin flatly rejected the defendant agencies’ claim that they should be “trusted to run effective searches” for records responsive to plaintiffs’ FOIA request “without providing a detailed description of those searches.” Particularly harsh in its conclusions about the FBI’s failure to search for documents, Judge Scheindlin characterized as “absurd” their position that ordering an office to conduct a search and receiving no response satisfied government obligations under FOIA. Pointing out that FOIA requires the government to “use twenty-first century technologies to effectuate congressional intent,” the decision broke new ground by ordering the government to “work cooperatively” with plaintiffs to “design and execute” new searches.
Said co-counsel Anthony Diana from Mayer Brown LLP, “Particularly important is the court’s recognition that the government should work with the FOIA requester to help alleviate some burdens associated with the search of a large volume of electronic data. In an era when government policies are crafted and implemented almost entirely through electronic documents, we hope that applying lessons learned in the civil e-discovery context in FOIA cases will promote transparency and accountability in government across the board.”
Said Jessica Karp of NDLON, “It is fitting that today’s decision comes at the end of a national week of action to ‘Restore Trust’ broken by the Secure Communities deportation program. Transparency and accountability are essential if we are to repair the damage done by this program that is spreading Arizona-style policies around the country. We are especially hopeful that the new searches will bring much-needed transparency to the role of the FBI in forcing this dangerous program on unwilling states and localities.”
Said Sonia Lin of the Immigration Justice Clinic of the Cardozo School of Law, “Today’s decision underscores the importance of transparency about controversial government policies such as SComm. The court rightly observed that this FOIA litigation has ‘influenced much of the public debate over Secure Communities’ and that through this litigation, FOIA has ‘therefore served its purpose of engendering a more informed public and a more accountable government.’ Indeed, this week, Chicago announced a proposal to reject SCOMM and former Manhattan District Attorney Robert Morgenthau publicly called for state and local ability to opt out of the program, which he described as ‘the worst kind of public policy.’”
SCOMM is an ICE deportation program that checks the immigration status of anyone arrested by local and state police, regardless of the charges and whether those charges are later dismissed.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit www.ccrjustice.org and follow @theCCR.
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 Kathryn O. Greenberg 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 www.cardozo.yu.edu/immigrationjustice
CONTACT: B. Loewe, National Day Laborers Organizing Network, 773-791-4668; Jen Nessel, Center for Constitutional Rights, 212-614-6449, [email protected]; Sonia Lin, Cardozo School of Law Immigration Justice Clinic, 212-790-0213, [email protected]
DISTRICT COURT ORDERS RELEASE OF KEY ICE MEMORANDUM
Court Criticizes ICE’s Efforts to Avoid Disclosure as “Offensive” to Freedom of Information Act
October 25, 2011, New York—Last night, Judge Shira Scheindlin ordered the Immigration and Customs Enforcement (ICE) agency to publicly disclose by November 1 a previously withheld internal memorandum that advocates believe will shed light on the agency’s legal justification for turning Secure Communities into a mandatory immigration enforcement program.
The decision follows motions for summary judgment filed by all parties in NDLON v. ICE about the memorandum. The government claimed the memorandum was exempt from disclosure under the attorney-client and deliberative process privileges. Plaintiffs the National Day Laborers Organizing Network, Center for Constitutional Rights, and Cardozo School of Law Kathryn O. Greenberg Immigration Justice Clinic argued the memo was improperly kept secret from the public in the midst of important policy decisions related to Secure Communities. Indeed, this summer, opposition to Secure Communities reached new levels with the Governors of Illinois, Massachusetts, and New York formally rejecting the program. In response, ICE announced that all of its Memorandum of Agreements with States were dissolved and that the program would be imposed unilaterally. Despite serious questions from States, local jurisdictions, and advocates about ICE’s legal authority to make the program mandatory, the agency continued to withhold information about its legal reasoning and sought to keep the legal authority memorandum secret.
The court ruled in favor of plaintiffs and determined the memorandum had been drafted to justify an already existing policy to make Secure Communities mandatory; that the government failed to prove it had kept the memo confidential; and that the agency had adopted the memorandum’s conclusions and analysis as its internal working law.
The National Day Laborer Organizing Network, Center for Constitutional Rights and Cardozo Immigrant Justice Clinic released the following statement in response to the court’s decision:
“Our organizations, along with a chorus of advocates and elected officials across the country, have been seeking to uncover the truth behind ICE’s decision to compel states and localities to participate in its dangerous Secure Communities program. The memorandum ordered disclosed is the only document to date that comprehensively describes the legal authority claimed by ICE in support of its position mandating state and local participation in the controversial program – a deportation dragnet that has raised concerns about racial profiling, due process, the ensnarement of U.S. citizens, community policing, privacy, and other issues.
The judge’s order shines a light on a program that has been plagued with secrecy and lies from its start. We agree with the court’s conclusion that, “an agency’s view ‘that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA.’” We believe it’s also offensive to our democracy.
With this decision, the court has rejected efforts by ICE to “radically expand the government’s ability to resist FOIA requests” and has affirmed that FOIA exists “to promote honest and open government and to assure the existence of an informed citizenry in order to hold the governors accountable to the governed.” We urge the Obama administration to hold federal agencies accountable for their deception and mismanagement, to recognize the complete failure of the Secure Communities program, and to terminate it immediately. It’s time to restore trust and communities. “
For more information on NDLON v. ICE or to view the court order, visit http://ccrjustice.org/secure-communities.
Judge Orders ICE to Release Secure Communities Opt-Out Documents
Posted by Deport Nation on Thursday, December 9, 2010
by Renee Feltz
Is it possible to opt-out of the controversial Secure Communities program that shares local arrest data with immigration agents?
The public may know as soon as January.
Today lawyers for Immigration and Customs Enforcement (ICE) tried to argue before Judge Shira Scheindlin in the US District Court for the Southern District of New York that they needed more time to respond to an emergency injunction to release opt-out related documents. But she was out of patience.
“I’m somewhat confused. The defense agreed to do this back in July and here we are in December,” said Judge Scheindlin. “I think the government is dragging its feet.”
Since it failed to meet its previous deadline, the judge set January 17, 2011 as the new date for ICE to release the documents or explain why they must be withheld. Lawyers who made the request will have two weeks to comply, and then ICE will have one more week to answer.
“This is serious,” said Judge Schiendlin.
Almost everything known about Secure Communities has been released by ICE as a result of the ongoing records request made in February on behalf of the National Day Laborer Organizing Network (NDLON). The attorneys representing the group are from the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.
Fourteen states were enrolled in Secure Communities when the request was submitted. The total has since grown to include 35 states. ICE wants to expand the program nationwide by 2013.
When NDLON organizer, Sarahi Uribe, took the stand during today’s hearing she said counties and states wishing to resist the program would face irreparable harm if ICE did not release information about how to opt-out.
“We’re in the thick of it,” said Urbe. “We’re trying to figure out our next steps, but we don’t have the information we need.”
ICE released a small portion of the records requested on August 2, 2010. Today ICE attorneys estimated they had responded to perhaps 30 percent of the request.
“As far as I understand it, there has been little or no compliance,” said Judge Schiendlin.
ICE lawyers said they have identified about 15,000 opt-out related documents so far, and argued they needed time to sift through them to determine what could be released.
But the judge dismissed this request, saying she was familiar with records requests and knew this amount could be handled promptly.
“15,000 is a tiny set of documents,” said Judge Schiendlin. “It could be searched by the end of the week with the proper technology.”
She also refused to let the government set the stop date for its document search at the time when the original records request was made. She ordered that October 13, 2010 be the cut-off date.
“I don’t think the government should be rewarded for its own delay,” said Judge Schiendlin.
She set a date of February 25, 2011 as the deadline for ICE to release a second set of documents related to other topics in the records request, and noted several times that if ICE fails to produce documents in the two upcoming hearings they will face possible contempt sanctions.