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1 LATHAM&WATKINSLLP2 Susan S. Azad (CA BarNo. 145471)susan.azad@lw. com3 Natasha I. Rieger (CA Bar No. 258263)natasha. rieger@lw. com4 Victor Leung (CA Bar No. 268590)[email protected] Thomas Alcorn (CA Bar No. 287688)thomas. alcorn@lw. com6 355 South Grand Avenue78

Los Angeles, California 90071-1560Telephone: (213) 485-1234Facsimile: (213) 891-8763Attorneys for Plaintiff9 AMERICAN CIVIL LIBERTIES UNIONFOUNDATION OF SOUTHERN10 CALIFORNIA

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1112131415

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

16 AMERICAN CIVIL LIBERTIESUNION FOUNDATION OF17 SOUTHERN CALIFORNIA,18 Plaintiff19 v.20 UNITED STATES DEPARTMENT21 OF JUSTICE, OFFICE OF THESOLICITOR GENERAL, and22 EXECUTIVE OFFICE FOR23 IMMIGRATION REVIEW,2425

Defendants.

262 7 r - - - - - - - - - - - - - - - - - - - - - - - ~28

" ~ W J 3-04 55 - ~ oCOMPLAINT FOR INJUNCTIVERELIEF FOR VIOLATION OF THEFREEDOM OF INFORMATIONACT, 5 U.S.C. 552

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I.INTRODUCTIONThe American Civil Liberties Union Foundation of Southern

California ("Plaintiff' ) brings this action under the Freedom of Information Act4 (the "FOIA"), 5 U.S.C. 552, for injunctive and other appropriate relief to enforce5 its right to agency records from two components, the Executive Office for6 Immigration Review (the "EOIR") and the Office of the Solicitor General (the7 "OSG"), of the United States Department of Justice (the "DOJ") (collectively,8 "Defendants").9 2. On March 15, 2012, Plaintiff submitted a FOIA request to Defendant10

EOIR and to Defendant OSG seeking any and all records relating to or concerning11 the basis for the government's assertions to the United States Supreme Court in its12 brief in Demore v. Kim, 538 U.S. 510 (2003) regarding the average time taken to13 complete removal proceedings and appeals for individuals detained pursuant to 814 U.S.C. 1226(c) (the "Request") (A true and correct copy of the Request is15 attached as Exhibit A). Defendants EOIR and OSG acknowledged receipt of the16 Request in letters dated March 22, 2012 and April18, 2012 respectively. Although17 more than a year has elapsed, Defendants have issued no further response to the18 Request.19 3.20 Plaintif f now asks this Court to order Defendants to immediatelyprocess all records responsive to the Request and to enjoin Defendants from21 charging Plaintiff fees for processing the Request.22232425 4.

I I .JURISDICTION AND VENUE

This Court has subject matter over this action and personaljurisdiction over the parties pursuant to 5 U.S. C. 552(a)(4)(B). This Court also26 has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331.27 5. Venue is proper in this district under 5 U.S.C. 552(a)(4)(B) and 2828

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1 U.S.C. 1391(e).23

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III.PARTIES

4 6. Plaintiff is a statewide, nonpartisan, nonprofit organization of over5 40,000 members that is dedicated to the preservation of civil liberties and civil6 rights. Plaintiffhas litigated a number of immigrants' rights cases as part of its7 overall mission of litigation and advocacy to ensure immigrants' rights. Plaintiff8 maintains an enduring interest in protecting the due process rights of immigrants9 and educating the public about governmentpolicies involving the detention and

10 deportation of non-citizens.11 7. Defendant DOJ is a department of the executive branch of the United12 States government and is an agency within the meaning of5 U.S.C. 552()(1).13 8. Defendant OSG is a component of Defendant DOJ. It conducts and14 supervises government litigation in the United States Supreme Court.15 9. Defendant EOIR is a component ofDefendant DOJ. One of its16 functions is to adjudicate immigration court proceedings and cases.17 10. The Request seeks records from both Defendant OSG and Defendant18 EOIR, and both Defendants are responsible for complying with the Request19 pursuant to 5 U.S. C. 552(a)(3).20 IV.21 STATUTORY FRAMEWORK22 11. The FOIA, 5 U.S.C. 552, mandates disclosure of records held by a23 federal agency in response to a request for such records by a member of the public24 unless the requested records fall within certain narrow statutory exemptions.25 12. The basic purpose of the FOIA is to enable the public to hold the26 government accountable for its actions by fostering transparency and public27 scrutiny of governmental operations and activities. Through access to government28 information, the FOIA helps the public better understand the government, thereby

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1 enabling a vibrant and functioning democracy.2 13. Any member of the public may make a request for records to an3 agency of the United States under the FOIA. An "agency" is defined as "each4 authority of the Government of the United States, whether or not it is within or5 subject to review by another agency" pursuant to 5 U.S.C. 551(1) and "includes6 any executive department, military department, Government corporation,7 Government controlled corporation, or other establishment in the executive branch8 of the Government (including the Executive Office ofthe President), or any9 independent regulatory agency" pursuant to 5 U.S.C. 552()(1).

10 14. Pursuant to 5 U.S.C. 552(a)(6)(A), an agency that receives a FOIA11 request must respond in writing to the requestor within 20 business days after the12 receipt of the request except in certain narrow circumstances. In its response, the13 agency must inform the requestor whether or not it intends to comply with the14 request, provide reasons for its determination, and inform the requestor of his or15 her right to appeal the determination.16 15. A FOIA requestor who has been denied records may appeal the denial17 to the agency. The agency must make a determination on the appeal within 2018 business days of receipt of the appeal. 5 U.S.C. 552(a)(6)(A)(ii).19 16. A FOIA requestor is deemed to have exhausted all administrative20 remedies if the agency fails to comply with the statutory time limits. 5 U.S.C. 21 552(a)(6)(C)(i).22 17. The FOIA requires an agency to timely disclose all records responsive23 to a FOIA request that do not fall within nine narrowly construed statutory24 exemptions. 5 U.S.C. 552(a)(3)(A); 5 U.S.C. 552(b)(l)-(b)(9).25 18. The FOIA also requires an agency to make a reasonable search for26 responsive records. 5 U.S.C. 552(a)(3)(C).27 19. Upon complaint, a district court has jurisdiction to enjoin the agency28 from withholding records and to order production of records that are subject to



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c (1 disclosure. 5 U.S.C. 552(a)(4)(B).2 v.3 FACTUAL ALLEGATIONS4 20. On or about August 2002, Defendant OSG made representations to5 the United .States Supreme Court regarding the average time taken to complete6 removal proceedings and appeals for individuals detained pursuant to 8 U.S.C. 7 1226(c) (the "Representations"). Specifically, Defendant OSG represented in its8 petitioner's brief in Demore v. Kim, 538 U.S. 510 (2003), that:9 The Executive Office for Immigration Review has calculated that, in

10 cases where the alien is charged with being removable on grounds that11 trigger mandatory detention under Section 1226( c), its immigration12 judges complete removal proceedings in an average time of 47 days13 and a median time of 30 days-both far below the six-month period that14 this Court determined was presumptively reasonable for detention15 after a final order of removal. [Citation]. In approximately 85% of16 the cases, the immigration judge's decision is not appealed to the BIA17 and becomes a final decision, and the alien thereafter would be18 detained (i f ordered removed) under 8 U.S.C. 1231(a) rather than19 under Section 1226(c). In the relatively small percentage of cases that20 are appealed to the BIA, the average time required for disposition of21 the appeal-from the filing of the appeal through the BIA's issuance of22 its decision-is approximately four months. The median time is23 slightly shorter (114 days). Accordingly, detention during the24 pendency of removal proceedings cannot fairly be compared to the25 "indefmite, perhaps permanent, detention" (533 U.S. at 699) of aliens26 that raised a constitutional concern in Zadvydas [v. Davis, 533 U.S.27 678 (2001)].28 21. The Supreme Court expressly relied on the Representations in its

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( c1 written opinion upholding the constitutionality of 8 U.S.C. 1226(c) in Kim: "The2 [EOIR] has calculated that, in 85% of the cases in which aliens are detained3 pursuant to 1226(c), removal proceedings are completed in an average time of 474 days and[,] . . . [i]n the remaining 15% of cases, . . . appeal takes an average of four5 months . . . . "6 22. On March 15, 2012, Plaintiff submitted the Request to Defendant7 OSG and to Defendant EOIR. The Request specifically seeks any and all8 documents related to Defendant OSG's Representations and "any and all9 documents showing the data relied upon to make these representations and the

10 sources of that data[,] . . . [including], but [] not limited to, any and all11 correspondence related this representation." (See Request, Ex. A at 3).12 23. Plaintiff also sought a waiver of search, review, and duplication fees13 on the grounds that it is a "representative[] of the news media" and that disclosure14 of the requested records is "in the public interest because it is likely to contribute15 significantly to public understanding of the operations or activities of the16 government and is not primarily in the commercial interest of the requester." (See17 Request, Ex. A, at 4; see also 5 U.S.C. 552(a)(4)(A)(ii), (iii); 28 C.F.R.18 16.11(d)(1), (k) (June 1, 1998)).19 24. On March 22, 2012, Defendant EOIR responded to the Request by20 letter, acknowledging receipt of the Request and stating that it would exceed the21 statutory 20-day deadline to respond because the Request presented "unusual22 circumstances[.]" (A true and correct copy ofDefendant EOIR's letter is attached23 as Exhibit B). Defendant EOIR stated that "an additional10 day extension will be24 added to the standard processing time since your request either requires the25 collection of records from field offices, or involves a search for numerous26 documents that will necessitate a thorough and wide-range search of records at27 headquarters."28 25. In a separate letter also dated March 22,2012, Defendant EOIR

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1 granted Plaintiffs fee waiver because the Request met "the threshold as defined in2 the FOIA regulations[.]" (A true and correct copy of Defendant EOIR's letter is3 attached as Exhibit C).4 26. Thereafter, on April 18, 2012, Defendant OSG similarly issued a letter5 stating that the Request involved "unusual circumstances" due in part to the fact6 that the proper processing of the Request required consultation with another7 agency having a substantial interest in the determination of the Request and stating8 that Defendant OSG decided to "invok[e] the ten-working day extension in 59 U.S.C. 552(a)(6)(B)." (A true and correct copy of Defendant OSG's letter is

10 attached as Exhibit D). Defendant OSG estimated that it would respond to the11 Request no later than May 2, 2012.12 27. Defendants have provided no further response as of the date of filing13 of this Complaint. They have failed to respond to the Request by their own14 extended deadlines, which were over 11 months ago, or the statutory deadline for15 responding to a FOIA request as set forth in 5 U.S.C. 552(a)(6).16 28. At no point did Defendants request any additional time to respond17 pursuant to 5 U.S.C. 552 (a)(6)(B)(ii) (allowing the responding agency to notify18 the requestor if the request cannot be processed within the time limit specified and19 requiring the agency to provide the requestor with an opportunity to limit the scope20 of the request or to arrange an alternative deadline).21 29. On April15, 2013, Plaintiff timely filed administrative appeals of22 Defendants' constructive denial of the Request with the Office of Information23 Policy (the "OIP"), another component of Defendant DOJ. (A true and correct24 copy of the appeal letter is attached as Exhibit E).25 30. On May 2, 2013, the OIP acknowledged receipt of Plaintiffs26 administrative appeals against Defendant EOIR and Defendant OSG. (True and27 correct copies of the acknowledgment letters are attached as Exhibit F).28 31. Plaintiff has received no further response or correspondence from

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1 Defendants or the OIP. No records have been provided by Defendants, and2 Defendants have not indicated that they have begun searching for or processing3 responsive records.4 32. Defendants' failure to respond within the statutory deadlines5 constitutes a constructive denial of both the original Request and the appeal of the6 constructive denial of the Request.7 VI.8 CAUSES OF ACTION9 FIRST CAUSE OF ACTION

10 Violation ofFOIA for Failure to Make Reasonable Efforts to Search for Records11 Responsive to Plaintiffs Request12 33. Plaintiff repeats andre-alleges the allegations contained in paragraphs13 1 through 32 above, inclusive.14 34. Plaintiff has a legal right under FOIA to enforce Defendants'15 obligation to make reasonable efforts to search for documents responsive to16 Plaintiffs Request, and there exists no basis for Defendants' failure to conduct a17 full and complete search for responsive records.18 35. Defendants' failure to conduct a full and complete search for19 responsive documents violates the FOIA, 5 U.S.C. 552(a)(3)(C), and20 corresponding agency regulations.21 36. Through Pla int iffs appeal to the OIP, Plaintiff has exhausted all22 applicable administrative remedies with respect to Defendants' wrongful23 withholding of the requested records. 5 U.S.C. 552(a)(6)(C)(i).24 37. Plaintiff is entitled to injunctive relief with respect to the required25 search for the requested documents. 5 U.S.C. 552(a)(4)(B).26 SECOND CAUSE OF ACTION27 Violation of the FOIA for Wrongfully Withholding Agency Records Sought by28 Plaintiffs Request



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1 38. Plaint iff repeats andre-alleges the factual allegations contained in2 paragraphs 1 through 3 7 above, inclusive.3 39. Plaintiff has a legal right under the FOIA to obtain the agency records4 it requested from Defendants on March 15,2012, and there exists no basis for5 Defendants' failure to provide such records.6 40. Defendants' wrongful withholding of agency records sought by7 Plaintiffs Request violates the FOIA, 5 U.S.C. 552(a)(3)(A), and corresponding8 agency regulations.9 41. Through Plaintiffs appeal to the OIP, Plaintiff has exhausted all

10 applicable administrative remedies with respect to Defendants' wrongful11 withholding of the requested records. 5 U.S.C. 552(a)(6)(C)(i).12 42. Plaintiff is entitled to injunctive reliefwith respect to the release and13 disclosure of the requested documents. 5 U.S.C. 552(a)(4)(B).14 THIRD CAUSE OF ACTION15 Violation of the FOIA for Failure to Classify Plaintiff as a Representative of the16 News Media and Reduce or Waive All Fees17 43. Plaintiff repeats and re-alleges the allegations contained in paragraphs18 1 through 42 above, inclusive.19 44. Plaintiffhas a legal right to be classified as a "representative of the20 news media" for purposes of assessing processing fees associated with Plaintiffs21 Request. 5 U.S.C. 552(a)(4)(A)(ii)(II).22 45. Defendant OSG' s failure to classify Plaintiff as a representative of the23 news media for purposes of assessing processing fees associated with Plaintiff's24 Request is in violation of5 U.S.C. 552(a)(4)(A)(ii)(II) and applicable agency25 regulations.26 FOURTH CAUSE OF ACTION27 Violation of the FOIA for Failure to Acknowledge the Request as Being in the28 Public Interest and Reduce or Waive All Fees

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1 46. Plaintiff repeats and re-alleges the allegations contained in paragraphs2 1 through 45 above, inclusive.3 47. Plaintiff has a legal right to a "public interest" fee waiver because4 disclosure of the requested material is in the public interest, is likely to contribute5 to the public's understanding of the operations of the government, and is not in the6 commercial interest ofPlaintiff. 5 U.S.C. 552(a)(4)(A)(iii).7 48. Defendant OSG's constructive denial of a ''public interest'' fee8 waiver" in connection with Plaintiffs Request is in violation of 5 U.S.C. 9 552(a)(4)(A)(iii) and applicable agency regulations.

10 VII.11 REQUESTED RELIEF12 WHEREFORE, Plaintiff requests that this Court award it the following relief:13 1. Order Defendants to immediately conduct a full and complete14151617181920212223

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4.5.

search for all responsive records;Order Defendants to promptly disclose the requested records intheir entirety and make copies available to Plaintiff;Enjoin Defendants from charging Plaintiff fees for theprocessing of the Request, including all fees related tosearching for, reviewing, duplicating, or otherwise producingthe requested records;Award Plaintiff its reasonable costs and attorneys' fees; andGrant such other relief as the Court may deem just and proper.

24 Dated: ~ " ' e . . . ~ D, 201325

LATHAM & WATKINS LLP

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By 5u StV\ AZQJ /-rcASusan S. Azad 'Attorneys for PlaintiffAmerican Civil Liberties Union Foundationof Southern CaliforniaL A T H A M & W A T K I N S ~ LA\3175047 COMPLAINT

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EXHIBIT A


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tUHHHY I J I . H i T I C ~ ! EiH.IAliTYMarch 15, 2012U.S. Department of JusticeExecutive Office for Immigration ReviewOffice of General Counsel - FOIA Service CenterFOIA/Privacy Act Requests5107 Leesburg Pike, Suite 1903Falls Church, Virginia, 22041703-605-1297Office of the Solicitor GeneralDepartment of Justice950 Pennsylvania A venue, NWRoom6627Washington, DC 20530-0001(202) 616-9406Attention: James K. DavisEmail: OSGFOIA@usdoj .govDear Sir or Madam:

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This letter constitutes a request for records made pursuant to the Freedom of InformationAct ("FOIA"), 5 U.S.C. 552, and on behalfof the ACLU ofSouthern California, the ACLUImmigrants Rights Project, and the Stanford Law School Immigrants ' Rights Clinic. Thisrequest seeks the basis of the government's assertions in its brief to the Supreme Court inDemore v. Kim, 538 U.S. 510 (2003) regarding the average length of detention for personsdetained under 8 U.S.C. 1226(c).

The requested information is in the public interest because the U.S. Supreme Court reliedon these assertions in upholding 8 U.S.C. 1226(c)'s constitutionality in Kim. See 538 U.S. at529 ("The Executive Office for Immigration Review has calculated that, in 85% of the cases inwhich aliens are detained pursuant to l226(c), removal proceedings are completed in anaverage time of4 7 days and a median of 30 days. Brief for Petitioners 39-40. In the remaining15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board ofImmigration Appeals, appeal takes an average of four months, with a median time that is slightlyshorter. Id., at 40."). The disclosure of this information will allow the public to see the data onwhich the government's assertions in Kim were based, and on which the Supreme Court relied.Thus, the information that this request seeks is vitally important to the continuing validity of 8U.S.C. 1226(c) and therefore of interest to the public.

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REQUESTORSThe ACLU of Southern California (ACLU/SC) is a non-profit organization dedicatedto defending and securing the rights granted by the U.S. Constitution and Bill ofRights.

ACLU/SC's work focuses on immigrants' rights, the First Amendment, equal protection, dueprocess, privacy, and furthering civil rights for disadvantaged groups. As part of its work,ACLU/SC disseminates information to the public through newsletters, its website, "Know YourRights" documents, and other educational and informational materials. The ACLU/SC regularlysubmits FOIA requests to DHS and other agencies- including, for example, on ICE's policiesand practices for worksite immigration enforcement, and US CIS's policies and practices for theadjudication of naturalization applications- and publicizes the information it obtains through itswebsite, newsletters and "Know Your Rights" presentations and materials.

The Immigrants' Rights Project of the ACLU Foundation (ACLU-IRP) is a nonprofit organization dedicated to expanding and enforcing the civil liberties and civil rights ofnon-citizens. As part of its work, ACLU-IRP engages in impact litigation to enforce immigrants'rights and combat public and private discrimination against immigrants; engages in advocacy,web outreach, and public education on immigrants' rights issues; and monitors and analyzes theactions of federal, state, and local government agencies and actors that impact non-citizens in theUnited States. To this end, ACLU-IRP has made numerous FOIA requests- including requeststo the FBI regarding its use of national security databases, and requests to Immigration andCustoms Enforcement regarding its use ofmandatory detention and post-order custody reviewsand has publicized the information obtained through those request through its website, emails tomembership and other publications.

The Stanford Immigrants' Rights Clinic represents individual immigrants and engagesin multidisciplinary advocacy on behalf of immigrants' rights organizations. Clients includeasylum-seekers, immigrant survivors of domestic violence applying to change their status, andnon-citizens with old or minor criminal convictions who seek humanitarian relief fromdeportation, including persons in detention. Under the supervision of experienced immigrationattorneys, the clinic gives students the opportunity to assume responsibility for all aspects ofcasepreparation, including interviewing clients and witnesses, investigating facts, writing pleadings,developing case strategies, and conducting legal research. Students also frequently collaboratewith immigrants' rights organizations on impact litigation, public education, grassrootsadvocacy, and media work, including drafting and disseminating press releases.

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REQUESTWe seek disclosure of any and all records1 relating to or concerning2 the following:

The Solicitor General's representations to the Supreme Court ofthe United States in Demore v. Kim, 538 U.S. 510 (2003) in thepetitioner's brief on pages 39 and 40 regarding the average timetaken to complete removal proceedings and appeals for individualsdetained pursuant to 8 U.S.C. 1226(c). Brief for Petitioners,Demore v. Kim, 538 U.S. 510 (2003) (No. 01-1491), 2002 WL31016560, at *39-40. This includes, but is not limited to, any andall documents showing the data relied upon to make theserepresentations and the sources ofthat data. This also includes, butis not limited to, any and all correspondence related thisrepresentation.

The Requesters ask that any records that exist in electronic fonn be provided in electronicformat on a compact disc. If any of the requested records or information are not kept in asuccinct format, we request the opportunity to view the documents in your offices.LIMITATION OR WAIVER OF SEARCH AND REVIEW FEES

We request a limitation of processing fees pursuant to 5 U.S.C. 552(a)(4)(A)(ii)(II)("fees shall be limited to reasonable standard charges for document duplication when records arenot sought for commercial use and the request is made by .. educational or noncommercialscientific institution . . . or a representative of the news media .. .") and 6 C.F.R. 5.1l(d)(l)(search fees shall not be charged to "educational institutions" and "representatives of the newsmedia"). The information sought in this request is not sought for a commercial purpose. TheRequestors are non-profit organizations and an educational institution that intend to disseminatethe infom1ation gathered by this request to the public at no cost, including through theRequestors' websites, newsletters and other publications. This information is of criticalimportance to noncitizens facing lengthy detention under 8 U.S.C. 1226(c), courts andimmigration practitioners evaluating the meaning ofKim, and the public at large who have aninterest in knowing whether the government's representations to the Supreme Court are truthful.

1 The term "records" as used herein includes but is not limited to all records or communicationspreserved in electronic or written fom1, including but not limited to correspondence, documents,data, videotapes, audio tapes, faxes, files, e-mails, guidance, guidelines, evaluations, instructions,analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules,manuals, technical specifications, training manuals, or studies.2 The term "concerning" means referring to, describing, evidencing, commenting on, respondingto, showing, analyzing, reflecting, or constituting. I

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The term educational institution means "an institution ofundergraduate higher education[or] an institution of graduate higher education . . . that operates a program of scholarlyresearch." 6 C.F.R. 5.11 (b)(4). The "term 'a representative of the news media' means anyperson or entity that gathers information ofpotential interest to a segment of the public, uses itseditorial skills to tum the raw materials into a distinct work, and distributes that work to anaudience." 5 U.S.C. 552(a)(4)(A)(ii). The statutory definition does not require that therequester is a member of the traditional media. As long as the requester meets the definition inany aspect of its work, it qualifies for limitation of fees under this section of the statute.

For the reasons stated above, Requestor Stanford Law School Immigrants' Rights Clinicis an "educational institution" within the meaning of the FOIA. In addition, the Requestorsqualify as "representatives of the news media" under the statutory definition, because theyroutinely gather information of interest to the public, use editorial skills to turn it into distinctwork, and distributes that work to the public. See Electronic Privacy Information Center v.Department ofDefense, 241 F. Supp. 2d 5 (D.D.C. 2003) (non-profit organization that gatheredinfom1ation and published it in newsletters and otherwise for general distribution qualified asrepresentative of news media for purpose of limiting fees). Courts have reaffirmed that nonprofit requestors who are not traditional news media outlets can qualify as representatives of thenew media for the purposes of the FOIA, including after the 2007 amendments to the FOIA,including a recent court decision finding that Requestor ACLU Immigrants' Rights Project isentitled to "news media" status. See ACLU ofWashington v. U.S. Dep 't ofJustice, No. C09-0642RSL, 2011 WL 887731, at *18 (D. Wash. Mar. 10, 2011). Accordingly, any fees chargedmust be limited to duplication costs.

WAIVER OR REDUCTION OF ALL COSTSWe request a waiver or reduction of all costs pursuant to 5 U.S.C. 552(a)(4)(A)(iii)

("Documents shall be furnished without any charge . . . if disclosure of the information is in thepublic interest because it is likely to contribute significantly to public understanding oftheoperations or activities of the government and is not primarily in the commercial interest of therequester"); see also 6 C.F.R. 5.ll(k).The public interest fee waiver provision "is to be liberally construed in favor ofwaiversfor noncommercial requesters." McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d1282, 1284 (9th Cir. 1987). The Requestors need not demonstrate that the records would containevidence ofmisconduct. Instead, the question is whether the requested infonnation is likely tocontribute significantly to public understanding ofthe operations or activities of the government,good or bad. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1314 (D.C. Cir. 2003).Disclosure of the infonnation sought is in the public interest and will contributesignificantly to public understanding of the situation ofperson's detained under 8 U.S.C. 1226(c). At a time when numerous proposals are being made to reform our immigration laws, itis critical to the democratic process that voters understand how the current laws are working inpractice. Further, this information will help judges and immigration practitioners betterI

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understand Kim. The statistics in the Solicitor General's brief were key to the Supreme Court'sanalysis in that case, and knowing the basis for those statistics would inform any analysis ofthecontinuing vitality ofKim and/or its applicability to new factual situations or legislation. Finally,this information is important to the public and courts' evaluation of the credibility of futurerepresentations by the government regarding these issues.

The records are not sought for commercial use, and the Requestors plan to disseminatethe information disclosed through print and other media to the public at no cost. Asdemonstrated above, the Requestors have both the intent and ability to convey any informationobtained through this request to the public.The Requestors state "with reasonable specificity that [their] request pertains tooperations ofthe government," and "the informative value of a request depends not on therebeing certainty of what the documents will reveal, but rather on the requesting party havingexplained with reasonable specificity how those documents would increase public knowledge ofthe functions of the government." Citizens for Responsibility and Ethics in Washington v. US.

Dept. ofHealth and Human Services, 481 F. Supp. 2d 99, 107-109 (D.D.C. 2006).In the event a waiver or reduction of costs is denied, please notify me in advance if theanticipated costs exceed $100.

CONCLUSIONOn January 21, 2009, President Barack Obama issued a Memorandum regarding theFOIA in which he stated that "[a]ll agencies should adopt a presumption in favor ofdisclosure, in order to renew their commitment to the principles embodied in FOIA, andto usher in a new era of open Government. The presumption of disclosure should be

applied to all decisions involving FOIA." Memorandum, Freedom oflnformation Act, 74Fed. Reg. 4683 (Jan. 21, 2009). The President's Memorandum underscores theimportance of prompt and full disclosure of documents requested pursuant to the FOJA.A g e n c i ~ must make every effort to disclose requested documents and not frivolouslywithhold infonnation that could be released to the public without compromising asignificant government interest. We hope this request will be considered in light of PresidentObama's directive regarding transparency and open government.

This is not a Privacy Act request and therefore notarized signatures have not beenincluded.

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Please contact Michael Kaufman at (213) 977-5232 with any questions. Please supply allrecords to:Michael Kaufman, Esq.ACLU ofSouthern California1313 West 8th StreetLos Angeles, CA 90017

Thank you for your prompt attention.Sincerely,d - - ( ~Michael KaufmanStaff AttomeyACLU/SC

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EXHIBITB


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Michael KaufinanAmerican Civil Liberties Union of Southern CA1313 West Eighth St.Los Angeles, CA 90017RE: Freedom oflnformation Act RequestDemore v. KimDear Michael Kaufman:

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U.S. Department of JusticeExecutive Office for Immigration ReviewOffice o f he General Counsel

5107 Leesburg Pike, Suite 2600Falls Church. Virginia 22041March 22, 2012

This response acknowledges receipt ofyour Freedom oflnformation Act (FOIA) request. Yourrequest has been assigned control number: 2012-10105.If you have filed a fee waiver request, the fee waiver will be addressed in a separateletter. Otherwise, your request constitutes an agreement to pay fees that may be chargeable up to $25without notice. Most requests do not require any fees; however, if fees in excess of$25.00 arerequired, we will notify you beforehand. Fees may be charged for searching records at the rate of$4.00/$7.00/$10.25 per quarter hour, and for duplication of copies at the rate of$.1 0 per copy. The firstI 00 copies and two hours of research time are not charged, and charges must exceed $14.00 before we

will charge a fee.Ordinarily, FOIA requires an agency to respond within 20 working days after receipt oftherequest. EOIR endeavors to meet this standard, however the FOIA does permit a ten day extension ofthis time period. Pursuant to 5 U.S.C. 552(a)(6)(B), we are notifying you that due to 'unusualcircumstances' an additional 10 day extension will be added to the standard processing time since yourrequest either requires the collection of records from field offices, or involves a search for numerousdocuments that will necessitate a thorough and wide-range search of records at headquarters. If youcare to narrow the scope of your request, please contact our office. We will give your request every consideration consistent with applicable law. If you have anyfurther questions, please contact the FOIA Service Center at 703-605-1297.

EOIR# 2012-10105


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EXHIBIT C


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Michael KaufmanAmerican Civil Liberties Union of Southern CA1313 West Eighth St.Los Angeles, CA 90017RE: Freedom of Information Act Request

Demore v. KimDear Michael Kaufman:

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U.S. Department of JusticeExecutive Office for Immigration ReviewQffice of he Genercll Counsel

5107 Leesburg Pike, Suite 2600Falls Church, Virginia 22041March 22, 2012

The Executive Office for Immigration Review has received your letter. In your letter, you seeka fee waiver of your Freedom oflnformat ion Act (FOIA) request.Upon further review, it has been determined that your fee waiver request meets the threshold asdefined in the FOIA regulations, and your request for a fee waiver has been granted. Ifyou haveany further questions, please contact me at (703) 605-1297.

--OIR# 2012-10105


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( (U.S. Department of JusticeOffice of the Solicitor General

Washington, D.C. 20530

VIA U.S. MAIL and EMAIL to Michael Kaufman, Esq.ACLU ofSouthern Califomia1313 West 8th StreetLos Angeles, CA 90017

Re: OSG FOIA No. 2012-0229Dear Mr. Kaufman:

I am writing in regard to your Freedom of Infonnation Act (FOIA) request to the Office ofthe Solicitor General (OSG), dated March 15,2012, and receivedby this Office on March 21,2012.Your request seeks any and all records relating to or concerning the statements made in the government's brief nDemore v. Kim regarding the average time taken to complete removal proceedingsand appeals for individuals detained pursuant to 8 U S.C. 1226(c). We have assigned the followingOSG tracking number to your request: OSG FOIA No. 2012-0229.

Your request presents "unusual circumstances" under FOIA, because the proper processingofthe request would require, inter alia, consultation with another agency having a substantial interestin the detennination of your request. See 5 U.S.C. 552(a)(6)(B)(iii). In light of these unusualcircumstances, we are invoking the ten-working day extension in 5 U.S.C. 552(a)(6)(B). See 28C.F.R. 16.5(c)(l). We anticipate that we will respond to your request on or before May 2, 2012.

Sincerely,

James K. DavisFOIA CoordinatorOffice of the Solicitor General

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Thomas Alcorn(213) [email protected]

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LATHAM&WATKI NSLLP

April15, 2013

VIA U.S. MAIL and FAX

Office of Information PolicyU.S. Department of JusticeSuite 110501425 New York Avenue, N.W.Washington, D.C. 20530-0001Fax: (202) 514-1009Email: [email protected]

(355 South Grand AvenueLos Angeles, California 90071-1560Tel: +1.213.485.1234 Fax: +1.213.891.8763www.lw.comFIRM I AFFILIATE OFFICESAbu Dhabi MoscowBarcelona MunichBeijing New JerseyBoston New YorkBrussels Orange CountyChicago ParisDoha RiyadhDubai RomeFrankfurt San DiegoHamburg San FranciscoHong Kong ShanghaiHouston Silicon ValleyLondon SingaporeLos Angeles TokyoMadrid Washington, D.C.Milan

Re: Appeal ofFreedom of Information Act Request Numbers 2012-10105 (EOIR) and2012-0229 (OSG)Dear FOIA Officer:

On March 15, 2012, the ACLU-SC, along with the ACLU Immigrants' Rights Projectand the Stanford Law School Immigrants' Rights Clinic (collectively, the "Requestors") made aFreedom of Information Act request ("FOIA"), pursuant to 5 U.S.C. 552, to the ExecutiveOffice for Immigration Review ("EOIR") and the Office of the Solicitor General ("OSG") (the"FOIA Request").

Through the FOIA Request, the Requestors sought any and all records relating to orconcerning the basis for the government's assertions to the United States Supreme Court in itsbrief in Demore v. Kim, 538 U.S. 510 (2003) regarding the average time taken to completeremoval proceedings and appeals for individuals detained pursuant to 8 U.S.C. 1226(c).Exhibit A at 1, 3 (FOIA Request). The Requestors also sought a limitation of processing feespursuant to 5 U.S.C. 552(a)(4)(A)(ii)(II) and 6 C.P.R. 5.11(d)(1), and a waiver or reductionof all costs pursuant to 5 U.S.C. 552(a)(4)(A)(iii) and 6 C.P.R. 5.11(k).

On March 22, 2012, the EOIR acknowledged receipt of the FOIA Request and grantedthe fee waiver request. Exhibit B (EOIR Acknowledgement Letter). The EOIR also stated thatthe FOIA Request presented "unusual circumstances" justifying a ten-working day extension ofthe statutory deadline because the FOIA Request required the collection of documents from fieldoffices or a thorough search at EOIR headquarters. Id. Thereafter, on April18, 2012, the OSGresponded and stated that the FOIA Request presented "unusual circumstances" due in part to the

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fact that the proper processing of the FOIA Request required consultation with another agencyhaving a substantial interest in the determination of the FOIA Request. Exhibit C (OSGAcknowledgment Letter). The OSG estimated that it would respond to the FOIA Request nolater than May 2, 2012. !d.

The OSG and EOIR have failed to respond to the FOIA Request by their own extendeddeadlines, which were over 11 months ago, or the statutory deadline for responding to a FOIArequest as set forth in 5 U.S.C. 552(a)(6). See 5 U.S.C. 552 (a)(6)(B)(i)("In unusualcircumstances . . . the [20 working day] time limit[] . . . may be extended by written notice . . . .No such notice shall specify a date that would result in an extension for more than ten workingdays [except in situations not applicable here]."). There is no reason to believe that this was dueto an inability to meet the deadlines, as the OSG and EOIR did not at any point requestadditional time. See, e.g., 5 U.S.C. 552 (a)(6)(B)(ii) (allowing the responding agency to notifythe requestor if the request cannot be processed within the time limit specified and requiring theagency to provide the requestor with an opportunity to limit the scope of the request or to arrangean alternative deadline), Even if the OSG and EOIR needed additional time to process the FOIARequest, 11 months is more than adequate.

By their inaction, the OSG and EOIR have failed to comply with their obligation tosearch for and produce documents responsive to the FOIA Request, constituting a "constructivedenial" of the FOIA Request. See 5 U.S.C. 552(a)(6)(A)(i) ("Each agency, upon any request forrecords . . . shall- (i) determine within 20 [working] days . . . after the receipt of any suchrequest whether to comply with such request and shall immediately notify the person makingsuch request of such determination and the reasons therefor . . ."); 5 U.S.C. 552(a)(6)(C)(i)("Any person making a request to any agency for records . . . shall be deemed to have exhaustedhis administrative remedies with respect to such request if the agency fails to comply with theapplicable time limit provisions of this paragraph."); Cazalas v. US. Dep 't ofJustice, 660 F.2d612, 621 (5th Cir. Nov. 1981) ("The time-limit provisions and the exhaustion of administrativeremedy provision [were intended] 'to strengthen the procedural aspects of the Freedom ofInformation Act . . . in order to contribute to the fuller and faster release of information, which isthe basic objective of the Act.' The House Report indicated unequivocally that 'information isoften useful only if it is timely' and that 'excessive delay' by agencies made it necessary thatthey 'be required to respond to inquiries and administrative appeals within specific time limits.'Further, it was the concern of the House amendments to make failure to meet those time limitstantamount to exhaustion of administrative remedies by the requestor."); Allnet Commc 'n Servs.v. FCC, 800 F. Supp. 984, 987 fn. 4 (D.D.C. 1992) ("An agency's failure to act on anadministrative FOIA appeal within the twenty days prescribed in 5 U.S.C. 552(a)(6)(A)(ii)constitutes a constructive denial and administrative remedies are deemed to be exhausted/').

The Requesters hereby appeal the OSG and EOIR's constructive denials of the FOIARequest. Under applicable law, federal agencies must make a "good faith effort to conduct asearch for the requested records, using methods which can be reasonably expected to produce theinformation requested." Oglesby v. US. Dep 't ofArmy, 920 F.2d 57, 68 (D.C. Cir. 1990). Afterconducting a thorough search, federal agencies must produce all agency records that are notexempt by statute. 5 U.S.C. 552 (a)(3), (b). In this case, the OSG and EOIR have not

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indicated that they have attempted to conduct the statutorily required search for responsiverecords. We respectfully request that the constructive denial ofthe FOIA Request be reversedand that the OSG and EOIR be ordered to conduct the good faith search and production ofrecords required by statute.IWe look forward to receiving a written response to this appeal within 20 working daysfrom the date of your receipt of his appeal letter. See 5 U.S.C. 552(a)(6)(A)(ii). We reservethe right to a judicial appeal in the event that the OSG and EOIR's refusal to conduct a completesearch and full production of records is affirmed in full or in part, or in the event that we do notreceive a t i m ~ l y response to this appeal.

Thank you in advance for your prompt attention to this matter. Ifyou have anyquestions, please contact me at (213) 891-7358, or at [email protected].

cc: Michael Kau:finan, Esq.Ahilan Arulanantham, Esq.Susan Azad, Esq.Natasha I. Rieger, Esq.Victor Leung, Esq.

Enclosures

LA\31!9967.6

Very truly yours,~ ~ ~Thomas C. AlcornofLATHAM & WATKINS LLP

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EXHIBIT AFOIA RequestSee attached.

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( j:"'- ----- - - ~ ~ - - - - - - - - - ~ ~ ]I w tL-------------- .----.JLHHEIHY I.JI.lSTICE ! EIHHH.ITY

March 15, 2012U.S. Department of JusticeExecutive Office for Immigration ReviewOffice of General Counsel- FOIA Service CenterFOIA/Privacy Act Requests5107 Leesburg Pike, Suite 1903Falls Church, Virginia, 22041703-605-1297Office of the Solicitor GeneralDepartment of Justice950 Pennsylvania A venue, NWRoom6627Washington, DC 20530-0001(202) 616-9406Attention: James K. DavisEmail: [email protected] Sir or Madam:

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This letter constitutes a request for records made pursuant to the Freedom oflnformationAct ("FOIA"), 5 U.S.C. 552, and on behalfofthe ACLU ofSouthern California, the ACLUImmigrants Rights Project, and the Stanford Law School Immigrants' Rights Clinic. Thisrequest seeks the basis of the government's assertions in its briefto the Supreme Court inDemore v. Kim, 538 U.S. 510 (2003) regarding the average length of detention for personsdetained under 8 U.S.C. 1226(c).

The requested information is in the public interest because the U.S. Supreme Court reliedon these assertions in upholding 8 U.S.C. 1226(c)'s constitutionality in Kim. See 538 U.S. at529 ("The Executive Office for Immigration Review has calculated that, in 85% of the cases inwhich aliens are detained pursuant to 1226(c), removal proceedings are completed in anaverage time of 4 7 days and a median of 30 days. Brief for Petitioners 39-40. In the remaining15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board ofImmigration Appeals, appeal takes an average of four months, with a median time that is slightlyshorter. Id., at 40."). The disclosure of his information will allow the public to see the data onwhich the government's assertions in Kim were based, and on which the Supreme Court relied.Thus, the information that this request seeks is vitally important to the continuing validity of 8U.S.C. 1226(c) and therefore of interest to the public.

Chnir ) t e p h < ; n RDhde P r ~ s h : . h m t Doc;!JlW5 MirellChain> firrwriti Danny Goldberg /1ltan 1\. Jonas Burt L a n c a 5 l ~ r Irving Lichtenstein, MD jart Mohn Laurie Ostrow* Stanley K. Sheinbaum

l ' X f ! W t i v e l l i n ~ t t Q r lkctcJr 0. Vill.aflf"i:l ChicJ Counsel Mark D. Rosenbr.rum Oc13 WEST EIGHTH STREET LOS ANGLb5 CA 900'1'7 t 2:'i:$. ' i ' I 'J.950U I 2'13.91'1.5299 ACLU-SC.DHG


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REQUESTORSThe ACLU of Southern California (ACLU/SC) is a non-profit organization dedicatedto defending and securing the rights granted by the U.S. Constitution and Bill of Rights.

ACLU/SC's work focuses on immigrants' rights, the First Amendment, equal protection, dueprocess, privacy, and furthering civil rights for disadvantaged groups. As part of its work,ACLU/SC disseminates information to the public through newsletters, its website, "Know YourRights" documents, and other educational and informational materials. The ACLU/SC regularlysubmits FOIA requests to DHS and other agencies- including, for example, on ICE's policiesand practices for worksite immigration enforcement, and users's policies and practices for theadjudication ofnaturalization applications - and publicizes the information it obtains through itswebsite, newsletters and :'Know Your Rights" presentations and materials.The Immigrants' Rights Project of the ACLU Foundation (ACLU-IRP) is a nonprofit organization dedicated to expanding and enforcing the civil liberties and civil rights ofnon-citizens. As part of its work, ACLU-IRP engages in impact litigation to enforce immigrants'rights and combat public and private discrimination against immigrants; engages in advocacy,web outreach, and public education on immigrants' rights issues; and monitors and analyzes theactions of federal, state, and local government agencies and actors that impact non-citizens in theUnited States. To this end, ACLU-IRP has made numerous FOIA requests- including requeststo the FBI regarding its use ofnational security databases, and requests to Immigration andCustoms Enforcement regarding its use ofmandatory detention and post-order custody reviewsand has publicized the information obtained through those request through its website, emails tomembership and other publications.The Stanford Immigrants' Rights Clinic represents individual immigrants and engagesin multidisciplinary advocacy on behalfof immigrants' rights organizations. Clients include

asylum-seekers, immigrant survivors of domestic violence applying to change their status, andnon-citizens with old or minor criminal convictions who seek humanitarian relief fromdeportation, including persons in detention. Under the supervision of experienced immigrationattorneys, the clinic gives students the opportunity to assume responsibility for all aspects of casepreparation, including interviewing clients and witnesses, investigating facts, writing pleadings,developing case strategies, and conducting legal research. Students also frequently collaboratewith immigrants' rights organizations on impact litigation, public education, grassrootsadvocacy, and media work, including drafting and disseminating press releases.

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REQUESTWe seek disclosure of any and all records1 relating to or conceming2 the following:

The Solicitor General's representations to the Supreme Court ofthe United States in Demore v. Kim, 538 U.S. 510 (2003) in thepetitioner's brief on pages 39 and 40 regarding the average timetaken to complete removal proceedings and appeals for individualsdetained pursuant to 8 U.S.C. 1226(c). Brief for Petitioners,Demore v. Kim; 538 U.S. 510 (2003) (No. 01-1491), 2002 WL31016560, at *39-40. This includes, but is not limited to, any andall documents showing the data relied upon to make theserepresentations and the sources ofthat data. This also includes, butis not limited to, any and all correspondence related thisrepresentation.

The Requesters ask that any records that exist in electronic fonn be provided in electronicformat on a compact disc. I f any of the requested records or information are not kept in asuccinct format, we request the opportunity to view the documents in your offices.LIMITATION OR WAIVER OF SEARCH AND REVIEW FEES

We request a limitation of processing fees pursuant to 5 U.S.C. 552(a)(4)(A)(ii)(II)("fees shall be limited to reasonable standard charges for document duplication when records arenot sought for commercial use and the request is made by .. educational or noncommercialscientific institution . . . or a representative of the news media .. .") and 6 C.F R. 5.11 (d)(l)(search fees shall not be charged to "educational institutions" and "representatives of the newsmedia"). The information sought in this request is not sought for a commercial purpose. TheRequestors are non-profit organizations and an educational institution that intend to disseminatethe infom1ation gathered by this request to the public at no cost, including through theRequestors' websites, newsletters and other publications. This information is of criticalimportance to noncitizens facing lengthy detention under 8 U.S.C. 1226(c), courts andimmigration practitioners evaluating the meaning ofKim, and the public at large who have aninterest in knowing whether the government's representations to the Supreme Court are truthful.

1 The term "records" as used herein includes but is not limited to all records or communicationspreserved in electronic or written fom1, including but not limited to correspondence, documents,data, videotapes, audio tapes, faxes, fi1es, e-mails, guidance, guidelines, evaluations, instructions,analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules,manuals, technical specifications, training manuals, or studies.2 The term "concerning" means referring to, describing, evidencing, commenting on, respondingto, showing, analyzing, reflecting, or constituting. I

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The term educational institution means "an institution ofundergraduate higher education[or] an institution of graduate higher education . . . that operates a program of scholarlyresearch." 6 C.F.R. 5.11 (b)(4). The "term 'a representative of the news media' means anyperson or entity that gathers information ofpotential interest to a segment of the public, uses itseditorial skills to turn the raw materials into a distinct work, and distributes that work to anaudience." 5 U.S.C. 552(a)(4)(A)(ii). The statutory definition does not require that therequester is a member of the traditional media. As long as the requester meets the definition inany aspect of its work, it qualifies for limitation of fees under this section of the statute.

For the reasons stated above, Requestor Stanford Law School Immigrants' Rights Clinicis an "educational institution" within the meaning of the FOIA. In addition, the Requestorsqualify as "representatives of the news media" under the statutory definition, because theyroutinely gather information of interest to the public, use editorial skills to turn it into distinctwork, and distributes that work to the public. See Electronic Privacy Information Center v.Department ofDefense, 241 F. Supp. 2d 5 (D.D.C. 2003) (non-profit organization that gatheredinfom1ation and published it in newsletters and otherwise for general distribution qualified asrepresentative of news media for purpose of limiting fees). Courts have reaffirmed that nonprofit requestors who are not traditional news media outlets can qualify as representatives of thenew media for the purposes of the FOIA, including after the 2007 amendments to the FOIA,including a recent court decision finding that Requestor ACLU Immigrants' Rights Project isentitled to "news media" status. See ACLU ofWashington v. U.S. Dep 't ofJustice, No. C09-0642RSL, 2011 WL 887731, at *18 (D. Wash. Mar. 10, 2011). Accordingly, any fees chargedmust be limited to duplication costs.WAIVER OR REDUCTIONOF ALL COSTS

We request a waiver or reduction of all costs pursuant to 5 U.S. C. 552(a)(4)(A)(iii)("Documents shall be furnished without any charge . . . if disclosure of the information is in thepublic interest because it is likely to contribute significantly to public understanding oftheoperations or activities of the government and is not primarily in the commercial interest of therequester"); see also 6 C.F.R. 5.ll(k).

The public interest fee waiver provision "is to be liberally construed in favor ofwaiversfor noncommercial requesters." McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d1282, 1284 (9th Cir. 1987). The Requestors need not demonstrate that the records would containevidence ofmisconduct. Instead, the question is whether the requested infonnation is likely tocontribute significantly to public understanding of the operations or activities of the government,good or bad. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1314 (D.C. Cir. 2003).Disclosure of the infonnation sought is in the public interest and will contributesignificantly to public understanding of the situation ofperson's detained under 8 U.S.C. 1226(c). At a time when numerous proposals are being made to reform our immigration laws, itis critical to the democratic process that voters understand how the current laws are working in

practice. Further, this information will help judges and immigration practitioners better

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understand Kim. The statistics in the Solicitor General's brief were key to the Supreme Court'sanalysis in that case, and knowing the basis for those statistics would inform any analysis of thecontinuing vitality ofKim and/or its applicability to new factual situations or legislation. Finally,this information is important to the public and courts' evaluation of the credibility of futurerepresentations by the government regarding these issues.

The records are not sought for commercial use, and the Requestors plan to disseminatethe information disclosed through print and other media to the public at no cost. Asdemonstrated above, the Requestors have both the intent and ability to convey any informationobtained through this request to the public.The Requestors state "with reasonable specificity that [their] request pertains tooperations of the government," and "the informative value of a request depends not on therebeing certainty ofwhat the documents will reveal, but rather on the requesting party havingexplained with reasonable specificity how those documents would increase public knowledge ofthe functions of the government." Citizens for Responsibility andEthics in Washington v. U.S.Dept. ofHealth andHuman Services, 481 F. Supp. 2d 99, 107-109 (D.D.C. 2006).In the event a waiver or reduction of costs is denied, please notify me in advance if theanticipated costs exceed $100.

CONCLUSIONOn January 21, 2009, President Barack Obama issued a Memorandum regarding theFOIA in which he stated that "[a]ll agencies should adopt a presumption in favor ofdisclosure, in order to renew their commitment to the principles _embodied in FOIA, andto usher in a new era of open Government. The presumption of disclosure should be

applied to all decisions involving FOIA." Memorandum, Freedom ofinformationAct, 74Fed. Reg. 4683 (Jan. 21, 2009). The President's Memorandum underscores theimportance of prompt and full disclosure of documents requested pursuant to the FOJA.A g e n c i ~ s must make every effort to disclose requested documents and not frivolouslywithhold infonnation that could be released to the public without compromising asignificant government interest. We hope this request will be considered in light ofPresidentObama's directive regarding transparency and open government.

This is not a Privacy Act request and therefore notarized signatures have not beenincluded.

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Please contact Michael Kaufman at (213) 977-5232 with any questions. Please supply allrecords to:Michael Kaufman, Esq.ACLU ofSouthern California1313 West 8th StreetLos Angeles, CA 90017

Thank you for your prompt attention.Sincerely,d-(4--Michael KaufmanStaf f AttorneyACLU/SC

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EXHIBITB

EOIR Acknowledgement LetterSee attached.

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Michael KaufinanAmerican Civil Liberties Union of Southern CA1313 West Eighth St.Los Angeles, CA 90017RE: Freedom oflnfo rmat ion Act RequestDemore v. KimDear Michael Kaufman:

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U.S. Department of JusticeExecutive Office for Immigration ReviewOffice o f he General Counsel

5J07 Leesburg Pike, Suite 2600Falls Church. Virginia 22041March 22, 2012

This response acknowledges receipt ofyour Freedom oflnformation Act (FOIA) request. Yourrequest has been assigned control number: 2012-10105.If you have filed a fee waiver request, the fee waiver will be addressed in a separateJetter. Otherwise, your request constitutes an agreement to pay fees that may be chargeable up to $25without notice. Most requests do not require any fees; however, if fees in excess of$25.00 arerequired, we will notify you beforehand. Fees may be charged for searching records at the rate of$4.001$7.00/$10.25 per quarter hour, and for duplication of copies at the rate of $.1 0 per copy. The first100 copies and two hours of research time are not charged, and charges must exceed $14.00 before we

will charge a fee.Ordinarily, FOIA requires an agency to respond within 20 working days after receipt oftherequest. EOIR endeavors to meet this standard, however the FOIA does permit a ten day extension ofthis time period. Pursuant to 5 U.S.C. 552(a)(6)(B), we are notifying you that due to 'unusualcircumstances' an additional tO day extension will be added to the standard processing time since yourrequest either requires the collection of records from field offices, or involves a search for numerousdocuments that will necessitate a thorough and wide-range search of records at headquarters. I f youcare to narrow the scope of your request, please contact our office.We will give your request every consideration consistent with applicable law. If you have anyfurther questions, please contact the FOIA Service Center at 703-605-1297.

EOIR# 2012-10105


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Michael KaufmanAmerican Civil Liberties Union of Southern CA1313 West Eighth St.Los Angeles, CA 90017RE: Freedom oflnformation Act Request

Demore v. KimDear Michael Kaufman:

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U.S. Department of JusticeExecutive Office for Immigration ReviewOffice ofthe General Counsel5107 Leesburg Pike, Suite 2600Falls Church, Virginia 22041March 22, 2012

The Executive Office for Immigration Review has received your letter. In your letter, you seeka fee waiver of your Freedom of Information Act (FOIA) request.Upon further review, it has been determined that your fee waiver request meets the threshold asdefined in the FOIA regulations, and your request for a fee waiver has been granted. If you have

any further questions, please contact me at (703) 605-1297.

Sincerely,

EOIR# 2012-10105 --


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EXHIBITCOSG Acknowledgment Letter

See attached.

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( (U.S. Department of JusticeOffice of the Solicitor General

Washington, D.C. 20530

VIA U.S. MAIL and EMAIL to Michael Kaufman, Esq.ACLU of Southern California1313 West 8th StreetLos Angeles, CA 90017

Re: OSG FOIA No. 2012-0229Dear Mr. Kaufman:

I am writing in regard to your Freedom of Infonnat ion Act (FOIA) request to the Office ofthe Solicitor General (OSG), dated March 15,2012, and received by this Office on March 21,2012.Your request seeks any and all records relating to or concerning the statements made in the government's brief n Demore v. Kim regarding the average time taken to complete removal proceedingsand appeals for individuals detained pursuant to 8 U S.C. 1226(c). We have assigned the followingOSG tracking number to your request: OSG FOIA No. 2012-0229.

Your request presents "unusua l circumstances" under FOIA, because the proper processingofthe request would require, inter alia, consultation with another agency having a substantial interestin the detennination of your request. See 5 U.S.C. 552(a)(6)(B)(iii). In light of these unusualcircumstances, we are invoking the ten-working day extension in 5 U.S.C. 552(a)(6)(B). See 28C.P.R. 16.5(c)(l). We anticipate that we will respond to your request on or before May 2, 2012.

Sincerely,

James K. DavisFOIA CoordinatorOffice of the Solicitor General


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Telephone: (202) 514-3642

Thomas C. Alcorn, Esq.Latham & Watkins LLP355 South Grand AvenueLos Angeles, CA 90071-1560Re: Request No. 2012-10105

Dear Mr. Alcorn:

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U.S. Department of JusticeOffice of Information PolicyWashington, D.C. 20530May 2, 2013

This is to advise you that your administrative appeal from the action of the ExecutiveOffice for Immigration Review was received by this Office on April15, 2013.The Office of Information Policy has the responsibility of adjudicating such appeals. Inan attempt to afford each appellant equal and impartial treatment, we have adopted a generalpractice of assigning appeals in the approximate order of receipt. Your appeal has been assignednumber AP-2013-02899. Please mention this number in any future correspondence to thisOffice regarding this matter. Please note that if you provide an e-mail address or another

electronic means of communication with your appeal, this Office may respond to your appealelectronically even if you submitted your appeal to this Office via regular U.S. mail.We will notify you of the decision on your appeal as soon as we can. If you have anyquestions about the status of your appeal, you may contact me at the number above. If you havesubmitted your appeal through this Office's online electronic appeal portal, you may also obtainan update on the status of your appeal by logging into your portal account.

Sincerely,

c5S?,d . .s ; ? . -Priscilla JonesSupervisory Administrative Specialist


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Telephone: (202) 514-3642

Thomas C. Alcorn, Esq.Latham & Watkins LLP355 South Grand AvenueLos Angeles, CA 90071-1560

Re: Request No. 2012-0229Dear Mr. Alcorn:

(U.S. Department of JusticeOffice oflnformation PolicyWashington, D. C. 20530May 2, 2013

This is to advise you that your administrative appeal from the action of the Office of theSolicitor General was received by this Office on April15, 2013.The Office of Information Policy has the responsibility of adjudicating such appeals. Inan attempt to afford each appellant equal and impartial treatment, we have adopted a generalpractice of assigning appeals in the approximate order of receipt. Your appeal has been assignednumber AP-2013-02900. Please mention this number in any future correspondence to thisOffice regarding this matter. Please note that if you provide an e-mail address or another

electronic means of communication with your appeal, this Office may respond to your appealelectronically even if you submitted your appeal to this Office via regular U.S. mail.We will notify you of the decision on your appeal as soon as we can. If you have anyquestions about the status ofyour appeal, you may contact me at the number above. If you havesubmitted your appeal through this Office's online electronic appeal portal, you may also obtainan update on the status of your appeal by logging into your portal account.

Sincerely,

-Priscilla JonesSupervisory Administrative Specialist