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January 2024

FOIA Case for Records Could Mean Mexican Journalist Finally Wins Asylum in U.S.

By Adam A. Marshall and Chuck Tobin

A federal FOIA case could be the key to a successful resolution of a Mexican journalist’s and his son’s decades-long fight for permanent U.S. asylum after fleeing their home country. (Joint Status Report, filed January 17, 2024, Nat’l Press Club Journalism Inst. v. United States Immigr. & Customs Enf’t, No. CV 18-2932 (RC)).

The National Press Club Journalism Institute and Kathy Kiely, now a journalism professor at the University of Missouri, in 2018 brought a FOIA lawsuit in the federal court in Washington D.C. against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE). The lawsuit seeks records concerning the petitions of Emilio Gutiérrez Soto, who walked across the border with his son Oscar after death threats from the Mexican military. ICE has fiercely fought the FOIA litigation in Washington D.C. while Emilio and Oscar litigated their asylum case in Immigration Court in El Paso, TX.

The FOIA case saw its first big break in the plaintiffs’ favor this past December. The federal court in D.C. ruled that ICE failed to satisfy its obligations under FOIA to search for records, and also failed to justify its withholdings in thousands of pages of records (Order, Nat’l Press Club Journalism Inst. v. United States Immigr. & Customs Enf’t, No. CV 18-2932 (RC), 2023 WL 9001337 (D.D.C. Dec. 28, 2023)).

Gutiérrez Soto and Oscar, then age 15, crossed the border into Texas after members of the Mexican military raided his house and threatened his family. At the time, Gutiérrez Soto was a staff reporter for El Diario del Noroeste de Nuevo Casas Grandes, where he covered military corruption in Ciudad de Juárez, a major crossroads for drug trafficking and cartels.

Upon entering the U.S., the Gutiérrez Sotos applied for asylum. They lived and worked in Texas and New Mexico for nearly a decade while their petitions remained pending. However, in July 2017, and just months after Gutiérrez Soto publicly criticized the government’s immigration policies, an immigration judge ordered him and his son deported. That deportation decision was reversed on appeal, then reinstated, and then finally overturned again in September 2023. In the latest decision, the Board of Immigration Appeals held that Emilio and Oscar were eligible for asylum. The appellate panel ordered the immigration judge, on remand, to enter an order granting them asylum. A hearing for that purpose is scheduled for March 2024.

Parallel to the immigration proceedings, NPCJI has been pursuing a FOIA request for records regarding the Gutiérrez Sotos. The request, submitted to ICE, sought all records mentioning Emilio and Oscar, as well as certain records of ICE facilities in El Paso used to block or limit phone calls from detainees.

After ICE failed to comply with FOIA’s deadlines, NPCJI filed a lawsuit against it and DHS in 2018. Thereafter, the government processed more than 15,000 pages of responsive records, thousands of which were withheld in part or in full under claims of various FOIA exemptions. The parties cross-moved for summary judgment in mid-2023.

In ruling in part in the FOIA plaintiffs’ favor, in late December District Judge Rudolph Contreras agreed that ICE had not satisfied its obligations. The court rejected the agency’s argument that the plaintiffs’ request for records about blocked phones of detainees at ICE detention facilities was too vague, holding: “FOIA does not require that plaintiffs state their requests for records with ‘technical precision.’” The court determined that “it is ICE—not Plaintiffs—that has a better sense of the sources in which information regarding the agency’s ability to restrict detainees’ calls may be located.”

The court then turned to ICE’s exemption claims across thousands of records. The court agreed that ICE had failed to justify the withholdings with the scant information it provided in its Vaughn index and declarations.

With respect to the deliberative process privilege, Exemption 5, the court determined that ICE provided only “vague descriptions” and repetitive “boilerplate and conclusory statements.”  ICE also failed to “sufficiency describe the function and significance” of many documents in the agency’s decision-making process. Finally, it did not adequately describe the relationship between parties to many of the communications.

With respect to the attorney-client privilege, also under Exemption 5, the court determined that ICE had failed to show that the withheld information had not been “relayed to anyone outside the sphere of those who needed to know the information within the organization.”  That ran afoul of the government’s obligation to demonstrate “confidentiality both at the time of the communication and that such confidentiality has been maintained since.”

ICE invoked both Exemption 6 and 7(C) to withhold a variety of purportedly private information. Although ICE is primarily a law enforcement agency, the court nonetheless determined that the agency failed to establish these records had been compiled for law enforcement purposes—the threshold requirement for Exemption 7. The agency’s declaration, the court determined, was “fatally generic,” a deficiency that was “not saved by its Vaughn index” (which the Court also found lacking).

The court also noted that ICE took “a categorical approach” to its Exemption 6 withholdings, which can be permissible in some circumstances. However, in this case it found that “ICE has not defined its categories with sufficient precision, nor has it adequately distinguished the various privacy interests at play.”  It determined that ICE categories were “far too generic” to distinguish between the various privacy interests at stake, particularly between high-level and low-level government employees. That failure made it “impossible for the Court to balance the private interests with the public’s interest in knowing what their government is up to.” 

In light of all of ICE’s failures, the Court ordered it to either turn over the records challenged by NPCJI or to revise its declarations and Vaughn index. It also ordered ICE to conduct a supplemental search for phone-blocking records and to release one record that ICE had attempted to withhold under Exemption 5.

Following several weeks of meet and confer discussions between the parties, the FOIA plaintiffs informed the court that they had reached an agreement with DHS and ICE. The government agreed that, in exchange for the FOIA plaintiffs’ agreement to stay the FOIA case until after the March hearing in the asylum case, DHS and ICE “will not oppose asylum” for Emilio or Oscar, nor will the government oppose a request to back-date Oscar’s status nunc pro tunc (Oscar has recently married a U.S. citizen, requiring different handling of his asylum case). Then, if the government “uphold[s] its side of the bargain,” NPCJI would agree to waive its remaining challenges to ICE’s withholdings.

The district court, under the agreement, would retain jurisdiction over an award of fees to the FOIA plaintiffs.

Chuck Tobin, with Ballard Spahr LLP in Washington D.C., and Katie Townsend, and Adam A. Marshall of the Reporters Committee for Freedom of the Press represent the National Press Club Journalism Institute and Kathy Kiely. Shawn Musgrave previously worked on the case while a fellow at RCFP.