UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ALLEN E. KAYE, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-cv-485 (TSC)
)
)
UNITED STATES CITIZENSHIP AND )
IMMIGRATION SERVICES, )
)
Defendant. )
)
MEMORANDUM OPINION
On February 8, 2016, counsel for the Plaintiff submitted a FOIA request to the
Defendant United States Citizenship and Immigration Services (“Agency”) seeking a
“complete copy of the Record of Proceedings in File No. SCR-ll-009-50333” and “the
record of proceedings of the form 1-130 filed by Sookhia Persaud upon behalf of
Dhanragle Budharm.” (Defs. Statement of Facts “SOF”) ¶ 1). By letter dated February
19, 2016, Defendant acknowledged receipt of the FOA request and invoked a statutory
extension of time in which to produce the requested documents. (Id.); see 5 U.S.C. §
552(a)(6)(B). Before the Defendant’s time to respond expired, Plaintiff filed this
lawsuit on March 11, 2016. (Defs. SOF ¶¶ 2-4).
After Defendant filed an answer, the court ordered the parties to propose a
briefing schedule. Adopting the proposed deadlines, this court entered an order on May
15, 2016 imposing the following briefing schedule:
Plaintiff’s dispositive motion due by July 15, 2016.
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Defendant's Opposition to Plaintiff's Motion for Summary Judgment and COMBINED
Cross-Motion for Summary Judgment due by August 15, 2016.
Plaintiff’s Reply and Combined Opposition to Defendant's Cross-Motion for Summary
Judgment due by September 12, 2016.
Before Plaintiff’s dispositive motion was due, Defendant responded to Plaintiff’s FOIA
request by releasing 73 pages of documents in their entirety and twelve pages partially redacted.
(Defs. SOF ¶ 5). Plaintiff’s summary judgment due date, July 15, 206, came and went without a
filing by Plaintiff or a motion seeking an extension. Defendant filed its summary judgment
motion, arguing that: (1) Plaintiff failed to exhaust his administrative remedies; and (2) the
agency conducted a thorough search and released to Plaintiff all non-exempt responsive records.
(ECF No. 8). Defendant also submitted a Vaughn index and a Declaration prepared by Jill
Eggleston, Associate Center Director in the Freedom of Information and Privacy Act Unit,
explaining that the agency released seventy-three pages in their entirety and withheld portions of
twelve pages information pursuant to three FOIA Exemptions:
Exemption 6(b) protects the “personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion
of personal privacy . . . .” 5 U.S.C. § 552(b)(6). Pursuant to this
exemption, the Defendant redacted information about third party
individuals, such as their home addresses, birthdates and citizenship
information. (Defs. SOF ¶ 7).
Exemption 7(e) protects from disclosure law enforcement records “to the
extent that the production of such. . .information . . .would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).
Pursuant to this exemption, Defendant redacted law enforcement sensitive
information on three pages: (1) handwritten notes that would reveal the
manner in which immigration officers communicate background, national
security and other concerns that may arise in the adjudication of an
application for immigration benefits; (2) information obtained in
background checks associated with an immigration application; and (3)
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information obtained during an Interagency Border Inspection Service
check. (Defs. SOF ¶ 8; Vaughn Index Nos. 3, 11, 12).
Exemption 7(c) protects from disclosure information in law enforcement
records that “could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Pursuant to this
exemption the Defendant redacted information on one page which
“includes numerical identifying information for an Immigration Agent
conducting a background check.” (Defs. SOF ¶ 9; Vauhn Index No. 11).
Plaintiff’s response to Defendant’s motion was due on September 12, but Plaintiff has not
filed a response or sought leave for an extension. The Local Civil Rules of this court provide
that the “the court may treat [a] motion as conceded” when a party fails to file a memorandum in
opposition to a motion. LCvR 7(b). Likewise the rules provide that the court “may assume that
facts identified by the moving party in its statement of material facts are admitted, unless such a
fact is controverted in the statement of genuine issues filed in opposition to the motion.” LCvR
7(h).
In light of Plaintiff’s failure to respond to the motion or seek leave to extend its
filing deadline, the court will GRANT Defendant’s motion as conceded, enter summary
judgement on behalf of Defendants and dismiss this action with prejudice.
Date: October 4, 2016
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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Kaye v. United States Citizenship and Immigration Services
Combined Opinion