“The Fugitive:” ICE, Fugitives, and FOIA (Part I)
This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens. This post discusses the policy’s inconsistency with FOIA Exemption 7(A), which allows agencies to withhold law enforcement records that “could reasonably be expected to interfere with enforcement proceedings.” The second post discusses whether the “fugitive disentitlement doctrine” could justify a policy of refusing to respond to all FOIA requests from fugitive aliens.
Immigration lawyers find the Freedom of Information Act (“FOIA”) helpful in securing from Immigration & Customs Enforcement (“ICE”) information needed to evaluate their clients’ cases. In Smith v. U.S. Immigration & Customs Enforcement, 2019 WL 6838961 (D. Co. Dec. 16, 2019), a District Judge considered whether ICE’s procedures for responding to FOIA requests made by, or on behalf of, fugitive aliens complied with FOIA.
The policy raised two potential issues. The first — whether ICE’s fugitive FOIA requester policy too broadly applies FOIA Exemption 7(A), which allows agencies to withhold law enforcement records that “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). In several cases, courts have found invocation of Exemption 7(A) appropriate to withhold records that could facilitate fugitive’s efforts to evade capture. The second issue — whether the judicially-created fugitive disentitlement doctrine precludes those evading federal authorities from using FOIA. The Court addressed the first question, finding ICE’s policy overbroad, but did not reach the second. During the litigation ICE disclaimed reliance on the fugitive disentitlement doctrine. In this post I will discuss the Court’s decision. In a subsequent post I will discuss the fugitive disentitlement doctrine and its potential application in the FOIA context.
ICE promulgated its current fugitive FOIA requester policy in July 2017 (after the Smith litigation had begun). Under the policy, when ICE receives a FOIA request from an alien, or the alien’s representative, the agency’s FOIA Office consults with its Office of Enforcement and Removal Operations (ERO) to ascertain whether the alien is in fugitive status. Fugitive status is defined rather broadly, and is not limited to those avoiding trial or punishment for criminal offenses. Indeed, it is not limited to aliens who have defied an order issued in a judicial or administrative adjudication. Rather, an alien is in “fugitive status” status when the alien is not in custody and either: (1) has failed to depart or offer proof of planned departure after having received either a grant of voluntary departure or a removal order, (2) has failed to report to an ICE officer after receiving a legal order to do so, (3) has failed to comply with any conditions placed on him/her, (4) has failed to comply with the provisions of any program that requires him/her to report to ICE, and (5) is wanted by ICE for criminal violations of the federal law. Smith v. ICE, at *6.
If the FOIA requester is in “fugitive status,” the FOIA Office may categorically withhold the fugitive’s law enforcement records, citing both Exemption (7)(A) and the fugitive disentitlement doctrine. Id. at *6. Upon appeal, an attorney in ICE’s Office of the Principal Legal Advisor (“OPLA”) “must thoroughly evaluate the . . . requested documentation [for any] connection between the documents requested and the alien’s continued evasion of law enforcement efforts.” Id. at *7. If no such connection exists, the request is remanded to the FOIA Office for further processing and release of records not otherwise subject to withholding. Id. ICE estimated that it has denied 333 of 111,793 FOIA requests submitted between July 21, 2017 and April 4, 2019 based on its fugitive request procedures. Id. at *9.
In assessing ICE’s policy, the Court noted that the Supreme Court had upheld agencies’ use of “categorical withholding, as opposed document-by-document or line-by-line” withholdings when records “fit into a genus in which the balance characteristically tips in [the] direction” of applying the exemption. Id. at *18 (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 776 (1989)). Indeed, it noted, the Supreme Court has approved categorical withholding of witness statements gathered by the National Labor Relations Board, under Exemption 7(A), and rap sheets, and under Exemption 7(C). Id. (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236–43 (1978) and Reporters Committee, 489 U.S. at 780)).
The Court found helpful the D.C. Circuit’s distinction between “blanket” and “generic” withholdings — the first is an impermissible form of categorical withholding; the latter a permissible one. A blanket exemption is an unlawful exemption “claimed for all records in a file simply because they are in the file.” Id. (quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 66 (D.C. Cir. 1986).) It is an exemption made at the “file” or “container” level. Id.
Generic exemptions are categorizations of documents that share a particular characteristic that make them subject to withholding. That is, an agency may group documents by category and offer a common justification for all documents in each category, rather than offering its justifications for withholding on the typical document-by-document basis. “A proper categorical exemption applies at the document level, and not at the broader “file” or “container” level, unless the container only contains documents to which a proper categorical exemption applies.”Id. In other words,” the presence of a document in a container is not enough, by itself, to invoke a categorical exemption.” Id.
Applying the D.C. Circuit’s distinction, the Court concluded ICE was impermissibly attempting to apply Exemption 7(A) at the container level, the container being the ERO database. Id. at *19. The Court had no doubt that release of some records within that database “could interfere with [efforts to apprehend a fugitive] by allowing him or her to continue to evade law enforcement,” bringing such documents within Exemption 7(A). Id. But it was equally clear that the ERO database contained other documents whose release would not do so. Id. Indeed, the Court noted, ICE’s own appeal procedures “specifically contemplate[d] that the attorney handling the appeal will find responsive, non-exempt materials” upon a document-by-document review of the file. Id.
The Court observed that a proper categorical exemption is meant to provide a basis for withholding documents “in perpetuity.” Id. ICE’s creation of an appeal procedure in which an agency employee inspects, for the first time, the responsive documents for their potential to aid a fugitive’s continued evasion of ICE demonstrated that the “fugitive rule” is not a proper categorical exemption. Instead, it is merely an improper categorical, container-level, basis for initial FOIA denials. Id.
The Court noted that it ICE could apply Exemption 7(A) “in the normal way,” i.e., on a document-by-document basis. ICE could also attempt to justify withholdings based on a proper category-of-document by category-of-document basis, where some common characteristic shared by all documents in the category shielded them from disclosure. Id. at *20.
The Fugitive Disentitlement Doctrine
Smith was made more complicated by the express statement in ICE’s policy that the agency would withhold documents only in response to requests made by fugitives or their representatives, and ICE’s insistence upon citing the fugitive disentitlement doctrine in letters denying fugitives’ FOIA requests. The District Judge described the fugitive disentitlement doctrine as a rule precluding a criminal defendant “on the lam” from “us[ing] the legal system to challenge the charges against him from the safety of his hideout.” Id. at *17. The doctrine also precludes such fugitives from pursuing appellate review of their convictions. The Court noted that the Tenth Circuit has extended this principle to fugitives’ pursuit of immigration appeals. The Court did not rule on the applicability of the fugitive entitlement doctrine because ICE disclaimed reliance upon it. Id. In my next post I will more fully analyze the applicability of the fugitive disentitlement doctrine to FOIA cases.
 Nightingale v. U.S. Citizenship & Immigration Services, Dkt 19 Civ. 3512, Complaint, ¶¶2, 7 (N.D. Cal. June 19, 2019; American Immigration Council, FOIA For Immigration Lawyers p.1. The Nightingale plaintiffs allege that USCIS A-Files contain information “critical” to determining noncitizens’ eligibility for an immigration benefit or status” or “defend[ing] against deportation,” id. at ¶2, and that ICE’s FOIA backlog “prevent[s] [p]laintiffs and [putative class members] from moving forward with petitions and applications,” ¶7. In its practice advisory, the American Immigration Council explains: “FOIA can be a helpful tool for you if you wish to obtain federal agency records on your clients,” such as the client’s “A” file and information on a client’s entries into and departures from the United States, as well as an agency’s policies on a specific issues.
 The policy is formally entitled the “Standard Operating Procedure for “FOIA Requests Made By, or On Behalf of, Fugitive Aliens.” Smith v. USCIS, at *6.
 Watters v. DOJ, 576 F. App’x 718, 725 (10th Cir. 2014) (information regarding active fugitive can be withheld under Exemption 7(A)); Hidalgo v. FBI, 541 F. Supp. 2d 250, 256 (D.D.C. 2008) (release of information would allow fugitives to evade justice, inter alia); Mendoza v. DEA, 465 F. Supp. 2d 5, 11 (D.D.C. 2006) (disclosure could assist fugitives and other targets to avoid apprehension and to develop false alibis), aff’d, No. 07-5006, 2007 U.S. App. LEXIS 22175, at *2 (D.C. Cir. Sept. 14, 2007).
 There is some confusion about whether the policy also applies to requests ICE receives indirectly from another agency. The written policy expressly states that it is inapplicable in such circumstances, but apparently administrators disagree over whether that is the policy in effect. Smith v. USCIS, at *6, *9 (citing contradictory sworn statements provided by ICE officials).
 Initially, ICE had reported that it had withheld records only eight times between July 21, 2017, and March 21, 2019. Id. at *7. ICE explained that its miscalculation had resulted from an April 2017 software upgrade that prevented FOIA analysts from closing cases using the “Fugitive Status” code. Id. at *8.
 See, e.g., Cuban v. SEC, 744 F. Supp. 2d 60, 85 (D.D.C. 2010) (exemption does not permit “blanket” withholding for all records relevant to investigation); see generally, CREW v. Department of Justice, 746 F.3d 1082, 1095-99 (D.C. Cir. 2014). While this is correct with regard to most law enforcement records, FOIA section 552(c) seems to authorize container-level withholding of certain records. And some Exemption 3 statutes may authorize container-level withholdings, e.g., CIA Information Act, Pub. L. 98–477, 98 Stat. 2209 (1984)(codified as 50 U.S.C. § 3141)(exempting CIA “operational files” from FOIA’s reach).
 A leading recent discussion of this concept is Prison Legal News v. Samuels, 787 F.3d 1142 (D.C. Cir. 2015). There the D.C. Circuit found the attempted categorization on documents deficient because the documents involved matters that were so varied in terms of protected privacy interests and the public interest in disclosure that further sub-categorization was necessary.
 Id. at *19. Such information might divulge ICE’s plans to apprehend the fugitive, or ICE’s is awareness of a relative’s address where the fugitive might hide to evade detention. Id. Indeed, the Court opined, “without prejudging the matter, these may be the sorts of records that are withholdable from any requester, not just the ‘fugitives’ to which the SOP applies.” Id.
 Niemi v. Lasshofer, 728 F.3d 1252, 1255 (10th Cir. 2013). The doctrine is discussed in Emily Creighton, The Fugitive Disentitlement Doctrine: FOIA And Petitions For Review (Legal Action Center, American Immigration Council updated April 29, 2013).
 See, Ortega-Rodriguez v. United States, 507 U.S. 234, 239–42 (1993).
 Id. at *17 (citing Martin v. Mukasey, 517 F.3d 1201, 1204 (10th Cir. 2008). The Second, Third, Seventh, and Ninth Circuits have also extended the doctrine to the context of immigration appeals, see Creighton, supra note 9, at 2; see generally Patrick J. Glen, The Fugitive Disentitlement Doctrine and Immigration Proceedings, 27 Geo. Imm. L.J. 749 (2013); Lawrence Serkin Winsor, Runaway Usance: Limiting the Exercise of the Fugitive Disentitlement Doctrine in the Context of Wenqin Sun v. Mukasey and Bright v. Holder, 47 Ga. L. Rev. 273 (2012).