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ICE failed to comply with freedom of information laws in El Paso request, judge rules

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Immigration and Customs Enforcement failed to perform an adequate search for records sought by an El Paso nonprofit legal organization and didn’t justify redactions in some of the documents it did release, a federal judge ruled Monday.

Using the Freedom of Information Act, Diocesan Migrant and Refugee Services of El Paso sought records in July 2019 from ICE about the Trump administration’s Migrant Protection Protocols plan, which requires asylum seekers to wait in Mexico while their claims are heard in U.S. courts. DMRS was particularly interested in records about a policy change that barred the agency and other nonprofits from offering basic legal information to asylum seekers as they waited at the El Paso immigration court for their hearings.

When ICE didn’t respond to the request, DMRS filed a lawsuit in November. The agency released about 70 pages of documents in response to the lawsuit, which DMRS executive director Melissa Lopez said was a result of a narrow search. District Judge Frank Montalvo agreed after a one-day trial Monday, and ordered attorneys for the plaintiffs and ICE to draft a plan for expanding the search by the end of the week.

Chris Benoit, an attorney representing DMRS in the FOIA lawsuit, welcomed Montalvo’s ruling. But he said it shouldn’t require federal court intervention for ICE to meet its transparency obligations.

“This is not how government should work. We have to have full and timely disclosure of government information,” Benoit said in an interview after Montalvo’s ruling.

At the trial, ICE’s former deputy FOIA officer testified that ICE searched for responsive records by asking five officials to search their own emails — three people at ICE headquarters in Washington, D.C., and attorneys in San Diego and El Paso.

Testifying via video, Toni Fuentes said the process used to find records responsive to the DMRS request is typical for ICE because it lacks the ability to do broad keyword searches on its email servers. Fuentes left ICE in August to become the chief of the Defense Department’s FOIA office.

In direct examination from Assistant U.S. Attorney Manny Romero, who represented ICE, Fuentes testified that each of the five people selected to provide records chose their own  search terms when looking through their emails. One  person used several search terms, while another searched only for “MPP,” the acronym for the Trump administration’s “remain-in-Mexico” program for asylum seekers.

In his cross-examination, Benoit focused extensively on the decision by ICE not to search email records at field offices in El Paso and other border communities where MPP was being implemented. He read from an ICE memo that said “field operations is the lead on MPP.”

Fuentes testified that the “point of contact” at the ICE field operations office — the person responsible for handling FOIA searches — asserted that the office wouldn’t have any responsive documents. That was good enough for Fuentes.

“I trust the judgment calls of the POCs (points of contact) to do their best work,” she said.

After hearing her testimony, Montalvo ruled that ICE had not met the legal requirement to conduct a reasonable search that would uncover all relevant documents.

Benoit said he would ask that the U.S. Attorney’s Office work with him on how to expand the search, including developing consistent keyword search criteria.

In a second part of the trial, Montalvo also ruled that ICE hadn’t met its legal burden to justify extensive redactions in some of the documents released to DMRS after it filed suit. He ordered the agency to remove most of the redactions.

One of the documents in question was a 2019 memo from Chad Wolf, then the acting undersecretary of the Department of Homeland Security and now the acting secretary. The four-page document, almost completely redacted when provided to DMRS, deals with the implementation of the MPP program, which has been widely denounced by human rights groups

Disclosure: Attorney Chris Benoit represents El Paso Matters founder Robert Moore in a Freedom of Information Act lawsuit against ICE, the Department of Health and Human Services, and Customs and Border Protection.

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Robert Moore

Robert Moore is the founder and CEO of El Paso Matters. He has been a journalist in the Texas Borderlands since 1986. His work has received a number of top journalism honors including the Robert F. Kennedy Journalism Award, Pulitzer Prize finalist and the Benjamin C. Bradlee Editor of the Year Award. Moore’s work has appeared in the Washington Post, Texas Monthly, ProPublica, National Public Radio, The Guardian and other publications. He has been featured as an expert on border issues by CNN, MSNBC, BBC, CBC and PBS.

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