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CBP must improve transparency, El Paso federal judge rules

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An El Paso federal judge ruled Tuesday that U.S. Customs and Border Protection has failed to comply with the Freedom of Information Act and that the federal agency has made no effort to produce records requests in a timely and transparent manner.

It’s the third federal court ruling in a month that found agencies of the Department of Homeland Security to be in violation of the Freedom of Information Act, a key transparency law that allows the public access to many types of government records.

Tuesday’s ruling stems from an October 2019 lawsuit filed by El Paso Matters founder and CEO Robert Moore while he was a freelance reporter. He sued U.S. Immigration and Customs Enforcement, CBP and the U.S. Department of Health and Human Services after the agencies failed to release records related to FOIA requests he submitted between June 2018 and March 2019.

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U.S. District Judge David Guaderrama

U.S. District Judge David Guaderrama previously ordered CBP to begin releasing the records last March. CBP said it was unable to comply fully with that order due to delays caused by the coronavirus pandemic. The earliest it could start producing the requested records was June 30, 2021, and it would take up to six years to complete, CBP said in a court filing.

The records pertain to a canceled CBP crowd-control exercise planned for Election Day 2018 in a predominantly Hispanic neighborhood, and the “metering” program the agency began employing in the spring of 2018 to limit the number of people allowed to request asylum at ports of entry.

CBP said the COVID-19 pandemic had impacted its ability to provide public records in a timely fashion. Guaderrama sharply rejected that argument, noting that the agency has not sought additional funding from Congress in recent years to handle its FOIA backlog, which grew during the Donald Trump administration.

“Like the grasshopper from Aesop’s fable that failed to prepare for winter, CBP cannot blame the pandemic for its current overwhelming workload when it was the agency’s own actions and omissions which prepared the ground for such predicament,” Guaderrama wrote.

CBP “failed to establish how it was exercising due diligence in producing” Moore’s requests, Guaderrama wrote, noting the agency’s FOIA workload from October 2017 to September 2019 was “neither unforeseen nor unpredictable.”

The Freedom of Information Act is a human rights law, said Chris Benoit, the El Paso-based attorney representing Moore in his lawsuit.

“Until our agencies take their responsibility seriously to comply with the FOIA, we’re going to lose the ability to understand what our government is doing to people in our community and that is dangerous,” Benoit said. “There are a lot of dangers to democracy right now and this is one of them.”

CBP has not responded to a request for comment.

“El Pasoans and other border residents have the right to know about policy decisions made by federal agencies that have tremendous impact on our community,” Moore said in a statement. “Instead, these agencies have acted with near impunity when it comes to their obligations to be transparent. I hope Judge Guaderrama’s forceful ruling will lead to substantive changes by CBP and other Department of Homeland Security agencies.”

Also on Tuesday, a federal magistrate judge in New Mexico gave CBP until mid-March to produce records the Santa Fe Dreamers Project requested last May related to border enforcement and the agency’s “potential targeting of human rights defenders” like immigration attorneys. Benoit is the attorney for Santa Fe Dreamers Project in that case.

The rulings by Guaderrama and the New Mexico judge come four weeks after a federal judge in California found that U.S. Citizens and Immigration Services also failed to comply with FOIA laws when it comes to producing “A-files,” or an individual’s federal immigration records. Like CBP, USCIS is an agency of the Department of Homeland Security.

USCIS has a backlog of more than 50,000 FOIA requests, the “vast majority” of which are for A-files of migrants, according to U.S. District Judge William Orrick’s Dec. 17, 2020, ruling. USCIS should take no more than 30 days on average to fulfill these requests, the ruling states, but as of June 2019, it was taking an average of 55 to 90 days.

“Timely access to A-Files is vital for noncitizens in removal proceedings,” Orrick’s ruling states. “A-File records inform whether detained individuals — most of whom are unrepresented — can contest charges of alienage or removability, are eligible for release on bond, and/or are eligible for relief from removal.”

Orrick ordered USCIS and Immigration and Customs Enforcement to process all pending A-File FOIA requests within 60 days of his ruling.

Benoit hopes the incoming Joe Biden administration takes its FOIA responsibility more seriously.

In recent years, federal court rulings have been the only way the public has been able to hold DHS agencies “accountable for really pulling the veil over their decision making,” particularly when it comes to controversial policies like family separation, he said. But the public shouldn’t have to sue to obtain information about what the government is doing, he said.

Guaderrama ordered Moore and CBP to agree on a timeline for the release of the outstanding FOIA requests. Starting Jan. 25, CBP will be required to update the judge weekly on the status of the requests, including the “total amount of pages” staff reviewed out of the outstanding pages.

Cover photo: Ruben Garcia, the executive director of Annunciation House, tried to convince Customs and Border Protection officers to allow Central American migrants to go to the Paso del Norte port of entry to make an asylum claim in June 2018. CBP was just beginning a process called “metering,” which prevented thousands of asylum seekers from reaching a port of entry. (Robert Moore/El Paso Matters)

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Molly Smith

Molly Smith has been a reporter for the El Paso Times and The (McAllen) Monitor. She’s covered education, criminal justice and local government. A Seattle native, she’s lived in Texas since 2014, with stops in Austin, the Rio Grande Valley and now El Paso. She can be reached at mksmith@elpasomatters.org or 915-247-8857.

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