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State of New York v. U.S. Immigration & Customs Enforcement

ICE Must Provide Privilege Log as to Directive Allowing for Arrests at Court Houses

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OPINION AND ORDER   In a lawsuit arising under the Administrative Procedure Act (APA), judicial review is generally limited to review of the administrative record. See 5 U.S.C. §706; Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). But a defendant agency cannot have sole, unreviewable authority to decide which documents properly comprise the administrative record and which do not. Indeed, excluding courts from this determination would “impede [them] from conducting the ‘thorough, probing, in-depth review’ of the agency action with which [they are] tasked.” In re Nielsen, No. 17-3345 (2d Cir. Dec. 27, 2017), Slip Op. at 2 (quoting Overton Park, 401 U.S. at 415. For this reason, the Court grants plaintiffs’ motion to compel defendants to produce a log of deliberative documents withheld from the administrative record on the basis of asserted privilege. In the underlying civil action, plaintiffs the State of New York and the Kings County District Attorney bring suit under the APA to challenge the decision by U.S. Immigration and Customs Enforcement (ICE) to implement a Directive that allows ICE agents to conduct civil immigration arrests in and around state courthouses.1 Compl.

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