A federal judge has told U.S. Department of Homeland Security officials to stop dragging their heels and start producing documents on immigrants detained for prolonged periods of time.
Southern District Judge Richard Berman on Monday rejected the government’s motion to reconsider his Dec. 19 denial of its motion for a stay pending appeal of a September decision in which Berman ordered the production of thousands of documents sought by the American Civil Liberties Union on detained immigrants under the Freedom of Information Act.
The judge on Monday chastised the government on several fronts and reiterated what he told the parties at a Nov. 13 conference, saying, “[T]he Government continues, quite obviously, to drag its heels in providing disclosure about immigrant detentions. Hopefully it is not also trying to hide or obscure a distressing system or set of facts.”
In ACLU v. U.S. Department of Homeland Security, 11 Civ. 3786, the ACLU sued Homeland Security and U.S. Customs Enforcement (ICE) seeking information on prolonged detentions of immigrants without action being taken on their status. Its lawsuit stated that detainees were being held “for months, if not years, without adequate procedures in place to determine whether their detention is justified.”
The complaint cited a statement from the U.S. General Accounting Office in 2004 that “ICE does not have the information that provides assurance that its custody reviews [of detainees] are timely and its custody determinations are consistent with [the law] and implementation regulations.”
And the ACLU also cited a 2007 report by the Inspector General of Homeland Security that determined that “required custody decisions were not made in over 6 [percent] of cases and were not timely in over 19 [percent] of cases.”
The ACLU alleged that “thousands of immigrant detainees continue to languish in immigration jails for periods far exceeding six months…often [facing] deplorable conditions of confinement even worse that those faced by convicted prisoners.”
When the ACLU filed its original Freedom of Information request in 2009, the government offered what Berman called “(very) unpersuasive arguments” in opposition, including that the information sought would implicate the privacy interests of detainees.
Berman granted summary judgment for the ACLU on Sept. 9, 2013, directing that some documents in a stipulation be produced while the parties continued to identify other relevant documents that would ultimately be produced.
The government filed notice of appeal on Nov. 12, and then applied to Berman for a stay pending appeal.
On Dec. 19, Berman denied the motion, finding that issuance of a stay “would substantially injure the ACLU, detainees and their families.”
The judge said he understood, and the parties were well aware, that document production would begin once his September order was issued, but he said the government had produced nothing and had, in fact, told the ACLU that it would be a slow process, taking up to seven years to produce some 100 files.
Berman found on Dec. 19 that the “public interest weighs strongly in favor of disclosure and strongly against the Government’s application for a stay.”
So the judge was not of a mind to reconsider when the government asked him to do so on Dec. 25.
The government, he said Monday, failed to meet the standard for reconsideration under Federal Rule of Civil Procedure Rule 60(b)(1) because it had not made a showing of extraordinary circumstances or extreme hardship that warranted relief. There was also no showing of new evidence, the need to correct a clear error, or, in the words of the case law “prevent manifest injustice, United States v. Tenzer, 213 F.3d 34 (2d Cir. 2000).”
“The government points to none of these,” he said. “It has simply sought to move the goal posts for producing documents to the ACLU.”
Berman said the latest application “surprisingly and belatedly” includes documents that hadn’t been previously put before the court, including a number of declarations from government officials and lawyers that were not part of the initial stay application, which was apparently an “attempt to relitigate the merits” of his previous orders.
“The Court is also constrained to observe that the Government’s latest application continues a troubling pattern of, at best ‘loose’ interpretation of the Court’s September 9 Order,” he said.
The government, in a letter to the court, repeatedly stated it could not comply with his order to produce all “22,000 documents” on a timely basis.
But the judge said, “There is no such directive in the September 9 order,” only that the government produce documents pursuant to a stipulation, and it had failed to do so.
“The Court is not aware of a ‘lick’ of document production made by the Government” since then, he said.
Assistant U.S. Attorney Louis Pellegrino submitted the government’s memorandum of law in support of its motion for a stay.
Richard Leland, Jennifer Colyer and Richard Tisdale of Fried, Frank, Harris, Shriver & Jacobson submitted the plaintiff’s memorandum in opposition.
@|Mark Hamblett can be contacted at email@example.com.