ICE Can Shield Some Immigration Records From Conservative Group

Immigration and Customs Enforcement must give the conservative nonprofit America First Legal Foundation some information about immigrants subject to removal, a federal court said.

But ICE may withhold from disclosure under the Freedom of Information Act immigrants’ names, docket numbers, and arrest locations, Judge Randolph D. Moss said Monday for the US District Court for the District of Columbia.

ICE developed a priority list for its removal cases in 2021, with individuals who posed a threat to national security and public safety and those who entered the US unlawfully at the top, Moss said. ICE personnel drafted a spreadsheet report to track its removal cases.

AFLF submitted an FOIA request to have access to the report. ICE withheld some of the information under FOIA Exemptions 6, 7(C), and 7(E).

Exemptions 6 and 7(C) protect a person’s privacy, Moss said, but he focused on Exemption 7(C), which has a broader application. Exemption 7(C) applies to records compiled for law enforcement purposes and encompasses any disclosure that could reasonably be expected to constitute an invasion of privacy, he said.

ICE’s report was compiled for law enforcement purposes, Moss said. People also have a privacy interest in not being publicly associated with law enforcement efforts, he said.

Release of an immigrant’s name, case number, or full date of birth from the report would identify non-citizens who are subject to removal from the US, Moss said. It would also permit the public to connect the information ICE didn’t redact to specific individuals. which would also result in a significant invasion of privacy, he said.

But the judge said wholesale redaction of the listed months and years of births isn’t permissible.

ICE redacted residential addresses from the report, too, Moss said. But AFLF only sought city, state, and country information, and ICE failed to explain how disclosure of this information could be used to identify particular immigrants, he said.

Gang, cartel, and terrorist group affiliation was also redacted from the report, Moss said. “The problem here is that ICE does not explain how anyone could identify an individual non-citizen if it were to release this information,” he said.

ICE also invoked Exemption 7(E) to withhold residential addresses, arrest location, gang, cartel, and terrorist group affiliations. Exemption 7(E) protects from disclosure information compiled for law enforcement purposes that would disclose investigative techniques and procedures, Moss said.

Release of residential addresses would disclose information about ICE’s techniques to locate at-large immigrants, Moss said. But ICE failed “to explain how disclosure of only the city, state, and country would pose such a risk,” he said.

Arrest location was subject to Exemption 7(E), because its disclosure could lead to the discovery of border security procedures, Moss said. But ICE failed to justify withholding gang, cartel, and terrorism group affiliation information under Exemption 7(E), he said.

Schaerr Jaffe LLP represents AFLF. The US Department of Justice represents ICE.

The case is Am. First Legal Found. v. US Dep’t of Homeland Sec., 2024 BL 438428, D.D.C., No. 21-2168 (RDM), 12/2/24.