Case Detail

FOIA Project Annotation: A federal court in New Mexico has ruled that U.S. Citizenship and Immigration Services properly invoked Exemption 6 (invasion of privacy) to withhold a letter pertaining to attorney Victoria Ferrara's client's ex-wife to USCIS withdrawing an immigration petition that had been previously submitted. However, while agreeing that the agency had properly claimed Exemption 6 to withhold identifying information of third parties contained in the letter, the court found that because third party identifying information could be redacted from the letter and that other portions of the letter could be disclosed. Although the agency originally withheld the letter citing Exemption 7(C) (invasion of privacy concerning law enforcement records) and Exemption 7(E) (investigative methods or techniques), after Ferrara filed suit, the agency relied on Exemption 6 instead. Ferrara argued that the agency had waived its right to claim a different exemption. The agency argued that "because Section 552(a)(4)(B) provides for de novo judicial review of the agency decision, it does not matter whether the agency correctly cites to a different exemption at the judicial review stage; since agencies do not litigate matters, they do not create a record suitable for review, and therefore waiver of arguments not raised at the administrative level is inappropriate." The court agreed with the agency, noting that "the relevant cases consistently recognize the principle that an agency does not waive a FOIA exemption by failing to raise it in the administrative process." After finding that Exemption 6 applied to the letter and that Ferrara had not articulated any public interest in disclosure, the court nevertheless agreed with Ferrara that portions of the letter could be redacted and disclosed. The court indicated that "nowhere have Defendants suggested that this already disclosed content is subject to any exemption." The Court ordered the agency to disclose a redacted copy of the letter "in which the unredacted portion reveals the non-exempt details that Defendants have already disclosed, i.e., the date, the author, and the fact the letter seeks to withdraw the Form I-751."
Issues: Exemption 6 - Invasion of privacy, Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2020-07-02		Filing and Administrative Fees Received: $ 400 receipt number ANMDC-7194548 re 1 Complaint filed by Victoria Ferrara (Payment made via Pay.gov)(Ferrara, Victoria) (Entered: 07/02/2020)
2020-07-02		United States Magistrate Judge Jerry H. Ritter and United States Magistrate Judge John F. Robbenhaar assigned. (dr) (Entered: 07/02/2020)
2020-07-02	2	PLEASE TAKE NOTICE that this case has been randomly assigned to United States Magistrate Judge Jerry H. Ritter to conduct dispositive proceedings in this matter, including motions and trial. Appeal from a judgment entered by a Magistrate Judge will be to the United States Court of Appeals for the Tenth Circuit. It is the responsibility of the case filer to serve a copy of this Notice upon all parties with the summons and complaint. Consent is strictly voluntary, and a party is free to withhold consent without adverse consequences. Should a party choose to consent, notice should be made no later than 21 days after entry of the Order setting the Rule 16 Initial Scheduling Conference. For e-filers, visit our Web site at www.nmd.uscourts.gov for more information and instructions. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (dr) (Entered: 07/02/2020)
2020-07-06		Summons Issued as to Department of Homeland Security, U.S. Citizenship and Immigration Services, U.S. Attorney and U.S. Attorney General (dr) (Entered: 07/06/2020)
2020-07-16	6	NOTICE of Appearance by Manuel Lucero on behalf of Department of Homeland Security (Lucero, Manuel) (Entered: 07/16/2020)
2020-07-16	8	INITIAL SCHEDULING ORDER: by Magistrate Judge John F. Robbenhaar. Telephonic Rule 16(c) Hearing set for 8/25/2020 at 01:00 PM in Albuquerque before Magistrate Judge John F. Robbenhaar. The parties shall call the AT&T Conference line at 888-363-4735, Access Code 2387395, to connect to the proceedings. Joint Status Report due by 8/12/2020. Unless otherwise notified by the Clerk or the Court a notice of consent or non-consent for this case to proceed before the trial Magistrate Judge should be submitted by each party no later than 8/6/2020. (smd) (Entered: 07/16/2020)
2020-07-16	8	INITIAL SCHEDULING ORDER: by Magistrate Judge John F. Robbenhaar. Telephonic Rule 16(c) Hearing set for 8/25/2020 at 01:00 PM in Albuquerque before Magistrate Judge John F. Robbenhaar. The parties shall call the AT&T Conference line at 888-363-4735, Access Code 2387395, to connect to the proceedings. Joint Status Report due by 8/12/2020. Unless otherwise notified by the Clerk or the Court a notice of consent or non-consent for this case to proceed before the trial Magistrate Judge should be submitted by each party no later than 8/6/2020. (smd) (Entered: 07/16/2020)
2020-07-29	10	ANSWER to 1 Complaint Requesting FOIA relief by Department of Homeland Security, U.S. Citizenship and Immigration Services. Related document: 1 Complaint filed by Victoria Ferrara.(Lucero, Manuel) (Entered: 07/29/2020)
2020-08-07	11	PLEASE TAKE NOTICE that this case has been reassigned to District Judge Martha Vazquez as the trial judge. Under D.N.M.LR-Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges. Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings. Magistrate Judge Jerry H. Ritter no longer assigned to this case. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (dr) (Entered: 08/07/2020)
2020-08-11	12	NOTICE REGARDING DOCUMENT ENTRIES: Because this case has been reassigned to a district judge, please be advised that any documents filed by the parties under Rule 73(b) have been permanently removed from the docket. Document(s) removed: Nos. 7 and 9. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (bl) (Entered: 08/11/2020)
2020-08-20	13	Joint Status Report by Victoria Ferrara (Ferrara, Victoria) (Entered: 08/20/2020)
2020-08-20	14	Joint Status Report Defendants portion by Department of Homeland Security, U.S. Citizenship and Immigration Services (Lucero, Manuel) (Entered: 08/20/2020)
2020-08-25	15	Clerk's Minutes for proceedings held before Magistrate Judge John F. Robbenhaar: Scheduling Conference held on 8/25/2020. (smd) (Entered: 08/25/2020)
2020-08-25	16	ORDER Modifying and Re-Setting Briefing Schedule by Magistrate Judge John F. Robbenhaar. Plaintiff's motion for summary judgment to be filed 11/2/2020. Defendant's Response and and cross-motion due 12/2/2020. Plaintiff's Reply and any Response to Defendant due 1/5/2021. Defendant's reply due 1/19/2021. (smd) (Entered: 08/25/2020)
2020-11-02	17	MOTION for Summary Judgment by Victoria Ferrara. (Ferrara, Victoria) (Entered: 11/02/2020)
2020-12-01	18	RESPONSE in Opposition re 17 MOTION for Summary Judgment and Cross Motion for Summary Judgment of Defendant filed by Department of Homeland Security, U.S. Citizenship and Immigration Services. (Attachments: # 1 Exhibit Declaration) (Lucero, Manuel) (Entered: 12/01/2020)
2020-12-11	19	ORDER REFERRING CASE to Magistrate Judge John F. Robbenhaar by District Judge Martha Vazquez. (gr) (Entered: 12/11/2020)
2021-01-19	21	REPLY to Response to Motion re 17 MOTION for Summary Judgment Cross Motion by Defendant for Summary Judgment filed by Department of Homeland Security, U.S. Citizenship and Immigration Services. (Lucero, Manuel) (Entered: 01/19/2021)
2021-01-19	22	NOTICE by Department of Homeland Security, U.S. Citizenship and Immigration Services re 20 Reply, 21 Reply to Response to Motion, 18 Response in Opposition to Motion, and it's Notice of Completion of Briefing of the Defendant's Cross Motion for Summary Judgment (Lucero, Manuel) (Entered: 01/19/2021)
2021-03-25	23	ORDER GRANTING REQUEST FOR IN CAMERA REVIEW by Magistrate Judge John F. Robbenhaar. Defendants shall produce to the Court for in camera review the documents released by the Defendant USCIS to the Plaintiff pursuant to Plaintiffs Freedom of Information Act request. The Court orders production of all 348 pages to the Court for in camera review. IT IS FURTHER ORDERED that Defendants shall produce copies of these documents to the Court by Monday, March 29, 2021 manually or, if preferred, digitally to robbenhaarproposedtext@nmd.uscourts.gov. (smd) (Entered: 03/25/2021)
2021-04-01	24	REPORT AND RECOMMENDATIONS re 17 and 18 Cross Motions for Summary Judgment by Magistrate Judge John F. Robbenhaar. The Court recommends DENYING Plaintiff's Motion for Summary Judgment and GRANTING Defendant's Cross-Motion for Summary Judgment; and DISMISSING WITH PREJUDICE Plaintiff's Complaint. Objections to R&R due by 4/15/2021. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (smd) (Entered: 04/01/2021)
2021-04-15	25	OBJECTIONS re 24 REPORT AND RECOMMENDATIONS re 17 MOTION for Summary Judgment filed by Victoria Ferrara by Victoria Ferrara (Ferrara, Victoria) (Entered: 04/15/2021)
2021-04-19	26	AMENDED REPORT AND RECOMMENDATIONS by Magistrate Judge John F. Robbenhaar, amending the prior PFRD 24 to correct an incidental error as explained in the attached amended order. Objections to AMENDED R&R due by 5/3/2021. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (smd) (Entered: 04/19/2021)
2021-04-29	27	RESPONSE re 25 Objections filed by Department of Homeland Security, U.S. Citizenship and Immigration Services. (Lucero, Manuel) Modified text on 4/30/2021 change from reply to response (gr). (Entered: 04/29/2021)
2021-06-28	28	MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez ADOPTING 26 REPORT AND RECOMMENDATIONS; DENYING 17 MOTION for Summary Judgment filed by Victoria Ferrara; and GRANTING 18 Cross Motion for Summary Judgment. See order for specifics. (gr) (Entered: 06/28/2021)
2021-06-28	29	FINAL JUDGMENT by District Judge Martha Vazquez. IT IS ORDERED that this case is DISMISSED with prejudice. (gr) (Entered: 06/28/2021)
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