National Press Club Journalism Institute FOIA case advances

WASHINGTON, Jan. 5, 2024 /PRNewswire/ -- A federal judge is ordering the U.S. Immigration and Customs Enforcement to justify its withholding of information about a Mexican journalist whom the agency detained while he was seeking asylum.

Judge Rudolph Contreras' ruling came in a Freedom of Information case brought by the National Press Club Journalism Institute and Kathy Kiely seeking records about Emilio Gutiérrez Soto, the National Press Club's 2017 press freedom honoree. Kiely is the Lee Hills Chair in Free Press Studies at the Missouri School of Journalism and the Institute's former Press Freedom Fellow.

Contreras' 43-page opinion notes that federal agencies that want to withhold information from public disclosure under the Freedom of Information Act must provide detailed explanations to justify the redactions. The judge made it plain that ICE's "overly vague" and "scant explanations" do not meet the standard.  

The opinion, filed on Dec. 28, requires the agency to release one document and opens the door to the release of more: Contreras determined that ICE's filings were "insufficient to justify its use of the contested exemptions" to withhold many others. He is also requiring ICE to conduct a supplemental search for records about any mechanisms used to block phone calls from Gutiérrez's attorney while the journalist was in ICE detention. Contreras dismissed ICE's argument that the request was overly broad. The agency declared it couldn't be sure what the Institute meant by "mechanisms."

"ICE's attempt to manufacture ambiguity in this way is unconvincing," Contreras wrote.

Contreras' decision comes in the sixth year of efforts to keep Gutiérrez from being deported to his home country, where he has been threatened with death. In September, a three-judge panel of the Board of Immigration Appeals ruled Gutiérrez eligible for asylum. He has a March 18 court date in El Paso where he is expected to be granted that status.

"Even as he has been exiled from his homeland and the work he loved, Emilio continues to contribute to the profession of journalism," said Kiely. "My hope is that this case will help not only him but journalist watchdogs in their efforts to be a check on abuses of power."

Adam Marshall, a senior staff attorney at the Reporters Committee for Freedom of the Press and an attorney on the case, said Contreras' decision was a "powerful reminder that transparency is the rule, not the exception. The government bears the burden to justify secrecy when it comes to documents about Mr. Gutiérrez, and it failed to do so here." 

Chuck Tobin, with Ballard Spahr LLP in Washington D.C., which is providing pro bono legal counsel to Kiely and the Institute, added: "So many questions remain about why Emilio and Oscar were targeted for rushed deportation despite following the lawful immigration process.  For them, and for all journalists seeking asylum, we will continue to press the government for answers."

BACKGROUND ON THE GUTIÉRREZ CASE

Gutiérrez came to the United States legally, requesting asylum at the port of entry, in 2008. He did so after having been threatened and physically harassed on multiple occasions by members of the Mexican military and informed by a confidential source that he was on a hit list. He had reported on the military's shakedowns of citizens in his northern Mexican community, where he was a reporter.

He was detained for several months and separated from his then teenage son. On January 30, 2009, after an asylum officer determined he had credible fear of persecution upon return to Mexico, he was released on humanitarian parole pending a ruling on his asylum case. Gutiérrez found work and lived nine years as a law-abiding resident of Las Cruces, New Mexico. On July 19, 2017, an El Paso Immigration Judge denied his case holding that it was safe for him to return to Mexico. Gutiérrez filed an appeal. On October 4, 2017, while his case was pending on appeal, Gutiérrez spoke at the National Press Club and was awarded the John Aubuchon Press Freedom Award.

On December 7, 2017, only two months later, during a routine check-in at the El Paso ICE office, agents handcuffed Gutiérrez and his son and attempted to deport them over the objections of their attorney, Eduardo Beckett of El Paso. Beckett immediately called the Board of Immigration Appeals in Virginia to check on their pending motion to stay their deportation. The Board of Appeals granted a stay, stopping the deportation. Nonetheless, ICE detained the two men.

Despite multiple inquiries from the National Press Club, members of Congress, and other freedom of the press and civil rights organizations, ICE never provided a convincing explanation of why it chose to detain two law-abiding residents of the United States. So, the National Press Club Journalism Institute filed a FOIA request for all of the agency's communications regarding Gutiérrez.

Some of the heavily redacted records released under that request became part of a habeas corpus case filed to win Gutiérrez's release. The FOIA requests provided extraordinary facts that showed that ICE was targeting Gutiérrez. When the judge in that case ordered ICE to produce the records on discovery – a process requires a much speedier and less censored release than FOIA produces – ICE released the Gutiérrezes, mooting the habeas case and sparing the agency from having to produce documents.

While Gutiérrez was no longer in ICE custody, ICE continued to oppose his asylum claim. So, the NPC Journalism Institute renewed its FOIA request, this time with the support of attorneys at the Reporters Committee for Freedom of the Press and the law firm Ballard Spahr.

ICE has released some 12,000 pages of documents so far, many duplicative and many heavily redacted. So far, the Institute and Kiely have found no evidence that would support the prolonged detention of Gutiérrez or the agency's opposition to his asylum appeal. Even with the redactions, there have been indications of the agency's contempt for Gutiérrez and his supporters.

"Oh check this out: Guy is killing me," read one email above a news clip in which Gutiérrez's lawyer said his client might be a victim of former President Donald Trump's hostility to Mexicans and journalists. "Really? Ugh," said another, in response to the news that the Board of Immigration Appeals had granted Gutiérrez a new hearing on his asylum appeal.

Noting that "ICE has withheld a significant number of records," Contreras admonished the agency to come up with more convincing justification for the deletions. While the Freedom of Information Act does include a number of exemptions that allow agencies to shield records from public view, the judge cited case law mandating that the agencies provide enough information to show that redactions are justified.  ICE's "meager descriptions" are inadequate, Contreras ruled.

On the matter of devices used to block phone calls, Contreras ruled: "ICE has failed to demonstrate that it conducted a good faith search for records."

About the National Press Club Journalism Institute

The National Press Club Journalism Institute promotes an engaged global citizenry through an independent and free press, and equips journalists with skills and standards to inform the public in ways that inspire a more representative democracy. As the non-profit affiliate of the National Press Club, the Institute powers journalism in the public interest. 

Contact: Beth Francesco, National Press Club Journalism Institute executive director, [email protected]

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SOURCE National Press Club Journalism Institute