Virginia Lawyers Weekly VA Lawyers Weekly
Where a woman sued to compel United States Citizenship and Immigration Services, or USCIS, to produce immigration records under the Freedom of Information Act, the claim was dismissed as moot because USCIS produced the records.
Background
In this action under the Freedom of Information Act, or FOIA, Shirley Borromeo seeks to compel United States Citizenship and Immigration Services, or USCIS, to produce information regarding her immigration records and those of her mother, Amelia Surato. Plaintiff alleges that defendants violated the FOIA by failing to perform an adequate search for records responsive to plaintiff’s requests, and by failing to timely and fully produce the responsive records. Defendants have filed a partial motion to dismiss.
Statute of limitations
Defendants argue that because plaintiff brought this action more than six years after USCIS issued its final decision in response to plaintiff’s administrative appeal on Aug. 8, 2014, any claims related to plaintiff’s first request in 2014 are time-barred. Plaintiff concedes that the complaint was untimely as to her first request and that she cannot “demonstrate extraordinary circumstances to justify the application of equitable tolling in this case to establish a timely filing of the Complaint after the 2014 USCIS FOIA appeal decision.”
Exhaustion
Defendants argue that plaintiff’s claims challenging the adequacy of USCIS’ searches in response to her second, third and fourth requests should be barred from this court’s review because plaintiff “failed to fully exhaust administrative remedies.”
Plaintiff fails to respond to defendants’ argument that she did not challenge the adequacy of USCIS’ search in her administrative appeal. Thus, the court finds that plaintiff has conceded that she failed to fully exhaust administrative remedies. Even without this concession, the court finds that the record herein demonstrates that plaintiff failed to exhaust administrative remedies for her claim that USCIS performed an inadequate search as to her second request and is barred from raising this claim before this court.
Plaintiff also administratively appealed USCIS’ decisions regarding her third and fourth requests. Defendants contend that plaintiff’s administrative appeal challenged the adequacy of USCIS’ searches only in regard to its failure to locate a “VISA PACKET.” Plaintiff argues that her statement highlighting the FOIA record’s references to a pending visa packet and her request for a new search to find such visa packet should be construed as a general challenge to the overall adequacy of USCIS’ searches in response to her third and fourth requests.
Plaintiff argues that because the FOIA record contained documents referencing a pending visa packet, USCIS personnel “would know” that an adequate search should turn up the aforementioned visa packet. Thus, plaintiff implies, because the initial searches did not turn up a visa packet, USCIS should have known, given her appeal, that its searches were inadequate. This argument cannot hold. Plaintiff has thus failed to exhaust administrative remedies for her claim that USCIS performed inadequate searches as to her third and fourth requests — except the aspect of plaintiff’s claim regarding a search for a visa packet.
Mootness
Defendants argue that, to the extent plaintiff challenges the application of FOIA exemptions to withhold information related to her second and fourth requests, plaintiff’s claims are moot because “USCIS has released to Plaintiff in full all documents withheld in whole or in part in response to Request # 2 and Request # 4.”
Considering both parties’ pleadings and exhibits, this court finds that plaintiff has not presented facts sufficient to support by a preponderance of evidence her claim that USCIS has withheld documents in response to her second and fourth requests. Thus, these claims will be dismissed as moot.
Defendants’ partial motion to dismiss granted.
Borromeo v. Mayorkas, Case No. 1:22-cv-00289, Feb. 27, 2023. EDVA at Alexandria (Giles). VLW 023-3-094. 14 pp.
