Background on the Emilio Gutierrez FOIA case

Here is background on the Emilio Gutiérrez Soto Freedom of Information case that the National Press Club  Journalism Institute is pursuing:

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.”