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USCIS Agrees To Pay NY Atty $47K In Fees To End FOIA Fight

May 31, 2015 (2 min read)

Law360, May 29, 2015 - "U.S. Citizenship and Immigration Services has agreed to pay a New York immigration attorney more than $47,000 in attorneys' fees, ending a yearslong fight over Freedom of Information Act requests, according to a court order made available Thursday.

U.S. Magistrate Judge Ronald L. Ellis brought the case to a close when he signed off on the agreement between USCIS and John Assadi, a partner at the New York City firm Assadi & Milstein LLP. Assadi sued the agency in early 2012 after it refused to turn over certain correspondence between its fraud protection unit and American embassies abroad.

USCIS, which released thousands of documents to Assadi over the course of the case, did not admit it owed him any fees or costs in the settlement. Rather, it agreed to pay him $47,775 as the two sides wanted to avoid further litigation, according to the order.

Assadi, court records say, initially filed a FOIA request with the agency in 2011, seeking documents related to communications related to him or his firm between the USCIS’s fraud prevention unit and embassies or consulates in places like Istanbul, Turkey and France.

USCIS initially said it found 23 pages of reports that were responsive to the request, but withheld the documents under certain FOIA exemptions. Assadi sued the agency in New York federal court in February 2012, after it denied his appeal.

Judge Ellis ruled in January 2013 that USCIS properly withheld the reports, which reportedly contained private information and interagency deliberations about possible fraud in connection with specific applications for immigrant benefits.

However, before the judge’s decision, USCIS revealed additional documents might be available. After a court order to turn over any relevant documents, it provided Assadi in August 2013 with an additional 1,375 pages.

Over the course of the next five months, USCIS released nearly 1,000 additional documents, some of which it told the court it had “unexpectedly” found after discovering an earlier email gaffe.

It eventually sought to end the case and moved for summary judgment, arguing its searches were complete and it had handed over all the responsive documents. It also argued 49 contested pages were properly withheld in the second round of releases.

Assadi countered that the monthslong delays in handing over documents destroyed any presumption of good faith normally given to government declarations.

In March, Judge Ellis sided with USCIS, ruling the delays, while extensive, weren’t enough, by themselves, to show that the agency’s searches were inadequate. He also ruled the various documents that were withheld were protected under FOIA exemptions.

Thursday's agreement wraps up the last loose end in the case. Under the deal, Assadi has agreed not to appeal the March ruling, and the action was dismissed with prejudice.

Assadi, who is nearing the end of a similar FOIA dispute with the U.S. Department of State, told Law360 on Friday he was pleased the situation with USCIS had been resolved, but he said it was discouraging that it took as long as it did.

“I think the whole point of FOIA is there should be openness by the government,” he said. “In this case there was the exact opposite.”

Assadi is represented by Rakhel Speyer-Milstein of Assadi & Milstein LLP.

The government is represented by Joseph N. Cordaro of the U.S. Attorneys Office.

The case is John Assadi v. U.S. Citizenship and Immigration Services, case number 12-cv-01374, in the U.S. District Court for the Southern District of New York."