Emanuel Luzardo Bermudez v. DOJ Executive Office for Immigration Review

Lafayette, Louisiana, immigration lawyer represented the Plaintiff on a Freedom of Information Act violation theory.



In 2021, the Executive Office for Immigration Review (EOIR) initiated removal proceedings against Bermudez. During those proceedings, Bermudez filed a FOIA request for his Record of Proceedings (ROP). On June 17, 2021, EOIR sent Bermudez's counsel an email acknowledging receipt of the request and advising that, due to the COVID-19 pandemic and the complexity of the request, processing it might be delayed. Following that acknowledgement, no further correspondence was exchanged between the parties.



Behind the scenes, however, EOIR began assembling the documents constituting Bermudez's ROP. On August 13, 2021, an EOIR FOIA Center supervisor requested Bermudez's ROP from the New Orleans Immigration Court. When the file arrived at the EOIR FOIA Center, it was incomplete; to complete it, additional documents located at the Miami Immigration Court were needed. The EOIR FOIA Center requested those documents from the Miami Immigration Court on January 28, 2022.1 Those documents arrived at the EOIR FOIA Center on June 21, 2022, nearly five months later and a year after EOIR's email to Bermudez's counsel acknowledging his information request.



In the meantime, having received neither records nor updates from the agency, Bermudez filed a FOIA suit against EOIR in April 2022.2 Even then, EOIR did not respond to his lawsuit until Bermudez moved for summary judgment in June 2022. At that point, EOIR appeared, announced it had gathered the requested records, and stated that the agency had turned

them over to Bermudez without withholding any documents. The district judge subsequently denied his summary judgment motion as moot, resolving the underlying merits litigation.



Bermudez then moved for attorney fees under FOIA. See 5 U.S.C. § 552(a)(4)(E)(i). He asserted that because EOIR did not produce the ROP until after he filed his lawsuit, it was his lawsuit that caused EOIR to change its position on releasing the documents. Thus, he reasoned, he had "substantially prevailed” in the FOIA litigation, such that he was both eligible for, and entitled to, attorney fees. See id. § 552(a)(4)(E)(i) & (ii). The district court applied this circuit's Batton test for assessing requests for FOIA attorney fees, Batton v. IRS, 718 F.3d 522, 525 (5th Cir. 2013), and denied the motion.

Affirmed