Khine v. U.S. Dep't of Homeland Sec., 334 F. Supp. 3d 324

Background

Catholic Charities submitted a FOIA request to DHS/USCIS in Feb 2017 on behalf of asylum-seeker Kay Khine seeking the asylum officer "Assessment" and related materials; DHS produced 860 pages, withheld the Assessment in full, and sent an initial response letter explaining exemptions and appeal rights.
The initial response cited FOIA and Privacy Act exemptions, said withheld items contained "no reasonably segregable portion(s) of non-exempt information," and noted some records had been referred to ICE.
Plaintiffs sued in district court without administratively appealing, alleging the initial response was boilerplate, insufficient to permit a "meaningful" appeal, and reflected an unlawful agency policy/practice of issuing deficient template letters; they sought declaratory and injunctive relief and requested class certification.
DHS moved to dismiss primarily on the ground that Plaintiffs failed to exhaust administrative remedies before suing.
The district court found Plaintiffs had Article III standing (institutional injury and likely future requests) but dismissed the complaint for failure to exhaust administrative remedies because the DHS letter met the CREW standard for a FOIA "determination" that triggers the appeal requirement.
The court granted Plaintiffs leave to file a sur-reply but declined to reach the merits of the withholding or the policy claims because exhaustion is an element of FOIA claims and was not satisfied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Plaintiffs have standing to bring a policy-or-practice FOIA challenge	Catholic Charities says it suffered concrete institutional injury from denial and faces likely repetition because it routinely files similar FOIA requests	DHS did not meaningfully contest standing but argued claims are premature and unexhausted	Court: Plaintiffs (Catholic Charities) have Article III standing to pursue policy and request-specific claims
Whether DHS's initial response constituted a FOIA "determination" triggering the administrative appeal requirement	Plaintiffs say the letter was boilerplate, lacked real reasons for withholding, and made an appeal futile, so exhaustion should not be required	DHS says the letter identified withheld/produced materials, cited applicable exemptions, informed of ICE referral, and notified Plaintiffs of appeal rights, satisfying statutory and regulatory requirements	Court: DHS's initial response met the CREW standard and thus triggered exhaustion; appeal was required
Whether exhaustion of administrative remedies is required for policy-or-practice FOIA claims	Plaintiffs argue exhaustion is inapplicable or futile here and that judicial review should be allowed without appeal	DHS argues exhaustion is a jurisdictional/prerequisite element of FOIA claims to allow agency correction and creation of a record	Court: Exhaustion is required for both request-specific and policy claims; failure to appeal bars suit
Whether any exception (e.g., futility, constructive exhaustion) excuses appeal requirement here	Plaintiffs claim appeal would be futile and that the letter was so deficient it did not trigger exhaustion; also invoked prior Bayala litigation	DHS notes no administrative opportunity was given to address Plaintiffs' claimed defects; CREW/Circuit precedent control	Court: No exception applied—letter triggered appeal, futility not shown, prior Bayala rulings do not excuse exhaustion here; dismissal for failure to exhaust

Key Cases Cited

CREW v. FEC, 711 F.3d 180 (D.C. Cir.) (agency must gather/review documents, communicate what it will produce/withhold and reasons, and inform requester of appeal rights to constitute a FOIA "determination")
Judicial Watch, Inc. v. DHS, 895 F.3d 770 (D.C. Cir.) (informal agency practices can support a policy-or-practice FOIA claim; exhaustion serves agency-correction function)
Oglesby v. U.S. Dep't of Army, 920 F.2d 57 (D.C. Cir. 1990) (administrative exhaustion generally required in FOIA to let agency exercise discretion and compile record)
Dettmann v. DOJ, 802 F.2d 1472 (D.C. Cir.) (policy-or-practice claim dismissed where plaintiff failed to exhaust administrative remedies on that claim)
Haase v. Sessions, 835 F.2d 902 (D.C. Cir.) (to seek prospective relief for agency practice, plaintiff must show realistic threat of repetition)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (pleading-stage standards for injury-in-fact; general factual allegations may suffice)