CBP-One Non-PII Exemption Data
| Tracking # |
CBP-AP-2023-001217 CBP-FO-2023-018650 |
| Submitted | Dec. 1, 2022 |
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Communications
From: Andrew Free
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
Background on the CBP One
Most asylum-seekers who come to the U.S. border through Mexico are expelled under the Title 42 Order initiated during the prior administration and continued by the Biden administration. More than 2 million such expulsions have occurred in roughly two years—many of whom are bona fide asylum-seekers who fear serious harm, persecution, and torture in Mexico. Some of the expelled are removed to their origin state by Mexican immigration officials. Others perish in Mexico, or re-attempting the dangerous entry into the U.S. in order to avoid that fate.
For some — roughly 700 per day as an aggregate number encompassing all Southern CBP Ports of Entry — the U.S. government allows exemption from Title 42 and entry into the U.S., notwithstanding that order.
A U.S. government-required app called “CBP-One” serves as the hub for making exemption requests. Here is the CBP One Privacy Impact Assessment: https://www.dhs.gov/publication/dhscbppia-068-cbp-one-mobile-application
Through CBP-One, civil society organizations and Mexican immigration officials (INM) are afforded a dedicated number of exemptions. These parties then identify qualified exemption-seekers and inform CBP that they wish to cross under a Title 42 exemption. Exporting data from the CBP-One app, CBP then sends spreadsheets to INM indicating who will be allowed to present at a POE and claim a Title 42 exemption. Because the exemption process is among the only lawful paths to protection for people fleeing violence, access to exemption numbers from CBP, and the corresponding requirement to use CBP One to claim these exemptions by information CBP’s Office of Field Operations (OFO) who’s on the list, has become a coveted, and thus, a commodity. The organizations CBP has unilaterally chosen have monetized access to CBP One, charging rates varying from $2,000 to $6,000 to individuals for the privilege of claiming an exemption. Many other organizations have objected to CBP One’s intrusive surveillance and opted out altogether.
This Freedom of Information Act (FOIA) seeks an answer to a very simple set of easily answerable questions:
1. “How many people have sought Title 42 exemptions through the CBP One app since its rollout by CBP?”
2. “How many people did CBP grant Title 42 exemptions after receiving their information through the CBP One app since its rollout by CBP?”
3. “How many civil society organizations has CBP authorized to facilitate Title 42 exemptions using CBP One?”
Answers we Do NOT seek to through this FOIA: (a) personally identifiable information (PII) regarding individuals presented as applicants for exemptions through the CBP One app. Who, what, when, or where people crossed is not the subject of this request.
Rather, we simply want to know the total number of people granted Title 42 exemptions through CBP One, and the number of civil society orgs CBP has authorized to facilitate Title 42 exemptions using CBP One?
Description of Records Sought:
We request access to the following agency records from CBP’s Office of Field Operations and/or the Migrant Crisis Action Team:
1. Any record demonstrating the total number of Title 42 exemptions sought through the CBP One app since its inception. (Note: We do not seek cumulative or duplicative records. Any single record evidencing this information will suffice.)
2. Any record demonstrating the total number of Title 42 exemptions granted by CBP after receiving the applicant’s information via the CBP One app. (Note: We do not seek cumulative or duplicative records. Any single record evidencing this information will suffice.)
3. Any record demonstrating the total number of civil society (i.e., not government) who have used the CBP One app to facilitate Title 42 exemptions?
We believe the most likely custodians of these records will be CBP’s Office of Field Operations (OFO) and/or the Migrant Crisis Action Team (MCAT). We believe these records are most likely stored in an excel spreadsheet containing data exported from CBP One or a related interface. We believe these sheets are, at minimum, stored on a shared drive. We further believe CBP’s Office of Information Technology (OIT) could facilitate a prompt and adequate search for response records.
Expedited Processing Request:
Pursuant to 6 C.F.R. 5.5(e), we hereby request Expedited Processing of this request, and hereby certify that the following statements under penalty of perjury pursuant to 28 U.S.1746:
1. Humanitarian issues and national policy debates around Title 42 are a matter of widespread media interest about which serious questions exist as to the government’s performance of its duties and legal obligations. So serious, in fact, that the U.S. District Court for the District of Columbia held on November 15, 2022, that Title 42 was arbitrary and capricious when issued. Evidence in the Huisha Huisha case from CDC whistleblowers indicates the public health determinations on which Title 42 are allegedly based originated outside of CDC, and are unsupported by scientific consensus.
2. December 22, 2022, is reportedly the date on which Title 42 will cease to be in effect. Public reporting in Axios reflects the Biden administration expects a high volume of individuals may return and seek admission and protection under humanitarian laws including the Refugee Convention and the Convention Against Torture.
3. CBP One has created a massive market for exemption payments in Mexico, with demands from some CBP-chosen organizations ranging from $2000-$6000 per individual seeking exemption through CBP One. With roughly 700 exemptions available per day, this represents a ~$10M-~$30M/week government-created market for entry to the U.S. using the CBP One app. This amounts to as much as $1.5bn in fees paid by migrants in a given year.
4. This commodification of safety has put individuals and organizations at risk of extortion by cartels in Mexico.
5. CBP has had actual awareness of these extortion risks to civil society organizations, as applied to CBP One, for at least several weeks prior to the filing of this FOIA request.
6. Failure to promptly search for and provide responsive records will harm our project’s ability to accurately confirm unofficial assessments of the scope of the CBP One market BEFORE the scheduled end of Title 42, which will be vital to effectively advocating a workable future for the CBP One app. Processing this request in the ordinary course would render the records sought useless for the purposes we seek them because we could still be waiting for records months or even years after the policy change on the ground is set to occur.
FOIA Information Demands
Pursuant to 5 USC 552, on behalf of Al Otro Lado’s #DetentionKills Transparency Project, we demand that CBP:
1. Acknowledge receipt of this request within 10 calendar days.
2. Assign this request an individualized tracking number within 10 calendar days.
3. Adjudicate and respond to the Expedited Processing request within 10 calendar days.
4. Provide a response to this request as soon as practicable, or no later than 30 business days after receiving this request.
5. Provide an estimated date on which the agency intends to release records within 20 calendar days of receiving this request.
6. Task an adequate search reasonably calculated to locate the above requested records, and notify all relevant custodians in writing of their obligations to identify, preserve, and search for responsive records.
7. Make all reasonably segregable, non-exempt portions of responsive agency records promptly available in native format. (E.g., release an excel spreadsheet in .xls or xlsx)
8. Provide the name of an agency official who made the required determination of foreseeable harm for any record withheld as exempt.
9. Notify us in writing of our right to appeal any denial, regardless whether the denial was in whole or in part.
10. Assign our request a simple-track processing designation.
Thank you for your time and attention to this request.
Andrew Free
#DetentionKills Transparency Initiative
Al Otro Lado
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Sincerely,
Andrew Free
From: United States Customs and Border Protection
Andrew FreeN/AMuckRock News, DEPT MR137514263 Huntington AveBoston, Massachusetts 0211512/08/2022CBP-FO-2023-018650Dear Andrew Free: This notice acknowledges receipt of your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP) received on 12/7/2022. Please use the following unique FOIA tracking number CBP-FO-2023-018650 to track the status of your request. If you have not already done so, you must create a SecureRelease account. This is the only method available to check the status of your pending FOIA request.Provisions of the Act allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the DHS FOIA regulations outlined on the DHS website, https://www.federalregister.gov/documents/2016/11/22/2016-28095/freedom-of-information-act-regulations. By submitting your request, you have agreed to pay up to $25.00 in applicable processing fees, if any fees associated with your request exceed this amount, CBP shall contact you; however, the first 100 pages are free. Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. Part 5 § 5.5(a) of the DHS FOIA regulations, CBP processes FOIA requests according to their order of receipt. Although CBP’s goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances pursuant to 6 C.F.R. Part 5 § 5.5(c). As your request seeks documents that will require a thorough and wide-ranging search, CBP will invoke a 10-day extension for your request pursuant to 6 C.F.R. Part 5 § 5.5(c). If you would like to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner.CBP’s FOIA Division is working hard to reduce the amount of time necessary to respond to FOIA requests. We truly appreciate your continued patience. For additional information please consult CBP FOIA website please click on FOIA Act Resources or visit http://www.cbp.gov/site-policy-notices/foia. Sincerely,U.S. Customs and Border Protection
This message (including any attachments) contains confidential information intended for a specific individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this message and any disclosure, copying, or distribution
of this message, or the taking of any action based on it, by you is strictly prohibited.
Deloitte refers to a Deloitte member firm, one of its related entities, or Deloitte Touche Tohmatsu Limited ("DTTL"). Each Deloitte member firm is a separate legal entity and a member of DTTL. DTTL does not provide services to clients. Please see www.deloitte.com/about
to learn more.
v.E.1
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Dec. 7, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-FO-2023-018650.
Thanks for your help, and let me know if further clarification is needed.
From: United States Customs and Border Protection
I do not have a log in or don’t remember my log in and when I try to log in with my PIV it errors saying page not working.
Thank you,
Suzanne Moyer
APP-Taskings
Office of Field Operations
571-264-5200
From: Andrew Free
We hereby appeal the agency’s failure to make a timely determination.
Andrew Free
#DetentionKills Transparency Initiative
From: United States Customs and Border Protection
OT:RR:RDLCBP-AP-2023-00121706/02/2023Andrew FreeMuckRock News, DEPT MR137514263 Huntington AveBoston, Massachusetts 02115Dear Andrew Free:This message responds to the administrative appeal you filed with this office challenging U.S. Customs and Border Protection’s (“CBP”) failure to respond to a Freedom of Information Act (“FOIA”) request you submitted to the agency on May 9, 2023. By this letter, we concur with your assessment, and remand your case file to FOIA Division for immediate processing of your request.In your initial request, you sought total number of people granted Title 42 exemptions through CBP One, and the number of civil society orgs CBP has authorized to facilitate Title 42 exemptions using CBP One? As of 06/02/2023, FOIA Division, the office responsible for responding to initial FOIA requests, has not yet responded to your request. In your appeal, you contend that “the agency has failed to provide a timely response within the statutorily provided guidelines. We concur. The FOIA itself requires that each agency, absent unusual or exceptional circumstances, “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request.” 5 U.S.C. § 552 (a)(6)(A)(i). As CBP’s FOIA Division has not responded to your FOIA request within this statutory timeframe, we agree that the agency is delinquent in responding to your request.However, we find that an administrative appeal is an inappropriate cure in this instance. Indeed, a requester “shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph.” 5 U.S.C. § 552(a)(6)(C)(i). Instead, a constructive denial allows a requester to proceed directly to district court if an agency fails to respond to an initial request within the prescribed time period. This determination is consistent with the language of the FOIA itself and the DHS regulations governing FOIA requests.Under the FOIA’s administrative appeal provision, a requester has the right to administratively appeal any adverse determination that an agency makes on his or her FOIA request. See 5 U.S.C. § 552 (a)(6)(A). Under DHS regulations, adverse determinations include denials of records in full or in part, “no records” responses, denials of requests for fee waivers and denials of requests for expedited processing. See 6 CFR 5.6(c). We note that the definition does not explicitly include a failure to respond.The administrative appeal process is important to agencies and requesters because the appeal process provides an agency with an opportunity to review its initial action taken in response to a request to determine whether corrective steps are necessary. The appeals process allows CBP to correct mistakes made at lower levels and thereby obviates unnecessary judicial review. In this case, there is no administrative record to review because FOIA Division has not yet processed the request. Accordingly, we are remanding your request to FOIA Division for processing. As mentioned above, you may immediately challenge FOIA Division’s failure to respond to your request in district court. Pursuant to 5 U.S.C. §552(a)(4)(B), you may do so in the U.S. District Court in the district in which you reside or have a principle place of business, or in which the agency records are situated, or in the U.S. District Court for the District of Columbia.Alternatively, the Office of Government Information Services (OGIS) offers mediation services to resolve disputes between FOIA requesters and federal agencies as a non-exclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation. If you wish to contact OGIS, you may email them at ogis@nara.gov or call 1-877-684-6448.Please note that this message has been sent from an unmonitored e-mail account. Any messages sent to this account will not be read.Sincerely,CBP FOIA Appeals
This message (including any attachments) contains confidential information intended for a specific individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this message and any disclosure, copying, or distribution
of this message, or the taking of any action based on it, by you is strictly prohibited.
Deloitte refers to a Deloitte member firm, one of its related entities, or Deloitte Touche Tohmatsu Limited ("DTTL"). Each Deloitte member firm is a separate legal entity and a member of DTTL. DTTL does not provide services to clients. Please see www.deloitte.com/about
to learn more.
v.E.1
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Dec. 7, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-AP-2023-001217.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Dec. 7, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-AP-2023-001217.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Dec. 7, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #CBP-AP-2023-001217.
Thanks for your help, and let me know if further clarification is needed.
From: United States Customs and Border Protection
Andrew Free
N/A
MuckRock News, DEPT MR137514
263 Huntington Ave
Boston, Massachusetts 02115
03/24/2025
CBP-FO-2023-018650
DearAndrew Free,
This is a final response to your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP), requesting records pertaining to CBP One.
CBP is granting your request under the FOIA, Title 5 U.S.C. § 552. Upon initial review of your request, we have determined that the following documents can be found on the internet at the following link: https://www.cbp.gov/document/foia-record/cbp-one-mobile-application
This completes the CBP response to your request. You may contact CBP's FOIA Public Liaison, Charlyse Hoskins, by sending an email via your SecureRelease account], mailing a letter to 1300 Pennsylvania Avenue, NW MS 1181, Washington DC, 20229 or by calling 202-325-0150. (If you need telecommunication relay service (TRS) assistance to communicate with the CBP FOIA Office and you are in the United States, please dial 711 to obtain TRS assistance and notify the Communications Assistant that you want to contact the CBP FOIA Office at the telephone number (202) 325-0150). The FOIA Public Liaison is able to assist in advising on the requirements for submitting a request, assist with narrowing the scope of a request, assist in reducing delays by advising the requester on the type of records to request, suggesting agency offices that may have responsive records and receive questions or concerns about the agency’s FOIA process.
For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. 552(c). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.
If you are not satisfied with the response to this request, you have a right to appeal the final disposition. Should you wish to do so, you must file your appeal within 90 days of the date of this letter following the procedures outlined in the DHS regulations at Title 6 C.F.R. §5.8. Please include as much information as possible to help us understand the grounds for your appeal. You should submit your appeal via your SecureRelease account . If you do not have computer access, you may send your appeal and a copy of this letter to: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor, Washington, DC 20229-1177. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia. Additional information can be found at the following link https://www.cbp.gov/sites/default/files/assets/documents/2019-Dec/definitions-exemptions-foia_0.pdf.
Additionally, you have a right to seek dispute resolution services from the Office of Government Information Services (OGIS), which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. Please note that contacting the CBP FOIA Public Liaison or OGIS does not stop the 90-day appeal clock and is not a substitute for filing an administrative appeal.
Please notate file number CBP-FO-2023-018650 on any future correspondence to CBP related to this request.
Please note that this message has been sent from an unmonitored e-mail account. Any messages sent to this account will not be read.
Sincerely,
U.S. Customs and Border Protection