UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RONALD GEDDIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 23-cv-00191 (CKK) ) DEPARTMENT OF ) HOMELAND SECURITY, ) ) Defendant. )

MEMORANDUM OPINION

This case brought under the Freedom of Information Act (“FOIA”),

, and

the Privacy Act, 5 U.S.C. § 552a, see Amended Complaint (“Am. Compl.”), ECF No. 6, is before

the Court on the Motion to Dismiss (“Mot.”), ECF No. 11, filed by Defendant, the Department of

Homeland Security (“DHS”). For the reasons explained below, DHS’s Motion to Dismiss will be

converted into a Motion for Summary Judgment, the Motion will be granted, and judgment will

be entered on behalf of DHS.

I. BACKGROUND

Plaintiff Ronald Geddis, who is proceeding pro se, and is incarcerated at the Federal

Correctional Complex in Coleman, Florida, see Am. Compl. at 5, alleges that, on August 17, 2022,

he mailed a FOIA/Privacy Act request to DHS’s Homeland Security Investigations (“HSI”), id. ¶

7; see Opposition Exhibits (“Opp’n Exs.”), ECF No. 12-1, at 1 1 (copy of Pl.’s FOIA/Privacy Act

Request, dated Aug. 14, 2022) (“FOIA/PA Request”), a principal investigative component of

Immigration and Customs Enforcement (“ICE”), see Mot. Exhibit A, ECF No. 20-1, ¶ 4

1 In citing to the Exhibits attached to Plaintiff’s Opposition (“Opp’n”), ECF No. 20, the Court references the ECF-generated pagination. 1 (Declaration of Fernando Pineiro, ICE’s FOIA Director) (“Pineiro Decl.”). Plaintiff contends that

he sent his request via certified U.S. first class mail, seeking:

(1) indictment and charging documents; (2) transcripts of pre-trial proceedings; (3) discovery; (4) copies of plea agreements and drafts thereof; (5) audio or video recordings of any pre- or post-arrest interrogations or interviews of individual; (6) arrest warrants; (7) search warrants, subpoenas and their attendant affidavits; (8) handwritten or field notes; (9) email communication between the U.S. Attorney’s Office for the Middle District of Florida and his; (10) email communications between HSI and the Hillsborough County Sheriff’s Office; and (11) any and all other information not listed above and not exempt under law.

Am. Compl. ¶ 7 (emphasis in original); FOIA/PA Request; see Opp’n Exs. at 4 (Pl.’s Certified

Mailing Label) (“CML”). Plaintiff’s mailing containing his request was, however, addressed

incorrectly. Compare FOIA/PA Request, with Pineiro Decl. ¶ 1. The mailing address that Plaintiff

listed on the certified mailing label is: Homeland Security Investigations, FOIA/PA Office, 500

12th Street N.W., 11th floor, Washington, DC 20530. See CML. However, the correct address is:

U.S. Immigration & Customs Enforcement, FOIA Office, 500 12th Street S.W., Stop 5009,

Washington, DC 20536-5009. See Pineiro Decl. ¶ 1. As a result, Plaintiff made more than one

error in addressing his request; he listed the incorrect quadrant, as well as the wrong zip code, and

he also failed to include mail stop code, while including what appears to be an erroneous floor

number. See id.; CML.

Plaintiff contends that he received an initial response letter regarding his request, dated

September 7, 2022, and directing him to submit additional information, including a certificate of

identity. See Opp’n ¶ 2; Opp’n Exs. at 6–7, ECF No. 11-3 (Initial Response Letter, dated Sept. 7,

2022) (“Initial Resp. Ltr.”). Plaintiff asserts that he responded on September 14, 2022,

resubmitting his request with the required supplemental information. See Opp’n ¶ 3; Opp’n Exs.

at 8–10 (Pl.’s Reply & Resubmission, dated Sept. 14, 2022) (“Pl.’s Resub. Ltr.”). According to

2 Plaintiff, he received a letter of acknowledgement, dated September 28, 2022, discussing fee

arrangements for his resubmitted request. See Am. Compl. ¶ 14; Opp’n ¶ 4; Opp’n Exs. at 11–12

(Second Response Letter, dated Sept. 8, 2022) (“Sec. Resp. Ltr.”). On October 7, 2022, Plaintiff

signed a fee agreement. See Opp’n ¶ 5; Opp’n Exs. at 12–16 (Pl.’s Fee Agreement Letter) (“Pl.

FA Ltr.”). Plaintiff alleges that, thereafter, there has been no progress made on his request. See

Am. Compl. ¶ 15. The Court notes, however, that these letters are all authored by Kevin Krebs,

Assistant Director of the FOIA/Privacy Staff Executive Office for United States Attorneys

(“EOUSA”) of the United States Department of Justice (“DOJ”), and not by anyone affiliated with

HSI, ICE, or DHS. See Initial Resp. Ltr.; Sec. Resp. Ltr.

On January 23, 2023, Plaintiff filed the instant lawsuit against DHS. See generally,

Complaint, ECF No. 1. He filed an Amended Complaint on April 18, 2023, raising the same

claims, but attempting to now limit the documents sought to items No. 7 and No. 11 in his

FOIA/Privacy Act request, more specifically, “search warrants, subpoenas and their attendant

affidavits[,]” and “any and all other information not listed above and not exempt under law[.]” See

Am. Compl. ¶¶ 7–11.

In response to the Amended Complaint, on July 20, 2023, DHS filed the pending Motion

to Dismiss for failure to state a claim pursuant to Federal Rule 12(b)(6). See Mot. at 1–2. DHS

asserts that neither it, nor any of its components, including ICE or HSI, ever received Plaintiff’s

request. See Mot. at 2–4; Pineiro Decl. ¶¶ 5–9. In support, DHS has submitted a Declaration from

Fernando Pineiro, ICE’s FOIA Director, who attests that, upon notice of this lawsuit, ICE and HSI

conducted several searches, but found no record of receipt of any FOIA or Privacy Act request

from Plaintiff. See Pineiro Decl. ¶¶ 5–9.

3 On August 11, 2023, Plaintiff filed his Opposition to the Motion to Dismiss, to which DHS

filed a Reply, ECF No. 14, on September 2, 2023. On September 25, 2023, Plaintiff filed a Motion

for Leave to file a Surreply, ECF No. 15, which was granted by Minute Order on September 28,

2023, and his Surreply (“Surreply I”), ECF No. 16, was then separately docketed on the same date.

DHS was afforded a Response to Plaintiff’s Surreply, ECF No. 17, which was then filed on

October 10, 2023. Finally, on October 20, 2023, Plaintiff filed a Motion for Leave to file a Second

Surreply (“Surreply II”), ECF No. 18, which was granted by Minute Order on October 26, 2023,

and construed accordingly.

II. STANDARD OF REVIEW

In ruling upon a motion to dismiss for failure to state a claim, a court is limited to

considering the facts alleged in the complaint, any documents attached to or incorporated therein,

matters of which a court may take judicial notice, and matters of public record. See EEOC v. St.

Francis Xavier Parochial Sch.,

(D.C. Cir. 1997); see also Vanover v. Hantman,

(D.D.C. 1999), (“[W]here a document is referred to in the complaint and is

central to plaintiff's claim, such a document attached to the motion papers may be considered

without converting the motion to one for summary judgment.”) (citing Greenberg v. The Life Ins.

Co. of Va.,

(6th Cir. 1999)), aff'd,

(D.C. Cir. 2002); Ward v.

Dist. of Columbia Dep't of Youth Rehab. Servs.,

(D.D.C. 2011) (finding

that a court may consider “documents upon which the plaintiff's complaint necessarily relies even

if the document is produced not by the plaintiff in the complaint but by the defendant in a motion

to dismiss” without converting to summary judgment) (internal quotation marks omitted). If a

court considers materials outside of those mentioned, it must convert a Rule 12(b)(6) motion to

4 dismiss into one for summary judgment. See Kim v. United States,

(D.C. Cir.

2011) (citing Fed. R. Civ. P. 12(d)).

Here, because DHS has submitted, and the Court has considered, matters outside of the

pleadings, and outside of which it may take judicial notice or of public record, the Court thus

converts DHS’s Motion to Dismiss into a Motion for Summary Judgment under Rule 56. See

Johnson v. Dist. of Columbia,

(D.D.C. 2012) (collecting cases). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To defeat

summary judgment, the non-moving party must “designate specific facts showing that there is a

genuine issue for trial.” Celotex Corp. v. Catrett,

(1986) (internal quotation

marks omitted). The mere existence of a factual dispute is insufficient to preclude summary

judgment. Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986). A dispute is “genuine”

only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it

can affect the outcome of the litigation.

; Laningham v. U.S. Navy,

(D.C. Cir. 1987) (per curiam).

In a FOIA case, a district court reviews the agency's decisions de novo and “the burden is

on the agency to sustain its action.”

(a)(4)(B); Military Audit Project v. Casey,

(D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary

judgment.” Brayton v. Office of U.S. Trade Rep.,

(D.C. Cir. 2011); Defenders

of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009). “Summary judgment may

be granted on the basis of agency affidavit[,]” when those affidavits “contain reasonable specificity

of detail rather than merely conclusory statements[.]” Judicial Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. Dep't of Agric.,

,

5 287 (D.C. Cir. 2006)); see also Peavey v. Holder,

(D.D.C. 2009) (quoting

Schrecker v. U.S. Dep't of Justice,

(D.D.C. 2002)). This is due to the

“presumption of good faith” accorded to agency declarations, that can be rebutted only with

evidence that the agency did not act in good faith. See SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir.

1981)), aff’d, No. 09–5389,

(D.C. Cir. Nov. 5, 2010) (per curiam).

Likewise, in assessing a Privacy Act claim, at the summary judgment stage, where the

agency has the burden to show that it acted in accordance with its statutory obligations, a court

may rely on a reasonably detailed declaration in entering summary judgment. See Chambers v.

U.S. Dep't of the Interior,

(D.C. Cir. 2009).

III. DISCUSSION

Under the FOIA, “each agency, upon any request for records which (i) reasonably describes

such records and (ii) is made in accordance with published rules . . . shall make the records

promptly available to any person.”

(a)(3)(A). Agencies are afforded express

statutory authority to establish their own rules concerning “the time, place, fees (if any) and

procedures to be followed” by a requester.

(a)(3)(A); see also

§§ 552 (a)(4)(A);

(a)(6)(D); (a)(6)(E).

Similarly, the Privacy Act regulates the collection, maintenance, use, and dissemination of

an individual's personal information by federal government agencies, see 5 U.S.C. § 552a(e), and

also allows “any individual to gain access to his record or to any information pertaining to him

which is contained in the system,” so long as a proper Privacy Act request is submitted, see id. §

552a(d)(1). The Privacy Act also holds that “each agency that maintains a system of records shall

6 promulgate rules” relating to the procedures, fees, and other myriad requirements, associated with

such requests. See 5 U.S.C. § 552a(f).

To that same end, an agency’s obligations under the FOIA or the Privacy Act can only be

triggered upon confirmed receipt of a conforming request. See Antonelli v. Fed. Bureau of Prisons,

(D.D.C. 2008) (finding that “[a]n agency’s disclosure obligations are not

triggered . . . until it has received a proper FOIA request in compliance with its published

regulations”); Banks v. Lappin,

(D.D.C. 2008) (“It cannot be said that an

agency improperly withheld records if the agency did not receive a request for those records.”)

(collecting cases). Absent receipt of a request, an agency “has no reason to search or produce

records and similarly has no basis to respond.” Johnson v. United States,

, 44–

5 (D.D.C. 2017) (granting summary judgment where the plaintiff had not submitted a request)

(quoting Carbe v. Bureau of Alcohol, Tobacco and Firearms, No. 03-CV-1658,

, at *8 (D.D.C. Aug. 12, 2004)); Mitchell v. Samuels,

(D.D.C. 2016)

(same); Lopez-Pena v. U.S. Dep’t of Justice, No. 19-2884,

, at *2 (D.D.C. July

20, 2021) (same) (collecting cases).

As noted above, DHS has submitted the Declaration of Fernando Pineiro, who bears

experience, tenure, and personal knowledge regarding ICE and HSI’s FOIA and Privacy Act

procedures, and regarding the investigation into the receipt of Plaintiff’s request. See Pineiro Decl.

¶¶ 1–3. Pineiro attests that this lawsuit was the agency’s first notice of Plaintiff’s request, and that,

on June 22, 2023, shortly after DHS was served with process in this lawsuit, see Returns of Service,

ECF No. 8, “the ICE FOIA Office conducted a search within FOIAXpress (“FX”), ICE FOIA

Processing system[,]” see Pineiro Decl. ¶ 5. It searched FX by using Plaintiff’s first name, last

name, and the approximate date of receipt of the request.

The “ICE FOIA Office also

7 conducted a search in FX based on the description in the complaint of records being sought to

determine whether they received Plaintiff’s FOIA request.”

No record of Plaintiff’s request

was found. See

On the same date, the HSI/Record Disclosure Unit, “which is the unit within HSI that

handles all matters relating to FOIA requests involving HSI records” also searched “the RDU

FOIA shared drive and SharePoint site for incoming FOIA taskings from the ICE FOIA Office,

including requests, litigation, and appeals[.]”

. Once again, “it did not locate any documents

or records indicating that HSI had received Plaintiff’s FOIA request.”

Finally, “HSI also reached out to the HSI Tampa Field Office FOIA Coordinator to

determine if the field office had received Plaintiff’s FOIA request.”

. The HSI Tampa FOIA

Coordinator “then conducted a search of the in the Investigative Case Management System

(“ICM”), to identify whether an agent was assigned to Plaintiff’s investigation[,]” and further

coordinated, not only with the would-be FOIA case agent and group supervisor, but also with the

entire HSI Tampa Office, to ascertain whether anyone had notice of Plaintiff’s request. See

But no one at HSI Tampa was aware of it. See

“Where, as here, an agency submits a declaration stating it did not receive the FOIA

request, the burden falls on the requester to come forward with proof to create a genuine dispute

of fact that he sent the FOIA request to the agency and the agency received it.” Kanaya v. Alcohol,

Tobacco, Firearm and Explosives,

(D.D.C. 2018) (citing Pinson v. U.S. Dep't

of Justice,

, 113–14 (D.D.C. 2014)). “In response to such a declaration, the

plaintiff must provide something more than his own declaration to create a genuine issue of

material fact as to the agency's receipt of the FOIA request.” Pinson,

(citing

Carbe,

, at *1, *8).

8 Here, there is no disagreement that Plaintiff sent a request; the dispute is thus whether the

ICE FOIA Office received it. See Mot. at 2–5; see also CML (indicia that Plaintiff attempted to

mail the request). In response to DHS’s “comprehensive sworn testimony that [ICE and HSI]

never received Plaintiff's FOIA request[][,]” Reynolds v. Dep’t of Justice, No. 16–1428,

, at *2 (D.D.C. Apr. 26, 2017), Plaintiff insists upon the opposite; he largely argues that

the ICE FOIA Office (in the District) received his request on more than one occasion. See Opp’n

¶¶ 1–6. In support, Plaintiff offers several exhibits. See

But, as explained below, these exhibits

are insufficient to generate a genuine despite of material fact.

First, Plaintiff attaches a certified mailing label, see CML, accompanied by a tracking print-

out from the United States Postal Service’s (“USPS’s”) website, see Opp’n Exs. at 5 (USPS

tracking reflecting Aug. 22, 2022 receipt) (“USPS Tracking”), in an effort to establish that ICE’s

FOIA Office received his request on August 22, 2022, after he first mailed it, see Opp’n ¶ 1. But

as already discussed above, Plaintiff incorrectly addressed the mailing containing his request,

labelling it with the wrong zip code and the wrong quadrant, omitting a mail stop code, and

including an incorrect floor number. Compare CML, with Pineiro Decl. ¶ 1.

The USPS tracking print-out is not a model in clarity. See generally USPS Tracking.

While the tracking does reveal that USPS apparently endeavored to deliver the mailing to a

location in the correct zip code, namely, 20536, it does not provide the address where it was

delivered, nor does it include any information as to whom, if anyone, accepted or signed for the

mailing. See

This inadequacy is compounded by Plaintiff’s assertion that he sent his request

via certified first-class mail, which means that a signature would have been obtained, yet the Court

is without this information. See id.; CML; Am. Compl. ¶ 7. The tracking only vaguely indicates

that the mailing was delivered to a “front desk, reception area, or mail room.” See

In other

9 words, there is nothing in the tracking print-out to establish that the mailing containing Plaintiff’s

request was actually delivered to ICE’s FOIA Office, located at 500 12th Street S.W., Stop 5009,

Washington, DC 20536-5009, or that it was accepted by authorized agency personnel. See Pineiro

Decl. ¶ 1. Consequently, this exhibit does not demonstrate that the ICE FOIA Office ever received

Plaintiff’s request. See, e.g., Ning Ye v. Holder,

(D.D.C. 2009)

(dismissing claim when the plaintiff offered a letter from FedEx stating that a “M. Parris” signed

for a certain parcel because the letter failed to “identify the shipper, the addressee, the parcel, or

the relationship between ‘M. Parris’ and the unknown addressee”); Schoenman v. FBI, No. 04–

2202,

, at *10, *13 (D.D.C. March 31, 2006) (granting summary judgment for

the government where the plaintiff failed to provide a “a returned receipt certifying the actual

receipt of the request by the agency”); Reynolds,

, at *2 (granting summary

judgment for DOJ where the plaintiff failed to submit a “a certified-mail receipt or any other form

of mailing that his missives reached their intended target.”). Notably, in his later briefing, Plaintiff

ultimately admits to his mailing error. See Surreply I at 2–3 (recognizes the “mishap of the

address”); Surreply II at 1 (recognizing the “misapplied address”); see also Pickering-George v.

Registration Unit, DEA/DOJ,

(D.D.C. 2008) (entering summary judgment on

behalf of the government where the plaintiff mailed his request to an “address . . . not listed in the

controlling DOJ regulation as one to which FOIA requests to DEA should be sent[.]”); Lopez-

Pena,

, at *3 (entering summary judgment for the government where the

plaintiff conceded that he sent his request to the wrong address); Day v. U.S. Dep’t of the Treasury,

No. 19-3467,

, at *3 (D.D.C. July 31, 2020) (holding that an agency “need not

spring into action simply because Plaintiff placed a request in the mail, particularly when Plaintiff

appears to have sent his FOIA request to an incorrect address.”) (collecting cases).

10 Second, Plaintiff attaches a series of exhibits meant to establish that he communicated back

and forth with DHS in September and October 2022, including two agency response letters, and

his execution of an agency fee agreement. See Opp’n ¶¶ 2–5;

pp. 3–4; Am. Compl. ¶ 14; Initial

Resp. Ltr.; Pl.’s Resub. Ltr.; Sec. Resp. Ltr.; Pl. FA Ltr; Opp’n Exs. at 17 (USPS tracking reflecting

Oct. 19, 2022 receipt of Pl.’s FA Ltr.). But as noted above, all of these communications were with

Kevin Krebs, the Assistant Director of EOUSA’s FOIA/Privacy Staff Executive Office, not with

DHS, ICE, or HSI. See

Per Plaintiff’s own admission, he sent an identical request to EOUSA’s

FOIA Office around the same time that he attempted to send his request to ICE’s FOIA Office.

See Opp’n ¶¶ 1–6.

Although the FOIA requests themselves may be the same, EOUSA’s receipt of the request

is not tantamount to ICE’s receipt. Krebs is not associated whatsoever with DHS, ICE, or HSI.

See Mot. at 4–5; Pineiro Decl. ¶ 10; Initial Resp. Ltr.; Sec. Resp. Ltr. Indeed, EOUSA, who was

not named as a defendant in this lawsuit, is located at a completely different address than ICE and

HSI, in another building, quadrant, and zip code. See Initial Resp. Ltr.; Pl.’s Resub. Ltr.; Sec.

Resp. Ltr.; Pl. FA Ltr. Moreover, EOUSA is not a component of DHS; it is a component of a

different agency, the DOJ, and is bound by its own distinct set of statutory requirements. Compare

et seq. (DOJ FOIA Rules and Regulations); 28 CFR 16.40 et. seq. (DOJ Privacy

Act Rules and Regulations), with

et. seq. (DHS FOIA Rules and Regulations);

et seq. (DHS Privacy Act Rules and Regulations); see Mot. at 4–5; Pineiro Decl. ¶ 10.

Plaintiff’s bald assertion that all agencies and components within executive branch must field each

other’s FOIA/Privacy Act requests, see Opp’n at pp. 3–4, is not only submitted without supporting

legal authority, but also defies common sense, as it would lead to, inter alia, considerable

confusion and disorganization. Simply put, EOUSA’s ostensible receipt of Plaintiff’s request does

11 not speak to whether ICE or HSI received it. See Barouch v. U.S. Dep’t of Justice,

(D.D.C. 2013) (granting summary judgment for the Treasury Department where the

plaintiff seemingly incorrectly assumed that ATF’s receipt of his request also constituted the

receipt of his request by the Treasury Department); Lopez-Pena,

, at *3 (finding

DOJ/EOUSA and DHS are “entirely different” agencies, and that DHS’s possession of the

plaintiff’s request did not establish that DOJ or EOUSA received it); Day,

, at

*3 (finding that the plaintiff’s evidence that the DOD received his request was insufficient to show

that the IRS also received it, and entering summary judgment on the IRS’s behalf); Stelmaszek v.

Dep’t of Vet. Affairs, 19-cv-00172,

, at *4 (D.D.C. Aug. 12, 2020) (entering

summary judgment on behalf of government because the plaintiff sent his request to the wrong

agency component) (citing Gordon v. Courter,

, 285–86 (D.D.C. 2015)

(same)).

Finally, Plaintiff argues in the alternative that, despite any errors he committed, see

Surreply I at 2–3; Surreply II at 1, DHS nonetheless now has notice of his request because it was

served in this lawsuit, see Surreply I ¶ 2; Surreply II ¶¶ 1–2. Although, in a vacuum, this statement

is true, it is of no consequence, because a plaintiff bringing a FOIA or Privacy Act claim in federal

court must file it with the given agency prior to bringing suit. See Banks, 539 F. Supp. at 234–35

(citing Wilbur v. Central Intelligence Agency,

(D.C. Cir. 2004) (per curiam);

Hidalgo v. FBI,

(D.C. Cir. 2003); Oglesby v. U.S. Dep’t of the Army,

(D.C. Cir. 1990); Blazy v. Tenet,

(D.D.C. 1997), aff'd, No. 97–

5330,

(D.C. Cir. May 12, 1998) (per curiam); Crooker v. United States Marshals

Serv.,

, 1217–18 (D.D.C. 1983)). This allows an agency the opportunity to

review and address a request, establish a factual record, and plausibly mutually resolve the request

12 before either party endures the costs and burdens of litigation. See Wilbur,

(quoting Oglesby,

); see also Reynolds,

, at *3 (“Plaintiff argues

that DOJ should now look for his documents since it cannot dispute that it is currently aware of

his request. Were the Court to acquiesce, such a procedure would unwisely bypass the

administrative process.”); Carbe,

, at *8 (finding that “[a] lawsuit does not

constitute a FOIA request,” and that once an agency indicates “that it had never received a FOIA

request . . . the suit alleging a violation of FOIA [is] doomed.”).

Because Plaintiff has failed to create a dispute of material fact that DHS (or ICE or HSI)

received his FOIA/Privacy Act request prior to filing this civil action, summary judgment is

entered on DHS’s behalf. See Pinson,

(finding that, “if an agency never

received a plaintiff's FOIA request in accordance with its published rules, the agency is entitled to

summary judgment as a matter of law.”) (citing Barouch,

). Plaintiff is, of

course, free to resubmit his FOIA request directly to DHS’s FOIA Office, see Mot. at 3–4, or

directly to ICE’s FOIA Office, at a correct and verified address, if he so chooses. See Credico v.

Dep’t of Homeland Security,

(D.D.C. 2016), appeal dismissed, No. 16–5143,

(D.C. Cir. Dec. 12, 2017); Carbe,

, at *8.

IV. CONCLUSION

For the foregoing reasons, DHS’s Motion to Dismiss is converted into a Motion for

Summary Judgment and is granted accordingly. An Order consistent with this Memorandum

Opinion is issued contemporaneously.

Date: February 16, 2024 s/s COLLEEN KOLLAR-KOTELLY United States District Judge

13