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Homeland Security Reneges on Promise to Court to Release Illegal Alien Memo


Surprise, surprise. The Obama administration has broken yet another promise on transparency.

This time it involves a Homeland Security (DHS) report detailing the agency’s investigation of an illegal alien who killed a Virginia nun in a drunk-driving accident in August 2010. Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit to obtain the report, which was scheduled to be released by January 18, 2011. (At least that’s what DHS told Judicial Watch and a federal court.) However, the Obama administration now claims the report is in “draft” form and is therefore exempt from FOIA.

Here’s how all of this went down over the course of the last month.

On January 6, 2011, Judicial Watch received the following message in an email from the Assistant U.S. Attorney (AUSA) assigned to Judicial Watch’s FOIA lawsuit:

I have discussed this matter with the agency and have been advised that the requested report/memorandum has been processed and will be disclosed subject to redaction of certain personal/privacy information under FOIA Exemptions 6/7C. The agency hopes to disclose the material by January 18, 2011. Accordingly, you will receive and have an opportunity to review the release during the requested 30-day extension period. We can then discuss what, if anything, remains of the case.

Anything vague about the phrase “will be disclosed”? We certainly didn’t think so.

Sure enough, in seeking court permission on January 13 to get more time to answer Judicial Watch’s lawsuit, the agency likewise told the Court (The Honorable Emmet G. Sullivan) that “the report memorandum…has been promised and will be disclosed subject to redaction of certain personal privacy information.” Based on this representation, Judicial Watch did not oppose the request for more time. The Court, also relying on this representation that the report was set to be released in a week, granted the Obama administration’s request for more time.

However, following multiple attempts by Judicial Watch’s litigation team to obtain an update on the release of the report, Judicial Watch received the following email from the same Homeland Security AUSA on January 28: “The agency has advised of a delay in the release of the requested report…ICE (Immigration and Customs Enforcement) clarifies that the current version of the report is still in draft form and that, while the final report will be released, Exemption 5 (deliberative process) will likely be asserted as to the draft report.” A subsequent email from Homeland Security noted that ICE “cannot provide a specific release date at this time” for the final report.

Then on February 11, 2011, Judicial Watch received a letter from U.S. Immigration and Customs Enforcement FOIA officer Catrina M. Pavlik-Keenan confirming the fact that the report will not be released as promised: “After review of the draft document, I have determined that this draft document will be withheld in its entirety pursuant to Exemption 5 of the FOIA.”

Folks, this is just another example (albeit an especially egregious one) of the type of gamesmanship and lawlessness we face every day from the Obama administration. (See previous story.)

The Obama DHS seems anxious to cover up the ugly truth about Montano, a Bolivian national who entered the country illegally as a child, killed Sister Denise Mosier and critically injured two other nuns while driving drunk on August 1, 2010, in Prince William County, Virginia. He has been charged with involuntary manslaughter and drunken driving.

But this is not the first time the illegal alien was in trouble with the law. Montano had been arrested on two prior drunk driving charges. He was placed in the custody of federal immigration officials in 2008 and was scheduled for deportation, but was released on his own recognizance pending a deportation hearing that never took place. (Montano appears to be just another illegal alien to benefit from the federal government’s “catch and release” program.)

DHS Secretary Janet Napolitano blustered over the incident and ordered an investigation on August 2, 2010, to determine why Montano’s removal process took so long. However, DHS initially refused to release the report documenting the results, prompting Judicial Watch to file its Freedom of Information Act lawsuit on December 2, 2010. DHS then agreed to release the report before reneging last week.

One can draw a conclusion — an almost inescapable one — that the final DHS report on the illegal alien nun-killer contained damaging revelations. So now Obama appointees are scrubbing the report. As this report supposedly went to Secretary Napolitano, this scandal seems to go to the top. I think we have a cover-up in the making.

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